Parliamentarian: Councilmembers’ minority opinion marsh letter was ‘improper’

Newly-elected Council President Tom Mesaros thanks 2016 President Kristiana Johnson for her service.

After electing a new president — Councilmember Tom Mesaros was chosen unanimously — and pro tem (Councilmember Mike Nelson), the Edmonds City Council Tuesday night addressed some unfinished business from 2016:  Whether it was appropriate for three councilmembers to send a “minority opinion” letter to the Washington State Department of Ecology supporting a 65-foot setback for the Edmonds Marsh.

Ann Griffin McFarlane, an expert in parliamentary procedure and Robert’s Rules of Order, was invited to offer her assessment on the Oct. 25 letter, which was written by Councilmembers Mesaros, Neil Tibbott and Dave Teitzel. The letter reiterated the opinion of the three councilmembers, which they had expressed during several meetings on the issue, that a 65-foot setback is in the long run better for the marsh ecology than the wider 125-foot setback approved by the council majority Sept. 28.

McFarlane’s take: The letter written by the three was “improper” and appeared to be an attempt to influence the Department of Ecology to side with the minority opinion.

The letter was sent to Ecology Department Director Maia D. Bellon, who will make the final decision on the buffer width as part of Ecology’s approval of the city’s Shoreline Master Program. In it, the councilmembers said that while they respected the council majority vote regarding the wider buffer, “we think it also fair to let you know that the city council decision was divided on a 3-4 vote.”

McFarlane’s appearance Tuesday night had been arranged late last year by then-Council President Kristiana Johnson, who had been strongly critical of the minority opinion letter, stating it had damaged councilmembers’ ability to work together. After McFarlane provided councilmembers with a brief history on the role of parliamentary procedure and its role ensuring a strong democracy, she went on to describe the importance of councilmembers respecting the majority opinion, even if they disagree with it, and “not try to prevent the decision from being carried out.”

“There’s a difference between informing and influencing,” McFarlane said, “and it seems clear to me as a parliamentarian that the letter that was sent on Oct. 25 was intended to influence the Department of Ecology so that it would not accept the council’s decision but would instead implement the minority opinion that was articulated in the letter.”

Immediately after the minority opinion letter was released to the media, the four councilmembers who voted Sept. 28 to support the wider 125-foot setback — Johnson, Nelson and fellow Councilmembers Diane Buckshnis and Adrienne Fraley-Monillas — sent an email response describing the letter as “unprecedented and divisive.”

On Tuesday night, in response to McFarlane’s assessment, the minority opinion councilmembers reiterated their intent was to simply reinforce to the Ecology Department the opinions they expressed in public during numerous council meetings that a narrower buffer would do a better job of protecting the marsh and the surrounding environment.

“Nothing in that letter was different than was said publicly,” Teitzel said. “So from my view, that letter was a reminder to Ecology of what was said. We acknowledged in the letter that we respected the majority and we continue to respect the majority.”

Mesaros added that the councilmembers’ actions followed an historical precedent at both the national and state level to have “minority reports” that offer a different point of view. “We felt it necessary to express our opinion,” he said. “And I personally feel that that’s in the traditions of democracy. We represent another voice.”

And Tibbott said he disagreed with McFarlane’s assessment that the council’s intention was to influence Ecology, stating instead that the goal was to provide information.

In response, McFarlane said that she and the three councilmembers can “agree to disagree” but her opinion stands. Writing the letter “was different from simply summarizing what had been said,” she said. As for supplying a minority report, “there is a difference in parliamentary procedure between a committee sending its report to the authorizing body and the legislative body itself sending a report to someone else,” she said.

Finally, McFarlane addressed Tibbott’s statement regarding influencing vs. informing by noting that the minority opinion letter followed a letter written a few days earlier by Edmonds Mayor Dave Earling that also was “attempting to influence Ecology not to support what the council had recommended.” (McFarlane noted later she had agreed to weigh in only on the council’s actions, rather than the mayor’s, because the mayor has veto authority and plays a different role in the process.)

“You all wrote in your letter, we stand with the mayor’s letter; we agree with the mayor’s letter,” McFarlane said. “As a parliamentarian when I read both of those letters I said to myself, these appear to be an attempt to influence the decision against what the council had recommended and that is improper. That’s just the bottom line.”

Fraley-Monillas noted that as a rule, it would be “counterproductive” for councilmembers to send out letters expressing a different opinion “every time you were on the losing end of a vote.

“To be productive sometimes we have to give and take,” she said. “We don’t always agree with the decisions but we have to stand by them. That’s what a council does.”

