Guest Column: Rigorous Analysis and Common Sense Missing in Charter Review

By James Wolf

Despite meeting weekly for 6-7 hours over four and a half months, the 21 members of the Charter Review Commission, elected by the citizens of San Juan County last November, failed to include rigorous fact-based analysis and common-sense questioning in their review of the County Charter. My conclusion is based on the published documents generated and posted online by the Charter Review Commission.

“What problem is the CRC trying to solve?” Within their Charter Review Commission’s minutes this question was asked repeatedly. They did not answer the question. So we citizens of the county are left to assume that since the Charter Review Commission is offering three changes, then problems must exist that these changes will correct.

But is that true? Are they real problems? If so, will the recommended changes fix them?

Let’s look at the first change: reduce the County Council from six part-time members nominated and elected by district, to three full-time members, each residing in a separate district but nominated and elected countywide. We are to assume that for some reason six part-time members nominated and elected by district has created some type of hardship for the county.

In their “Findings”, the Commission states that having six council members resulted in greater expense than originally anticipated, then they cite an article in the Island Guardian from November 2006 and an auditor report comparing fiscal year 2006 to 2011. The article cited is about a budget (what I think I’ll spend) not actual expenses (what I spent). In addition, the thrust of the article is not about on-going post-transition costs, but rather the cost of the transition itself. So rather than analyzing the actual costs of three versus six, the Charter Review Commission presents a newspaper article about proposed expenditures. Seriously.

In addition, the Charter Review Commission references the auditor’s report. There are a number of problems here. First, the report compares only two specific years, 2006 and 2011. Any single year may have unusual or one time expenditures or savings. A snapshot look will not show trends, will not smooth out fluctuation and will not give a distortion-free view of reality. A better analysis would have been to compare five years under the prior three-member system to five years under the current system.

Which brings me to the second problem: the auditors report is in actual dollars without adjusting for inflation. (Beware, numbers coming up). In unadjusted dollars, the report shows the total increase of county council costs were up by 15.18 percent. Looks bad until you realize that the 15 percent equates to a year-over-year increase of 2.86 percent, which barely outpaces inflation for that period (2.32 percent) and doesn’t reflect any increase in county population (up 12 percent from 2001 to 2010 annualized to 1.27 percent per year). Had the county council costs simply mirrored the rate of inflation plus the rate of population growth the costs should have been greater by 19.29 percent not the 15.18 percent actually incurred.

The final problem is that the report goes on to show county administration costs for the two years, but it does not break out costs directly attributed to the county council (referencing a couple of line items: how is an 173.63 percent increase in transfers to the Insurance Reserve Fund attributed to the council; exactly which portion of the county’s personnel analyst’s salary is attributable to the county council; and how are these line items greater for six council members versus three). Without breaking out the costs directly related to the council this portion of the report is meaningless. So, according to the facts the Charter Review Commission presented plus a modicum of analysis, the cost of six versus three is not a real problem.

Another inference the Charter Review Commission forces us to make is that decisions in a group of three is more efficient than with six members and the potential of deadlocked votes and extra time needed for decisions has been frustrating. So what the commission is claiming here is that it took less time under the old three-member system to make decisions and that deadlocked votes are a problem.

But is it true? Since these items are measurable, where is the data to support this claim? The council operates under the Public Records Act. This would show how long any decision took. In other words, the data are available; you can measure the elapsed time from when an item was first placed on the agenda and when the final vote was taken. This could be done for both the prior system and the current one. Did the commission do this during the several months they were active? Not according to the published documents. They didn’t even bother to just count the number of deadlocked votes.

So according to the facts, the commission presented, they don’t really know how long decisions take or how many deadlocked votes have occurred. If they don’t know, how can they say it’s a problem?

Also within the charter review commission’s documents is the claim that a majority of counties in the United States have three elected legislators. This is saying six council members is a problem because it’s critical that San Juan County be like everyone else, and they a link to a report allegedly supporting this claim.

