Could the County Executive Keep the County Council Vacancy Open Until Next November?

If the County Council is filling the vacancy, it is so urgent that the council is not allowed to take more than 30 days filling it.

Unless they don’t fill it in 30 days.

Then on day 31, it stops being urgent and the County Executive shall fill it... you know, whenever.



That appears to be held as a reasonable interpretation of the Whatcom County Code on matters of filling vacant county council seats.

During a dialogue I recently had with Sam Taylor on his blog, we had the following exchange...

(Note: Sam Taylor is not expressing his personal opinion here. When he makes entries on the Poltics blog, he wears the hat of a journalist.)

Sam Taylor Says:

December 21st, 2009 at 10:24 AM

Apex - county attorneys generally interpret the 30-day provision of an appointment as being rather open-ended. It doesn’t technically say that he has to make the appointment within 30 days, just that the County Council, if they can’t come up with a selection in that period, give up that authority to the county executive, who “shall” make an appointment. But it doesn’t give any instructions as to when he “shall.”

Barring any type of legal challenge, Kremen could leave the seat vacant all the way until the day before the next election, if he chose to do so. Very unlikely, of course.

Then I said...

Apexnerd Says:
December 21st, 2009 at 9:31 PM
...
There is something about the notion that the absence of language that places a limit on the Executive’s discretion means that his discretion is not limited that just doesn’t sit right with me.

Take a look at the County Charter, part 1.50…
There shall be separation of powers into two branches of government: executive and legislative. Both branches are to dutifully fulfill their responsibilities and refrain from overextending their authority, as defined in this Charter.

If the Executive has the legal authority to keep the seat vacant until the next election, isn’t that pretty much giving him the authority to weaken the Council? For most of a year?

If the Executive kept the citizens of District 1 under-represented for most of a year, is he overextending his authority?

“rather open-ended” understates it nicely.

I share your confidence that Pete Kremen would not chose to take such an action. But I’m not talking about Pete Kremen, I’m talking about the office of County Executive.

I don’t know who the next five Executives will be, and neither does anyone else. If even one future Executive lacks Pete Kremen’s ability to exercise political restraint, it might be a good idea to set a proper precedent now.
...

Here is another part of the County Charter that strikes me as relevant...

2.10
The legislative power of the County not reserved to the people or to the County Executive shall be vested in a County Council.

The power to fill vacant seats is vested to the County Council in writing, so we are talking about a legislative power here.(WCC 2.02.030 A)

The power to delay filling the vacancy would seem to be an implied legislative power.

Now, in the absence of a trained legal opinion, I take this to mean that for any legislative power to go to the County Executive there has to be some legal mechanism to reserve it to the Executive. I don’t know exactly what form that legal mechanism would take, but I’d be very surprised if “there is no language saying the Executive can’t” even comes close.

The “I call shotgun!” standard might be an appropriate mechanism for reserving the right to fill a vacant front passenger seat in a car, but it may not be an appropriate mechanism for reserving the right to fill a vacant county council seat.

So, even if there were an implied power to delay filling a council vacancy, it seems like that power would be vested in the County Council unless there were some mechanism to reserve that power to the Executive. And the Whatcom County Code explicitly denies that power to the County Council.

So, if the power to exercise discretion in when a council vacancy will be filled is...

1. not vested in the County Council
2. not reserved to the County Executive
3. not reserved to the people...

then does that power exist at all?

I have a hard time believing that the County Executive or any one else can exercise a legislative power that doesn’t exist.

To my untrained legal eye, it seems that if the county council is unable to fill a vacancy and the council gives up its authority to the executive branch, then that authority goes to the Executive “as is”.

But wait, there’s more...

WCC 2.02.030 B makes it possible for the council to fill a vacant seat even if they are unable to achieve a quorum (if this inability is due to vacancies)

WCC 2.02.030 C removes any discretion from the Council to delay the decision.

It is difficult to understate the urgency of this part of WCC. Quorum requirements and the ability to delay decisions are part of the foundation of modern parliamentary procedure. No deliberative body would suspend even one of those safeguards lightly, let alone both of them. The notion that this sense of urgency disappears if the council is unable to make a decision within the alloted time is absurd on its face.

But, hey, I didn't go to law school. Could one of you 21st Century Clarence Darrows set me straight here?