Attorney Beckhusen : Fluoride Initiative "Legally Flawed"

(Below, Bellingham municipal law attorney Rolf Beckhusen explains the numerous reasons why the fluoride initiative is "legally flawed" and why an legal action for a declaratory order should be filed by the city attorney to save taxpayers the expense of a needless vote on the matter)

See also letter below from attorney Rolf Beckhusen in Word format.  Also available is the scanned version of the letter pages 1, 2, 3 and 4 as well as the press release issued on 8/15/2005.

                                                                                                    August 15, 2005

 

Ms. Joan Hoisington

City of Bellingham

City Attorney

210 Lottie Street

Bellingham, WA 98225

Re: The Bellingham Fluoride Initiative

Dear Ms. Hoisington,

I am writing to you on behalf of Bellingham Citizens Against Forced Fluoride

regarding the proposed initiative that attempts to mandate the addition of fluoride to Bellingham's drinking water supply.

My practice has involved municipal law in Bellingham and I have been fortunate to have a number of clients in the past dealing specifically with Washington State Law as it involves citizen initiatives and issues involving the Bellingham City Charter and Bellingham Municipal Code specifically. After researching the matter, I believe that the proposed initiative ordinance is in violation of applicable state law and of the Bellingham City Charter.

Overview

The body of the proposed ordinance consists of four sections or paragraphs. Section 4 reads in part,

Initial capital cost outlays necessary to implement this ordinance ("capital cost")

are estimated to be Six Hundred Thousand Dollars ($600,000.00). This capital cost shall be funded by a grant from the Washington Dental Service Foundation.

This language is misleading and is beyond the power of the electorate to enact.

While Section 1 seems to require that the city "begin operations in a timely manner" after the ordinance becomes effective, Section 4 provides otherwise. That section makes the effective date contingent on funding which "shall" be provided from a grant provided by the Washington Dental Service Foundation.

The Washington Dental Service Foundation is a private, for profit (v. non-profit) corporation. Its main offices are located in Seattle. It is thus beyond the jurisdiction of a city of Bellingham ordinance. The basic rule is that the electorate (acting legislatively) is limited to the geographical area of the city. Generally, legislative enactments apply only to persons or entities within the territory over which the enacting legislature exercises jurisdiction.

1 Sutherland Statutory Construction #2.02. Thus even though the ordinance states that the grant "shall" be provided, it is probably unenforceable. This also conflicts with the language of the initiative which mandates fluoridation with no mention that the mandate is contingent on receipt of private funds.

The foundation, according to its website, requires all potential grant recipients to complete a nine-page application which must be submitted to the foundation by either April 1 or October 1 for consideration. If (in the foundation's discretion) an application is approved, the applicant must sign a grant agreement presumably dictating the terms on which the grant money may be used.

A law may be enacted to take effect or go into operation upon the happening of a future event (e.g., on its approval by a mayor or in the case of an improvement ordinance, on deposit with the city treasurer of a specified sum). However, as stated in 5 McQuillin, Municipal Corporations #15.41, "…provisions of an ordinance which condition its effectiveness on subsequent execution of a contract with private parties as to matters within the police power of the city may invalidate the ordinance." Clearly the city of Bellingham has the police power to provide and regulate a system of water supply (RCW 35.22.280[14]). The Washington Dental Service Foundation is a private party, over which the city also has no apparent jurisdiction.

Furthermore, the initiative in its preamble grossly underestimates the revenue necessary to pay for the yearly costs of operating the fluoride delivery system which will likely be around $140,000 based on the City of Lakewood Water District analysis. The initiative attempts to minimize the revenue-generating requirement and pass the task to the City Council.

A portion of the funds raised for the capital outlay by the initiative are from a discretionary private grant. The requirement of Charter Sect. 10.03 that "provision be specifically made therein for new or additional sources of revenue" to pay for "a new activity or purpose" is not met by a source (Washington Dental Service Foundation) over which the city has no jurisdiction or enforcement capability. Typically, an initiative would also give the voter a choice of whether they wished to impose an additional utility charge to pay for the additional services.

An initiative ordinance may only relate to the City's legislative, as distinguished from its administrative, powers.

A second concern relates to a restriction in The Charter of the City of Bellingham Section 10.02. That section states in part with respect to initiatives, "the registered electors of the City may propose any ordinance…relating to matters within the legislative, as distinguished from administrative, power of the City as a corporate entity."

The city has for many years operated a water utility. As part of that function, it has treated water chemically to ensure its potability (e.g. chlorine to disinfect drinking water). All this was done under the oversight of the state board of health. No local legislation was necessary and, to my knowledge, no local ordinance exists dealing with the chemical treatment of city water. Authorized Public Works employees have followed state regulations over the years.

The state board of health is empowered to regulate the design and construction of all public water facilities. It also has the jurisdiction to adopt all "rules necessary to assure safe and reliable public drinking water and to protect the public health" and to enforce the same. (RCW 43.20.050) The operation of a public water system, while a local function, is a matter of statewide concern and statewide regulation.

WAC 246-290-460 was adopted by the state board of health to regulate local fluoridation of drinking water and provides that "Purveyors" shall obtain written department approval of fluoridation treatment facilities before putting them in service. A purveyor is any agency or entity operating a public water supply including "authorized agents of such entities". This would seem to include the appropriate personnel in the Department of Public Works.

As stated in 5 McQuillin Municipal Corporations #16.55 with respect to initiatives,

…if the subject is one of statewide concern in which the legislature hasdelegated decision-making power, not to the local electors, but to the local council or board as the state's designated agent for implementation of state policy, the action receives an "administrative" characterization, hence is outside the scope of the initiative and referendum.

Further, the Washington Supreme Court in Durocher v. King County, 80 Wn.2d 139, 152, 492 P.2d 547 (1972) restates one test of what is legislative and what is an administrative proposition with respect to initiative and referendum as follows:

…whether the proposition is one to make new law or to execute law already inexistence. The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursuesa plan already adopted by the legislative body itself, or some power superior to it.

In reviewing the administrative history of WAC 246-290-460, the process of local fluoridation has been controlled by the state board of health through its rule making authority since at least 1983.

The preferable time to challenge the legality of an initiative is before an election.

Charter Sect. 10.03 states:

No initiative bill requiring the expenditure of additional funds for an existing activity, or of any funds for a new activity or purpose, shall be filed or submitted to a vote unless provision be specifically made therein for new or additional sources of revenue for all such additional funds required thereby. (emphasis added)

While an ordinance which is legally flawed may be challenged at any time, the above language clearly states the intention of the Freeholders who drafted the Charter. They relate that the harm from an initiative such as the one here in question begins when it is filed. They also make it very clear that the flawed initiative should not be submitted to a vote.

It would be in the best interests of the taxpaying public and would be consistent with the Charter to file an action for declaratory relief before ballots are printed and the expense of an unnecessary election are incurred.

Please contact me if I can clarify any portion of this letter or if I can be of assistance in any way in challenging this defective initiative. I am certainly willing to appear before the city council and discuss the matter further.

Very truly yours,

 

Rolf Beckhusen

Cc: Bellingham City Council Members: Louise Bjornson, Terry Bornemann, Grant Deger, Gene Knutson, Barbara Ryan, Bob Ryan, John Watts

Mark Asmundson, Mayor Bellingham

Citizens Against Bellingham Fluoride Initiative