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Parks Committee Minutes
March 17, 1992
Councilmembers Present: Jon Johnson, Chair; Christi Houser and Jim Bennett.
Staff Present: Jim Hansen, Barney Wilson, Don Olson, Tony McCarthy, Roger
Lubovich, Alana McIalwain, Tom Brubaker, May Miller, Stephanie
Strozyk, Robyn Bartelt, Karen Ford, Helen Wickstrom, Lea
Bishop, Cheryl Fraser, Lee Anderson, Tim Bond, Nita Smith, and
Pam Rumer.
Others Present: Doug Smith and Bob Guile, South King County Multi Service
Center; Bill Doolittle, 412 N Washington #31; David Street,
Federal Way Boys and Girls Club; Brad Thomas, South King
County American Cancer Society; Jean Parietti , Valley Daily
News; and Doug Schwab, Riverbend Men's Club.
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REQUEST BY MULTI SERVICE CENTER
Doug Smith from the Multi Service Center explained to the Committee that the
Multi Service Center provides over $500,000 of services in energy assistance and
transportation, and operates 33 homeless housing shelters for the City of Kent.
Smith said that the Multi Service Center has reserved and is holding a golf
tournament at Riverbend on August 14. He requested to have the green fees for
his tournament donated by the City of Kent. In turn, Mr. Smith assured the
Committee that the monies will be returned to programs which will provide
services to the City of Kent.
Houser questioned whether information has been put together regarding this type
of request, as this is not the first request of this nature. She requested that
the City develop a policy regarding these requests.
Brubaker explained that the law is clear that the City cannot make an
unconstitutional donation of public funds, except to the needy or infirmed.
However, he mentioned that there are exceptions and the City will work with him
to determine if the funds in question will go to aid the needy or infirmed.
Otherwise, Brubaker suggested a contractual agreement where the City will receive
some sort of consideration which gives equity for the Multi Service Center's use
of the golf course.
Johnson suggested that Mr. Smith meet with Brubaker and Bartelt to work something
out and bring a recommendation back to the next Parks Committee meeting. Johnson
also requested that Bartelt include in the recommendation how much this will
affect revenue.
Bennett was concerned that if the City sets a policy to grant these requests, the
golf course could be faced with no-income tournaments scheduled for 300 days a
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year. Hansen suggested that the policy establish a numerical limit as to how
many requests may be granted per year.
Brubaker informed the Committee that the request made by the Women's Amateur
Qualifying Tournament to have the green fees for qualifiers waived was okayed.
It was decided that advertising and the purchase of merchandise would be adequate
consideration for use of the golf course.
Brubaker informed the Committee that he will work on a policy and he will leave
it to the Parks Committee and Parks Administration to determine if the City wants
to set a limit on the number of requests granted per year.
WEST HILL PROPERTY FOR SALE
Helen Wickstrom pointed out a 2-1/2 acre section of Saltair Hills on the west
side of Pacific Highway which the City tried to purchase in 1988 and in 1989.
At the time, the owner, Mr. Harvey Grohs, wasn't willing to sell because he had
plans for a subdivision. The Parks Department then used the $100,000 budgeted
for a West Hill park to apply for a matching grant to purchase Parkside Wetlands.
The grant was approved and moat of the Parkside Wetlands site has been acquired.
Wickstrom reported that two weeks ago, the Parks Department received a letter
from Mr. Grohs stating that he is now willing to sell the property, which has an
appraised value of $145,000. She explained the City's shortfall of money to Mr.
Grohs but told him that she would bring his offer to the Parks Committee.
A fiscal note from Tony McCarthy was distributed, stating that with the City's
financial situation at this time, the Executive Committee would not be in favor,
but the City appreciates the offer.
After discussion, it was determined that Mr. Grohs is not willing to take terms,
but rather a trade of property of equal value or a cash offer.
In response to Johnson's question, neither Wilson nor Wickstrom could think of
any surplus land that the Parks Department owns worth the same amount as Mr.
Grohs' property.
The Committee instructed staff to inform Mr. Grohs that the City is interested,
but does not have the money at this time.
UNIVERSAL FIELD SERVI;ES CONTRACT
Wickstrom explained that she put this item on the agenda prior to speaking with
the City Attorney's office about it. She has since been advised that the issue
does not need Council approval because the State IAC and Bond Issue monies have
been budgeted and were approved by Council to purchase the property at Lake
Fenwick, and that relocation of existing tenants is part of the project scope.
Since the project has previously been budgeted and approved, Wickstrom said that
she is now bringing the issue to the Committee as an informational item.
Thirteen tenants will need to receive relocation assistance as part of this
project.
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The Committee instructed Wickstrom to forward the contract to the Mayor for
signature without taking it to Council for further approval .
YOUTH-AT-RISK PROGRAM
Lubovich opened by explaining that his office was asked at the last Parks
Committee meeting to give an opinion as to Mayor/Council authority as it relates
to maintaining the Youth-at-Risk position at 3/4 or full time, The Attorney's
office did research and drafted an opinion (legal opinion packet available upon
request) .
The Municipal Research opinion provided that the Mayor has no authority to set
a lesser or greater salary for an employee other than that established by the
Council in the budget.
To review the issue, Lubovich looked at it from two different perspectives-- the
facts surrounding the Mayor's decision and the amendments relating to the budget
amendment, and the Mayor's general executive authority.
Lubovich said that during discussion among Council members at the Council budget
meeting, the inference from the transcript is there was an understanding that the
Youth-at-Risk position would remain frozen at 3/4, along with the City's other
28 positions frozen by Administration in 1991.
Lubovich added that if the Council clarified its intent with respect to this
position, then it is necessary to look at the executive authority that underlies
the Mayor's ability to appoint, suspend, and layoff.
In looking at statutes, Lubovich reported that there is no case law, state or
nationwide, which interprets the Mayor's authority as it applies to this
situation. In his opinion, it is clear from the language of the statutes that
the Mayor has the authority to appoint and remove employees. He added that
implicit with that is the authority to lay off employees for budgetary reasons.
Lubovich said that the issue at hand is whether implicit in his authority to lay
off is his authority to underfill a position.
Lubovich informed the Committee that he solicited a formal opinion from Steve
DiJulio of Foster, Pepper and Shefelman. It was Mr. DiJulio's opinion that the
power to suspend includes the power to underfill a position.
Lubovich said it is his opinion that the Mayor acted within his authority. He
also mentioned that he contacted Municipal Research who also concurs with his
opinion.
Johnson said that the Committee has to decide upon what action to take to the
Council . Lubovich mentioned that to take any action against Administration, the
Council would have to appropriate funds to hire legal counsel .
Bennett commented that he is in favor of the program, but it needs to be fiscally
accountable and consistent. He recommended that the position be frozen as a 3/4
position.
a
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Houser agreed with Bennett. She felt that Counc i 1 members knew tie position would
be frozen. She admitted that this is a high priority item to be funded if the
budget picks up.
