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HomeMy WebLinkAbout071513_ra05Regular Agenda JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of Commissioners Philip Morley, County Administrator FROM: Tami Pokorny, Environmental Health Specialist II DATE: July 15, 2013 RE: Continued Deliberation and Possible Action on 2013 Conservation Futures Projects STATEMENT OF ISSUE: On June 24, 2013 the Board of County Commissioners ("BoCC") held a public hearing with respect to the recommendations of the Conservation Futures Fund Citizen Oversight Committee regarding funding four open space project proposals. At the end of the public hearing the BoCC chose to defer funding decisions because two members of the Oversight Committee (John Wood and Raven) had raised numerous concerns regarding the process used by the Oversight Committee to evaluate the project proposals. The BoCC asked Chief Civil DPA Alvarez for a legal opinion in response to the concerns raised by Mssrs. Wood and Raven. That opinion is attached. The legal opinion consists of nine pages with nine attachments, many of which the BoCC has seen before. ANALYSIS: At its April 30, 2013 meeting, the Conservation Futures Citizen Oversight Committee voted 9-to-2 to recommend funding four projects at the requested amount with two provisos: one, that the Tarboo project be funded at $83,500 in 2013, and $83,500 in 2014; and two, that these recommendations be subject to an opinion delivered by the County's attorney on the concerns raised by Raven. The Oversight Committee's recommended funding was as follows: Farm: Tarboo Forest Conservation $167,000 $83,500 in 2013, and Phase II: $83 500 in 2014 Winona Basin - Bloedel II: $80.000 eun nnn On June 24, the BoCC held a public hearing on the project funding recommendations, and received written and oral public testimony. The June 24 agenda request packet can be viewed on hne at: hrto://www.co ieffersoawa us/commissioners'Aeenda/2013°/20Attach/062413 ra0~ odf Regular Agenda After the hearing the BoCC deferred final deliberation and action pending a legal opinion on issues raised by Mssr.s Wood and Raven. Chief Civil Deputy Prosecuting Attorney Alvazez's legal opinion is attached. Key findings paraphrased from Mr. Alvazez's legal opinion most relevant to the BoCC's deliberations are: 1) past funding decisions regarding Conservation Futures Fund monies were lawful, and a decision to fund any of the four proposals now before the County Commissioners is also lawful; 2) as a member of the Conservation Futures Citizen Oversight Committee, Jefferson Land Trust Executive Director Sarah Spaeth does not have a beneficial interest in the contracts signed by the County and Jefferson Land Trust, but to remove any appeazance of a conflict, the County's enabling Conservation Futures ordinance should be amended so no member of the Oversight Committee could also present an application to the Committee; and 3) while the BoCC is within its legislative prerogative to interpret the County Code's definition of "open space," it may want to consider revising the County's definition to precisely mirror the state's. FISCAL IMPACT: The fund balance for Conservation Futures Fund #308 at the end of May 2013 was $635,687.52. Funds available for 2013 projects equal $220,000. The four Conservation Futures applications exceeded the amount available in 2013 by $75,500. The Conservation Futures Citizen Oversight Committee has addressed this issue by recommending $83,500 for the Tarboo Forest Conservation Phase II project be funded in 2014 instead. As such, no Supplemental Budget Appropriation is anticipated this year to proceed with the Oversight Committee's funding recommendations for 20 ] 3. RECOMMENDATIONS: 1) Review the four proposals brought forth by the Oversight Committee, consider the written and oral testimony from the June 24 public hearing, and adopt any of the enclosed funding resolutions (with or without revisions) for project proposals and funding amounts that the Commissioners may wish to approve. 2) Consider whether the BoCC wishes to amend the County Code regarding the CFF (Chapter 3.08 JCC) as suggested in the legal opinion, and consider motion(s) directing staff to prepare any desired amendments. DEPARTMENT CONTACT: Tami Pokorny, Natural Resources, Extension 498 David Alvazez, Chief Civil DPA, Extension 219 REVIEWED BY: hilip r ounty Admi ' ator Date Office of the Prosecuting Attorney ,~ ^~ ~,~. i ~ F '4 ~.,~, 4 p ~4~. ,a._~~ ~. July 9, 2013 Scott W. Rosekrans David W. Alvarez, Chief Deputy Jefferson County Courthouse Cheryl L. Potebnya, Deputy 1820 Jefferson Street Thomas A. Brotherton, Deputy Post Office Box 1220 Christopher R. Ashcraft, Deputy Port Townsend, WA 98368 Miriam E. Norman, Deputy Phone: (3601385-9180 Lianne Perron-KOSSOW, Victim Services Fax: (360) 385-0073 John Austin, David Sullivan, Phil Johnson Jefferson County Commissioners P. O. Box 1220 Port Townsend WA 98368 Re: Conservation Futures Fund Citizen Oversight Committee-Legal response Commission Chair Austin and Commission Members: Executive Summary: 1. Past funding decisions regarding Conservation Futures Fund ("CFF") monies and a possible decision by the BoCC to fund the four projects brought to them by the CFF Oversight Committee in June 2013 aze and were lawful. They are or were lawful because of an absence of any conflict of interest, i.e., no violation of the municipal ethics law has occurred. 2. Although Sarah Spaeth does not have a beneficial interest or any interest in the contracts signed by the County and the Jefferson Land Trust ("JLT"), in order to remove any appeazance of a conflict of interest the presenter for a particular application should not also be a voting member of the Oversight Committee, since the Oversight Committee is charged with making recommendations to the BoCC. The enabling Ordinance should be amended to prevent applicants and sponsors with membership on the Oversight Committee from advocating for their particulaz application. 3. The BoCC may want to consider revising the definition of "open space" found in the enabling ordinance to mirror the definition found in state law as the can-ent local definition is facially narrower than state law. 4. Staff serving the Oversight Committee will want to be careful about which categories of persons do or do not receive a particular a-mail. Background: Two members of the CFF Oversight Committee ("the Committee") have raised concerns that the process used to determine which proposals obtain Conservation Futures Fund ("CFF") money are both undemocratic and unlawful. The current process for distributing the CFF sums has been in place for about a decade. While the enabling Ordinance was enacted in 2002, the first distribution of these funds occurred in 2004. Four letters, three of which originate with Mr. Wood or Raven, constitute the dialog between County staff and those disputing the legality of the process. They are as follows: • April 30, 2013 letter from Raven to the Committee, the BoCC and others; • May 16, 2013 letter from staff person Tami Pokorny to the Committee; • June 18, 2013 letter from Raven to the County Commissioners, the Committee and Pokorny; and • June 21, 2013 letter from John Wood to the County Commissioners. Mr. Wood and Raven raised their concerns again at the public hearing held on June 24t" regarding the recommendations of the Committee to the BoCC with respect to which projects should receive CFF funding. Others who testified on that date stated they supported the process used this year which is quite similar to those used in prior years. Pokorny Letter: The Pokorny letter of May 16'" requires some additional context. As you will recall, I am the sole attorney on the civil side of the Prosecutor's Office and as a matter of policy I do not provide legal opinions to advisory boards because such advisory boards are not a "client" of this office. Staff and elected officials are this office's civil clients. Simply because the Committee asked for a legal opinion must not lead to the conclusion that they were entitled to one. What they received was the May 16`" letter from Tami Pokorny, the staff liaison to the Committee. Tami Porkorny is one of the many County employees whom I represent. ~ How one applies for CFF money: The annual process from application to final approval of the CFF funding is described in the June 17, 2013 memo from Committee Chair Rick Jahnke, a memo Mr. Jahnke read into the public hearing record on June 24~'. As further explained by Sarah Spaeth at that same public hearing, a citizen