Seattle City Council Special Meeting 9/15/2020

colleagues, the September 15th, 2020 special meeting of the Seattle City Council will come to order.

It is 1.02 p.m.

I'm Lorena Gonzalez, President of the Council.

Will the clerk please call the roll?

Council Member Juarez?

Here.

Council Member Lewis?

Present.

Council Member Morales?

Here.

Council Member Mosqueda?

Here.

Council Member Peterson?

Here.

Council Member Strauss.

Present.

Council Member Herpel.

Here.

Council President Gonzalez.

Here.

Eight present.

Thank you, Madam Clerk.

Again, for the public record in terms of roll call, Council Member Shama Salant is excused from attending this special meeting of the council due to her need to recuse herself from consideration of this council bill.

our ethics officer, Wayne Barnett, as well as the law department, has advised us that she must recuse herself because this council bill inherently represents a financial interest for her, given the subject matter of that.

So I wanted to make sure that the record is clear that Council Member Solant has recused herself and is not in attendance at today's special full council meeting.

We'll move on through the approval of the agenda.

If there's no objection, the agenda will be adopted.

Hearing no objection, the agenda is adopted.

Okay, colleagues, we have one agenda item on today's agenda, published agenda, and that is agenda item one.

Will the clerk please read item one into the record?

Agenda Item 1, Council Bill 119891, relating to the legal representation of Council Member Shama Sawant in judicial proceedings concerning a recall charge, paying expenses necessary to defend Council Member Sawant in those proceedings, and ratifying and confirming search and prior acts.

Thank you, Madam Clerk.

Colleagues, I will move to pass Council Bill 119891. Is there a second?

Second.

It's been moved and seconded to pass the bill.

Colleagues, this legislation does not have nor does it require a sponsor.

However, our council rules require that a council member speak about the legislation.

As a result, I will address this legislation as the council president.

Council Bill 119891 relates to the legal representation of Council Member Shama Sawant.

If this ordinance is approved, the City of Seattle will cover the cost of the legal defense in judicial proceedings related to the sufficiency of a recall charge filed against Council Member Sawant in King County Superior Court pursuant to RCW 29.82.023.

I want to be clear that our consideration of this council bill is not a statement on or vote upon the merits of the recall petition.

Issues related to the sufficiency of the recall charge or the merits of that effort is for the courts to decide, not for the city council.

Additionally, consideration of this council bill is not an endorsement or a rejection of any initiatives related to the recall campaigns.

The issues related to any and all recall campaigns regarding any Seattle-based elected official are issues related to a political process that are beyond the scope of today's legislation and unrelated to our city council business.

Council Bill 119891 is based on state statute.

Specifically, RCW 4.96.041, subsection three, provides the city council with a framework by which to consider this issue.

To begin with, I have consulted with the city attorney's office to inform my understanding of the state statute, the request for legal defense, and the procedural and legislative requirements that are necessary for any elected to take advantage of the various indemnification provisions outlined in RCW 4.96.041.

There have been comments by media and members of the public that the council must first conclude that Council Member Sawant was acting within her official duties in order to avail herself of the requested legal defense.

Our city attorney's office has advised that this is not the case for subsection 3 of RCW 4.96.041.

While there are other indemnification provisions in RCW 4.94.041 that do have a acting within official duties requirement and determination, subsection 3 does not have that requirement.

For the record, I think it's important that I now take a moment to read the full RCW subsection three into the record, which reads as follows.

Quote, subsection three, the necessary expenses of defending an elective officer of the local governmental entity in a judicial hearing to determine the sufficiency of a recall charge as provided in RCW 29.82.023 shall be paid by the local governmental entity if the officer requests such defense and approval is granted by both the legislative authority of the local governmental entity and the attorney representing the local governmental entity.

The expenses paid by the local governmental entity may include costs associated with an appeal of the decision rendered by the Superior Court concerning the sufficiency of the recall charge.

Close quote.

This legislation represents Council Member Sawant's formal request that the City Council, as the local governmental entity, authorize the City Attorney's Office to provide her with legal defense regarding the judicial proceedings related to the sufficiency of the recall charge that has been filed against Council Member Sawant.

The city attorney's office has represented to me that the city attorney, Pete Holmes, is willing and able to provide the requested legal defense.