Johnson clarified for the record that when he first brought the issue up at a
Council meeting, the Parks Committee had previously voted 3-0 to support it. The
Council then voted 5,-2 in favor of Johnson's proposal . Johnson, in his
amendment, proposed to reorganize the City Clerk's position for a money savings
in order to offset increasing the 3/4 position to full time so' that there would
be a savings in dollars rather than a fiscal impact.
Dave Street said he felt this is not an issue of authority but an issue about
kids. It was his understanding that the funds to cover the position at full time
did not come from reorganizing the City Clerk's office but rather from budgeting
an increase in Youth-at-Risk program fees to cover the position.
Street said that if the City is not going to fund the position at full time, the
increases in day camp fees to cover the position should be pulled out because it
is not fair to the public. He said that parents have been paying this money
willingly to fund the positilan at full time.
Bennett answered that it is not just an issue about kids. He said it would open
a can of worms, as other department heads would want to know why their positions
haven't been filled.
Wilson commented that the can of worms has already been opened, as two Public
Works positions that were not budgeted have been filled, and a firefighter and
police officer were also hired.
Doolittle said that as a member of the audience at the Council budget meeting,
he walked out with the impression that an amendment to increase the position at
full time was passed, as well as a separate amendment to allow the increase in
fees to fund the position.
Lubovich explained that the 28 positions plus the 1/4 position are all funded,
but they are all also frozen.
Brubaker clarified that Johnson originally proposed a more comprehensive
amendment but later came back and narrowed his amendment to funding the Youth-at-
Risk position at full time. Funds resulting from the eliminAtipn of the Office
Assistant position in the City Clerk's office were utilized to fund the increase
in the Youth-at-Risk position. It was this amendment which posed 5-2. Brubaker
said that at the same time, there was the indication from the Council that they
expected the position to remain frozen.
Houser said that she is not willing to take the Mayor to court for 1/4 of a
position, as the Mayor is the administrator of the City.
Street questioned how fee increases could then be justified. Houser responded
that she did not know the fees were increased, but if they were, she agreed that
they should be refunded to participants.
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Wilson commented that the parents were present at the Parks Committee meeting
where a fee increase to cover the position at full time passed 3-0. The parents
agreed to pay the fees to cover the position. Wilson said that' the fees were
raised $10 per student per week.
Doolittle proposed that since the fees have already been collected, the Parks
Committee take the issue back to Council as a revenue neutral request. He added
that those fees were collected on "good faith" from the participants.
McCarthy agreed that the revenue budget was increased and that trend data show
additional participation in the program. He questioned if the, program revenues
cover total expenses and whether fees shouldn't be based upon what the market can
handle.
Johnson requested a motion from the Committee.
Houser moved to take the recommendation to Council that the position, although
budgeted at full time, remain funded at 3/4 until the financial picture improves.
Bennett seconded the motion.
The motion passed 2-1, with Houser and Bennett voting in favor and Johnson
opposing.
Following the vote on the motion, it was clarified that the recommendation to
Council was not to fund the position at 3/4 time but rather to maintain the
freeze at 3/4 time.
GOLF AUDIT REPORT
Johnson announced that he would like to set a meeting with the Golf Advisory
Committee to go over the audit and prepare recommendations for the next Parks
Committee.
The committee decided to determine a date later.
In response to Doolittle's question, it was decided that the Golf Advisory
Committee meeting will be open to the public, since there will be active
discussion as to policy recommendations.
GOLF COURSE [OUIPMENT
Bennett said he has received input from golf course staff, lhe'Men's Club and
golfers regarding equipment needed to maintain and increase the, q'uality level of
the golf course. He then proposed the purchase of a tractor ,ibd; a verti-drain.
Bennett then shared a video and pictures of the equipment wi~ h the Committee.
Lee Anderson explained that the tractor was included in the original list of
equipment needed at Riverbend, but staff agreed not to buy it' because it wasn't
needed that year and because of lack of budget.
Anderson said that there is a lot of compaction on the fairways at the golf
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course. The verti-drain would aerate the ground, allowing oxen and nutrients
to get to the root zone. He emphasized that it is now time to-'make a decision,
as staff will have to close the fairways and completely renovate them if we wait.
He said that the golf course needs to be aerated now in order to maintain the
same level of winter play.
Bennett reported that there is approximately $22,000 in the -Equipment Rental
account which hasn't been credited back to the golf course for items which have
been removed from Equipment Rental .
Anderson explained that the equipment was in Equipment Rental , but Equipment
Rental was not servicing or maintaining the equipment in any way. The equipment
was returned to the golf course asset ledger and the golf course staff is
maintaining them. During the time the equipment was in Equipment Rental , it
accumulated approximately $22,000.
Anderson reported that the cost of the machinery before interest is $45,000
($25,000 for multi-use tractor and $18,000 for verti drain) . He said that one
option is to lease-to-own the machinery for $1,400/month for 36 months. Anderson
said this would increase the post by $6,000+ but he felt it is a feasible option.
He added that the tractor is needed for many pieces of equipment.
McCarthy explained that the Finance Department is in the same situation with
Equipment Rental . Finance returned a meter reading vehicle ,but is yet to be
refunded for the equipment. McCarthy said that he has written a note to Tim
Heydon but he has yet to respond.
McCarthy added that Heydon's feeling is that the monies shouldr!'t be returned but
should be used for replacement of other equipment. McCarthy said this isn't fair
as each department has to buy its own equipment/vehicles and ,then give them to
Equipment Rental . He said there should be a policy for all departments.
Houser agreed that the policy decision should be changed and the money returned
to respective departments.
The Committee agreed that the golf course should be able to get back the $22,000
from Equipment Rental , but staff needs to come up with a balanced proposal with
a strategy and recommendation for the Executive Committee.
McCarthy stated the Executive Committee would like to see some overall
recommendations from golf complex staff.
PARKS COMMITTEE MEETINGS UPDATE
It was decided that the Parks Committee will meet the first and third Tuesday of
each month at 5:30 PM in the Council Chambers East.
The next Parks Committee meeting is scheduled for Tuesday, April 7 at 5:30 PM in
the Council Chambers East.
PARRS COMMITTEE MEETING
March 17, 1992 '
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RUMER,PAM / KENT70/PK - H esk print.
-------------------------- _..----
Message. Dated: g3/18/92 ; et!, X346.
Si act: WEST HILL PROPERTY FOR SALE - FISCAL NOTE
Sender: Tony MCCARTHY / KENT70/FN Contents: 3.
TO: Pam RUMER / KENT70/PK
Part 1.
TO: Pam RUMER / KENT70/PK
Part 2.
A COPY AS YOU REQUESTED.
Part 3.
