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Friday, September 24, 2010

Did Holmes's Office Give Bad Legal Advice?

Posted by on Fri, Sep 24, 2010 at 4:33 PM

The question of the day for City Attorney Pete Holmes—as this gripping episode of As City Hall Turns revolves toward twilight—is whether or not Seattle City Council president Richard Conlin violated state law and the city charter when he signed off on the state's impact study for the deep-bore tunnel. That's the accusation. The law appears clear that such an action is reserved for the executive branch of the city's government (the mayor and his departments), not the legislative branch. After all, Nancy Pelosi can't sign federal contracts as if she's Barack Obama, even though she is the head of Congress. Holmes's office said yesterday and all day today that he would answer that question.

But Holmes, in issuing a statement a few minutes ago, ducks that issue completely. Instead Holmes issued this... (I don't even know what to call it) thing:

The overriding question for the City of Seattle right now is whether the City should retain its co-lead status on the environmental impact statement that must precede construction of a deep bore tunnel to replace the Alaskan Way Viaduct, City Attorney Pete Holmes said Friday.

If the City forfeits its co-lead status, it could be hampered in assessing and responding to citizens’ comments on the environmental impacts of the project, and funding for the Seattle Department of Transportation possibly could be jeopardized.

In an attempt to preserve the status quo on the project, Council President Richard Conlin signed the draft EIS late Thursday because the state and federal government said they would recognize his signature as sufficient for those entities to move forward and issue the draft document to the public. Additional questions may arise as to whether the City Council can direct SDOT to retain co-lead status through legislative action.

The City Attorney’s Office is engaging all parties in discussions to find a constructive way forward. Attorneys are researching legal issues as they arise in the course of these negotiations.

No, Mr. Holmes, a vague statement about political priorities for a nebulous "City of Seattle" (the mayor, the council, the city attorney, the departments, the people?) is not what anybody wants from the city's lawyer. The unanswered question—the answer we all have been waiting on FROM YOU before this riveting episode draws to a close—is whether Conlin's a scofflaw or McGinn's full of dookie.

Like what does the law say: The pertinent parts of the city charter? The state law on the Alaskan Way Viaduct? The Seattle Municipal Code section on preparing an EIS?

For the love of god and all that is holy, Pete Homey, TELL US WHAT IT MEANS!

Holmes won't answer calls or email today, but we know this: His office provided the legal advice to Conlin yesterday. What did his attorneys tell Conlin? He hasn't told us. So maybe there is no scofflaw and no dookie; just bad legal advice? Was the city attorney office's opinion simply that "the state and federal government said they would recognize his signature as sufficient," as his statement says today? If so, how does Holmes reconcile that with the law? Has he gone clam, hoping nobody would notice? If we don't get more info soon, the City Attorney's office looks terrible (and Conlin doesn't look good, either).

As Holmes's own website says—following up on a campaign pledge last year—"Peter Holmes believes that providing public legal opinions on certain issues will provide significant public benefit." This appears to be a time that a legal opinion would provide great benefit, either to clear his name or make the referee call on Conlin.

Will Holmes tell us today? Or we we find out next time on As City Hall Turns?

Stay tuned.

 

Comments (16) RSS

Oldest First Unregistered On Registered On Add a comment
gloomy gus 1
Conlin and McGinn both needed rush opinions and acted best they could with what they could get. I don't blame Pete a bit for going slow and steady after today's dramedy.

It's not like somebody's gonna die because he couldn't figure it all out before the Friday news cycle closed.
Posted by gloomy gus on September 24, 2010 at 4:50 PM
Will in Seattle 2
His "office"?

Or a rogue tunnel-loving lawyer in his office?

There's a difference.
Posted by Will in Seattle http://www.facebook.com/WillSeattle on September 24, 2010 at 4:51 PM
Will in Seattle 3
@1 is correct. Sometimes, rushed decisions lead to bad things.

Like overwhelming debt for all Seattle citizens for a tunnel we can't afford that doesn't do anything good for our city.
Posted by Will in Seattle http://www.facebook.com/WillSeattle on September 24, 2010 at 4:53 PM
SchmuckyTheCat 4
McGinn wouldn't sign it because "he hadn't read it".

The state and feds wanted anybody to sign in order to 'move forward' even if it wasn't legally binding.

Conlin signed.

