According to a memo issued today, Council President Lorena Gonzalez has decided that the payroll tax bill put forward by Council members Sawant and Morales does not meet the criteria for allowed Council actions under Governor Inslee’s proclamation modifying the terms of the Open Public Meetings Act (OPMA) and Public Records Act (PRA). As such, the Council may not continue deliberations on it while the Governor’s proclamation remains in effect, and next Wednesday’s Budget Committee meeting to discuss the bill has been cancelled.
The Governor’s proclamation, which has been extended to May 31, suspends several provisions of the OPMA and PRA to allow for the fact that in-person meetings with public participation are not feasible under the “stay home” mandate from the Governor. However, in return the proclamation also restricts public agencies, including the City Council, from taking actions on business other than items that are “necessary and routine” or that a responding to the COVID-19 pandemic.
As I have written previously, the bill as submitted by Sawant and Morales enacts an annual 1.3% payroll tax in perpetuity, and would raise approximately $500 million per year. $200 million from the first year would go toward relief payments to 100,000 low-income households in Seattle as part of the city’s COVID response; but after that, all the revenues would be appropriated to affordable housing projects and to Green New Deal projects. This raises a serious question as to whether the bill meets the criteria specified in the Governor’s proclamation, especially since the COVID relief package was added after the bill was originally announced. Without the COVID relief the bill clearly is not allowed; but allowing it with the addition of the COVID relief effectively renders the Governor’s restriction meaningless by introducing a massive loophole whereby any bill can be considered if a COVID relief provision is tacked on. Gonzalez, an attorney herself, came to the conclusion that the bill does not meet the Governor’s criteria, and thus may not be taken up by the Council.
Gonzalez’s memo notes that with regard to the two meetings that have already occurred on the bills, she and the City Attorney’s Office were still in the process of setting up an enhanced review process for pending legislation to determine if it meets the criteria in the Governor’s proclamation.
This enhanced review process, the Proclamation, and the AGO and CAO guidance were not available to my office when this City Council voted to refer Council Bills 119772, 119773 and 119774 to the Select Committee on Budget on April 6, 2020. Nor was this information yet available to Chair Mosqueda and me when we agreed upon a schedule for hearing those bills in the Select Committee on Budget, beginning on April 14, 2020. As a result, the primary sponsors of those bills and the City Council believed at the time that it was appropriate to refer that revenue package to the Select Committee on Budget.
But with that process in place now and with further consideration at the urging of Council member Herbold, Gonzalez reached a different conclusion:
As I have learned more about this legislative proposal and had additional communications with the CAO, I have become increasingly concerned that the substance of this proposal and the facts established in its legislative findings do not meet the high standard necessary to support a conclusion that the package as a whole is either routine and necessary or sufficiently related to COVID-19 and the current public health crisis, as required by Proclamation 20-28. Firstly, there appears to be wide agreement that this legislative package is not routine or necessary. Secondly, it appears that the prime sponsors may believe that this legislative package is related to COVID-19 and the current public health crises. However, the taxation and spending plan legislation contains several components that likely would not be justified as COVID-19-related legislation pertaining to the current public health emergency. For example, the Green New Deal housing strategies (section 2.D); Job training investments for transitioning workers (section 4); creation of the Social Housing Board (section 3.14.750); and creation of the Green New Deal Housing Board (section 3.14.979) all bear little to no relationship to the current emergency. Moreover, the corporate payroll tax legislation is not proposed to be collected in 2020 and is intended to exist in perpetuity and, thus, long-after the current public health crises presumably ends. On these points, I would strongly urge each of you to carefully read the CAO memorandum dated April 28, 2020, that Councilmember Herbold shared with us.
I believe that any further Council action, which includes briefings and discussions at any regular, special or select committees, related to this legislative package as introduced puts the Council at significant risk of litigation related to a potential violation of the OPMA as a result of Governor Inslee’s Proclamation 20-28.
Council member Herbold’s memo suggested two alternative approaches: first, the bills could be narrowed down to just the COVID-19 response portions; second, consideration of the bills could be postponed until after the Governor’s proclamation expires.