THE PARK DEPARTMENT HAS RECEIVED A LETTER FROM MR. HARVEY QROHS OFFERING
TO SELL APPROXIMATELY 2 1/2 ACRES IN SALT AIRE HILLS FOR $145;,000. MR. GROHS
IS INTERESTED IN A CASH DEAL OR TRADE FOR EQUAL OR HIGHER `#4LUE INCOME
PROPERTY. THE PARK DEPARTMENT HAS BEEN INTERESTED IN THE PROPERTY IN THE
PAST BUT UNTIL NOW IT WASH,'T FOR SALE. THE CITY HAD THE PROPERTY APPRAISED
IN FEBRUARY OF 1990 FOR $143,000.
r.
IBC APPRECIATES MR. GROHS ,OFFER TO SELL BUT HAS NO ADDITIONAL FUNDS BUDGETED
FOR PARK ACQUISITION ON THE WEST HILL. WITH GRANT MATCHINQ FUNDS AND A
DEFERRED PAYMENT PLAN, THE CITY ACQUIRED 2 WEST HILL PARK FRQPERTIES IN 1991.
THE CAPITAL IMPROVEMENT PROGRAM WHICH HAS BEEN RAIDED TO ASSIST IN FUNDING
THE' GENERAL FUND ANTICIPATES NO ADDITIONAL WEST HILL PARK FUNDING. BASED ON
T. 3 THE IBC RECOMMENDS AGAINST ANY ACQUISITION UNLESS IT MADE SENSE TO
TRADE OTHER PROPERTY ACQUIRED FOR WEST HILL PARK DEVELOPMENT.
OFFICE OF THE CITY ATTORNEY
DATE: March 17, 1992
TO: MAYOR KELLEHER
CITY COUNCILMEMBERS
FROM: ROGER A. LUBOVICH, CITY ATTORNEY
SUBJECT: Youth-at-Risk Program coordinator Position
Pursuant to a directive from the Parks Committee at its February
18 meeting, this office has been asked to review various legal
issues pertaining to City administration's decision to maintain
the Youth-at-Risk Program Coordinator as a 3/4, ratb,er than full-
time, position. I have reviewed the applicable state statutes,
case law, local ordinances (including the 1992 Budget .Ordinance
No. 3011, attached as Exhibit A) , and a verbatim transcript of
the November 19, 1991 Council meeting (See Exhibit B, attached) ,
as well as the legal opinions proffered by Mr. Robert Meinig of
the Municipal Research & Services Center of Washington (See
Exhibit C, attached) and Mr. P. Stephen DiJulio from the law firm
of Foster, Pepper & Shefleman (See Exhibit D, attached) . The
following, I believe, states the issue before us:
ISSUE PRESENTED
Under applicable state law, local ordinances, sad City
Council directives, does the Mayor, through City Administration,
have the authority to keep the Youth-at-Risk Coordipa*or as a 3/4
position for the 1992 fiscal year if Council inoreased the
position to full-time in its 1992 Budget Ordinance JTo. 3011?
SHORT ANSWER
Ih my opinion, the Mayor has acted within his authority by
determining to keep the Youth-at-Risk Coordinator position at 3/4
time. The Mayor has the unquestionable right to implement a
hiring freeze and even to lay-off employees during a fiscal
crisis due to a lack of funds; however, an issue romains, under
the present situation, whether this authority also includes the
right to underfill a position. This issue can be Analyzed from
two perspectives: the specific facts surrounding too Mayor's
decision; and, the Mayor's general executive authority.
Because of (1) statements made by two councilmembers prior
to passing the budget amendment that increased the position to a
full-time position, (2) the lack of a specific lino-iltem
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directive in Ordinance 3011 indicating the increai4e4 (3) the
authorization in ordinance 3011 given to the City', t nistrator
to make adjustments to the Annual Budget, 'justift ' ' I' ;i grounds
existed to continue ,to "freeze" this position at 3/1� time
consistent with Council 's implied approval of the citywide hiring
freeze. Still, taking all facts and applicable 1.ew into account,
an ambiguity exists as to Council 's intent. Therefore, Council
may choose to clarify whether it intended to change the position
to full-time immedi4tely or to change the position only at such
time as adequate funds become available.
Moreover, the Mayor may nevertheless have the general
executive authority to underfill this position even if Council
were to state that the position should be filled imdiately. As
the City's chief executive, the Mayor has a duty to manage the
day to day "business" of government through his admi;tietrative
staff. Although the Council, exercising its legislative policy-
making authority, has the statutory right to establiah' the
duties, qualifications and salaries of appointive employees, the
Mayor nevertheless has the statutory authority as chief executive
to hire and fire employees. The Washington supreme court has
determined that such executive authority also includem the
ability to suspend or terminate positions due to ladk of funds' or
lack of work. Arguably, then, this authority would extend to
temporarily underfilling a position, such as the Mayor has done
with the Youth-at-Risk Coordinator position, but only if the
Mayor based that decision on a lack of available finds.
No Washington courts have directly addressed this specific
issue regarding the Mayor's general authority. However, without
the authority to temporarily underfill a position, the Mayor
would not have the , flexibility to allow employees to Continue to
work and earn both wages and benefits on a reduced basis, but
rather would only have the ability to terminate or lay-off
employees when adequate funds for the employee's full-time
position no longer existed. Since the courts have #already
recognized the Mayor's authority to hire, fire, suspend or
terminate employees because of a lack of funds, theavery real
possibility exists that a court would also include within that
authority the flexibility to temporarily reduce a position from
full to part-time.
FACTS
On November 19, 1991, the Mayor presented his 1992 Annual
Budget to the Kent City Council for approval. A number of
amendments to this budget were discussed, and most of, these
amendments were vetoed. After his more expansive amendment to
the Budget failed to gain enough support for approval;,
Councilmember Johnson moved to reinstate the Youth-gat-Risk
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Program Coordinator position from a 3/4 to a full-*t#,plposition.
VERBATIM TRANSCRIPT, Portion of City Council Meet*rq i3Ot November
19, 1991, page 1; see MINUTES of the Regular Kent;O� y 'Council
Meeting, November 19, 1991, pp. 7-9 and 12.
After Councilmomber Johnson proposed this amendment, Mayor
Kelleher clarified his position that Administration might freeze
this position increase because of budgetary concerns; and no one
took issue with his statement. VERBATIM TRANSCRIPT At 1.
Commenting on the proposed amendment, Councilmember Orr stated to
the Mayor:
Your honor, this is one part of Mr. Johnson's
[original] proposal that I felt I could support,,,
however given your statement, I understand that' the
position probably would remain frozen at 3/4 and I
respect your right to do that. . . . . so with t1bit I
would say that I will support Mr. Johnson's amendment,
knowing that the position may not be filled any time
soon, but I would hope it would be given some priority
at a time when it's possible.
VERBATIM TRANSCRIPT at 2.
