*NOTE* - As of 5:30 p.m. this article has been completely rewritten to reflect what actually happened today. My apologies. I take full responsibility for what happened. Only once I received the prosecutor’s memo, and based on a conversation with the AG’s office, did it all become much more clear. Again, I’m sorry for the confusion.
Here’s the article from the political news of the day that you’ve already had the inside scoop on here at the Politics Blog:
The state Attorney General’s Office will not look into the appointment of County Councilman Ward Nelson to fill a vacant council seat.
The announcement comes after the Whatcom County Democratic Party asked County Executive Pete Kremen to request an opinion from the state questioning whether the nominating and appointment process was ethical and legal.
In a memo sent to Kremen and to the media around 5 p.m. Thursday, Jan. 7, Whatcom County Prosecutor David McEachran said he spoke with a representative at the Attorney General’s Office who said that while the agency would issue opinions on state law, it would not address an issue relating to a charter form of government or local ordinances.
“The Attorney General’s Office recognizes that the Prosecuting Attorney is the legal advisor for the County and would be the proper officer to render a decision about the Charter and Whatcom County ordinances,” McEachran wrote to the executive.
Attorney General Director of Communications Janelle Guthrie confirmed that the office declined to take up the case because it was a matter dealing with a county charter and local issues.
The announcement came a day after McEachran’s staff wrote a legal analysis declaring the nominating and appointment process both ethical and legal. McEachran echoed in his memo the legal analysis of Chief Civil Deputy Prosecutor Randall Watts.
Kremen expects Nelson to be sworn in on Monday, Jan. 11, with the three new council members. The veteran councilman will fill the seat vacated by Councilman Bob Kelly on Nov. 26.
The Whatcom County Democratic Party officially asked Kremen to seek an attorney general’s opinion on Wednesday. He forwarded the concerns to the county prosecutor’s office, which issued the legal opinion.
But the legal opinion didn’t suffice for the party, party Chairwoman Natalie McClendon said.
“I feel that the opinion or whatever it was from Mr. Watts in the prosecutor’s office didn’t address our issues at all,” McClendon said. “He seems to have dismissed it out of hand, without even looking. It’s like he doesn’t understand the sequence of events or how the process worked in terms of developing a nomination list by the council that Mr. Kremen worked off of.”
At issue was whether Nelson could accept a nomination to be appointed at the same time he was already a sitting councilman and whether it was fair for the councilman to vote for or against all the other nominees. He abstained from voting for himself, but the De-mocrats believe that without Nelson voting, the council would have made a pick, rather than turning over the choice to Kremen.
The prosecutor’s office says that would not be the case, because the council would always need a four-vote majority to select an ap-pointee, and without Nelson voting each vote would have come down 3-2 and would have failed.
Kremen said he was comfortable asking for the state’s opinion but didn’t do so originally because he typically defers to the legal ex-pertise of the Whatcom County Prosecutor’s Office.
“I did take the letter from Natalie seriously, and I did take the concerns expressed in the letter seriously,” the executive said. “That’s why I asked for the prosecutor’s office to review it and give an opinion.”
McEachran is confident in the legal analysis issued by his office.
“It’s really very clear under the charter how this works,” he said. “The charter has really anticipated these kinds of problems.”
January 7th, 2010 at 4:49 PM
McEachran is right: it is clear under the charter how this works. They were required to appoint someone to replace Bob within 30 days. They didn’t do that. By the time the seat is filled it will have been vacant for 46 days!
Why has it been vacant for 46 days? Because Pete Kremen is going through strange and probably unethical gyrations to appoint Ward Nelson. There were 24 or so other options. Anyone of them could have filled the seat within 30 days. Why violate the charter for this?
Ward Nelson has not been appointed yet. He can’t be because he can’t hold 2 seats at once.
January 7th, 2010 at 4:55 PM
As odiferous as a really good cheese…
January 7th, 2010 at 6:43 PM
11Get used to it sports fans. You’re living in Kremen County. And the Sheriff of Notinham is named Dave.
What great theater. I can’t believe how surprised the sheep always are when they get into the room
January 7th, 2010 at 6:47 PM
The thing that McEachron is completely ignoring in the memo is that Ward Nelson was not eligible for nomination by the council. This is where his staff failed the council.
