January 4, 2020
Editor, Citizen Review
Editor:
On August 12, 2019 the Sequim City Council voted 4-3 against a proposal made by Council Member Ted Miller for a three-month moratorium on all development applications in Sequim’s Economic Opportunity Areas.
I have read an email dated August 21, 2019 in which City Council Member Candace Pratt explains her opposition to that proposed moratorium, and wish to comment on the content of that email.
Ms. Pratt describes her experience when attending an educational forum in 2008 regarding moratoriums as follows:
“…Carol Morris was the expert speaker. I learned that moratoriums are to be very judiciously enacted. There must be an emergency…”
She then states that when taking classes in 2012 offered by the Association of Washington Cities (AWC), she was:
“…instructed of the importance of listening to our attorney’s advice. By not following that advice, we councilors are personally financially liable for any court decision.”
With regard to Council Member Miller’s suggested moratorium, Ms. Pratt states:
“…How can we justify a city-wide moratorium to stop ALL development? Where is the emergency? The city attorney told us about court rulings against cities that improperly exercised moratoriums, thus resulting in judgments of millions of dollars. Our risk pool insurance will not cover these things, because we are supposed to know better than to get into such a mess!…I cannot, in good conscience, agree to a moratorium for [a MAT clinic] that the Community Development Director tells us may well conform to our zoning regulations…”
In my opinion, City Council Member Pratt’s concerns about what she terms “legal jeopardy” are nearly entirely unfounded. I believe her suggestion that a City Council Member who does not follow advice given by the City Attorney may become “personally financially liable” has no legal support, and is simply preposterous. Although a member of the City Council should certainly be guided by the City Attorney, failure to follow precisely the proffered advice does not expose the Councilperson to personal financial liability. A City Council member could, like other individuals, be exposed to liability for fraud, intentional misconduct or malicious misconduct, but not for merely failing to follow advice from the City Attorney. Additionally, the Revised Code of Washington describes “official misconduct” by a public servant as committing, or refraining from, certain actions “with intent to obtain a benefit or to deprive another person of a lawful right or privilege”. RCW § 9A.80.010
Council Member Pratt also states that “there must be an emergency” before a moratorium can be enacted. Again, her statement lacks legal support in my view. After reviewing the minutes of the August 12, 2019 City Council meeting, I see that Community Development Director Berezowsky stated that “an emergency must be declared to enact a moratorium”, yet no legal support for that comment is mentioned. Mr. Berezowsky might be a competent Community Development Director, but he has no legal training and his statement has no legal basis.
Finally, Ms. Pratt states that the City’s “risk pool insurance will not cover [liability resulting from improper moratorium actions].” First, as noted above, Council Member Pratt has no basis for asserting that the City of Sequim or City Council Members face potential liability if a moratorium was declared. And second, Ms. Pratt appears to be representing the potential liability interests of the City’s “risk pool insurer” rather than representing the citizens of Sequim. I suggest that Council Member Pratt has simply misunderstood the advice she has received from AWC as well as from the Sequim City Attorney.
Very truly yours,
Bob Bilow
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