Adding further comments to the amendment, Councilmember
White addressed the Mayor:
Mr. Chairman, as you are mayor of our city, I
respect your position and your right to freeae ,'th is
position that we are discussing. . . . . But what bothers
me is that there seems to be a perception that as
Council we are here to rubberstamp whatever IB; and IPC
and the mayor �of our fair city sends us, and I;;hove a
lot of problem with that. I am going to suppQi�,tthis
youth at risk program even though I proposed a
reduction in personnel, I will support .the youth At
risk program as much to send a message that I'm not a
rubberstamp for anybody.
VERBATIM TRANSCRIPT at 3 .
At the end of discussion on the amendment, theiMayor called
for a vote. Councilmembers Dowell, Johnson, Mann, Orr and White
voted in favor of the amendment; Councilmembers Woods 'and Houser
voted against. Accordingly, the amendment passed by a 5-2
margin.
Reviewing the actual language contained in Ordinance 3011,
no line item reference is made to Councilmember Johaspn's
amendment regarding the Youth-at-Risk Coordinator. ' Rather, the
Budget reflects a single line item for General Fund expenditures
of $33, 137,803. Apparently, the adjustment required by
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Councilmember Johnson's amendment was included in, t#As' figure.
Additionally, Section 3 of Ordinance 3011 statas' : "The City
Administrator shall administer the Annual Budget and, in doing so
may authorize adjustments to the extent that they are consistent
with the budget approved herein. "
Finally, the implementation of the City's 1992 Annual Budget
actually funds all currently frozen positions within the City,
including the Youth,-at-Risk Program Coordinator. T4rorugh a
somewhat complex formula, Tony McCarthy, City Finanae Director,
administers the budget as follows: first, he debits each
department for the expense of each frozen position even though it
is unfilled; second, he then issues the departments a ,credit for
the monies saved by not filling those employee posi#igns, thereby
keeping the budget in balance. Apparently, by a,dmipi*tering the
budget in this manner, the positions technically remain budgeted
and, if the City's 'economic outlook brightens and mdre monies
become available, the City Administrator will be able, to
selectively restore the frozen positions as funds become
available.
LEGAL ANALYSIS
In Kent, which is a noncharter code city acting under the
Mayor-Council form of government, the Council essentially has the
policy-making authority to set the qualifications and the
salaries for employee positions, and the Mayor has the
administrative authority to hire and fire employees ,for those
positions.
The Washington legislature established Council,'s policy-
making role by declaring that the Council has the authority to
"define the functions, powers, and duties of its . . . employees"
and to "fix the compensation and working conditions of such . . .
employees. . . . " RC_W 35A. 11.020. The Council also establishes the
City's budget. RCW 35A.33 et sea. The Council may even amend the
"wages, hours and conditions of employment" for an ,employee after
passing a final budget. RCW 35A.33. 105.
Nevertheless, the legislature also gave mayor* considerable
administrative authority when it mandated that a mayor "shall
have the power of appointment and removal of all appointive . . .
employees. " RCW 35A. 12.090. Further, the mayor "*,hall have the
general supervision of the administration of city government and
all city interests. " RCW 35A.12.100. However, the mayor also
has a continuing duty to "see that all laws and or4inances are
faithfully enforced. . . . " .
The underlying tension between these two roles, then,
constitutes yet another check and balance under the Separation of
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Powers doctrine that pervades our form of� governpKmt;. Consistent
with these checks and balances, the Mayor would v ';:the
authority to freeze the Youth-at-Risk Coordinator ;, a 3/4
position only if the Mayor made that decision either (a)
consistent with the budget policy set by Council,' or (b) under
his hiring/firing authority.2
To determine Council's intended policy ,regardiog the 1992
budget, we might first look to the budget document Itself,
Ordinance 3011. However, as stated above, no specific reference
to the Youth-at-Risk Program position exists. Therefore, the
written document itself makes no clear mandate to t#e Mayor
regarding this issue. In fact, because Section 3 of the
Ordinance authorizes the City Administrator to mske ,adjustments
to the budget, the Ordinance itself more likely supports the
Mayor's decision to "freeze" the Youth-at-Risk position at 3/4
time.
However, since Ordinance 3011 standing on its own arguably
does not settle this issue, we may turn to the only other source
of evidence of the Council's intended policy, the Councilmember's
spoken words. Although .the Council passed Councilmember
Johnson's amendment to increase the Youth-at-Risk Coordinator
position by a 5-2 vote, two Councilmembers qualified their votes
in light of the City's current budgetary restraints caused by the
recession. Councilmember Orr stated that she understood that the
Mayor would freeze 'the position at 3/4 time and that she
respected his right to do that. VERBATIM TRANSCRIPT at 2 .
Councilmember White, primarily focusing on his objection that
Council appeared to act as a "rubberstamp" to the administration,
made the following statement directly to the Mayor: "[A]s you
are mayor of our city, I respect your position and your right to
freeze this position. "
Again, a question very clearly arises as to the Council 's
true intent on this budgetary policy. Reasonable m; nos could
differ as to whether the Council was directing the Mayor to fill
the position at full-time immediately or whether the Council was
directing the Mayor to fill the position at such ,e* as the
Mayor determined the City's budget could allow it. Certainly,
Councilmembers White and Orr appeared to take the lo.tter view
and, under this interpretation, the vote on this j*ue, might be
read as 5-2 in favor of a full-time Youth-at-Risk Oootdinator
For further discussion of the issue from this
perspective, see Municipal Research and Services C4nter, Letter
Opinion of R. Mein'ig, dated February 11, 1992.
For a further discussion of the issue from this
perspective, see Letter Opinion of P. Stephen DiJul,io dated March
13, 1992 .
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position, but 4-3 in favor of the Mayor's authori'ty , o ,apply the
citywide budgetary freeze to this position.
In addition, the manner in which the administr#ive staff is
administering the 1992 budget--without objection froz Council--
supports this interpretation. All currently frozen positions
were budgeted in the 1992 budget, but currently, tho, ' positions
are listed as credits in the budget in order to balance the
budget. As a result, not unlike the approach taken *ifih all the
City's frozen positions, the Council may have inteh4;ed' to
impliedly approve the Mayor's decision not to fill y, of these
positions, including the Youth-at-Risk Coordinator position,
until the City had the funds in its budget to begin to- lift the
freeze.
As a result, the Mayor very likely may have exercised his
authority and performed his duties consistent with the policies
expressed by the Council. Certainly, his actions tn, date are
defensible as a matter of law. However, even if Co4n4l were to
determine to fill the Youth-at-Risk Coordinator position at full-
time immediately, the Mayor may still have the inherent authority
to temporarily underfill,the position if he deems it necessary
due. to a lack of available City funds.
As mentioned above, the Mayor has statutory authority, as
head of the City's executive branch of government, to ,hire and
fire appointive employees of the City. See RCW 35A:12.090. The
Washington Supreme Court has also declared that thio , eRxecutive
authority includes the ability to employ only as matey persons as
a city can afford to keep on its payroll. See Ch,a+-.f4- }d v.