In other words, it is my understanding that that second element, that the attorney representing the local governmental entity has also approved of providing the defense requested by council member Sawant, should it be approved by this city council.

this would satisfy that second statutory requirement.

So colleagues, that is the basis of this particular legislation.

And this is the legislation that is before us now.

And I am happy to open it up for any comments or questions or additional debate.

So are there any additional comments on the bill?

Council Member Lewis.

Thank you, Madam President, for that summary.

I do want to briefly address this just because my office has received a considerable amount of communications from folks on one side or the other of this.

And I do think it's unfortunate that something that should be very pro forma like this is being politicized.

And so I just wanted to address for a moment and say at the top that I'll be voting yes.

And I want to be clear that I'm voting yes, and in doing so, not commenting on the merits of the recall allegations.

I'm voting to uphold the values of our democracy here in Seattle and the principle that we and the mayor and the city attorney, the duly elected charter officers of the city, have representation if we are facing recall efforts having been duly elected.

And the foundational principle of this is that we have a process for picking our elected representatives.

It's not recalls.

It's through elections.

And if you don't like what your representative is doing, you can opt to not vote for them in the next election.

And we just had a massive election.

All of these issues were litigated.

uh...

and recall elections in washington state have very narrow grounds and are extremely rare and a legal process is required as as we we just discussed it through the rcw's onto make sure that the purported grounds for a recall meet the very high constitutional requirements to overturn the will of the voters overturning the will of the voters is an extremely serious serious business, and this requires that all the parties be represented adequately by Council in these proceedings.

And tradition is in Seattle that the City Council is represented by the City Attorney's Office in these proceedings.

And in 2011, just to cite it, there was a recall petition filed against Councilmember Richard Conlin.

The Council voted to allow the City Attorney's Office to represent Councilmember Conlin in those proceedings.

I would say also too, if Mayor Durkan came down to the council to seek similar support for the ongoing pending recall effort against Mayor Durkan, I would enthusiastically support as well, authorizing funds for the mayor to be supported because she was elected, like all of us were elected.

And this practice has to be applied uniformly.

And this isn't about endorsing anybody's decisions or speculating on the merits of any legal allegations.

This is about respecting the process and maintaining an important precedent.

And it is a slippery slope if we start picking and choosing who does or doesn't receive these kinds of legal representations.

And no matter how it is sliced, to deny that legal representation would be to make arbitrary something that should be objective.

And either this applies to everybody or going forward, it's going to apply to nobody.

So I'll be voting yes.

Thank you, Council Member Lewis, for those remarks.

I wholeheartedly agree with those comments.

Colleagues, are there any other comments?

Council Member Herbold, please.

Thank you.

I just want to add to the record as it relates to our vote on this issue.

It is clear that RCW 490413 gives very little direction upon which to base the decision.

to fund a recalled defense beyond, again, as Council President Gonzalez explained, the requirement that the elected has to make the request and the city attorney has to agree to provide the defense.

Both of these things have occurred and it's left to us.

We do know that making it a determination whether or not the subject individual is acting within the scope of duties is not a requirement.

And so like Councilmember Lewis referenced, I think looking back on the city's precedents and the principles upon these precedents, is it really important?

This council has established a precedent of providing funding for recalled defense prior as was stated with prior council member Richard Conlon.

Another important principle I would just like to add, which I definitely related to the principle expressed by council member Lewis, is that we want to make sure that future council members, people who are considering running for city council, know that this is the standard of this council to provide funding for for defense as in a really important equity principle so that those folks who are considering running for public office to our city council without a lot of financial personal resources are not chilled from making that decision to run for public office based on a decision that the council will not defend them if there is a recall.

effort mounted against them.

I think that if we were to make a decision to not fund the defense for this recall, that it would have a negative impact on our goals as a city to make sure that folks are running for political office from a diversity of backgrounds.

So that's why I will be voting in support of this measure.

Thank you.

Thank you Council Member Herbold, Council Member Morales and colleagues if anyone else would like to make comments please do let me know.

I can after Council Member Morales.

Council President, thank you.

Great.

Thank you, Council Member Juarez.

I will call on you after Council Member Morales.

Council Member Morales, please.

Thank you.

I'll be brief.