contacts the Jefferson Land Trust ("JLT") stating their desire to protect their real property from development. That citizen becomes "the applicant" and JLT becomes "the sponsor." At this point Jefferson County Code Section 3.08.030(5) becomes relevant because the CFF monies are prohibited from paying for more than 50% of the real property interest (e.g, fee simple, easement) that is to be purchased/protected. JLT has expertise in finding and obtaining the 50% match that must come from non-CFF funds. However, many other NGO's are equally skilled in finding the matching funds. To the extent those other NGO's can prove they have an excellent track record regarding the stewardship of existing projects, then they too will be able to obtain the 55 points Mr. Wood discusses? The County truly has no indication (other than from Mr. Wood and Mr. Raven) that the ' GR 24(e) eliminates any possibility that Tami Pokorny practiced law without a Bar membership and/or that DPA Alvarez so assisted her. Z Mr. Wood at page 3 of his June 25 letter asserts the JLT has a "55 point lead" due to the wording of scoring criteria #2 and #3. While his math is correct, it ignores the fact that any other NGO could obtain those same 55 points by proving it can provide "guaranteed long-term stewardship" and. "highly demonstrate" effective long-term stewardship of a particular project. It is incorrect to assert that only JLT will ever obtain the 55 points that criteria #2 and #3 might provide a sponsor and its applicant. 2 2 current scoring system is inadequate or distorted. In the spirit of "don't fix what ain't broken" there is probably no need to review or revise the scoring system. If there is a strong current of dissatisfaction with the scoring system among the Committee members, then I would SUGGEST the Committee create a subcommittee to investigate possible changes to the scoring system. The subcommittee could then report its findings back to the full Committee. Any application that the JLT brings forward to the Committee has also been reviewed and vetted by the NGO that are providing the match If the proposal would relate to or impact the quantity and quality of salmonids, then the application has to prove it furthers the goals of the Summer Chum Recovery Plan, a planning document generated by the Chumsortium. In turn, the Chumsortium has as some of its constituent members the North Olympic Salmon Coalition, the State Dept. of Fish and Wildlife, the Jefferson Conservation District and the Hood Canal Coordinating Council. Matching funds from the Salmon Recovery Fund are not available to an applicant unless a technical team, a separate committee of citizens and the State Salmon Recovery Funding Board all concur that a particular project is worthy. A different set of NGO's provide input when the project would support agricultural resources. These other NGO have to be on board in support of a particular application before they will provide the 50% match required from anon-CFF source. The vetting procedures used by these other NGO's are well-respected and well- established and belie the general overarching theme of the Wood and Raven correspondence that the JLT is all powerful and is pulling all the levers from "behind the curtain" like the Wizard of Oz. It is also a strange argument because the best way (apparently) in the opinion of Wood and Raven to make the process democratic would be to have all the vetting done by the Committee or perhaps some county employee or employees. Would not this be duplicative of a process that already exists and of mechanisms where the expertise is already in place to determine to what projects the limited CFF monies should be devoted to? Wood also suggests incorrectly that an applicant who was denied CFF monies would have a cause of action against the County if the County was truly the decision-maker. The County is the decision-maker and I am not sure what cause of action would support a lawsuit by a disgruntled applicant. Once the application comes into the Committee with a sponsor, the Committee holds site visits, hears a presentation from the sponsor and then asks questions of the sponsor and the applicant. Committee members individually score the proposals, and then meet as a committee to discuss each score and develop an overall ranking. JLT's representative on the Committee, Sarah Spaeth, does not participate in the scoring meeting which was open to the public and held on April 30 at a conference room at Jefferson County Public Health. The Committee ranks the proposals from top to bottom, compares them to the funds available and provides a written recommendation to the BoCC. The County Commission holds a hearing and during a public meeting makes the funding decisions. The memorialization ofthat decision is one or more contracts between the County and the various sponsors. But who gets the money? Generally, it is the applicant not the sponsor. And in this county the applicant is rarely JLT. The sponsor is entitled to up to five percent (5%) of the project total fox its administrative costs. Not more than fifteen percent (15%) of the total available amount each year can be dedicated to operations and maintenance of real property interests previously purchased with 3 CFF money. See County Code Section 3.08.030(7). No conflict of interest: Mr. Wood spends some time in his letter analyzing Ch. 42.23 RCW, entitled "Code of Ethics for Municipal Officers-Contract Interests" as it applies to JLT's Sarah Spaeth and her seat on the Committee. This concern has its basis, in part, because I stated in my July 9, 2002 memo (attached) that Ms. Spaeth is probably a "municipal officer" for purposes of Ch. 42.23 RCW. To the extent that the Committee (and any member of that committee) merely make recommendations to the County Legislature (BoCC) and the BoCC approves spending the money, the Committee has not been delegated any sovereign power of the County and therefore the Committee members may not be municipal officers per State Ex ReL Brawn v. Blew, 20 Wn. 2d 47 (1944) (establishing a five part test to determine if a particular person's job makes them a municipal officer.) In an abundance of caution, this author will assume, but not concede, for purposes of this analysis that Ms. Spaeth at least exercises the power of a municipal officer which would make Ch. 42.23 RCW applicable to her. See Valley EnvironmentaZLaboratory LLC a Yakima Cty., 139 Wn. App. 239, 244 (2007) (question of fact regarding whether county's natural resource specialist was acting as a municipal officer when he sent a water sample to a relative's business requires remand to the trial court.) Analyzing Ch. 42.23 RCW, Mr. Wood concludes that because she made oral presentations on behalf of the sponsor (JLT) and the applicant(s) to the Committee during their decision-making process any interest she might have in the contract cannot be deemed a "remote interest" as that term is defined in RCW 42.23.040. But reaching that conclusion does not answer the preliminary question of whether she has any interest at all in the contracts between JLT and the County. Unless she has an interest in the contracts the prohibitions of Ch. 42.23 RCW do not negatively impact the process undertaken each year by the Committee as it works towards written recommendations to the BoCC. One way to determine if Ms. Spaeth has an interest in the contracts between the County and JLT is to review the audited financial figures provided by JLT as part of each CFF application it sponsors. For the year 2011 the JLT had an expense budget of $533,658, of which some $308,266 was expended on salaries, payroll taxes and benefits for staffing at the level of approximately 6 FTE. At the end of 2011 JLT had a cash balance of $284,193 and net assets of $2.294 million. Compare this to the $7,707.17 the JLT has received from the County from the CFF over the three yeaz period between Januazy 1, 2010 and December 31, 2012. This figure comes from the records of the County Auditor. Based on those figures it is reasonable to state that one cannot draw a straight line (or any line) between whether JLT-sponsored CFF applications are successful and whether Ms. Spaeth continues to be paid or, more essentially, has a job at all with the JLT. Put another way, assuming the CFF monies in a particular year did not go to a single application where JLT was the sponsor, JLT would continue to exist, JLT would need an Executive Director and Ms. Spaeth would presumably continue to fill that role. Thus, one cannot reasonably conclude that but-for 4 the