Port attempts to kill initiative for two new seats

By On

The Port of Bellingham's attempts at sabotaging the expansion to five commissioners began the moment initiative backers asked the port to adopt their petition. Commissioner Scott Walker and port attorney Frank Chmelik immediately began trying to kill the initiative.

There is no legal basis for changing the wording of the initiative submitted by the petitioners. The guiding case law is a Washington Supreme Court ruling on a 2000 initiative: Amalgamated Transit Union Local 587 v. State. The state Supreme Court reaffirmed their broad interpretation of the “single subject rule” on May 31, 2012 when they struck down a challenge to the recent liquor initiative: Wash. Ass'n for Substance Abuse & Violence Prevention v. State. Both rulings clarify the “single subject rule” that Walker and Chmelik are abusing, ignoring and twisting.

The “single subject rule” says an initiative may accomplish two things if they are reasonably related. Port commissioners and port districts are reasonably related. The single question on the initiative petition was: shall we increase the number of port commissioners from three to five and make the new commissioners at-large? This would enable the entire county to nominate port candidates for the new positions. It was simple, direct and economical. The scallywags controlling Whatcom County’s least transparent taxing authority want to make it complicated, convoluted and expensive.

The initiative language submitted by Whatcom County citizens was approved by the county auditor’s office and reviewed by the prosecuting attorney’s office. It is a single ballot item and is fully in compliance with the law. So, splitting the propositions into two ballot items is a shyster’s trick that flies in the face of up-to-date case law.

Last Thursday, the port published the agenda for their next meeting. The port now has two agenda items for two separate ballot propositions. At the last meeting, they had language for one ballot proposition. Two ballot propositions are a clumsy attempt to kill the initiative. The last time this shabby trick was used in Everett, a first term commissioner got booted out of office once his constituents got a taste of his two-faced mendacity. Two linked initiatives usually will fail because both have to pass at the same election to succeed. A single initiative is hard to pass, two together are virtually impossible.

Port Resolution 1310 is what the initiative petitioners asked the port to do: increase the number of commissioners to five. The port adopted the initiative and immediately commissioner Scott Walker and port attorney Frank Chmelik began blowing smoke and trying to complicate the initiative.

Chmelik has pretended to read aloud from the Revised Code of Washington while lying about what was printed on the page in the law book. You can listen to the port’s recording and hear it yourself. Reading aloud is usually learned in grade school.

Walker and Chmelik will undoubtedly make up more lies and attempt to twist the meaning of the recent Supreme Court ruling. They have until the next meeting to come up with some justification for turning a single initiative question into two separate ballot issues.

The second port resolution should die at the upcoming port meeting. Walker will move the resolution be adopted. Both Jim Jorgensen and Mike McAuley have said they prefer redistricting into five new port districts. Redistricting is expensive and time-consuming but it can be done before candidates file for the 2013 primary.

The port’s first proposition:

PROPOSITION NO. 1
PORT OF BELLINGHAM, WASHINGTON
NUMBER OF PORT COMMISSIONERS
The Commissioners of the Port of Bellingham adopted Resolution No. 1310, concerning a proposition to increase the number of Port Commissioners. This proposition would increase the number of Commissioners of the Port District from three (3) Commissioners to five (5) Commissioners. Should this proposition be approved?
Yes….......................... [ ]
No……………………… [ ]

There will be more smoke and mirrors until the August 7, 2012 cutoff date. Walker and Chmelik will undoubtedly keep squirming and twisting until time runs out. There are clear deadlines this year and next; they are carved in stone.

Redistricting for five new districts or making the new commissioners at large comes down to interpreting a single sub-article of the Washington Revised Code: Chapter 53.12.010(2). There appears to be no case law to guide port redistricting versus at-large, nor does the RCW clear up the murky language. However, the law is quite clear that stalling will not delay things any longer than a year.

If voters approve increasing the number of commission this November, there shall be new port commissioners on the 2013 November ballot.

Attached Files

About Paul deArmond

Past Citizen Journalist • Member since May 29, 2009

Paul de Armond was a writer, reporter and research analyst. He is the recipient of the Whatcom Human Rights Task Force 2001 Human Rights Award. In the 1990s, he and Jay [...]

