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HomeMy WebLinkAboutGerald SteelGERALD STEEL, PE ATTORNEY-AT-LAW 7303 YOUNG ROAD NW OLYMPIA, WA 98502 Tel/fax (360) 867-1166 May 18, 2016 Dan McKeen, City Manager PO Box 1150 Port Angeles WA 98362 MAY 2.0 2016 CITY 0 PC; F AC1GELES C iT1'Y GI._=RK Re: Proposed 6-7-2016 Council Agenda Item for Council to set Election Date for OWOC Petition for Election to Reorganize the City of Port Angeles Dear Mr. McKeen, I write this letter on behalf of Our Water - Our Choice! (OWOC). On May 4, 2016, OWOC filed its Petition for Election (Petition) with City Clerk Jennifer Veneklasen. On May 9, 2016 City Attorney William Bloor filed the original Petition with the Clallam County Auditor Shoona Riggs. With the Petition, Mr. Bloor filed a letter that states, "according to RCW 35A.06.040, an election of this type of petition shall be held at the next general municipal election." Actually, the Election Date is not governed by RCW 35A.06.040 but rather by RCW 35A.06.050 which states: The proposal for abandonment of a plan of government as authorized in RCW 35A.06.030 and for adoption of the plan named in the resolution or petition shall be voted upon at the next general election in accordance with RCW 29A.04.330, or at a special election held prior to the next general election in accordance with the resolution of the legislative body. OWOC requests that the City Council consider and adopt a Resolution to hold the election on the Petition as a part of the November, 2016, General Election. Shoona Riggs copied you on her May 13, 2016 letter to Jennifer Veneklasen where she states that the last date to submit materials to be included on the ballot for the November 2016 election is September 12, 2016 and she states: given the limited amount of time remaining before logistical cut-offs, the complexity of the legal issues that may need to be reviewed, and the great importance of the question that may be submitted to the voters, it may be advisable to put the question (if any) to the voters as part of a November [2016] General Election. This would allow additional time to carefully study/resolve any outstanding issues, ensure a larger turnout to consider the question, and help protect any result ultimately supported by a majority of the voters. Dan McKeen May 18, 2016 Page 2 Besides the reasons given by the County Auditor, there is another very strong reason for holding the Petition Election in November, 2016. If the Petition vote is delayed until November, 2017, the Petition will be voted on at the same time that elections will be held for four council positions for the code city. If the Petition wins, there will need to be a new election for all seven council positions. (See attached March 4, 2016 Letter from OWOC to William Bloor) This means that for four council positions the first election will not secure them a full term, but to keep their office they will immediately have to run for election again. This is not fair to the people who run for these four council positions and is not fair to the voters having to put up with two elections in less than one year for four council positions. So, OWOC requests that you add an agenda item for the June 7, 2016 Council Meeting for the Council to consider adopting a Resolution pursuant to RCW 35A.06.050 and RCW 29A.04.330 to hold a special election on the Petition at the same time as the 2016 November General Election. Thank you for consideration of this issue. Respectfully Submitted '0 Gerald Steel WSBA # 31 84 Attachments: OWOC 3-4-16 Letter to Counsel FINAL - Letter re Citizen Petition 5-13-2016 Receipt for Petition Letter from the City of Port Angeles 5-09-2016 Letter from OWOC 5-04-2016 CC: Ms. Jennifer Veneklasen, City Clerk (for distribution to City Council) GERALD STEEL, PE ATTORNEY-AT-LAW 7303 YOUNG ROAD NW OLYMPIA, WA 98502 Tel/fax (360) 867-1166 March 4, 2016 Mark Nichols, Prosecuting Attorney Brian Wendt, Deputy Prosecuting Attorney 223 E. 4"' St. Ste. # 1 I Port Angeles WA 98362 William Bloor, City Attorney 321 E..5`h St. Port Angeles WA 98362 Re: O WOC Petition for change of form of government for City of Port Angeles Dear Mr. 