by Doug Breehl-Pitorak,
(Plain Press, October 2021) During a July forum for mayoral candidates, Cleveland City Council President Kevin Kelley answered what seemed like a simple question: “What are your thoughts on what constitutes adequate public notice and public participation?”
Kelley, who called public participation “crucial,” said during his seven years leading council, he’d made sure residents had advance notice of meetings and agenda items and that he cut down on the use of a tactic called “passage under suspension.”
When council passes an ordinance under suspension, it waives the normal rules that require proposed legislation to be read by the full council on three separate days before it can be approved and limits the window of discussion, debate or public input between the introduction and passage of a law.
“It almost never happens unless it is a small issue like a liquor [license] or a hyper-local issue,” Kelley told the voters gathered underneath a pavilion at the Council of Cleveland Neighborhoods’ Mayoral Forum at Edgewater Park on July 27. It happened “all the time” prior to his becoming City Council president, Kelley said. “Now it does not happen unless there’s an extreme time emergency.”
Cleveland Documenters review of records found that what Kelley said isn’t true.
Between January 2020 and May 2021, Cleveland City Council voted to suspend its own rules and shorten the legislative process 99.5 percent of the time, according to The City Record, the official journal of council’s proceedings.
Council passed legislation the same day it was introduced nearly a third of the time. The introduction of legislation is often the first opportunity for the public to learn about it.
Kelley, through his executive assistant, declined to answer questions about his statements or about what Cleveland Documenters found.
The habit of “suspending the rules” may seem mundane or bureaucratic. It’s easy to overlook with hundreds of pieces of legislation churning through committees and council meetings each year. But it raises questions about why the rules exist if they are almost universally disregarded. By shortening or skipping the committee process, council also fuels doubt about its capacity to vet legislation. And if sparing use of passage under suspension aids public participation, as Kelley implied, does routine suspension — what actually happens in council — obstruct the public from getting involved?
That’s what several community members contended in 2020, when council officially set in motion Operation Relentless Pursuit (ORP), a federally funded policing initiative also referred to as Operation Legend.
Though the federal government announced that Cleveland was selected for the program in December 2019, council authorized the city to use the first wave of funding — $1,428,571 — by passing legislation the day it was introduced in June 2020. It covered overtime pay, benefits, computers and undercover police cars.
Resist Operation Relentless Pursuit Cleveland, a community organization that was formed to oppose the program, noted in its fact sheet that ORP was counterproductive to community safety and would especially harm Cleveland’s Black and brown communities.
“When council declares an ‘emergency’ and evades the requirement of three readings, democracy is starved,” wrote the groups, which included Black Lives Matter Cleveland and Showing Up for Racial Justice Northeast Ohio (SURJ NEO). “When council routinely passes ordinances without input from the public, democracy is throttled.”
Council approved the second wave of funding in September 2020 after two readings, 14 days apart, with a review by the Safety Committee in between. The funding provided nearly $8 million for three years’ worth of salary for 30 police officers.
There was no public comment at those meetings. Though some organizers had private conversations with several council members, a significant majority ignored their calls and emails, according to Daphne Carr, a Youngstown-based activist who has organized with SURJ NEO.
“I know that democracy takes time, but it turns out that everybody is much happier when they actually get any say at all on what goes on in their community,” Carr said in an interview.
Concerns about the public’s opportunities to participate are not isolated to any one topic. Cleveland Documenters interviewed nearly 80 residents in 26 Cleveland neighborhoods this summer and found that many have challenges to accessing local government. Many said they didn’t have a reliable way to find out when meetings happen or what would be discussed in them.
That’s an experience Ohio City resident Angelo Trivisonno understands. Trivisonno created a Twitter account in December 2020 that automatically tweets out meeting notices and legislation files after council posts them on Legistar, its legislation-management website.
“Before I made Bill Bot, I really had no idea what council was doing on a day-to-day basis,” he said.
Though he’s noticed that council deals with a lot of routine items like liquor permits and minor zoning issues, Trivisonno said there’s value in sharing information about legislation quickly, especially for advocacy efforts.
