Weekly Update: 03/19/2023

The Ad-Hoc Council Rules Committee will hold a meeting on Thursday, March 23, 2023 at 3:30 p.m.; 21900 11th Ave S, Des Moines, WA 98198 (the Police Station.) As of this publish date it will not be recorded. So if you value transparency on any issue I strongly urge that you attend.

Background

At our April 7, 2022 ‘goal setting’ meeting, the Council discussed updating our Current Rules of Procedure, which have not changed since November 2019. At our July 7, 2022 City Council Meeting, the Council voted 6-1 to proceed with an update. I voted against because there was absolutely no process outlined. It was simply left to Deputy Mayor Buxton to chair a committee (chosen by the Mayor) to undertake ‘something’.

But as I wrote here, the Mayor’s closing comments at that meeting were instructive.

1:46:40 “There are things like social media that need to be adjusted. There needs to be clarifications of the use of city email and whether you [JC Harris] have the authorization or designation to contact outside you know entities and governances and so forth without the designation of council…”

At some point thereafter, the Mayor appointed himself and Councilmember Steinmetz to join Deputy Mayor Buxton. In mid-September, there were then two meetings of the committee, also at the Police Station, where the rules were re-written from the ground up, using a completely new template–apparently based on Bothell and Kirkland. At both meetings, the only audience members were moi, Councilmember Achziger and a former City Councilmember. At the second meeting was a single resident. Neither meeting retained minutes or were recorded. However, I made cell phone recordings, which are included with the following articles:

1. September 15, 2022 Meeting #1
2. September 29, 2022 Meeting #2

On March 17, 2023 the Council received a document named Council Rules of Procedure Final Version and was notified of the Thursday March 23 meeting.

Why you should care

Our Rules govern how our meetings run, but also, our interactions with the City Manager and staff, and your interactions with the Council and the City Manager. It’s not a stretch to say that these rules are the most consequential aspect of the transparency and democratic governance of the Council.

Unfortunately, it’s a bit like talking about ‘banking regulations’. They’re dry and complicated and nobody cares until… there is a bank failure directly related to a change in those rules. That’s not an abstraction. It happened just last week.

This is as impactful to you and Des Moines as banking regulations. This doesn’t affect one issue, it will affect every issue going forward. In fact, it’s the biggest change to our Council rules in our history for the simple reason that it is not an ‘update’, but rather a complete re-write.

And to give you some sense of that, without going through prior meetings, click here and look at the “Side by Side” which will give you a sense of how different the current (old) document and the proposed (new) documents are.

Some Details

I struggle whether or not to provide detailed examples, because I want people to actually read for themselves and not feel like I’m cherry picking. But I also recognise people are not gonna read through thousands of words so, here are some (not all, just a handful) of the sections I have concerns about…

5.03h

“…Public expression of dissent and protest outside the open public meeting is inappropriate unethical behavior.”

Frankly, most people do not understand Council-Manager Government very well. So you might think that ‘disagreement’ on our City Council is somehow ‘different’ from other forms of government. It’s not. Think of other governments with which most people have more basic knowledge: State and Federal.

EXAMPLE: Say there was a vote to create legislation that your state rep or senator knows their constituents disagree with. (Oh I dunno “police pursuit laws”? 😃 ) Do they remain silent? Of course not. You hear them talking about how to CHANGE it. Instantly. Fervently. Consistently. And they do so until the law better reflects the needs of their constituents.

They want the vast majority of constituents who do not watch the committees and votes to know where they stand. And they want their colleagues to feel that same pressure from constituents. If they don’t speak, it implies to constituents that they were somehow ‘OK’ with the vote. Among other things, silence creates a tacit consent and enables the status quo.

Given that way of working, colleagues learn to tolerate and even benefit from ongoing disagreement. Anyone who has watched a State Committee knows that it is a much more congenial environment. And despite the angry public rhetoric we sometimes hear about, in truth there is almost always at least some compromise going on in every state bill.

In short, it is not ‘sabotaging’ or ‘undermining’ the Council to disagree off the dais. In fact, you cannot have democracy without it.

5.07

E-mail between Councilmembers, and Councilmembers and staff shall not be transmitted to the public or news media unless a public disclosure request has first been filed with the City Clerk.

Except in very unusual circumstances, all communications between Councilmembers are considered public documents. So this requirement is simple obstruction.

EXAMPLE: Say I receive an e-mail on a Tuesday which could have a meaningful impact on a vote scheduled for Thursday. If I’m required to file a PRR, legally that gives the City up to seven days to release those records, which means that the public would not be aware of that information until after the vote is taken.

Also, note the language. The requirement is not to file a request with the Public Records Officer, but rather with the City Clerk–who reports to the City Manager. That also does not kill me.

7.05

…Public criticism of staff by Councilmembers is inappropriate and unethical.

So, if the City does not execute properly, Councilmembers are not supposed to say “The City did not execute properly”?