CFF money that JLT might be entitled to retain pursuant to County Code Section 3.08.030(7) for its "soft costs," Ms. Spaeth would not have a job or could not be paid her salary. Since the lead case to analyze Ch. 42.23 RCW involves financial enrichment of a municipal officer through aself-serving contract, the absence of a monetazy gain arising for Ms. Spaeth from JLT sponsorship of CFF applications is not a beneficial interest that would invoke Ch. 42.23 RCW.3 If Ch. 42.23 RCW has not been invoked because Ms. Spaeth has no beneficial interest in the JLT-County contracts, then the prior yeazs' contracts are NOT V OID and any contracts the County might enter into for 2013 would also not be void. Here I disagree with Mr. Wood. I would add that the County sees no wrongdoing by Ms. Spaeth and much appreciates the work she undertakes in good faith to see that the CFF monies are leveraged and multiplied to achieve the goals behind this "open space" real estate tax. Assuming, without conceding, that the County-JLT contracts of prior years are/were void as a result of violations of Ch. 42.23 RCW, there is not a mechanism available to undo either those contracts or the real estate conveyances they implemented. In any event, a decision of the County BoCC, acting as the County's legislature, to enter into a contract AND to expend public money is entirely protected from legal challenges by legislative immunity in accordance with cases such as Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L.Ed.2d 79 (1998) (mayor and city council member act in their legislative capacity when they propose and adopt a budget which would eliminate plaintiff's position and thus are immune from a Section 1983 lawsuit). Nevertheless, the County is faced with the appearance of a paid JLT employee serving two masters when a voting member of the Committee such as Ms. Spaeth is also an advocate for a specific application in any given annual cycle by making presentations to the Committee and answering follow-up questions. While the expertise of a paid employee of a land conservancy group like JLT is of great benefit to the Committee, the ethical situation becomes murkier when that same land conservancy/member puts on another hat and advocates as the sponsor for a specific application that is being considered in a particular annual cycle. To remove any appearance of an alleged conflict of interest, I would PROPOSE the following text be added to the County Code as new Section 3.08.050(6) "No person serving on t{ae citizen oversight committee shall serve as the application presenter or advocate during the annual application cycle that such a particular application is participating in except that this section is not violated when a citizen oversight committee member is the person authorized or required to sign an application, request or other document necessary far the Conservation Futures Fund application process and so signs that application, request or other document." I would also PROPOSE an addition to the County Code to be codified at Section 3.08.050(7): ~ See City of Raymond v. Runyon, 93 Wn.App. 967, review denied 137 Wn.2d 1030 (1998) (Elected public works commissioner entered into contracts through his official position that purchased $9,000 in rock from a quarry he owned.) "Recusal of any sponsor or applicant, or any representative, advocate, presenter or agent of any sponsor or applicant, who is a voting member of the citizen oversight committee shall be mandatory prior to the start of any meeting of the citizen oversight committee during which the citizen oversight commiUee is going to vote upon or rank one or more applications. " This should remove any doubt that a particular Committee member is serving two masters, i.e., the Committee and the sponsor or the applicant. Oversight Committee membership: Mr. Wood and Mr. Raven also question other text in County Code Section 3.08.050(3) which lists particular interest groups that may be sources for an appointment to a position on the Committee. They question why any interest group is entitled to preference for a position on the Committee and argue the State Constitution prohibits the County from providing any interest group with a special privilege or immunity. Based on this constitutional argument, Wood and Raven ask that the County Code be amended so the only requirement for Committee membership be citizenship. They ignore, however, the last sentence of County Code Section 3.08.050(3) which states, in part, "the listing of any interest here does not guarantee that interest one of the nine seats, since there are more `interests' in existence than there are seats." I informed Tami Pokorny in a December 29, 2004 e-mail that no interest group, including JLT, was entitled to a guarantee that they would always have a voting representative on the Committee. In sum, the County Code does NOT provide any interest group with a guaranteed seat, thus dismantling this argument from the start. The Pokorny letter of May 16, 2013 did NOT suggest JLT was entitled to a permanent place on the Committee, contrary to the implication Wood finds in the letter. Such a change to the Ordinance would presumably work better in theory than in practice. Any citizen has to have a matching interest in the purview of the advisory committee before he or she is willing to devote the time needed to perform the work of serving on that committee. As a result, every advisory committee is a committee of stakeholders, persons with an interest in the particular purview of that advisory committee. On a parks and recreation committee the likely candidates for membership will and should be hikers, mountain bikers, bird watchers, parents etc. On a planning commission one would want to appoint real estate agents, builders, farmers, business owners etc. The Committee should remain a committee of stakeholders. Assuming the text was changed to make "citizenship" the only requirement there is a great likelihood the makeup of the Committee would not be substantially different given that a person would only volunteer for the Committee if one was interested in the Committee's purpose: conservation of real property. As for Mr. Wood's comment that it the Committee is overloaded with retired well-to-do persons please note that group is an important demographic of Jefferson County, the county with the oldest population in this state and about the 20`h "oldest" county in the nation out of some 3,000+ counties according to an article in THE LEADER. Defmition in local code of "open space: " Mr. Wood and Mr. Raven have expressed concern that the CFF money has been used unlawfully because the county code includes a more specific definition of "open space" than does the enabling state law: the County has added the phrase "for public use and enjoyment" to 6 the state law definition of open space. This they suggest requires CFF funds to be used only for real property that county citizens can then enter upon and enjoy. They point out this has not been the case with past CFF purchases. In fact, the BoCC has used its legislative discretion to interpret the phrase "open space" more broadly than Messrs. Wood and Raven would have them do. What is clear is that the public policy behind collecting the "open space" or CFF tax has been furthered by the past purchases with CFF money. While the County and the Committee were authorized to interpret their definition of "open space" as broadly as they wished (see the discussion on legislative immunity above), the extra phrase may therefore be unnecessazy. In order to have the local definition match the state law definition would only require REVISING the definition in County Code Section 3.08.010(8) to end with the phrase `farm and agricultural land and timber land as those terms are defined in Chapter 84.34 RCW. " Who takes title once CFF monies are expended? Mr. Wood and Mr. Raven have expressed concern that CFF monies are being used for purchases where the applicants ``are private parties seeking to retain full ownership of property acquired through CF funds." Such a statement is without merit and indicates a misunderstanding of how the law describes the ownership of real property. The metaphor used in the law is that one's ownership interest real property is best described as a "bundle of sticks" and the owner of the property can retain or convey all, some or none of those sticks. Start with the premise that a fee simple absolute ("FSA") owner has retained all the sticks in the bundle. That same FSA owner has authority to convey or donate any