Before I posted my original story on Latte Republic, I e-mailed an earlier draft of it to the County Executive’s office.
The Executive sent a copy of my e-mail to County legal council for a legal response to the concerns I expressed. The response was drafted by Randall Watts.
I obtained a copy of the letter and the body of the letter follows:
(Remember, the letter is written to Mr. Kremen)
Thank you for sending me the e-mail from [Apexnerd]. I have had an opportunity to read it, and I respectfully disagree with his comments. Mr. Nelson did not receive a privilege by way of his nomination. Nor did the Council hand him a vote. His vote came to him because he is one of the elected representatives for District 1. He is one of two people to represent the district on the council. His vote is to represent the interests of the district not his own. The only time that he would have a direct pecuniary interest in the vote would be on the occasion that he was the subject of that vote. Regarding the other candidates he simply has no pecuniary interests. To require him to abstain from these votes would be to dilute the representation of his district.
By abstaining from voting for himself he did nothing to give himself a privilege. The ethics section simply does not apply when it comes to voting for the other candidates.
A complete discussion would not end unless we look at what it takes to have a majority vote of the Council.
Section 2.22 of the Charter answers this question very clearly. It states:
Council action shall require at least a majority of the entire Council, except where two-thirds vote is required, in which case two-thirds of the entire Council shall be necessary.
That requirement is carried forth in the Code which reads in section 2.02.030 that a vacancy shall be approved by majority vote of the council. And in subsection B it takes care of what happens if the number of vacancies takes the remaining number below what is required for a quorum.
So clearly it is not a situation where it is a majority of those present that allows an action to pass. There must be four votes regardless of the number present to allow an action to succeed. They all fail 3-3. So even if you were to take Ward’s vote out of the equation, no one received a number of votes that would allow them to have claimed the vacancy.
Again, I do not feel the advice given to the Council was toxic or even bad. And Ward surely did not do anything unethical when he represented his constituency in attempting to fill a vacancy on the Council.
It comes as no surprise that the county attorney’s office asserts that the county attorney’s office did not err when it allowed Mr. Nelson to vote for or against himself or any other candidate to fill the council vacancy.
ReplyDeleteUnfortunately, Mr. Watts’ conclusions are entirely illogical.
First, the County code is very clear about filling council vacancies. According to Section 2.02.030, "If at any time the membership of the council is reduced below that required to constitute a quorum by virtue of vacancies on the council, a majority of the remaining members may nevertheless fill the vacancies." In other words, it is so essential for council to fill its own vacancies that, even a quorum cannot be satisfied, a simple majority of the remaining council members should fill the vacancy.
Based on this code section, even if there were only 3 council members available to vote on filling the vacancy, a majority of 2 is sufficient. Theoretically, this section would also allow a single remaining council member to fill all vacancies rather than hand over council’s responsibility.
The logic is clear, and it is also transferable. If the County Code specifically allows 2 out of 3 council members to fill its own vacancy, why wouldn’t it allow 3 out of 5 to do so? Of course it does; but not according to Mr. Watts’ faulty logic. According to Mr. Watts, only if council membership falls below the quorum minimum does the simple majority rule apply. Nonsense! The filling of council vacancies is an essential responsibility of council - so essential that a special code section was created to ensure that this responsibility is not abdicated. Under no reasonable interpretation would the Code require council to relinquish this obligation unless there was a tie vote.
Second, Mr. Watts claims that Mr. Nelson only had a pecuniary interest in the vote would be when he was the subject of that vote. Well, in reality, Mr. Nelson was the subject of EVERY vote. Under normal voting procedures, the 5 council members who were not candidates would have made a single vote for all 25 candidates at the same time; the same as we do when we go to the polls. After the first pass, if no candidate received a 3-vote majority, all candidates who received 0 votes would have been removed from consideration. After several passes, eventually a single candidate would have received a 3-vote majority and filled Mr. Kelly’s vacancy. As we know, several candidates did receive 3 out of five legal votes that evening.
We should really expect more from Mr. Watts. His letter is a true disappointment. I guess that’s why Congress often calls for independent counsel to investigate.
Anonymous 1,
ReplyDeleteThank you for your input on this issue. As usual, you've raised a number of interesting points for readers to consider.
Kremen is gasping, scrambling, wheezing almost as bad as the "fake" ambulance run to get him away from a council replacement candidate who was in his office and closing in on his pefidity.
ReplyDeleteThis Randy opinion can't fool a Superior Court in Snohomish or San Juan County.
Pete has shown his true colors as a phake Dem and now is trying to clutch at his pathetic attempt to cement a R majority with an illegal appointment of a stained council person.
I am sure the Council president has authority and to call a meeting & will soon rectify this situation for Pete. Randy can stand down now.
An AG opinion from 1965 (AG 1965 No 20) cites 42 Am Jur, Public Officers 97 (p955) and this same reference is cited in other AG opinions as well.
ReplyDelete"An officer intrusted with the power of appointment should excercise it with disinterested skill in a manner primary for the benefit of the public, for it is the policy of law to secure the utmost freedom from personal interest is such appointments. So it is contrary to public policy to permit an officer having appointment power to use such power as a means of conferring an office upon himself, or permit an appointing body to appoint one of its own members."