He wasn’t eligible because he already held a seat and could not hold 2 seats at once. It was also improper of Sam to nominate a fellow councilmember. As reported earlier, the 1965 AG opinion made it crystal clear that “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.”
and, “the appointing board cannot absolve itself of ulterior motives if it appoints one of its own, whether or not his vote was necessary to the appointment, since the opportunity improperly to influence the other members of the board is there. The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment.”
Since he was ineligible for nomination would the appointment, which followed from that nomination, be invalid?
January 7th, 2010 at 7:29 PM
I didn’t think much would come of this but enjoyed the ride.
January 7th, 2010 at 7:56 PM
Question: If the AG had said Mr Kremen’s appointment didn’t pass muster, would the decision revert back to the sitting County Council or back to Mr Kremen? Obviously it wouldn’t revert back to the December 2009 Council, which is now part of history….Either way, I’m not sure what he County Democrats would have gained from a strategic perspective…
January 7th, 2010 at 7:56 PM
Sam Taylor’s first blog entry mentions that Ward Nelson did due diligence on the legality of this matter. I was unable to determine when he did so, before or after the December 8, 2009 council meeting.
Sam, can you help me out here?
January 7th, 2010 at 8:28 PM
I appreciate that Pete attempted to do the right thing and was responsive to community concerns.
The AG’s Office and the County Prosecutor have erred in determining that whether Mr. Nelson could accept the nomination and then vote for or against his opponents is an issue of local concern. Rather, this is an ethical issue of state-wide concern, as reflected in established common law principles that prohibit this type of action. Moreover, the County Code provision that prohibits the use of one’s office to secure a special privilege is drafted from a very a similar state law, RCW 42.23.070(1). Therefore, the fact that Whatcom County has a home rule charter is not despositive of this matter.
It appears that once again, the entire County is the victim of poor legal advice.
January 7th, 2010 at 8:31 PM
Susie Q,
The remaining council members (6) had 30 days from Nov 26,2009 to fill the position. A majority of the remaining council members (4) needed to vote a nominee.
They failed on Dec 8 to give any nominee 4 votes. The council then decided, rather than take the remaining days and meet to try to fill the position, to move it to Mr. Kremens to pick.
The nominees can come from 2 methods- each candidate can file for the position OR a council member can nominate someone. Mr. Crawford used his ability to nominate someone. The progressive liberal majority was asleep at the time. Sam it appears was not.
Mr. Kremens could not appoint anyone before 30 days because that time is reserved for the council to make a pick. The rules states if the council cannot make a selection within 30 days the County Executive will be given the honor.
Seems like this process was used legally from beginning to its controversial conclusion.
January 7th, 2010 at 8:40 PM
[Seems like this process was used legally from beginning to its controversial conclusion- Silent Majority.]
So what part of this legal process allowed an elected official to use his office to obtain a special privilege in violation of County Code and general ethical principles, which then led to his appointment?
January 7th, 2010 at 8:52 PM
Apex - you got me … I don’t have an answer for you. I will follow up with Ward in the coming days and try to get back to you.
January 7th, 2010 at 8:54 PM
SM< I agree with most of what you said in term of the situation except for he end. The law says that if the council can’t make a decision within 30 days it automatically goes to the executive.
That’s not what happened here.
The council couldn’t make a decision and so, via motion and approval, they sent it to the executive immediately on the night of December 8 for a decision. However, after that, the county charter and code are not specific as to when the executive “shall” make the appointment. No timeline at all.
January 7th, 2010 at 8:56 PM
Well, we’ve got just about 1.5 days until Councilman Nelson is sworn in for another partial term to the vacant seat. It appears no legal challenge is forthcoming, so this issue seems pretty well over at this point.
If anyone knows of some type of lawsuit coming, please let me know via e-mail or phone call.
Based on past history, I don’t see that happening. It’s very rare for people to challenge a county decision in court unless it’s a land-use decision, it seems.
January 7th, 2010 at 8:58 PM
Reflecting back, now that it has been shown that 4 votes were required, no matter whether 5 or 6 of the remaining council were voting, then…
A ton of hassle could have been avoided if Ward had recused himself from ALL voting. The Seth-Laurie-Carl trio could not have elected anyone anyway, so the pick would still have reverted to Kremen, but there would be so much less to argue about.
