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Pierce council overrides two vetos, chides executive and judges

Post by David Wickert on Nov. 24, 2009 at 4:35 pm | 21 Comments »
January 5, 2010 11:35 am

The Pierce County Council Tuesday voted unanimously to override two vetoes issued by County Executive Pat McCarthy in an ongoing battle over the balance of power among the various branches of county government.

The council voted to override McCarthy’s veto of an ordinance that eliminated the Superior Court seat recently vacated by Judge Michael Hecht. The effect is to reduce the number of Superior Court seats from 22 to 21, despite objections from McCarthy, judges, the prosecuting attorney’s office and the local bar association, all of whom claim the council has overstepped its authority.

“I haven’t seen such a blatantly illegal act in my 25 years in practice,” Judge James Orlando told the council Tuesday.

Council members responded by asserting their authority over the budget and defending the legality of their decision. They also criticized the judges for stonewalling efforts to assess the court’s workload. And they questioned the work ethic of some on the bench.

“There are some judges who are better at their golf game than they are at being a judge,” said Councilman Tim Farrell, D-Tacoma.

The council also voted to override the executive’s veto of an ordinance changing the county’s comprehensive land-use plan. They accused McCarthy of holding up dozens of legitimate zoning and policy changes because of concerns they say she failed to express before the council approved them.

“With all due respect, Executive McCarthy, what were you thinking?” said Councilwoman Barbara Gelman, D-Tacoma.

Tuesday’s votes and harsh words were the latest evidence of tensions among county officials that have been simmering all year.

The executive and council have argued over budget priorities, the size of McCarthy’s staff and other issues. The council has been pushing Superior Court to address a backlog of criminal cases that is crowding the jail and costing the county money. The judges objected to McCarthy’s plan – later approved by the council – to eliminate their county health insurance (they also get state insurance).

Contributing to the tension has been a tight budget. Earlier this month the council approved a 2010 spending plan that cut deeper than McCarthy had proposed.

The council cited budget problems when it voted earlier this month to eliminate the Superior Court seat. And they reiterated those concerns Tuesday.

“We’re going broke,” said Councilman Dick Muri, R-Steilacoom. “We’re going to have to do more with less.”

Chairman Roger Bush, R-Graham, said the council actually increased Superior Court’s budget for next year while other criminal justice agencies will take a hit.

“It bothers me that (the judges) want more when everyone else is losing jobs,” Bush said.

McCarthy disputed the council’s contention that the Superior Court seat is a budget issue, noting the council did not actually cut the department’s funding.

“It appears the elimination of (the court seat) was really a punitive action, not a budget decision,” she said in a written statement after the meeting. “That does not justify reducing the public’s access to the courts.”

McCarthy and others also have raised a more fundamental objection. They say the council doesn’t have the authority to eliminate the Superior Court seat.

Doug Vanscoy, chief civil deputy in the county prosecuting attorney’s office, recently issued an opinion saying the Legislature created the seat, so only the Legislature could eliminate it. He also found the council’s use of a budget amendment was not the proper means to eliminate the post.

On Tuesday Orlando said the state attorney general soon will issue a similar opinion. He urged the council to avoid a lengthy court fight by upholding McCarthy’s veto.

“The last thing we need in Pierce County is more litigation,” the judge said.

Council members rejected those concerns. Councilman Shawn Bunney, R-Lake Tapps, said the council has done its homework and believes its actions are legal.

In vetoing the land-use measure last month, McCarthy cited two objections:

• A policy change affecting criteria for urban growth area expansions that McCarthy says would be inconsistent with state Growth Management Act requirements and hearings board decisions.

• A proposal to rezone 5.2 acres in the Mid-County area from “rural separator” to moderate-density single-family use. McCarthy said the move would violate a county policy requiring no net loss of rural separator – an area of low-density development between urban areas.

Council members said McCarthy never raised those objections as they were deliberating the land-use ordinance. Gelman said it didn’t make sense to hold up numerous other zoning changes – requested by local residents, businesses and others trying to improve their properties – because of the executive’s concerns.

“My office was not contacted by the executive with her concerns about these two amendments,” Gelman said.

McCarthy dismissed the criticism of her “perceived lack of communication.” She said the council’s decision to eliminate the court seat was “hastily approved without any notice to the public, let alone to the executive branch.

“In fact, the council failed to give the public advance notice of their actions today, once again taking up important policies with no meaningful public input,” the executive said.

Another confrontation may be brewing. The executive has not said whether she will veto the council’s 2010 budget. A decision is expected early next week.

Update: I just received this statement from the county executive’s office:

Today, the County Council exercised its right to override my vetoes of ordinances involving comprehensive plan amendments and the elimination of a Pierce County Superior Court position. I respect that right and would never question it.

However, I do challenge some of the Council’s assumptions and wish to set the record straight.