Gonzalez notes that she has no power to direct Sawant and Morales to rewrite their bills, so she argues for postponement.
As such, I believe Alternative 2 is the best available path and have asked Chair Mosqueda to strongly consider cancelling the Select Budget Committee meeting scheduled for Wednesday, May 13, 2020, and to refrain from convening public meetings on these proposed tax bills through at least May 31, 2020.
I understand how important these bills are to the prime sponsors, our shared constituencies and to our collective effort to identify new revenue sources that will prepare us for the ongoing response to this public health crisis and, ultimately, recovery from this once in a lifetime economic crisis. However, as public officials, we are required to comply with the OPMA. Allowing discussion of these bills to continue without regard to the requirements of Proclamation 20-28 would require us to recklessly and knowingly abandon our commitment to open government and a fair and equitable democratic process for both proponents and opponents of the Sawant-Morales Bills and any other alternative revenue proposals.
It is my firm belief, that the Council should take no further action on Council Bills 119772, 119773 and 119774 until the expiration of Proclamation 20-28 and ongoing easing of the Governor’s “Stay Home, Stay Healthy” Order, or until we can allow for some level of in person viewing of our public meetings, consistent with regular OPMA requirements, public health recommendations and the Governor’s related emergency orders regarding public gatherings.
She goes on to point out the legal ramifications — both to the eventual outcome of the bills, and to the Council members themselves, if they push forward with consideration of the bills:
If this Council continues to convene public meetings to discuss these specific tax bills or any equally-broadly framed alternative revenue proposals, each Councilmember will be unnecessarily exposed to the legal risks associated with allegedly violating the OPMA. I strongly urge each Councilmember to independently consult with the City Attorney’s Office about your continued participation in any public meetings related to these revenue bills that may be scheduled through May 31, 2020.
The memo goes on to discuss the eventual re-opening of City Hall when the Governor’s proclamation expires; Gonzalez expresses concern that it will not be safe for the Council to hold in-person meetings in Council Chambers starting in early June, but its hand might be forced. She explains that she is working with the City Clerk and other city departments “to consider implementing appropriate policies and partitions for the Chambers that would allow for public meetings to be conducted in a safe and secure manner.”
Concern for public health and the wellbeing of City employees will continue to guide these efforts and decisions, and I will incorporate the feedback of public health officials, the City Attorney’s Office, and my Council Colleagues before deciding if and how to proceed with any of these potential options and scenarios. As usual, I appreciate your patience and your ongoing engagement on this issue.
Gonzalez does note that she wants to see the Governor’s proclamation revised to find a better balance between the safe conduct of public meetings and restrictions on public agency actions:
For weeks I have been instructing the CAO and, more recently, the Office of Intergovernmental Relations, to lobby the Governor’s Office, the AGO and the state legislature regarding the need to revise and extend Proclamation 20-28, in a manner that would make the operations of our local government OPMA compliant and predictable and safe for the general public and our essential workers. This need becomes even more important as the provisions of the Governor’s “Stay Home, Stay Healthy” Order are softened.
Herbold’s memo, dated April 27, detailed her concerns that the payroll tax bills could not be considered under the Governor’s proclamation, and explained that for those reasons she declined to participate in the first two Budget Committee meetings on the bills. She goes on to express her view that the best path forward would be for the Council to place a tax package (though not necessarily the Sawant/Morales one) on the ballot in the fall for voters to approve:
Though my letter is focused upon my OPMA concerns, my understanding of the reality of the political vulnerabilities created under both of these approaches, leads me to the conclusion that without Mayor Durkan’s support for Emergency Legislation, a lasting, strong Pay Roll Expense Tax Package would be best placed on the ballot, after deliberating on this matter when we are able to meet in accordance with the OPMA.
In the short term, this means that the payroll tax, as introduced by Sawant and Morales, is off the table. Council member Mosqueda, the Budget Committee chair, has cancelled next Wednesday’s meeting to discuss it. However, it may be taken up again in its current form when the Governor’s proclamation expires, or Sawant and Morales may choose to break it up in smaller pieces and have those parts specifically related to COVID-19 relief considered now.
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