The Pierce County Council is preparing to vote Tuesday (March 10) on whether to drop a lawsuit against a citizen who’s seeking a public vote on a $127 million county headquarters building.
Meanwhile, county officials are still debating who had the authority to take legal action against the citizen in the first place.
The Prosecutor’s office says the ultimate power over litigation rests with the County Council. The council, however, never met to discuss this lawsuit or take a vote on it.
Council members said in interviews with the The News Tribune that they believed filing suit was County Executive Pat McCarthy’s exclusive decision to make.
Some of them still feel that way, despite prosecutors’ statements to the contrary. So does McCarthy.
She told The News Tribune Monday that she wanted to move forward quickly on the headquarters building rather than risk a costly delay in construction. So she directed prosecutors to sue Gig Harbor anti-tax activist Jerry Gibbs, who filed a referendum proposal on Feb. 24.
McCarthy pointed to part of the county charter that calls on her office to “execute and enforce all ordinances and state statutes within the county.” She said that includes the council’s 4-3 decision last month to build a nine-story government headquarters in Tacoma’s South End.
“I have a job to do, and this is important for the courts to determine the validity of the referendum,” she said Monday. “We are seeking judicial review.”
The confusion appears to stem from a series of email communications between council members and the prosecutor’s office. In the exchanges, attorneys sought the seven council members’ opinions on whether to sue Gibbs, who needs to gather more than 24,000 valid signatures before July in order to put his referendum on the November ballot.
The Prosecutor’s Office in this case finds itself in the awkward position of representing two clients — McCarthy and the divided County Council.
But prosecutors say state law designates the council as the final decision maker on litigation. So they decided to “check in” with council members before going forward with McCarthy’s request.
In interviews with The News Tribune, Deputy Prosecutor Doug Vanscoy was careful in describing prosecutors’ communication with council members; he said he didn’t want to violate attorney-client confidentiality.
“We contacted all of them, heard back from several, and none of them objected (to filing suit against Gibbs),” he said.
Prosecutor Mark Lindquist said his office wouldn’t have filed suit if any objections had been raised.
“If we have one client say ‘file something’ and another client says ‘don’t file something,’ we’re going to put on the brakes,” Lindquist said.
In hindsight, all six council members who spoke with The News Tribune said they should have discussed the proposed suit in an executive session. That’s the forum where elected bodies often discuss litigation with their attorneys.
“This whole thing was messy,” said Councilman Doug Richardson said. “I think a lot of council members were surprised to find that we were the ones who authorized the suit.”
The communication chain apparently started when Vanscoy sent a message to the entire council on Feb. 26 — the day before the Prosecutor’s Office filed suit — “requesting instructions from council before proceeding.”
Vanscoy wrote that “direction from the chair would be sufficient.” This was significant because Council Chairman Dan Roach is a vocal opponent of McCarthy’s plan to consolidate county departments into a new government headquarters.
Emails show that Roach suggested he didn’t like the idea of suing Gibbs. But he also thought McCarthy could move without the council’s blessing.
“I’m just saying that the council is not asking for (the lawsuit), the executive is. That’s between (McCarthy’s) office and the prosecutor’s office,” he wrote to Vanscoy and the council.
Council members who favor building the new headquarters did not want Roach speaking for them.
“We’re all separately elected,” Councilwoman Connie Ladenburg said in an interview. “We had not met as a group to share with (Roach) our opinions, so therefore, he wasn’t able to speak on this.”
Ladenburg and the council’s two other Democrats — Rick Talbert and Derek Young — told The News Tribune they independently told the prosecutor’s office that they supported the lawsuit.
Three Republicans — Roach, Richardson and Jim McCune — said they did not give an opinion to prosecutors.
The seventh vote, Republican Joyce McDonald, did not return phone calls from The News Tribune Friday or Monday. McDonald voted last month with the Democrats in favor of the proposed building.
Prosecutors said they were obliged to seek the council’s guidance because state law makes county councils responsible for the “official county position on legal issues.”
Vanscoy sent an email to the council fully explaining that reasoning on March 2 — after prosecutors had filed the lawsuit and Roach requested clarification.
Vanscoy told The News Tribune Monday that while the law clearly gives the council the final word on legal action, “they have delegated much of that over the years to the county executive.”
Most litigation is fairly routine. This, however, was hardly a routine case.
“We were caught between two clients, but the law tells us which one makes the call,” Vanscoy said. “We felt it was necessary to check in (with the council), and we did.”
Roach, for his part, is persuaded that the council has ultimate legal authority. That’s why he’s submitting an emergency resolution to the council Tuesday to have the prosecutor’s office withdraw the lawsuit against Gibbs.
The council meets at 3 p.m. in the County-City building downtown at 930 Tacoma Ave.