Loading...
HomeMy WebLinkAbout1975-02-27 Special MinutesFebruary 27, 1975 7 :00 P.M. CALL TO ORDER ROLL CALL OF COUNCIL MEMBERS DISCUSSION Employee wages in the discrimination suit and discussion with the City Council's appointed attorney j4/t/ TUKWILA CITY COUNCIL Tukwila City Hall SPECIAL MEETING Council Chambers MINUTES Council President Traynor presiding, called the Special Meeting of the Tukwila City Council to order. GARDNER, TRAYNOR, DAVIS, HARRIS, SAUL, JOHANSON Councilman Sterling arrived at the meeting at 7:03 P.M. Council President Traynor asked if it was the pleasure of the City Council to go into Executive Session with their attorney or if the meeting should be held in open session. Attorney Hard said he had no objections to saying what he had to say in an open session and all City Council members agreed not to go into Executive Session. Councilwoman Harris stated that since this was a Special Meeting of the City Council the Clerk is responsible for keeping the official minutes of Regular and Special Meetings and that office is not present at this meeting. She stated that according to one of the statutes a clerk pro tem may be appointed from one of the City Council members. Council President Traynor appointed Councilwoman Davis as Clerk Pro Tem. Attorney Hard presented to each City Council member a packet containing a copy of letter he had discussed and written to City Attorney Parker with attachments setting forth his legal opinions with respect to the matter of Mayor Todd issuing retroactive pay to employees involved in a discrimination suit where an Arbitration Committee author- ized an increase in pay for three employees in the City clerk's office. Attorney Larry Hard explained his letter he had written to City Attorney Parker which stated: "Our firm has been retained by the City Council of the City of Tukwila to assist the Council and the City in resolving certain matters arising out of grievances filed by the City Clerk and three employees in her department. I have had an opportunity to review this matter; and after looking at Resolution Nos. 364 and 365, the findings of the Special Arbitration Committee, the Request for Transfer of Funds from the Mayor, and various legal authorities, I offer the following observations: (1) There is a serious question whether the Special Arbitration Committee or the Mayor has authority to increase wages and salaries above the amounts established by Ordinance No. 911 in the 1975 City of Tukwila Annual Budget. A. The Committee specifically found that there was no unlawful discrimination prohibited by law. B. Such a decision by the Committee may be beyond its scope of authority as set forth in Resolution No. 365. C. Establishing the subject salaries is by State law, a duty of the legislative body of the City of Tukwila. (2) The Mayor is prohibited from transferring funds to in- crease salaries by virture of 2.08.010 (1) of the Tukwila Municipal Code (Ordinance 431, 1 1965). This ordinance, passed in 1965, was originally enacted by the City Council pursuant to the provisions of RCW 35.33.120. Subsequently, RCW 35.33.121 was enacted by the State Legislature, which was substantially the same in form and content as RCW 35.33.120. At the same time the later statute was enacted, the earlier statute was repealed. The ordinance remains valid and in full force. I direct your attention to the cases of State ex rel. Duvall v. City Council of the City of Seattle, 71 Wn. 2d 462 (1967) and State v. Carroll, 81 Wn. 2d 95 (1972), which set forth the rule of law in Washington that the statutory authority under which Ordinance No. 431 was passed was not annulled. In addition, I refer to McQuillin, Municipal Corporations (3rdEd.), 21.46, in which it is stated: FAccordingly where pursuant to statute an ordinance is passed and subsequently that statute is re- pealed but reenacted, the ordinance remains unimpaired. The statutory change does not have the effect of annulling the ordinance passed under the former identical grant of authority.' I believe the RCW 35.33.121 contains a grant of authority to the City Council to pass Ordinance No. 431 which is identical to the grant of authority in RCW 35.33. 120. There is additional case law and other authorities to support this position. In an event, the City Council has authority under RCW 35.33.121 to pass another regulation identical to Ordinance No. 431. On behalf of the City of TUKWILA CITY COUNCIL SPECIAL MEETING February 27, 1975 Page 2 DISCUSSION Contd. Employee wages in the discrimination suit and discussion with the City Council's appointed attorney Contd. //02" Tukwila and the City Council, I respectfully request that you reconsider this matter. Upon re- examination of the applicable rules of law, I believe you might wish to revise the opinions set forth in your letter of February 20, 1975 to Council Member Catherine Harris. It is the wish of the City Council to avoid further conflicts with the Mayor in this matter. The members of the Council are also deeply concerned that further attorneys' fees will be incurred at the expense of the taxpayers of the City of Tukwila if this matter results in litigation. I am prepared to discuss this matter with you at your earliest convenience. Very truly yours, LeSOURD, PATTEN, FTF,MING HARTUNG /s/ Lawrence E. Hard." Attorney Hard said in explaining his letter to City Attorney Parker that it was his opinion the actions of the Mayor at this point are unlawful. His request for transfer of funds is beyond his authority and that any issuance of a check by the Clerk's office and if the Treasurer were to honor that warrant it would be contrary to law. Mr. Parker disagreed with him, Attorney Hard said, although he stated that he had not researched the law so Attorney Hard did not know what City Attorney Parker will utlimately decide, or how he will advise the Mayor. The immediate problem, as he understood it, is that the Mayor's request for transfer of funds is to become effective tomorrow at noon. City Attor- ney Parker has advised Attorney Hard that they are going to issue warrants at noon tomorrow on the basis of the request that he had filed for back wages or benefits that have ac- crued. In any event, the City Council is faced with