of his sticks to other persons. There are many sticks in the bundle. For example, he can lease the property to allow someone else to live there, thereby giving away the "right to occupy" stick to a third party. He can sell underground mineral rights (if they exist) to a third party. She can allow someone else to harvest the timber or hay that might be on the property. And finally, most relevant to the CFF applications, the FSA owner can sell or donate the stick that would allow the FSA owner to fully develop his property to its highest (most intensely developed) lawful use. This is what happens when a private party with FSA title agrees to sell for financial consideration a conservation easement to the JLT and the County. That FSA title holder who sells the conservation easement has sold one stick out of his bundle, the right to develop his property. She still retains the remainder of the bundle and has a modified title which can be described generically as "FSA subject to an easement." A quick trip to the Assessor's web page for any given parcel will indicate there aze many parcels where the owner's title is described as "subj(ect) to easement." Thus, that the applicant retains ownership of a pazcel does not mean that the CFF monies used to purchase a conservation easement have been spent in violation of the law because they were used to purchase an interest in real property that is to be owned by the JLT and the County. Otker miscellaneous matters: Mr. Wood also states that Tami Pokorny has mislabeled e-mails by asserting they are both confidential and subject to the Public Records Act. Initially, the Public Records Act does exclude from production to a requester certain records which are confidential, such as communication between an attorney and a client. Thus, "confidential" and "subject to the Public Records Act" are not always mutually exclusive. That being said it is RECOMMENDED that e-mans from Tami Pokorny to the Committee which include an agenda or records a Committee member must review prior to a meeting should be sent to only the Committee members. When communication to an applicant or sponsor is necessary, the best practice would be to not include the Committee members as carbon-copy recipients unless doing so is necessary. Pokorny's insertion of the word "confidential" does not grant the communication that status. As for the alleged manipulation of the Committee's minutes by Tami Pokorny, the remedy of the Committee is to reject that change when the draft minutes are approved. I understand the Committee approves the draft Minutes with changes. I would RECOMMEND that the revised Minutes, with all approved changes incorporated, be an agenda item and be approved by motion at the subsequent meeting. Bringing the Minutes back for another vote will insure that the Committee has notice of the Minutes in their final form and has approved of them. Mr. Wood also complains about the BoCC granting the Northwest Watershed Institute the sum of $83,500 from funds not yet collected, funds that will be distributed after a public hearing in the spring of 2014. While I think the County legislature (the BoCC) can vote now to spend money later, they do precisely that each time they agree to issue bonds, accept the funds and repay the bond owners annually for several future years or vote during the prior year to appropriate next year's Lodging Tax monies, applicants and sponsors should be discouraged from presenting applications that would require funding from more than a single CFF annual cycle. CONCLUSION: The correspondence from Mr. Raven and Mr. Wood has initiated a process that is always worthwhile: a close examination of the process used to decide how tax money will be spent. Based on the correspondence and a review of the applicable law and cases the undersigned makes the following suggestions which aze described in more detail above: 1. Add a County Code Section 3.08.050(6) to clarify that membership on the Committee precludes that person from advocating for a particular project in front of the very committee they belong to; 2. Add a County Code Section 3.08.050(7) to make it mandatory that any Committee member who is an applicant or sponsor or an advocate or presenter for a particular application must recuse themselves from any Committee meeting where voting or ranking is to take place; 3. Consider amending County Code Section 3.08.010(8) so that the local definition of "open space" mirrors the definition of "open space" found in state law; 4. Have County staff be more careful about which group receives a particular e-mail and be restrained in the use of the cautionazy term "confidential" when sending out e-mails; 5. Once meeting Minutes are presented in draft and revised by a motion of the Committee bring back for another vote by the entire Committee those revised Minutes in their final form; 6. Discourage projects that require CFF funding from more than one annual CFF cycle. 7. If there is a strong sense within the Committee that the scoring template should be reviewed for possible revisions, then organize a subcommittee to do so. I await further direction from the County Commissioners and am willing to draft the Ordinance necessary to amend the text of Chapter 3.08 of the County Code. (Very truly yours, ~/V ~ ~1J~`~ry David Alvarez, Chief Civil DPA With Attachments: 1. Raven's letter of Apri130, 2013 to the Committee, the BoCC and others; 2. Pokorny's letter of May 16, 2013 to the Committee; 3. Raven's letter of June 18, 2013 to the County Commissioners, the Committee and Pokorny; 4. Wood's letter of June 21, 2013 to the County Commissioners; 5. Written report from the Committee to the County Commissioners dated June 17, 2013; 6. A copy of County Code Chapter 3.08 (its entirety); 7. Audited financial records for the Jefferson Land Trust, made part of each application; 8. Alvarez memo dated July 9, 2002 with attached Alvarez-Pokorny e-mails from December 2004; and 9. Report from the Auditor as to the funds paid to the Jefferson Land Trust for the years 2010, 2011 and 2012. Raven Membet• -Conservation Futures Citizen Oversight Committee PO Box 1370 Port Townsend, WA 98368 April 3U, 2013 Conservation Futures Citizen Oversight Committee 3efferson County Water Qualsty and Environmental ~Ieatth 615 Sheridan Street Port Townsend, WA 98368 Toc Members of the Conservation Futures Citizen Oversight Committee Members of the Board of'Commissioners The Jefferson Land Trust Board of Directors Sarah Spaethe, Executive Director JLT Tami Pokorny, CF Committee Staff To begin with, I have the highest admiration and respect for the good work, accomplishments, valuable servicesand intentions of the Conservation Futures Program, the Oversight Committee members,. thee. Commissioners, Sarah Spaethe, the Jefferson Land Trusf and Tami Pokorny. I was peripherally involved in the establishment. of the CF Program and have supported its goals. Now, being a member of the Citizen's Oversight Committee I find myself charged with a responsibility to the public and required ta'aversee the program and allacatian of GF funds as determined, by law, purpose and propriety. Accordingly, I find myself obliged, at this time, to abstain from: scoring any of the project proposals presented to the Conservation Futures Citizen Oversight Committee. I submitted my four Conservation Futures Ratings Sheets (Short Family Farm, Duckabush Flaodplain, Winona Basin. -Bloedel Project II and Tarbox Forest Conservation Project -Phase II) as blank scores. Furthermore, in view of several, serious concerns anal questions I have pertaining to the constitutionality, legality, mission, and process of the Program and Committee's polieies I cannot, in good conscience, support and participate in the Committee's continuing: its business as usual. Page ~ °f~ 1TENT I ,a Rere, briefly are my concerns: 1. The Jefferson County Conservation Futures drdinance, and the CF Program Mission Statement stipulate that CF tax monies are intended to provide a system. of "public open spaces" and that. "public open spaces acquired pursuant to the ordinance will be available. on the same conditions to all residents of the county for the benefit of all country residents and visitors"; and further defines "open space land" thus acquired through CF as being for "public use and enjoyment"; yet, many of the past CF projects and, indeed, three of the proposals presently under consideration do not follow the public open space guidelines of the ordinance. 