Seattle, 198 Wash. 179, 187 (1939) . The Chatfield daee involved
the executive authority of Seattle's Board of Park gommissioners,
who at that time had the authority to hire, fire, apd pay all
Seattle city parks employees. Id. at 183. In that case, the
court wrote:
If the board, in its judgment, was of the opinaion that
. . the board lacked money to pay its employee*„ it had
the right to continue in its employ only as ma0y
persons . . . as it could pay.
Id. at 187. This statement, however, is not quite so compelling
as it first appears. The court also clearly stated that the
board had no power to pay less salaries or wages to, its employees
than those amounts fixed by ordinance: "Such matters lie within
the authority of the city council . . . , as the municipal
legislative authority. " Id. at 186-187.
Based on a strict reading of the Chatfield language, then,
the executive, in situations where there is a lack of� money to
pay an employee, would have the authority to lay-off or terminate
employees, but would not have the option to pxoport;ionately
6
reduce both hours and salary. This leads to the inngruous
conclusion that, rather than provide an employee ,wi some
reduced opportunity to remain employed and contia�Ae.;Ito receive
salary and benefits, the executive would have only two choices:
(1) keep the employee on salary without the necessary funds to
pay him or her; or (2) terminate the employee.
However, the gbatfield opinion is now more than fifty years
old. Moreover, unlike Seattle, Kent is a code city,," the
courts and the legislature have consistently recognized, that code
cities have expansive powers, often limited only by the state
constitution. Further, so long as there is a lack of funds, a
mayor clearly has the right, and perhaps the duty, to institute a
hiring freeze. As a result, a more practical approach to
executive authority would likely include the ability to
temporarily underfill a position by proportionately reducing
hours and wages as part of the executive's overall authority to
hire, fire, suspend or terminate appointive employees.
If this issue were to be litigated today, then, a court
might stay with the strict letter of the law as stated in
Chatfield; however, a court might also take all factors into
account and now hold that the executive's authority �al,so includes
the right to temporarily underfill a position. This would
provide the Mayor with more flexibility since, from the
employee's point of view, "half a loaf is better than none at
all" when a city is in a fiscal crisis.
CONCLUSION
Significant ambiguities exist concerning the Council's
intended policy regarding the timing as to when the Youth-at-Risk
Program coordinator position should be increased. All factors
considered, the Mayor's decision to freeze funding for that
position at the 3/4 level, which would be consistent with the
current City-wide hiring freeze, very likely conforms to
Council 's intent. However, since certain councilmembers believe
that the Mayor has contravened Council 's intended budgetary
policy on this issue, perhaps the Council will wish; to clarify
its intent on this issue.
In the event that Council mandates that the° phi#ion should
be made full-time immediately, then the Mayor may, ii1 have the
administrative authority to temporarily maintain, t . position at
3/4 time if he does so based on a lack of availablai� ;City funds.
As a result, considering that the Mayor has the unci,io0tionable
right to hire, fire, suspend or terminate employees, based on a
lack of funds, it seems likely that a court would Include within
that authority the flexibility, for budgetary reasons,, to
underfill a position so that affected employees can at least earn
some income and accrue some benefits.
7
P
ORDINANCE NO.
AN ORDINANCE of the City of Kent,,
Washington relating to budgets 4M "' '
finance; adopting the 1992 Budget.
WHEREAS, the tax estimates and budget for the City of Kent, Washington for the year 1992
have been prepared and filed as provided by the laws of the State Pf ;Washington, the said
budget having been printed for distribution and notice published in the official paper of the
City of Kent setting the time and place for hearing on same and said,notice stating that all
taxpayers calling at the Office of the City Clerk would be furnished a' copy of said budget;
NOW THEREFORE
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON DOES HEREBY ORI)AIN AS FOLLOWS:
Section 1. Budget. That the budget for the year 1992 as it now stands is hereby adopted
in the amounts and for the following purposes to wit:
• Change Beginning Ending
in Fund . Fund Fund
Revenues Expenditures Ba]ancg Balance Balance
GOVERNMENTAL FUNDS
GENERAL FUND 31,J79,971 33,137,803 (1,357,832) 1,857,832 500,000
SPECIAL REVENUE FUNDS
Street 1,315,848 1,470,106 (154,258) 207,503 53,245
Capital Improvement 3,542,827 3,804,441 (2611614) 711,614 450,000
Criminal Justice 783,119 634,976 148,143 234,312 382,455
Environmental Mitigation 194,600 238,095 (43,495) 290,051 246,556
Housing & Community Dev. 225,180 225,180
Other Operating Projects 50,000 50,000
DEBT SERVICE FUNDS
Voted 1,813,719 1,898,795 (85,076) 185,076 100,000
Councilmanic 2,221,037 2,221,037
Special As4iassment 3,446,014 3,395,514 500500 2,702,633 2,753, 133
CAPITAL PROJECTS FUNDS
Street Capital 1,259,000 1;259,000
Parks Projects 43,739 y 43,739
Other Projects 457,000 576,000 (119,000) 119,000
PROPRIETARY FUNDS
ENTERPRISE FUNDS
Water 8,861,427 6,877,027 1,984,400 8$ 14,674 10,499,074
Sewerage 10,887,553 12,859,863 (1,972,310) 2,755, 104 782,794
Golf Course 3,269,150 2,487,743 781,467 98,917 880,324
INTERNAL SERVICE FUNDS
Equipment Rental 1,556,045 1,283,120 272,94,5 • ' 1,950,583 2,223,508
Central Services 1,973,894 1,907,432 66,462 180,841 247,303
Insurance 4,025,941 4,190,697 (164,756) 1,677,581 1,512,825
FIDUCIARY FUNDS
TRUST AND AGENCY FUNDS
Firemen's Pension 221,200 149,500 711700 1,963,076 2,034,776
Economic Development Corp. 29,912 25,345 4,567 47,682 52,249
EXHIBIT "A"
YR
TOTAL GROSS BUDGET 77,957,176 78,735,413 (778,237) '43,496,479 22,718,242
1.
' s:
Internal Service Funds 7,228,263 7,228,263
Other Transfers 5,717,139 5,717,139
TOTAL NET BUDGET 653 01111,774 65,7903011 77$ _3 496 3 479 2 7 242
Section 2. This budget provides a 6.7% cost of living adjustment for nonrepresented
employees effective January 1, 1992.
Section 3. The City Admirnistrator shall administer the Annual Budget and in doing so may
authorize adjustments to the extent that they are consistent with the budget approved herein.
Section 4. Effective Date. This rdinance shall take effect and be in force five (5)
days from and after its passage, approv 1 an,: ication as provided by law.
D N KELLEHER, MAYOR
ATTEST:
BRENDA JACOBER, DE UTY ITY CLERK
APPROVED AS TO FORM:
OG A.4LU �;H
PASSED the1991.
