03/16/2006: ""He Has A Fool For A Client""

By Richard Fralick

If you are not a County Council watcher, you missed the recent machinations of the Council surrounding the Charter-mandated appointment process of candidates for the Citizens' Salary Commission, the official body that will, for the first time, establish salaries for all elected officials in San Juan County.

Some background: state law allows the Salary Commission to be appointed by resolution or by ordinance but the Charter requires that legislative processes be established by ordinance. This is important because ordinances must be published before and after their passage and are subject to referendum once passed. Resolutions can be created and passed the same day and are not subject to referendum. State law dictates that the Citizens' Salary Commission is made up of ten members. Of the ten, the County Administrator appoints four based on their experience and background and the remaining six from a list of candidates chosen by lot by the Auditor's Office. According to law, the County Administrator appoints all ten. The appointments of the County Administrator are subject to approval by the Council.

Interestingly, the Council tried to do two things: first, establish the Citizens' Salary Commission by resolution rather than by ordinance as required by the Charter, and to nominate members to this Commission by a "collaborative process" between themselves and the County Administrator, meaning that they, the Council, would appoint and approve the people who are going to establish their salaries.

Of course, the Charter writers had something completely different in mind and, in a comprehensive legal memorandum presented to the Council on February 6, 2006, the San Juan County's Prosecuting Attorney's Office concurred. County Prosecutor Randy Gaylord said to the Council, "your proposal to use the form of a resolution is not appropriate. Moreover, the appointment procedure you establish is not consistent with state law." The memorandum further amplified that on the first point the establishment of the Citizens' Salary Commission is a legislative act and as such it must be accomplished by ordinance, not by resolution. On the second point, the separation of powers mandated by the Charter and state law requires that the County Administrator alone appoint the members to the Salary Commission. In a separate action, the Council would then approve these appointments.

Under this compelling argument, the Council backed down and decided to establish the Salary Commission by ordinance as advised. That might have been the end of it, had not Council member Bob Myhr, during the Council meeting of March 7, 2006, taken the extraordinary step of reading into the record a prepared statement which substantially said that, having been forced into the ordinance process this time, it did not represent a "precedent" for the Council in interpreting the Charter, since there was "ambiguity" on the question of ordinance versus resolution. He also opined that despite his own Prosecuting Attorney's legal memorandum to the contrary, the Council could still appoint the membership of the Citizens' Salary Commission itself if it so chose.

Why is it important for voters to be aware of this? Because in the past, ignoring the advice of the County's duly elected, professionally trained lawyer, the Prosecuting Attorney, has cost San Juan County taxpayer's lawsuits and painful financial settlements. The voters passed the Charter in a landslide, and one of their clear messages was that they wanted the business of the County handled differently. Bob Myhr's insistence of asserting an opinion, contrary to that of the County's legal authority just a month after it was rendered was an embarrassing revelation of how little he has absorbed of the Charter's import or intentions. Hopefully, next time, he will take the legal advice he is given and withhold his frustration from the public record. Public records, like public decisions, are permanent.

(Richard Fralick is the Chairman of the Citizens for Responsive County Government)