AN ORDINANCE proposing an amendment to the King County Charter to make the office of King County prosecuting attorney nonpartisan; amending Section 610 of the King County Charter; adding a new Section 649 to the King County Charter; amending Section 680.10 of the King County Charter; and submitting the same to the qualified voters of the county for their approval or rejection at the next general election occurring more than forty-five days after the enactment of this ordinance.
This. Okay, so I'm wondering about making sure, since that is if we should go on to if they record a quarterly update and we can't do that because he's missing, you know, we'll just take it in order. So could you begin on our ordinance number 2016 0044? Yes, Madam Chair. Nick Wagner, Council staff. The staff report on this item begins on page 11 of your materials. This proposed ordinance would place on the November 2016 ballot a charter amendment that would make the office of King County prosecuting attorney nonpartisan and would, among other things, provide for vacancies in that office to be filled in the same manner as vacancies in most other elective county offices. Currently, every King County elected office except prosecuting attorney is nonpartisan. On the other hand, in all 39 Washington counties, the office of prosecuting attorney is a partizan office. For non charter counties this is prescribed by state law which is quoted on page 12 of the materials for charter counties. The ICW allows county offices, but not state offices to be designated as nonpartisan in the county charter. So if prosecuting attorney is a state office, state law requires it to be partizan. If it's a county office, the RTW would permit a charter county Charter County to make the office nonpartisan by charter in four of the seven charter counties in Washington, including King County. All of the executive branch elective offices except prosecuting attorney, are nonpartisan. This disparate treatment of the office could be due to uncertainty about whether the prosecuting attorney is a state office or a county office, and therefore whether the county is permitted to make the office nonpartisan. In an opinion issued last November, the Washington attorney general expressed the view the prosecuting attorney is a county office for election purposes and that a charter county therefore may convert it from partizan to nonpartisan by charter amendment. And that opinion is attachment to in your materials that pages 25 to 30. In reaching this conclusion, the attorney general considered not only the CW but also the Washington state constitution, which provides that counties, quote, shall not affect the election of the prosecuting attorney, close quote. The attorney general interpreted that constitutional provision to mean only that the office of the prosecuting attorney must remain elective rather than being made a point of those, according to the attorney general. Charter counties do have legal authority to convert the office of prosecuting attorney from PARTIZAN to nonpartisan by charter amendment. The effects of the proposed Charter Amendment, if it were placed on the ballot and approved by the voters, are described on pages 13 to 14 of your materials, starting at the bottom of page 13. First, the election of the prosecuting attorney must be conducted as a nonpartisan election. This means that no candidate's party preference may be listed on the ballot. This does not preclude candidates from seeking party endorsements or affiliating themselves with political parties in their campaigns. Nor does it preclude political parties from endorsing or campaigning for candidates. Nor does it prohibit any form of partizan, identification or advocacy except on the ballot itself. The second effect of the amendment would be that upon taking office, the prosecuting attorney is required to, quote, designate one or more employees who serve as a deputy or assistant in such office to serve as an interim official in the event of a vacancy. Close quote. If there is a vacancy in the office of prosecuting attorney, the amendment would require that it be that it be filled like a vacancy in any other nonpartisan elective county office. Which is to say that the council appoints as acting prosecuting attorney, quote, an employee who served as a deputy or assistant in such office at the time the vacancy occurred, close quote. And that person shall serve quote until the vacancy is filled by appointment pursuant to general law for nonpartisan county elective offices, close quote. The council is not required or would not be required if this amendment were approved by the voters to appoint someone from the same political party as the former prosecuting attorney and from among three persons nominated by that party's county central committee. As would be the case if the office remained partizan. The fourth requirement or the fourth effect of the matter. That there are six. I have a question. Okay. So when the prosecuting attorney takes office, he designates one or more employees to serve as deputy or assistants. So not that this is going to happen to a prosecutor, but suppose he should die. And so then that person would the interim official would then take over as the new prosecuting attorney or as the interim until he appointed using the same procedure that we just did. The three judges with. That person would take over as the interim prosecuting attorney, and then the counsel would be, who would have the option of appointing someone who served as a deputy or assistant in the office to serve as acting prosecuting attorney until such time, if the county wish, the county could just leave it at that until the next election. Or the Council could appoint someone. Anyone who meets the requirement. The qualifications of office to be the I guess you call none acting prosecuting attorney until the next election. It's kind of a convoluted process. As to why it's going