Letter to the editor – Ordinances 2511 and 2516 provide window into errors found in Edmonds City Code 

Editor:

On July 16, 1985, Edmonds City Council passed Ordinance 2511. Ordinance 2511 relates to:

-Publication of and posting of ordinances and notices by the city;

-Designation of an official newspaper;

-Designation of three (3) official posting places for the posting of notices;

-Provision for the publication and effective dates of ordinances and,

-Directs the city cerk to obtain affidavits of publication for city ordinances and to file the same in the official ordinance book.

At the time Ordinance 2511 was adopted, it was correct in stating that:

“The effective date of ordinances published pursuant to this section shall be five days after the date of publication, unless otherwise provided by statute, except that an ordinance passed by a majority plus one of the whole membership of the city council, designated therein as a public emergency ordinance necessary for the protection of the public health, public safety, public property or the public peace, may be made effective upon adoption, but such ordinance may not levy taxes, grant, renew or extend a franchise or authorize the borrowing of money.”

This part of Ordinance 2511 is consistent with RCW 35A.12.130, a state law in place since 1967.

Twenty-nine (29) days after Ordinance 2511 was effective as law in Edmonds, City council voted to adopt the power of initiative and referendum via Ordinance 2516.

Ordinance 2516 states the following:

“The City of Edmonds hereby adopts the power of initiative and referendum for the qualified electors of the City as provided pursuant to RCW 35A.11.080 through 35A.11.100. Such powers are to be exercised as provided in the above referenced sections of the Revised Code of Washington as they now exist or may be amended from time to time and said sections are hereby incorporated in full by this reference.”

RCW 35A.11.090 was adopted in 1973 and is still current law in Washington State:

RCW 35A.11.090

Initiative and referendum—Effective date of ordinances—Exceptions.

Ordinances of noncharter code cities the qualified electors of which have elected to exercise the powers of initiative and referendum shall not go into effect before thirty days from the time of final passage and are subject to referendum during the interim except:

(1) Ordinances initiated by petition;

(2) Ordinances necessary for immediate preservation of public peace, health, and safety or for the support of city government and its existing public institutions which contain a statement of urgency and are passed by unanimous vote of the council;

(3) Ordinances providing for local improvement districts;

(4) Ordinances appropriating money;

(5) Ordinances providing for or approving collective bargaining;

(6) Ordinances providing for the compensation of or working conditions of city employees; and

(7) Ordinances authorizing or repealing the levy of taxes; which excepted ordinances shall go into effect as provided by the general law or by applicable sections of Title 35A RCW as now or hereafter amended.

Even though new Ordinance 2516 referred to RCW 35A.11.090 in the body of new Ordinance 2516 and even though only 29 days had passed since Ordinance 2511 was adopted, nobody at city hall recognized that the passage of Ordinance 2516 required amending the code adopted under Ordinance 2511.

It was simply missed, and ECC 1.03.030 has contained an error since 1985.

It is more than just a code error. Please consider how many ordinances effective dates have been wrong over the years. I wonder how many so-called emergency ordinances have been treated as effective immediately when they were not effective immediately. Ordinance 4189 for example. Ordinance 4189 declared an emergency and created a new Edmonds Cares Fund, which shall become effective immediately. This is false. Ordinance 4189 did not receive a unanimous vote and therefore was not effective immediately. What is the impact of that mistake and what will be done about it? I wonder if any city officials have notified the State Auditor.

And it may not just be emergency ordinances that have been impacted by the code error contained in ECC 1.03.030 since 1985. How many of our ordinances have gone into effect before 30 days from time of passage when they should not have?

How many votes would have been different over the years if city councilmembers had been advised that it only took one vote to stop an ordinance from being effective immediately?

Furthermore, please think of all the opportunities missed where this could have been noticed. For example, each time an emergency ordinance was considered, why didn’t any city official refer to RCW 35A.11.090 and recognize that a unanimous vote was required?

I fear that had I not notified city officials of this situation on April 7, 2021, the city would be marching forward as if an “emergency” ordinance passed by a majority plus one of the whole membership of the city council may be made effective immediately upon adoption.

Even though I pointed out this situation on April 7, 2021, not one city official has tried to correct the code error contained in ECC 1.03.030, an error that has existed since 1985.

I am thankful to see the following in new Ordinance 4226:

Section 3. Declaration of Emergency. The City Council hereby declares that an emergency exists necessitating that this Ordinance take effect immediately upon passage by a unanimous vote of the Council (RCW 35A. 11. 090), and that the same is not subject to a referendum.

But the work is not done. Our city code must also be updated to reflect RCW 35A.11.090. ECC 1.03.030 has contained an error since 1985.

Previous efforts have been made to update the Edmonds Community Development Code (ECDC). However, it is not just the ECDC that needs updating. Too much of our entire city code has been a mess for an exceptionally long time. I encourage city officials to prioritize full update of our entire city code. Please correct all errors immediately. Thank you.

Ken Reidy
Edmonds

  1. Amazing. Just amazing. Known since April or was mentioned then… How long did they really know? Lots of things slipped thru I bet…How embarrassed they should be. Getting caught is never good for politicians. R or D. Ha. How do we trust any of them now? Clean House…

    1. Thanks Deborah for your interest in City Government and thanks for taking the time to read my Letter to the Editor.

      I started monitoring this more closely months ago when I noticed what I feared was a new strategy for passing Ordinances with less public process. So-called Emergency Ordinances seemed to be on Council Agendas more than I had ever noticed before.

