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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 with 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:

FOR IMMEDIATE RELEASE
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

Leave a comment Comments → 21
  1. bigmeatgrinder says:

    Oh boy, here we go again. B!tch fight between the politico’s……nothing ever gets nastier or looks more asinine!

  2. headedsouth says:

    I will be so glad when Councilmembers like Bunney and Gelman will be gone. Farrell is the biggest waste of time and his Council seat should not even exists considering he does not even have any unincorporated parts of the County. From what I hear, he wants to run against Washem so he remain on the County teat. For leading an alternative lifestyle, Farrell is really judgemental and that is sad.

  3. BecauseICARE says:

    What a surprise that Executive McCarthy is trying to to ‘fight’ for judges rights. Her husband is a judge. Conflict of interest, anyone?

    As far as legalities of the Council’s actions are concerned, there are several staff that serve as legal counsel TO the council, and CM Bunney is a bar member. This is just petty complaining by the Pierce Bar Association. Executive McCarthy needs to check her mouth when it comes to spouting off about so-called ‘illegal’ county actions, when the Charter CLEARLY does not allow such changes to be made (though she claims the county COULD have had an alleged 3rd option of eliminating the parts SHE found disagreeable)

    McCarthy’s office is known for its lack of response to both the Council and the General Public. For as many Mini-Exec’s as she has running around, and as mush as she pays them in this floundering economy, a little communication should not be so much to ask. I have no doubt that Ms. Gelman’s office received no communication from Pat.

    The Council was 100% right, and showed outstanding unity with their 7-0 veto override. Its good to know that even though the voters clearly made a mistake in electing McCarthy, we at least have the council to help us not get completely derailed.

  4. norse1943 says:

    I wonder if the Council has had the common sense to look at the potential increases in jail costs because of the delays in hearing cases caused by having one less judge. I doubt it. I am sure that they will be sued and ultimately cost more than the meager short term savings accrued by eliminating one judge. Perhaps they should look at cutting their own staff.

  5. BecauseICARE says:

    Norse1943- Its my understanding that the county has hired a commissioner to hear such cases, but I may be incorrect. Perhaps Mr. Wickert can look into that and post his findings?

  6. S_Emerson says:

    BecauseICARE –

    Can you point me to the section in the Charter which, you say, “CLEARLY does not allow such changes to be made”? I’m not challenging your statement, it’s just that I can’t find it in the Charter.

    Thanks.

  7. kittytrouble says:

    What were you thinking quote from Councilwomen Gilman The County excuteive
    has been and still listening to the Public unlike the council Since Jan of this year I have been in my Council person’s office and on the phone Ms. Gelman she did know about the problems with the comp plan. There was countless public groups,
    communities and state org. that for a year informed this council of the problem with the comp plan. Council chose to take care of their special interest and forget the general public I met with the Exc. many times about the comp plan problems and she was aware as the council was aware money wasted on a plan that will be protested

  8. S_Emerson says:

    I have to wonder why the Council didn’t listen to the citizens who testified before them during committee meetings on
    08-31 and 09/21, and the
    council meeting of
    10/13
    , saying that if they approved the package as it was, they would be violating ordinances which they themselves created.

    Now they say the Charter doesn’t allow them to line-item veto. The Executive thinks otherwise. I see no reference at all to the specific rules on this in the teeny tiny document that is our County Charter.

    Had they done the right thing to begin with, we wouldn’t be in this mess now.

  9. summit98446 says:

    The best County Council money can buy.

  10. bigmeatgrinder says:

    As stated above…here we go again. Another b!tch fight.
    Wish we had some politicians that could actually get something done!

  11. BecauseICARE says:

    Stacy,

    I am referring to Charter C-6 Section 2.50

    (4) No ordinance shall be amended unless the new ordinance sets forth each amended section or subsection at full length.
    (5) At least 13 days shall pass between the introduction and the final passage of every ordinance, except emergency ordinances. Every ordinance shall be introduced in its entirety in writing.
    (6) Every ordinance which passes the Council must be presented to the
    Executive. If approved by the Executive, the ordinance shall be signed by the Executive and become law as provided in this Section. If not approved by the Executive, the entire ordinance shall be vetoed and returned with the Executive’s written objections, which shall be entered in the journal of Council proceedings. If, within 30 days after being returned to the Council, the ordinance receives the affirmative vote of two-thirds
    of the entire Council it shall become law. If the Executive does not either sign or veto n ordinance within ten days, Saturdays, Sundays, and holidays excepted, after presentation of the ordinance by the Council, it shall become law without the Executive’s signature.

