Opinion
Separation of Powers is Not So Neatly Defined
Mayor McGinn refuses to allow head of the Seattle Department of Transportation (SDOT) to sign the Supplemental Environmental Impact Statement (SEIS) for the Viaduct replacement project on behalf of the City by the deadline imposed by the State. city council president Richard Conlin signs instead. Mayor McGinn, a lawyer, claims a constitutional crisis alleging Conlin’s action violates the separation of powers within the city charter (the equivalent to a constitution for the city of Seattle). Council member Sally Bagshaw, a lawyer, begs to differ with the Mayor. The City Attorney’s office may have advised Conlin that he could sign. The City Attorney is mum, still considering the issue.
To begin to unwind this puzzle, let us start with what was supposed to happen and why. To inform decision-makers about whether and how to proceed on a major project, the lead agency on a project is supposed to prepare an EIS. The EIS process is established under the State Environmental Policy Act (SEPA) a state law that requires public agencies to consider environmental consequences in considering projects.
In 2009, for the viaduct replacement project, the State Department of Transportation, the “lead” agency, drafted a SEIS that looks principally at the bored tunnel alternative and presented it for review and approval by the City of Seattle.
The City Charter does not speak as to how the City participates in the SEPA process. The city has enacted an ordinance, however, setting forth the procedures for the city’s participation. Under that ordinance, the head of the SDOT would have been the responsible City official for signing off on an EIS related to a transportation project such as the viaduct replacement. Seattle Municipal Code (SMC) Ch. 25.05. The relevant catch here is that the head of SDOT by ordinance acts “under the direction of the Mayor.” SMC Ch. 3.12.030. Thus, Mayor McGinn was properly exercising his statutory authority in directing SDOT not to sign the Second SEIS for the viaduct last Thursday.
Conlin, however, did not have authority to sign the Second SEIS. There is no existing authority under the city laws for the city council president to decide to substitute himself for the head of SDOT as the responsible official to sign off on a SEIS or an EIS or on any environmental document under SEPA. So Mayor McGinn was right in criticizing Conlin’s actions.
Rather than simply make the point that Conlin had no statutory authority, Mayor McGinn raised the stakes arguing that Conlin had no authority under the City Charter—a constitutional level claim—and brandishing the well known (but not always understood) concept of separation of powers. McGinn is essentially arguing that the Legislative branch of government (the City Council here) is limited to making policy decisions and that Executive branch of government (the Mayor and administrative branches of city government) has exclusive administrative authority to carry out the policy decisions. Signing off on the SEIS, according to Mayor McGinn, is an administrative task that that exclusively can be carried out by him and his departments. But Separation of Powers is not so neatly defined.
For example, the City Charter vests the legislative power of the city in the mayor and the city council. Chart Art IV. Sec. 1. And as far as the executive power goes, the charter merely provides: “The Mayor shall see that the laws of the City are enforced, and shall direct and control all subordinate officers of the City, . . . and shall maintain peace and order in the City. . . . The Mayor shall perform such other duties and exercise such other authority as may be prescribed by law.” Chart Art V. Sec. 2. This is hardly the exclusive authority McGinn claims.
Indeed, the city council often passes administrative resolutions that deal with matters that are not legislative in nature. (The difference is important as the city council’s legislative acts are subject to the referendum, while it administrative acts are not.) As the Washington Supreme Court noted: “this doctrine does not require that the branches of government be hermetically sealed.” City of Spokane v. County of Spokane, 158 Wash.2d 661 (2006). So there are no bright lines as Mayor McGinn suggests. The likely reason that McGuin raised the stakes to a constitutional level was to suggest that the city council was powerless to fix the problem caused by Conlin’s acts. I think that McGinn here is reaching too far.
The city council likely has the power to fix the problem here. The council may pass an ordinance directing, for example, that the city council is responsible for the city’s SEPA compliance on the viaduct replacement project and designating the city council president on behalf of the Council as the responsible official to act on behalf of the city. At most, the situation is one of “overlapping” responsibility permissible under the separation of powers doctrine. In can be true that SDOT had authority to sign and that under an appropriate ordinance, the city council president can also be granted authority to sign. In response to the question whether a legislative act can retroactively cure a defect in authority, the Washington Supreme Court has stated: “The Legislature has power to enact a curative or validating statute retroactive in its application, as long as it does not thereby impair the obligation of contract or otherwise violate any constitutional inhibition.” McKenzie v. Mukilteo Water Dist., 4 Wash.2d 103 (1940).
But there is an additional issue beyond the authority question. One should ask what was Conlin purporting to do by signing the Second SEIS. Was he representing that he had reviewed and determined the Second EIS to be complete and in conformance with SEPA requirements? Had he even read the entire document or relied on the advice of a city official who had? Signing without taking steps to assure the Second SEIS complied with SEPA rule would not be compliance with SEPA. This is a problem that cannot be simply fixed by the City Council’s passage of an Ordinance. For Conlin’s signature to be meaningful as a responsible official in the SEPA process, he must have complied with SEPA requirements.