2. Furthermore, the ordinance states that properties and easements acquired. through CF funding steal[ be wholly or in part awned. by a public entity (County, Municipality or State) with the option to share the ownership with a nature conservancy corporation; yet, in the past -and among the present CF applicants -are private.. parties seeking to retain full ownership of property acquired through CF funds. 3. The Washington State constitution provides for democratic fairness and equal opportunity in access to and use of CF funds; yet, through sponsorships and easements, the CF Program. is - in practice -fundamentality controlled. by anon-elected, nonpublic body:. the BOD of the Jefferson Land Trust and its agenda. Pursuant to these concerns: I question the legality and propriety of having a paid. representative of the Jefferson Land Trust sitting on the Conservation Futures Committee.. I question having the same entity sponsor multiple praposalslprojects per funding cycle or domino#e the sponsorships in general. I question having a sponsor's representative ostensibly compete with another applicant who is sponsored by the same entity. f question whether CF Committee Members should represent any entity, commercial or private interest such as real estate. 2. SENT ~-~ ~~ I question an application process that is so expensive and eanvoluted as to deter applicants, effectively require professional guidance and thwart the purposes of the program. I question the validity of all but one proposal in this year's funding cycle: The Winona Basin and, depending on the ultimate ownership of the. property and easements, even that project may become invalid. I question the value and reliability of an application/proposal format that does not require a commitment to a clearly stated and detailed description of the. covemants or easements of protect'son on the land under consideration. I question a scoring and ranking process that essentially qualifies and quantifies already known factors about the application process, but does little to determine the essential worthiness of a project; and pitimatety leaves the BOtr' unaware of any dissenting opinions. In conclusion: I thank you for tine opportunsty to present my observations. Under the circumstances, I hereby propose that the Conservation Futures Oversight Committee table the present ranking agenda and suspend it's normal course of business until such time as my concerns can be satisfactorily addressed and resolved by the Washington State Risk'POoI, the Jefferson County Prosecutor,-the Board of Commissianers and the Conservation Futures Oversight Gornmittee, itself I am happy,and eager to assist in a remedial. process: Respectfully submitted, 7 ~~' Raven n .-- '= ,1~ ~. f• Committee Member°and Natural Habitat Advocate: 3. MEND I - C, 1z Jefferson County Conservation Futures Citizen Oversight Comnttee c/o Jefferson County Environmental Health Department 615 Sheridan. Street Port Townsend, WA 98368 Re: Letter dated April 30, 2013 To Jefferson County Conservation Futures Citizen Oversight Committee: Raven's letter has raised I 1 sepazate issues. While they will be addressed individually; please know that the Conservation Futures Fund ("CFF")structure established in Jefferson County closely follows the state law. A copy of the enabling Ordinance, as amended, is included for your convenience. The state law intends to have:nonprofits such as the Jefferson Land Trust own or co-own interests in land when those interests are purchased with GFF money, See RCW 84.34.250, RCW 84.34.220 and RCW 84.34:210. Inthat regard the Jefferson Land Trust ("JLT") has been an effective partner with the County. Here are the County's responses to the 11 issues the member raised: ~ ~SBlle ~ COI111 F~'~ Oll i Current proposals and The term "open space" has a broader definition than simply any past proposals do not land which the public can physically access. RC W foliow the public open 84.34.020(1) defines "open space land." That definition space guidelines of the includes, for example, any land the preservation of which would ordinance serve to "conserve and enhance natural. or scenic resources: ' The County Gode at §03.08.010(8) has a similar broad definition, meaning the CFF monies have been used in order to create and preserve "open space" in compliance with the CFF mission and the state law definition of that term. 2 Applications have been The. ordinance and statute are satisfied when property interests made by private parties. purchased with CFF are owned by JLT.:. seeking to retain full ownership of property although paidfor by CFF ~pp~ ~ p~ ! iH IV~ ,. COMMUNITY HEALTH DEVELOPMENTAL DfSABILITIES MAIN: (360} 3$5-9400 FAX: (360) 385-940 Pus~.~c HE~-c~r ALWAYS WR^S~FEpAXD e~at~~lE~ co~uNmr ENVIROidMENTAL HEALTH wA"CER.QUALITY MAIN: (360j 385- FAX: (3001379-448? 13 2 3 The CFF program is, in JLT spon~rs most of the CF projects because they are qualified essence, controlled by a under state law to hold canservation.easements and because non-elected body, the they have the capacity and expertise to pursue other sources of JLT Directors, a funds in order to meet the 50% match required. by the CFF condition that is anti- demo ratic program, The City of Port Townsend relies an their expertise to c purchase interests inland in the Quimper Wildlife Corridor. Other NGO's have shown little interest in being a CFF sponsor. 4 Is it lawful or proper to have a 7LT representative The CFF Oversight Committee, in accordance with the enabling ordinance from 2004, has members from a broad variety of an the CFF Oversight constituencies, including one member from the JLT The JLT Committee? .. member always recuses herself from ratings meeting. 5 Is it lawful or proper that See the responses to #3 and #4 above. the same entity makes most of the applications and snakes competing applications in asingle- cycle? 6 Is it lawful or proper that Presumably you are speaking of theJLT submitting in asingle the same entity has. cycle competing applications for CFF maney.. JLTeach year competing entries in the internally ranks its applications as requested in the CF Program same cycle? Manual (page 9). JLT is best equipped to make applications and the system has worked to the advantage of ounty citizens for a decade. 7 Is it lawful. and proper to As ati advisory board to the elected County Commission it is have commercial or private interests on the , essential.that all viewpoints, even clashing or different ones, have input into haw the CFF maney is spent since it i m CFF committee? , s aney raised. via taxation on real propertyCounty-wide. 8 The application pr©cess The County considers he CFF program. a rousing success and is so complex that it does. not. concede that any potential apphcants have been requires professional . thwarted by the application procedure. In one regard the guidance, which thwarts application process has been simplified since. the appraisal as to potential applicants fair market value: need not be supplied at the beginning of the application process. 4 Mast ar all of the Conclusion noted. applications in this cycle are likely invalid. COMMUNITY HEALTH DEVELOPMENTAL DISABILITIES MAIN: (360 385-4400 FAX: {360) 385-9dt}1 PUBLIC H~'ALTH ~~~~1~R ~~~~ ENVIRONMENTAL HEALTH WATER QUALITY MAIN: {36aJ 385=9444 FAX: (360}379-44$7 10 Why does the application Because this is atime-consuming process that often requires the process not require the assistance of a lawyer, the better practice is to prepare the applicant to provide a instrument that will memorialize the protective covenant or detailed. description of easement only if the application is.successful and the purchase the protective covenants will be occurring with CFF money. If the easement or covenant or easements at the time had to be.descrbed in detail upon application, then the of application? application process would be more complex, a fact complained of in issue #8 above. 