    If I am misunderstanding, which I do not believe I am , McCarthy would have to actually read the charter and file her objections, withdraw and resubmit her ‘veto’ (its not the council’s burden to write her a new ordinance to her liking) Pat obviously didn’t know what she needed to do to function in her job, which absolutely baffles me. I cant wait to vote her out in 2012. I’d even vote for The Traveler over her.

    I’ll put in a call tomorrow to the councils legal eagles tomorrow just to make sure, and I will post what I discover.

  12. ldozy1234 says:

    maybe I missed it but until todays article, I never saw that either of the veto items were on the Council Agenda today for public input or even public awareness.

  13. S_Emerson says:

    ldozy1234 – I just checked and the last email I received from Pierce County on 2009-71s was November 4th. I received nothing at all on 2009-105. As usual, they’re not fully utilizing an expensive notification system we’re paying for.

    BecauseICare – Thanks. I appreciate the info and your opinion, and look very forward to your update.

  14. bluegirl39 says:

    Maybe I missed it, but I haven’t seen much data used by either – any? – side in this debate. What metrics can we use to evaluate individual judges and our bench as a whole? Rate of being overturned on appeal? Cases per judge? Time to judgement for specific charges?

    We ought to be able to benchmark – sorry, it just slipped out – our court against others and see if we need fewer – or more – judges.

    A few grown-ups would come in handy about now.

  15. I sure did call this one right. To be fair, anyone with an IQ higher than their shoe size could have done it.

    Speaking of IQ, doesn’t anyone in the government know how to control their emotions? They take turns making public statements and the Trib takes turns printing them. Of course, maybe it’s the Trib’s fault for printing them in the first place.

    Nonetheless, Doug Vanscoy should be retired since it’s too much to expect him to get fired. He simply is a political hack with a Bar card. For the record, political hack is an acceptable method of earning a living – pretending to be something else while politically hacking is not.

    Doug Vanscoy’s job is to defend the county and to provide legal advice to the county. He has no authority to pick a PART of the county and represent it against another PART of the county.

    Not only is his behavior a violation of his job duties and his legal duties but it is arguably a violation of Bar ethics rules as well.

    Vanscoy should go. If he doesn’t, the council should de-fund his position and vote to disapprove any request by anybody for the money to start a legal fight over any of this.

    If anybody wants to sue over any of this, let them fund it out of their own pockets.

  16. ldozy1234 says:

    Or at least out of their depts budget.
    I agree. Let who ever brings the suit have to fund the Attorneys out of that depts. operating budget ( with no increases to cover this cost.) Maybe if each dept faced losing funding they’d get it together and start talking.
    On another note- I really think residents ought to be able to”fine” the Council when they do not post notification and adequate information on their agendas. While I still have faith in a few on the Council.. it seems with this comprehensive plan changes that those leaving the Council are either punishing the voters for denying them term limit increases or beginning to pay off some favors before their out of office. There were two applications that were not appropriate and should and could have been removed without penalizing those who had done their paperwork correctly. When you continue to make poor decisions like this, don’t expect a vote if you decide to run for another office……………………..hint, hint!

  17. johnesherman says:

    Since Pierce County is in complete control of Superior Court judges; as a result, when State of Washington Legislative Session is attempting to cut-a-few costs; it follows, State of Washington just eliminate all Washington State funds paid to help support Pierce County Superior Court Judge positions.

    Pierce County wants total control of justice system; consequently give Pierce County the total expense!

  18. Jupiter25 says:

    What a crock. Judge James Orlando has no business in talking about what is illegal. In the 1990’s, while still a commissioner, he was conducting a child custody hearing in which I had a statement from my wife’s (now ex-) siblings that she was an alcoholic, had other problems and that my children would be best served by living with me. Orlando chose to ignore that and other evidence and put my children back into her house. They both bawled when I told them and cried many times whenever I had to take them to their mother’s house. “Judge” Orlando didn’t care about any of the evidence. He has no business talking about illegalities.

  19. Jupiter25 says:

    Good for the Pierce County council. they are eliminating the position for budget reasons, but I also feel it should be eliminated in order to preclude the Governor appointing another judge to the Superior Court. Seems as if there is always a way found to keep the electorate from voting in a judge. Instead a way is found to allow the “good old boys/gals network” to control things.

  20. BecauseICARE says:

    Hey Stacey (and anyone else)

    I did write to Jeff Cox Wednesday, but haven’t heard back yet. I’ll let you know when I do.

    Thanks!!

  21. S_Emerson says:

    BecauseICARE – Thanks for trying.

    When you get the answers, perhaps you would email me in addition to posting here (or wherever on the TNT). I don’t want to miss it.

    Stacy Emerson
    stacy.emerson@gmail.com

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