“Time is really of the essence in some situations, particularly when three readings are suspended,” he said. “If a meeting is on a Monday, and they release information on Legistar on Thursday or Friday, that doesn’t give people who care about a particular item on council’s agenda much time to discuss with neighbors or discuss with other interested people or groups. Every moment counts in a number of situations.”
Ninety-seven percent of the ordinances City Council passed were declared an emergency, which means they take effect as soon as the mayor signs them or 10 days after council’s vote.
In addition to accelerating the legislative process, Cleveland City Council has a habit of speeding up the timeline for ordinances to take effect. Ninety-seven percent of the ordinances Cleveland City Council passed were declared an emergency, which means they take effect as soon as the mayor signs them or 10 days after council’s vote. Regular, or non-emergency, ordinances take effect 30 days after they are passed (unless a piece of legislation sets a specific start date). The laws often authorize expenditures, which determine how the city spends taxpayers’ money.
FROM PARLIAMENT TO CLEVELAND, A LEGISLATIVE RULE PERSISTS
Cleveland Documenters contacted 10 council members in addition to Kelley to get a better understanding of passage under suspension, emergency ordinances, and more. Council Members Jasmin Santana and Jenny Spencer said they weren’t available to talk. Council Members Delores Gray, Anthony Hairston, and Kerry McCormack didn’t respond.
Council Member Kevin Bishop, who represents Ward 2, said he has never questioned the purpose of the rule requiring council to read legislation on three different days, but he thinks it gives the public enough time to digest proposed ordinances and voice their point of view. Council Member Brian Kazy, who represents Ward 16, offered his take on each reading: Day One is for introduction, Day Two is for discussion and comment, and Day Three is for voting.
Kazy’s understanding aligns somewhat with historians and academics who say the “three readings” model for considering legislation, which dates back at least to the 15th Century and is common across the country, gives lawmakers time to understand legislation before voting on it.
“As far as I know it goes back to the English Parliament; it dates back hundreds of years,” said Larry Keller, associate professor emeritus at Cleveland State University’s Maxine Goodman Levin College of Urban Affairs. “It was meant to forestall emotional legislation. It was to force a legislative body to think about what it’s doing.”
It also gives people inside and outside of the legislative process time to find problems with a proposed law, according to Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida. Three readings is ultimately a check on “rash” decisions, he said.
Locally, the rule to read legislation on three different days and the authority to suspend it dates back to Ohio’s first constitution, approved in 1803. Cleveland City Council followed state law until 1914, when Cleveland adopted its first city charter after receiving “home rule” authority from Ohio two years earlier. Today, suspension of the rules requires support from at least two-thirds of all members elected to Cleveland City Council, which currently means 12 or more affirmative votes.
But are these centuries-old legislative practices still relevant? Keller believes they are.
FOR COUNCIL, A QUESTION OF POWER AND TIME
Keller, who has trained city council members in Cleveland and elsewhere, told Cleveland Documenters that by suspending the rules often, councils give up a tool that keeps them viable in a mayor-council form of government like Cleveland’s, a setup where mayors wield lots of power. He wrote a 2014 Cleveland.com column making that argument.
“That’s what makes three readings important to me,” Keller said. “It’s part of a menu to make council a truly policy-making body.”
Council Member Mike Polensek, who represents Ward 8, agreed with Keller’s perspective on the “three readings” rule.
Council President Kelley had indicated he would slow the legislative process down after routine suspension increased under former president Martin Sweeney’s leadership, Polensek said. Now Polensek, the longest-serving member in council history, is hoping new leadership in January 2022 will restore a system of accountability and oversight.
“The lines between the administration and council are very blurred; one would argue that there is no division,” Polensek said. “People view the City Council today as weak, the leadership as weak and ineffective because … they’re in lockstep with the administration.”
Council seeks to work with the administration, Polensek said, adding that there are true emergencies that call for quicker passage of legislation. But much of the argument behind suspending the rules centers on time constraints, and a properly functioning administration shouldn’t be running so behind on legislation, he said.