Comments by Readers

John Servais

Jun 17, 2012

Need to make a correction here.  It does not disturb the thrust of your article. 

Port Resolution 1310 is not exactly what the initiative petition stated.  1310 leaves out the second component of the petition proposal, that the two additional commissioners will be at-large.  1310 is silent on how the two additional commissioners will be allotted - whether by redistricting the entire county into 5 districts or by keeping the 3 districts and making the 2 new commissioners at-large offices.

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Paul deArmond

Jun 18, 2012

John, thanks for the correction.  I assumed the readers have all seen the petition.

For those who have not, here’s the ballot complete title:

  Should the number of Port Commissioners be increased from three (3) to five (5) by adding two at-large positions?

This language was approved as to form by the auditor’s office in consultation with the prosecutor’s office.

It would stand up all the way to the State Supreme Court.

So starting an internal debate among the port commissioners over at-large or redistricting was bad faith.

It also usurped the citizen’s sovereign power of initiative as set forth in the state constitution.

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Michael McAuley

Jun 18, 2012

Some clarifications:

Resolution 1310 is the new resolution The original resolution, which was called into question, did not have signatures nor was it numbered.  1310 is not the same as the initial resolution.

“Two linked initiatives usually will fail because both have to pass at the same election to succeed.”  Res. 1310 - increase to five.  Res. 1311 - if 5 then 2 at large.  Regarding Resolution 1311 - 1310 does not need 1311 to succeed, but 1311 is useless if 1310 fails in November.

Also, I keep hearing folks say Royce B approved the language.  On the record, at our meeting to discuss this, he would not say he approved the language.  So, while some folks may have heard this privately - conversations I am not privy to nor is there a public record of the conversation - the official position of the attorneys representing the County on this matter is what he said in our public meeting.  That meeting was the only time I have heard from any of the county attorneys so I must operate from that official statement.  If Royce says otherwise then fine, but as of this writing I have only heard his statements at our meeting.

Further, to quote Paul, “The single question on the initiative petition was: shall we increase the number of port commissioners from three to five and make the new commissioners at-large?”  Your own words show 2 items:  increase and apportionment.  It’s a this and that question.  Even if rewritten to simply say, “shall we add 2 commissioners at large” there still seems to be two issues, increase and apportionment. 

These aren’t my opinions. Some of the above is just the facts but the legal background is from 3 places and is not my opinion or best guess, it comes from legitimate legal consutlation - the Snohomish County attorneys who worked with Everett several years ago, PoB’s attorneys and my own private attorney with a public law background.  All are or will be on record and all agree.

Now some of you might disagree with these legal opinions, as Paul does, but if any other legal scholars or legal professionals want to weigh in please do so.  Review RCW 53.12, 53.16 and 29A.76.010 and others linked.

Thanks to all.

Mike M
360-201-7199
.(JavaScript must be enabled to view this email address)

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Doug Starcher

Jun 18, 2012

Michael, thanks for weighing in. Did your legal councils review include the ATU587 Supreme Court decision that Paul referenced? It is counter intuitive to learn that laws do NOT mean what a plain reading of them indicates, laws mean what a court SAYS they mean. Below is an excerpt.

Kueckelhan, 69 Wash.2d at 403, 418 P.2d 443 (quoting Gruen, 35 Wash.2d at 22, 211 P.2d 651).   The requirement of rational unity has also been explained as follows:

[A constitutional single-subject prohibition] does not by restricting the contents of an ‘act’ to one subject, contemplate a metaphysical singleness of idea or thing, but rather that there must be some rational unity between the matters embraced in the act, the unity being found in the general purpose of the act and the practical problems of efficient administration.   It is hardly necessary to suggest that matters which ordinarily would not be thought to have any common features or characteristics might, for purposes of legislative treatment, be grouped together and treated as one subject.   For purposes of legislation, ‘subjects’ are not absolute existences to be discovered by some sort of a priori reasoning, but are the result of classification for convenience of treatment and for greater effectiveness in attaining the general purpose of the particular legislative act․

The original language was “reviewed” by the Whatcom County Prosecutor, the Auditor.

As you well know, I think 2 additional Commissioners “At Large” is the best choice, that said if 2 more “By District” is the only thing that will get 2 votes to save my summer…......I’ll take it.