'Bloor. Mr. Nichols, and Mr. Wendt: 1 submit this letter on behalf of my client, Our Water - Our Choice! (OWOC). I recently reviewed a PDN article in the February 28, 2016 newspaper. Brian Wendt is referred to in the article as "the county deputy prosecuting attorney who will review the petition [to make Port Angeles a second-class city] for conformance with state law." The news article suggests that Mr. Wendt might seek a declaratory judgment regarding the petition language that states approval of the petition will result in the election of "a :full new city council." In that same PDN article, Mr..Bloor. is quoted as stating on 1'eb.ruany 9, 2016, "I don't see anything in the statute that requires the entire City Council to be elected." In the interest of keeping the City and County from filing a frivolous declaratory judgment action that could be costly to .my client, I will point out to you the statutes that require election of "a full new city council." There are two plans of government regulated by Titic 35A RCW: mayor -council regulated by chapter 315A.12RCW; and council-manager regulated by chapter 35A.13 RCW. RCW 35A.06.030 addresses abandonment of plan of government of a noncharter code city. The .last sentence of that statute addresses a change from governance under chapters 35A.12 or 35A.13 RCW to a city governed by Title 35 RCW and states: When a noncharter code city adopts a plan of government other than those authorized under "Title 35A RCW, such city ceases to be governed under this optional municipal code, shall be classified as a city or town of the class selected in the proceeding for adoption of such new plan. with the powers granted to such class under the general law, and shall elect officers as provided in RCW 35A.02.050. (RCW 35A.06.030.) Mr. Bloor, Mr. Nichols, and Mr. Wendt March .4, 2016 Page 2 RCW 35A.06.030 thereby requires election of officers as provided in RCW 35A.02.050. `The first paragraph of RCW 35A.02.050 provides that when election of officers is required by RCW 35A.06.030 and when there is no municipal general election 90 to 180 days after certification of the petition election, then a primary special election .must be set and those officers nominated in the primary stand for election in the next succeeding special election. For example, if the Petition for change of governance was adopted at the November, 2016, election (the election proposed by OWOC), the primary election for new ol:ficers could be in February. 201.7 and those officers nominated in the primary would stand for election in April, 2017. The second paragraph of RCW 35A.02.050 begins with: Upon reorganization candidates for all of shall file or be nominated for and successful candidates shall be elected to specific council positions. (RCW 35A.02.050; emphasis supplied.) The elected officers in the council-manager form of government under Title 35 RCW are only the council members. (RCW 35.18.010.) RCW 35A.02.050 goes on to state that the simple majority with the most votes get four year terms and the remainder get two year terms. Thus, four new council members will get four year terms and three will get two year terms. 'The second paragraph of'RCW 35A.02.050 provides that "newly elected officials shall take office immediately when they are elected and qualified." The last paragraph of RCW 35A.02.050 states that the former officers shall deliver all municipal documents to the new officers. RCW 35A.06.010 establishes that the plans of government in chapter 35A.012 RCW (mayor - council) and in chapter 35A.013 RCW (council-manager) are plans of government "additional to the plans of government" that existed in Title 35 RCW before "Title 35A RCW was adopted. Reorganization is deCned as a change in plan of government. (RCW 35A.01.070(9).) Reclassification is defined to include a change from city operation under Title 35A RCW to operation under Title 35 .RCW. (RCW 35A.01.070(7).) Therefore the OWOC Petition (copy attached) proposes both a reorganization and a reclassification. As such, .RCW 35A.06.0 30 requires election of council members as provided in RCW 35A.02.050 and RCW 35A.02.050 requires election of all council members. Because the statutes are clear, OWOC is informing you that it will consider any declaratory judgment action related to the requirement to elect "a full new city council" to be frivolous and brought: solely for purposes of delay. l:f such an action is filed, OWOC will seek sanctions. if you have any other legal questions regarding the Petition, OWOC invites you to submit your questions to me or set up a phone conversation. Respectfully Suhmit d d � Gerald Stel Attorney for OWOC a� t--: 0o 0� 6 n. O aj > 4— M ce br) > bi) ot, 0 p ci woe ce P m 2. tv C GC 0 Oh C's 7P CL a� t--: 0o 0� 6 n. O aj May 13, 2016 Clallam County Auditor's office Shoona Riggs, Auditor 223 E. 4th St., Suite 1 lr Port Angeles, WA 98362 (v) 360-417-2222 'S (f) 360-417-2312 email: sriggs@co.claIlarnma.us Ms. Jennifer Veneklasen, Clerk Ms. Eloise Kailin, President Mr. Craig Miller, Esq. City of Port Angeles Our Water Our Choice! Craig L. Miller P.S. 321 E 5" St PO Box 2418 711 E. Front Street, Suite A Port Angeles, WA 98362 Sequim, WA 98382 Port Angeles, WA 98362 Ms. Jessica Grable, Coordinator I Our Water Our Choice! PO Box 1644 Port Angeles, WA 98362 RE: In re the citizen petition to reclassify the Eovernin2 structure