Suspending the rules shortens the committee process or bypasses it altogether, even though committees provide a space for digging into important details, according to Polensek. In the past, he said, committee meetings lasted 4 to 5 hours or would be postponed — and the legislation with it — if committee members or administration officials didn’t attend.
“If we didn’t get what we wanted, there would be legislative constipation,” Polensek said.
Not all council members feel that council’s power is compromised by suspending the rules so often.
Cleveland City Council still thoroughly vets legislation, even if it doesn’t adhere to the three-reading standard, said Council Member Blaine Griffin, who represents Ward 6. Griffin, who chairs council’s safety committee, said the council president, committee chairs, and clerk’s office work together to shepherd legislation through the process, which includes committee meetings and administrative review.
“It’s not like a static process; this is not robotic,” Griffin said. “This is a dynamic process that has a lot of decision-making points and has a lot of opportunity to vet the legislation that we’re putting forth.”
One reason for suspension is that the city may risk missing out on a grant, Griffin said.
Other times, a city department might need to purchase equipment or supplies in order to perform services, said Bishop, who was first elected to council in 2017.
Though he couldn’t think of specific examples, Bishop said council’s legislative process has seemed rushed at times, adding that council should slow down when considering long-term contracts and legislation that authorizes the use of lots of taxpayer money. Suspending the rules to buy supplies such as road salt or lawn mowers makes sense, he said, adding that the council could read more legislation on three different days with improved planning.
“If the administration planned things out a little better, then I think we wouldn’t have to suspend the rules so much,” Bishop said. “But from council’s standpoint, we don’t want the city to suffer as far as delivering the services.”
Nearly half — at least 46 percent — of the legislation that council passed between January 2020 and May 2021 came at the city’s request, according to Legistar. Ward 9’s Kevin Conwell said the rate at which council suspends the rules is too high and suggested that council do a quarterly review of how it passes legislation. He also wondered if the administration is late in getting legislation to council.
Even if the city does run behind, the responsibility lies with council members to make time, Griffin said.
“[Part of our job] is that we actually have to carve out time to make sure that you’re reading the legislation, that you’re familiar and you understand it, that you get feedback from your constituents, that you get feedback from other stakeholders,” he said.
If the city does not provide enough information, committee chairs can hold legislation until it’s ready, Griffin said, adding that he can’t recall many instances of council members saying they didn’t have enough time to look at legislation.
Council recently kept an emergency ordinance in the committee stage rather than voting on it. The legislation would net the city a $415,125 grant from Cuyahoga County to enforce domestic-violence warrants. Kelley said the legislation was sloppy and he postponed a vote, rather than voting later that day, according to Documenter Mildred Seward’s notes on the Aug. 18 Committee of the Whole meeting.
A closer look at legislation passed on introduction
Council passed 584 ordinances and emergency ordinances between January 2020 and May 2021. Ninety-six percent passed without a single vote against them, according to the Cleveland Documenters review of The City Record.
A nearly identical pattern emerged among the votes on suspending the rules. Out of about 9,000 opportunities for council members to vote on suspension, they tallied 36 nay votes, none of which ever combined for enough votes to prevent suspension.
Cleveland Documenters homed in on the 26 percent of legislation that council passed in the same meeting it was introduced.
Passing legislation on the day it is introduced eliminates the dynamic vetting process Griffin described. Council’s rulessay legislation to be passed “on introduction” must be “considered informally” by at least one committee, so long as “circumstances permit.” The relevant committee chair usually handles this informal consideration, but there is no meeting, Deputy Clerk of Council Allan Dreyer said.
“The point of introducing and approving legislation under suspension is that there is an urgent need that cannot wait for a meeting,” he wrote in an email.
All the items passed the first time they were read were also emergency ordinances. More than half authorized the use of casino revenue funds, which are a portion of the 5 percent of casino tax revenue that the City of Cleveland gets each year that council members get to spend. In 2020, it was about $9.7 million.
