Image via Jason Neuberg on Flickr.
At a press conference that was officially about the city budget this morning (more on that in a separate post), Mayor Mike McGinn told reporters that City Attorney Pete Holmes' lawsuit to avert a vote overturning three agreements between the city and state on the deep-bore tunnel was illegitimate because Holmes "doesn't have a client" and isn't "representing the public's interests."
Holmes filed a lawsuit in King County Superior Court yesterday asserting that the three agreements were merely "administrative" actions to implement several previous policy votes in favor of the tunnel. Only legislative actions are subject to referendum.
McGinn said Holmes had failed to consult with him about his decision to sue to stop the vote from going forward, and intimated that the city council might have held an illegal secret meeting to approve Holmes' lawsuit.
"My understanding is, you get five of them together and that's a public meeting, and they're supposed to do things in public," McGinn said. "So when did they take the action? They still have to give notice. They still have to report the vote. So how and when did the council act?" Conversely, McGinn said, if the council didn't hold such a meeting, then Holmes was a rogue actor suing on behalf of the city without a client.
McGinn went so far as to compare Holmes' action to a lawsuit by state attorney general Rob McKenna to stop health-care reform, which Holmes has challenged in court on the grounds that McKenna does not have a client. "Who's the city attorney's client? And then, how is he different from McKenna, if he's not acting with a client? Does the council approve of this? Are they trying to block the public from voting?"
Asked whether Holmes' actions were tantamount to suing without any client a la AG McKenna, city council president Richard Conlin responded, "That's hysterical." He said that although he talked to Holmes personally on behalf of the council, Holmes is an independently elected official who acts on the city's behalf "all the time" without a direct request from the council or mayor.
"Pete can act on his own on behalf of the city's interests," Conlin said.
Holmes' spokeswoman Kimberly Mills said this afternoon that Holmes "routinely" initiates litigation without consulting with the council or the mayor. "Often he does consult with the client. [In this case], he talked with president Conlin and individual members of the council. But there is no charter requirement that there be a vote by the council initiate litigation. Any implication that the council acted in secret without advance public notice is wrong."
Mills adds: "The mayor and council have been separately advised about the probable nonreferability of this ordinance for months now, so it should not have come as a surprise to the mayor that Pete believes the case law dictates that this would not be legislative."
As Josh mentioned earlier, when Conlin signed a letter signing off on a preliminary environmental study on the tunnel (McGinn said Conlin's approval of the study violated the city charter, which McGinn claimed delegated the authority to sign such agreements to him or his transportation department director), McGinn claimed a "constitutional crisis." At the time, McGinn said: "We are a nation of laws, and the city charter is our constitution. It doesn't work that if you really, really love a project then you get to just ignore the law."
So, I asked McGinn: If the referendum actually is a violation of state law, isn't it the city attorney's responsibility to find that out (even if McGinn, and the people, really, really hate the tunnel)? Or should the "will of the people" prevail even if the referendum isn't legal?
McGinn dodged: "I think the public would like a vote on this projects, and I've said that since they're taking the risk, they deserve the opportunity to vote on it. I think that a public vote is appropriate."
But what, I asked, if the public got an opportunity to vote, overturned the three agreements, and then lost in court? Would McGinn find that outcome better than hashing it out in court now, before a costly and politically charged election?
"That's one scenario," McGinn said, "but another scenario is for the city council to refer something to the voters that they can vote on. ... This lawsuit could be short-circuited in an instant if the council would put something on the ballot."
McGinn also lamented that he has no legal representation in the dispute over the agreements, because Holmes is acting counter to the beliefs of the mayor's office. "I can't ask the city attorney for legal advice ... so who's my attorney now? How do I get legal advice from somebody who's making their own decisions?"
However, Holmes spokeswoman Mills says McGinn has the authority to request confidential legal advice from any attorney in the city attorney's government affairs division. Under a long-established policy Mills calls a "screen" and others call the "Chinese Wall" of separation, that attorney (or attorneys) would be required to keep their advice to McGinn confidential. Additionally, McGinn has his own legal counsel in his office.
Holmes hopes to get a ruling on his lawsuit as quickly as possible. One potential wrinkle: The King County Superior Court judge assigned to the case, Laura Gene Middaugh, is married to state Sen. Adam Kline, a potential conflict of interest. Tunnel opponents could ask Middaugh to recuse herself, which would represent a temporary setback to the case; Mills says the city attorney's office has "no problem" with Middaugh deciding the case.
Finally, McGinn said Holmes' action put the agreements between the state and city (which affirm that the city will cooperate with the state on the state's use of city right-of-way to build the tunnel) "on hold."
"We don't actually have agreements with the state to move forward," McGinn said. Asked whether he was concerned about the cost of delay, which the state puts at $54 million plus $20 million a month, McGinn responded, "The fact that [the Washington State Department of Transportation] has said that even talking about the issue will cause cost overruns demonstrates the real fragility of the project [and] the risk that the citizens face from this project."
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