Last Week, Council President Harrell sent a memo to his Council colleagues clarifying the process that would follow if Mayor Ed Murray were to step down before the end of his term, as several people have called on him to do. Or at least clarifying parts of it, because the path leads into uncharted territory.
Harrell’s memo explicitly omits discussion of the impeachment process itself, but picks up at the point that there is a vacancy in the office of Mayor.
The City Charter, Article XIX, lays out the immediate process:
If the office of Mayor shall become vacant, the President of the City Council shall become Mayor; provided, that said President may within five days of such vacancy decline the office of Mayor, in which event the City Council shall select one of its members to be Mayor in the manner provided for filling vacancies in other elective offices.
So if Murray were to step down, Council President Harrell immediately becomes Mayor — unless he declines within five days. If he declines, then the Council must use the process specified in the Charter to select another Council member to be Mayor:
If any other elective office shall become vacant, the City Council shall, within twenty days thereafter, proceed to select by ballot a person to fill such vacancy, who shall possess the qualifications required for election to such office; such selection to be effective only upon the affirmative vote of a majority of all members of the City Council. If any elective office shall not be filled within twenty days after it becomes vacant, the City Council shall meet and ballot at least once each day, excluding Saturdays, Sundays and legal holidays, until such vacancy has been filled.
That process allows twenty days, but Harrell believes that is too long and argues that the Council should complete the process in five. It would require public notice and a public vote (and one assumes public comment before the vote is taken).
The new Mayor would hold office until the next general election, at which point the voters would select a new Mayor. That is happening this fall anyway, so the Mayor would only be in office through the end of the year.
Here is where it gets very messy: the City charter doesn’t specify whether a Council member appointed Mayor would get to go back to their Council position and finish out their term after a newly-elected Mayor takes office in January. The Council member cannot hold two elected offices simultaneously, but it’s not clear whether in this circumstance the Council seat becomes “vacant” or just “suspended” until the Council member finishes serving as Mayor. The Council has been briefed on the question by city attorneys under attorney-client privilege, but has not published that brief. Harrell does say, though, that there is no Washington State case law that reads on this question, so if they went down that path it would provoke a “constitutional crisis” in the city that would need to be resolved quickly in the courts. Since seven of the nine Council positions are elected by district (including Harrell’s), there is an argument to be made that leaving a Council seat empty for a prolonged period of time deprives the voters of that district from equal representation in city government — and the primary duty of the government is to the voters, not to the elected officials. However, that argument may not apply to one of the two city-wide Council positions.
Assuming the courts decided that when a Council member becomes Mayor in these circumstances their Council seat becomes vacant, then the Council uses the same 20-day process listed above to fill that vacancy. If the Council President is the one who takes over as Mayor, then the Council not only needs to fill the vacant slot, but also choose a new Council President among themselves and revise the standing committees and assignments of Council members to other county, regional, state and local committees.
Clearly there is significant political risk for most of the Council members if Murray steps down. Harrell isn’t up for re-election for two more years, so if he were to accept the position of Mayor, he could find himself unemployed in January. The cleanest solution would be for Harrell to decline and for the Council to vote for Tim Burgess to take over as mayor, since he holds a city-wide seat, is not running for re-election, and either way will be unemployed on January 1. Lorena Gonzalez, who also holds a city-wide position, could also do it with low risk since she is already running for re-election this year; assuming she wins the election, she could slot right back into her Council job in January. But I certainly can understand and sympathize if none of the other Council members want to take the risk with their political careers.
And they can’t ask the courts to provide a ruling in advance of the Mayor actually leaving office before the end of their term; courts are only allowed to adjudicate “live controversies,” not theoretical or speculative ones. If Murray did step down, the city could potentially issue an emergency petition to the state Supreme Court to get a quick ruling, but it’s not clear they would get one within the five days allotted for the Council President to decide.
With five months left to go, Murray continues to defy the calls for him to step down. We’ll see whether Harrell’s memo is rendered moot. And perhaps the Council will propose some clarifications to the City Charter, in case this ever happens again.