Those funds went to neighborhood programs that provide computer training, offer music education, renovate the storefronts of small businesses, and more. That legislation is not controversial and would not have to be read on three separate days because no one would object to it, Ward 16 Council Representative Brian Kazy said in an interview.
Council also passed several items the same day they were introduced that carry citywide impact, including handing over its authority to approve some vendors and their compensation to the city’s Board of Control, which is made up of members of the mayor’s cabinet and city department heads.
One example of that legislation authorized the implementation of The Division of Information Technology & Services (ITS) 2020 Capital Project Plan. The plan calls for sweeping upgrades to city departments’ computer and internet infrastructure. The legislation authorized the city to engage with multiple vendors and consultants to execute the plan. The funding would come from bonds — a type of loan — secured in 2020 for this purpose. The project was estimated to total $5,358,700 in capital costs, according to a legislative summary obtained by Cleveland Documenters via a public-record request.
In 2021, council passed an ITS plan the same week it was introduced that was estimated to carry $5,000,000 in capital costs, according to a legislative summary available on Legistar.
Another initiative passed on introduction gave the Board of Control authority over vendors and compensation involved in the development of violence-prevention programs for the city’s Neighborhood Resource and Recreation Centers.
Ward 2 City Council Representative Kevin Bishop said he thinks council should retain that authority as much as possible, but sometimes the experts on the Board of Control are best positioned to make those decisions.
“If you have synergy through the government, you tend to rely on the professionals in some instances,” Bishop said.
Council members also said ordinances accepting grants could be passed quickly. And that happens, as the ORP legislation showed.
In 2020, council also passed legislation on introduction that authorized the city to get $250,000 from the State of Ohio — plus an $83,333 match from the city — for the operation of the Northern Ohio Law Enforcement Task Force (NOLETF), a coordination of regional law enforcement agencies focused on reducing drug trafficking and other drug-related crimes.
Council may approve grants for NOLETF and ORP because it’s familiar with the programs, according to Griffin.
“Sometimes they’re just repeat grants, or sometimes there’s just amendments or addendums,” he said.
Though ORP was new, Cleveland has participated in NOLETF since 2005. But even programs that have been around can stir debate.
This year, council passed a separate NOLETF grant after reading it on two different days. It was first read by council on Dec. 2, 2020, and it was discussed in a Jan. 20 Committee of the Whole meeting. There, Ward 9 Council Member Kevin Conwell and Joe Jones, who represents Ward 1, expressed doubt about the program’s effectiveness in reducing crime.
Later that day, in a regular council meeting, council unanimously voted to approve the legislation, according to The City Record.
Calls for extended, thorough deliberation
Since Cleveland Documenters began attending meetings in November 2020, Documenters have noted other instances of council members asking for more information or time. There were several examples during hearings on the budget, the biggest piece of legislation council passes each year.
Requests from council members for more information or time don’t indicate that a piece of legislation is good or bad. They show efforts of oversight and accountability, which are sorely needed given the city’s economic reality, according to Ward 8 City Council Representative Michael Polensek.
“If there’s ever a time in this city’s history that we need to be penny-wise and not pound foolish, it’s now,” he said. “We have to look at every dollar we’re spending, where it’s going, what kind of impact it is having, especially as it pertains to city service and delivery of city services.”
PROBLEMS AND POSSIBILITIES FOR PUBLIC PARTICIPATION
In addition to three readings and public comment, the petition against Operation Relentless Pursuit called out council’s choice of declaring the legislation an emergency. Cleveland Documenters have been curious about that practice from the start of our work last year.
Documenter Jack Barnes, in his notes on a Nov. 18, 2020, City Council meeting, asked, “Why were they ‘emergency ordinances?’ Is it just because of COVID that ‘emergency’ is warranted?”
Emergency ordinances pre-date the pandemic. They don’t always indicate an emergency as the word is commonly understood, according to Griffin, who added that council uses them mainly because they’re practical and efficient.
“The clerk’s office, if there’s no objection, then they’re going to take the efficient route to move the legislation along and tag it with emergency,” he said.
