OPEN PUBLIC MEETINGS ACT TRAINING
OPEN PUBLIC MEETINGS ACT TRAINING
FOR BOARD AND COMMISSION MEMBERS
On November 19, 2019, the Edmonds City Council adopted Ordinance 4172 codifying a State Law requiring every member of an Edmonds Board or Commission to complete training on the Open Public Meetings Act, Chapter 42.30 RCW, no later than ninety days after the date the member, takes oath of office or otherwise assumes duties as a public official.The State law requiring this training was passed by the State Legislature with an effective date of July 1st, 2014 (FIVE YEARS EARLIER THAN THE CITY OF EDMONDS ORDINANCE).
This begs the question, Why did it take the City of Edmonds FIVE YEARS to come into compliance with State Law? The City of Edmonds pays a lobbyist to keep the Mayor and Council updated on laws being considered and passed by the State House and Senate. The City of Edmonds pays a City Attorney over $500,000 a year to provide legal services.
Now on to the rest of the story. On November 19, 2019 Mayor Earling was serving his final days in office and celebrating all of his pass accomplishments. He was enjoying all of accolades and pats on his back for his many years of service in public office. Dave was so busy celebrating that he forgot to sign or veto Ordinance 4172. Then, on or about January 27th, 2020, Mayor Nelson crossed out former Mayor Earling's name and signed Ordinance 4172. The City Clerk signed the Ordinance attesting and authenticating it. The City Attorney approved the Ordinance as to form. The Ordinance was published in the Daily Herald and became effective on February 3rd, 2020 (Seventy-seven days after City Council passage).
Edmonds City Code 1.03.030 Publication - Effective Date of an Ordinance states in the event that the an ordinance is not published in 14 calendar days of adoption, the city council, by individual notice to each council member shall be advised by the city clerk of the reason for the delay and the expected date of publication [Ord. 3832 § 1, 2010; Ord 2511, 1985]
On February 14th, 2020, I sent the following email to Mayor Nelson;
Mayor Nelson
It has come to my attention that you signed Ordinance No. 4172, an Ordinance passed by the City Council on November 19, 2019. David O. Earling was the Mayor on November 19, 2019 and you were a City Councilmember. You were one of 6 City Councilmembers who voted to pass Ordinance No. 4172 as part of the Consent Agenda. Councilmember Kristiana Johnson was not present for the vote to approve the Consent Agenda items.
Please provide me the City or State law that allows you to sign Ordinance No. 4172 as approved rather than former Mayor Earling. Can somebody other than the Mayor on the date the City Council voted approve an Ordinance, especially a Councilmember such as yourself who voted on the Ordinance? If so, could you have also vetoed the very Ordinance which you voted for on November 19, 2019? Can a member of the legislative branch of government both vote for and sign an ordinance? Is that proper separation of authority between the legislative body and the Mayor's office?
Further complicating this, the Ordinance wasn’t published within 14 calendar days of adoption, published January 29, 2020. Please provide me the individual notice advising you of the reason for this delay and the expected date of publication. The Edmonds City Code 1.03 requires the City Clerk to provide you such individual notice. Assuming you were provided individual notice, did it indicate the expected date of publication would be late January, 2020? If so, did you ask the City Attorney which Mayor was going to sign Ordinance No. 4172? The City Attorney approved Ordinance No. 4172 as to form but his signature isn't dated.
Who scratched out David O. Earling's name on Ordinance No. 4172 and typed in your name? Again, you weren't the Mayor on November 19, 2019. I see that City Clerk Scott Passey Attested/Authenticated this. Did Mr. Passey do so before or after David O. Earling's name was scratched out? Mr. Passey did not date his signature or initial and date the scratching out of David O. Earling's name. I see that the Office of the City Attorney approved this as to form. No name is typed in under the signature and the signature is not dated. Did the Office of the City Attorney approve this as to form before or after David O. Earling's name was scratched out? The Office of City Attorney did not initial and date the scratching out of David O. Earling's name.
Has the City Clerk violated ECC 1.03 and therefore subject to prosecution and penalties? ECC 20.50.020.