I just want to say that it is clear that statute provides that elected officials receive legal defense.

I think many of us were faced with a similar situation, and as Council Member Herbold just said, indeed, previous council members have been in similar situations.

We want to make sure that our city attorney is there to provide legal counsel and that is afforded to other council members.

I think especially in this time, we need to protect our democracy and ensure that legal protections afforded to our elected officials are respected and I will be supporting this bill.

Thank you, Council Member Morales.

Council Member Juarez, please.

Thank you.

Council President, thank you for your overview.

My concern is this.

Looking at, you sent us an email yesterday at about four regarding the statute that you cited earlier, RCW 4.96041.

And you put in quotation section three.

So I would ask my colleagues to look at that because there are four sections to section 496041. So before you can get to three, which talks about the criteria and what's necessary, approval of the city council.

Sections one and two, particularly two, state the legislative authority of the local government entity has to find that the acts or missions of the officer are in good faith purported to be within the scope of his or her official duties.

The request shall be granted.

I tend to disagree with a few of my colleagues here.

I think the law is very clear about what the steps are.

Before we get to three, before we highlighted the word shall, I thought today's discussion was whether or not, not determining the merits or the underlying alleged facts of the petition that were filed.

I believe there were eight and then two were, they removed them so they're down to six.

But the question in the discussion today was not deciding whether or not these acts were in good faith, but having a discussion about deciding whether or not these acts were within the official scope of Council Member Suwan's official duties.

And if so, then we approve the cost of defense.

If not, we don't.

So this doesn't go to breaking down democracy or a slippery slope and all this stuff about voting.

If that were all true, we wouldn't have an RCW 4960414 recall for that very reason.

So I came prepared, looking it up and looking at the law, besides the section that you cited, Council President, in your email to us yesterday, all four pieces of it, sections of it, about whether or not Council Member Sawant was acting within the scope of her official duties.

and whether or not we would be paying for that defense, which either way, I'm okay with that, but I don't agree with that this is just pro forma and that we, since the city attorney said they're willing and able, before you get to that, council has to make a decision to approve, and approval is contingent on the question about whether or not counselors to want was acting within the scope of her official duties.

So what I'm hearing you're saying is that legal counsel, our city attorney, is now saying that we're not going to have that, we don't have to have that discussion, that we just go to section three and we shall just shall approve the cost.

So maybe I'm reading this wrong.

If I can get a little bit more clarification, I did not have a discussion with the city attorney's office council president.

I know that you did.

So I know that we did, some of us did look at the petition that was filed September 1st.

And I know that we're not looking at the underlying facts, allegations, or the merits.

The judge will make that determination about whether to certify the recall petition.

But I thought our job here today was to discuss whether or not, again, these acts were within the scope of her official duties.

And again, if so, then we approve it.

This isn't the same as what happened with council member, I can't remember his name, he just said Conlon.

I think this is a little bit different.

If you all look at the petition, it doesn't mean you have to agree with it.

Those are just alleged.

But in its totality, that's why we have this law, is for this discussion.

And I'm guessing, if I can hear more from you, Council President, or my colleagues, please correct me if I'm wrong, we're not going to have a discussion about that.

I would like to hear that.

Thank you, Council Member Juarez.

I want to say a couple of things in response to your comments.

One is that I think you've made an insinuation that I've cherry-picked sections of the law to put in front of the Council, and I just want to say that that's not the case.

I have not done that and provided the City Council members with the link to the full law.

And the reason that I have focused on and referenced, as I mentioned in my email, the relevant part of the statute is subsection three.

In my conversations with the law department and in the legal advice that I have received from them, that is the only section that applies to this particular set of circumstances.

So I can appreciate that you as a lawyer disagree with our lawyers.

But unfortunately, I'm not the city's lawyers.

And I have to, you know, acknowledge that the city attorney's office plays that role.

And their legal advice to us is that subsection three is the only relevant section to this particular Set of circumstances because we start with a question of.

What is the indemnification needed for.

And the answer to that response.

So, that question is this indemnification is in response.

to a recall charge.

The other three sections that you have noted exist in 4.96.041 are related to issues that may be requiring legal defense, but legal defense wholly unrelated to a recall charge.

And in those instances, my understanding is in some cases, legislation is not even required.

