Former Bremerton Lawyer: ‘Pick Someone’

Bill Broughton, former Bremerton city attorney, sent me a copy of the letter he sent to members of the Bremerton City Council. He makes the case that the council should hire someone to fill in after Cary Bozeman resigns.

The question was also addressed in an earlier post.

If I were to characterize his point in a sentence, I would say if someone pushed the city in front of a judge on this issue, the judge would say the city has to appoint a mayor.

Dear City Council Members:

I am writing you to express my concern on what I understand to be your intended course of action with respect to the pending resignation of Mayor Cary Bozeman.  As I understand it, your current intention is to not appoint an interim Mayor after Mayor Bozeman’s resignation.  Instead, you are planning to have City Attorney Roger Lubovich perform the day-to-day duties of the Mayor.  I further understand that you intend to have the council president act as Mayor pro tem for the purpose of executing official Mayoral responsibilities such as execution of contracts.

Initially, my view is Mr. Lubovich is a very good City Attorney and is certainly capable of administrating the day-to-day duties of the Mayor after his resignation.  It is also my opinion that Assistant City Attorney Kenneth Bagwell who has been providing legal advice on this issue is a very capable lawyer.

With that being said, I strongly disagree with the legal interpretation being provided to the City Council that it is not necessary to appoint an interim Mayor between the effective date of Mayor Bozeman’s resignation which I understand to be June 9, 2009 and the general election slated for early November of 2009.

As you are aware, the issue of a vacancy in the office of the Mayor is addressed by the Bremerton City Charter at section 10.  Subsection 1 requires that a vacancy in the office of the Mayor be filed for the remainder of the unexpired term until the next municipal general election.  The Charter goes on to indicate that the appointed Mayor shall serve the remainder of the unexpired term until the new Mayor is elected.

The Charter does fail to address a time limitation on when the appointment of the interim Mayor needs to be made.  However, the City Charter provides only thirty (30) days to fill a City Council vacancy.  I believe a Court would find that the thirty (30) days time to appoint applies not only to a City Council vacancy but to the Mayor’s office as well.

The lack of a specific Charter provision regarding when the City Counsel must appoint an interim Mayor does not lead to the conclusion that their can be a six (6) month period of time when the office of Mayor is vacant.  Further, the Charter clearly provides that the Council President, as Mayor pro tem can only act in circumstances where the Mayor is temporarily unavailable.  The Council President cannot act as the Mayor after resignation.

RCW 42.12.070 provides some guidance.  While this statutory provision is inapplicable to first class Charter Cities, the Legislature does address circumstances were a Legislative body is unable to agree on an interim appointment.  In that circumstance, the County commissioners become the appointing authority if the City Council does not fill a vacancy within ninety (90) days of the occurrence of the vacancy.

In summary, I believe a Court would conclude that an interim Mayor has to be appointed by the City Council within a reasonable time after the vacancy occurs.  I further believe that the Court would look to the thirty (30) day time limitation for appointment of a City Council member in the Charter and apply that time frame to appointment of a Mayor.

There are certainly a number of qualified individuals in Bremerton who would accept this appointment.  These persons are certainly known to City Council members.  While I understand the attraction of saving some money on a Mayor’s salary in these difficult times, I strongly believe that local governments must follow the law regardless of any cost saving potentially achieved by disregarding it.  I also firmly believe that a Mayoral vacancy existing for five (5) to six (6) months requires the appointment of an interim Mayor.  Failure to do so could result in a dangerous precedent should another unfortunate circumstance arise in the future were the Mayor cannot fulfill his or her term.

Thank you for your consideration of this very important issue. One suggestion I have made to the City Attorney is to ask the Superior Court for an interpretation by way of a declaratory judgment procedure. I look forward to your discussion of this issue.

Sincerely,

William H. Broughton
Attorney at Law

2 thoughts on “Former Bremerton Lawyer: ‘Pick Someone’

  1. >>”The Charter does fail to address a time limitation on when the appointment of the >>interim Mayor needs to be made. However, the City Charter provides only thirty (30) >>days to fill a City Council vacancy.”

    …So the folks who wrote or amended the charter were specific enough in their thinking to provide a time limit to fill a council vacancy, but then just forgot to do it for a mayoral vacancy? Or just figured we’d get the gist of it and apply the 30 days to the mayor too? (Wanting to save the cost of putting it in writing). Or maybe they left it out in order to give flexibility.

    >>”RCW 42.12.070 provides some guidance. While this statutory provision is inapplicable >>to first class Charter Cities,…”

    …So it is inapplicable to Bremerton, but you’ll go on to cite it anyway? What kind of lawyering is that?

    What’s the big hurry anyway? What does the mayor REALLY do on a day-to-day basis? I say save the $65,000 and try to hire back one of the cops for at least the rest of the year.

  2. What’s the big hurry anyway? What does the mayor REALLY do on a day-to-day basis? I say save the $65,000 and try to hire back one of the cops for at least the rest of the year.

    The Mayor does little day to day. I’m with you, save the money and hire back an officer who does much more in his day to day job.

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