The Illegal Trashing of the SRHD Board of Health
On November 15, 2021, the Spokane County Board of Commissioners, Al French, Josh Kerns, and Mary Kuney, voted to dissolve the Spokane Regional Health District’s Board of Health (SRHD BOH) as of December 31, 2021. In a brazen display of power politics, the Commissioners reconstituted the SRHD Board of Health effective January 1, 2022. By removing five BOH member positions currently held by city representatives and selecting appointed member of their own choosing, the Commissioners gave themselves a likely supermajority on the Board. At least viewed from the standpoint of many, Resolution-21-0791 seemed to come out of nowhere, without warning or time for public comment. The Spokesman article by Colin Tiernan that covered the Commissioners’ action, quoted two members of the dissolved Board of Health, President of the City of Spokane City Council Breean Beggs and Mayor of Millwood Kevin Freeman, saying that even they were not made aware that the Board on which they sat was about to be dissolved.
For a month the audacity (and opacity) of Resolution-21-0791 apparently so stunned all concerned that no one thought to ask if the Commissioners had broken the law with their action. Then, on December 8, a guest opinion piece appeared in the Spokesman written by Dr. Pam Kohlmeier, MD, JD, entitled, “Was shrinking SRHD Board of Health illegal?”. In the article, Dr. Kohlmeier details multiple apparent violations by the County Commissioners, including violations of the Bylaws of the SRHD BOH, the Washington State Open Meetings Act, and other state laws, including one that authorizes commissioners by way of a resolution to establish a single county health district like SRHD WITH a Board of Health to govern it, but not the authority to gut an existing Board of Health.
What exactly is the power relationship between the three member Spokane County Board of Commissioners (French, Kerns, and Kuney), the State of Washington, and the SRHD Board of Health?
We claim to be a nation governed by “the rule of law”. Law is composed of words contained in a hierarchy of documents: the federal and state constitutions and federal, state, and local laws and ordinances. Power flows from and is constrained by the words in those documents, documents to which most of us pay little attention. A major portion of the practice of law is devoted to arguing over what those words mean, i.e. what the words authorize and forbid.
The power of the Spokane County Commissioners flows, as it does in all other Washington counties, from the Washington State Constitution and state law (the Revised Code of Washington or “RCW”). Commissioners French, Kerns, and Kuney must act within the confines of those laws—and—if not—should be called to account.
In shrinking the membership of the SRHD Board of Health and thereby clawing back voting power from local cities and towns and shoring up their own voting power on the BOH, French, Kerns, and Kuney have overstepped their authority—a polite way of saying they have broken the law.
The single county Spokane Regional Health District was established January 1, 1997 by Spokane County Resolution 1996-0825. This was done in several steps in response to the then recent passage of a state law (SB5253), part of the 1995 “Public Health Improvement Plan Implementation.” Having established the SRHD and the SRHD’s Board of Health, the three commissioners at the time, by law, as a threesome, relinquished some of their voting power to the members of the Board of Health, based on membership specified through a series of resolutions, under the authority granted under state statute RCW 70.05.030 which states:
The board of county commissioners may, at its discretion, adopt an ordinance expanding the size and composition of the board of health to include elected officials from cities and towns and persons other than elected officials as members so long as persons other than elected officials do not constitute a majority.
Take special notice of the words “an ordinance” and “expanding”. Note the wording is not “ordinances”, nor does the law allow for the county commissioners to “shrink” or even to “alter” the composition of the board.
Furthermore, as laid out in RCW 70.46.060:
The district board of health shall constitute the local board of health for all the territory included in the health district, and shall supersede and exercise all the powers and perform all the duties by law vested in the county board of health of any county included in the health district.
Over the years various Spokane County Commissions have passed resolutions that have expanded the number of BOH members—and they have tinkered with the details of who gets to be a member (e.g. adding representation for the City of Spokane Valley after it incorporated), but Resolution-21-0791, violates state law, breaking new ground by shrinkingrepresentation in a naked attempt to solidify their control over the duly constituted Spokane Regional Board. It is not only a shameful act, but it is illegal on its face.
The city governments of Spokane and Spokane Valley need to challenge this County power grab, in court if necessary, lest the three current county commissioners under the leadership of Al French continue to shamelessly claw back power that is not theirs to wield.
Keep to the high ground,
Jerry
P.S. As I read RCWs and historical Spokane County Resolutions in preparation for this post I was very much struck by this: The historical tone of past laws and resolutions was one of cooperation in pursuit of better and broader representation and inclusion in pursuit of the common good of Public Health. It is with regret and sadness that I note the tone of the current county commissioners as quoted in the Spokesman, which expressed, for example, sentiments made by Commissioner John Kerns:
Kerns also emphasized that the commissioners followed the letter of the law. He said if Riccelli wanted more public health professionals and more elected city officials on the board, he should have written that into the bill.
“It’s his law,” Kerns said. “I would say Rep. Riccelli’s rhetoric doesn’t match the bills that he drafts.”
That statement reeks of a politician’s version of the schoolyard taunt “Nah, na, ni, na, na.” AND, as I’ve just demonstrated, the Commissioners most certainly did not “follow the letter of the law”. Instead, they broke the law and assumed in their audacity that no one would call them on it.
P.S.S. The SRHD BOH, as a government entity related to, but separate from, the County Commission, established Bylaws which include the rules for membership on, and conduct of, business by the SRHD BOH, including a procedure to amend those bylaws. Once a single county health district is established by county commissioners and a Board of Health for that district is put in place then the BOH of that district is governed by its Bylaws, not solely by the county commissioners (although they retain votes on the board). If that were not so, then any decision made by a vote of a quorum of the twelve member BOH that was conducted under its Bylaws could be summarily overruled by just two of three commissioners voting in a commission meeting. That doesn’t make any sense.