||| FROM JUSTIN PAULSEN |||
One faction of the Charter Review Commission believe a second submission of charter amendments was inconsistent with the direction of the charter. The other believes that their action was consistent and allowable within the charter. Both may, in fact, have a valid case. And therein lies the conundrum.
One intriguing piece of this issue is that the Charter Review Commission is actually attempting to clarify the intent the charter language in one their proposals to the citizens of the county that have now been dismissed by Council.
It is undeniable that the language of the existing Charter is ambiguous. So ambiguous, that within the process of the Charter Review Commissions work they received a finding by the PA’s office that it was entirely “legal” to break the amendment submissions into 2 submittals. Following the forwarding of the first set of recommendations they then received, also from the PA’s office that breaking the submissions into 2 submittals was NOT legal. Based on this conflicting advice, the Charter Review Commission made a partially-split decision to continue to move forward. Their discussions of this are all available for review by the public and viewable online. Their discussion, both affirmative and dissenting, are open, public and were accessible to the residents of San Juan County.
And so, on or about the end of November, the Charter Review Commission submitted 4 additional amendments and several recommendations to the County Council. Those recommendations have been sitting in the hands of the County Council since that time.
That brings us to Tuesday August 2nd 2022. Approximately 8 full months since the Council was handed what was the “final” work product of the CRC. In those 8 months, there has been nothing to indicate that the County Council was not intending to forward the proposals on to the ballot. There has been no public discussion or hearing to discuss the validity of the action by the CRC in continuing their work beyond their initial submittal, which we all had the opportunity to vote on. In fact, the executive session held to discuss the issue was done with no notation of purpose, other than reference to a statutory exception within the applicable RCW. There was no discussion item on an agenda, no public comment, no indication of a decision to be made… just an executive session to discuss litigation or potential litigation.
While I believe that this is clearly a violation of the OPMA, in order to prove that, I would be required to sue San Juan County to prove that point, an endeavor which neither I, nor my bank account have the stomach for. But that is not really the crux of this issue. The crux of this issue is that Council not only had ample time to address and discuss this topic in a way that was far more transparent to the community, and they also had a VERY SIMPLE way to fix ALL of the concerns.
As stated, the disagreement over the legitimacy of the second filing by the Charter Review Commission has merits on both sides of the issue. Council may well be legally correct to NOT forward on the charter amendments FROM the CRC. But, knowing that the CRC acted as they did only due to conflicting advice from their County provided legal counsel, the Council has a duty to recognize and act on what is best for the citizens of our County. As they stated in their hasty, 11th hour motion setting aside the recommendations, the Council specifically identifies that the issue with the CRC proposal is one of “procedure”, not one of “substance,” I emphasize the FROM above, because the simple, elegant and completely legal solution was for the Council to simply draft their own amendments to the Charter and forward them FROM the Council to the ballot. The Charter recognizes this as a completely valid path to Charter amendment. This very simple act would have not only substantially conformed to the desires of the CRC, but would have eliminated a potential legal challenge from those who believed that the CRC amendment procedure was, indeed, improper.
Ultimately, had the County Council employed the processes and procedures that mandate a wide application of open, transparent and participatory government, it is likely that those of us in the community that seek to support and advise the functions of our community would have stepped up to the challenge. We would have encouraged the Council to problem solve and to engage in a process that was more “helpful” than “hurtful.” Instead, what happened was foot dragging, head burying and ultimately questionable, backroom discussion and decision making.
It seems almost certain that the San Juan County Council has now all but invited a long, painfully expensive and completely avoidable legal battle… ironically fulfilling their Executive Session prophecy of “potential litigation.” We can and must do better.
Justin,
With all due respect as I appreciate your willingness to ask, research and provide opinions and often, good ideas, however, I find your article to be either misconstruing know facts, assuming events that may or may not have happened, extrapolating motives and some points patently different from reality.
Firstly, I don’t want to engage in your “legal” analysis as I don’t know all the facts of the August 2nd, 2022 SJCC meeting. And, I am not a lawyer but this I know from my many years of experience as an elected public servant, is that, There is legal advice that is allowed in Executive Session, for example: legal advice while considering real property purchase, evaluating an employee or, advice on collective bargaining agreements. That is what the SJC Council did that day. There is no obligation to review or debate the Executive Session items. The governing body’s chair only needs to say that they are adjourning into executive session per the RCW regarding employee evaluation, for example, and when they are done and reconvening the public meeting all that the chair has to say is they are done with the Executive Session as per the RCW and “there was no action taken” or something like that. The insistence that they need to do more is in my opinion, extraordinary. Further, We don’t know what was discussed in Executive Session.