There was no advantage to Ward voting on the other 24 candidates, since the Ward-Sam-Barbara trio could not have elected anyone either.
Bad planning on the part of those wanting Ward for the appointment. He should have just sat out the whole vote. Then he wouldn’t have the appearance of being able to vote on his 24 competitors for the seat.
January 7th, 2010 at 8:59 PM
I want to echo what Suzie Q said. This does not, in any way, address the fact that Ward Nelson used his special privilege as one of the members of the body to secure this position. It was wildly unethical for Nelson to vote on the other nominees.
To Andy Rowlson- I don’t think the Whatcom Dems are pressing this out of strategic concerns. I think they are genuinely concerned about making sure our government is legally sound, and that our representatives are ethical in their actions. Ward Nelson stonewalling the other nominees is a gross miscarriage of justice and this deserves the sunshine it is just now getting thanks to Sam Taylor.
January 7th, 2010 at 9:55 PM
Sam, I made no mention of a time frame or the county exec to make the appointment. The only timeframe was how long the council had to make a selection.
A question I have for you is in reference to Riley who is thanking you for giving sunshine to unethical misdoings by Ward Nelson. Is that the purpose of this blog? Or any other that you posted?
I seem to remember Ward not reacting enthusiastically to his nomination. From the posts here it seems many think there was a deal and Ward was complicit in it. I want to remind them he is not a democrat and has set higher standards than that for himself. I do not remember any protestation by any other council member to the nomination except Brenner wanting more time.
January 7th, 2010 at 10:06 PM
SM - honestly, at this point, I consider your questions ridiculous. If you can’t be adult enough to understand the news value of this entire thing, then you shouldn’t even chat with me. I’ll leave it at that. You’re conspiracy wrapped in enigma wrapped in false information day in and day out. Considering your age and experience, it baffles me. Back to watching Lost with my wife.
January 7th, 2010 at 10:34 PM
SM:
Ward was never eligible for nomination. Consider this: had 4 councilmembers voted for him on December 8th, he would have been holding 2 county council seats. ?. Not only is that illogical, it’s illegal. Because of that, he wasn’t an eligible nominee.
Pete was required to appoint from eligible nominees.
See how that is? It’s a problem. A serious, ethical, legal problem.
See how McEachron’s memo nicely ignores that problem? It’s because his own staff fell down on the job and didn’t call that out a a problem. This is why there’s a staff lawyer at council meetings, to provide legal advice and avoid such problems.
January 7th, 2010 at 10:37 PM
Richard -
It’s not been shown that 4 votes were required. Did you read Sam’s article online? The attorney at the end? Clearly there are differing legal opinions about the 4 vote v 3 vote issue.
Once (improperly) nominated, Ward should have recused himself and left the room. He stayed and influenced the outcome. Again, improperly.
Then there would have been 5 voting members. Enough for a quorum. A majority would have been needed for a nomination to prevail. A majority of….5? Or a majority of 6? This is why there are different legal opinions.
January 7th, 2010 at 10:39 PM
And Mr. Silent M, there are no rules spelled out for how someone gets nominated. The council decides the best approach. But there are rules that spell out who is not eligible. Ward was not.
What are your thoughts regarding his eligibility? You’ve skirted that key issue.
January 7th, 2010 at 11:03 PM
not trying to stir up the pot again…but if the Council wasn’t scheduled to meet again in 2009 after the December 8th meeting…how does that constitute holding 2 offices at one time? Didn’t they have a ceremony saying good bye to outgoing members? It just seems like an overreaction and splitting of hairs.
Of course we could try using the Laurie’s train of thought in her elect/re-elect snafu…technically Ward’s not holding a “different” office…just moving from slot one to slot two.
imho….Much ado about nothing…
January 7th, 2010 at 11:07 PM
http://blogs.bellinghamherald.com/politics/whatcomcounty/aint-no-council-goodbye-presentation-like-a-brenner-council-goodbye-presentation/
January 7th, 2010 at 11:10 PM
Suzie, “lern to lurk” I believe they say.