to be a Hanabusa. Okay, so the person he appoints to be the interim from the very beginning is not the person that would necessarily step up because we'd have or they'd step up for a while until we decided which of the existing deputies or assistance in the office would fill it until we got to the person. Okay, I get it now. All right. That is a little convoluted. Okay. Go ahead. Thank you. The fourth effect of the proposed amendment is that the qualifications for office and the timing of the election of the prosecuting attorney shall be as prescribed in state law. Before discussing the practical effect of making the Office nonpartisan, it's important to understand what partizan elections in Washington look like. Unlike traditional Partizan elections in which the political party endorsing a candidate is listed on the ballot with the candidate's name. Washington's top two primary system permits only a candidate's party preference to be listed with the candidate's name in a partizan election. The ballot may not show whether the candidate has been nominated or endorsed by a political party. Whether a party approves of the candidate or whether the candidate is a member of or is otherwise affiliated with a party. In traditional partizan elections, the listing of the name of a political party below a candidate's name on the ballot informs the voter that the party endorses the candidate, which is information that the voter can use in deciding whom to vote for based on the voter's familiarity with the party and what it stands for. Party endorsement has been described as a low cost and usually reasonable policy guide for voting. Since it enables the voter to avoid a more time consuming process of determining the candidate's positions on issues of concern to the voter, and in my staff report, I compare it to the way a consumer might rely on a consumer magazine's ratings of products. A more important decision, but still there is some similarity there. The candidate's preference for a political party does not necessarily mean that the party supports the candidate. For example, two candidates running against each other might express a preference for the same party, and the candidate could express a political party preference for strategic reasons, despite holding views not shared by that party. The bottom line is that some of the informational benefits of traditional partizan elections are unavailable to voters in Washington under the top two primary system. Still, even a candidate's expressed preference for a political party provides some information about the candidate that a voter might find useful on pages 15 to 17 of your materials . Starting at the bottom of page 15 is a discussion of some of the most common arguments for and against Nonpartizan elections. First, there's the argument that potholes and bus schedules, for example, have no political affiliation in the sense that there's no political disagreement about whether potholes should be fixed and busses should run on time. This argument is then extended to say that local government is really all about management issues, not politics. So party labels are less important in local elections and don't belong on the ballot. On the other hand, one could argue that a willingness to raise taxes, to finance road improvements or mass transit or the allocation of resources between those two may depend on an elected officials political perspective. Similarly, one could characterize as representing a political viewpoint a prosecuting attorney's position on issues such as whether it's an effective use of public resources to press felony charges against against certain low level criminal defendants, or whether to support diversion programs for nonviolent offenders or to decriminalize certain drug offenses . This latter view would suggest that local offices and issues have political dimensions and should be treated as such on the ballot. A second argument for treating local elected officers as Nonpartizan is that political allegiances and party affiliations are sometimes based on national issues that don't carry over to the local level. The local branch of a political party, for example, may take positions on local issues that the voter, if he or she knew about them, would not support. Voting on the basis of a party label on the ballot could lead such a voter to vote mistakenly against his or her own preferences. Another argument for making nonpartisan an office like prosecuting attorney or for that matter judge, is that such officers should be conducted in a nonpartizan and unbiased manner. But an endorsement by a political party does not necessarily mean that the endorsed candidate, if elected, will be biased in favor of that party in performing the duties of the elected office. On the contrary, a party might endorse a specific candidate for prosecuting attorney, for example, precisely because the party believe the candidate will be even handed. In Washington, though, the only permissible reference to political parties on the ballot is the candidate's preference for a political party, which does seem more suggestive of bias than a party's endorsement of a candidate. This arguably strengthens the case for having nonpartizan election of the prosecuting attorney in Washington, compared with states where a party's endorsement is permitted on the ballot. Fourth. It has been argued that nonpartizan elections are inherently less rancorous than partizan elections. In Washington, though, nonpartisan elections are required to be nonpartisan only in the sense that party endorsements, affiliations and preferences may not be shown on the ballot. Candidates are not precluded from affiliating themselves with political parties in their campaigns or from seeking partizan endorsements. Nor are political parties precluded from endorsing or campaigning for candidates. Partizan Identification and advocacy are prohibited only on the ballot itself. Another