APPROVED the c day of 1991.
PUBLISHED the day of 1991.
I hereby certify that this is a true copy of Ordinance No. passed by the City
Council of the City of Kent, Washington, nd approve y the Mayor of the City of Kent as
hereon indicated.
BRENDA J CQBER DEPUTY CITY CLERK
.r�w..r r+l ak ham.•�1.J VLl..
Portion city Councl Fleeting of Novete , 3 1991
JOHNSON: I would move to amend the motion to reiistate the Youth
at Risk Program Goordinator as a full time positi ReCEIVED
WHITE: Second. FEB 81 1992
MAYOR: It' s been moved and seconded. Is there dtsG6%t.onp Attorney
WOODS : Your Honor, I would like to sneak to this. It has not come
directly to Council under Other Business and I have difficulty support-
ing this particular position in terms of the revenue generated covering
the Position when I look at what' s happening with double bunking in
the corrections facility and the police department not getting any
direct return from that added revenue, and on the basis of principle
I will vote against this amendment.
MAYOR: 14r. Johnson, Before I take your comments I also want to
clarify that if the -Council adds positions to the budget that these
positions like any other positions in the budget can be administrativel
frozen if Administration feels that there is a concern about too
many positions in the budget. With that in mind, 11r. Johnson, your
comments . "
JOHNSON: Your Honor, the Parks Committee had voted three to zero to
recommend to the Council. , in fact we tried to gent this on the Council
agenda and the Council President, as I understand it, chose not to
put it on the agenda.
WOODS : Only once, Mr. Johnson, only, once.
JOHNSON: That 's correct, but that' s why I'm prop6sing tonight so that
it can be included as part of the 1992 budget. And I think it' s
important we all realize, I think, the value th*t , b.his program is now
currently providing in our community. We fund this program or we fun(
more police officers to deal with these youngsters if they're not in
this program. I think that because the Parks Committee recommended
on a unanimous vote that it be funded, that it should be funded, and
also that because it will not cost any additional dollars to the city
because the fees will be increased to cover the. cost . The. cost is
approximately $11,000 . It is currently funded as a full time positio
EXHIBIT "B"
2 '
but because of the cutbacks would be reduced to 3/ passion for.next year.
The fees that would cover the cost of $11, 000 would beproximately $13,000
o it would be actually a savings of some $2 ,000 .
MAYOR: Mr. McCarthy, Mr. Johnson just outlined several :'aesumptions that are
the basis for his recommendation. Is the• 'Council in possossion ''of a fiscal
note on this particular proposal?
McCARTHY: The IBC dehied. this request, or recommended against it , when the
issue came before us . I-`think there are a couple issues here that I 'd like
to clarify. One is the position is budgeted as a 3/4 nosition. It' s being
filled as a full time position because it started after; the first of the
year and there was enough money there because the dollars were saved during
the first part of the year when the position was unfilled. The individual-
emnloyee, it' s my understanding,. signed an agreement that they knew that the
position would go to 3/4 time as of the first of the Year if the budget
adjustment wasn't made at the time they hired on, so they knew that . With
respect to the revenue, part of the mayor's budget proposal increases the
revenue in the Park Department by $60, 000 and we worked with the Park Depart-
ment to try to find the best place for that $60, 000 to be allocated in their
various divisions and it is my understanding in that discussion and I wasn' t
involved at all directly' that there was a feeling that we not add revenue to
the program in question, that it be added in some of the other areas and we
didn' t therefore add as much as maybe we might have in allocating the $60, 00
that' s in the budget now.
ORR: Your Honor, this is one part of Mr. Johnson' s proposal that I felt I
could support, however given your statement r underst4nd that 'the position
probably would remain frozen at 3/4 and I respect your right to do that. I
might add that I think' I will support this amendment with the idea that
possibly that be given some priority because it is , if the figures are
correct , it is revenue neutral, or actually generates ' a little bit more
money. Just with the idea that that type of program is an extremely import,
program, so with that I would say that I will support; Mt. Johnson' s amendme,
knowing that the position may not be filled any time soon, but I would hope
it would be given some priority at a time when it ' s possible.
MAYOR: Further discussion on the amendment?
r�
DOWELL: Your Honor, As revenue neutral Dositiolet t*4t committee meeting,
it was expressed that fees could be increased to cover ;hat amount . There
lidn' t seem to be any objection to that except by Admire stration and I reall3
had difficulty understanding that , as Mr. Hansen knows,<Aa to why there woulc
be an objection to raising fees for a program for youth,� at risk is necessary
to cover that extra 1/4 of a person. And so I would certainly vote for this
proposal. I do notice, however, that what we're doing possibly is increasinE
the budget, not with this one , but we seem to be heading in that direction.
This line item type thing may have some 'consequences , although I do like both
of these that we've done. But maybe we are line-iteming these things to deat
and increasing. . . Are we also going to make an amendment to request burn
props be added back in to , which was a high council. priority. . I don ' t think
very many on this council would vote against those burn props as I recall.
But anyway I will vote for the youth at risk. I can't vote against that.
WHITE: Mr . Chairman? s
MAYOR: Mr. White, if .I may, just some response to Mr— Dowell' s comment . I
think that normally when a proposal comes before you, it has a fiscal note
outlining Administration's rationale and the IPC's rationale for taking the
position they do. And any amount of explanation that Mr. McCarthy can pro-
vide is not going to provide that outline, but nevertheless it appears that
this is going to pass. But in terms of the confusion, I can see your point.
Mr . White ..
WHITE : Mr. Chairman, as you are mayor of our city; I respect your position
and your right to freeze this position that we' are discussing; I respect
your right to use the IBC and the IPC, as much as I disagree with them. But
what bothers me is that there seems to be a perception that as Council we
are here to rubberstamn whatever IBC and IPC and the gtayor of our fair city
sends us , and I have a lot of problem with that . I am going to support this
youth at risk program even though I proposed a teductton in personnel , I
will support the youth at risk program as much to send a message that I'm
not a rubberstamn for anybody. And I believe' in this, n-rogram. I believe
in the youth at risk program. It ' s working. We have, people at our committf
saying they are willing to pay more money to Participate in the program, an
when the public wants a program, they're willing to pay for it , they' re
willing to make it self-supporting, I have to support, that .
.HOUSER: Your Honor?
-1AYOR: First, Mr. White, I certainly agree with youtt ;you shouldn' t thinb
of yourself' as a rubber stamp and I assure you that ,`crtainly don't .
(laughter)
WHITE: Message received.
MAYOR: Ms . Houser.
