At any given public meeting, local officials in Orange County could make rent control, high-rise developments or late-night alcohol businesses part of their residents’ lives with a simple “Yes” or “No” vote.
But some elected leaders are turning to a third way to vote on controversial policies during public meetings:
It’s more of a non-vote than a decision in favor of or against something, traditionally used by elected officials to shield their government from ethical concerns and conflicts of interest when voting on issues in town they may have a personal stake in.
At least one city is raising questions about whether the abstention has now become a way for elected officials to avoid taking any stance at all – dodging accountability by invoking the non-vote for vague or unpersuasive reasons.
“Part of our job is to be able to make those really hard decisions whether we want to or not, and to do that on behalf of the constituents that we should be representing,” said Santa Ana City Councilmember Jessie Lopez at the March 1 City Council meeting.
Lopez at that meeting proposed a policy barring council members from abstaining on any votes unless they’re disqualified for valid reasons laid out in the new rule, like a legal conflict of interest or awaiting a conflict of interest determination from the state Fair Political Practices Commission.
The Santa Ana abstention policy came back at council members’ most recent meeting on Tuesday, where they unanimously finalized the abstention restrictions.
Mike Moodian, a political science professor at Chapman University, said while it can create some ambiguity, councilmembers are guaranteed the right to abstain and should hang onto that right.
“At the end of the day, that is always their right. It’s up to the public to decide if they support one’s abstention in that type of instance or if they feel it was done for a political purpose, to convey some sort of messaging. ” Moodian said.
In Santa Ana, council members Phil Bacerra and David Penaloza previously raised the idea for consideration in 2020, namely after a former council member, Jose Solorio, abstained in April that year from voting on the deeply controversial 2525 N. Main Street development project.
“I would just ask that we have every member take a vote on the motion,” Bacerra said at that April meeting, questioning whether Solorio had a legitimate legal reason to abstain.
Legitimate conflicts of interest – or even awaiting a determination by the state Fair Political Practices Commission on whether a council member has a conflict of interest – “are concrete reasons” for abstaining, Lopez said on March 1.
But a council member abstaining by claiming they lack enough information on a policy matter “leaves the door open for council members to not take a vote if they don’t want to take a vote, or to run away or hide or walk away, as we’ve seen in the past,” Lopez said.
Lopez’s more recent push for the policy came after three council members, Bacerra, Penaloza and Nelida Mendoza, walked out of the council chambers at an Oct. 5 meeting last year, abstaining from deliberations on a citywide rent control policy they opposed.
At the time, the three council members cited what they believed were violations of state public meeting laws around the council’s deliberation on the policy. The city’s top attorney, Sonia Carvalho, disagreed. Later that month, the issue came back for another vote and the same three council members voted against the policy.
There were a few questions about the abstention policy Lopez pushed on Tuesday night, namely regarding the provision that any abstention by a council member in violation of the policy will be counted as a vote in favor of the given matter.
“The idea that, by virtue of not participating, their vote automatically gets cast into one column – I mean to me that’s just absolutely not democratic,” said Bacerra on March 1. “That would be like saying, ‘If you didn’t show up to vote this year, your name gets assigned to a candidate.’ That just doesn’t seem right.”
Bacerra also questioned whether the FPPC should be the only arbiter on a conflict of interest concern.
Mindy Romero, founder of the Center for Inclusive Democracy at USC, said while an abstention can be a useful tool for politicians who have a conflict of interest or may have missed other meetings and information they needed before taking a vote, there’s still room for abuse.
“In and of themselves (abstentions) are not suspect or problematic, but like anything in our political environment things can be abused,” Romero said in a Monday phone call with Voice of OC. “It doesn’t mean it’s being used for political maneuvering, but can it be sometimes? Yes.”
Romero also said it’s important for the public to understand why the abstention occurred.
“Voters and residents benefit when they know what the position of their elected officials are on a particular issue,” Romero said. “When someone abstains it’s a little less clear as to why that abstention happened. Was it a conflict of interest? A lack of interest? Because someone didn’t want to take a position?”
Moodian said there’s no clean way to address the controversy surrounding abstention votes.
“Policymaking is messy, and oftentimes there’s not a perfect solution. On the flipside though, aside from public pressure to not abstain, I can’t really see a way to be able to address that adequately.”
Beyond Santa Ana, local officials across the county have seemingly used abstentions as a way to avoid taking a vote on controversial issues.
When white supremacist Ku Klux Klan flyers were distributed to homes in Huntington Beach, City Councilmember Erik Peterson abstained from a vote to condemn the messages.
When a majority of Westminster City Council members voted to investigate a suspect park land sale in 2016, Councilmember Charlie Nguyen abstained.
And in 2021 when city council members decided not to fly the LGBTQ+ Pride Flag over city hall, Westminster Councilmember Tai Do abstained, leaving the final vote 3-1 against the flag.
The issue has also surfaced when it comes to appointing new council members to fill a vacancy.
When Anaheim was forced to fill the seat left behind by Jordan Brandman, Councilmembers Jose Moreno and Avelino Valencia both abstained from voting, saying they felt the integrity of the appointment process had been compromised.
A few months later, Moreno abstained again, this time on an issue discussing refinancing the city’s convention center bonds, pointing to overhead for the bonds and asking how they were making money, but was shut down by Mayor Harry Sidhu after he ran over his 10-minute speaking limit.
While the rest of the council voted to refinance the bonds, Moreno voted to abstain.
Last November, county supervisors voted on whether or not to join the newly formed Orange County Power Authority, a controversial clean energy program run by the former chief of staff to two of the sitting supervisors.
While Supervisors Lisa Bartlett and Katrina Foley both voiced their opposition to joining, saying it was too soon for the county to jump in, neither one chose to vote against the plan moving forward.
As a result, the county joined the agency in a 3-0 vote.
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