rationale for removing party affiliation or preference from the ballot is to motivate voters to find other sources of information about the candidates. In practice, the evidence suggests that many voters in nonpartizan elections rely on information, shortcuts, or I should say, substitute information shortcuts like the race or ethnicity suggested by a candidate's name or the candidate's name, familiarity which favors incumbents and well-financed candidates, or that a voter might decide for lack of a reason to favor one candidate over another not to vote at all. This possible negative effect of having a nonpartizan ballot may be limited to some extent by Washington's practice of providing a voter's pamphlet containing information provided by the candidates. Finally, if partizan information is unavailable on the ballot and voters have not found substitute sources of information, they may end up voting by mistake for a candidate who does not share their views. Besides being undesirable in itself, in a jurisdiction where a clear majority of voters supports a political party, such mistakes are statistically likely to favor the minority party. That concludes my staff report, unless there are any questions and as you see, also available to answer questions. Are the prosecuting attorney, Dan Söderberg and Tom couple from the Pierre. Any questions before we bring our prosecutor and legal staff and then as a senator again? Sorry about that. Councilmember Caldwell. Thank you, Madam Chair. Nick, I went in under a system of the non the nonpartisan position, just as it's the case of our running for office where we have nonpartisan offices and I don't recall this can a candidate place the party designation on the yard signs? Yes. The only thing that is affected by the nonpartizan status of the office is the ballot. Okay. Thank you. Thank you. And then I had one quick question. So judges are considered county employees, aren't they? Are they state employees? I'm not sure about that. Okay. All right. Thank you very much. And Mr. Söderberg and Mr. Couple, if you want to come on up. I can't remember. Do you have a question? Thank you, Madam Chair. How many of the elected officials here in King County are Partizan? How many of the elected officials in King County are part of one and that is. The prosecuting attorney. Why is that the case? Well, I can only speculate that it may be due to uncertainty about whether it is considered a county office or a state office under state law. The the rc w permits the county the county charter in the charter county to make county offices nonpartisan and state. An office is a state office. Then the rc w requires that it be partizan. So I think, Madam Chair, that we should have some consistency in county government. We should all either be partizan or nonpartisan. And that's why I'm looking forward to supporting this measure. But I would like to hear from Dan and our lawyer. Great. Their next. Mr. Senator, welcome. Thank you very much, Madam Chair. Members of the Council in the onset of King County prosecuting attorney, also senior deputy prosecutor, Tom couple with me to answer any legal questions you have. And the question that you asked, Mr. Gosset, is is is the question why is it in King County government that the only office that's a partizan office is the prosecuting attorney? And the technical answer to that is that there was some ambiguity about whether it was a county office or a state office. Now, that ambiguity has been clarified by the attorney general's opinion that Mr. Wagner referenced, and I think I provided you each with a copy that that says that in a charter county that you have the right to ask the people how they want to form their government. And so now that that ambiguity has been resolved in favor of asking the people how to resolve how to form their government, then they're within, the tougher question is, well, then if you could change it, why wouldn't you? Why would the prosecuting attorney be the only partizan office when by anybody looking at it, it should be the one that shouldn't be partizan? I mean, Mr. Wagner's excellent report makes some of the arguments about, well, a party label can be shorthand to give limited information to people who don't otherwise want to do their own research about the candidates. I would suggest that that might be true for members of Congress, for the state legislature, even potentially a county or city legislative body where issues of budgets come up, where taxing and priorities of spending come up. But I would I would submit that it is very misleading to have that binary approach for a Justice office like the Office of Prosecuting Attorney Binary BI You either play for this team or you play for that team, and that somehow that label is going to tell everybody everything they need to know about this person's approach to justice. And there's a reason that we don't do it for judicial positions, because judges are supposed to make the best decision they can on all available evidence and try to do the right thing. Well, my office does that, too. The prosecuting attorney's mission is to do justice. And we don't go to a touchstone of a party platform to decide how to best prosecute cases, how to best use the resources that the county gives us. The party affiliation is misleading and worse than misleading to voters. It undermines the single greatest challenge that the criminal justice system has today, and that is to build confidence with the communities most impacted by crime that they can trust us, that they should participate with us, that they should testify when they see a crime, that they should call 911. And all the efforts that we've made to build a system of community justice are undermined by the fact that you can look and say, well, wait a second, you're a member of the Republican Party. How can I trust you to do that? And so I'm asking to harmonize this office with the rest of the