Procedural issue with vote leads to recinding resolution
The sale of the Phillips Memorial Hall property from the village to the Phillips Community Foundation approved by the Village Board in a nearly three-hour meeting in July has been canceled, at least temporarily.
The vote to rescind Resolution 2023-2 which approved the sale of the facility at a price of $14,000 came at the August meeting of the board held on Wednesday the 2nd.
Village attorney Kent Rauert explained that because of conflict-of-interest abstentions in the vote by board chair Les Dana and trustee Wayne Bergmark, who are also members of the foundation board, the vote to approve the sale was not valid. The abstentions left only trustees Jason Fry, Jordan Watson and Jim Crawford to vote on the resolution and Crawford voted against.
“In my understanding of the world and the way municipal law worked, that was perfectly sufficient because we had a majority of those individuals who were capable of voting who voted in favor of the resolution,” Rauert told the board.
However, he said in the following days he was prompted to do more research on the vote and found that the vote was not legal.
“There is a somewhat unique provision that appears not only in Nebraska statute, but also appears in the village code, that requires on any resolution a concurrence of a majority of the whole number of members elected to the city council or village board of trustees shall be required,” Rauert said. “And so cutting through the legalese, what that means is, in order to pass this resolution you need three affirmative votes in favor of that resolution. You only had two, so that resolution was not passed. It actually failed.”
“In fact, what it becomes is, those two members who abstain are essentially no votes at that point,” explained Rauert, “which seems a little illogical to me but it’s not my job to argue with the Unicameral and Nebraska statute.”
Rauert said upon learning these things he had written a long email to the board apologizing for the mistake and proposing the course of action outlined in the meeting’s agenda which was to rescind Resolution 2023-2 and vote on Resolution 2023-4 which he said was essentially identical to the first one.
Ironically, the vote to rescind the original resolution passed 3-0, with Dana and Bergmark again abstaining and Crawford joining the majority this time.
Following a vote to affirm Resolution 2023-3 regarding the signing of the Municipal Annual Certification Of Program Compliance (a procedural vote that must be done annually by every entity of local government in the state as a requirement of the state Department of Transportation) the board began to debate the new resolution on the Memorial Hall sale.
Following the reading of the full resolution by Rauert, Crawford stated, “I’m not 100 percent on board for selling the building. I know we (the foundation) need assistance with utilities but I just have a hard time with it.”
The sticking point for Crawford and other board members appeared to be the unknowns with regard to the future of the facility including the plan to lease back the nearby village storage building – which would be included in the sale – in exchange for the village providing utilities and garbage collection service to the hall. These questions led to several minutes of discussion about various aspects of the sale and what the future may hold which included comments from both village trustees and members of the foundation who were in the audience.
At length, Crawford said, “I want some meat to it for both parties, if it goes to a court of law it will protect both parties.”
In response, Rauert stated, “If this board says, you know what, Kent, go draft those documents (the right of first refusal and the lease agreement) and let’s get approval from the foundation and their attorney on those documents, and let’s come back and consider them as a package, I am fine with that.”
“I’m just saying let’s have everything in place this time, sign it and move on,” Crawford said. “The guess work’s done. Let’s get it in writing.”
Rauert stated that he would get to work on the documents in question and bring them back for consideration at an upcoming meeting.
At that point, Crawford moved to table the resolution and the motion was seconded by Fry. The motion was approved on a 3-0 vote with Dana and Bergmark again sitting out. It was not stated during the meeting just when the matter will come back up for a vote.
In other business coming before the village board at the meeting, the board approved a bid from Tjaden Concrete Construction of Grand Island for replacing the concrete in front of the Fire Hall, discussed the need for new water meter reading equipment, set a date for a state mandatory training program for the board on running a water system, approved an application for a wood privacy fence and discussed a letter that will be sent out to village residents regarding elevated levels of uranium in the water system.
In reference to the uranium levels, village maintenance supervisor Scott Hooley told the board, “We have to test every quarter and we’re going to continue to test. I don’t expect things to come down. We’re waiting for the state and the EPA to get back to us.”