By Richard Van Winkle, News of Mill Creek.
The Snohomish County Superior Court has tentatively scheduled a hearing for Friday, January 5, 2018, to determine whether or not the Mill Creek City Council has lost their authority to appoint someone to the city council seat vacated by Sean Kelly.
Mill Creek resident Herbie Martin filed a motion challenging the Mill Creek City Council’s authority on Thursday, December 21, 2017.
Martin contends that Kelly vacated his city council seat on July 28, 2017, when he moved his primary residence outside Mill Creek city limits and that since Washington State law only gives the city council 90 days to appoint someone to fill the seat, it’s now up to the Snohomish County Council to do so.
Martin’s motion is related, but different from Mill Creek resident Carmen Fisher’s court motion to rule Kelly unqualified to hold office, to decertify the 2017 General Election results, and to declare her to be the winner.
On December 15th Snohomish County Superior Court Judge George Appel gave Fisher a partial victory by ruling, “Kelly is not a resident of the City of Mill Creek and therefore is not qualified to hold City of Mill Creek Council Position #1.”
Appel denied Fisher’s effort to decertify the election results and declare her to be elected to Kelly’s city council seat “without prejudice,” which means the decision can be appealed.
This leaves the Mill Creek City Council in a difficult position. They are waiting for a court to provide clarity so that they can move forward, but the court hasn’t yet ruled on all of the decisive issues.
At the November 28th city council meeting Mill Creek City Attorney Scott Missal summarized his research into election laws. He said Kelly may not be eligible to serve on the city council because he moved his principal residence out of the city in July, but until a court rules on the issue that may not necessarily be the case.
“We looked at that issue and my sense of it is that as is most things in the legal world, until a court says it is so, it’s not necessarily so. So while the fact may be that councilmember Kelly moved out of the city in July, the office may not have been technically or legally vacant at that point until a court says so,” said Missal.
According to City Manager Rebecca Polizzotto, Kelly resigned from the Mill Creek City Council and returned his salary for the months of August, September, October, and November.
This seems to verify that Kelly vacated his city council seat at the end of July.
Missal told the city council that Kelly’s resignation “would provide a lot of clarity as to what your actions could be.”
With an additional court hearing scheduled and a possible appeal to the court’s December 15th ruling, it seems that the situation is far from clear.