Interim City Attorney Lynden Smithson has overstayed his appointment with no replacement in sight — that could have consequences for the Camp Hope lawsuit and beyond.
A year ago today, the city announced that long-time city attorney Mike Ormsby would be replaced by interim city attorney Lynden Smithson, who was serving in the municipal prosecutor’s office at the time.
In a press release announcing the promotion for Smithson, City Communications Director Brian Coddington wrote, “A full search is expected to be conducted for a permanent replacement, which must be confirmed by the City Council.”
On June 10, Smithson took office, according to the city’s communications. It’s unclear if a full search ever took place.
As Smithson nears the year mark serving as the interim city attorney, Lisa Brown, who is challenging incumbent Mayor Nadine Woodward in November’s mayoral election, has raised questions about the legality of Smithson’s interim tenure.
Brown’s tweet is mostly accurate, but there is some nuance. Spokane Municipal Code reads: “persons appointed for the job positions of interim or acting department head shall serve as such for up to 180 days, which period can be extended for up to an additional 180 days by city council resolution.” That 180 days is meant to give the administration time to find a suitable candidate to take over the role permanently. The extension would allow for a longer-than-expected search process. To date, city council has offered no extension — and it appears the administration never asked for one — so Smithson’s legal term as interim city attorney appears to have been over for nearly 6 months.
The city charter, meanwhile, describes the appointment process, clearly stating that the mayor has: “The power to appoint and remove the city attorney, provided such appointment shall be subject to the approval of the city council.”
On Friday, Mayor Woodward defended her decision to keep Smithson in the role, blaming council for failing to confirm him in the role and citing the failed ballot measure that would have given city council the power to hire the city attorney with the mayor’s approval and given the city attorney a seven-year appointment.
There are a number of ambiguities in the tweet: Is Woodward putting Smithson forward as her chosen candidate for permanent City Attorney? If so, why hasn’t the formal appointment process begun? Were other candidates considered? The City Attorney job post Brown referenced in her Tweet — which appeared on the City’s jobs website and was mirrored on LinkedIn — closed on May 23, 2023, long after Smithson’s 180 days were up.
Alternatively, is she saying that Smithson will continue to serve as interim? If so, what is the legal rationale for circumventing the 180-day and even the 360-day-with-city-council extension limits on his term?
RANGE has reached out to the administration and Smithson in an attempt to understand their legal argument for keeping Smithson on nearly double the allowable tenure as the interim attorney. We will update this story if we hear back from them.
RANGE also emailed and left voicemails for conservative council members Michael Cathcart and Jonathan Bingle for their perspectives on the interim appointment. They did not respond but we will include their responses if they do.
According to Council President Breean Beggs, it appears the mayor just wants to keep things as they currently are. He told RANGE the mayor made a verbal request this Monday to allow Smithson to continue to serve as interim city attorney. Beggs said he replied: “That’s against the law and we need to follow the law.”
Beggs also said this isn’t a new concern for him. “Council Member [Lori] Kinnear and I have talked to the upper administration multiple times about this over the last few months,” Beggs said. He also said he and Kinnear chose not to make it a public issue because of Smithson’s longtime service to the city.
“We’ve been quiet about it because he’s an individual person, he’s a longtime city employee and he’s doing what the mayor’s asking him to do,” Beggs said.
That doesn’t change the fact that the appointment appears to be illegal, though, Beggs argues. “It looks to us like it’s completely contrary to the law, certainly the intent of the law, which is that a mayor can’t evade the council confirmation process just by calling people interim,” he said. “Under the mayor’s theory, she could appoint someone in her first month of office and just call them an interim, pay them and never get council approval and that is just not the way the charter’s set up and not the way that law is set up.”
“At this point, if the mayor gets her way on this, he will have been the interim for 19 months without council’s approval,” Beggs said. “I don’t think anybody can say that’s a good idea.”
Beggs said he’s heard an argument that because council hasn’t taken any action to disapprove of Smithson serving in the interim role that their lack of action could be conceived as implicit approval. But he said that argument “doesn’t make much sense to me.”
And, after a year, council approval still wouldn’t be enough. Even if city council had approved a 180-day extension of his service as city code requires, Beggs said, “His one year is up and nobody has the authority to serve more than a year [as an interim city attorney].”
Beggs said that Smithson overstaying his appointment could be detrimental to the city in two ways: one more philosophical and the other more practical. The first is that flouting laws sends a message that you believe you’re above them and undermines the public trust in government. “If you don’t follow the law in most cases, then why should anyone follow the law or have trust in government?” Beggs said.
The other is that cases Smithson has been involved in could be jeopardized because he was serving in that role without legal authority. “As far as the city’s [legal] issues, there may be issues of things that he’s done since his first 180 days expired: Do they have legal force? Can someone attack it and say something that he did as an acting city attorney is what we call in the law ultra vires — which means without legal force?”
An area that could come up is the ongoing nuisance and abatement case the city has brought against the Washington State Department of Transportation. Smithson signed the city’s complaint against the state on March 20, 2023, more than three months after his interim appointment had expired without city council’s approval for an extension.
RANGE has reached out to former city attorneys and legal experts and will add to this story if we are able to get comment from them.
After multiple court dates, and a partial judgment in the city’s favor, the lawsuit over the encampment is ongoing. According to WSDOT spokesperson Ryan Overton, “work continues to resolve the lawsuit with the city of Spokane as we continue to work toward permanently closing Camp Hope.” Overton declined to comment on whether or not Smithson’s appointment status could impact the case.
But, Beggs said, there’s precedent that could hurt the city if the state decides to challenge Smithson’s role in the case. “There are cases where courts have held the actions of city officials beyond their legal authority and then struck them down,” Beggs said. “It would potentially be an argument that the state could use.”
Beggs said the solution he has proposed to the mayor would be to appoint a new interim attorney. “We should give Lynden thanks for his service and appoint somebody else that’s within the law.”