And beyond that, there is the question of what does it matter anyway? Did the City need to sign the Second SEIS? The interlocal agreement between the city and the State assigning responsibility for the viaduct replacement project assigns the State Department of Transportation the “implementation” responsibility for completing the environmental review process for the bored tunnel alternative. So if the city does not sign or signs invalidly, does it matter? The State DOT has signed and attested to the Second SEIS’ compliance with SEPA.
To begin to unwind this puzzle, let us start with what was supposed to happen and why. To inform decision-makers about whether and how to proceed on a major project, the lead agency on a project is supposed to prepare an EIS. The EIS process is established under the State Environmental Policy Act (SEPA) a state law that requires public agencies to consider environmental consequences in considering projects.
In 2009, for the viaduct replacement project, the State Department of Transportation, the “lead” agency, drafted a SEIS that looks principally at the bored tunnel alternative and presented it for review and approval by the City of Seattle.
The City Charter does not speak as to how the City participates in the SEPA process. The city has enacted an ordinance, however, setting forth the procedures for the city’s participation. Under that ordinance, the head of the SDOT would have been the responsible City official for signing off on an EIS related to a transportation project such as the viaduct replacement. Seattle Municipal Code (SMC) Ch. 25.05. The relevant catch here is that the head of SDOT by ordinance acts “under the direction of the Mayor.” SMC Ch. 3.12.030. Thus, Mayor McGinn was properly exercising his statutory authority in directing SDOT not to sign the Second SEIS for the viaduct last Thursday.
Conlin, however, did not have authority to sign the Second SEIS. There is no existing authority under the city laws for the city council president to decide to substitute himself for the head of SDOT as the responsible official to sign off on a SEIS or an EIS or on any environmental document under SEPA. So Mayor McGinn was right in criticizing Conlin’s actions.
Rather than simply make the point that Conlin had no statutory authority, Mayor McGinn raised the stakes arguing that Conlin had no authority under the City Charter—a constitutional level claim—and brandishing the well known (but not always understood) concept of separation of powers. McGinn is essentially arguing that the Legislative branch of government (the City Council here) is limited to making policy decisions and that Executive branch of government (the Mayor and administrative branches of city government) has exclusive administrative authority to carry out the policy decisions. Signing off on the SEIS, according to Mayor McGinn, is an administrative task that that exclusively can be carried out by him and his departments. But Separation of Powers is not so neatly defined.
For example, the City Charter vests the legislative power of the city in the mayor and the city council. Chart Art IV. Sec. 1. And as far as the executive power goes, the charter merely provides: “The Mayor shall see that the laws of the City are enforced, and shall direct and control all subordinate officers of the City, . . . and shall maintain peace and order in the City. . . . The Mayor shall perform such other duties and exercise such other authority as may be prescribed by law.” Chart Art V. Sec. 2. This is hardly the exclusive authority McGinn claims.
Indeed, the city council often passes administrative resolutions that deal with matters that are not legislative in nature. (The difference is important as the city council’s legislative acts are subject to the referendum, while it administrative acts are not.) As the Washington Supreme Court noted: “this doctrine does not require that the branches of government be hermetically sealed.” City of Spokane v. County of Spokane, 158 Wash.2d 661 (2006). So there are no bright lines as Mayor McGinn suggests. The likely reason that McGuin raised the stakes to a constitutional level was to suggest that the city council was powerless to fix the problem caused by Conlin’s acts. I think that McGinn here is reaching too far.
The city council likely has the power to fix the problem here. The council may pass an ordinance directing, for example, that the city council is responsible for the city’s SEPA compliance on the viaduct replacement project and designating the city council president on behalf of the Council as the responsible official to act on behalf of the city. At most, the situation is one of “overlapping” responsibility permissible under the separation of powers doctrine. In can be true that SDOT had authority to sign and that under an appropriate ordinance, the city council president can also be granted authority to sign. In response to the question whether a legislative act can retroactively cure a defect in authority, the Washington Supreme Court has stated: “The Legislature has power to enact a curative or validating statute retroactive in its application, as long as it does not thereby impair the obligation of contract or otherwise violate any constitutional inhibition.” McKenzie v. Mukilteo Water Dist., 4 Wash.2d 103 (1940).
But there is an additional issue beyond the authority question. One should ask what was Conlin purporting to do by signing the Second SEIS. Was he representing that he had reviewed and determined the Second EIS to be complete and in conformance with SEPA requirements? Had he even read the entire document or relied on the advice of a city official who had? Signing without taking steps to assure the Second SEIS complied with SEPA rule would not be compliance with SEPA. This is a problem that cannot be simply fixed by the City Council’s passage of an Ordinance. For Conlin’s signature to be meaningful as a responsible official in the SEPA process, he must have complied with SEPA requirements.
And beyond that, there is the question of what does it matter anyway? Did the City need to sign the Second SEIS? The interlocal agreement between the city and the State assigning responsibility for the viaduct replacement project assigns the State Department of Transportation the “implementation” responsibility for completing the environmental review process for the bored tunnel alternative. So if the city does not sign or signs invalidly, does it matter? The State DOT has signed and attested to the Second SEIS’ compliance with SEPA.
