PORT ANGELES — A Nov. 7 ballot measure advocated by water fluoridation foes is so fraught with questions that its legality should be decided by a court, the city’s top appointed official has recommended.
And that court should be outside Clallam County, City Manager Dan McKeen said.
The Our Water, Our Choice! ballot-measure petition calls for the city to change from a code city to a second-class city “in order to elect a full new city council.”
McKeen’s recommendation that a court should issue a declaratory judgment on the ballot-measure petition will be considered by city council members when they meet in regular session beginning at 6 p.m. Tuesday at City Hall, 321 E. Fifth St.
According to Black’s Law Dictionary, a declaratory judgment “declares the rights of the parties, or expresser, the opinion of the court on a question of law, without ordering anything to be done.”
The ballot measure would be based on the petition, which received more than 1,000 signatures — more than double the number required to get it on the Nov. 7 ballot.
Mayor Patrick Downie said Friday the council “generally” heeds the advice of the city manager but that he had not reviewed McKeen’s recommendation memo for the meeting.
“I would think the council would like to be decisive about this matter,” Downie said.
“I don’t know any reason why they couldn’t make a decision Tuesday night.”
McKeen said in his memo that council members should authorize him to seek the declaratory judgment on a key feature of the ballot-measure petition submitted by Our Water, Our Choice!.
He based his recommendation on an eight-page March 17 study by Seattle lawyer Hugh Spitzer that was commissioned by the city.
McKeen asks in his memo: “If citizens do elect to abandon code city status, will state law allow an election of a full new City Council as the petition states?”
The nonpartisan Municipal Research and Services Center has said a city has never changed from a code city to a second-class city, which Port Angeles was before 1971.
Spitzer said in his report that the Our Water, Our Choice! petition is “internally inconsistent” and does not follow state law.
He said a court would likely find the petition “defective” in its failure to follow procedures laid out under state law.
As a solution, Spitzer suggests that the city could outright declare the petition “deceptive and misleading” and refuse to place it on the ballot, although he admits that might lead to court action against the city.
The city also could remove mention of a future election, but that “would place an ambiguous ballot measure before the electorate” that, if approved, would still leave open the question of impact of reclassification on elections, Spitzer said.
“Because of the confusion engendered by the wording of the petition, it might be prudent for the city to consider initiating a declaratory judgment action for a definitive court ruling,” Spitzer said in his report.
“Given all the circumstances, in my view the declaratory judgment is the preferred course of action.
“However, if the council approves that approach, it should be done fairly soon so that the results of the declaratory judgment can be known well in advance of the next municipal general election.”
Spitzer was paid $3,885 on March 24 for his work, city Finance Department Administrative Analyst Nicole Blank said Friday.
In Spitzer’s list of options in his report, he does not recommend that a court outside Clallam County should consider the case.
Rather, McKeen suggests that in his memo.
In his council memo, under “funding,” he cites “fee to be paid for independent legal review, including research, $5,565.”
McKeen did not return several calls for comment Friday.
Our Water, Our Choice! lawyer Gerald Steel of Olympia said the status change would give citizens more power, such as the requirement that public comment be allowed at every council committee meeting and council meeting, and the council less.
Opponents of the petition say as a second-class city, city residents would lose home-rule powers, cede control to the state of Washington and already can comment at council committee and council meetings.
McKeen focused in his memo on whether a new council would have to be elected if voters choose to change their government to a second-class form of governance.
City Attorney Bill Bloor also had recommended seeking a declaratory judgment as “the only way to clarify the status of the petition and the outcome of a vote on it,” he said in a March 7 memo to McKeen.
“Unless this is done prior to the election, the citizens will be required to vote on a proposition without knowing whether it is valid and what the consequences would be.”
Steel said Friday he was opposed to seeking a declaratory judgment.
He said residents should first vote on the issue and have a court decide any outstanding issues after the vote.
Steel recalled a 2010 state Supreme Court decision that ruled fluoridation could not be challenged through a citizens initiative such as that proposed in 2006 by Our Water, Our Choice!
“Under this city council, they don’t want the citizens to vote on issues,” he said. “They want to maintain all the power for themselves.
“They do this by spending the citizens’, the taxpayers’ money going to court rather than just holding the vote.
“The council does everything it can to avoid hearing from the citizens.
“That’s why there should be an election of a new city council.”
Four members of the council will be elected at the Nov. 7 election to positions now held by Mayor Downie, Brad Collins, Dan Gase and Lee Whetham.
The newly elected members and the three current members would all have to stand for election in 2018 if voters were to approve the measure Nov. 7, at that same election, as it’s now worded.
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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at pgottlieb@peninsuladailynews.com.