I had to scan several pieces to find it again, but Sam Taylor posted :
I’ve found one with a 3-2 that failed “for lack of Council majority.”
Check it out here: http://whatcomcounty.us/council/2004/minutes/council/c0518.pdf
Here’s another:
http://whatcomcounty.us/council/2004/minutes/council/c0615.pdf
- - - -
I seem to recall another post with the actual county rule that specifies that it must be a majority of the total council, but I don’t feel like reading all dozen articles on this matter again just to find it.
January 7th, 2010 at 11:16 PM
Sam,
Sam,
????? did you tell me to shut up or just not post to you?
Bad day? At least I know the bounds of civility. It could be your assumptions about the questions were wrong.
The false info I posted here?
The assertion of a conspiracy I posted here?
January 8th, 2010 at 7:07 AM
Someone else in the box for a change. shudder…..
January 8th, 2010 at 7:12 AM
McGee - while the council may not have met at a regular meeting for the rest of the year, those council members still had terms that went beyond that day.
However, while some are quite adamant about how the appointment process works, nobody has shown me a section of law that notes the appointment would take place immediately upon announcement. Kremen said he intended for the appointment to take effect January 11. There is nothing in the charter or code that I saw that bars him setting a date for it to take effect.
Both of those legal documents are just very general and leave quite a bit of detail out in terms of how this process was supposed to work.
It didn’t outline any type of actual process for council selection. After the 30 day period it didn’t specify any timeframe for the executive’s pick. Nor is it specific about when the appointment would take place.
No council members seem to have discussed wanting to provide more detail to the process, so it appears that’s how it will remain.
January 8th, 2010 at 8:04 AM
Regarding the whole matter about a person holding multiple public positions. Wasn’t Seth Fleetwood recently sworn in as a Bellingham City Council member? What does that mean for the County Council (until Monday)?
January 8th, 2010 at 8:19 AM
Thanks Sam…I’ve read through the Charter looking and I agree it didn’t really say that once that selection is made it is immediate. Although I didn’t see anything either that says once elected this is what your term is from 12:01 this day until 12:00 on this day. Why couldn’t Ward just have resigned from his position for the last 3 weeks of the year?
January 8th, 2010 at 8:23 AM
McGee - Nelson could have resigned, I suppose, but he didn’t. Him resigning prior to the vote, obviously would have changed the dynamic of the vote.
The code states that if at any time the council falls below the normal quorum level for a vote due to vacancies that the remaining council members make the appointment.
So if there had been two vacancies (Kelly AND Nelson), that would have changed the vote, according to the code.
However, Nelson didn’t resign, and so it’s the position of the prosecutor’s office that a quorum was still there and that majority requires a four-vote decision no matter what.
Barring a legal challenge, it appears that position stands as the precedent and how things work.
January 8th, 2010 at 8:30 AM
Bellinghammer - Two parts to this answer for you.
First, the Whatcom County Charter only governs county government. With that in mind, section 4.3 of the charter dictates that “The County Council, Executive, Assessor, Auditor, Treasurer, Sheriff and Prosecuting Attorney shall hold no other office or employment within County government.”
That automatically nullifies concerns about holding an office at the city and at the county.
Second, even if there was some type of prohibition, and say that Fleetwood would have been required to resign his County Council seat once being sworn in as a Bellingham City Council member, the County Council by their appointment process, must wait a full 10 days before they can even consider nominees. Since Fleetwood was sworn in Monday, Jan. 4, and the new County Council members (including his replacement, Bill Knutzen) are to be sworn in on Monday, Jan. 11, it’s a moot point.
I hope this clarifies.
January 8th, 2010 at 8:44 AM
Thanks Sam for the info. So theoretically if the County Council had to have an emergency meeting for some reason today Seth Fleetwood would be able to sit on it? Seems like that would represent a conflict of interest in favor of the City of Bellingham given he’s also a member of that body.
My point to raising the whole issue is that Ward is not the only person with one foot in two boats at the moment. I agree that after the swearing in ceremony on Monday everything will be right with our representative bodies again.