1 I Is the scoring and The County notes your conclusion that the ranking process ranking process valid if it "essentially quantifies already known factors about. the merely quantifies known application process:" factors about the The relative public: worthiness of a particular GFF project is applcationprocess and determined by the Oversight Committee which reflects a cross- does not get to the public .section of the County's populace. While ranking applicat"sons in worthiness of a proposal this manner is perhaps an imprecise tool, it is well-suited to and does not inform the determine how everyone's tax money will be spent. BoGC of dissenting The BoCC sees the CFF minutes and there can read dissenting opinions, if they exist? views. As the Coutty's staff person to the Oversight Committee, I hope that this letter answers and alleviates any concerns. Thank you very much for volunteering to serve on the CFF Oversight Committee. Very truly yours, '~ Tami Pokorny, Environmental Health Specialist II COMMUN{TY HEALTH DEVELOPMENTAL DISABILITIES MAIN: (360) 385-9400 FAX:. (360j 385-9401 P'1lBLfC HEALTH ALLAYS WORKING FOR d 3kF1@K ENO ~~I~11E~ ~fl~uN~ ENVIRONMENTAL HEALTH WATER QUALITY MAIN: (360]385-9444 FAX.: {360) 379-4487 '~ JEFFERSON COUNTY CONSERVATION FUTURES FUND ORDINANCE WITH PROPOSED AMENDMENTS Ordinance No. 06-0708-02 Adopted Julv 8, 2002 Effective: July 8, 2002 Amended: January 4, 2006 I6 Table of Contents Findings Section 1 Definitions Section 2 Program Goals Section 3 Process for Allocation Section 4 Preservation Criteria Section 5 Administration and Oversight Committee Section 6 Legal Provisions 12 WHEREAS, there exists in Jefferson County a general and increasing need to provide a system of public open spaces, those open spaces being necessary for the health, welfare, benefit and safety of the residents of Jefferson County and the maintenance of Jefferson County as a desirable place to live, visit and locate businesses; WHEREAS, unless necessary property interests in such open space resources are acquired, these important resources are likely to be developed and negatively and permanently affected; WHEREAS, conservation futures tax levy collections, authorized under RCW 84.34.230 are an important means of retaining community character and accomplishing open space policies and objectives of the Jefferson County Comprehensive Plan, including OSG 1.0, and OSP 1.1 through OSP 1.6 that encourage the coordinated acquisition of key open space lands for long term protection; WHEREAS Jefferson County is authorized by RCW 84.34.210 and 84.34.220 to acquire open space, agricultural and timber lands, as defined in RCW 84.34.020; and WHEREAS, public open spaces acquired pursuant to this ordinance will be available on the same conditions to all residents of the county for the benefit of all Jefferson County residents and visitors. NOW, THEREFORE, BE IT ORDAINED by the Jefferson County Board of Commissioners as follows: r~ SECTION 1: DEFINITIONS "Annual allocation" means the allocation of conservation futures tax levy funds collected in the previous yeaz. "Annual collection period" means the calendar year in which conservation futures tax levy funds are collected, which is the year preceding their expenditure. "Conservation Futures Citizen Oversight Committee" means the Jefferson County Conservation Futures Citizens Oversight Committee established under this ordinance. "Conservation futures tax levy" means that Jefferson County tax levy upon all taxable property in Jefferson County authorized by RCW 84.34.230. "Conservation futures fund" means the Jefferson County conservation futures fund established under this ordinance. "County" means Jefferson County and/or its Conservation Futures Citizen Oversight Committee. "Interlocal agreement" means any agreement authorized by this ordinance to be entered into between Jefferson County and any one or more other governmental agencies. "Open space land" means the fee simple or any lesser interest or development right with respect to real property, including, but not limited to, conservation futures, easements, covenants or other contractual rights necessary to protect, preserve, maintain, improve, restore, limit the future use of or conserve selected open space land, farm and agricultural land and timber land [as those terms are defined in Ch. 84.34 RCW] for public use or enjoyment. "Project" means open space land, or any lesser interest or development right in specific real property, to which Jefferson County conservation futures tax levy funds are allocated for acquisition under the procedure outlined under this ordinance. 1R SECTION 2: PROGRAM GOALS In accordance with chapter 84.34 RC W, Jefferson County establishes the following goals for its Conservation Futures Fund Ordinance: i) to maintain, preserve, conserve and otherwise continue in existence adequate open space lands; ii) to achieve an equitable geographical distribution of monies from the conservation futures fund over the long term; and iii) to leverage monies from the conservation futures fund in order to obtain additional resources to preserve lands in a manner that provides the greatest benefits to the community. Zd SECTION 3: PROCESS FOR THE ALLOCATION OF CONSERVATION FUTURES FUNDS A process is hereby established for the annual allocation commencing January 1, 2001 of the conservation futures fund to acquire fee simple or development rights in open space lands, including green spaces, greenbelts, fish and wildlife habitat and trail rights-of--ways proposed for preservation for public use by municipalities, special purpose districts, and private non-profit corporations within the county. Jefferson County government, other municipal corporations within Jefferson County, special purpose districts, citizen groups and cifizens may make application for funds in this allocation process. 1. The Boazd of County Commissioners shall determine an application submission date, no later than March 30, following an annual. collection period. At least one month prior to the application submission date, the Board of County Commissioners shall provide public notice of the opportunity to apply to the county for a shaze of the annual allocation of the conservation futures funds. Notice also shall be provided in a daily newspaper of general county circulation at least 30 days in advance of the deadline. 2. Prior to Mazch 30 following an annual collection period, the Board of County Commissioners may, at its discretion, adopt a motion that provides additional direction on priorities for evaluating such applications within the criteria identified in this ordinance to the Citizen Oversight Committee established by this ordinance By October 1, 2002 and by July 1 in all subsequent years following an annual collection period, the Citizen Oversight Committee identified in this ordinance shall make funding 6 recommendations to the Board of County Commissioners from applications received during the process outlined in this ordinance. 4. Prior to final action by the Board of County Commissioners on the annual allocation of the conservation futures fund, a duly noticed public hearing will be held on the submitted applications. 5. The project sponsor will commit to providing a matching contribution no less than the amount of conservation futures funds awarded to the project before conservation futures tax funds are reimbursed to that sponsor. This contribution may consist of: i) cash; ii) land trades if the valuation of the land to be traded is established by a valuation arising from an appraisal generated by a Member of the Appraisal Institute (MAI) certified appraiser; iii) the cash value of the land to be traded, excluding Jefferson County conservation futures contributions; or iv) other open spaces acquired within the previous two years that is situated either directly adjacent to or could, in the sole discretion of the county, be directly linked to the property under application. 6. Conservation futures tax levy collections shall be deposited with the Jefferson County Treasurer in the Jefferson County Conservation Futures Fund and shall be used for the purpose of administering, disbursing and accounting said funds in a manner authorized by the Jefferson County Board of County Commissioners. 22 7. The disbursement requests shall be made for capital projects (purchases of interests in real property) or for operation and maintenance of interests in real property purchased with conservation futures tax levy monies. Capital project expenditures shall be deemed to include all costs of acquiring real property, including interests in real property, and the following costs: the cost of related relocation of eligible occupants, cost of appraisal, cost of appraisal review, cost of title insurance, closing costs, pro rata real estate taxes, recording fees, compensating tax, hazardous waste substances reports, directly related staff costs and related legal and administrative costs, but shall not include the cost of preparing applications for conservation futures funds. Directly related staff costs shall not exceed five percent (5%) of the total cost of the project. Approved disbursements for operation and maintenance of interests in real property purchased with conservation futures tax levy monies shall not exceed in any particular year fifteen percent (15%) of the conservation futures tax levy monies raised in the preceding year. Operation and maintenance funding may be used for any property acquired with Conservation Futures funds. Conservation futures tax levy funds may not be used to acquire any real property or interest in real property therein through the exercise of the power of eminent domain. Conservation futures tax levy funds appropriated for operation and maintenance of interests in real property shall not supplant or replace any existing funding for maintenance and operation of parks and recreational lands. 