Tunnel fight: A tale of two Richards

In signing a waterfront tunnel document, Seattle City Council President Richard Conlin acted in place of Mayor McGinn and flouted fundamental principles of the city charter. The episode recalls a famous showdown in Richard Nixon's presidency.

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Seattle City Council member Richard Conlin.

In signing a waterfront tunnel document, Seattle City Council President Richard Conlin acted in place of Mayor McGinn and flouted fundamental principles of the city charter. The episode recalls a famous showdown in Richard Nixon's presidency.

Some of my earliest memories are of watching the evening news with my dad in the very early '70s. I remember distinctly his intensity as he watched an unfolding saga about something called “Watergate.” I’ve been reminded of Watergate lately by the actions of Seattle City Councilmember Richard Conlin and his colleagues on the council, specifically the Saturday Night Massacre when President Richard Nixon tried to stop special prosecutor Archibald Cox from getting his hands on the notorious tapes that would end up bringing Nixon down.

The Watergate comparison might seem like a stretch, but that scandal — like the one emerging in City Hall— cut to the very crux of the constitution and bedrock principles of democratic government. Will one branch of government subvert another branch in order to get its way? Richard Nixon had his tapes and Richard Conlin has his tunnel.

Here’s how the Saturday Night Massacre played out. Cox, the special prosecutor, had been appointed to ferret out the culprits behind the break in at the Watergate Building. Arrests were made and it became clear that the people who broke into the offices of the Democratic Party weren’t acting alone. Cox had instructions to follow the trail of the conspiracy even if it led into the Oval Office. In an almost off-handed way, Alexander Butterfield, a low=level White House operative, let the Watergate committee know there was a taping system in the Oval Office. The tapes could yield important information about the Watergate break in. Cox wanted the tapes.

Nixon however, for obvious reasons, felt otherwise. He argued that the tapes were private and covered by executive privilege. He ordered Cox to stop pursuing the tapes and offered instead to have summaries written by nearly deaf Sen. John Stennis. That idea failed to pass the straight face test, and Cox was preparing to get a court order to compel Nixon to give up the tapes. Nixon had Attorney General Elliot Richardson called into the Oval Office and told him, essentially, to fire the special prosecutor. Richardson refused. Nixon then told Bill Ruckleshaus, an official in the Justice Department at that time, to fire Cox. Ruckleshaus refused and was himself fired. Finally, the White House found one Robert Bork — you might remember him as a failed Reagan nominee to the Supreme Court — who complied and fired Cox.

This whole affair happened over a few hours in late 1973 and riveted the nation. What would happen? Who would blink first? Nixon acted precipitously and the question remained would he flout a court order to turn over the tapes? At the time it was called a constitutional crisis because the president was attempting to stop the wheels of justice unilaterally — a violation of the essential separation of powers between the judicial function and the executive. And he did it to prevent a light being shined on his actions and the actions of his staff on the Watergate matter. In the end, Nixon was forced to give over the tapes and driven from office.

In Seattle, the increasingly unpopular tunnel plan has now become the center of a similar crisis over the city’s charter. The Seattle City Charter — the constitution of the city of Seattle — makes it quite clear that the mayor “shall direct and control all subordinate officers of the City.” Actions of the legislative branch, the Seattle City Council, “shall be by ordinance.” It’s called the separation of powers, and the concept is as ancient as Magna Carta (signed in 1215 by England's King John), the precursor to what we know understand as democratic government, a judiciary, executive, and legislature.

So when the Washington state Department of Transportation couldn’t coerce the mayor’s office to sign the supplemental draft environmental impact statement (SDEIS) for the deep bore tunnel on the waterfront, it went shopping for someone to sign. Like Nixon, WSDOT couldn’t get the mayor to comply with it demands, so it found someone who would.

Council President Conlin’s signature on the SDEIS is an unprecedented attempt to abrogate the city’s charter. Conlin can no more sign the SDEIS than he can put on a police uniform and issue parking tickets. He simply can’t do it. The signature must come from the executive. Conlin folded under pressure and signed the document, something that he isn’t authorized by the charter to do, a violation of his oath of office to support the “charter and ordinances of the City of Seattle (and" faithfully" carry out his duties.

And what about two other elected attorneys (Mayor McGinn is a lawyer) at the city who quickly threw themselves into the controversy, City Attorney Peter Holmes and Councilmember Sally Bagshaw? Holmes has bizarrely said in a statement that “the overriding question for the City of Seattle right now is whether the City should retain its co-lead status” on the tunnel project. Really? Right now the overriding question is whether the city council is going to flout the charter. We need the city attorney’s help in figuring out how to restore the separation of powers at City Hall. As city attorney, Holmes is the one person in all this who should be working to resolve the charter issues, not maintaining the city’s co-lead on the SDEIS.

And Bagshaw? Bagshaw worked in the same King County Prosecutor’s Office that determined — while I was leading enforcement of the new smoking ban — that smoking was protected by the First Amendment. So it shouldn’t be a surprise that her reading of the city charter is expedient rather than accurate. Her weekend declaration that the council would ratify Conlin’s signature would be laughable if it wasn’t so serious. The council simply can’t vote an ordinance — the only way it can act under the charter — into law in one meeting on Monday. They have to have notice and hearing. And the city council’s vote — even if it is unanimous — can’t make an illegal action like Conlin’s signing of the SDEIS legal.

Tempest in a tea pot or constitutional crisis? It’s pretty obvious that the Seattle City Council has reached a high-water mark for arrogance of power. What’s next? Will the council abolish the mayor’s office and establish a Cromwellian Commonwealth? The get-it-done gang has really gone and done it this time.

Heavy-handed tactics might be warranted at times of crisis. And reasonable people can act rashly in times of great stress. But the council seems hell bent for the tunnel even if it creates a crisis of confidence in city government. It’s hardly a tea pot-sized tempest when the tunnel debate even fractures consensus on the most fundamental principles of good government. This is serious.

As for Richard Conlin — Seattle’s erstwhile champion of sustainability — it’s easy to feel disappointed. It profits a politician nothing to give away his principles for the whole world. But for a tunnel? Many of us had higher hopes for our city council leadership. Perhaps it’s time to keep the charter close at hand and carefully review the provisions for recalling council members who fail to keep the oath of office.


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