Ozark Board of Aldermen meet by Zoom Oct. 5, 2020

THE OZARK BOARD OF ALDERMEN continues to hold its twice-monthly meetings via the Zoom teleconferencing platform, with key staff members and Mayor Rick Gardner (top left) meeting together at the Ozark Community Center.

Almost ironically, an absent member of the Ozark Board of Aldermen impacted a vote on a bill that would have changed the city government’s rules for abstentions.

By a vote of 3-2 with Ward 1 Alderman R.J. Flores absent, the Ozark Board of Aldermen failed to pass a bill that would have altered the rules governing aldermen who abstain from voting on bills in the future. Flores was absent from the meeting Oct. 5, which took place on the Zoom teleconferencing platform.

Bill sponsor Bruce Galloway had Ward 2 Alderman Ted Smith and Ward 3 Alderman Heather Alder join him in supporting his bill. Ward 1 Alderman Nathan Posten and Ward 3 Alderman Jason Shaffer voted against it.

“I didn’t do a very good job of explaining mechanically how this bill works, and I think for that reason people came away with an impression that it would alter outcomes of board of aldermen votes in situations where a person had an abstention based on a conflict of interest,” Galloway said.

Galloway said his goal in debate on Oct. 5 was to alleviate such concerns from aldermen, past and present, who would need to abstain from voting based on legitimate conflicts of interest, and have their vote construed as a negative vote toward a bill they would otherwise support.

Galloway wants to stop tactical abstentions, where an alderman can abstain from voting as a strategic measure in order to stop a bill’s passage, especially in situations where a 3-3 tie vote by the Ozark Board of Aldermen would offer the mayor a chance to break the tie and cast a vote.

“This bill is designed to eliminate tactical abstentions,” Galloway said.

Galloway used some time during debate to run his fellow aldermen through some different scenarios based on previous real life events.

“I can’t predict every possible scenario, but I’ve gone through as many as I can. If you think about the tactical abstention, the tactical abstention is designed to eliminate the tie vote,” Galloway said.

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.

“I certainly disagree with Mr. Galloway that it’s our job to vote on everything. You know, it’s obvious what we are discussing is the mask ordinance vote where I abstained, effectively killing the measure,” Shaffer said.

Shaffer said aldermen need to have the power to vote for the bills they support, but it’s arguably more important to be able to kill the bills that they don’t support.

“Basically, I’ve been elected as a conservative to pursue a limited government view, and I had the opportunity to take advantage of a loophole to kill an ordinance that my supporters did not want, and I have no shame in doing what I did,” Shaffer said.

Shaffer said that the debate hasn’t turned personal, but he sees Galloway’s bill on procedures as a way to create a vote and the adoption of a face covering mandate in the future.

“Bruce has been very polite, cordial and respectful of what I did,” Shaffer said. “Now, the pro-mask group wants to do away with a loophole so they can move forward with a masking ordinance.”

Galloway denied Shaffer’s claim.

“If this were passed, the mask ordinance still fails because the mayor has made it clear he is voting against it, at least as presently conceived,” Galloway said.

If Ozark had a law like what Galloway proposed 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’s original abstention tactic was legal. Galloway’s proposal would stop such an abstention to create a 3-2 vote from happening in the future.

Under Galloway’s bill, an abstention counts the same as “No,” vote, which would effectively turn a 3-2 vote with an abstention into a 3-3, and allowing the mayor to cast a tie-breaking vote.

“The tactical abstention would be not in favor of the ordinance, and that’s my key point. The person abstaining wouldn’t abstain unless they were opposed, but they’re using it tactically. They would only say the would abstain if they opposed,” Galloway said. “The intention is to prevent the elected mayor from casting the tie vote.”

In that case, Galloway said the abstention goes against the principle of the laws governing the Ozark Board of Aldermen’s policies and procedures. 

“When people are available, it is important for all elected representatives to vote unless there is manifest reason not to, which conflict of interest would be,” Galloway said. “If you accept the principle that wherever possible the vote should go to all of the elected leaders that are part of the body that decides the law, then you can handle the 3-2 scenario.”

Posten supported the concept of closing loopholes, but wanted to find a manner to do it other than what Galloway proposed in his bill.

“I feel like the majority should rule,” Posten said. “I don’t like the vote being recast as a “Nay,” but I would fully support a bill where an abstention was recast with the majority.”

Galloway argued with Posten that, “it can’t be done that way.”

“A tactical abstention only applies when it is applied, so if there is a majority vote already, the person casting the tactical abstention has no motive to vote a tactical abstention, because they already lost, they can’t affect a quorum,” Galloway said.

It is not clear why Flores missed the meeting, but he did vote against the initial face covering bill when it came up for vote in August.

Sister bill

Another bill that came up for debate at the Oct. 5 meeting that would add language to the Ozark Board of Aldermen’s policy for abstaining from votes.

“The person that’s casting the abstention should explain whether they have a conflict of interest or not,” Galloway said. “It’s important to note that it doesn’t require the alderperson to explain what the nature of the conflict of interest is.”

Without the bill barring tactical abstentions gaining enough votes to pass, Galloway didn’t see the sister bill as having much power to carry out his original intent behind introducing the bill.

“I suppose this is better than nothing, in that I suppose other elected officials could call into question later, ‘Why didn’t the alderman have the courage of explaining whether they explained tactically, which is permitted, or had a conflict of interest, which is also permitted?’” Galloway said.

Galloway felt that the opportunity to eliminate future tactical abstentions had come and failed with the vote earlier in the night.

The companion bill passed by a 5-0 vote, with Flores absent.

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