It's just a delaying tactic. Who cares. McGinn should have time to read it over the weekend, Conlin can remove his signature, and the Mayor can sign it. If the Mayor doesn't sign, he's playing games to try and thwart the tunnel.
Posted by SchmuckyTheCat on September 24, 2010 at 6:21 PM
Supreme Ruler Of The Universe 5

One thing for certain I've learned in the last 27 years.

When the people of Washington make their will known to elected leaders, they follow their wishes to the nth degree.

http://www.washington.edu/burkemuseum/ea…

Well, maybe not the "nth" degree. I mean, a really high degree. Like 3rd. Or...well, none all all really.

http://www.originalmmc.com/images/Alvy/H…
Posted by Supreme Ruler Of The Universe http://www.you-read-it-here-first.com on September 24, 2010 at 6:21 PM
6
This ? boils down to "Does the Mayor have a pocket veto option?"

if he does he can ignore the Council as he pleases. If he does not he is negligent in his duties and that is grounds for removal.

This really isn't about the EIS.
Posted by Zander on September 24, 2010 at 6:29 PM
7
The DBT is a piece of dookie wrapped in a roll of Mercer West dookie and covered with Alaskan Way boulevard redesign dookie sprinkles.
Posted by Wells on September 24, 2010 at 9:55 PM
8
Oh Dom - really. This is the best you can do? you are talking about the Council president signing a document that, let face it, the Mayor knew was being prepared for months, had 16 different staff people working on, and he didn't know what the end game was??? You are a journalist. You should do your research. Stop sitting in the Mayor's lap and do your job, not his.
Posted by mcginns lover on September 24, 2010 at 10:14 PM
9
jebus, can't someone or some organization who objected to the EIS file a lawsuit to settle this question. Come on epeople, time to lawyer up
Posted by jackseattle on September 24, 2010 at 10:46 PM
10
O.k. here's what I see in the Seattle City Charter, if anyone cares:

First of all, correction, Mr. Holden: The Mayor does not preside over departments (plural). This is not D.C. According to the Charter's descriptions, Seattle's government is more tribal than tri-partate. Seattle's Mayor only heads the Executive Department, and may, in an emergency, take control of the Police Department. There are several other departments in the Charter (Finance, Libraries, etc.) that each have heads. True enough, the Mayor is certainly stated to have the power to control remove "subordinate officers." (Article V, Section 2). However that's different in some important ways from a "department head"--mostly in that the Mayor is unable to both appoint and remove without Council say-so. That which sort of pushes them out of the "subordinate" category. Rather it's the Council who seems to have more power to rearrange departments etc. as well as appoint officers if the Mayor's too lazy to do it (Article III, Section 2; Article V, Sections 3 & 4).

Now about the $&*&%#& Tunnel of Death... I think Holmes may well have been on acid when he wrote whatever that is! I'm a little surprised they released that. He seems to be bringing up the legalities of the relationship between the City and State, or the Council and the Depts of Transportation, but that wasn't the question. So it likely really means, "Look at that bird!"

Anyway, Article IV, Section 14 of the Charter grants the Legislative Department (a.k.a., City Council) power to control vacation/improvement of bridges viaducts and tunnels. From this text, I don't think there was a problem with Conlin signing off on an Environmental Impact Statement (EIS) on a proposed project--but it's unclear what exactly is supposed to happen here beyond that. According to the text, the Council isn't allowed to say "Just build it! Money is no object!" Article IV, Section 21 prohibits the Council from putting us into unspecified debt "or obligation of any kind." So if that's what's happening, that shouldn't be happening.

To answer someone's question, the Charter does not allow a 'pocket veto'. Just a veto. If a Seattle Mayor sits on an ordinance from the Council for too long it's considered a done deal (Article IV, Section 12). As for McGinn's duty here--presuming these little nebulous pre-agreements and resolutions make up a valid municipal contract, the Mayor has a duty to make good on it. However, to my understanding, we're not there yet. If that's so, there's no duty for the Mayor, therefore no violation of duty (doing what the Council wants is not a duty)--which is one of only a few reasons the Mayor can be removed. (See Article V, Sections 7 & 10) Of course there's always "moral turpitude" but I really don't think it applies here... to McGinn, anyway. :P

Oh, but folks! Look! A possible loophole, but I'm not sure... Article IV, Section 1 seems to suggest that the vote we held on the tunnel should be binding. Anyone remember that? Stands to reason that a public vote AGAINST a tunnel option (as well as replacement) should not just have been political masturbation. Nope, it would be much more satisfying if the legislative power as invested in the citizens of Seattle would have prevailed. Among the sectons on initiative/referendum (Article IV, Sections 1.A-1.K), I see no provision for a mere "advisory vote." It's either an ordinance or not. The Council would then still have the power to reject or accept it, as-is, or pass an entirely different ordinance on the same subject. Problem is I don't remember it going down like that... If I had money and time I would definitely pay more attention to that.