The RCW referenced in this section actually reads…

“Except for the purpose of inquiry, the council and its members shall deal with the administrative service solely through the manager and neither the council nor any committee or member thereof shall give orders to any subordinate of the city manager, either publicly or privately.”

The RCW says nothing about criticism.

7.06

The City Manager is the information liaison between Council and City staff. Requests for information from Councilmembers are to be directed to the City Manager. The information requested will be copied to all members of Council so that each member may be equally informed.

Same RCW as above. What my colleagues have done is strip away the first clause entirely

“Except for the purpose of inquiry, the council and its members shall deal with the administrative service solely through the manager…”

Apparently they prefer that it read:

“The council and its members shall deal with the administrative service solely through the manager…”

Just one problem. That’s not what the law says. What they want is to prevent any inquiry except when it is is pre-approved by the City Manager.

In normal cities (see below), CMs do occasionally ask for small amounts of information from the staff and simply cc the City Manager–so as to always keep them in the loop. If a request for information is considered excessive, a kind note is provided and the request is referred to the Council to decide if it’s worth taking staff time.

Also, in our city the Attorney and HR Director are also a part of that chain. Think about that. If a CM has a legal question or a personal HR question, that too must go through the City Manager.

8.05

…No photos, audio or video recordings shall be made at City Council Meetings, Special Meetings, or during appointed committees, boards, or commissions of the Council, without the consent of the Presiding Officer or a majority of the Council.

By that standard, I would not have been able to record the two prior meetings. Reading further back in the text, it also means that there is no requirement to ever record meetings that do not occur at City Hall.

In my view, every City meeting, and every community meeting and every event where the Mayor or any member of staff speaks on behalf of the city should be recorded with video. This is 2023, people.

9.02h

The Mayor will be primarily responsible to ensure that the City Council, staff, and members of the public adhere to the Council’s adopted Protocol.

This implies that the mayor now has some police power over the Council. It must go.

11.01F

Dress Code: For Council Business meetings, Councilmembers shall adhere to a business casual attire and no hats allowed.

This is vindictive, ridiculous and likely unconstitutional. It’s also particularly distressing to me because both the City and my colleagues have been made aware that I wear a hat as an accommodation to a long standing medical issue.

I can joke and say that, since I am part Jew, a Streimel is in my near future, but this is no joke. The Council has no business attempting to regulate any aspect of a councilmember’s appearance. And the fact that it attracts so much more attention than what we say on the dais is disturbing.

Broadly Speaking

• Not to get all ‘meta’ here, but the entire process is, in itself a transparency problem. During the meeting creating the Ad Hoc Rules Committee, I asked for something simple: a one page road map. I got no support. So now, there has been no communication as to how the committee works or what its schedule is. When people won’t give you something as simple as that one-pager, in writing, you should be skeptical. It’s a tactic, not a mistake.
• For example, when the Council approved creating this committee, we were supposed to bring in a consultant to interview each of us and advise on the final documents (does that remind anyone of our ‘communications consultant’ plan? 😀 ) Obviously, that never happened. But since there’s no roadmap, the committee can say, “Oh we’re going to do that later…” Even though, that was not the discussion at the time.
• I am quite concerned that this document was named as ‘final’. Every government proposal I have ever seen has a clear watermark or heading labeling it as ‘Draft’ (including all our ordinances and resolutions.) This one does not.
  • My colleagues may seek to minimise these changes, or say, “Oh it’s not the final version. So please listen to my recordings and judge for yourself. I do not think it’s unfair to say that all these changes were enthusiastically endorsed by the three members (Mahoney, Buxton, Steinmetz)
• This is a complete re-write and not an update. And so one must ask, why is this even necessary. Are the changes in the rules so extreme as to benefit from a radical change in formatting? This really matters for three reasons:
  1. The existing version has clarity. In trying to put the document into more ‘plain language’ the new version is a lot less precise.
  2. The changes are not that significant as to require a complete re-format. There is simply no compelling reason to make such a radical change in presentation.
  3. In every case in our history, we simply marked up changes, then provided a citation showing how the new version differs from the old. By making a complete overhaul, we’ve made it almost impossible for anyone to compare the old against the new. We’ve broken a chain that goes back over seventy years! That’s the reason legal documents (including laws and tax code) almost never change format. Doing so just begs for mistrust. As it should. Simplify? Yes. Completely reformat? Not on yer life.
• The current (old) rules are just that: rules. This new draft document attempts to do multiple jobs. It has ‘rules’, but it also spends a certain amount of time on what I would call ‘onboarding and indoctrination’, ie.
  “You will be given a tour of the city” and “How to be a good employee!” And to the extent that any of that is necessary, it belongs in a separate document.
• It continues a longstanding trend towards concentrating authority with the Mayor. According to the State code, Council-Manager Government is meant to be seven equals. But with each change in rules, the Mayor gets more and more ‘stuff’ over which he alone decides. That has now made us true outliers.
• All the rules on etiquette are subject to the will of the majority. As in my recent censure, that only makes all of those rules on ‘good behaviour’ subject to abuse. Who decides what is appropriate conduct (either on or off the dais)? They are all simply tools for political bullying.
• There is no mention of limiting a Councilmember’s activities after they leave office. This absence creates the possibility of real ethical challenges.
  • EXAMPLE: Former Mayor Dave Kaplan was hired by the City as a consultant immediately upon leaving office. Eight months later went to work in a role with the Port of Seattle that places him directly in the political fray with Des Moines and our sister airport communities.

