# Whatcom County Finance Committee Erupts Over Criminal Justice Tax and Legal Authority The morning calm of Whatcom County's Finance and Administrative Services Committee meeting on April 14, 2026, shattered into one of the most contentious confrontations between elected officials and legal counsel in recent memory. What began as a routine discussion of a proposed criminal justice tax escalated into a heated debate about attorney-client privilege, the role of the prosecuting attorney's office, and the boundaries between legal advice and policy decisions. Committee Chair John Scanlon called the 8:55 a.m. meeting to order with six members present and Councilmember Kaylee Galloway away. The committee's agenda included eight consent items totaling millions in contracts and agreements, but it was the discussion portion that would dominate the morning and expose deep fractures in how the county conducts its business. ## Consent Agenda: Business as Usual The committee swiftly approved eight consent items without controversy, though two generated brief discussions that would prove to be mere warm-ups for the main event. Councilmember Mark Stremler questioned item six, a $2.7 million grant for flood mitigation planning, expressing concerns that the county's flood response efforts were "losing a bit of steam." Julie Anderson, the county's river and flood manager, assured him that planning work was "absolutely moving forward" despite the lack of regular public updates. She promised to provide a comprehensive update at an upcoming meeting. Councilmember Ben Elenbaas drew attention to item five, a Healthy Children's Fund contract for the Samish Commons childcare project. Sarah Simpson from Health and Community Services proudly explained that the $851,350 investment would create 40 new childcare slots at approximately $48,000 per slot—well below the state average of $40,000-$88,000. The Spanish-speaking childcare center, located in Bellingham near REI, would serve at least 25% low-income families and operate under a 10-year monitoring agreement. "Actually, we haven't had a project yet go above $50,000 per slot," Simpson noted. "I'm really glad that we're kind of in this lower mid range." ## The Criminal Justice Tax Controversy The morning's tension began building as the committee turned to discussion of AB 2026-278, regarding options for a proposed sales and use tax of one-tenth of one percent for criminal justice purposes. The item connected to a public hearing scheduled for that evening, but Councilmember Elenbaas immediately signaled trouble ahead. "I guess I have some legal questions where I think that possibly an executive session might be appropriate," Elenbaas said, noting concerns about emails "stamped attorney-client privilege" that he wanted to discuss. County attorney Kimberly Lund, participating remotely, explained the statutory requirements for executive sessions while Elenbaas struggled with his request. The councilmember's frustration became evident as he attempted to navigate the procedural maze of discussing privileged communications. "Basically, I have concerns with some of the emails that were stamped attorney-client privilege, and I wanted to discuss that," Elenbaas said. "And I didn't think that you would appreciate it if we just did it in when they were stamped attorney-client privilege." Unable to find proper grounds for an executive session, Chair Scanlon proposed an alternative: "I move that council waive privilege on the legal advice that we have received regarding the viability of AB 2026-259," the ordinance that would require voter approval for the criminal justice tax. Elenbaas seconded the motion, setting the stage for an unprecedented public airing of internal county legal disputes. ## The Legal Battle Unfolds Once the council voted 6-0 to waive attorney-client privilege, Lund provided a detailed explanation of her legal analysis. She had advised that the county could not put the binding tax question directly to voters because state law delegates the decision specifically to the county council's legislative authority, not to the county as a whole. "The local initiative power is more limited than statewide initiative power," Lund explained, citing case law. "Local initiatives can accomplish only what falls within the scope of their authorized power. A local initiative exceeds the scope if it is administrative instead of legislative in nature or affects issues delegated by the state to the local government's legislative authority rather than to the local government as a municipal entity." The state legislature, Lund argued, had specifically chosen to give the taxing authority to county councils, not to counties broadly. This distinction, while seemingly technical, effectively blocked any binding referendum on the tax. But Elenbaas wasn't convinced. In a lengthy response that revealed months of brewing frustration, he challenged both the legal analysis and the process by which it was delivered. "I think that she makes valid points with her legal analysis. I just think that there's holes in it," Elenbaas said. "The state law clearly did that, right? The state law gave us the authority to tax. It gave us the authority to tax and it gave the ability to go to the people. It didn't deny that." ## The Gray Area Dispute Elenbaas's central argument focused on what he saw as "gray area" interpretation masquerading as definitive legal constraint. He noted that state law provides two mechanisms for the tax—council action before 2028, or voter approval after 2028 when council authority expires. The law uses permissive language like "may" rather than mandatory "shall," he argued. "We totally understand as a council body, when we write legislation, we understand the power of words. We understand the mays, we understand the shalls, the wills, all of those things. And I would argue that so does the state legislature," Elenbaas said. "And so if they expressly did not want us to go to the voters with it prior to 2028, they would have said that." The councilmember's frustration reached its peak as he described how the legal opinion had effectively killed the ordinance by preventing the prosecuting attorney's office from preparing required ballot language. Without that language, the proposal couldn't move forward within necessary time frames. "That effectively killed moving forward, because of the timeframe, we didn't have an opportunity to discuss that," Elenbaas said. "And so that's kind of my concern, how it turns into a policy filter when we aren't given the opportunity to debate based on a timeframe." ## Systemic Concerns About Legal Counsel What emerged from Elenbaas's lengthy critique was a broader institutional concern about the prosecuting attorney's office serving dual roles—advising both the county executive and the county council, potentially creating conflicts when their interests diverge. "Sometimes we work together, sometimes we're not on the same page. But when our legal advice is coming from the same individual, there can appear, whether there is or not, there can appear to be a conflict," Elenbaas said. He