Charter Review Commission takes up changes to county ‘constitution’ – Key issues surround strengthening initiative process and citizens’ involvement in their own governance

by Sue Forde, Citizen Review Online

Clallam County, WA – May 14, 2002 – The Home Rule Charter Commission met at the Clallam County Courthouse at 6:30 on May 9th to hear reports from the subcommittees on the various aspects of the Charter – the county “constitution” - which are under review for possible change.

The two areas of primary interest, based on citizens’ testimonies, included whether or not the Director of the Department of Community Development (DCD) should become an elected position rather than an appointed one; and work to strengthen the initiative and referendum process.

Chair Dave Lotzgesell, reviewing Article II of the charter, submitted the proposal to add an amendment that “all elected officials shall be partisan unless exempted by RCW.” On May 14, the committee presented verbiage for its second proposed amendment, which reads: “The Director of the Department of Community Development shall be elected November 2003 for a term of 3 years up till 2006.  Thereafter, to be elected on the same years as the other county officials.”

Each subcommittee in turn presented their reports; further reports will be presented at the next meeting.  The topics included redistricting boundaries, emergency ordinance rules, and others.

Questions arise as to the meaning and enforcement of the word “shall”

It appears that the charter will also need to address the definition of the word “shall” in the document, along with the methods of enforcing provisions that are not complied with.

During the committee meetings covering Article VIII (Initiative & Referendum), the question arose about how particular items that were designated as “shall” would be enforced.  Chair Lois Krafsky-Perry was assigned by agreement of committee to write the prosecuting attorney for an explanation of how items designated as “shall” would be enforced, and who has the authority to do the enforcing.

Chief Deputy Prosecuting Attorney Christopher Melly responded to the request with a statement that “shall” doesn’t always mean, “shall”.  It’s “usually” mandatory, he stated, although it may be treated as “directory” under certain conditions, as he referred to numerous court cases in his two-page letter. Click here to read his letter of response. (Ironically, Melly failed to advise that a writ of mandamus had been sought by the citizens involved, and the local court refused it; and that the Initiative 6 case is still in the process of the court - it is presently at the Appeals Court to be heard.)

Melly then cited an example of when “shall” is not mandatory – the case of Initiative 6 (Repeal of the Critical Areas Ordinance), and attempted to make a case as to why the initiative was not allowed to reach the voters at the ballot box.  In this case, he stated, the “people’s right of direct legislation under a county charter was trumped by the Growth Management Act.”

Lois Krafsky-Perry read the letter from Melly into the record, and then read the definition of the word “shall” from the 1995 Countywide Comprehensive Plan. It states: “Shall means the statement is mandatory, and the action so stated is required to be done without discretion by decision-makers.  The use of shall in a statement indicates that the action is imperative and ministerial.”

Several charter review commissioners raised the question to Melly as to who would enforce a provision of the Charter if it were not complied with by a government worker or elected official.  Melly’s response was that there are a variety of legal methods for the citizen to use.  The citizen would be required to hire an attorney to pursue the violation; however, the county and its employees would be represented by the county prosecutor’s office.  There is a presumption in the law that the county person is doing the right thing, Melly said.

Charter Review Commissioner and chair of the committee reviewing Article IX Rod Fleck, also the city attorney for Forks, reported that his committee was also dealing with the issue of the word “shall” regarding the budgeting process.  “The public has a right to understand the budgeting process,” he said. It should be made subject to the open meetings act.  Several citizens tried to get a budget and couldn’t, he said.  His committee is also looking into identifying grant-funded positions, and what happens when the grant money ceases. He indicated that his committee will be looking into incorporating the definition of the word “shall” in the section they are reviewing.  Melly agreed that it would probably be a good idea to have a definition section in the charter.

Commission member Joan Sargeant said that in attempting to define “shall” throughout the Charter would be “opening a real can of worms.”  She said it should be left alone.

Dave Lotzgesell said he favored clarifying and strengthening the verbiage on behalf of the citizens.  Terry Roth agreed, saying the charter should have some teeth, and there needs to be accountability to the people.

Jean Hordyk wondered, “Who’s going to be enforcing this?” 

Fleck said the charter has the right to include different rules and regulations; perhaps they should look into alternatives for enforcement of the charter provisions other than only legal recourse.  “There’s less reason to go to a lawsuit when there’s clarification”, he said.

Commission member Don Alexander wanted to know “who enforces the State Constitution?  Melly replied that government doesn’t challenge itself; it presumes that government is doing what it’s supposed to be doing.

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