A growing number of Whatcom county residents are voicing concerns regarding the validity of Councilor Ward Nelson's appointment to Bob Kelly's vacant seat by County Executive Pete Kremen.
Regretably, I agree that the nomination, Ward's subsequent votes for or against the other 24 candidates for the position, (an ethical impropriety that allowed Ward to prevent other candidates from receiving a majority of votes for the seat); and, Ward's appointment by Pete to fill the vacancy, create an appearance of an ethical and legal impropriety.
Over the last week, Apexnerd has posted articles related to past legal cases that delt with appointments of sitting councilors to a variety of offices. Each of those cases decided that the public official was ineligble for the appointment.
The Washington State Attorney General, as the chief law officer of the state, provides official opinions on questions of law at the request of designated public officials on issues arising in the course of their duties. Issuing Attorney General Opinions is just one of the duties of the Washington Attorney General, as the constitutional legal adviser to state officers. Citizens can search Opinions as far back as 1949 on the AG's website. Click the next link if you would like to review the list of Opinions
It is a well-established common law principle that a public officer may not simultaneously hold two incompatible offices. This principle has been recognized and applied by the Attorney General's Office on innumerable occasions in the past and by the Washington Supreme Court as recently as 1957.
Let's take a look at some of the Attorney General's Opinions (and the supporting cases) regarding the appointment of a county commissioner to a vacancy in a number of different offices.
This morning, a commenter posted the following on Apexnerd's article: So let's start with AG 1965 No. 20.
AG 1965 No 20) cites 42 Am Jur, Public Officers 97 (p.955) and this same reference is cited in other AG opinions as well.
"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."
Cite as: AGO 65-66 No. 20
May 26, 1965
Honorable George A. Kain
Prosecuting Attorney
Spokane County Courthouse
Spokane, WA 99201
Dear Sir:
By letter previously acknowledged you have requested an opinion of this office upon the following questions:
"(1) "May a board of county commissioners appont one of it's members to fill a vacancy existing in the office of County Auditor?"
"(2) "If a board member may be appointed to fill such a vacancy, may he vote for himself if necessary to provide a majority vote for himself to fill the vacancy?"
"(3) "If the answers to (1) and (2) are in the negative, would the situation be changed if a county commissioner resigned as such prior to being appointed as county auditor, where such resignation was made for the sole purpose of accepting an appointment from the board from which he resigned, by prior agreement with the other board members that such would be the result of his resignation?"
We answer your first question in the negative for the reasons set forth in our analysis. Consideration of your second question is thereby rendered unnecessary. We answer your third question in the negative subject to the qualifications set forth in our analysis.
The analysis states, "It has been long and universally recognized that no one should hold incompatible offices. Throop on Public Officers Orig. Op. Page 3 (1892), 37, & 33; People ex rel. Klick v. Wittmer (1914), 50 Mont. 22, 144 Pac.648; State ex rel. Nebraska Republican State Central Committee v. Wait (1912), 92 Neb. 313, 138 N.W. 159; State v. Anderson (1912), 155 Iowa 271, 136 N.W. 128; Mechem on Public Officers (1890), 268, &422. Or, as was said in Barkley v. Stockdell (1933), 252 Ky. 1, 66 S.W. (2d) 43:
"The question (of incompatibility) is...whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest:
The full analysis
Here's a second Opinion for your consideration and review:
Cite as: AGLO 1973 No. 101
October 24, 1973
Honorable Kenneth O. Eikenberry
State Representative, 36th District
Suite 500 Third and Lenora Building
Seattle, WA 98121
Dear Sir:
By recent letter you have asked for our opinion on the following three questions:
"(1) If a vacancy occurs in one position of a house of Representative district which is entirely within a single county, may a board of county commissioners appoint one of its members to fill such a vacancy?
"(2) If a board member may be appointed to fill such a vacancy, may he vote for himself if necessary to proivide a majority vote for himself to fill the vacancy?
"(3) If the answers to (1) and (2) are in the negative, would the situation be changed if a county commissioner resigned as such prior to being appointed as the representative of the district, where such resignation was made for the sole purpose of accepting an appointment from the board from which he resigned, by prior agreement with the other board members that such would be the result of his resignation?
We answer your first question in the negative, thereby rendering consideration of your second question unnecessary; we also answer question (3) in the negative.
Again, the AGO Analysis cites 42 Am.Jur..Public Officers. 97 (pl955) as follows:
"An officer entrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of it's own members."
Mr. Nelson's appointment has created the appearance of a Conflict of Interest (under the Whatcom County Charter). It has also raised the question if the act of casting votes for other nominees is contrary to public policy to permit an officer having appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of it's own members.
I hope an impartial elected official files a request for an Attorney General's Opinion so that the citizens of Whatcom County will know if Ward Nelson's nomination and appointment violates the principles of well-established common law.
Why doesn't someone file an appeal within the time frames allowed? Asking the AG for an opinion could end up missing appeal deadlines. Where is the "appointment" of Mr. Nelson. I have not seen a written appointment letter. Was it done within the time limits of the county code or charter? Appointing effective in January would mean missing the required time that was given the County Executive. Time for someone to file an appeal with Superior Court (better find another county to do it in). A court could issue an injunction from filling the position until the case is reviewed.
ReplyDeleteMore great analysis on Crawford/Nelson/Kremen's scam.
ReplyDeleteI understand that a Recall group is already meeting locally to remove both Nelson and Crawford for this abortion of Democracy.
A Wisconsin organization that specializes in recall is reportedly already assisting in organizing. CRG has a record of something like 15-2 in removing elected State level officials in office. They have it (Recall) down to a science.
That's interesting...
ReplyDeleteWhere can I find more information about the recall group? Do they have a webpage or blog?
There is also an AGO opinion that Pike's former employer should also cough up his computer records, subject of a PDR. SCOG on behalf of Pike refused and basically said : "Sue us."
ReplyDeleteThey have the advantage of your tax dollars to use against the public.
However, the AGO opinion would carry some weight in a Superior Court appeal of this action.
Direct phone / email pressure on Ward to stand down or Kremen to correct this fiasco may work quicker and be less costly.
A cloud now hangs over all actions of this Council until this is resolved.