Nerditorial: Did Someone Say Procedural Error?

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

(Original Author Unknown)

Nancy Ging, a Lummi Island resident, has corresponded with Latte Republic on a matter of concern for her regarding the manner in which the recent Lummi Island ferry increase was handled procedurally. And in an apparent lapse of judgment, the Administrator has asked me to sound off on this matter.

Ms Ging writes Latte as follows:

...I'm forwarding a copy of
an email I sent to the Herald yesterday. It summarizes most of the
conversation so far about what I believe is the illegal procedure used
to pass the ferry rate ordinance...

Excerpts from Ms. Ging's attached emails shall set the stage.

I believe the ferry fare ordinance was passed illegally according to both the County Charter and the County Code.

Okay, I've been to this rodeo before. Lets see how the barrels are positioned...

The Council meetings have become increasingly chaotic in terms of

procedure. Council Chair Sam Crawford himself violated one of the

codified rules many times in recent meetings I've watched.

Councilmembers are allowed to speak only once on an issue until all

other Councilmembers have had the same opportunity. Instead, the

discussion recently has proceeded by one Councilmember speaking, and

Sam replying. The next Councilmember speaks, and Sam replies. This

seems to go on endlessly. The result, I believe, is abuse of the chair

position by Mr. Crawford. Instead of discussing with each other in a

way that gives equal weight to all views, the discussion becomes all

of them discussing with Sam's views. It gives him undue influence,

which is at least part of what the rule was designed to prevent.

Okay, so that is a possible violation of decorum. I'll go into the gory details later.

Ms. Ging writes to the County Council:

At the [10/26] Committee of the Whole, you were advised by your
attorney (in response to a direct question by one of you) that if you
made anything other than very minor changes to a proposed fare
ordinance after holding a public hearing on that ordinance, you are
required to hold a new public hearing on the revised ordinance before
you could enact it. I have seen exactly that procedure followed in the
past on ferry fare ordinances as well as other ordinances which
required public hearings.

That procedure was completely disregarded, even though the entire
proposed ordinance was substituted with completely new wording.

That... appears to go beyond a violation of decorum of debate. That's looks like a possible violation of notice requirements and... statutory law.

Which brings us to Ms Gings inevitable reference to statutory law:

From section 2.02.110 of the WHATCOM COUNTY CODE:

"C. At least 13 days shall pass between introduction and final passage
of every ordinance, except emergency ordinances. (Ord. 2008-004 Exh.
A)."

Please stop all implementation of the ferry fare ordinance voted at
your last meeting, and schedule the necessary corrective actions.

I have been concerned for some time about the processes being used in
the Council meetings. There have been several instances of procedures
that have been highly questionable. Council has not been following
your own rules of procedure--as required by ordinance (i.e.,
law)--even on things as simple as routine motions, amendments, etc. in
your meetings. Besides special rules set forth in ordinances, you are
required by law to follow Sturgis Standard Code of Parliamentary
Procedure, latest edition (a copy of which is required to be in the
Council office).This latest action which involved disregarding a
public hearing was finally too serious to ignore.

And we have a rodeo, cowboys and cowgirls.

I'll be your parliamentary rodeo clown.

Time for...

The Gory Details.
The most important thing that gets missed on procedural matters is the nature of a procedural error.

Ms. Ging and many others, including me, make the understandable error of referring to a procedural error as "illegal".

I urge readers to frame their minds to see procedural errors as being potentially legally null instead of being potentially illegal.

And I'm sure that is about as clear as mud, so I'll continue.

A procedural error is also known as a breach of order. Breaches of order fall into two general categories.

1) Breaches of order that don't render an action null and void. Most breaches of order fall under this category.
2) Breaches of order that do render an action null and void. These are known as breaches of order of a continuing nature.

I shall use a metaphor to illustrate the difference.

First, a breach of order that doesn't render an action null and void:

Suppose I were to mail a bill to a creditor and enclose with that bill a check to cover the payment of the bill, but I forgot to write my account number in the memo line, even though it is the policy of the company that the account number appear on the check, and my agreement with the creditor is that I would follow that policy.

I have committed a procedural error... the metaphorical equivalent of a "breach of order".

But is it a breach of a continuing nature?

Nope.

I have not committed a crime. The creditor has no standing to have me arrested and charged with a felony or a misdemeanor.

I have not committed a civil tort, either. The creditor has no standing (based on the facts I have presented here) to file a suit against me in civil court.

