Recently, I posted letter of protest that I sent to the Whatcom County Council in May about the pending UGA settlement, and it inspired this anonymous comment:
Whatcom County ALWAYS breaks the law whenever it does UGA actions as far as I can tell.
In the Sudden Valley UGA effort, they deliberately cut off public comment to preclude any chance of appeal. That case was appealed up to the Supreme Court right up until the UGA was shot down as it ran out of time and the Boundary Review Board choked on the illegality of it all.
"Executive" Pete Kremen allows this to happen. The only reason I can see is because he and his staff are likely accepting juicy bribes to break the law. Bribe bribe bribe. Its the Whatcom County way.
Don't apply logic or law, only corruption explains these people.
I can appreciate the comment. However, there is something worth mentioning here.
The assertion that the County routinely breaks the law presupposes that they are acting with malice aforethought or willful intent.
It also presumes that someone has been given a fair trial, which they haven't.
While there certainly are occasions when officials may exceed the proper limits of the law in any municipality, the most likely circumstance is when a municipality comes in violation of federal, state or local laws unintentionally and with an absence of malice.
In the case of the UGA settlement that is pending before the County Council, it is most likely that the Council is getting bad information and advice from the key appellants who are only interested in giving the Council the information that favors their own enlightened interests. Those appellant's clearly have no interest in what trouble this appeal will cause for the County, the Members of Council, or the local taxpayers in general. They are working the refs, in my opinion. And the refs seem to be falling for it. That's a shame, but it isn't a crime. Nor should it be.
It is of very little value to allow the County Council to make a decision and then point out after the fact that the decision was in violation of one of the many layers of the law.
If the County Council makes a decision that is in conflict with one of the very many laws to which they are subject, they will not be assumed to have acted with malice aforethought if no one bothered to bring the mistake to their attention before they made the decision.
This is particularly relevant in the case of this UGA settlement.
If the Council could argue that they weren't aware that they are required to have the Planning Commission hold a hearing on all Comp Plan amendments, because they were led to believe that they didn't have to do so in the case of settling this matter out of court, then they could argue that their failure to adhere to the Whatcom County Code and the County Charter is an example of what attorneys refer to as "harmless error". An honest mistake. Not desirable, but not a crime, either.
But if they know that they are supposed to send all Comp Plan Amendments to the Planning Commission for a public hearing, and then they chose not to do so... then they are willfully neglecting to adhere to the local municipal law that they each took an oath to uphold.
Those County Councilors who knowingly chose not to send this Comp Plan before the Planning Commission for a public hearing are placing themselves at risk of being charged with violating RCW 42.20.100.
RCW 42.20.100Failure of duty by public officer a misdemeanor.
Whenever any duty is enjoined by law upon any public officer or other person holding any public trust or employment, their wilful neglect to perform such duty, except where otherwise specially provided for, shall be a misdemeanor.
The penalty for a misdemeanor could mean up to 90 days in County Jail, a fine of up to $1,000, or both
It is possible, however unlikely, that the members of County Council could argue that they didn't know that they had a statutory obligation to have the Planning Commission hold a public hearing on this UGA agreement (because it is also a Comp Plan Amendment).
It would be more difficult if a concerned citizen (like me) draws public attention to this fact.
In a timely manner, even. (I sent the Council a copy of my now open letter about two months ago, and I CC'd their legal counsel on the matter, so I believe that there has been a reasonable heads up on the matter.)
Such a willfully intentional failure of duty is just a misdemeanor, but a misdemeanor is still a criminal act, if proved in a court of law.
If it could be proved in a court of law that there was intent to obtain a benefit or deprive another person of a lawful right or privilege (such as a Whatcom citizen's lawful right to appear and participate at a Planning Commission hearing on the matter of a Comp Plan Amendment), then there would be a risk of being charged with official misconduct.
RCW 9A.80.010
Official misconduct.
(1) A public servant is guilty of official misconduct if, with intent to obtain a benefit or to deprive another person of a lawful right or privilege:
(a) He intentionally commits an unauthorized act under color of law; or
(b) He intentionally refrains from performing a duty imposed upon him by law.
(2) Official misconduct is a gross misdemeanor.
The penalty for a gross misdemeanor could mean up to a year in County, a fine of up to $5,000, or both
The bottom line here is that when an elected official choses to ignore an oath of office it's not just a shame.
It's a crime.
Literally.
Furthermore, a public official who commits an unlawful act while in office is considered to have committed "malfeasance". And that can be punished by forfeiture of office.
Of course, there would have to be due process first. (a charge filed, a court appearance, and either a verdict or a plea... that sort of thing).
Bear in mind that no one is guilty of anything until they have had their day in court.
Remember that, citizens.
Having said that, anyone who knowingly exceeds their legal limits is accepting the risk of being found guilty.
Remember that, Council Members.
Good post!
ReplyDelete:)
Great post and very fair.
ReplyDeleteI must point out that the ordinance in question was signed off by an attorney from the prosecutors office. Attorney's do get things wrong sometimes. That is why we have judges. Sometimes judges get things wrong. That is why we have appeals courts.
All that said, I think public process and the careful review of facts regarding growth planning leads to better growth plans. It avoids urbanizing flood areas, it allows for thoughtful traffic and infrastructure planning etc. etc.