Thanks

Doug

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Michael McAuley

Jun 18, 2012

OK,OK!  I give up!  :-)

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Tip Johnson

Jun 18, 2012

Oh, OH!  Not yet you don’t!

Mike, you say you are making clarifications, but it looks like you have been drinking the Kool-Aid.

Yes, according to law, we submitted our petition to the Auditor who is required by law to forward it to the Prosecutor who is charged, by law, with formulating an “exact ballot title” for use on the petition.  He and the Auditor sent that to us in writing, so I’m not sure what smoke you are blowing, Mike.

Just what do you think you heard from Royce?  All he said, under pressure, was that there can be problems with more than one subject, that you are not his client and that he couldn’t advise you.  You certainly didn’t hear any advice from him and there was absolutely no “official statement”.  Why don’t you ask him?

Your ridiculous parroting of Walker’s strategy is bad form for anyone with an interest in a political career.  Two subjects is the flimsiest facade I have seen in a long time.  Read the WSSC decision Paul cites.  Just read it - all the way through.  I know.  It’s even longer than my posts!

The controversial liquor initiative (I-1183) was challenged on the exact same grounds.  Yet, between the times you approved and illegally rescinded the petitioner’s resolution, the WSSC found that this complex initiative did not violate the rule despite containing subjects as diverse as closing state liquor stores, selling their assets, licensing private parties to sell and distribute spirits; setting license fees based on sales; regulating licensees; and changing regulation for wine distribution. The ruling makes it abundantly clear that Buckingham’s language for the petition would withstand any such challenge.

Your embarrassingly tortuous analysis of two subjects is laughable.  The statutes are specifically about expanding the commission. They authorize expansion by either two at-large or through redistricting.  To say that asking for expansion by two at-large is two different subjects asserts that the purpose of a statute is a different subject than the methods it authorizes.  That’s ridiculous and you shouldn’t continue repeating that argument.  It makes it look like you cannot distinguish between different logical levels of the same subject.

I request that you share the opinions you are digesting.  I would furthermore like you to disclose where you got them.  Who pointed you toward them?  Who handed them to you?  I urge you to ask them if they have read the WSSC case and what they think.  Report on that.  I bet they will be backing away and your story would be changing fast.

You have been suckered.  Everett built this template for wrecking a citizen initiative and Walker and Chmelik are using it straight out of the box.  You have been stampeded into doing most of Walker’s work for him.  That’s pathetic.

But be careful because the ruling has some other things to say, too.  I strongly caution against meddling in elections, rigging ballots, logrolling your issue and trampling on citizen sovereignty.  Under the pretense of addressing a patently false threat, you have created real problems for the proposition and ultimately yourself.  It’s the kind of work that first sticks to you, and then sticks with you.  You will get to hear all about it between now and November, and probably for years.

I will put three minutes toward the problems you have created tomorrow, but I get the sense you are fast becoming an expert and are done learning.

 

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Anne-Marie Faiola

Jun 19, 2012

Tip, you cannot possibly be serious. REALLY!? Truly, you’re implying that the one friendly commissioner on our current Port commission is “meddling in elections, rigging ballots and trampling on citizen sovereignty.”? And this is all because he doesn’t agree with your interpretation of the law?

I can’t speak for Commissioner McAuley but I’m betting he is ruing the day that he agreed to champion the cause for 5 Port Commissioners. All it’s gotten him is grief from all sides (you can bet the Port Attorney isn’t happy with him, you can bet that the other two Commissioners aren’t happy with him and it’s clear that his former supporters aren’t thrilled with him because he won’t do things the way they want).

And to think, all Commissioner McAuley needed to do was not bring forward a motion or to vote on it and this all would have been over with - and the people behind the initiative would have been spending every weekend, all summer, trying to gather enough signatures to put the initiative on the ballot.

But hey, if the 2 part initiative doesn’t pass, there’s always next summer.

Edited to add: For what it’s worth, I don’t support the districts and so most likely will not supporting the ballot measure if it goes forward as a district based initiative. I do support respectful, spirited discourse - only one of which is displayed in the previous comment.