8. If there are unexpended project allocations, including but not limited to project completion at less than the estimated cost or, alternatively, the abandonment of projects, the project sponsor shall notify Jefferson County, which may reallocate the unexpended fund proceeds to an approved project scope change or to another approved project. 23 9. Projects carried out in whole or part with conservation futures funds shall not be transferred or conveyed to third parties unless the document or instrument reflecting the transfer of title or ownership reflects a written provision or clause providing that the land or interest in land shall be continued to be used for the purposes of this ordinance and in strict conformance with the uses authorized under RCW 84.34.230. However, that same written provision or clause shall also contain language that the land or interest in land shall not be converted to a different use unless and only if other equivalent lands within the geographic jurisdiction of the governmental agency are received by the conveying party (the Grantor) in exchange for the lands or interest in lands being conveyed. This section does not prevent the grant of easements or franchises or the making of joint use agreements or other operations compatible with the use of a project as provided for in this section and authorized under RCW 84.34.230. 10. Ownership of properties or easements will be held by public entities (i.e. the County, municipal governments, the State, or other as defined in RCW 84.34.210). Government entities may choose to share the title of a property or easement with anon-profit nature conservancy corporation or association (as defined in RCW 84.34.250), or anon-profit historic preservation corporation (as defined in RCW 64.04.130) 2 ~. 9 SECTION 4: PRESERVATION CRITERIA Specific criteria for ranking and selection of projects are contained in a process guidance document approved by the Jefferson County Boazd of Commissioners that shall be provided to the Citizen Oversight Committee annually. These criteria will be updated from time to time to reflect the priorities and needs of the citizens of Jefferson County. Overall, the following criteria shall guide the use of conservation futures funds: Preservation of sensitive lands that have truly unique characteristics that will be permanently damaged by potential development or resource extraction. 2. Preservation or enhancement of lands that provide a variety of habitat for flora and fauna, including habitat that supports threatened or endangered species. Preservation of lands that have significant regional or community benefit. 4. Leveraging conservation futures funds with other resources. Acquisitions shall be supported by strategies to provide stewardship and long-term management of the lands through the development and implementation of a management plan. 6. Other criteria consistent with RCW 84.34.020. 25 10 SECTION 5: ADMINISTRATION AND OVERSIGHT COMMITTEE The Citizen Oversight Committee will meet at least quarterly to review program objectives, finalize application materials, and review project submittals for recommendation to the Board of County Commissioners. The committee shall be comprised of no less than nine (9) citizen members. 2. The Citizen Oversight Committee shall be staffed by Jefferson County, or a designated subcontractor. The staff will provide. all necessary administrative, technical, and logistical support to the program. The duties include educafion and outreach, committee support, technical support for project applicants, and support necessary for acquisition. The Board of County Commissioners shall seek representation on the citizen oversight committee from a broad spectrum of interests and expertise, including at least two individuals from each Board of County Commissioner district. The nine citizen positions shall be filled, to the extent practicable, by a person or persons representing or reflecting one or more of the following interests: parks and recreation; user groups; agriculture; forestry; incorporated land trust or similar non-profit conservation organization; real estate; each incorporated city in Jefferson County. This list of "interests" is not exclusive or complete and the listing of any interest here does NOT guarantee that interest one of the nine citizen seats, since there are more "interests" in existence than there are seats. 4. Once established, the terms of the members shall be four years, except that at the establishment of the Committee, four members shall serve a two year term. The Citizens Oversight Committee shall adopt rules of conduct and abide by the rules of conduct, to 11 Z~ include adherence to applicable statutes on issues such as conflict of interest. A chair and vice-chair may be elected from among the members. The Citizens Oversight Committee shall review program principles at least once every two years and make recommendation to the Board of County Commissioners for modification to the program. 2~ 12 Section 6: Legal Provisions If a section or provision of this Ordinance is found to be illegal or invalid then that section shall fail, but the remainder of this Ordinance shall remain valid and in force. Effective Date Adoption Date Signatures Normal signature and approval lines for Ordinance. 2~ 13 t Raven Member -Conservation Futures. Fund Citizen Oversight Committee PO Box' 1370 Port Townsend, WA 98368 .June 18, 2Q13 Conservation Futures Fund Citizen Oversight-Committee Jefferson County Water Quality and Environmental Health 615 Sher'sdan Street Port Townsend, WA 98368 Dear Tami, In response to your presentation of May l 6`h, 2613, please frnd attached my letter to the County Commissioners. Happy Solstice! Sincerely, C Raven ~`/ Committee Member and Natural Habitat Advocate ATiACHMEM 3' A ~~ Raven Member -Conservation Futures.Fund Citizen Oversight Committee PO Box 1370 Port Townsend, WA 98368 3une 18, 2013 Board of County Commissioners PO Box 1220 Port Townsend, WA 98368. To: Commissioners Johnson, Sullivan and Austin Cc: Tami Pokorny, CF Committee Staff On Apri130`~', 2013, it was voted by the Conservation Futures Committee that my letter of concern pertaining to illegal ar~d unethical practices within the. Conservation Futures Fund be submitted to the County Deputy Prosecutor far review and response. I anticipated a direct, legal response from... Deputy Prosecutor David Alvarez. Instead, after some consultation with Mr. Alvarez, Conservation Futures staff person, Tami Pokorny, provided her own purportedly legal opinions, interpretations and advice. Her response of May 16, 2013 failed to clearly address or resolve any of my' questions. My words had. been paraphrased and the majority of my questions received evasive, misleading, incomplete and inaccurate attentior:. The short shrift given my genuine eoncems about the program only serves to heighten my fears. Even a brief look at the relevant portions of county ordnances, RC Ws and. the state constitution reveals significant use, conflict of interest and fairness violations in the Conservation Futures program. It appears that the County is turning a blind eye and even sanctioning those violations. .Furthermore;. by virtue of the JLTJCounty partnership that Ms. Pokorny describes and the present roles played respectively by the: Ladd Trust and the BOC; the Conservation Futures Fund Citizens Oversight Committee seems to be superfluous. Page 1 of 2 q~~ ~~ „ MENT~ 3~ Never the ]ess, I have offered my insights and oversight in homage to certain principles of democratic,. open government and reject Ms, Pokorny's response to my original letter of concern. Moreover, it is with a sense of duty and firm resolve that I continue to question the legitimacy of the projects under consideration in this. year's CF funding cycle. To you and everyone concerned with the Conservation Futures funding process I extend this letter of admonition and discontent.. My'eagerness to assist:in a true remedial process remains enthusiastic. ATfACHMENi ~ " C, Page 2 of 2. 