OPINION
There is a dirty little trick in local government that deserves far more scrutiny: tell an elected official that he has no choice, then call the vote “administrative.”
It sounds legal. It sounds technical. It sounds like something citizens are simply supposed to accept. But a compulsory vote isn’t really a vote…It’s coercion.
If elected officials are legally forbidden from voting according to their own judgment, then we have to ask a rather uncomfortable question: what exactly are we electing them to do?
That question is playing out in McKinney, Texas, where the City Council unanimously approved a proposed Islamic center despite significant opposition from residents who packed City Hall to protest the project. The council approved the site plan Aug. 4 after a meeting that reportedly lasted about five hours and included more than 100 speakers. Residents have since launched an effort to recall the mayor and council members, although whether enough valid signatures will ultimately be collected remains to be seen.
Mayor Bill Cox of McKinney characterized the council’s role as “administrative” or “ministerial”. Dumbing down the vote to a simple question, “Did the proposed site plan satisfy the City’s established development requirements?” Says Cox on a Facebook post this past Sunday.
And that’s where things get interesting.
McKinney’s own staff report says site plans are generally approved administratively by city staff. But this particular planned development ordinance requires the project to go before both the Planning and Zoning Commission and City Council.
In other words, the city itself established a process requiring elected officials to vote. Then, after bringing the matter before those elected officials, residents were essentially told those elected officials had no choice but to approve it.
That’s an awfully strange definition of representative government.
Texas law absolutely recognizes ministerial duties. A ministerial act is one where the law leaves the official with no discretion and prescribes what must be done. Texas courts can compel performance of a clear ministerial duty through mandamus. They generally cannot use mandamus to dictate the exercise of genuine governmental discretion.
But here’s the question that local governments should have to answer:
Why put a truly administrative decision before an elected body in the first place?
If an application meets every objective requirement and approval is mandatory, let the administrator approve it. That’s what administrators are for.
Let the city manager, planning director, zoning administrator or other properly designated official perform the administrative function. There is no reason to drag an elected council into a decision that supposedly contains no discretion, then tell council members they are legally obligated to cast a particular vote.
Because once you require an elected representative to vote, you have entered the political process. And a vote that can only legally be “yes” isn’t really a vote. It is an order.
This is where I believe Texas municipalities need to rethink the way they use the term “administrative.” A city council member is not a city manager.
He isn’t a bureaucrat whose job is simply to process paperwork according to a checklist. He is an elected representative. His constituents elected him to exercise judgment, to deliberate and, when necessary, to say no.
And that includes saying no to something that city staff believes complies with an existing ordinance.
Now, that does not mean a council member gets to ignore the law. Obviously he doesn’t. An elected official cannot simply declare that an ordinance doesn’t exist because he doesn’t like its consequences. But there is a vast difference between saying, “I don’t like the law,” and saying, “I don’t believe this application is legally entitled to approval.”
The former is political disagreement. The latter is a legal position that can be tested in court. And that is what courts are for.
If an applicant believes a council unlawfully denied an application, let the applicant sue. Let a judge determine whether the council had a ministerial duty to approve it. If the court orders approval, the city would comply. If someone believes the trial court got it wrong, the appellate process exists. That’s the legal system. Avoiding it doesn’t help a community…it supercharges distrust in the system.
What isn’t healthy is telling an elected official that he MUST vote for something because somebody else has decided his vote is merely “administrative.”
A compulsory vote is not representative government. It is coercion dressed up in municipal jargon. And here’s the simple rule I would like to see every Texas city follow:
Keep administrative acts with administrators.
If the City Manager can approve something because the law requires approval upon satisfaction of objective conditions, let the City Manager approve it. But if the city charter, ordinance or municipal process puts the matter before an elected council for a vote, then the council must retain the ability to vote yes or no.
Otherwise, it’s not a vote, it is compelled consent.
A representative republic depends upon elected officials exercising judgment on behalf of the people who elected them. They can make good decisions. They can make bad decisions. They can be reelected. They can be defeated.
What they cannot meaningfully be is representatives who are told they have no choice.
Because once you remove the ability to say no, you’ve removed the very thing that makes the exercise of political judgment a vote.
And if McKinney’s residents don’t like how their elected officials exercised that judgment, they have every right to make their own judgment at the ballot box, or through the recall process the city’s charter provides.
That’s accountability.
And accountability is supposed to be the whole point. The McKinney City Council has failed to uphold its obligation to the citizens who elected them … and they deserve to be recalled for no other reason than that they were gutless when faced with adversity.