Ten days ago, the Seattle City Council insisted that a bill up for a vote this afternoon is different from other ordinances. Unlike all those laws, this one won't be subject to referendum that puts it up to a public vote, council spokeswoman Laura Lockard insisted, because it is "an administrative act."

If Lockard is right, then the controversial bill—to approve two utility agreements and grant right of way to the state for the deep-bore tunnel—can proceed, unfettered by critics of the $4.2 billion project. A council committee voted a couple hours ago to send it to the full council (the vote was 8-1, O'Brien dissenting).

But today the mayor's office calls bollocks. Carl Marquardt, counsel to Mayor Mike McGinn, cites a section of the City Charter that states "citizens may file a referendum on 'any ordinance passed by the Mayor and City Council.'" You can see the relevant portion in the charter's Article IV, Section 1.H. And no doubt, this bill before the council would be called an "ordinance." "Council doesn't have the authority to say that an ordinance is not subject to public referendum," Marquardt says.

It's not just an academic question.

"We are looking at a referendum very actively," says Tim Harris, a board member of the Move Seattle Smarter campaign, which is already running a nonbinding initiative on the tunnel. A referendum on the tunnel contracts this fall, if possible, may have the legal heft to suspend or kill the tunnel project. "It poses a much more direct challenge to the council's decision to push forward on this hell-or-high-water than our initiative does. It is very attractive to me to rise to the occasion to pull it off." In terms of labor, there's a trade-off in abandoning the initiative strategy. A referendum has a shorter, more difficult timeframe to gather signatures (one month instead of six), but fewer signatures are required (8 percent instead of 10 percent of the number of votes in the past mayoral election).

However, the mayor's office doesn't get into specifics when countering the council's legal claim. Lockard, in explaining her reasoning, said that the legislature approved the tunnel by law in 2009 and the council followed suit with an ordinance later that same year. "Any action following the adopted policy is considered an administrative act, not subject to referendum," she said.

Who's right?

Seattle City Attorney Pete Holmes maybe the only impartial arbiter. His spokeswoman, Kimberly Mills, says she will provide a statement with some analysis later today.