McFarlane said it would be tempting for councilmembers to cite the First Amendment in  protecting freedom of speech. “But the First Amendment is not the last word in local government,” she said. “When a citizen accepts service on an elected body, he or she gives up some First Amendment rights.”

“There are considerations of duty pertaining to the work of the council that have greater force in a specific context than the First Amendment,” she said. “As a parliamentarian I believe that the minority has a duty to agree to these limits in order to allow our democratic system to function.”

Councilmember Mike Nelson took a conciliatory tone, stating: “I think we’ve all learned form the experience both good things and bad things and I don’t think any of us would like to repeat them. I think we all would like to move forward.”

Mesaros added that he believed that the angst the council had about the minority opinion letter “was very short-lived.”

But Johnson said she disagreed, noting that the Ecology Department has not yet issued a decision on the marsh buffers and the council doesn’t know what type of influence the minority opinion letter might have. “There has been no acknowledgment that what was done was wrong, there’s been no retraction, there’s been no censure and I hear a lot of defensive arguments,” Johnson said.

McFarlane concluded the presentation by stating that she heard the council “is committed to not letting this situation happen again and they are also committed to the work of the council in the future.”

Edmonds Mayor Dave Earling listens as Dale Hoggins thanks the city for its support during his time on the Cemetery Board.

Also at Tuesday’s meeting, the council:

– Listened to a proclamation from Mayor Dave Earling honoring Dale Hoggins for his 20 years of service to the Edmonds Cemetery Board and Hoggins’ long-time efforts organizing and emceeing the city’s annual Memorial Day ceremony.

– In a proclamation read by newly-installed Council President Mesaros, thanked 2016 Council President Kristiana Johnson for her year of service.

– Approved for movement to next week’s consent agenda two items: New job descriptions for city positions approved as part of the 2017 budget and a reclassification of funds allocated for the Frances Anderson Center Bandshell Replacement Project.

— Story and photos by Teresa Wippel

 

  1. The Supreme Court publishes dissenting opinions. I see no reason why we as citizens shouldn’t know where each council member stands on each issue.

  2. Rich – I am with you. How is it OK for one and not the other. It seems to me that any dissenting position is an attempt to influence both those that disagree and those who agree with the opinion. I think I need a civics lesson on this issue.

  3. While I won’t weigh in one way or the other on the Councilmembers’ letter to DOE, dissenting opinions are a regular part of how the Supreme Court operates, but not necessarily something we see from the legislative branches of government.

    For a parallel situation from recent history, consider when in March 2015, 47 members of the US House of Representatives sent a letter to the leaders of Iran articulating their strong non-support of President Obama’s efforts to negotiate a nuclear weapons agreement with those same leaders. This led many to wonder if this was an attempt by these legislators to influence the negotiations, and if this constitutes a violation of the law (the Logan Act, which dates from 1799). For more background, here’s CNN’s coverage from last March: https://www.cnn.com/2015/03/10/politics/tom-cotton-iran-letter-logan-act/

  4. The letter speaking to the position of dissent certainly seems to be set off a nit-picky waste of time. Providing complete information stands tall about silly”procedure” in my opinion.

  5. The Supreme Court’s decisions are final. A dissenting opinion does not change the decision but merely discribes how its opinions were made.
    In the case of the council, its decision was meant to represent the will of the council. By sending the letter the minority members tried to undermine the council’s decision. The minority members sent the letter without the participation or knowledge of the majority members, in my mind undermining their claim of simply providing already public information

  6. Thank you, Mr. Borgeson for explaining what Ms. McFarlane highlighted, suggested (difference between inform and influence) and opined. I would suggest everyone watch her presentation as the history of Parliamentary procedures AND democracy is quite fascinating. I agree with Mr. McFarlane’s opinion on this matter (the minority’s actions were improper as they were attempting to influence a decision; and as she further explained a censure could have occurred). I know many will dispute this as noted by the minority members’ opinion in the meeting. So we will all have to agree to disagree.

    In regards to the conflict of interest, I don’t know of anything other than one Council Member is noted in the Port’s minutes regarding this issue and/or another Council Member wasn’t even present when the vote was taken thus placing the tie on an amendment onto the Mayor’s shoulders and then the letter was sent without his vote on record. I do not believe either constitutes a conflict of interest as I am unfamiliar with the Port details.

    While some think this is a waste of time or much ado about nothing, please listen to former Council President Johnson’s response to this issue. To many, it was a big deal.

    Thank you, Teresa, for the very thorough explanation of this very informative and perhaps controversial topic.

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