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Tip Johnson

Jun 19, 2012

I am more than possibly serious.

I say Walker and Chmelik are rigging, meddling, logrolling and trampling.  I think it is too bad that Mike is helping them and I caution him not to get it on himself.

I certainly don’t agree with Mike’s interpretation of the law. His position is indefensible.  That is why I am browbeating him to do more than parrot Chmelik’s tripe.

Also, perhaps too many view elective office as a place to get happy with everyone. But some still hope for representatives that will champion the public’s interest.  That means NOT sneaking things through meetings, NOT betraying their constituents intent and NOT doing all those other bad things they’re doing to this issue.

This is classic bad government and will be long remembered.

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John Watts

Jun 19, 2012

I agree with Anne-Marie on the swarm of attacks on McGolly.
Mike is our best hope at POB, so why not at least treat him well?
This type of vicious response doesn’t help any one, including NW Citizen’s professed goal of inviting wider community dialogue.

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Paul deArmond

Jun 19, 2012

As I have written previously, the Everett log-rolling was designed to fail.  The only reason it was on the ballot was bad faith fulfillment of campaign promises.

Here’s what I said earlier:

“In 2010, Port of Everett passed a single initiative in June, changed it to two initiatives in July, buried at the bottom of the ballot, it failed in November.  It drew no public attention or interest, but had the interesting inversion that the second item on the ballot drew more votes for adding at large seats than the first ballot item for adding two commissioners.”

So the Port of Everett generated no case law, never was reviewed by the courts and was designed to fail.  Who, pray tell, suggested that these shysters were competent to advise the port?  It’s serious question and I’d like to know that person’s name.

The port can go to the coterminous Whatcom county prosecutor for an opinion (which they have not done and Royce didn’t give legal advice) or they may go the State Attorney General’s office for advice.

I know from past corruption investigations that not seeking advice from jurisdictional peers (Whatcom) or superiors (State) is usually a sign of an institutions mouthpiece having guilty knowledge of past and present illegal conduct.

I agree with Mike’s conclusion about 1310.  He is silent about 1311 and that’s the way it should be.

For further clarification of both the single subject and subject in title rulings by the Supreme Court see the discussion of the single subject rule and subject in title rule:

149 Wn.2d 622, Citizens for Responsible Wildlife Mgmt. v. State

http://www.mrsc.org/mc/courts/supreme/149wn2d/149wn2d0622.htm

 

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Tip Johnson

Jun 19, 2012

Vicious?  Give me a break, John. I am getting sick of lock-step liberals who think attacking a person’s ideas is the same as attacking the person.

Besides, you’re doing what you accuse me of doing - except without any substance.  I recommend addressing the ideas instead.

Political Primer #1: We are supposed to beat up these ideas to assure that we end up using good, strong ones.  We are supposed to bludgeon bad ideas into oblivion.  That’s how progress is won, not by swallowing less than satisfying results.

If Mike wants some kudos, he can start producing acceptable results. I’ll be the first to thank him.

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Anne-Marie Faiola

Jun 19, 2012

For the record, I’m pretty sure that accusing elected officials of rigging elections goes well past attacking an idea and goes straight to attacking a person.

You and I have vastly different opinions of what makes for an effective process to sway public officials (and public opinion). To each his own.

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Tip Johnson

Jun 19, 2012

Except when they are rigging the election!

 

A veritable wealth of anecdotal amusement to be had with that subject.  It could be interesting for us to someday thoughtfully discuss political style and then rack up our examples of community achievement.

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Paul deArmond

Jun 19, 2012

To quote from Millers Crossing:

“I don’t say I told you so and I don’t like people who do…  but I told you so.”

Port Resolution 1310 just passed and 1311 failed for lack of a second. 

http://www.youtube.com/watch?v=hkJIcFMN_pc

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John Servais

Jun 20, 2012

John Watts, you seem in another world.  So you think that by my allowing citizens to post under their own names what they think, that I am NOT fostering community dialog?  Perhaps you think that by censoring comments here then I would further community dialog? 

You refer to “swarm of attacks” on Mike McAuley.  Are you referring to Tip’s comments?  Is one person a swarm?  Do you wish me to muzzle Tip?  And that is how I should run NWCitizen? 