described a pattern he'd observed over six years on council: legal opinions arriving at the last minute, leaving no time for discussion, effectively functioning as policy filters rather than legal guidance. "What ends up happening is if, like I said, in certain instances, we're operating in a gray area or something that there's been legal precedents set in numerous ways and their guidance is one thing and that one thing... So there were certain things that needed to happen from the prosecuting attorney's office in order to move forward and that didn't happen." ## Defense of Legal Counsel Councilmember Jessica Rienstra pushed back against suggestions that legal counsel should present scenarios that might not be legally viable. "I would view that as an option that we have. So if the advice is here is what is in the law, here is possibilities to give a scenario just to see what it looks like. That isn't something that they can advise on as a legal option to me would be concerning," Rienstra said. Chair Scanlon also defended the legal process, describing positive experiences with getting legal review of ordinances and resolutions, even on short notice. He praised the pushback and collaborative process of working through legal constraints to achieve policy goals. "I've always found that helpful, to do that, to know what are the options and then to work that out with legal counsel to figure out, okay, here's what I would like to achieve with this body of legislation, what's allowable," Scanlon said. ## The Personal Confrontation The debate took a personal turn when Lund, who had come downstairs to participate in person, defended her professional integrity against what she perceived as attacks on her competence and bias. "So I don't make the decisions. Council's entitled to disagree with me with this position, but based on my research, based on my 33 years of legal experience, 25 of which was as an appellate attorney, I feel very confident in that analysis," Lund said, her voice rising with emotion. She took particular exception to suggestions that her advice was biased toward the executive's position rather than grounded in legal analysis. "It is frustrating to me to see as a body that that's being questioned in terms of bias. I think that's out of order. I think it should be limited to the merits of what's before the body," Lund said. The confrontation escalated when Elenbaas continued pressing his interpretation despite Lund's explanations, leading to this exchange: Elenbaas: "Help me understand better that in that stance that it's wrong, because the law clearly gives you 2 mechanisms at a certain point. It clearly takes one of those mechanisms away. It clearly... it doesn't clearly prohibit it prior to that date but it does clearly give two mechanisms and so that that conversation didn't happen." Lund responded with additional case law analysis, but tensions continued building as Elenbaas questioned what he saw as the executive office's influence on legal interpretation. "It's very clear that the executive's office wants and needs this budget item, and they want us to give it to them as fast as they can. And my interpretation of the legal analysis is that... that's supporting that position." ## The Breaking Point The meeting reached its breaking point when Elenbaas continued challenging Lund even after she had thoroughly explained her analysis. His final comment—"Then where is the ballot? If it wasn't just—"—prompted Chair Scanlon to cut him off. "Councilor, you're out of order," Scanlon declared, ending the debate. What followed was an extraordinary moment where Lund, clearly emotional, defended her reputation one final time: "I am a good lawyer. I am capable. And what I provided to you was solid, sound legal advice. So I do not want that to be characterized as I simply just put a hand up and said no, because that is not what happened." Scanlon immediately shut down further discussion, declaring: "What we just saw, no county staff member should ever have to do what just happened here. You should feel free to come here and give us your professional advice." ## The Options Ahead Despite the acrimony, the committee did clarify the options available for the criminal justice tax. The evening's public hearing would include three proposals: the executive's broad tax proposal (AB 2026-213), Scanlon's more specified version with first biennium details (AB 2026-255), and the mandatory voter approval option that legal counsel deemed unviable (AB 2026-259). Additional options under consideration included a resolution stating council's intent for fund usage and an advisory vote proposal from Elenbaas and Stremler. Councilmember Mark Stremler expressed concern about muddying the waters by combining approaches. "It seems to really muddy the waters. So how, how we come to a, you know, a place to kind of agree on that, I, I don't, I don't know, but I see that as a bit troublesome," Stremler said. When Scanlon asked about paying for the sheriff's office lease in the interim if they waited for an advisory vote, Stremler admitted he had no immediate solution. ## Institutional Implications The meeting exposed fundamental questions about how Whatcom County conducts its legal and policy business. Elenbaas's concerns about the prosecuting attorney's office serving dual roles reflect broader governance challenges faced by many local governments. The councilmember's proposal for a "better process" to handle situations where council members feel "filtered" by legal counsel highlighted the delicate balance between legal constraints and elected officials' policy prerogatives. "I think that on my six years on council, this has been a concern for me and we don't have a mechanism in place that clearly defines what we as a council member do when we feel like we're being filtered by the prosecutor's office," Elenbaas said. ## Adjournment and Aftermath Chair Scanlon adjourned the meeting abruptly at 10:00 a.m., noting that other agenda items would be introduced and discussed during the evening's full council meeting. The committee's remaining items—including budget amendments, surplus property sales, and flood control zone matters—were left unaddressed. The morning had taken on the character of a constitutional crisis in miniature, raising questions about the separation of legal advice from policy making, the proper role of attorney-client privilege in public governance, and the institutional mechanisms needed to resolve disputes between elected officials and their legal counsel. As staff members and observers filed out of the council chambers, the implications of the morning's confrontation hung heavy in the air. The evening's public hearing on the criminal justice tax would proceed, but the underlying tensions about how Whatcom County makes its most consequential decisions remained unresolved. The meeting served as a stark reminder that even routine government business operates within complex webs of legal, political, and personal relationships that can fracture under pressure, leaving citizens to witness the often messy reality of democratic governance up close.