for the City of Port Aneeles. .The Clallam County Auditor's Office (Auditor) writes to confirm receipt of the above referenced petition, which was sponsored by Our Water Our Choice'. (OWOC) and filed by the City of Port Angeles (City) on May 9, 2016. You are receiving this letter because the Auditor has identified you as a real party in interest concerning the petition, and/or because you requested to be notified when the petition was filed with the Auditor. The City has requested that the Auditor review the petition pursuant to RCW 35A.01.040 and RCW 35A.06.040. Specifically, the City requests that the Auditor review the petition for (1) signature checking, and (2) a sufficiency determination. As part of this "sufficiency determination," the City has requested. that the Auditor evaluate whether the question contemplated is valid and should be submitted to the electorate. The Auditor has carefully reviewed these statutes and concluded that they are subject to more than one reasonable interpretation concerning the precise role that the Auditor should play in reviewing the underlying petition. 'rhe City believes the Auditor should perform a sufficiency determination that involves more than a mere review as to whether the petition contains the requisite number of signatures required by law. However, this opinion is not shared by organizations with extensive experience in election law and municipal governance: e.g, the Office for the Secretary of State, the Washington State Association of County Auditors, and the Municipal Research Service Center. Moreover, the representatives with whom the Auditor has conferred believe that the role to be discharged by the Auditor should be limited to a ministerial review of the signatures supporting the petition. The Auditor is responsible for supervising local elections. RCW 29A.04.025; RCW 29A.04.216. The Washington State Supreme Court has stated the "general rule" that "election statutes are considered remedial and should be liberally construed." Dumas v. Gamer, 137 Wn.2d 268, 284, 971 P.2d 17 (1999). In accordance with this liberal policy - which. errs on the side of allowing more matters (not less) to go forward to the voters — the officers responsible for supervising elections must construe "statutes Clallam County Auditor's Office shoona Riggs, Auditor 223 E. 4th St., Suits 1 � Port Angeles, WA 98362 (v) 360-417.2222 ,� (f) 360.417.2312 omallr sriggsoco,clailarnma,us regulating the elective process in favor of the voters by overlooking technical noncompliance while strictly enforcing provisions that prevent fraud and disenfranchisement." Community Care Coalition of Washington v. Reed, 165 Wn.2d 606, 623, 200 P.3d 701 (2009). Consistent: with its legal responsibilities and the aforementioned philosophy, the Auditor will be performing a detennination of the petition's sufficiency that includes more than a signature review. The Auditor believes that this approach strikes the appropriate balance and, .importantly, avoids disenfranchising the voters. While this sufficiency determination will address whether the petition substantially complies with the statutory provisions of RCW 35A.01.040, it will not include a review as to the legality/propriety of the ultimate question that the sponsor has requested be submitted to the voters, See Philadelphia II v. Gregoire, 128 Wn.2d 707, 714-15, 911 P.2d 389 (1996) Fisehnaller v. Thurston County, 21 Wn. App. 280, 285, 584 P.2d 483 (1978). The decision as to whether the question is lawful and may go to the voters is one that comes later and is ultimately decided by the Superior Court; and, the decision to move the Superior Court to make such a decision rests with the entity responsible for preparing the corresponding ballot title. See e.g. Philadelphia H v. Gregoire, 128 Wn.2d 707, 911 P.2d 389 (1996). In this case, the entity responsible for drafting the ballot title is the City. See .RCW 35A.06.050. If the City believes that the ultimate question is illegal and cannot be submitted to the voters, then it has remedies available in the form of injunctive or declaratory relief. See Philadelphia II, 128 Wn.2d at 715-16. At its core, this is a matter that concerns the City and the people of Port Angeles as evidenced by the following considerations: + It is the City Attorney that has the statutory obligation to draft the ballot title and statement of the proposition that is to be presented to the voters as a result of the petition .in question. RCW 35A.06.050. See also RCW 29A,36.071. • It is the City that must pay the costs incurred for any election that submits the question requested by the petition. RCW 29A.04.410. • The ultimate issue to be evaluated and proposed to the voters is one that concerns the City, and it is one that would