an immediate deadline and will have to decide what to do. He continued that as he saw it there are three alternatives: (1) Not to do anything at all. The reason being you are having a transfer of funds within the current budget, it does not cost the taxpayers of Tukwila any more money for that to be done because the Mayor is, in effect, taking it out of his own salary appropriation; (2) The next alterna- tive would be to pass another ordinance idential to 431 making it absolutely clear that he does not have any author- ity to make any further transfers. Attorney Hard said he was new at this and he did not know how long it takes to pass an ordinance I know you have to have it published, you can have an emergency clause, but I do not know how long it would take. The problem is that if the Mayor should then make another request for a transfer of funds before the new ordinance is passed or becomes effective then the City Council will be placed in the very same situation they are in now, but it is something the Council can do; (3) The third alternative that the City Council is faced with is the fact that the Mayor is attempting to do an act which I am telling you is unlawful. Attorney Hard continued that barring a voluntary withdrawal by the Mayor himself, based on City Attorney Parker's advice, that the third alternative would be to have the matter brought before the Superior Court of King County. That would be in the form of getting a Temporary Restraining Order, a TRO, and ask for a show -cause hearing to have him come in within 10 days and tell why that should not be continued and why a permanent injunction should not be issued at that time. This last alternative is the most severe and the most costly. If the City Council chooses this last alternative it will involve anywhere from $1,000 to $2,000, if there is an appeal there would be additional costs, and if it goes to the Supreme Court it would cost more. Attorney Hard continued that he was fairly certain that the Superior Court would rule in favor of the City Council in this matter, which means an appeal would have to be taken by the Executive Branch, which he felt he would win on the first level of appeal also which means the second appeal would be by the Executive Branch again and these costs would clearly be defensive costs. Attorney Hard stated that he felt the position of the City Council would prevail, that he liked to go into lawsuits where he knew he was going to win, but the City Council would have to decide if it is worth the cost. Councilman Saul asked who would pay if there TUKWILA CITY COUNCIL SPECIAL MEETING February 27, 1975 Page 3 DISCUSSION Contd. Employee wages in the discrimination suit and discussion with the City Council's appointed attorney Contd. ADJOURNMENT' 7:50 P.M. Attest: /1/3 is a transfer of funds and the increases are paid for two months. Attorney Hard answered that it comes out of the Mayor's departmental funds and would reduce his funds by that amount of money that was expended. Attorney Hard stated he had contacted City Attorney Parker at 5:00 P.M. this evening and they are not going to voluntarily refrain, but he might. Council President Traynor stated that one thing that had occurred to him was that if the City Council lets this go by then any salaries that they have set can be nullified the Mayor can come back and adjust any salaries he wants to. Councilwoman Harris stated that if this transfer of funds is an unlawful act and the City Council ignores it and takes no action are we, as Council members, knowingly contributing to an unlawful act in allowing it to happen. Attorney Hard said that was a very difficult question to answer and it seemed to him that anyone in the room who has heard this are all in it and it was his thought that any citizen in the City of Tukwila could have stand -in to bring action to prevent the Mayor from doing this. It was his thought that the City Council has a higher responsi- bility as they are elected officials of the City. He stated that he was not sure that by not bringing action they would be guilty of breach of responsibility. Councilman Johanson stated that it has been established precedent that when funds are transferred the City Council has been requested and taken action with specific ordinances to transfer funds. He stated they have historically been doing this, even in emergency cases, such as at the time of the fire. Council- woman Davis stated that she felt the City Could had no alternative but follow alternative 3 as outlined by Attorney Hard. Councilman Saul stated that he thought if the City Council members had agreed on alternative 3 they should take a vote on it. Attorney Hard stated that if there was some indication of a voluntary suspension of this action by the Mayor, upon the advice of the City Attorney, action could be stopped. Council President Traynor stated that Mayor Todd was in his office and he and Councilman Sterling stated they would ask him if there had been any change in his anti- cipated action. Council President Traynor returned and state that Mayor Todd had stated he would be guided by the letter he had received from City Attorney Parker. He stated there was no reason for him to come into the Special Meeting as he was abiding by the advice of the City Attorney. Attorney Hard stated that every law suit has its risks, but he felt certain the stand the City Council was taking was the correct once. MOVED BY HARRIS, SECONDED BY JOHANSON„ THAT MR. LARRY HARD OF THE LAW FIRM LeSOURD, PATTEN, FTFMING AND HARTUNG, SPECIAL TFGAL COUNSEL TO THE TUKWILA CITY COUNCIL, BE AUTHORIZED TO PROCEED WITH THE NECESSARY STEPS TO OBTAIN A COURT ORDER PREVENTING THE MAYOR, CITY CLERK, AND TREASURER OF THE CITY OF TUKWILA r'k?0M ISSUING AND RE- DEEMING PAYCHECKS WRITTEN TO SHIRLEE KINNEY, DORIS PHELPS, AND SHIRLEY KRISTOFFERSON FOR AN AMOUNT IN EXCESS OF THAT A AMOUNT PROVIDED FOR IN THE 1975 ANNUAL BUDGET FOR THE CITY OF TUKWILA. THE FUNDS TO COVER THE EXPENSES OF THIS ACTION HAVING BEEN BUDGETED UNDER PROFESSIONAL SERVICES IN THE CITY COUNCIL BUDGET FOR 1975. CARRIED. MOVED BY SAUL, SECONDED BY JOHANSON, THAT THE CITY COUNCIL SPEC XAL MEET DJO CARRIED. Dwayne D. Traynox; Council President Joanne Davis, City Clerk Pro Tem