It's just occurs not requiring us to take any sort of.

Legislative requirement or consider any kind of a bill.

So.

Again, I feel that the that the legal advice that we have received that my office has received from the city attorney's office has been consistent and has been.

clear that the only subsection of the relevant statute that applies under this set of circumstances, because it is related to a recall charge, is subsection 3. Therefore, dispensing with the need or, you know, frankly, not triggering the requirement to have a conversation about whether or not the recall petition is rooted on the threshold question of whether the individual was acting in good faith purporting to perform her official duties as an employee.

So, you know, this is part of the reason why I encouraged folks to reach out directly to the law department yesterday, but I will, you know, for purposes of establishing the record here, It's been crystal clear to me that the only section of 496 that applies is subsection 3, not subsection 1, not subsection 2. Not subsection 4, and therefore we go by the language that exists just in subsection 3, which does not have a requirement.

that this city council engage in a conversation around whether or not there was performance in good faith of official duties prior to making the determination of whether legal defense should be provided by the city attorney's office.

If I may respond.

Council President.

Thank you.

First of all, I want to apologize.

I did not mean to impugn that you were cherry picking.

What I was looking at is when I just saw section 3, I thought, well, there must be more to this than section 3, so I apologize for that.

Second of all, I'm not stating that this law says that we have to engage in a discussion about good faith.

It doesn't.

What they're asking and what has to be decided is whether or not they're within the scope of official duties, not the good faith.

That's just deciding if we're deciding whether her acts were or in good faith purported to be.

We're not deciding that.

What I'm getting at, what I read it as, is we would be deciding whether the acts were within the scope of official duty, not with not talking about good faith.

So that's the clarification there.

So just so I'm clear then, legal has shared with you, and you have shared with us, and I don't doubt your word, that in regards to the RCW 4.96041, that sections one and two don't apply, and certainly not four when you read it, just section three.

So if that's what you're sharing with us today from the city attorney's office, correct?

That is correct.

So we've received pretty clear communication from the city attorney's office that that is in fact the case.

So there was a specific question that was posed to the law department from one of our colleagues about whether or not there was a requirement that we as a council find that the activities are within the scope of the official duties prior to, i.e. as indicated in subsection one and subsection two, prior to making this determination of whether or not Council Member Sawant would be entitled to legal defense.

The city attorney's office responded that recall defense costs, quote, recall defense costs are governed under RCW 4.96.041 subsection 3 in contrast to other indemnifications governed under sections 1 and 2 and Seattle Municipal Code 4.64.

Okay.

And if I may respond, Council President.

Sure.

Okay, so again, I just want to be clear here, and we've said this many times.

We all got copies of, or at least I did, of what was filed in Keykind Superior Court, and we're not arguing the merits of that, as you succinctly and correctly stated.

I think where I'm at, again, and I stand by that belief that I thought that our discussion today based on approval meant a discussion about whether or not these acts were within the scope of official duties.

So that being said, maybe we can agree to disagree, but I just want to add this more on a personal note.

We've been on council for a few years now, and I never take what some of my colleagues do when they stand up or have a position.

I don't take it personally.

We can't have these kind of jobs where we get hurt personally if people don't agree with us.

We agree to disagree.

We have our moments, of course, but I always have respect And I certainly understand the election process and why we have it.

And when the people speak, and this petition and this thing will happen on its own merit in King County Superior Court where it belongs.

So with that, I unfortunately will not be voting yesterday.

Thank you.

Thank you, Council Member Juarez.

And again, I just want to, because I don't want to muddy the waters here for members of the public who are watching this, because you have introduced the concept, in my opinion, incorrectly.

about the need for the council to engage in a conversation about whether or not Councilmember Sawant was engaged in official duties as alleged or connected to the recall petition.

And I am stating very clearly for the record that based on the analysis, evaluation, and legal advice of our city attorney's office, That is categorically not 1 of the things that the council.

Should, or must consider.

in order to provide the authorization for the city attorney's office to give council member Sawant legal defense as she would be entitled to under the various indemnification clauses.

And so I just, I wanna be really clear with the public that to the extent that there is an insinuation that we are skipping a step, I want to say really clearly that we are not skipping any steps we are we are bound by state law and that state law is limited to RCW.

