Opinion | Dereliction of duty: When Bloomington city councilmembers abstain on $30-million votes

On Wednesday night, Kate Rosenbarger and Steve Volan abstained on the vote granting a $30-million tax abatement for Catalent—but not because they had some financial conflict or even an appearance of one.

The resolution passed with six votes in favor, one more than the five-vote majority it needed.

Rosenbarger was in a quandary—she doesn’t belie

Volan also said he found the concept of tax abatements problematic, and complained that Catalent was not willing to make some additional commitments—for example, allowing a developer to build housing on Catalent land.

Volan could not vote yes, but wanted to make a “show of good faith to Catalent.” What was his show of good faith? To abstain.

For anyone who likes to do math, it’s puzzling why an abstention would count as a show of good faith. An abstention contributes the same as a no vote towards reaching the required five-vote majority: Zero. There’s no extra negative arithmetical weight attached to a no vote.

Volan was fifth to vote in the roll-call. So at that point, the resolution had not yet achieved its needed five-vote majority. That means Volan’s abstention could have turned out to be decisive in causing the resolution to fail—if those who followed him had not cast votes in favor.

But the resolution didn’t fail.

It was approved in part because Isabel Piedmont-Smith cast a vote in favor, even though she expressed some of the same qualms that Rosenbarger and Volan did about the tax abatement system in general.

In contrast to Rosenbarger and Volan, Piedmont-Smith did her job on Wednesday night. It’s a job that we pay councilmembers $19,187 a year to do—to cast a vote even when it’s a difficult issue.

Matt Flaherty voted no, in part because he did not think an adequate case had been made under the letter of the state law that defines an economic revitalization area. Even if he landed in a different place than other councilmembers, he performed the duty that councilmembers sign up to do when they are elected: vote on difficult issues.

Based on two and half years of covering the Bloomington city council, it appears to be an accepted custom for Bloomington city councilmembers to abstain from voting, even when they don’t have a conflict of interest. For the first two years of this edition of the city council, B Square counted 22 abstentions.

On none of those occasions did a councilmember cite a conflict of interest as the reason for the abstention.

Under Bloomington’s local law, what are the legitimate grounds for abstaining ? It sure doesn’t look they they include the kind of political considerations invoked on Wednesday. Here’s the paragraph on voting procedure:

2.04.360 – Voting procedure.

(d) Members shall vote on all questions before the council except in situations where there is a conflict of interest or for other good cause. If a member fails to vote upon any matter, any other member may raise the question and insist that the member either vote or state the reason for not voting and be excused.

That means  a city councilmember just two legal reasons for not voting: (1) conflict of interest; (2) “other good cause.”

Apparently “other good cause” is customarily interpreted on the Bloomington city council to mean: “whatever a councilmember wants it to mean.”

Surely, it was not the intent of the law to allow councilmembers an escape hatch from voting, for whatever reason they choose, including no reason.

When the city code is read in its entirety, harmonizing all of its parts, it seems clear that the “good cause” should be related to a councilmember’s inability to act in a way that’s in the public interest, independent of their own interest.

Here’s how to connect those dots. The part of the voting procedure that describes how councilmembers can hold each other accountable for voting says that one councilmember can “insist that the [non-voting] member either vote or state the reason for not voting and be excused.”

The formulation “be excused” is a little curious—presumably it means the council needs to vote on excusing a member from voting. But it’s worth noting that “be excused” is the same phrase invoked in the section of city code on councilmember conflict of interest:

2.04.150 – Conflict of interest.
In the event a council member would be required to take any action that would directly affect a financial interest of the member other than an interest of a minimal nature or an interest that is not distinct from that of the general public, the member shall either explain the potential conflict and ask that he be excused from voting, deliberating, or taking action on the matter, or shall explain the potential conflict and state why he is able to participate fairly, objectively, and in the public interest despite the potential conflict.

These two code sections—on voting procedure and on conflict of interest—are linked not just by the lexical phrase “be excused.” They’re linked thematically. They should be analyzed essentially as covering the same topic from opposite points of view.

The section on conflict of interest covers situations when a councilmember might want to vote, but should not be allowed to vote. The section on voting procedures covers situations where a councilmember might not want to vote, but should be required to vote.

Surely it is the same general universe of “good causes” that apply in each of these code sections. The section on conflict of interest states explicitly the key considerations—a councilmember’s ability to act on on a given issue fairly, objectively, and in the public interest .

What are the factors that contribute to a councilmember’s ability to act fairly, objectively and in the public interest? They might not all stem from strictly financial interest. They could stem from professional, personal and social relationships. In any case, these are relatively permanent attributes of a person, which are not subject to change through argument or persuasion during a city council meeting.

That’s conceptually different from the kind of considerations given to the topic by Volan and Rosenbarger. Neither tried to make a case that they were not able to act just in the public interest and therefore could not vote. Instead, they arrived at a choice to abstain, because that was where their political and policy analysis pointed them.

It is regrettable that abstention is currently a politically safe place for Bloomington city councilmembers.

That’s because there is not one person currently serving on the Bloomington city council who is willing to hold a would-be abstainer accountable. Here’s how that could sound:

Madam Chair, I raise a point of order under BMC 2.04.360: Would the chair please insist that the esteemed councilmembers from District 6 and District 1 vote on the question that was just before us or else state the good cause under which they would like to be excused, so that the council might weigh the merit of their good cause and vote on their recusal from this question?

I don’t think we’re ever going to hear someone say that at a Bloomington city council meeting. Why would they? Every councilmember probably wants that same escape hatch of abstention, in case they ‘need’ it sometime. 

I hope the Bloomington electorate might start asking, in the run-up to 2023 municipal elections: How often are my councilmembers derelict in their duty to vote?