City Attorney responded.
Mr. Tupper—Mayor Nelson has asked me to respond to your email. You have raised questions regarding the validity of city ordinance No. 4172, which was passed by the city council on November 19, 2019. Mayor Earling, who was in office at that time, did not sign this ordinance, but later, after Mayor Earling’s term expired, Mayor Nelson, the city’s current mayor, signed the ordinance. Specifically, you have asked whether these facts constitute a violation of Edmonds Municipal Code Chapter 1.03.
With or without a mayor’s signature, the ordinance took effect by operation of state law. If a city council in a strong mayor form of government (like Edmonds is) adopts an ordinance, and the mayor of that city “fails for ten days to either approve or veto an ordinance, it shall become valid without his or her approval.” RCW 35A.12.130. Accordingly, the ordinance became valid ten days after its date of adoption. The date the ordinance would become valid would be Friday, November 29, but since that is a designated holiday (day after Thanksgiving) followed by a weekend, the actual date the ordinance became valid by operation of law was Monday, December 2. RCW 35A.21.080. So, with or without a signature, the ordinance lawfully became valid before the expiration of Mayor Earling’s term, and Mayor Nelson’s signature after the fact had no impact on its validity one way or the other.
You also raised an issue with the date of publication. Publishing at a date later than normally done in the city’s regular course of business does not affect the ordinance’s validity. State law says that a summary of the ordinance must be published “promptly after adoption.” RCW 35A.12.160. “Promptly” is not defined. But that is no matter, because the same statute clearly states “An inadvertent mistake or omission in publishing the text or a summary of the content of an ordinance shall not render the ordinance invalid.” Id. Publishing on January 29, then, worst case, constitutes no more than “an inadvertent mistake.”
However, there remains one issue with the city code. As you pointed out, if an ordinance is not published within 14 days of adoption, the city clerk must advise each council member by individual notice of the “reason for delay and the expected date of publication.” EMC 1.03.130. By separate email, I will contact Mr. Passey and instruct him to send this individual notice and explanation. Again, note that the city code imposes no time constraints on when this explanation must be delivered.
Finally, you have questioned the ordinance’s validity for lack of Mr. Passey’s signature or date where Mayor Earling’s printed name was struck out under the Mayor’s signature block and for lack of a printed name or date line under the “approved as to form” portion of the ordinance. No state or local law requires a city clerk to sign and date amendments to a signature block or requires that an ordinance include an “approved as to form” statement or signature. But even assuming the city’s past practice somehow creates these obligations, both issues would constitute non-substantive defects with regard to the actual content of the ordinance. State law makes clear that “defects of form not going to the substance” of the ordinance cannot render an ordinance invalid so long as (1) the ordinance’s purpose, intent, and procedural provisions are clear, (2) it was passed at a regular public meeting, and (3) the city council passed the ordinance using its regular process for passage of the ordinance. RCW 35A.21.010.
I have attached copies of the relevant state laws for your reference should you want to refer to them. Regards, --Tom Brubaker
My follow-up to Mayor Nelson
Mayor Nelson,
When it came to my attention, Ordinance 4172 adopted by the City Council on November 19, 2019 was signed by you, (not Mayor Earling), sometime on or before January 27, 2020, both your conduct and City Clerk’s conduct raised the questions, expressed in my email sent to you on February 14, 2020. My email was addressed to you, copied to the City Council, City Clerk, and City Attorney. I wasn’t expecting a reply from a City Attorney. Absent a complete response to my questions, I would like to respond to Mr. Brubaker and the Lighthouse Law Group’s poor legal advice and analysis. I do support both this ordinance and the training of board members, it is a good law. My objective is to point out that you and the City Clerk, apparently relying on the advice of the City Attorney, acted inappropriately and in violation of City Code.
When the ministerial mistakes were discovered did you and the City Clerk consult with City Attorney? Did you and the City Clerk reference the Edmonds City Code 1.03? It appears not because you surely would not have missed the important step of notifying the City Council of the ministerial mistake prior to the publication of the legal notice in the Daily Herald.