Totally unrelated... I notice that contracts for publication of the "city official newpaper" (official announcements) are supposed to be granted through a bidding process "from the daily newspapers of general circulation in the City at least six days a week." (Article VII, Section 3) Can anyone recall any more than one paper that even does that anymore? I miss the P-I. Pax.

Christal Wood, J.D.
More...
Posted by The Mad Mayoress on September 24, 2010 at 10:48 PM
The Mad Mayoress 11
O.k. here's what I see in the Seattle City Charter, if anyone cares:

First of all, correction, Mr. Holden: The Mayor does not preside over departments (plural). This is not D.C. According to the Charter's descriptions, Seattle's government is more tribal than tri-partate. Seattle's Mayor only heads the Executive Department, and may, in an emergency, take control of the Police Department. There are several other departments in the Charter (Finance, Libraries, etc.) that each have heads. True enough, the Mayor is certainly stated to have the power to control remove "subordinate officers." (Article V, Section 2). However that's different in some important ways from a "department head"--mostly in that the Mayor is unable to both appoint and remove without Council say-so. That which sort of pushes them out of the "subordinate" category. Rather it's the Council who seems to have more power to rearrange departments etc. as well as appoint officers if the Mayor's too lazy to do it (Article III, Section 2; Article V, Sections 3 & 4).

Now about the $&*&%#& Tunnel of Death... I think Holmes may well have been on acid when he wrote whatever that is! I'm a little surprised they released that. He seems to be bringing up the legalities of the relationship between the City and State, or the Council and the Depts of Transportation, but that wasn't the question. So it likely really means, "Look at that bird!"

Anyway, Article IV, Section 14 of the Charter grants the Legislative Department (a.k.a., City Council) power to control vacation/improvement of bridges viaducts and tunnels. From this text, I don't think there was a problem with Conlin signing off on an Environmental Impact Statement (EIS) on a proposed project--but it's unclear what exactly is supposed to happen here beyond that. According to the text, the Council isn't allowed to say "Just build it! Money is no object!" Article IV, Section 21 prohibits the Council from putting us into unspecified debt "or obligation of any kind." So if that's what's happening, that shouldn't be happening.

To answer someone's question, the Charter does not allow a 'pocket veto'. Just a veto. If a Seattle Mayor sits on an ordinance from the Council for too long it's considered a done deal (Article IV, Section 12). As for McGinn's duty here--presuming these little nebulous pre-agreements and resolutions make up a valid municipal contract, the Mayor has a duty to make good on it. However, to my understanding, we're not there yet. If that's so, there's no duty for the Mayor, therefore no violation of duty (doing what the Council wants is not a duty)--which is one of only a few reasons the Mayor can be removed. (See Article V, Sections 7 & 10) Of course there's always "moral turpitude" but I really don't think it applies here... to McGinn, anyway. :P

Oh, but folks! Look! A possible loophole, but I'm not sure... Article IV, Section 1 seems to suggest that the vote we held on the tunnel should be binding. Anyone remember that? Stands to reason that a public vote AGAINST a tunnel option (as well as replacement) should not just have been political masturbation. Nope, it would be much more satisfying if the legislative power as invested in the citizens of Seattle would have prevailed. Among the sectons on initiative/referendum (Article IV, Sections 1.A-1.K), I see no provision for a mere "advisory vote." It's either an ordinance or not. The Council would then still have the power to reject or accept it, as-is, or pass an entirely different ordinance on the same subject. Problem is I don't remember it going down like that... If I had money and time I would definitely pay more attention to that.

Totally unrelated... I notice that contracts for publication of the "city official newpaper" (official announcements) are supposed to be granted through a bidding process "from the daily newspapers of general circulation in the City at least six days a week." (Article VII, Section 3) Can anyone recall any more than one paper that even does that anymore? I miss the P-I. Pax.