Secondly, you mention the PA “….they received a finding by the PA’s office that it was entirely “legal” to break the amendment submissions into 2 submittals..” ,
this was NOT a finding, it was part of a FIRST meeting of the CRC titled (Review of OPMA) on January 21, 2021. It is a power point presentation by the PA introducing the CRC members to being an elected official and the do’s and don’ts such as don’t meet as a group of 10 or more and discuss business in private, create rules of operation, use county email for record retention etc. In the part you reference, the PA relayed what Pierce or King County did and that they had two submissions. Their charter is different in this matter; Pierce uses a term of office of six months while a county such as Snohomish uses a term of one year and no other restrictions – so yes they can submit more than one submittal. The PA rescinded that statement and told us why in May or June; there was no “conflicting advice”. If you want to check the minutes of June 9th:
https://www.sanjuanco.com/AgendaCenter/ViewFile/Minutes/_06092021-2466
Thirdly, your note suggests that the CRC had no clue that these amendments proposals after the fact may be in jeopardy of being forwarded yet the record shows otherwise. The question here is why didn’t the CRC follow up. It is not the responsibility of the SJC Council to school or educate other elected officials on how to do their work. The PA told the CRC back in May or June that submitting proposals after the July date is risky, potentially a source of litigation. It could be said and I am not saying that, that the CRC put the SJCC in an awkward position to navigate.
There are more references in the CRC Meeting Minutes May 27th TO July 12th . A friend summarized the exchanges regarding one or two submissions in these CRC meetings. The document is found here:
https://orcasboard.org/wp-content/uploads/2022/08/Summary-of-CRC-deliberation.pdf
Lastly, you say “ ….because the simple, elegant and completely legal solution was for the Council to simply draft their own amendments to the Charter and forward them FROM the Council to the ballot…”. This is exactly what a few of us suggested the CRC do which was to send ALL proposals, some in final form and some “not ready for prime time” to the SJCC at the July 13th meeting. The finished ones would be forwarded as per the charter and appear on the ballot “Next November” and the rest could have volunteers from the former 2021 CRC commissioners work with the council to have these put on the November 2021 or 2022 ballot as per the charter. Why didn’t the CRC do that?
Justin, I acknowledge that there is sometimes a better way to handle anything government does but we have elected officials and they have a large job. We might not agree but they are the elected and we are not, they have all the facts to work with and we don’t. We did recommend a few amendments to sections of the charter pertaining to term of office, amendment submission etc. which can be found in the CRC Meeting Minutes and videos or on https://orcasboard.org
Justin, Tony, you both lost me.
This is quickly sinking into a quagmire of deep weeds pertaining to a matter that someone needs to boil down to a few one-syllable works I can write on the back of my hand. Whover can do that will get my vote.
Tony, Justin.. my comment is simple.. TRUST. I am not alone in the lack of our Current Councils Trust.
Jamie, is on his way out. Our Orcas Rep has seemed to come under Serious Question of (Personal Motive) which I’m hoping some day comes to light of her understanding.. but there’s no question Two new seats are available next election, so gentlemen… get your dancing shoes on.. we need some serious balanced Governance!! Please others interested, join in!!
Toby,
Not sure if this is few enough syllables, but here goes:
There’s a difference of opinion on who was right. Council had an easy way to solve it. They didn’t. We will pay.
Does that fit on your hand?
What troubles me the most is that this very important matter was left to the very last minute and decided in executive session with very little input, if any, from the general public that the County Council is supposed to serve.
As a writer, I try to avoid use of the adverb “very” but here it is needed.
We all know there is a difference of opinion.
We are in an elevator. You have 10 seconds to make your case on the merits before it stops and I get off.
Go.
I was on the last CRC, and like Tony, observed first hand what transpired.
The first four months were spent blue skying propositions that involved the CRC going rogue with self-imagined authority. Not liking legal advice received from the Prosecutor’s Office, or from certain CRC members whose feet did not leave the ground, the CRC “Executive Committee” attempted (illegally) to hire its own counsel. This was corrected by the Prosecutor’s Office and by June, the CRC was operating more or less in the real world.
Had the CRC not wasted four months in the manner it did, all propositions could have been in final form by the July 2021 deadline. They weren’t, so a rationale had to be found to compensate for the lost time. That rationale was recognized as an invitation to litigation (this is San Juan County, remember), but given the circumstances the CRC had to choose: either go for a two year program, or throw the unfinished homework to the Council and hope. The majority of the CRC opted for the two year program fully knowing that litigation could ensue.
The CRC’s belated performance of its duties faced the Council with three choices: (1) Go along with the legally uncertain two year program and get sued by an opponent of that theory; (2) Clean up and support the last four propositions as its own (substituting the Council as legal sponsor) with the possibility of being sued because the propositions had become the Council’s and not the CRC’s, possibly requiring two sets of four propositions; or (3) Decline to submit the second tranche of propositions to the Auditor and get sued.
