Proposed Ordinance O-25-4-101; Response To Chief of Staff Van De Vates Memo

As you know, we are prohibited from communicating amongst each other in a nonpublic way regarding an item pending on our commission agenda. Consequently, I am responding on this forum to Chief of Staff Van de Vate’s memo circulated to us, regarding my proposed ordinance appearing on this month’s agenda, O-25-4-101. I note that the memo omitted the second page of my proposed ordinance, at least the copy of the memo that I received.

One of the objections I heard to my proposed ordinance, from Chief of Staff Van de Vate and others is that my proposal encroached upon the executive branch’s prerogatives; that the legislative branch should “stay in its lane.” While drafting the revisions to my proposal this past weekend, I researched the breadth of the power afforded to the legislative branch of government. The holding of the Supreme Court case I cited, McGrain v. Daughtery, does relate specifically to the subpoena power belonging to the US Congress.

The broader principle to draw from McGrain v. Daughtery is that legislative bodies do more than merely vote on measures with blinders. Legislatures have implied “auxiliary powers” available to them – “powers,” in the plural, according to the US Supreme Court. One power, referenced by Commissioner Jay recently, is overseeing government operations, which, like the subpoena power, leads to information for properly performing the primary responsibility of legislation. That these and other powers exist is a fair principle to draw from this case, because the opinion discusses not just US congressional authority but the powers of legislative bodies “before and when the Constitution was framed and adopted.” McGrain, 273 US at 175. The Supreme Court relied upon the historical inherent powers of legislative bodies in rendering its holding.

The reasoning behind my proposal is not novel, the Supreme Court’s historical recount in McGrain vindicates me. It is entirely reasonable that Knox County Commission should be more informed and earlier informed about grants. We should know about the application and the grant on the front end, not merely learn about the approved grant funds at the tail end. It is entirely reasonable, also, to codify this auxiliary power of oversight, and not merely rely upon the voluntary provision of information. My proposal does not overstep the separation of powers between branches of government. The proposed ordinance is not heavy-handed, it is normal.

The Mayor’s office should not take umbrage at the language in the recital. The language that Chief of Staff Van de Vate complains about is prospective and prophylactic, not reactive. As stated recently by Commissioner Hill while commending Commissioner Russell for being ethical in the way Commissioner Russell conducted herself on the audit committee, “[t]he next person might not be so ethical.” A legislative initiative should not always be reactive to something that has happened. It is better to have guidelines in place as a precaution, rather than reactionary measures put in place as a remedy – an ounce of prevention is worth a pound of cure.

I disagree that this should merely be a resolution. I call for an enduring rule that supersedes all of us, and creates a culture of transparency for those who follow after us.

This ordinance promotes good governance. If not required to give approval for a grant application at the beginning of a grant application process, like the State of Oregon for example, the Knox County Commission should at least be involved at the beginning of a grant application process as part of its oversight duties. I am satisfied with this compromise between my initial proposal and what is now before the Commission, because there is no constraint on the grant application process, but allows for oversight. I am mystified as to why a cooperative and forthright administration would object to an ordinance, if it is already willing to comply with the measure on a voluntary basis.