Durkan quietly returns two bills to Council unsigned

Last Friday, Mayor Durkan quietly returned two bills to the City Council unsigned – neither approving nor vetoing them – allowing them to officially become law without her action.

The first is a bill that created a separate fund for “JumpStart” payroll tax funds, and placing limits on how those funds may be used in the future that align with the spending plan the Council approved when it enacted the payroll tax.

In returning the bill unsigned, Durkan attached a letter objecting to the effect of the new fund, which would tie the hands of future Mayors and City Councils.  In the short term, she argued that a series of investments made in 2020 and 2021 using one-time funds might need to be extended into 2022, including CVOID pandemic response, economic recovery, homelessness, and investments in Black and BIPOC communities. Fencing off those funds in the face of looming short-term priorities, and before the fall budget process occurs, seems unwise, she asserted.

Longer term, she argued that future elected officials will need budget flexibility to meet their obligation “to make budget decisions for any year based on the priorities, demands, revenues, and emergencies for that year.”

In practice, the new fund places far more limits on the Mayor than on the Council, which has the power to rewrite those limits anytime it wants. And that, of course, was the intent of the bill in the first place: to stop Mayor Durkan from raiding the payroll tax revenues as she did with her proposed 2021 budget last September.

Durkan is also facing the reality that that Council has the votes to override a veto if she chose to go down that path, and as a lame-duck Mayor with just a few months left in office this is apparently not a battle she wants to spend time fighting.

The second bill creates an independent Office of Economic and Revenue Forecasts, jointly overseen by the executive and legislative branches. The proposal for the new office closely matches a model already adopted by the King County Council. But as SCC Insight previously wrote, because of limits within the City Charter, creating a new department that does not report to the Mayor requires a charter amendment approved by the voters of Seattle; the City Council may not do it by ordinance.

Mayor Durkan apparently agreed with that assessment and took it one step further, asserting on another letter that the bill creating the new office also runs afoul of state law that “specifically vests these powers in the Budget Director working under the direction of the Mayor.”

Currently, the City Charter clearly provides that the Mayor shall direct all subordinate officers, unless the Charter provides otherwise. I do not object to the concept of an independent forecasting office (though I think it is unnecessary). But based on legal analysis provided to my office, I am convinced that creation of such an office requires both a City Charter amendment, approved by a vote of the people and also requires a change in a change in state law, that specifically vests these powers in the Budget Director working under the direction of the Mayor (Chapter 35.32A RCW, the State Budget Law).

Council chose to cut corners and do neither. Ironically, the only thing that might “save” the legislation is that by its very terms the Mayor, Council and Budget Director can disregard the projections provided by the new office. In other words, the legislation spends significant money to create a new office that likely violates state and city law, and provides in the legislation that the key work of the office can be disregarded.

Noting that the ordinance allows both the Mayor and the City Council to discard the forecasts generated by the new Office, Durkan punts the issue to her successor:

 I would veto the legislation, but the margin by which it has passed makes that futile. I return the legislation unsigned. It will become law and the next Mayor can decide if she/he wants to challenge the creation of the office – or perhaps ignore its work as the ordinance provides.

The Mayor also hints at another issue, without naming names. It’s been pointed out to SCC Insight that there is one other significant precedent (at least) for an independent department being created by ordinance: the Seattle Ethics and Elections Commission. But since the legality of its creation has never been subject to a legal challenge, it’s not a legal precedent supporting the Council’s authority to do so again; rather, it raises the stakes for the impact of a successful challenge to the new forecasting office since it could dissolve the SEEC as well.

The Mayor’s tone gets a bit salty in this letter, with more direct accusations aimed at the Council that they are cutting corners and showing “contempt for the people’s right to vote on any Charter changes.” It’s interesting to see that as her term winds down, the gloves are coming off.  It bodes poorly for any hope of inter-branch comity in the upcoming 2022 budget process.

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