I am disappointed that the process raised so many legal questions. If I was able to watch the Dec 8th proceedings I might agree that Ward should have abstained from voting on any of the candidates, but given the legal advice provided to the council it sounds like everyone acted appropriately given the parameters set out to work within. It seems like the big issue is whether those parameters provided to the council were correct or not.
January 8th, 2010 at 8:56 AM
Bellinghammer, I think state law me pre-empt on this subject, but according to RCW 29A.20.040, our County Council turned over on Jan. 1.
http://apps.leg.wa.gov/RCW/default.aspx?cite=29A.20.040
I could be reading that wrong, I suppose.
January 8th, 2010 at 9:14 AM
If that’s the case then the Whatcom Democrats are raising about Ward holding two positions on council applies to the 28th through the 31st? And they brought up this concern after it was already a moot point on January 6th?
The video apexnerd provided gives me some confidence that our council members explored the possibility and legality of Ward’s appointment adequately, to the point that Council member Crawford even asked the attorney present if Ward could even be a candidate as well as if he should or could vote on the other candidates.
January 8th, 2010 at 9:16 AM
This has all been just like the saying goes “making a mountain out of a mole hill”! So we could go into the fact that moles are rodents but I do not want to disparage any of my little friends!
AFY!!theheelotsheepdog!!!
January 8th, 2010 at 9:26 AM
According to this elected officials list from the Whatcom County Auditor’s Office Web site, each County Council member’s term that was set to expire was over after December 31, 2009.
https://www.whatcomcounty.us/auditor/election_division/general_information/elected_officials.jsp
However, I think the major argument was that Nelson was already a sitting councilman when he was nominated on December 8 for another spot and that if the County Council had indeed voted in the majority to appoint him that there would have been a conflict because the appointment would have taken effect immediately.
They do also argue what you said above … that despite Kremen’s contention about the appointment taking effect on Jan. 11 that it should have happened immediately, just as if the council had done the vote instead.
January 8th, 2010 at 10:18 AM
Sam, do you think there will be a further legal challenge? Seems like they just got a good preview. Do they really want to chance asking someone like Mura for guidance?
I do appreciate that it was looked into so vigorously however, openness is always a good thing, plus it has provided a lot of animation and exercise for the seated maximal politicus gluteous though, as well as tying a few coccyx in knots.
January 8th, 2010 at 10:25 AM
Civility rule proposal. An uninformed opinion does not make one a child and neither does a tantrum because clearly adults throw those; so can we stop accusing adults for of childish behavior and just accept that though the acts of a child provide ample illustrations of the various aberrations of behavior, once a person has reached a maturity in years they deserve not to be lumped with children for rhetorical advantage since those behaviors are universal. That said it clearly behooves us all not to let our behaviors be so easily cast as juvenile, while still asserting that categorizing someone’s behavior just creates further impediments to discourse. With all due respect…..
January 8th, 2010 at 10:31 AM
P.S, ” SM….You’re (an) conspiracy wrapped in (an) enigma (,) wrapped in false information day in and day out” is still not only acceptable but visionary…..;)
January 8th, 2010 at 10:33 AM
January 8th, 2010 at 10:33 AM
Pesky independent little faces
January 8th, 2010 at 10:46 AM
Jurgen - I haven’t heard from anyone that there will be a legal challenge. There seems to be no indication for that.
It seems in the legal world, a challenge would need to come today, if for anything else to seek a temporary injunction to attempt to stop the appointment and swearing in from taking place Monday. Since nothign has been filed within the last few days, getting a court date today or Monday seems like a difficult prospect.
So in summation: No, doesn’t seem that way. But I’m not the final arbiter here, obviously.
January 8th, 2010 at 5:50 PM
Sam is correct - from the MRSC
Is a person appointed to a vacancy in an elected office considered to be an elected official?
Yes, a person appointed to fill a vacancy in an elected office is considered an elected official. For example, RCW 42.17.020(16) defines “elected official” as “any person elected at a general or special election to any public office, and any person appointed to fill a vacancy in any such office.”
http://www.mrsc.org/askmrsc/pastinqsubject.aspx?sid=21#Conflict of Interest and Incompatible Offices
How can Ward represent two seats in the same district at the same time?
January 8th, 2010 at 6:13 PM
Sam please delete the spam bot.