      City Council was advised by the City Attorney that if the vote margin was not enough – the emergency clause in an ordinance does not take effect and an ordinance will take effect pursuant to its normal five days after publication.

      I thought this was alarming and started emailing Councilmembers my concerns. Nobody was making a Motion to pass anything other than an Emergency Ordinance. If it wasn’t an emergency why not take more time and allow the public to be involved in the legislative process.

      On Friday, April 2, 2021, I read the Council Agenda Packet for the April 6, 2021 Council Meeting shortly after it was released. I promptly emailed Council and said that the Emergency Ordinance Mayor Nelson is proposing for Grocery store workers says it may be subject to referendum. I asked City Council to please make sure what is and isn’t subject to referendum is explained in detail to City Council and the public. I told City Council: “This can be a confusing area and it would help all if a solid, detailed explanation is provided. Please make sure all are very aware of why this Ordinance might be subject to referendum whereas that was not the case with either Ordinance 4200 or 4201.”

      My request was not honored and there was no discussion of referendum during the April 6, 2021 City Council Meeting.

      I continued to research the topic the next morning, found RCW 35A.11.090 and informed the City Council on April 7, 2021 that a unanimous vote is required if Edmonds City Council wants to pass a “public emergency ordinance”.

      I find it very disappointing that our City Government has been doing this wrong since 1985.

      1. I know it feels like being insulted doesn’t it?
        Well it sure sounds like you did your job and duty and they did not. Pretty clear.
        All we can do now is elect the very best, remove the disinterested, start over and do it correctly this time. Sleep well. Deb
        Btw Thank you for your kind words.

      2. So does this mean that certain emergency ordinances that are currently in place are not valid? And if so, which ones? I see the Hazard Pay mentioned, I cannot recall what the vote outcome on this , offhand.
        Did the pandemic create a loophole or override?
        Thanks for bringing this to the public forum for discussion.

        Beth F.

        1. Hi Beth,

          I believe there are multiple issues to consider. As I tend to write in a way that puts many people to sleep, I will discuss just 2 issues for now:

          1. Since 1985, the City has, on occasion, acted as if it passed an Emergency Ordinance when the item did not receive the required unanimous vote. In these situations, the City acted as if the new law was effective immediately. Now we know such was contrary to RCW 35A. 11. 090. An example of this is Ordinance 4189. Ordinance 4189 received 6 yes votes and one no vote. Nobody recognized that the vote to pass the Emergency Ordinance had failed. An argument can be made that any action taken under Ordinance 4189 was improper. I encourage City Officials to be proactive on this. One way the City can be proactive in this area is to immediately report the details of what took place to the State Auditor. Hopefully, the City will notify the public if any steps must be taken to correct prior action. I fear the City will take the stance that somebody needs to take the City to court or the City will take the stance that their actions stand as is. Hopefully, I am wrong. The title to Ordinance 4189 claims the City declared an emergency and created a new Edmonds Cares Fund which shall become effective immediately. Not only is this false, no Councilmember ever made a Motion to adopt anything other than an Emergency Ordinance. As such, no vote was taken to adopt an Ordinance that could have been effective a number of days after Council’s vote. It is possible that the new Edmonds Cares Fund was never legally established. It will take time to research and identify other situations like that of Ordinance 4189. Hopefully, the City will provide this information to the public.

          Running out of words – will have to discuss Issue #2 in separate comment.

        2. Continuing with Issue #2:

          2. The vote on Ordinance 4219 related to grocery store hazard pay was a 4 yes and 1 no vote. 2 Councilmembers abstained. When it became clear that the City Council was not willing to adopt an emergency ordinance, nobody made a Motion to pass a regular ordinance. Instead, Council acted like 4 yes votes on the Motion to pass an emergency ordinance meant that Ordinance 4219 was simply adopted as a regular ordinance. However, nobody made a Motion to pass a regular, nonemergency Ordinance. Also, Council missed an opportunity to involve the public more in the related legislative process once it was understood that there were not enough votes to treat this as an emergency.

          The title to Ordinance 4219 declares an emergency to this day. That seems very misleading to me.

          I’m not aware of any loopholes or overrides. I will research. I encourage any City Officials aware of loopholes or overrides to bring such to the public’s attention.

  2. The most disturbing issue is we are paying a city attorney $51,000 a month to fix something like this. Instead a citizen discovers the error and there is no acknowledgement. But even more exasperating is the Mayor, City Clerk and seven City Council members are not catching these code issues and acting that they don’t matter.

  3. Best money the city could spend right now to get our house in order is to pay Ken Reidy to help fix city codes.
    No one knows them better nor does anyone else come close to understanding them as Ken does. He would be the perfect person to help clarify where there are conflicts within the code and make recommendations.
    Cleaning up the code is long overdue.

  4. The first thing you would have to do to accomplish this would be to elect some officials and appoint a city attorney who wants to fix the code and operate the city completely open and above board with massive citizen input . We will soon probably elect some people a little more inclined to do this, but I suspect we will just end up with another voting (4 to 3) block of C.P.s only leaning Right now instead of Left with no real answers to real problems we face. We really need to get out of the business of saving the planet and fixing systemic racism; simply address vital city functions and proper procedures for getting them done as efficiently as possible.

  5. Thank you David. You are too kind! I’ve pushed for a complete Code Update/Rewrite for years. I am happy to volunteer more time related to this effort. The most important thing is to stay with this project until it is completed!

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