However, did anyone on the commission actually look at the report? Because their report shows that the majority of counties in the United States have five elected legislators. In addition, over 75 percent of all counties in the United States have more than three legislators. So, if what other counties do is vitally important why not recommend five? And if it’s not vitally important then why note the report in the first place? The commission minutes show that discussions regarding five legislators were initially limited then subsequently disallowed.

What about the proposal of six members elected by district versus three members, each residing in a separate district but nominated and elected countywide? What is the problem that this is supposed to solve? The Findings seem to indicate that the six-member council is not responsive or accountable to people outside the council member’s district. Is it true? If it is true, how often does this occur? And if it is true, is it a real problem? (e.g. we elect members to the U.S. Congress by congressional district who have a dual responsibility to both their district and the country as a whole; do we actually expect some congressman from Kentucky to be responsive and accountable to us?)

The charter review commission only cites one instance of unresponsiveness and unaccountability occurring, but did they actually read their own minutes? The citation is for a citizen who isn’t claiming that any council member was unresponsive, the citizen claimed the council “can’t do anything because they are not in charge.” The commission had several months to request, collect and evaluate contemporaneous documentation from citizens to council members to determine the level of responsiveness. Instead the commission was willing to rely on opinion and anecdotes.

What about each residing in a separate district but nominated and elected countywide? The charter review commission received a document containing two opinions from Prosecuting Attorney Randy Gaylord on the constitutionality of this change, but based on the commission’s own minutes, they only focused on one of the opinions. The one they considered was an analysis of lawsuits throughout the U.S. on the constitutionality of under-representation inherent with disproportionate districts (as the commission proposes). This analysis shows that disproportionate districts are routinely subject to lawsuits, but several have prevailed by defaulting to a countywide election process. During an Internet search I couldn’t find a single lawsuit because election districts were proportionate or equal.

What the charter review commission appears to have ignored is that their proposal under the state constitution is only temporary. In the early 1970s, the state wrote a special carve-out in the constitution regarding proportionate election districts to allow counties comprised solely of islands and with populations less than 35,000 people to have disproportionate districts. At that time it applied only to Island and San Juan Counties. As of today it applies to zero counties because Island County has exceeded the 35,000 threshold, and San Juan County currently has proportionate election districts. It would apply if the charter review commission’s proposal passes, but only for a limited period of time. Note that the population of San Juan County has doubled twice since this carve-out was enacted. There are no compelling arguments – actually no arguments at all except that’s the way we used to have it – within the charter review commission’s documents for disproportionate districts, whether three, six or any other number, or why it makes sense to do this now when we’ll have to change again in the future.

Manager versus administrator?

Turning to the second proposition. This one proposes eliminating the separation between executive (legislative) and administrative branches, placing all administrative authority in the executive branch and replacing the county administrator with a county manager. The rationale cited in the charter review commission’s findings is that the division between legislative and administrative functions was not working, as legislators so often ignored it. They go on to say that the separate administration, partitioned by a separation of powers, was intended to resolve some problems that existed in the past.

This is saying that there was a problem with interference in the past, the charter implemented a system to correct it, the council continued with the interference so let’s say it’s okay to interfere. What evidence other than opinion is offered within the charter review commission’s documents? Well, none in the findings, but there is a citation of a citizen comment, and that citizen references a case study for Watmough Head Project, in the commission’s published documents.

A summary of the case study is: the County Council approved the county’s road plan. The plan called for unspecified road chip-sealing projects. The Public Works plan included chip-sealing Watmough Head Road. When the project came to the attention of some of the residents of that road those residents took action. They wanted “a delay of work until the council could conduct a hearing on the issue.”

First, the group approached Public Works for answers; Public Works sent them to the administrator. Then the administrator “passed the decision to the Council.” Finally the council conducted a public hearing and after a motion and discussion to delay the project, they voted three to three and as a result the project would proceed.