It would appear that having chosen the third option, the Council was advised by counsel that the third option presented the highest odds of success in litigation outcome.
Bill Appel you are almost always right on everything and I always read your opinions and comments. I still find Michael Riordan’s simple request for transparency and public disclosure compelling and don’t understand why you seem to back away from that being a Council responsibility…at least you don’t mention it.
Amanda, any meeting held in contemplation of litigation is deliberately not transparent and categorically exempt from disclosure. It would include advice by the Prosecuting Attorney which by its nature is privileged from disclosure. To require transparency in a litigation situation created by the CRC would be unfair to and potentially expensive to the Council and its taxpayers. I have no doubt this issue has been considered over a long period, ending in a tough legal call.
This is not the kind of issue that a large number of people, or “the people” can decide without serious negative consequences.
Amanda, I’ve re-though my earlier answer and would put it this way: the CRC presented the County Council with three alternatives all of which were likely to result in litigation. At that point the issue ceased to be a political issue and became a legal one, no matter how frustrated the electorate feels. I’m not one to say the County Council’s process was perfect (they could have announced their intention earlier), but no matter how you slice it, litigation was virtually inevitable. Technically, had the council announced its intention not to put the four propositions to the voters, a lawsuit would have been premature because (the judge would likely say) the Council could still change its mind right up to the deadline. The Council’s timing and inaction, therefore, while unpopular, can be defended as perfectly rational.
Excuse me for asking what may seem to be a dumb question, but:
Isn’t litigation always inevitable? Isn’t that why environmental concerns continually get trounced by lawsuits from rich and powerful elitists who think unlimited economic growth is the answer, and have the money to back their lawsuits and insure that they get their way? That’s what I’ve seen in my long years here; it might be more ‘civilized’ than in the 1800s when you could just shoot it out, but it’s cowboy country/manifest destiny all the same.
As for “the CRC going rogue”, I was not there, but that seems pretty harsh and judgmental to say about people who dedicated hundreds and hundreds of hours besides the few who spoke up here. isn’t the Charter supposed to be the Vision; what Bill Appell calls “blue skying?” Isn’t that what Vision is supposed to do – aim high? Should a vision’s feet leave the ground sometimes, or keep its stodgy feet plodding, never skipping, because that’s the way it is always done ‘in reality.’ Whose reality? Furthermore, is that reality representative of the under-represented people who would like to see more Critical Areas treated with respect and more quality of life for all of our citizens? The people who would like to not have to have three or four jobs to pay for sub standard housing, for instance, because ‘that’s what the market will bear? ‘ Where is the heart in a vision that doesn’t at least try to address these things? Or is ‘heart’ too fuzzy of a word for rationalists?
Reality can grow more expansive with a more expansive vision. I find it interesting – even fascinating in a sort of horrified way, that two of the amendments would give citizens more voice, one seeks to clarify ambiguous language of the Charter. Yet there is blame here. I would like to hear from more of the CRC, in a discussion that doesn’t seek to make them wrong for wanting better for future generations – the whole purpose of Vision. From Vision, we’re supposed to make regulations that support that vision – but the same old elements get all the attention while others are never visited. Same ol’ same ol’. Maybe what’s broken here is the system itself.
I thought Justin penned this well, and I agree with the concerns he brought to light. What I cannot, will never, understand, is Council’s sitting on this until the 11th hour of the very last day – and then saying no. No amount of explaining, pontificating, shaming, or justification I’ve read so far satisfies my curiosity and frustration over that move by Council – or the justification by those who think that is OK.
Government is a series of decisions which is generally subject to litigation at any, and perhaps every point. Bill, Tony and I clearly differ on what is exempt from discussion in the light of the public – and that is fine. I believe the court said it best:
““This provision is, in practice, often used as a justification for executive sessions, particularly because “potential litigation” is susceptible to a broad reading. Indeed, many things a public agency does will subject it to the possibility of a lawsuit. However, a court will construe “potential litigation” or any other grounds for an executive session narrowly and in favor of requiring open meetings.”
(Miller v City of Tacoma)
I am reminded of the following bits of wisdom:
“More than any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other, to total extinction. Let us pray we have the wisdom to choose correctly.
– Woody Allen
“Politics is the process by which elected officials must choose between the
unacceptable and the unsuitable”
-Unknown
Bill, you and I go back a ways and I most often respect your opinion. But in this case, I completely disagree with you. The public had a right to know what the County Council was planning to do. Their actions were sneaky and irresponsible, and illegal.