Fluoride Action Network

Attorneys disagree over impact of petition to change Port Angeles’ form of government

Source: Peninsula Daily News | February 28th, 2016 | By Paul Gottlieb, Senior Staff Writer

PORT ANGELES — Attorneys disagree on whether changing the form of municipal government would force an election to potentially get rid of the “Fluoride Four” on the Port Angeles City Council.

Members of Our Water-Our Choice!, a group opposed to city water fluoridation, are circulating a petition that calls for an election to switch Port Angeles from a code city back to its pre-1971 second-class-city classification “in order to elect a full new City Council.”

Organizers hope to bring the question of changing city status to voters for the Nov. 8 election and follow it with elections for all seven City Council seats April 25, 2017.

But it isn’t clear that changing the city’s classification would force council elections.

“I don’t see anything in the statute that requires the entire City Council to be elected,” City Attorney Bill Bloor said Feb. 9 at a Port Angeles Business Association weekly breakfast meeting.

Our Water-Our Choice! lawyer Gerald Steel of Seattle said a new City Council would have to be elected because the city’s government would be governed by different state statutes.

Brian Wendt, the county deputy prosecuting attorney who will review the petition for conformance with state law, said the legality of holding new City Council elections could be determined before it ever comes before voters.

There is no precedent.

No city in the state has yet changed from a code city to a second-class city, according to the Seattle-based, nonpartisan Municipal Research & Services Center, which answers research requests from government entities.

Headed for court

Wendt said last week the complexity of the issue could require the county “to seek some guidance from Superior Court” about state law in the form of a declaratory judgment.

“This is a sensitive subject matter to a lot of people on both sides of the issue,” he said. “Citizens seeking to use the system to reorganize a form of city government — that involves complex questions.”

The effort is fueled by dissatisfaction with four City Council members — Mayor Patrick Downie, Deputy Mayor Cherie Kidd and Councilmen Brad Collins and Dan Gase.

Dubbed by some “The Fluoride Four,” the council members voted Dec. 15 to continue fluoridation for 10 years until June 2026 and reaffirmed that decision Jan. 19.

The council had to make a decision by May 18, after which a 10-year pledge with the Washington Dental Service Foundation to fluoridate expires.

The votes were taken after the Dec. 8 release of the results of a fluoridation survey of city water customers in which 43 percent of those receiving the 9,669 surveys responded.

Of those, most — 56.64 percent — were opposed to the continued fluoridation of the city’s water.

Fluoridation foes were incensed by the council vote to continue the practice despite the survey results.

That prompted the movement to change the form of city government.

Number of signatures

Our Water-Our Choice! needs 467 valid signatures for the petition to be valid.

Organizer Jess Grable said Friday she did not have a signature count.

The goal of 1,000 names is about more than ensuring that county Auditor Shoona Riggs determines enough signatures are valid for the petition to reach the ballot.

“Now, we’ve decided to really make an impact statement,” Grable said.

But is the election about the virtues of second-class-city status?

“The bottom line is, it’s up to the City Council to say yes or no on fluoridation,” Grable said. “[Saying no] would end it all. Until they do that, we will continue to press on.”

Steel echoed that sentiment.

“If the council is going to act in a manner that the people feel is undemocratic and not reasonable, then the people have a right to throw the council out, and this is a way to do that,” he said.

Fluoridation foes dispute that fluoridation has dental health benefits and say residents have the right to choose whether or not their water is fluoridated.

Whether the entire City Council can be re-elected in the transition to a second-class-city classification is just one question in a cloud of legal issues that hangs over the petition.

Initiative, referendum powers

Both Bloor and Steel agreed that the issue of the city’s loss — or not — of initiative and referendum power also could end up in court.

The Municipal Research & Services Center says code cities “may adopt” initiative and referendum powers, while second-class cities “may not adopt” them.

Steel — emphasizing that if Port Angeles made the change, it would be the first to do so in the state — said such powers as citizen initiative and referendum potentially could be retained by a second-class city if the code city already had them.

“It’s a legal question as to whether initiative and referendum powers would disappear,” he said. “That’s an issue that can’t be decided by a court until after the petition is adopted.”

Bloor said those powers would vanish.

“There is not initiative and referendum powers granted to second-class cities, period,” he said.

“By going to a second-class city, there is a positive loss to the citizens of the city,” he said. “They lose a lot of their flexibility they have now in the ability for self-government.”

Bloor said that under second-class-city status, a city can enact a law only if the state Legislature says it can.

So, city codes, when employed, would have to be examined to ensure they did not conflict with state law, adding more work to the process of governing, he said.

But Steel said most city ordinances would stand.

“City code can’t conflict with state law,” he said.

Steel added that in a code city, City Council members “have greater power over the citizens because they have all the powers that are possible.

“If a City Council does not have a power, that power is reserved to the citizens,” he said.


The two elections could cost the city a combined $65,000, Riggs said last week. She estimated the change-in-city-status election would cost the city between $15,000 and $20,000 and a special election for a new City Council an additional $50,000.

The seats of three of “The Fluoride Four” — Downie, Collins and Gase — come up for election Nov. 7, 2017.

All three said in interviews earlier this month they will not seek additional terms in office.

The filing period for the 2017 general election is May 15-19 — just three weeks after the election for an entirely new City Council would be held if the petition is successful.

Despite that, “there’s still Cherie,” anti-fluoridation activist Eloise Kailin said earlier this month.

Kidd cannot seek re-election at the end of her third term in 2019 under the city’s term-limits law.

Council-city manager

One thing both Bloor and Steel agree on: Unlike most second-class cities, Port Angeles would keep its current City Council-city manager form of government rather than going to a strong mayor form of government.

Fluoridation opponents have said at public meetings that if residents don’t like second-class status, they can return to code-city status through another election.

Bloor estimated Thursday it would take a year to revert back to today’s code-city classification — and would face a high hurdle.

A petition to change back to a code city would require signatures of at least 50 percent of the voters who cast votes in the previous general municipal election.