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Oak Harbor councilmen’s actions weren’t criminal | Sound Off

March 24, 2013 · Updated 3:15 PM
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By Greg Banks

I have reviewed a police investigation into alleged criminal conduct by Oak Harbor City Councilmen Richard Almberg and Joel Servatius. After a complete review of the material, I have reached the only possible conclusion: that no crime has been committed by either councilman.

The allegedly criminal acts were the following: At the January 15, 2013 City Council meeting Councilman Almberg made a motion for armed citizens at the meeting to check their firearms with the police chief while in council chambers.

Councilman Servatius seconded the motion. Both councilmen voted in favor of the motion, which was defeated 4 – 2, allegedly creating a conspiracy between the two councilmen. Councilman Almberg then requested to be excused from the meeting by Mayor Scott Dudley.

Mayor Dudley assented, saying, “Absolutely.” Councilman Almberg left the meeting. At the end of the meeting, Mayor Dudley asserted that Councilmen Almberg and Servatius had violated their official oaths to “support the Constitution of the United States and the Constitution and Laws of the State of Washington.”

On February 7, 2013, a citizen filed a criminal complaint with the Oak Harbor Police Department against the two councilmen.

The citizen alleged the councilmen had criminally violated their oaths of office by attempting and conspiring to deprive citizens of constitutional rights. He also complained that Councilman Almberg’s being excused from the meeting was a criminal failure of his duty as a public official. At the request of Oak Harbor officials, the matter was investigated by the Jefferson County Sheriff’s Office, who referred it to my office.

As members of a city legislative body, Councilmen Almberg and Servatius are the duly elected representatives of the citizens of Oak Harbor.

In the United States of America, legislators are authorized and expected to vigorously exercise their First Amendment right and express their thoughts and ideas, regardless of the popularity of those ideas.

The continued vitality of our democracy depends on all citizens, especially our elected leaders, being free to express themselves, without a litmus test for consistency with the ideas of others.

Bringing a criminal charge against an elected official for voicing ideas in a city council session would clearly run afoul of the First Amendment. Any charge based on such conduct or expression would be dismissed with prejudice by any competent court.

It is worth noting that a law restricting guns from city council chambers would not be unconstitutional. The protections provided by the Bill of Rights, including the right to bear arms, are not absolute.

A Washington state statute places limits on the authority of local governments to pass ordinances regulating firearms. But both state and federal constitutions allow for reasonable regulations, including gun bans in areas like taverns, courthouses and schools. But, even if a council chambers gun ban were unconstitutional, it would make no difference in my decision.

Legislators in every city, county, and state have a long history of proposing and debating laws whose constitutionality, or legality under other statutes, is subject to question. Surely we cannot throw those legislators in jail.

Last year Washington’s law to protect children from being pimped by on-line sex traffickers was struck down as violating federal law. Should the legislators who voted for it, Governor Gregoire who signed it, and Attorney General McKenna who defended it, all be prosecuted and sent to jail? Should Tim Eyman be incarcerated for proposing initiatives that were later determined to be unconstitutional?

In our country, of course, the answer is a resounding “no.” Our laws are responsive to an ever-changing and ever more complicated society.

Jailing those who discuss changes to our statutes and constitutions is something that happens in places like Syria, but not in the United States of America.

In a similar vein, walking out of a government meeting is a time-honored method of constitutionally protected protest, with or without the permission of the presiding officer.

Councilman Almberg can no more be punished for an act of protest, than he could be for being excused out of a genuine concern for his personal safety.

When government officials espouse ideas that citizens disagree with, the conflict is addressed by voting against them at the ballot box, not by scrutinizing them in the criminal justice system.

 

 

Greg Banks is the prosecuting attorney for Island County.

 

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