Council passed 97 percent of its ordinances as emergency ordinances between January 2020 and May 2021. Some initiated a mask mandate, extended garbage-truck leases, and purchased rock salt.
Another authorized the creation of a Rocky Colavito Jr. statue, honoring the beloved Cleveland baseball player. Passed in November 2020, the “emergency” statue was unveiled Aug. 10.
“Why would it be important for us to make it sit there for another three weeks?” Griffin said. “That’s three weeks that they would have lost that they could have just started embedding and putting in the statue to have it ready for the biggest Italian-heritage festival in this region [the Feast of the Assumption].”
Emergency ordinances carry an additional layer of significance. Their shorter timeline to becoming effective — and in many cases activating contracts — can complicate referendum efforts, where residents gather signatures to force passed laws to be repealed or put on the ballot for a citywide vote. Some types of emergency ordinances aren’t subject to a referendum at all.
Alternatives to the “three readings” rule and the handling of emergency ordinances
Though the practice of reading legislation on three different days and designating it an emergency is common, there are alternatives — in theory and in practice. The Model City Charter, a blueprint for municipal rule produced by the National Civic League, says councils must publish proposed legislation and hold a public hearing on it no sooner than seven days later, allowing anyone who is interested to speak. If any amendments are made to the legislation, the process starts from the beginning. Emergency ordinances can be passed on introduction, but they last for only 60 days.
“[The Model City Charter] gives citizens a chance to participate before the council processes [legislation], and they’ll be present when the council deals with the ordinance,” CSU’s Keller said. “The three readings doesn’t ensure that.”
Many city charters have the three-readings rule, Keller said. But some cities have modified versions or are entirely different. Cleveland Documenters found differences ranging from subtle — like Akron, where its council has a setup similar to Cleveland’s but requires public hearings for certain zoning ordinances — to pronounced — like Pittsburgh, where its council must wait at least seven days after legislation is introduced to take a final action and must hold a public hearing for select types of legislation. If 25 or more registered voters sign and deliver a petition no more than three days after notice of a proposed law’s introduction, Pittsburgh City Council must hold a public hearing, regardless of the type of legislation.
Pittsburgh does not use emergency ordinances, but its charter doesn’t mandate a specific “cooling off” period before passed laws take effect. Its council can decide to take final action on legislation sooner if it deems a situation is urgent.
Differing perspectives, one result
Ultimately, there seems to be a difference between the public’s view of its opportunities to participate in local government and the council’s view.
“I think when the public sees a piece of legislation out there and they want a council person to vote a certain way, trust me, we hear from them,” Kazy said, adding that public input makes council members better legislators.
The public and residents have more than enough time and opportunity to participate, added Griffin, who mentioned committee meetings and his ward meetings as chances for public involvement.
The reality of fast-moving legislation, lack of public comment, and limited meeting notice can result in a sense of disengagement or a belief that council doesn’t value residents’ input, which University Circle resident Jennifer Frymier shared in an interview with Documenter Gennifer Harding-Gosnell.
“People don’t do things unless they get something out of it. There has to be more of an incentive,” Frymier said of participation in local government. “If they’re not really feeling like they’re benefitting from it, then what’s the point?”
Editor’s Note: The Plain Press received this article by by Doug Breehl-Pitorak courtesy of Cleveland Documenters and The Cleveland Observer newspaper. The article was produced through a collaboration between the Cleveland Observer and the Cleveland Documenters. Documenters Gennifer Harding-Gosnell, Daniel McLaughlin, Keith Yurgionas and Emma Andrus contributed to this reporting. Cid Standifer created the graphics. To learn more about Cleveland Documenters click the CLE Documenters tag on the NeighborUp website at: www.neighborupcle.org or visit the Cleveland documents site on www.documenters.org. To learn more about The Cleveland Observer visit their website at www.theclevelandobserver.com. The Plain Press and The Cleveland Observer are members of the Neighborhood and Community Media Association of Greater Cleveland.