Tangled web: So-called “spider” TIF for Bloomington high-speed internet deal hits procedural snag

A 2–1 vote by Bloomington’s redevelopment commission (RDC) on Tuesday night is now a procedural bump for a $50 million high-speed internet fiber deal between Bloomington and the Paris-based infrastructure firm Meridiam.

Even though two out of three was a majority of RDC members who were present and voting, Indiana state law and Bloomington’s local ordinance are both clear about the majority vote requirement for the RDC: “[T]he concurrence of three (3) commissioners is necessary to authorize any action.”

So the 2–1 vote meant the motion failed.

Bloomington’s five-member RDC was short-handed on Tuesday, because RDC president Cindy Kinnarney could not attend and no replacement for David Walter has yet been named.

Now, the RDC has set another special meeting to consider the question again, with four commissioners present. That meeting is scheduled for Monday, June 6 at 5 p.m., according to assistant city attorney Larry Allen, in an email message sent to The B Square after the meeting.

The question in front of the RDC was a resolution that declares an economic development area, designating it as a TIF (tax increment finance) area, and approving an economic development plan.

The area is called by some a “spider” TIF because of the web-like appearance of the area, which follows the path of conduit and fiber.

The idea is to rebate about $14.4 million in personal  property tax to Meridiam over the course of 25 years.

The RDC’s resolution was supposed to set in motion a process for consideration of the TIF area by three other public bodies, with three votes planned on three successive days: Bloomington plan commission (June 13); Bloomington economic development commission (June 14); and the Bloomington city council (June 15).

That timeline for the city council’s planned final action on June 15 includes a first reading of the ordinance at its Wednesday (June 1) meeting. It’s not clear if the ordinance will be introduced at the June 1 meeting, given that the RDC’s declaratory resolution did not pass on Tuesday night.

The city council’s ordinance includes “whereas” clauses that presuppose actions by the economic development commission—actions anticipated, but which have not yet been completed.

But the city council’s ordinance does not appear to presuppose in its wording the passage of the RDC’s declaratory resolution. The council’s ordinance does say that the RDC “will consider adoption of a resolution on July 5, 2022”—that’s the final step of the planned process.

The revelation that the 2–1 vote meant the motion had actually failed came at the end of the meeting, after The B Square departed.

During public comment time before the vote, The B Square asked several questions, including one about the required majority for RDC votes: Would the resolution that night require a unanimous vote of three—that is, a majority of five, which is three—or would it just require a majority of those present and voting, which would be two?

Assistant city attorney Larry Allen’s answer at the time was: “The RDC operates under Robert’s Rules. So the way Robert’s Rules work in this regard is that it’s a majority of the members present and so it’d have to be two out of three.”

Allen’s answer is contradicted by Indiana state law and Bloomington’s local ordinance.

There is a general provision of Bloomington’s local code that says, “Majority vote means a majority of the members of a board, commission or council who are present and voting.” But the caveat in local code about the general provision reads “unless otherwise specified by statute or ordinance.”

About an RDC, Indiana state law and Bloomington local code both state: “[T]he concurrence of three (3) commissioners is necessary to authorize any action.”

In Allen’s emailed message to The B Square after the meeting, he stated: “In my initial search during the meeting, I did not pull up this language.” Allen wrote that when his mistake was discovered, he brought it to the attention of RDC members at the end of the meeting. Commissioners then agreed to convene on Monday, June 6 at 5 p.m. to revisit the issue.

The dissenting vote was cast by Randy Cassady, who is not opposed to the internet fiber deal, or the declaration of the TIF area.

Cassady was not comfortable approving the resolution that night, because he wanted the full participation of the RDC membership on the vote. He said, “I don’t want to delay the project. …But I think it’s important for everybody to have their voice, from each appointed agency that has a person on this commission.”

Chairing Tuesday’s RDC meeting in Cindy Kinnarney’s absence was Deborah Myerson. The other member present, besides Cassady, was Deborah Hutton.

The resolution almost did not come to a vote at all, because the motion appeared to have died for lack of a second. It was Deborah Hutton who made the motion to adopt the resolution. Because under Robert’s Rules, the chair doesn’t make or second motions, it was up to Cassady to second the motion—which he was unwilling to do. The three commissioners mulled briefly how to handle the situation.

Allen told commissioners one possibility would be for someone to make a motion to postpone.

Faced with the possibility of a wrecked timeline for all the required approvals, and a hope-for construction start before the end of the year, Bloomington’s economic and sustainable development director Alex Crowley asked the RDC to recess the meeting so that staff could confer.

On returning from recess, Allen advised that under Robert’s Rules the chair can put a question to a vote without a second, citing Rule 4.13. Allen stated: “A chair may put the question on the table without a second.” Allen continued, “And the fact that [Robert’s Rules] states very clearly, in addition, that the absence of a second does not affect the validity of the motion’s adoption.”

Allen concluded, “So the chair has the discretion at this point to put that question to the entire board that’s present without a second.”

But Rule 4:13 is not the core rule on seconding motions—it applies to “routine motions.” The specific circumstances in Rule 4.13 that allows the chair to put the question to a vote without a second are described like this: “If the chair is certain that a motion meets with wide approval but members are slow in seconding it…”

Rule 4:13 also says explicitly that if the chair puts the question to a vote without a second, that a point of order can be raised and that “the chair must proceed formally and ask if there is a second.”

The formal rule on seconding does not appear to give the chair any discretion to put the question in front of the assembly without a second. Here’s how that rule reads:

4:10 If no member seconds the motion, the chair must be sure that all have heard it before proceeding to other business. In such a case the chair normally asks, “Is there a second to the motion?” In a large hall he may repeat the motion before doing so. Or, if a resolution was submitted in writing and read by the chair or the secretary rather than by the mover (as described in 4:5), the chair may say, “Miss A has moved the adoption of the resolution just read. Is there a second to the resolution?”; or, if the text of the resolution has been distributed to the members in advance and was moved without being read, the chair may say, for example, “Miss A has moved the adoption of the resolution relating to…, as printed. Is there a second to the resolution?” If there still is no second, the chair says, “The motion [or “resolution”] is not seconded”; or, “Since there is no second, the motion is not before this meeting.” Then he immediately says, “The next item of business is…”; or, if appropriate, “Is there any further business?”
[Robert, Henry M. Robert’s Rules of Order Newly Revised, 12th edition (pp. 86-91). PublicAffairs. Kindle Edition.]

The rule that Allen cited in support of his advice that no seconding motion is required reads in its entirety as follows:

4:13 In handling routine motions, less attention is paid to the requirement of a second. If the chair is certain that a motion meets with wide approval but members are slow in seconding it, he can state the question without waiting for a second. However, until debate has begun in such a case—or, if there is no debate, until the chair begins to take the vote and any member has voted—a point of order (see 23) can be raised that the motion has not been seconded; and then the chair must proceed formally and ask if there is a second. Such a point of order should not be made only for the sake of form, if it is clear that more than one member wishes to take up the motion. After debate has begun or, if there is no debate, after any member has voted, the lack of a second has become immaterial and it is too late to make a point of order that the motion has not been seconded. If a motion is considered and adopted without having been seconded—even in a case where there was no reason for the chair to overlook this requirement—the absence of a second does not affect the validity of the motion’s adoption.
[Robert, Henry M. Robert’s Rules of Order Newly Revised, 12th edition (pp. 86-91). PublicAffairs. Kindle Edition.]

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