City Codes must be interpreted and construed such that all language used is given effect, with no portion rendered meaningless or superfluous. West v. Department of Licensing, 331 P.3d 72 at 74 2014.
Contrary to Mr. Brubaker’s interpretation, ordinance
adoption, validity, publication and effective date are all distinct and
separate words with different meanings. When a word such as “promptly” is not
defined courts look to its plain meaning, “with little or no delay,
immediately”. My mother’s definition. There is no confusion here; the
publishing was not promptly done. This mistake does not render the
ordinance invalid; the legislative power rests with the City Council. The Mayor
has only 10 days to veto it. My email to you did not allege the invalidly of
the ordinance as misconstrued by Mr. Brubaker. He is putting words into my
mouth.
Quoting Mr. Taraday, “The City of Edmonds is a code city organized under RCW 35A, which is different from other types of cities that exist in Washington State. Code cities have the broadest possible powers under the State Constitution. We are what some people call home rule cities, in that; we don’t need to point to something that’s expressly stated in State law to authorize our actions. We just can’t contradict State law.” Planning Board Meeting Minutes 8/14/19. ECC 1.03 is the law in Edmonds and requires the City Clerk to individually notify all council members prior to publication. The City Code is valid local law and does not contradict any State law.
The heart of the issue is your duty as Mayor to see that all laws and ordinances are faithfully enforced and that law and order is maintained in the city. This was your sworn oath of office. As evidenced above, relying solely on the poor legal judgement of the Lighthouse Law Group, the actions taken in this matter have contradicted this duty.
I have confidence you, and our elected officials and staff are all committed to serving the citizens of Edmonds. We can therefore rely on you to respond to our concerns.
There is rumor going around town, the City Attorney OPMA training includes the following suggestion, elected officials and staff should not respond to emails, pick up the phone don’t create a public record. If this is true it’s just another example of their poor legal advice. I agree with you, “City government needs to do a better job of communication”. Edmonds Beacon headline 2/13/20. Responding to citizens’ emails is a great way to communicate and govern.
Yours truly,
Fins TupperQuoting Mr. Taraday, “The City of Edmonds is a code city organized under RCW 35A, which is different from other types of cities that exist in Washington State. Code cities have the broadest possible powers under the State Constitution. We are what some people call home rule cities, in that; we don’t need to point to something that’s expressly stated in State law to authorize our actions. We just can’t contradict State law.” Planning Board Meeting Minutes 8/14/19. ECC 1.03 is the law in Edmonds and requires the City Clerk to individually notify all council members prior to publication. The City Code is valid local law and does not contradict any State law.
The heart of the issue is your duty as Mayor to see that all laws and ordinances are faithfully enforced and that law and order is maintained in the city. This was your sworn oath of office. As evidenced above, relying solely on the poor legal judgement of the Lighthouse Law Group, the actions taken in this matter have contradicted this duty.
I have confidence you, and our elected officials and staff are all committed to serving the citizens of Edmonds. We can therefore rely on you to respond to our concerns.
There is rumor going around town, the City Attorney OPMA training includes the following suggestion, elected officials and staff should not respond to emails, pick up the phone don’t create a public record. If this is true it’s just another example of their poor legal advice. I agree with you, “City government needs to do a better job of communication”. Edmonds Beacon headline 2/13/20. Responding to citizens’ emails is a great way to communicate and govern.
Yours truly,
Validity is one thing, effective date is another. Per RCW 35A.12.130, “No ordinance shall take effect until five days after the date of its publication…”. Per RCW 35A.12.160, “Promptly after adoption, the text of each ordinance or a summary of the content of each ordinance shall be published at least once in the city's official newspaper”. Code city Edmonds, organized under Title 35A, employed its broad powers under the State Constitution to adopt Ordinance No. 3832 in 2010. Ordinance No. 3832 established the following found in Chapter 1.03 of the Edmonds City Code:
“In the event that an ordinance is not published within 14 calendar days of adoption, the city council, by individual notice to each council member, shall be advised by the city clerk of the reason for the delay and the expected date of publication.”
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