county and and take away that that misleading label. Now, the it's not hypothetical to imagine a time that the prosecuting attorney office could become a partizan office. And it wasn't that long ago. And I would I would recommend to you who haven't read it Christopher Bailey's book called Seattle Justice, that tells the chapter of our local history that happened right here in this building. When Charles O'Carroll was the prosecuting attorney from 1948 to 1970, he was not only the prosecuting attorney, he was also the de facto head of the Republican Party. And if you wanted to have a job as a deputy prosecutor, you had to be sponsored by a Republican Party official or precinct committee officer, and you had to agree to work on Mr. Carroll's campaign, either donate money or put up yard signs. It was a political machine, and it eventually, as the story is told, it fell apart because it was a political machine, because corruption invaded this this office. And since 1970, during the eight years of Mr. Bailey's term, during the 28 years of nor mailings determined over the last nine years that I've had the privilege and honor of being the prosecuting attorney, we've done everything we can do to have internal policies to keep politics out of the office. So in my office. You're not allowed to endorse the prosecuting attorney. You're not allowed to give the prosecuting attorney any money. Know, we try to keep people at arm's length from the from the partizan political nature of the office. But I will say that adopting this ordinance, allowing the people to vote on the structure of their government and if they were to vote and I relatively confident that the people would have no problem saying, well, of course, the prosecuting attorney's office shouldn't be a partizan office. That would be the culmination of the last 45 years of reform in this office to make sure that that the the excesses and the corruption that went with a very partizan office never comes back to this office. So this, I think, is an issue for you of an issue of good government. It's an issue of harmonizing the the office of prosecutor, agreeing with every other elected official in this in this office. And I think we've got the clear sign from the attorney general that this is permissible. And now that it's permissible, I think answering that question about why this is the only prosecuted only partizan office becomes nearly impossible to to to answer without completely misunderstanding the role of the prosecuting attorney's office. So I'll stop there. Happy to take any questions that you might have been. Any questions come from. Thank you. So you're saying that every prosecutor in King County since 1970 has been a Republican? Every prosecutor since 1948. Been 28. Okay. I mean, I was listening to you, and I think that the argument is basically true, because the first time I ever went to jail was under Charles Carroll. And he said that people like us were nothing but outside agitators coming up to Seattle to agitate our Negroes. But all of us were born here. So that's that's something to think about. Thank you, ma'am. Thank you very much. All right. I don't see any other questions. And just a couple. Did you have anything you want to add? No, not unless there are any legal questions. Okay. Okay. Councilmember domestics have a little time, but this is, I think, for Nick. The fact of nonpartisan county offices is relatively recent. If I'm correct, can you enlighten us a little bit on the history of the executive and the council or any other elected offices in the county? Were partizan versus nonpartisan? Sure. The first office to become nonpartisan was the sheriff's office, which was made a charter office in 1996, and it was made a nonpartisan charter office. Then in 2008, Initiative 26 made the offices of assessor, council member and executive. Nonpartisan. 2008 Right. Also 68 when I think the Charter was adopted on Royal Charter until 2008, all those offices were partizan. Right. And how did that charter amendment come about? The 2008 charter. It was by a recognition. Going to give credit where credit is due. Customer of mine, right? Yeah, that's right. No. What does that mean? Sorry. It was by by initiative. And also that same year, a different initiative. Initiative 25 made elections director, a charter office. And it too, was nonpartisan. Oh, I had forgotten that one. Yeah. Great. So you're all alone, and that's not a fun place to be, so. Well, it is a fun place to be in the sense of being pro-second turning is a tremendous job and a great responsibility and tremendous challenges. And I think that eliminating that partizan label, you know, in the end, whether it's me or anybody else, we want to be judged by the people on our approach to justice, on the decisions that we make every single day, not by the consonant that's next to our name, but rather on the content of the administration of justice. Thank you. Councilmember Dombroski has a question followed by Councilmember Chair. And this is maybe more of a legal issue, but it's it's kind of a novel legal issue, given the attorney general's opinion of last November, I guess it was I was just looking at the statute here. 2904 110 the parts of the statute. Subsection. The statute. Yes, sir. The state statute. Arcia between now 411000 county officers. Right. Except judicial officers and those officers for which a county home rule charter provides otherwise. Those are the parties that officer. So the issue is, is your office a county office or not? When you bring charges, when you file. Right. An information or or brand charge, isn't it, in the name of the state of Washington? Yes, that is the charging language. And I think the attorney general's opinion distinguishes a county office for the purpose of the election versus a county office for the purpose of the function of many of the functions that we do are not state functions. When we provide advice to our clients