496 I'm forgetting the number now and 496.041 subsection.

3 in isolation and to the exclusion of.

Subsection 1 and subsection 2. And and and that is the, the, the rubric by which we are required to analyze.

The bill that is before us now, setting that aside council members, of course.

are completely within their right to vote any way that they wish on this council bill, whether that's a yes or a no, and I appreciate you indicating clearly for the record that you intend to vote no on this particular council bill.

Yeah, and again, Council President, I just want to state again for the record, I'm not insinuating that you're skipping a step.

I think we just have to agree to disagree on this.

That's all.

I'm not insinuating any ill will, malintent on anybody.

Trust me.

Yeah.

Council Member Juarez, I'm not saying you are proceeding with malice or malintent, but I think that you have clearly stated on the record that you believe that we must engage in a determination at the City Council about whether or not Council Member Solant engaged in official duties before we get to subsection three.

And I am saying that that is for purposes of the viewing public, not the case.

And so I do not want to create an opportunity for people who have very strong political feelings about the unrelated recall petition to further sort of fuel the fires there in terms of the people's positions based on the process and the steps and the requirements that we have before us.

I think it's important for us to be really clear that that does not include an evaluation of whether or not Council Member Sawant was engaged in official duties.

Colleagues, any other comments on the bill?

Council Member Peterson.

Thank you, Council President.

I want to thank my constituents who took the time to contact me in my office with their very strong feelings about this issue, both for and against it, since it was reported widely in the media over the past month.

And I'd like to offer three reasons for the vote I'm about to take.

Number one, I passionately disagree with many actions and positions of Council Member Sawant, and she certainly disagrees with me too.

Yet the decision and the specifics of law before us today are not about disagreements over politics or personality.

During these tumultuous times of public health pandemics, economic recession, when our president and the other Washington cheapens our democracy by demonizing his opponents with personal attacks on their character, we here in Seattle can do a better job respecting our differences, finding common ground, staying focused on what we were elected to do.

So today's decision is not about personalities or politics, but about the provisions in our state government laws.

And the relevant provisions of the revised code of Washington say that the elected official has to make the request for assistance, which he did.

The city attorney has to approve it, which he did approve it.

and the city council has to vote on it and that's why we're here today.

So in deciding the most prudent path I would normally consult our city attorney for advice and in this rare case the city attorney has already indicated his approval.

Our elected city attorney has approved this and he supports having us pay for the legal assistance and to have his office provide that legal representation going forward.

Number two, while this situation is unfortunate and unusual, it is not unprecedented.

In fact, there's a very compelling precedent mentioned by my colleagues earlier.

In 2011, just one year before I joined the City Council as a bright-eyed legislative aide, the Seattle City Council unanimously approved nearly identical legislation to defend Councilmember Richard Conlin against a recall petition.

Councilman Colin Conlon was accused of taking unauthorized government actions, which included signing important documents, etc.

Now, ultimately, he was cleared.

And ironically, he later lost his re-election narrowly to Councilmember Sawant.

Councilmember Sawant was re-elected less than a year ago.

And finally, number three, the laws governing the recall of elected officials in Washington state, as we've discussed, are complex.

The facts of this case are not crystal clear.

So all the more reason having adequate legal counsel should be available to a duly elected official defending against a recall petition, whether or not they can afford such legal assistance.

A right to an attorney in your defense, whether or not you can afford it.

So I realized this is not a popular position in my district and supporters of mine will be asking me for a long time, how could you support Councilmember so long, but I would like to assure all my constituents that what I'm actually supporting and honoring.

are the facts as I know them, the thoughtful approval of our elected city attorney, and the crystal clear precedent set by a previous city council, which approved the same accommodation for a previous council member.

So ultimately, this is something that will be decided by voters in District 3 if the recall petition advances.

Today's action, if approved, would merely provide a modicum of legal assistance to the duly elected official who's the subject of the recall petition.

So I will be voting yes.

Thank you.

Thank you, Councilmember Peterson for that.

Are there any other comments on the bill?

Hearing none, colleagues, I will close out debate by making.

Oh, just kidding.

Councilmember Strauss, please.

Thank you, Council President.

I too had read the RCW as Councilmember Juarez had interpreted it with the subsection four being relevant to our conversation today, and I am not sure that the actions our colleague took were within the scope of her official duties.

