Ozark Board of Alderman mask debate Aug. 10, 2020

THE OZARK BOARD OF ALDERMEN held a special meeting at the Ozark Community Center on Aug. 10, in order to accommodate more than 30 speakers while adhering to social distancing guidelines. From left: Alderman R.J. Flores, Alderman Bruce Galloway, Mayor Rick Gardner, Alderman Nathan Posten and Alderman Jason Shaffer.

A vote on public face mask use is not likely to surface at Ozark City Hall again, at least not in the immediate future. A close call in August, however, did lead one alderman to question the city legislative body’s procedure for voting on bills, or declining to vote.

Alderman Jason Shaffer’s abstention from voting on a bill called to question on Aug. 17 means that Ozark residents will not be required to wear masks in public places.

After more than an hour and a half of debate, Shaffer abstained from voting on a bill that would have required face mask use in certain public settings. 

Shaffer was not absent from the meeting, but he declined to vote during a roll call, a tactic that effectively killed the bill. The vote also followed a four-hour public hearing conducted on Aug. 10.

Aldermen Nathan Posten, Heather Alder, and Bruce Galloway voted for the bill. Aldermen R.J. Flores and Ted Smith voted, “No,” and Shaffer abstained.

Galloway said he brought the bill on voting abstentions forward to stop such 3-2 votes from becoming a regular occurrence with the Ozark Board of Aldermen. A lawyer by trade, Galloway said he understands and appreciates the use of a tactical abstention like the one Shaffer made.

“I don’t have any issues with that at all, I think that’s fair. But my sense as a matter of policy is that if we leave that out there to where one abstention can frustrate a voting process that allows ties to be decided by the mayor, who is also elected, you know, I think we should take the opportunity to do it because it does facilitate our democratic processes,” Galloway said.

Galloway learned about a local law in nearby Branson, which faced a similar situation to what Ozark faced in its public masking bill.

“They dealt with a situation similar to ours where an abstention was made in a vote. We’ve had this before, not just fairly recently, but I recall another time where this was used. I don’t fault anybody for using it, but in the city of Branson, where there was an abstention used without a conflict of interest, the mayor said something that piqued my curiosity—the mayor of Branson—and he said, ‘Well, this seemed to conflict with our ordinances dealing with this,’” Galloway said.

Galloway asked Ozark City Attorney Amanda Callaway to research Ozark’s ordinances regarding aldermanic votes, and what the law requires aldermen to do when a roll call vote is called.

“Under Missouri law, it takes a majority of the entire board to pass an ordinance. Typically, under common law, an abstention would be an acquiescence or vote with the majority. Since the state law supersedes the common law, we do not have that ability here, so we cannot turn an abstention into the vote of the majority, because the state law requires an affirmative vote of four to pass that ordinance,” Callaway said.

Galloway wanted to examine the use of abstaining from a vote as a tactic to kill a bill.

“The city of Ozark doesn’t have any restrictions of the use of abstentions. Of course, we all know that we can abstain, must abstain, for conflict-of-interest reasons. But what if we don’t, and we’re doing it for a tactical reason?” Galloway said. “I’m a lawyer, I certainly see if there is a tool out there, an alderman can use it.”

Under the city law in Branson, an abstention is effectively made into a ‘No’ vote on a bill. It can then create situations where a 3-2 vote of the board of aldermen with an abstention would legally turn into a 3-3 vote, creating an opportunity for the elected mayor to cast a tie-breaking vote.

If Ozark had a law like Branson’s at the time that its public face mask requirement bill had come up for vote on Aug. 17, Shaffer’s abstention would have turned a 3-2 vote into a 3-3 vote. Mayor Rick Gardner then could have cast a tie-breaking vote on the bill, one way or another, creating the potential for it to pass or fail outright. On Aug. 17, Gardner said he would have cast a tie-breaking vote to kill the bill.

“If this had been a tie, I would have voted against it,” Gardner said. “There is too much inconsistent studies of effectiveness of masks that say—I mean, our definition of a face covering is just not adequate.”

Shaffer said that the experts failed to provide sufficient evidence that masks were helpful in fighting in the spread of COVID-19.

“To me, that seems to cause more trouble by getting people overconfident that these masks are going to protect them from the disease,” Shaffer said.

As for the procedural bill that came up for discussion on Sept. 21, Mayor Gardner said that turning an abstention into a negative vote didn’t seem proper to him.

“I can see both sides of this, and I don’t want to take a side. I can kind of see the irony when someone declares a conflict of interest, because they really do a have a conflict and they should not be involved in the decision,” Gardner said. “If they abstain, then that’s automatically cast as a ’No,’ which could work in their favor or not, but it just doesn’t seem right.”

Alderman Flores spoke up in agreement with the mayor.

“It seems like the idea of abstaining is to remove yourself from the situation, and if it’s automatically a ‘No,’ it puts you right back in the situation,” Flores said.

Shaffer, also an attorney by trade, questioned the city attorney about how abstention decisions would be counted if Ozark were to adopt a procedure similar to the one in Branson.

“So there would never be an abstention? It would always be a ‘No’ vote?” Shaffer asked Callaway.

“It would be recast as a ’No’ vote,” Callaway responded.

“So there’s no abstentions. I mean, if I were to abstain again, it would just be a ‘No,’ vote,” Shaffer said. “To abstain, I only did like 10 minutes of research, and there seem to be lots of ways or reasons I could abstain.”

Shaffer argued that he could be allowed to abstain without a conflict, if he did not have a strong enough opinion toward a bill or a resolution one way or another.

“Under the common law, a councilman has a duty to vote if they are going to count towards the quorum,” Callaway said. “With that duty in mind, it would be essentially  doing away with the legislative process if that alderman failed to use that duty appropriately.”

Shaffer argued that a duty to vote would include an option to abstain.

“In the situation you referenced, there is nothing prohibiting an abstention to vote,” Callaway said. “if you have a conflict of interest, your duty under the state law is to announce that conflict of interest.”

The Ozark Board of Aldermen will continue to debate its bill about points of order and abstentions at a meeting on Oct. 5, a meeting that may or may not include a vote on Galloway’s bill.

“I think there is a balance, and you are weighing different interests, but I don’t think it’s fair to say that the ordinance is counterproductive toward having votes that matter,” Galloway said. “Really, it’s designed to address a situation where somebody abstains for tactical reasons.”

A second bill up for consideration, also sponsored by Galloway, would amend the language of Ozark’s rules of order for board of aldermen meetings, encouraging an alderman to abstain from a vote only in situations where they face a conflict of interest. However, the language up for consideration spells out that an alderman would not be required to offer extensive explanation of their conflict of interest.

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