The Legality Discussion Continues….

The following is an email exchange on Nov. 29th, between Barbara Brenner, Dana Brown-Davis (Clerk of the Council), and Nancy Ging, in response to Nancy’s previous emails addressing the legality of the new ferry rate ordinance.  See two previous posts:  “Is the New Ferry Rate Ordinance Legal?” and “More on ‘is it legal’…”.    The Council’s increasing disregard for public input, due process and citizen’s rights affects all Whatcom county citizens, but this occurrence is particularly personal for us . We had a right to be heard on this new rate ordinance, and we were not.

From Barbara Brenner:
It was not done as an emergency ordinance. We have been told by our clerk that she received an opinion from one of our attorneys that what the council majority did was legal. I have asked the name of the specific attorney and am going to speak to the attorney.
Barbara Brenner—please send all correspondence to my county address, for retention of complete public records


From Barbara Brenner:
I agree with you. We have always been told we need to have another hearing if we make any substantive changes. I think the surcharge concept was somewhere in the information we received in our packets but I would not have supported it anyway because we were about to begin mediation. I don’t believe it helps our position in the mediation.


From Barbara Brenner:
Below is our clerk’s comments, below my response to her which I didn’t completely finish but accidentally hit the send button before I was done (it has been a long day. Then when I got home my computer crashed and I couldn’t get it to start. My husband, the computer wiz is out of town till Saturday so I thought I was done for the week. But when he called tonight he walked me through fixing it. Amazing!).

Anyway, she is clear she is not making an opinion on this. She is wonderful and I don’t want to make any trouble for her. It was the attorney at our meeting, I think it was Royce Buckingham. But I will find out who and speak to the attorney.

Barbara Brenner—please send all correspondence to my county address, for retention of complete public records.

Sent: 11/29/2010 11:55:20 P.M. Pacific Standard Time
Subj: Re: Ferry Ordinance Adopted Last Week

Thanks Dana.
Who was the attorney? I thought our attorneys told  us we have to have another hearing if we make any substantive changes. I don’t think the $3 surcharge was on. A council member made the motion and it was adopted. There may have been a surcharge mention in the original ordinance, I don (‘t know).


Date: Mon, 29 Nov 2010 17:10:00 -0800
From: “Dana Brown-Davis” <>
To: “Barbara Brenner” <>, “Bill Knutzen” <>,
“Carl Weimer” <>, “Kathy Kershner” <>,
“Ken Mann” <>, “Sam Crawford” <>,
“Tony Larson” <>, “Ward Nelson” <>
Cc: “Jill Nixon” <>, “Jennifer Paulson” <>,
“Karen Frakes” <>, “Martha Blakely” <>,
“Marina Engels” <>, “Nadean Hanson” <>,
“Randall Watts” <>

Subject: Ferry Ordinance Adopted Last Week

Dear Councilmembers:
Just an FYI that I did check with the attorney during our meeting last week when it appeared that the council was moving toward adopting the amended ferry ordinance and he advised that we could move ahead with the vote.  We have dealt with many similar situations recently and the information I have received from the Prosecuting Attorney’s Office is that we do not need to reintroduce (unless we are dealing with official controls or similar issues) an ordinance or resolution that is on for public hearing because once it is introduced, it is anticipated that there will be amendments made that will be discussed on the floor at the public hearing and would not require that the council start over again every time a change is made.  Once the amended ordinance is adopted, it is republished in the paper and posted in it’s entirety on our website.

Please note that this is not “my” opinion, but that of the Prosecuting Attorney’s Office.
Thank you.
Dana Brown-Davis, CMC
Clerk of the Council
Whatcom County
311 Grand Avenue, Suite 105
Bellingham, WA  98225

*emails are public records subject to public disclosure upon request*

From Nancy Ging (to Barbara Brenner): 

Thanks again, Barbara. I understand this is not the clerk offering an opinion, but a legal opinion she has passed on. (I personally think the Council Clerk does an amazing job.)

Two things jump out to me from what she said:
1. I don’t think a $3 surcharge was discussed during the hearing, so to say it was the reason for the amended ordinance not needing to be submitted for another session of public input would be incorrect. It was a change out of the blue that had not been publicly published, or even discussed at a public meeting (to my knowledge). A $2 surcharge was one of the twelve options, but I know people who supported that who were later appalled when the $2 turned to $3. That was yet another enormous increase in the proposed fares. As the attorney said on 10/26, it has always depended on how substantial a change is proposed.
This was a complete change from the proposed ordinance language. Because the ordinance proposed was based on one particular fare option, people’s comments during the hearing were directed to that language (regardless of options discussed previously). Had the $3 surcharge been the subject of the hearing, I guarantee you’d have heard different testimony.

2. The Clerk says, “We have dealt with many similar situations recently…” That’s exactly part of the reason I am challenging this situation now. I think due process is being increasingly disregarded, especially during the past year. The meeting last Tuesday was only the final straw. As a citizen of Whatcom County, along with other citizens (some of whom I expect you’ve heard from already, or will be hearing from soon) I’d like to convey the message to Council that it’s time for this erosion of rights to stop. Due process should be returned to it’s status of being carefully preserved by rules as codified in County laws, and by reinstating well-established County practices for public input (such as holding an additional public hearing when a proposed ordinance is substantively changed).

There are plenty of other serious procedural problems that were demonstrated in recent meetings. I selected this one because it seemed the most clear cut example to highlight the overall problem.

P.S. I know I’m preaching to the choir when I say all this to you, Barbara. You have always championed citizen input and citizen rights during your tenure on the Council. I appreciate it.

Nancy Ging

5 thoughts on “The Legality Discussion Continues….

  1. Thank you Barbara, and thank you Nancy.

    Yikes! These council members who think an additional 33% increase in the INCREASED rates is just a detail are the same ones negotiating on the overall lease agreement. The expression “fast and loose” comes to mind…

    Yes, I live on Lummi Island, but I am a tax-paying citizen of Whatcom County and want the assurance that my County government treats all county citizens fairly and, at the very least, plays by its own rules.

  2. Yes, thanks for making a point on this. Bait and switch is illegal for good reason under consumer protection laws, and easily abused by a governing body wishing to hide the truth and ‘slam dunk’ laws with little public input or debate (which I don’t propose was their intent, but the damage has occurred never the less).
    Minor amendments are fine, but not an entirely new ordnance with a completely different fare structure than what was advertised.

  3. Nancy’s point #2 is correct. This issue of due process (how well Council, Executive or Prosecuting Attorney actions truly follow due process) is one of those broad if boring political issues I think we islanders would do well to monitor carefully — along with other Whatcom County citizens — if we want to (1) avoid being broad-sided by the unexpected, and (b) be ready to respond rapidly and effectively when something like this happens.

  4. We islanders did monitor carefully the numerous issues related to due process, that are the subject at hand. It is explained in the Consent Decree, negotiated by the Tribe and County as requested by the United States District Court for adjudication of the ongoing litigation initiated June 6, 1979, by the Lummi Nation. Civil Action No. 79-682, and approved by the Court, Approved 1982.

    “I think it was Royce Buckingham. But I will find out who and speak to the attorney.”
    Yea you betcha, another sideline emergency for $3.00?
    I see Randall Watts on the list too, will he also explain the Tribes, 42 USC 1983, case from 1979?

    All the residents of Lummi Island, and our neighbors of the Lummi Nation, know about this County’s Due Process Program, it’s explained clearly, in that Library of the 42nd Congress.

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