You are welcome to post here, John.  As is Tip.  And others who will use their real names.  NWCitizen once disbarred a commenter for going over the line.  I later regretted that, bought the guy a beer, and have not barred any commenter since.

Keep commenting, John. Expect others to post their criticisms of your comments, as I am doing.  To my thinking, that is community dialog.

One last point on something that always baffles me.  If you do not like vicious comments from others, then don’t post your own - as you do against Tip.  And to say that some comment “doesn’t help anyone” is the language of those who would ban freedom of speech.  This website exists for community dialog - where any comment appears with the real name of the person posting.

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Anne-Marie Faiola

Jun 20, 2012

Maybe I missed another comment but Mr. Watt’s comments were tame in comparison to Tip’s comments re: Commissioner McAuley.

There is a way to disagree and still be measured and rational at the same time. This, in my opinion, is “community dialog”. Name calling, accusations based on opinion and feelings of betrayal, reflect badly on everyone involved in a conversation and do not gain supporters, friends or people willing to rally when the time is right.

Tip, you mentioned earlier that you’d like to thoughtfully discuss our political styles and rack up our examples of community achievement. As you have a good 35 years on me for community activism, I’d say you have a running head start. =)

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John Watts

Jun 20, 2012

As almighty Admin, Mr Servais is always able to attack, muzzle dismiss any and all messengers.

My sole comment on this post stands as expressed earlier in this blog:
http://bellinghamstertalk.blogspot.com/2007/12/flame-warrior-archetypes-part-2.html

For those not wishing to reference this blog, here’s the gist:
“A Swarm hive is almost impossible to detect. When a hapless victim stumbles on a forum that houses a Swarm and disturbs it with a message that runs counter to its prevailing ideology, the Swarm will erupt without warning. Taken one at a time the irrelevant, often mindless attacks by individuals in a Swarm can be crushed or easily brushed aside, but because of the sheer volume of the assault even the strongest Warriors must yield. WARNING: Only those who are highly skilled in Swarm management techniques should attempt to wade into a Swarm hive. Protective clothing will not prevent a Warrior from getting a few stings.”

As always, if you think the shoe fits, by all means try it on.

You decide whether your swarm consists of honey bees or wasps.

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John Servais

Jun 20, 2012

As Admin, I’ve no more ability to attack than any other commenter.  I do not muzzle - and ironically, one of the complaints in this thread is that I do not muzzle.  I do not dismiss - no comments have been deleted from here in years.  As noted above, the one that was deleted long ago - and soon reposted with a beer for the commenter. 

Mr. Watts very sad accusation of swarming is completely without merit.  There are over 200 commenters registered on this website.  To illustrate his point, he links back to his blog to a 2007 post which he lifted from John Dvorak - and on Mr Watts blog, no comments are allowed. 

My effort and money have gone towards trying to provide a local website where all can comment with equal rights.  There is no hidden agenda here.

We allow vigorous commenting.  Harsh criticism of elected officials is well within the accepted political discourse in the United States.  Their acts, omissions, statements, and mistakes are fair game.  Accusations based on opinions and feelings of betrayal are well within the norm.  This is not a social circle and we are not here to make people feel good about themselves.  We are here to expose lousy practices by our elected officials and to seek better local government. 

Anyone is free to start their own blog and set their own rules.  If you do not like what we have here then don’t come here.  Duh.  If you do come here then expect that each registered commenter can speak out.  The very best encouragement to appropriate commenting is that our own names appear below our posts here. 

And - you might compare the comments here for civility against what you will find on other local websites where fictitious names are used.  Fictitious names increase the number of comments, draw more readers to check out the malicious and outrageous statements, and thus increase the advertising revenue. 

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Anne-Marie Faiola

Jun 20, 2012

Totally agree there. I hate the fake name posting on other sites. It allows for easy lies, slander, mischaracterization and harmful innuendo. I don’t understand why you need to sign your name and provide a phone number to get a Letter to the Editor published in print yet you can get something “published” online without any oversight. So, I applaud that you make people sign up with their actual names to comment.

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Paul deArmond

Jun 21, 2012

“Who’s the warpaint for?”
http://www.youtube.com/watch?v=Wq69cbi5no4

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