Nowhere in the case study is there an example of interference by the county council. There is a “Conclusion” in the case study that states the “The public hearing carried out by the Council undermined the Administrator’s authority and interfered with the Administrator’s Executive role”; however, the conclusion makes no sense because it is clear in the case study that the administrator passed the decision to the council.

Even without any evidence other than opinion calling for this change, what’s the outcome of the change? What is really changing? Let’s compare the current and proposed structures.

Current: The council engages an administrator. The council delegates the responsibility and authority over all administrative functions to the administrator, while the ultimate accountability to the voters remains with the council granted within its power to hire, fire and evaluate the performance of the administrator. The administrator oversees the department heads and any requested action from the council to the department heads is directed through the administrator.

Proposed: The council engages a manager. The council delegates the responsibility over all administrative functions to the manager, while retaining both accountability and authority. The manager oversees the department heads and any requested action from the council to the department heads is directed through the manager. You can essentially just replace the word “administrator” with “manager.” There is only one difference.

In both structures, the county council is ultimately accountable to the voters for the administrative actions of the county. The only difference is one of authority. Any student of organizational management knows that for any effective delegation to occur it must include both responsibility and authority to accomplish results. The Charter Review Commission proposes to move from the stronger structure to a weaker one. If there is indeed a problem with interference, it’s not a structural one it’s an individual one.

If it ain’t broke?

What about the third proposal? This one is about transparency in government. It adds a section to the charter that says all meetings and committee meetings must be open to the public with few exceptions. The real question is why this is on the ballot?

Going back to the question repeatedly posed to the Charter Review Commission, “What problem is the CRC trying to solve?” The commission didn’t identify a specific problem or any alleged violations of the Open Meetings Act and the prosecuting attorney has never brought charges against the county council for any violations of the Open Meetings Act. However, the commission did identify a potential problem; that a closed meeting of three council members could conspire to block actions (they can’t take action, but they could block it). The commission cites no evidence of this occurring, merely that it could occur.

But then, in April 2012, four months into the Charter Review Commission’s activity, the prosecuting attorney issued an opinion on the Open Meetings Act as it relates to committees and subcommittees. It said that these committees must also comply with the Open Meetings Act.

Did the county council dissent? Did they seek an outside opinion? Did they choose to ignore the prosecuting attorney? No. They immediately complied. They followed the law, just like they’d always done. However, did the Charter Review Commission comply with the prosecuting attorney’s opinion on open meetings? According to their minutes they did not. They continued holding closed subcommittee meetings through May.

Again, the question is why is this on the ballot? Is it to affirm that the council must comply with the law? If that’s the case, then why not include language in the charter that says all council members must obey all posted speed limits within the county? It serves the same purpose. Maybe it’s because the commission believes that the prosecuting attorney’s opinion is on such shaky legal ground that as soon the current prosecuting attorney moves on the next one will overturn the decision. Seems unlikely given the well-reasoned opinion and the precedent established by the council’s compliance.

Unlike the first two propositions, in this case the Charter Review Commission, rather than seeking out facts, had them dropped in their lap, then chose to ignore them.

This article, has shown that the Charter Review Commission has failed to establish a problem with the current; that their findings have no evidence to support conclusions drawn; that they have presented information as if it provided proof when, in fact, it did not; and have given the voters no reason to believe that the three propositions will result in better government for San Juan County.

Instead of determining the facts, the Charter Review Commission chose to rely on personal opinion. Opinions are fine, I’ve had some myself, but when we elect an august body and charge them to review our charter, and we give them financial resources to do their work, we deserve recommendations based on facts, especially when facts are available.

James Wolf is founder and principal of Orcas Island-based Clarity Connection, a management/human resources consulting firm, a member of the San Juan County Citizens Salary Commission, and a screenwriter, whose film, “Good Day for It”, was released late last year.