Last night’s City Council meeting boiled down a debate on the definition of shall.
The Spokane City Council’s creation of 13 new public safety departments appears to violate the City Charter. But city attorneys insisted that “shall” does not always mean shall, at least not in the way the three City Council members on the losing side of the issue or perhaps a standard dictionary would define it.
Section 25 of the Spokane City Charter, at least on its face, appears to say that the City Council can’t create a new department except when it approves the annual budget – usually in December.
Here’s the exact language: “Administrative departments shall be created or discontinued by the city council at the time of the adoption of the annual budget, as the public business may demand. The rights, powers, and duties of the departments shall be prescribed, distributed, assigned, established, or discontinued by ordinance.”
Council President Ben Stuckart asked the council to defer the vote. He argued that shall means, well, shall.
“I looked up ‘shall be’ on Merriam-Webster and they define it as ‘will have to’ and ‘to be under necessity.’ The Legal Dictionary implies that it is an ‘imperative command,’” Stuckart said. “I believe the City Charter is clear.”
Councilman Mike Fagan, however, said neither the charter, nor Merriam-Webster is clear.
“With all due respect to the council president, everybody here in Spokane understands and realizes that Merriam-Webster doesn’t mean jack.”
Pastor Deb Conklin, a member of the Spokane Alliance, told the council that the meaning of shall is indeed clear.
“When I was a deputy prosecuting attorney, shall meant shall,” said Conklin, a United Methodist minister and former deputy prosecuting attorney in Clallam County.
But Assistant City Attorney Pat Dalton said that in order for the charter to prohibit the creation of a department outside the budget cycle the charter would have to read something more like: “Administrative departments shall be created or discontinued by the city council ONLY at the time of the adoption of the annual budget…”
“It doesn’t say that’s the only time you can do it. It’s not an exclusive thing,” Dalton said. “It’s not a limitation. It’s a statement that that’s when it’s normally done and it normally is.”
Dalton added that the phrase “as the public business may demand” also indicates that charter writers did not intend to prohibit creation of departments outside approval of the annual budget.
“I think the chief has gotten up tonight and told you that he thinks the public business demands it now, and I don’t think there’s any legal reason why you can’t do it,” Dalton said.