02/28/2006: "Salary Commission Appointments - Who Does What?"
Since the passage of the Charter, the new County Council has been struggling with how to set up the Citizens Salary Commission that is required by the Charter. The Commission will set the amount of money the Council earns, and also will set the salaries of the Assessor, Auditor, County Clerk, Sheriff, Treasurer and the Prosecuting Attorney. If the former BOCC members, who are now Councilman, have sometimes seemed to be in a somewhat state of denial as to the sudden lost of their executive powers to a County Administrator, they are also clearly struggling with how the selecting and appointing of folks who will be setting their salary, and the salary of the other county leaders, will proceed.
The problem of who-does-what, has to do with who appoints these people. For the first six members of the commission, there is no argument, as the Charter clearly states these "shall be randomly selected by the County Auditor" who will "provide the names of the persons so selected for appointment..". Simple enough, but "The remaining four of the ten…shall be appointed by the County Council in collaboration with the County Administrator". And then the question becomes, what does "collaboration" mean in this context, and within the broader context of law and accompanying legal precedent?
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In the early discussions of the issue by the Council, it appeared they assumed the County Administrator and they would sit down together and come to an agreement as to who the four should be, and then the Council would appoint them to the CSC (Citizens' Salary Commission). End of story. But hold on a second, Prosecuting Attorney Gaylord told them, it is not that simple. Gaylord told the Council that his office had reviewed what the proper procedure should be, and it was the opinion of his office that the Administrator selects the names, and then presents them to the Council, who then appoints them.
But Councilman Myhr did not see it quite that way, and expressed his opinion that it is a policy decision when the CC makes appointments, and the CC should be the one to appoint the members of the Salary Commission. What was submerged in the dialog was the real issue of who picks the names to be appointed. What happened to that "collaboration" part? The CC appeared to hold the view that they would not only appoint, but in collaboration with the Administrator would also come up with the names, which they would then also appoint.
Gaylord responded that the Council was confusing the two actions of selecting and appointing. Gaylord told the Council that the Charter clearly separates the legislative from the Executive, and regardless of the name one gives to the process (e.g. appointing, selecting..) the Executive (i.e., the Administrator) makes the appointments with the approval of the CC. But Myhr persisted that "there are legal ambiguities that we need to make clear".
By February 6, Gaylord had prepared a memo to make clear to the Council the legal ambiguities. The memo was entitled "Citizens' Salary Commission", which covered the background and duties of the CSC, then set out the issue of should the CC pass an ordinance or use a resolution, noting that the CC had instructed him to use the resolution format, which he strongly suggested they not do. The memo quoted the exact language of the Charter that states that the members of the CSC will be "duly appointed", and then the memo covered in great detail both the language of the Charter, and case law, that clearly indicates that the establishment of the CSC is a ‘legislative act' that must be accomplished by an ordinance". The memo also attempts to convince the CC that, contrary to the Council's desire to be the body that appoints the members of the Salary Commission, the law is clear that "it is the leader of the executive branch…that is granted the power to appoint the members of the salary commission…(and) that person is the county administrator, not the County Council".
The memo addressed the "collaboration" issue by stating the forming of a CSC requires two actions, the first is the "appointing", and the second is the "approval". In other words, the Administrator brings a name forward for approval by the CC. The Council may approve or reject. If they reject, the Administrator then submits another name. This process provides the balance of power between the Administrator and the Executive. And it provides a safeguard against the abuse of power. What is the role of the County Prosecutor in all of this? He can only advise, and at the end of the memo to the Council, the last sentence states "Please move forward with the advertisement of an ordinance to establish a salary commission that is consistent with the "Home Rule" Charter form of government and RCW 36.17.024"