HOUSER: Well , I'm just astounded that 1/4 position could cost $11,000 . I
mean, I know the youth at risk program is imporeant and I know that it
started out as a 3/4 position and that was agreed to by the person that was
hired. So we are not actually changing anything that wasn' t already set in
the budget. But another $1I', 000 for a 1/4 position ju4t seems excessive to
me. Maybe it 's because I go by what I make here, I don't know. (laughter)
MAYOR: Further discussion on the amendment? All those in favor say ayes
DOWELL, JOHNSON, 11ANN, ORR, WHITE: Aye.
MAYOR: All those opposed say nay.
HOUSER, WOODS : Nay.
MAYOR: The motion is carried.
k
v
J
MUNICITU
ESE,�RCII
'ERVICES
(,"ENTER
OF WASHINGTON
10517 N.E 38TIl PLACE
KIRKLAND, IVA 98033-7926 February 11, 1992
(206)827.4334
FAX(206)827.5002
BOARD OF
DIRECTORS The Honorable Jon Johnson
17ARRENA.BISIHIP Councilmember
hefden' City of Kent
HARRYA.PRYDE , A ��
. VicePrtnde„t 224th �►va:. S.
LIDYD IV PETERSON Kent, WA 98032
S—ary
DR.JD"N D. !Still
Trea.„.er Dear Councilmember Johnson:
DIRECTORS This is in response,to your inquiry this morning Concerning the issue of whether
FREDIL ANDREII•S the mayor has the discretion to make a city employment position less than full
Ivan C.Dwrlt time, with a less than full-time salary, where the council Tins established in the
BEmDRUd"IEua "�
NAY UVRIKSM budget that the position is to be funded full time with,a►zala y i range that reflects
A1KSUALL rIE
G.ELDON.IIARsI/A full-time employment. As I indicated to you over the pl e, and as discussed
L.JDE,IltLLER below, the mayor does not have discretion in this matter and must carry out the
BE7T7fANENARIER 11fARGERY PRICE � i� � Y l established b the council.
Dow IV SrEmms
jsEm.STR�r There are numerous statutory provisions which provide for,the council's authority
to establish and adjust compensation of city officials and, employees and which
STAFF establish the duty of the mayor to carry out the policies of the,council regarding
RICD.IRD YmirRDltirr compensation. In general, RCW 35A.11.020 provides that "[t]he legislative body
E,re„HtrDltertat [city council] of each code city shall have the power . . . to fix the compensation
,N+RcIE,u.KuIMI"niNee ER
C„„t and working conditions of[the city's] officers and employees . ." The salaries or
JUDMICor salary ranges for employment positions are to be set out in the budget document
P»blkHna»eeConudfa,t or attached and made a part of that document, which budget is passed by the
L1:V.v6DP.,1IERRIrT Libn,etnn council as an ordinance. RCM35A.33.050, .075. Tivad tiob, RCW '5F.33.105
SnuvC.E.1GER provides as follows:
Planing C„nHJlaw
Br/lovK.KATwixim
Publle Miry Consultant Notwithstanding the appropriations for any salaryo or salary range
PArRICK IV MASON of any employee or employees adopted in '$ final budget, the
legal Gat„"ant legislative body of any code city may, by ordinance, change the
RDRERT R.31EINIG
Lori Consultant wages, hours, and conditions of employment of Any or all of its
Rorll.PETERSON appointive employees if sufficient funds are available for
P„b!!t RbrLt Can»H»nt
appropriation to such purposes.
PmaE.SULLI1U.JR.
legal Gonn"an
FREDL. WARD Since the city's salaries are set out by ordinance and may be changed only by
lnfurmatlon Syt`mrt SpetaH„t
ordinance (and thus only by the council), it is clear that the mayor has no authority
LEGAL COUNSEL to provide for a lesser or greater salary established by the council in the budget
RDRERTF.H.u'T" and/or salary ordinance. The mayor is charged with the;duty to faithfully enforce
Cettralco„,nel all ordinances. RCW 35A.12.100. Although the mayor his the statutory obligation
E,1IERITUS
ERNESTIL COWELL
Municipal Law Specialist EXHIBIT "C"
The Honorable Jon Johnson
February 11, 1992 ';'
Page 2
to prepare and submit to the council a proposed budget, as required by RM 35A.33.055, and
may within that proposed budget propose that a city employment position be less than full time
and funded accordingly, the council may certainly disagree with that proposal:anal authorize a full-
time salary for a full-time position. The mayor would then have no choice but to carry out the
mandate of the council.
I trust the above analysis addresses the question you posed to me this morning. If I can be of
any further assistance, please do not hesitate to contact me.
'fie duly your3,
Robert R. Meinig
Legal Consultant
RRM:sd
FOSTER PEPPER & SHEFELMAN
A LAW PARTNERSHIP INCLUOINO
PROFESSIONAL SERVICE CORPORATIONS
i I i 1 THIRD AVENUE
SUITE 3400
WASHINGTON 88101
BELLfiVUfi.WASHINGTON ORRICE SEATTLE. /h t PORTLAND.ORE60N OFFICE
(2081 4206)45 (206)447.4400 COPY Fi"E E! q Ef�TELECOPIER22503)221.1510
1-0607
TffLECOPIER:12061 d4S•SdB7 q
TELECOPIER:
(206)447.9700•(206)447.9283 MAR 1 6 � p+
TELEX:(2061 32.8024 7,7
ANSSK:FOSTER LAW SEA n} (�
1 i �./I��
March 13, 1992
Roger Lubovich
Kent City Attorney
220 Fourth Ave. So.
Kent, WA 98032 0.
Re: Management of Municipal Employees
Dear Roger:
You have asked for an analysis of issues surrounding a
position of employment in the City of Kent Department of Parks and
Recreation. The issues are not specific to the position or to the
City of Kent ("City") , however, and we therefore do not refer to
the facts of the individual position except as , necessary to
identify the basis for your inquiry. Rather, the issues focus on
the ever-present balance between executive and Islislative control
that is a hallmark of government at every level in the United
States.
In the following, we identify our brief response to your
inquiry, the background for your inquiry, and your analysis.
Brief Response. The city council of a C*40. ',* y ("city") has
the power to fix the compensation and workin�('1, li.tions of city
employees. RCW 35A. 11.020; 35A.33 . 105. ' h '" ?a', � is the chief
executive and administrative officer of the cityll,.' ;ih charge of all
departments and employees. RCW 35A. 12 .100. The '1"a 'orIs authority
to appoint, includes the power to remove or suspgns employees. 4
E. McQuillin, The Law of Municipal CQrporaj;jga� 1 12 .253 '(1985)
("McQuillin") . Employees may be suspended for financial reasons
that may be determined by the mayor in the exera, se of discretion
by that office. Id, R 12.246.
Background. During the course of deliberations by the Kent
City Council on the 1992 Budget, the Council discussed positions of
EXHIBIT I'D"
employment for which funding may not be adequate j, n! light of a
declining economic environment. A number of s ; sitions were
authorized. However, it was understood that ap ' `merit would be
deferred until such time as better information reg ding City tax
receipts and other revenues could be measured. Thisawas consistent
with City management in 1991, during which timme the number of
authorized but vacant positions remained unfilled fts a result of
City Administration's concern about adequate funding.