benefit from the City's experience and expertise in municipal governance. Compare "Title 35 RCW ("Cities and Towns") with Title 35A RCW ("Optional. Municipal Code"). • The sponsor filed the citizen petition with the City Clerk's Office, not with the Auditor, which is different from similar petitions that must be filed with the Auditor and where the County Prosecuting Attorney is expected to draft the corresponding ballot title and the County absorbs any election costs. See e.g. RCW 35.61.020(3); RCW 29A.36.071. + Generally, the Auditor places questions to the voters, which are specific to individual cities, pursuant to any request received from the City itself.See RCW 29A.04.330(2). Clallam County Auditor's office Shoona Riggs, Auditor 223 E, 4th St., Sulte 1 -4 Port Angeles, WA 98362 (v) 360-417-2222 � (f) 360-417-2312 email: sriggs©co.claIla mma.us Assuming the form of the petition substantially complies with RCW 35A.41.040, and the City still has questions/concerns as to whether the question can be submitted to the electorate, then it may seek the judicial relief that it believes is appropriate. The Auditor will abide by any court order subsequently obtained. The Auditor will labor to complete its review of the petition as soon as possible. Please be advised that the Auditor is presently conducting the 2016 Presidential Primary, which will not conclude until May 24, 2016, and which will not be certified until .lune 7, 2016. Moreover, the Auditor is processing candidate filings for public office May 16 through May 20, 2016. The Auditor notes the City has requested that this matter be placed (if at all) on the November 2017 General Election. The Auditor does not know if this is acceptable to the petition's sponsor. For the parties' edification only, there are some logistical constraints that the parties may want to calendar. First, the last date to submit materials to be included on the ballot for the August 2016 election is June 1, 2016. Second, the last date to submit materials to be included on the ballot for the November 2016 election is September 12, 2016. However, the Auditor believes it will complete its sufficiency determination in advance of these deadlines. Finally, and as an aside only, given the limited amount of time remaining before logistical cut-offs, the complexity of the legal issues that may need to be reviewed, and the great importance of the question that may be submitted to the voters, it may be advisable to put the question (if any) to the voters as part of a November General Flection. This would allow additional time to carefully study/resolve any outstanding issues, ensure a larger turnout to consider the question, and help protect any result ultimately supported by a majority of the voters. Please let me know if you have any questions or concerns. Sincerely, Shoona Riggs Clallam County Auditor 223 E. 4th Street, Suite l Port Angeles, WA 98362 Encl. (1) .Receipt for Petition (2) Copy of Letter (dated 5/9/2016) from the City of Port Angeles (3) Copy of Letter (dated 5/4/2016) from 0W0C! CC; Brian Wendt — Clallam County Prosecuting Attorney's Office Gerald Steel — Attorney for Sponsor William Bloor - Port Angeles City Attorney Dan McKeen — Port Angeles City Manager C fam CountyAuditor's Office Shoona Riggs, Auditor Julie J. Maxion, Voter Registration Coordinator 223 E 4T" STREET SUITE 1 � PORT ANGELES, WA 98362-3026 (p) 360-417-2221 ­�- (f)360-417-2517 email: imaxion co.clallam.wa.us Receipt for Petition (for signature checking)-gvd �Ac Mc`{ dMmkMti0A t - Received from Sponsor Address Email ' 'N\1 ��L� C (�6� T)3' 116 Phone q1_7— 91 3_ Legal Counsel Address Email Phone Petition Name: baf ILC - Wf CWQ1 1 rLtit(n Icc Flo.(1al tD is a petition totaling `�3� pages. 4ffga'tze -me- CN of `Rrt �Q(2`j AAC M � ' QDV& O The Clallam County Auditor's Office acknowledges receipt of the above-named petition for inclusion in the �1ovQm 2 i 7 Election. Said petition will be checked for sufficiency, and certified as to its sufficiency or insufficiency according to the Revised Code of Washington. r-- Dated this _day of mr �I ,, 20�. Time 3 .. Signature of Acknowledging OffiMl U Title of Acknowledging Official p\Wacy ma�t * Recd uQf A 4c D2�el m�ndt s� aF 3d� 1 &19 RECEIVED MAY 9 - 2016 CL.ALLAM CO AUDITOR PORT NGELES ° WASH I N GTO N, U.S.A. May 9, 2016 Shoona Riggs Clallam County Auditor 223 E. 41h Street, Ste. 1 Port Angeles, WA 98362 Re: Request for Determination of Sufficiency Dear Ms. Riggs: RECEIVED MAY 9 - 2016 C&-Ai616AM GO AUDITOR Enclosed please find an "original" citizens' petition together with a cover letter addressed to City Clerk Jennifer Veneklasen. These are being transmitted to you for determination of the sufficiency of the citizens' petition as requested in the cover letter. As