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We Bought a Lemon
The idea of "separation of powers" was promoted heavily when the Charter was "sold" to the public. Now I am detecting some buyer's remorse because just like an item purchased on E-bay, when you actually get it home some of the advertised features may be missing. That's why I think the Charter is a lemon.
For example the concept of "separation of power" does not actually exist in the Charter (It's not "revenue neutral" either). It could be that both the Charter and the Council are causing the problems. The good news is both things can be fixed.
I was one of several former Freeholders who did not sign the "Open Letter to the Council" complaint to the Council. Some members of the now defunct Board of Freeholders are complaining that the Council is "attempting to thwart the will of the people and follow their own self serving agenda". That they are "not qualified" because they have no legal training to do the job every other past Commissioner has done, and that they are "attempting to hold on to all functions and sources of your past power". Although these accusations may be true, I believe some of them are a bit unfair and here's why.
I think "separation of powers" is different in reality than in concept. In order for this principle to be successful, co-equal branches of power must be established that cannot interfere with each other. It's as simple as that. This may be what the freeholders "envisioned" but our Charter fails to accomplish this.
Our Charter places the Administrator in the executive role, the Council as the legislative branch and the Hearing Examiner in the judicial role. The problem is that the Council hires and fires them all. This is not true "separation of power".
Legislative, judicial, and administrative powers were formerly all concentrated in the hands of 3 elected County Commissioners. The Freeholder group told voters that the Charter reallocated administrative power by removing it from the Council and giving it to an appointed Administrator. However if that appointed person is hired by and can be fired by that same Council then all administrative power remains in the hands of the Council. If they don't like the way the job is being done they can hire someone else that will do what they want. It adds another layer of bureaucracy without substantially changing anything.
If you have watched events in the courthouse lately you may have noticed that the Administrator has become a glorified staff member without the ability to tell the Council to butt-out. The Council gives the orders and expects them to be carried out by their employee. The way the Charter structures the relationship between the Council /Administrator also leaves us with the possibility that employees under supervision of the appointed Administrator can take their complaints directly to the Council because they have the final say about the performance of the Administrator.
The way separation of power really works is if the Administrator is co-equal to the Council. They must not be beholden to one another. If the Council is not satisfied with the job the Administrator is doing the Administrator must have the power to tell the Council to mind their own business.
Furthermore, our Charter does nothing to prohibit the Council from inserting themselves into a quasi-judicial role in land use disputes or disputes about how legislation is enforced. If the administrative and judicial branches are truly free from interference from other branches, only then can they be co-equal and this defines the concept of "separation of powers". All the other successful Charter Governments in Washington work this way.
The Charter is not perfect. Because it is imperfect it will only work if there is a great deal of cooperation between the branches of government and the people. It can be changed and should be changed when problems arise. If the people want true separation of powers they can have it by changing the Charter.
It is unfair however, to criticize the Council for failing to divine the intentions of the former Freeholders. If the Freeholders envisioned a different kind of "separation of powers" in the Charter we should have written it into the document. It was disingenuous to sell this document as a model with "separation of powers" included. It would be more constructive to advocate changing the Charter rather than engaging in personal attacks. In other words, take the lemon and make lemon meringue pie out of it.
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