Elected leaders gear up to sue lawmakers

Counties have expressed concern with the passage of unfunded or underfunded mandates.

Elected leaders of Washington’s 39 counties are fed up with lawmakers and governors telling them what to do without providing enough money to do it.

Now those leading the counties may sue those leading the state to make them stop.

The Washington State Association of Counties is amassing $400,000 to use in 2018 for this effort. It will come from a special assessment approved last month by county representatives guiding the organization. The money will come out of the budgets of each county.

Of the total, a quarter is earmarked for a stepped-up campaign of communicating their concerns to lawmakers in the upcoming 60-day legislative session. The rest is reserved for hiring an attorney and undertaking legal action as a way to get lawmakers’ attention.

County leaders think suing may create a different dynamic that will get lawmakers to hear them better, said Josh Weiss, legislative director and general counsel for the county association.

“It is a last resort. We want to make our case very well known first,” he said.

The frustration stems from the penchant of legislators to pass laws that require county governments provide a certain service or program but not sending along enough moolah to carry it out. Governors are complicit by signing the laws.

In the vernacular of government, these are known as unfunded mandates. In offices of county council members, they call them unfair and sometimes a few other unprintable names.

This discontent isn’t new. Counties have been expressing concern with passage of unfunded or underfunded mandates back to the state’s earliest days.

The problem is more pronounced these past couple years as the economy generates billions of extra dollars for the state’s coffers while still not producing enough new revenue for counties to keep up with their rising costs.

At a November legislative hearing on this topic, Lewis County officials provided the state House Local Government Committee with 19 pages of state-prescribed mandates of which the majority are paid for with local rather than state dollars.

Kitsap County officials, in the same hearing, estimated they wind up paying 82 percent of the cost of the mandates which worked out to about $6.5 million in the current budget year.

For most counties, the single largest underfunded mandate is providing a public defender or other attorney to represent the individuals the court deems to be indigent. This typically adds up to millions of dollars in even the smaller counties.

One of the newest mandates involves ballot drop boxes. Originally considered a convenience for voters, they are now a mandated piece of voting equipment per a 2017 state law. That same law not only means more boxes in heavily populated areas, it also means putting them in every town with a post office regardless of size or number of registered voters. This will mean a lot more boxes get put in a lot more places. But the Legislature and Gov. Jay Inslee didn’t provide counties with the money needed to install, maintain and pay staff to clear them out.

Snohomish County Council members decided last week to file a damage claim with the state to recoup its anticipated costs. That move lays the foundation for a possible lawsuit to compel the state to ante up. Other counties may follow and this may wind up as a component of the broader legal action envisioned by the county association, Weiss said.

But Snohomish County Council members, and for that matter elected leaders in the other 38 counties, will ultimately need to convince residents it is the right thing to engage a lawyer at this point.

It won’t be an easy hurdle.

If counties sue the state, whether on drop boxes or indigent defense, it means taxpayers are suing themselves since they will be bearing the cost of both sides’ legal fight. County leaders

are “very sympathetic to that and know it makes the case harder to sell” to the public,” Weiss said. “We are not pulling the trigger yet.”

They are only loading up their legal ammunition.

Contact Jerry Cornfield at jcornfield@heraldnet.com.

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