I understand it, your initial determination will be made pursuant to RCW 35A.01.040. • Under RCW 35A.01.040 you are required to examine many elements of the petition submitted, including: The format of the petition based on the requirements set forth in RCW 35A.01.040; • The text or prayer of the petition which shall be a concise statement of the action or relief sought by petitioners and shall include a reference to the applicable state statute ..." • The validity of the petition's signatures, pursuant to RCW 35A.01.040(4) and 35A.06.040; • The content of the petition and applicability of the state statutes referenced within the petition, pursuant to RCR' 35A.01.040(1)(a); and • The validity of the remedy sought by the petition, pursuant to RCW 35A.01.040(1)(a). While you are making a determination of the petition's sufficiency, the City requests that you consider whether the petition does, in fact, cite state statutes that support the action sought by petitioners. In particular, the prayer of the petition appears to be in error. A change in city government from a Council -Manager form of government under RCW 35A to a Council -Manager Phone: 360-417-4530 /Fax: 360-417-4529 /TTY: 360-417-4645 Website: www.cityofpa.us ",`s c 321 East Fifth Street - P.O. Box 1150 / Port Angeles, WA 98362-0217 Page 2 May 9, 2016 Letter to Shoona Riggs, Clallam County Auditor Re: Request for Determination of Sufficiency form of government under RCW 35 is a reclassification but it is not a reorganization as stated in the prayer. • Also, the prayer of the petition appears to be misleading because it suggests that reclassification as proposed by the petition will cause all City Council positions to be open for election at the next available election date. Based on our research, we believe that is not correct. • Finally, the petition is ambiguous. There are two ways to initiate abandonment of code city status. One is by a resolution of the City Council, and the other is by filing of a sufficient petition with the county auditor proposing abandonment by the city of the plan of government. This petition is not clear as to what is being sought. The petition was not filed with the county auditor and it does not demand an election. The petition expresses "support" for an election. That language seems like a petition to a government asking the City Council to adopt a resolution — an exercise of the right of citizens to petition their government, rather than a demand intended to initiate an election process. Pursuant to RCW 35A.06.050, the City Attorney is charged with writing the ballot title. I will do that after you have determined the petition to be sufficient, if you do make such determination. Also, according to RCW 35A.06.040, an election on this type of petition shall be held at the next general municipal election. At this date, the next general municipal election is the election that will be held in November 2017 pursuant to RCW 29A.04.330. In drafting a ballot title I will consider those statutes. Thank you for your prompt attention to this momentous undertaking. If you have any questions, I can be reached at 417-4531. Sincerely, William E. Bloor City Attorney cc: Brian Wendt, Deputy Prosecuting Attorney City Council Dan McKeen, City Manager Eloise Kailin 1p 4 2016 May 4, 2016 City Clerk Jennifer Veneklasen City of Port Angeles 321 East Fifth St. Port Angeles, WA 98362 Our Water -Our Choice! (OW -OC) herewith presents the original and one photocopy of the Petition for Election to Reorganize the City of Port Angeles from Council -Manager Form of Government under RCW35A to Council -Manager Form of Government under RCW 35 in a Second Class City in Order to Elect a Full New City Council. The Petition consists of 137 successively numbered pages containing the original signatures of a thousand -plus citizens. The original Petition is provided to you so you can assure compliance with a specific statute requiring the city clerk to transmit this petition within three days to Shoona Riggs, Clallam County Auditor. (See RCW 35A.01.040(4).) The photocopy of the Petition is supplied for retention in your records. We ask that this petition be processed for a vote at the earliest legally feasible election following the Auditor's determination that this petition contains signatures of Port Angeles registered voters in a minimum number of ten per cent of the number of votes cast at the last general election. In January of 2016, the Auditor's office advised us that this number was 467 signatures. Respectfully submitted, OUR WATER — OUR CHOICE! Eloise Kailin President P.O. Box 2418 Sequim, WA 98382 360-683-6644 cc: Ms. Shoona Riggs Clallam County Auditor 223 E Fourth St., Suite 1 Port Angeles, WA 98362 RECEIVEI.) MAY 4-2016 CLALLAM CO AUDITOR