Code of Silence

But there was one current CM present and an ex-CM present at those meetings and it is disappointing to me that no one else has expressed any discomfort with this process because some of those discussions went to fairly extreme places. Anyone who was present and does not find this stuff disturbing and does not say so clearly is enabling the darkness.

That is the problem. No one else speaks up. No one would have any idea what was going on if I did not raise these points. (And ironically, if these rules pass they would theoretically preclude anyone ever bringing them to light.)

What the public does not ‘get’ is that this has been going on for decades. Each new majority since I’ve lived here proposes rules changes to centralise authority and veer further and further away from Council-Manager Government to a quasi-parliamentary system–where the majority aligns with the City Manager to run the table.

The reason it never gets fixed is the same reason the Filibuster never gets fixed in ‘the other Washington’. Even if you’re in the minority, people dream of when they take over so they will become “the Good King” and run the table with their form of “good government”.

I ran for office to roll that back after watching others try to navigate “the swamp”. There was never a friction-free way to achieve that goal. People (on all sides) have gotten too used to ‘the game’ here. Sooner or later, it makes everyone believe that how we do things in Des Moines is ‘just how government works’.

It’s not.

PS… Examples of how it can work better

Sequim

This is section 5.4 of the Sequim rules of procedure. I coulda picked a bajillion other cities (including SeaTac for example.) But this is their interpretation of exactly the same RCW as in my two examples above (5.06 and 5.07.) Friendlier, no?

The City of Sequim encourages open communication between the City Council and staff. The City's philosophy is that open communication creates healthier working relationships within the organization. Staff is encouraged to communicate directly with the City Council and the City Council is encouraged to communicate directly with staff, following the guidelines below. These guidelines are established to help everyone receive the information that they need to be successful in their roles. Following the guidelines will also improve efficiency by reducing the number of repeat questions and conversations that take place internally and in City Council meetings. These guidelines do not apply to Councilors conducting business with the City outside of their Councilor roles.

• Councilors will copy the City Manager on communications with staff;

• Council requests for information from staff requiring more than 2 hours of staff time will require City Manager approval. It is incumbent upon staff to confer with the City Manager under these circumstances and for the City Manager to communicate with Council if an issue requires policy direction or resolution. Under those circumstances, the City Manager would refer the item back to the entire City Council in a public meeting for direction;

• Councilors are not to direct staff actions beyond the research requests mentioned above;

• Councilors acting in volunteer roles with separate organizations should keep the City Manager informed when interacting with staff.

An excerpt from the City of Sequim Rules of Procedure

SeaTac

Different city, same deal…

Section 11. Council Relations with Staff
(A) There will be mutual respect from both Councilmembers and staff of their respective roles 
and responsibilities when, and if expressing criticism in a public meeting. City staff 
acknowledges the Council as policy makers and the Councilmembers acknowledge staff 
as administering the Council's policies.
(B) Council Request Form (CRF):
(1) The CRF is used for all requests by a Councilmember.
(2) The CRF shall be directed to the Executive Assistant by means of hardcopy or electronic version (e-mail) of the CRF. The Executive Assistant shall acknowledge receipt by e-mail. 
(3) The City Manager shall forward the request to the appropriate Department Director for written or electronic response and to determine the estimated time or date for substantive response.
(4) The City Manager shall determine the appropriate level (see below):
(a) “Major” means any effort which is reasonably estimated to entail more than three hours of staff time.
(b) “Significant” means any effort which is reasonably estimated to entail one hour or more, but less than three hours, of staff time.
(c) “Minor” means any effort which is reasonably estimated to entail only an immediate response or less than one hour of staff time.

(5) The Executive Assistant will forward a copy of the request to the entire Council.
(6) Approval for action or referral to a Council Committee is requested at a Regular Council Meeting.
(a) Major requests require approval/referral from a majority of the Council. 
(b) The City Manager may also ask for Council approval/referral of minor and significant requests at his/her discretion due to the nature of the request.
(c) The progress of the CRF will be tracked through final resolution on the CRF Status Report and will then be closed.
(C) All written material accumulated and/or prepared in response to an individual Councilmember shall be provided by the Executive Assistant, to all Councilmembers.
(D) Councilmembers shall not attempt to coerce or influence staff in the selection of personnel, the awarding of contracts, the selection of consultants, the processing of development applications or the granting of City licenses or permits.
(E) The Council shall not attempt to change or interfere with the operating rules and practices of any City department.

City of SeaTac Rules of Procedure