That being said, hearing from you today regarding that three, subsection three, is the only section that we need to address, you know, what I would say is that over the course of the last few months, there have been, and I've been the recipient of quite divisive language in etc.

And that's not pertinent for here.

I would love to see our council work together in a collaborative way.

And I know that the majority of us do and do so regularly.

I won't be commenting on the merits of the recall petition today.

And as Council Member Peterson said, we need to have important legal representation during this course of due process to understand what is a judicial matter rather than a legislative matter.

And with the election having just just occurred, we this is a very serious, uh, serious matter that needs to have full legal representation.

Now, I would also say that we we can't continue to fund legal representation for behavior that is not within the bounds of our roles as elected elected officials.

And so, you know, I'm it's important to take this on a case by case basis.

And with your with providing your analysis from the law department regarding that, the only section we need to be advised on is subsection three.

I will take that into consideration.

Thank you, Council President.

Thank you, Councilmember Strauss.

Are there any other comments on the bill?

Hearing none, I will go ahead and close out debate by making some final remarks before I ask the clerk to Call the role on on this particular bill.

So again, colleagues, I appreciate the opportunity to have a conversation here.

And while there is no sponsor, and this ordinance doesn't require a sponsor for us to consider it.

I do take the role of being Council President very seriously, and I assure you that if any of you found yourselves in this situation and you chose to make this request for indemnification, I would give you the same due consideration.

And regardless of whether or not we have agreed with each other in the past, and regardless of whether or not I agree with tactics that are deployed by Council members, in their individual roles as independently elected officials.

I think it's important for us to stay true to the requirements, legal requirements that are before us.

There are many instances in our society in which legal defense is provided to individuals that have been accused of wrongdoing.

those accusations run the gamut.

And we have, as a country, established constitutionally that people are entitled to a legal defense.

And if they cannot afford a legal defense, then counsel will be provided to them.

That has been commonly known as public defense across our entire system.

So for those people who think it is extraordinary to use taxpayer dollars to pay for legal defense, This is not a novel idea, as we have a criminal justice system built on the concept of providing free legal defense to those people who request it because they are not in a position to provide themselves with their own legal counsel.

I would say that subsection 3, which is the only applicable section in this consideration, is inherently Um, structured to be minimal as council member herbal highlighted.

There's not a lot of guidance there.

It's, it's pretty bare bones.

Which as legislators means that we could read into the legislative intent.

which could mean that it implies that the legal defense under the context of recall charges is so significant and the consequences of a recall charge are so significant, given the gravity of potentially canceling out the will of thousands of voters, that in those instances, legal defense should be readily available so long as the minimal requirements of subsection three are met, which in this case has clearly been done.

So I also want to say that there have been some comments about trying to compare this particular council build to what may or may not have been taken advantage of by Mayor Durkan.

Councilmember Lewis spoke to this momentarily.

I do want to reiterate that every elected official within the city of Seattle, should they find themselves in a similar situation, does have the statutory right to make this request, but that is a voluntary act that the elected official has to trigger themselves.

And we all make those choices personally and depending on our own personal circumstances.

And I agree with Council Member Lewis, had Mayor Durkan made a request for this, or any of you made a request for this because you found yourselves in the same situation.

I would have given it the same fair and due consideration that we're giving this bill today, regardless of anything else.

And so with that being said, I'm going to go ahead and officially close out debate.

I want to thank you all again for making yourselves available today.

And I'm now going to ask that the clerk call the roll on the passage of the bill.

Juarez?

No.

Lewis?

Yes.

Morales.

Yes.

Mosqueda.

Yes.

Peterson.

Yes.

Strauss.

Yes.

Herbold.

Yes.

President Gonzalez?

Yes.

Seven in favor, one opposed.

Thank you, Madam Clerk.

The bill passes and the Chair will sign it.

Will the Clerk please affix my signature to the legislation on my behalf?

Colleagues, this does conclude the item of business on today's agenda.

Our next regularly scheduled City Council meeting is on Monday, September 21st, 2020 at 2 o'clock p.m.

Once again, thank you so much for making yourselves available for the last 43 minutes.

I hope that you all have a wonderful afternoon.

We are adjourned.

Thank you.

Thank you.

Thank you.