In 1991, the City Council had authorized a Parks Department
position of "Program Coordinator - Youth at Risk. " In its
consideration of the 1992 budget, the Council debated whether
appropriations should be made to maintain the posittoniat full-time
status. The legislative record is someiihat unclear.
Councilmember(s) voting in favor of the motion to approve the full-
time position appeared to indicate that their concurrence was
premised on the Mayor's authority to determine ;service levels
following review of fund availability. However, We understand a
general fund appropriation was made, sufficient 'to fund the
position at full-time status in 1992 .
There appears to be- a distinction made with re0pect to certain
positions in the 1992 budget. Some positions were authorized and
budgeted funds were appropriated. Other positions were authorized
subject to sufficient revenues to support hiring., Nevertheless,
the budget was balanced with positions authorizedand revenue
projected in support of positions and other municipal expenses.
RCW 35A.33 .075. 'The budget is subject to city Odnainistration's
general supervision of "city government and all city interests. "
RCW 35A. 12 . 100. Additionally, the mayor is authorized to make
transfers between individual appropriations within a fund, subject
to any regulations enacted by the city council. $tCW 35A.33 . 120.
Analysis. We begin our analysis by commentingp, on February 11,
1992, correspondence to the Honorable Jon Johnson Councilmember,
from the Municipal Research and Services Center of Washington
("MRSC") . In that brief correspondence, an MRSC legal consultant
has suggested that the Mayor has no authority to provide for lesser
of greater salaries established by the Council to the budget or
salary ordinance. We do not take issue -with the conclusions of
MRSC in this regard. The principles enunpi4ted in that
correspondence are well recognized. The City, act'ino through it's
legislative authority (council and mayor) adioptsi an ordinance
providing for the annual budget. Typically, such ordinance
provides for the, establishment of positions, and 4tt;aches salaries
or salary ranges to those positions. Certainly, theiMayor would be
without authority to authorize a full-time position when one has'
not been established by ordinance, or to authorize salary not
approved by ordinance.'
1 We use the term "position" in this respect in a technical
sense. We assume the position to be one regularjy ;employed, with
full rights and responsibilities assigned to City employment. This
The discussion of the authority of a coUrr,il to create
positions, establish salaries, and otherwise .t�vi.de for the
general . framework for municipal governance, doeii:-*t;'' address the
specific issue of management or administration of a city.
Notwithstanding the existence of budgeted positions with
appropriated funds, it is well recognized that budgeted income may
not necessarily correlate with actual income. Xt is incumbent
upon city administration to be attentive to those issues at all
times. While an administration would be within its authority to
continue to employ personnel and issue salary warrants on the basis
of a council's budget and appropriations, in the Osonce of funds
sufficient to honor those warrants, city governments would soon be
in crisis. The history of local government in the United States
shows many examples of such situations. It is with this in mind
that many local government administrations, at vari6us levels, have
acted to control, fiscal problems by leaving vacant positions
unfilled, or by suspension (lay-off) of certain p4rapnnel.
The authority to leave positions vacant �wats recognized
recently in Crip en v. City of Bellevue, 61 Wn. App. 251 (1991)
(appointing authority with discretion not to fill vacant civil
service positions;) . The City of Kent recognized this authority in
the last two years in the limited staffing of municipal services
during a period of economic recession. This authority has been
exercised by the Mayor, notwithstanding the existence of approved
positions. The Mayor's authority to leave vacant' positions is no
different from the authority to suspend temporarily employees for
lack of work or lack of funds. In this sense, suspension does not
implicate discipline or any other employee wrongdoing. M Quillin,
supra at 1 12 .246; see, Yantsin v. City of Aber_ftgn,� 54 Wn.2d 787,
790, 345 P.2d 178 (1959) :
Here we are concerned with the relationship of a
municipality and its employees; and, as we have seen, the
right of the city to suspend or remove is absolute in the
absence of limitations placed thereon by civil service or s
other tenure guarantees.
In Yaptsin, the Court found it had no jurisdiction to hear a
challenge to the suspension of a police (civil orvice) officer.
We have not examined, and we are not aware of, 'i**, tations. that may
exist in Kent municipal ordinance to pr�o�Oae the Mayor's
discretionary authority over appointment and/." r suspension of
employees. We have also assumed that the acts, of the Mayor are
exercised reasonably, and not in an arbit 'At jand capricious
manner.
is in contrast to temporary, or part-time personnel, who may
receive compensation from specific accounts, but -do not fill formal
positions in the municipal organization. We note also that we do
not address in this analysis civil service .pooi.ti.ons, officers,
contract employees, or employees for fixed termo.
The two branches of authority (legislative A4 executive)
discussed in the N,RSC analysis and in this lett#r- ro summarized
well in Chatf i§ld ,v. City of Seattle, 198 Waa�h.�, �.�� ; 88 p.2d 582
(1939) . In Ch. hatfiAld, the court considered the,ia#hority of the
Seattle park board over budget positions. The, park board had
exclusive (executive) authority over personntll , ' in the park
department. The Court recognized that the board "was not compelled
to maintain on its payrolls more persons than sere needed to
perform the work" of. the department. Chat g,Zd, at 186-187.
However, the park board could not refuse to follow the city
ordinances.
If the board, in its judgment, was of the opinion that
the work of its department required a nujer, of employees
less than that permitted by the city council in its
ordinances, or if the board lacked money to pay its
employees, it had the right to contipuO in its employ
only as many persons as it believed necessary to
accomplish the work required, or as it could pay; but it
had no right to reduce wages, or hours of labor, the
schedule of #which had been established by the city
council by ordinance.
Chatfield, at 187 . Similarly here, the mayor would be within
statutory authority to continue or suspend employment based upon a
determination of the availability of work or funds; the mayor would
be without statutory authority to circumvent the policy direction
expressed by ordinance for reasons other than lack of work or lack
of funds.
The record and evidence in this case is subject to differing
interpretation, and may continue to be subject to debate. Because
of the insufficiency of the evidence to support either side of the
issue, it would be inappropriate to speculate as to the outcome of
that debate.
Conclusion. , The discussion of a mayor's authority to manage
positions and operations of city government is technical, and
somewhat harsh. You have asked for an analysis of the issues of
authority and control, and we have done so without a discussion of
the practical or substantive aspects of such an; approach or the
specifics of the given case. Similarly, we have attempted to avoid
comment on the well-publicized political contro*rpy surrounding
this issue. Recognizing the balance of authopit 'between council
and mayor, we trust the foregoing will further ,a';more cooperative
�-• A I
rather than combative approach between the branx government
to assure better public service to the City Of
Very truly yours,
FOSTER PEPPER & SHZPXLXAN
a�
P. Stephen DiJuliv
PSD:kk
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