But at the same time, the creditor can cash the check. The bill is paid. There is a risk that the check might be delayed in processing because of my error, and I've increased my risk of a late fee by that virtue, but the error is not a breach of a continuing nature. The creditor has no grounds for sending my account to a collection agency or screwing up my credit rating.

Now, a breach of order of a continuing nature...

Suppose I were to mail a bill to a creditor and enclose with that bill a check to cover the payment of the bill, but I forgot to sign the check. (And I don't mean I "forgot" with air-quotes as an idiotic delay tactic. For this example to serve its purpose it must be accepted that I made an honest, but careless, mistake and that I have enough money in my checking account to allow the check to clear.)

I have committed a procedural error... the metaphorical equivalent of a "breach of order".

But is it a breach of a continuing nature?

Hell to the yes.

I still have not committed a crime. The creditor has no standing to have me arrested and charged with a felony or a misdemeanor.

I still have not committed a civil tort, either. The creditor has no standing (based on the facts I have presented here) to file a suit against me in civil court.

But at the same time, the creditor can't cash the check. I haven't paid the bill. It is clear to everyone that I intended to pay the bill. But even if there is clearly enough money in my account for the check to clear, the bank will not cash the check because without my signature on the check it is a document that is... legally... null... and... void.

Legally, there would be no difference between mailing an unsigned check and not mailing in the bill at all.

The creditor can take the same actions as if I had sent nothing. The creditor may impose a late fee, send my account to a collection agency, and screw up my credit rating. I may not have done anything illegal in my hypothetical example, but there are still legal consequences for taking an action that is legally null and void.

So, the important question on the matter of Ms. Ging's concerns about procedural errors she has documented is... are they also breaches of order of a continuing nature? Do those breaches render the actions null and void?

On the matter of the violation of decorum... Sam Crawford's feckless, clumsy, and ham-handed style of running meetings are not breaches of a continuing nature. Being a jerk-ass at a Council meeting, even when you are the presiding officer, is a problem... but it will not render a business transaction null and void. If it did, then the overwhelming majority of action taken by virtually every county and city council in the nation could be nullified.

On the matter of taking action in conflict with statutory law... that's possibly a breach of a continuing nature.

If the County Council took an action that exceeded its statutory authority, then in a strictly parliamentary sense, that action was not in order when it was taken and is legally null and void.

And like a house that was slapped together by a contractor who couldn't be bothered to build it up to code... the ordinance will seem structurally sound when the weather is good. This illusion could be sustained for a long time. But once that ordinance's true structural integrity is put to the test... the structural flaws shall be revealed.

An ordinance that is revealed in a court of law to have been passed in derogation of statutory law is not likely to survive that court challenge. A County Council that habitually passes ordinances in derogation of statutory law is placing that County at considerable and avoidable legal risks.

An important distinction between an illegal act and an act that is legally null and void involves the concept of statute of limitations. With very few exceptions, there is a built in time limit on how long after an illegal act (civil or criminal) occurs that society can impose a penalty on the offender. But an action that is legally null and void... never legally happened in the first place. It doesn't render itself legally valid after a number of years any more than a check will sign itself or a house will bring itself up to code. An event didn't happen today can't be declared to have happened tomorrow, or next year, or... ever.

To tie this into the current dilemma with the Lummi Island Ferry issue, consider the Gooseberry Point lease.

A lot of very passionate words have been exchanged over this lease, including the point that 25 years ago, a lease was signed that was supposed to be a 50 year lease.

Well, that lease lacked a signature. From the Bureau of Indian Affairs.

And now... 25 years later, for want of a single signature, the lease was lost.

County Councils that don't learn from history appear to be doomed to repeat it.

The current state of affairs surrounding the Lummi Island Ferry could have been avoided, if 25 years ago the County had been more vigilant about procedural errors.

This tradition of County Councils weaving these legal Gordian knots and leaving them for future County Councils to struggle to untie has cost this community dearly.

"This is how we have always done it" carries a hollow ring to it for a reason.

Time for a new tradition.

What can be done about this...?

Read my next Nerditorial and find out.

[Disclaimer: ApexNerd has many powers, but a license to practice law does not number among them. Well crafted and brilliantly worded and profoundly entertaining though they clearly are, a reader should not be beguiled into mistaking his rants on parliamentary procedure for proper legal advice. It should be noted that ApexNerd still insists that his so-called Nerdmobile is "cleverly disguised" as a Hyundai Elantra, even though it is painfully obvious that it is a stock Hyundai Elantra and that his so-called "Apex Turbo Mode" is simply a button on his MP3 player and him pretending to be forced back into his seat by imaginary g-forces while making rocket sounds that he alone seems to find convincing. So take his advice in that context.]