Former Green Park official revisits abstentions issue

By Mike Anthony

We read with great interest an article written by former Green Park City Attorney Paul Martin that was published in the March issue of the Missouri Municipal Review, the official magazine of the Missouri Municipal League.

Martin’s article is called “Strategic Abstentions and Absences in Third and Fourth Class Cities: What Do You Do Now?” Martin, the article states, now is city attorney for Olivette, Rock Hill and Crystal Lake Park.

In a nutshell, Martin discusses a controversial development that evenly divides a six-member board.

“If each member votes, the mayor breaks the tie. But what if the mayor favors the proposal? Can a project opponent prevent a tie, and pre-empt the mayor’s vote, by abstaining? If it happens, what can you do?” he asks.

Martin goes on to examine a variety of questions, theoretical scenarios and possible options to address the issue, concluding, “… The best option may be for the Missouri Legislature to permit the mayor to vote, not in case of a tie, but whenever half the membership of the board has voted in favor of any given ordinance …”

What’s not stated is that when Martin was Green Park’s city attorney, Home Depot sought tax-increment financing to build a store there. When that city’s six-member board considered an ordinance for a TIF, three aldermen were in favor and three abstained.

Armed with Martin’s opinion “that abstentions which are made to thwart the political process are, in fact, improper, and those kind of abstentions can be declared negative votes,” then-Mayor Larry Kuban in late 1997 changed the three abstentions to “no” votes to create a 3-3 board tie. Kuban then cast the deciding vote in favor of the ordinance, breaking the “tie.”

After a lengthy legal battle, then-St. Louis County Circuit Court Judge Kenneth Romines ruled in September 1999 that the ordinance was not lawfully approved because “… abstentions are not votes and cannot be counted as such to satisfy the statutory requirements for enactment of ordinances.”

While we certainly don’t possess Martin’s legal acumen, we believe his article would have been much more effective as an actual case study based on his real-life experience.

As for his suggestion for the Legislature, what a stunningly bad idea.

We believe Judge Romines said it best in his ruling: “… This court will not and cannot inquire into the motives, thought processes and reasoning behind the votes or abstentions of individual municipal legislators.”