in this from the civil division, we're not acting on behalf of the state of Washington. We're clearly acting in the best interests of the people of King County. And so that there are definitely functions where we do invoke the name of the state of Washington. But for elective purposes, it's clear from the attorney general's analysis that it is a county office. So that's the distinction. It's the only center that analysis is. What area are you talking about? You're talking about the function of the job or the how the how the job is elected. That's right. Oh, okay. Thank you. Thank you, Madam Chair. Because it sounds like. Although. Thank you, Madam Chair. I've heard your arguments, and what I've observed about you is that despite the fact that you're a Republican, it doesn't appear as if you let that get in your way. Because I studied the way you and some of your top deputies review cases, some of which are very serious, like three strikes. And I have written down here that I you. Excuse me, concerns that you and your top deputies and over the last since around 2008 have been willing to support 15 or 16, I'm not sure persons that were in jail for three strikes and now most of them were sentenced before you became a prosecutor and you have ended up writing letters and that the low level of their charges, robbery tools are such that it's not likely that you are, given what you understand the circumstances to have been in their cases would have a levee that three strikes you're out on these persons and the governors whoever they might have been and the the pardons or clemency boards. I forgot the correct name over these last 12, 13 years. I have ended up concurring with you. And I think all but one of these three strikers or a man, all of them were black and they ended up getting out. And most of them that are out, all of them, as far as I know, have been able to reassess their lives. And I live in a positive community, contribute to a lives. Now that they're out, why do you have to have your office changed to continue that kind of fair assessment? Why do you have to be nonpartisan? Well, thank you for bringing that up, because I think it's a perfect example of the justice function of the office, where we're we're more like a minister of justice. We're not the judge, of course, but we have that we're in that same line of work of trying to do the right thing. And in each of those cases, I believe that the men had and the one woman had served sufficient time and that their their conduct while in prison made them no longer a threat to public safety. And that to keep them in prison until they died would have been an injustice. So when making that decision, I'm motivated by what's the right thing to do. And I didn't go and ask the political party if they thought that was a good idea or not. I just did it because that's what I thought we should do. So I think by removing that label, then I don't we don't I can be judged on the decisions that I've made and not some shorthand of, well, you're, you know, this are next your name, so you must believe in this. You know, the things that I believe in, I as a prosecuting attorney, I believe in because I've been in the office for almost 31 years now, and I have a sense of what a just outcome is. And so that's what I want to be judged by. Okay. Madam Chairman, I would ask a question about prosecutions. And then we need to wind up after that. Thank you. Have you had the opportunity to read Bob Ferguson's opinion that he is delivering as the Washington state attorney general? Yes. Yes, I have. And I like that. I know that is evolved, but I've always been confident that you render independent judgment. What is your opinion of that opinion? Well. We've looked at it pretty closely, actually, and our conclusion is it's the better view. It's the better legal conclusion. I would say that it's not settled unless or until a judge were to decide that issue, and that is a possibility. However, you know, having been looked at it and looked at the authority cited in there, I do think we're pretty comfortable that it is the better view. Thank you very much. Senator. Councilmember. Thank you, Madam Chair. Dan, have you had occasion to speak with your counterparts in other counties? I have. Sure, I have. And it's important to note first that about half of the elected days in America are nonpartisan. So we were outliers across the country and in the state of Washington. Those prosecuting attorneys who are from charter counties are very interested in pursuing this as well. In fact, the question came from the newly elected prosecutor in College County to the attorney general, because the College County is undergoing, you know, its charter formation. And so I think that is that that and I should go back to in 2009 and 2010, I had two bills in the state legislature that would have made this. Office, a nonpartisan office, statewide changing the RTW. And neither Bill got out of committee. The legislature is a partizan place, as you may recall, from your experience there. And so I was I was I said, fine, we tried. And at that time, I had every member of WAPA on board saying, yes, we think that this is more consistent with our function as ministers of justice than it is as a partizan office. And so there's widespread support for this in the state. And how many of the 39 counties are Charter seven? Seven. Okay. Thank you. Thank you. So our plan is that we will vote on this in two weeks. And so we will look forward to seeing you then. And thank you for coming and sharing this with us. Thank you. And in the meantime, if any questions, you know where to get me, I'm on the fourth floor. Thank you. We thank you and thank you for living out what Norm said to all of us, that we are the face of justice. Thank you so much. Okay. We're going to go on now to number five. No, number six are going to get number five until the end and bring up number six right now, which is