Christal Wood, J.D.
More...
Posted by The Mad Mayoress on September 24, 2010 at 10:52 PM
The Mad Mayoress 12
[Aw, damn... O.k., I registered so non-members can view more easily.] Here's what I see in the Seattle City Charter, if anyone cares:

First of all, correction, Mr. Holden: The Mayor does not preside over departments (plural). This is not D.C. According to the Charter's descriptions, Seattle's government is more tribal than tri-partate. Seattle's Mayor only heads the Executive Department, and may, in an emergency, take control of the Police Department. There are several other departments in the Charter (Finance, Libraries, etc.) that each have heads. True enough, the Mayor is certainly stated to have the power to control remove "subordinate officers." (Article V, Section 2). However that's different in some important ways from a "department head"--mostly in that the Mayor is unable to both appoint and remove without Council say-so. That which sort of pushes them out of the "subordinate" category. Rather it's the Council who seems to have more power to rearrange departments etc. as well as appoint officers if the Mayor's too lazy to do it (Article III, Section 2; Article V, Sections 3 & 4).

Now about the $&*&%#& Tunnel of Death... I think Holmes may well have been on acid when he wrote whatever that is! I'm a little surprised they released that. He seems to be bringing up the legalities of the relationship between the City and State, or the Council and the Depts of Transportation, but that wasn't the question. So it likely really means, "Look at that bird!"

Anyway, Article IV, Section 14 of the Charter grants the Legislative Department (a.k.a., City Council) power to control vacation/improvement of bridges viaducts and tunnels. From this text, I don't think there was a problem with Conlin signing off on an Environmental Impact Statement (EIS) on a proposed project--but it's unclear what exactly is supposed to happen here beyond that. According to the text, the Council isn't allowed to say "Just build it! Money is no object!" Article IV, Section 21 prohibits the Council from putting us into unspecified debt "or obligation of any kind." So if that's what's happening, that shouldn't be happening.

To answer someone's question, the Charter does not allow a 'pocket veto'. Just a veto. If a Seattle Mayor sits on an ordinance from the Council for too long it's considered a done deal (Article IV, Section 12). As for McGinn's duty here--presuming these little nebulous pre-agreements and resolutions make up a valid municipal contract, the Mayor has a duty to make good on it. However, to my understanding, we're not there yet. If that's so, there's no duty for the Mayor, therefore no violation of duty (doing what the Council wants is not a duty)--which is one of only a few reasons the Mayor can be removed. (See Article V, Sections 7 & 10) Of course there's always "moral turpitude" but I really don't think it applies here... to McGinn, anyway. :P

Oh, but folks! Look! A possible loophole, but I'm not sure... Article IV, Section 1 seems to suggest that the vote we held on the tunnel should be binding. Anyone remember that? Stands to reason that a public vote AGAINST a tunnel option (as well as replacement) should not just have been political masturbation. Nope, it would be much more satisfying if the legislative power as invested in the citizens of Seattle would have prevailed. Among the sectons on initiative/referendum (Article IV, Sections 1.A-1.K), I see no provision for a mere "advisory vote." It's either an ordinance or not. The Council would then still have the power to reject or accept it, as-is, or pass an entirely different ordinance on the same subject. Problem is I don't remember it going down like that... If I had money and time I would definitely pay more attention to that.

Totally unrelated... I notice that contracts for publication of the "city official newpaper" (official announcements) are supposed to be granted through a bidding process "from the daily newspapers of general circulation in the City at least six days a week." (Article VII, Section 3) Can anyone recall any more than one paper that even does that anymore? I miss the P-I. Pax.

Christal Wood, J.D.
More...
Posted by The Mad Mayoress on September 24, 2010 at 11:09 PM
13
If Pete Holmes wasn't so busy trying to create a political machine - his idea of a reorg is to get rid of highly respected and seasons attys in his office and bring on political newbies and appointees who don't know what they're doing. Now since he has sooo much time on his hands, he's meddling in political races by recruiting Municipal Court candidates to run against incumbents he wants taken out, intentionally sending out inaccurate misleading memos designed to cover his woefully inadequate ass. He should be spending more time learning how to do his job and just maybe voters will allow him to extend his employment when election time comes around.
Posted by bustinballs on September 25, 2010 at 8:09 AM
14
Sounds like it's time to hire outside legal counsel if the city atty doesn't have the intellectual bandwith or capacity to fulfill his role and duty to our elected city officials.
Posted by Shoot-the-messenger on September 25, 2010 at 8:26 AM
15
2013 is when Pete comes up for his job evaluation. Between now and 2013, there will be a long list of unintended consequences that will document his short-lived legacy.
Posted by Shoot-the-messenger on September 25, 2010 at 8:40 AM
gloomy gus 16
13, 14, 15, I am sorry he laid you off.
Posted by gloomy gus on September 25, 2010 at 11:34 AM

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