Regarding the comprehensive plan amendments, Council Member Bunney and Chairman Bush were incorrect when they said the Council had only two choices: override the veto or let it stand. Mr. Bunney and Mr. Bush omitted a third option that I presented, which is to send me a new ordinance that drops the two sections that I had concerns about. Simply stated, I am concerned about urban sprawl and the impact of business development in residential neighborhoods. I have no problem with the good work that was done on all of the other proposals in the comprehensive plan.

During today’s discussion about the comprehensive plan, Council members criticized me about a perceived lack of communication. In the very next breath, they voted to override my veto of the Superior Court ordinance – an ordinance they hastily approved without any notice to the public, let alone to the executive branch. In fact, the Council failed to give the public advance notice of their actions today, once again taking up important policies with no meaningful public input.

Regarding the ordinance that eliminates Superior Court Department 9, several council members framed it as a budget decision. Yet the Council did not actually cut the funding for Department 9. It appears the elimination of Department 9 was really a punitive action, not a budget decision. That does not justify reducing the public’s access to the courts.

The bottom line is the council does not have the legal authority to eliminate Department 9, which was created by the Legislature. Unfortunately, stakeholders stand ready to sue, which means Pierce County taxpayers will have to pay to defend this policy.


Update2: Here’s the council’s official take on today’s votes:

Nov. 24, 2009

The Pierce County Council took the rare step today of overriding – on bipartisan 7-0 votes – two of the County Executive’s vetoes of council legislation: one involving amendments to the county’s comprehensive land-use plan, and another eliminating a Superior Court judgeship.

Requiring a supermajority of at least five votes, the overrides automatically enact the proposals into law. Nullifying the executive’s comprehensive plan veto was the only option to save thousands of hours of work, Council Chair Roger Bush said.

“This was a thorough public process that was open to anyone, yet the executive waited until the last minute and derailed it with a single stroke of her pen,” Bush said. “Citizens as well as fire departments, churches, school districts, and cities and towns were victimized by this veto, so we had no choice but to take this action.”

Zoning and other changes are made to the county’s 1994 “comp” plan every two years based on suggestions and testimony from the executive, cities and towns, and county residents. The executive’s Oct. 28 veto was in response to just two of those proposed amendments, yet it invalidated the entire package and the months of public meetings that went into it.

The County Charter doesn’t allow the council to selectively remove the amendments objectionable to the executive. Further, if the council were to let the veto stand, the rest of the amendments couldn’t be reconsidered until the next comp-plan amendment cycle begins in 2011.

The complete legislation (2009-71s) contained 33 separate amendments to the county’s comprehensive plan that fell into four categories: changes to the county’s urban-growth boundary, text-only amendments, reclassification of zoning districts, and other changes to individual community plans. There were 22 public meetings conducted between March 24 – when review of the proposed amendments began – until the council’s final adoption of the package on Oct. 13.

Councilmember Barbara Gelman said key economic development projects – like a proposed multigenerational housing project on Garfield Street near Pacific Lutheran University – would be in jeopardy if they are delayed for two more years.

“The potential loss of economic development, property values, tax revenue and opportunities is much too great,” Gelman said. “With all due respect, Executive McCarthy, what were you thinking?”

Concerning the council’s second veto override of the day, Bush said that restoring the council’s elimination of former Judge Michael Hecht’s seat will force Superior Court to share the burden in a still-worsening budget environment.

The council dissolved the court’s Department 9 on Nov. 3 after Hecht announced his resignation following his felony conviction. The move reduces Pierce County’s Superior Court judge seats to 21 from the maximum of 24 allowed by state law and reallocates the department’s remaining $19,000 in 2009 funds to hire pro-tem judges for additional case help – help that was unavailable while Hecht was unable to carry out his duties.

The 2010 budget calls on all departments to make reductions, Councilmember Dick Muri said. Superior Court actually has more judges and commissioners than it did at the county’s high-water staffing mark in 2005, he said.

“The only other choice would be to lay off more sheriffs, prosecutors or close a pod in the jail,” Muri said. “Everybody should come to the plate and work together as a team, and Superior Court should be part of the solution.”

“I know some judges who are better at their golf games than they are at being a judge,” Councilmember Tim Farrell said. “We need everyone to pull their own weight.”

Councilmembers also said they felt they were being wrongly accused of worsening the Superior Court case backlog by eliminating one judicial seat. In fact, Bush said councilmembers have been “stonewalled” when they have tried to work on better ways to deliver justice services in Pierce County.

“We just need some simple benchmarks to put to rest the argument that one more judge would significantly affect the Superior Court backlog,” Councilmember Shawn Bunney said. “The judges need to focus more on the performance under the hood than on the number of seats on the bus.”

CONTACT: Brad Chatfield, Council Communications Manager, 253-798-6626

Find more Pierce County news at www.piercecountywa.gov <http://www.piercecountywa.gov>  or follow us at twitter.com/pierceco

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