Guest Opinion | Charter Amendments should be put back on the SJC ballot

||| FROM SHARON ABREU & MAUREEN SEE |||

This week, two San Juan County citizens filed in court to defend our democratic rights against the actions of the San Juan County government. They did not make this decision lightly and are gravely disappointed that they were forced to do so because of the secretive and irresponsible behavior of the San Juan County Council, County Manager, and the Prosecuting Attorney.

While County Council members have argued that some procedural issue caused them to deny all San Juan County citizens their right to vote, what is very clear when you look at the case and the law, is that the County Council, County Manager and Prosecuting Attorney, by not following appropriate protocols, may actually have acted unlawfully. As many are aware, the San Juan County Charter can be thought of as our “local constitution.” Every decade a group of citizens called the Charter Review Commission (CRC) are elected to review the Charter and recommend any changes which are to be placed before the voters for approval or rejection.

In 2020, eighteen citizens were elected to the CRC and began their public work in January 2021. In 2021, the CRC put forth two sets of proposed amendments, one in July 2021 for the November 2021 ballot and a second in December 2021 for the November 2022 ballot, in accordance with procedures set forth by the Prosecuting Attorney. Under the Charter, the CRC submitted these proposals to the County Council, which “shall” put them on the next general election ballot. While the Council properly advanced the first batch of Amendments for the November 2021 ballot, the County Council, with no public discussion whatsoever, failed to advance the final four Amendments to the voters for the November 2022 ballot. Instead, the County Council, the County Manager, and the Prosecuting Attorney apparently held several secret
meetings after which the County Council voted against fulfilling its ministerial duty, depriving all San Juan County voters their democratic right to vote on the Amendments.

During its August 2, 2022 meeting, after several hours of closed-door secret meetings, the Council came out of Executive Session and County Council Member Jamie Stephens made a motion stating that the final batch of proposed Charter Amendments “does not conform with the procedural requirements of the San Juan County Charter and we will not be taking action to send these proposals to the Auditor for placement on the November ballot.” Councilmember Cindy Wolf seconded the motion, stating “I do agree with counsel’s conclusion regarding procedure.” The vote passed 3-0.

What the County Council seems to either not understand or chose to ignore is that the law is well established that when, as in this instance, the Charter clearly states that the Council “shall” place a measure on the ballot, it has no discretion to do otherwise. If a government believes that the measure is improper, it is required to first fulfill its ministerial duty and then file a lawsuit to seek an injunction. It cannot put itself into the judge’s role and independently obstruct a measure’s path to the ballot.

Moreover, the CRC can submit its recommendations in two installments. The County Prosecutor explicitly advised the CRC that it could submit measures to the voters for 2021 and 2022 – to avoid overwhelming voters. The CRC took that advice and spent the remainder of their terms working on that counsel.

Furthermore, while the County Council has provided no explanation for its actions, it will presumably argue, like Councilmember Wolf, that the CRC was not allowed to submit its recommendations in two batches. However, nothing in the language of the County Charter prevents the CRC from submitting its recommended amendments in two installments. “Final recommendations” in this context can only logically mean the last batch of recommendations. There is precedent for submitting Charter amendments in two installments in both Clark and King counties.

The CRC made absolutely clear that its July 2021 submittal was not its “final recommendations.” The County Council, the County Manager and the Prosecuting Attorney have no authority to decide or presume when the CRC work product is complete or when the commission is disbanded.

Finally, and most disturbing, the County Council’s decision not to put forth the final installment of CRC recommendations was illegal and invalid under the Open Public Meetings Act (“OPMA”) since the County Council, County Manager, and the Prosecuting Attorney held all of the key discussions in secret. While the County Council received these Amendments from the CRC in December of 2021, nine months ago, neither the Council nor the County Prosecutor or County Manager held any public discussions regarding their intentions to subvert our citizens’ right to vote. If they had appropriately raised any questions they had in a public setting, there could have been a thoughtful and transparent public discussion. Instead, they held months of secret meetings and did not announce their intentions until
45 minutes after the deadline for submission of the Amendments to the Auditor– ensuring that the only recourse was a lawsuit. No notice was provided to the public of any activity on these Amendments by the County Council at its August 2, 2022 meeting. Such actions are required to be noticed on Agendas. The public should have had the opportunity to
comment on these actions. Now, due to a total lack of transparency and what is likely unlawful behavior, a judge will decide.

In the end, whether one is supportive of the proposed CRC Amendments or not, having the ability to vote on them is a fundamental democratic right that must be protected. The San Juan County government must act in a more transparent and public manner, allowing its own constituents the ability to participate in and engage with our government. That is what the Home Rule Charter is about.

NOTE: There will be a hearing this Monday, Aug. 15 at 3 p.m., which people can tune into online (audio only) by clicking HERE.