3t :.SeP .a.m. }# John Augustus Wood JUN ~ ~ ~t~13 Adoaney at Law $51q San Juan Avenue P.O. Box 742 • PorCTownsend, Washington • 98368-0742 • Facsim}le 360 381 Telephone 360-385-3622 ~"' ~° ~ - ~''- . ~ ~ Jaww4510Qgrnail.com ~., p„ • ma ' ~ t'1 June: 21, 2013 County Commissioners David Sullivan, John Austin and Philip Johnson P.O. Box 12:20 Port Townsend., WA 48368 Re: Conservation Futures;_The Change of my Conservation Futures Vote. the letter from Mr. Raven. and "the Countv's Resoonse"and Other Concerns Dear Commissioners: I have served on the Jefferson County Conservation Futures Fund Citizen Oversight Committee (CFFCOC} since 204$; I am also the immediate past Chairman. I have personal knowledge about how the committee operates. I have long been a strong supporter of the goal of land conservation and until this date have strongly supported all projects brought before the committee. I haue, however, been a critic of the means by which Z land conservation is conducted where the means are not legally and ^ ^ . democratically sufficient to justify the goal, This letter is written solely on my own behalf as a citizen and member = of the committee providing citizen oversight and not. as anyone's Q lawyer. Introduction and Brief Summary Q The committee consists of competent, motivated, and highly intelligent people, many of whom know a great. deal about land and its conservation but we have. been given the trivial„ near meaningless task to afFrrn decisions made by the Board of Directors of the Jefferson Land Trust who are not democratically elected by the citizens of Jefferson County. The rules, procedures and conditions which were set up to guide the committee, including the program manual and its: instructions in regard to conflict of interest, show an astonishing County Commissioners;~e 1 ATTACHMENT disregard for the what the law requires., and in my opinion, each project approved by the Committee, and the Commissioners, over the five years I have been on the committee, including the projects proposed for 2013, is void. because each failed to meet the plain language requirements of RCW 42.23. The decision of the County to present its legal response to "eleven issues" in the letter from Mr. Raven to the Commissioners and others by sending a letter under the signature of Tami Pokorny, Environmental Specialist II, to the committee members with a courkesy copy to Peter Bahls (who is not a member of the committee but an applicant. for funds) is a dangerous step and appears to constitute the. unlawful practice of law (see RCW 2.48.180 which is detailed below). The County policy which. apparently allows Ms. Pokorny to tape the quasi-judicial hearings herself, .draft the commi'ttee's quasi-judicial hearing minutes, and amend them as she did in 2013, by inserting a statement on behalf of Ms. Sarah Spaeth which Ms. Spaeth did not make, taints and compromises the official record. A majority of the Committee. members responded to Mr. Raven's letter with a chain email in which some of them discussed how to take action in regard to Mr. Raven's participation; doing so constituted a violation of the Open Public Meetings Act and M' . Pokorny dad nofhng to stop this. My Decision to Reverse My Vote At the committee's April 30, 2013, meeting where we considered the.. ` applications for funding in 2013, I voted. in favor of each project. I hereby reverse my vote, making it a "No" vote for each project. I do so, in park, because of the .issues raised by Mr Raven's, letter of concern and the county's failure to adequately address those concerns, and because my conclusion - after a careful reading of RGW 42,.23 - including 42.23.050 ":Prohibited contracts void - penalkies for violation of chapker" " is that all contracts heretofore entered into between the County Commission and applicants who applied through or with the Jefferson Land Trust are void. Further, all applications far 2013 will be void. I support Mr, Raven`s letter in its entirety and have expressed similar concerns for five years. I have repeatedly pointed to fihe Washington state Constitution. which says: Section 12: Special PrFvileges and immunities' Pro>tiitaitecl. No law shall be passed granting to any citizen, class of citizens, or corporation other than f;ounty Commissioners, page 2 ~~ municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations." This provision parallels, but is more extensive than, the US constitution's equal protection clause, both of which' apply to Conservation Futures program.. As I have pointed. out to the committee, our rules and "points ranking system" make it impossible for anyone other than the Jefferson Land Trust to sponsor an application for Conservation Futures funds. In practical term ,that means that any citizen who wants to apply far funds. must seek the approval of the Land Trust Board. Ih my five years on the committee, there has never been an application that was not sponsored by the Land Trust. The ranking system was setup to give ail Land Trust- sponsored applications a 55 point lead (see criteria Z and 3 of the CF ratings sheets) over any other applications. Naturally, there have. been no other applicants, nor will there ever be under the present system. The application process is designed to accommodate the Land Trust as a sponsor and exclude everyone else. This is an excellent example of a special privilege not given to anyone other than the Land Trust. In my first year on the committee, I suggested changing the program criteria, the procedures and the ranking/points criteria to make it more democratic and: more. assessable to everyone in the county, as opposed to the insiders, hoping to follow what is done in King County, where the program follows democratic principles,. seems designed to make far more efficient use of taxpayer money, and does not take the unnecessary step of funneling everything through a Land Trust. The committee was unwping to consider this even though the Director of the King County program enthusiastically said he would come to Jefferson. County to explain how Conservation Futures can be most effectively .done: Are all contracts entered into between the County Commission and Conservation Futures void? All members of the committee are given a copy of the. Conservation Futures Program mama[, the County Ordinance establishing the committee, and various materials. There is no encouragement to read the actual RCWs involved. They are mereky summarized. and over- simplified in a few brief paragraphs, County Gommi#sioners, page 3 The. commoh understanding within the committee. is that Sarah Spaeth, who is the Executive [?hector of the Land Trust, a member of the CFFCOG, and the person who makes a presentation on each Land Trust-sponsored :project to the committee {except for Mr. Bahls' project in 20:13 where he made his own presentation), has no conflict of interest so long as she "recuses herself`"'from voting on any of the applications. However, Mr. Raven's letter, and Mr. Alvarez's lack of a response, prompted me to make a careful reading of RCW 42.23. My conclusion is that Ms. Spaeth's mere "recusa!" frpm voting fails entirely to prevent a conflict of interest and that her failure to .meet the: plain language requirements of RCW 42.23 means that every project in which she has participated is void. My analysis begins with the david Alvarez memorandum dated July 9, .20x2, in which he says: "strong language that should be instructive in providing guidance for CFFCOC member is found in the (1) the "Code of Ethics for Municipal Officers- Contract Interests," specifieagy RCW 42.23.030, which states, in .part. 'No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made_far the benefit of his or her office, or accept, directly of indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.' Mr. Alvarez continues:' "This section is particularly pertinent because the CFFCOC will be reviewing many projects that will require the County to enter into .contracts for professions! services and the purchasing of real property. The definition of `municipal officer' found in RGW 42.23..020(2) would include a member of the CFFCOC." Fallowing that, Mr. Alvarez's memorandum .refers to "remote interest" but merely summarizes the:. concept and offers a sir«gle example which could be misleading without reading the entire RCW. County Commissioners, page 4 ..J V My review of RCW 42.23 shows, that there are severa steps, mandatory requirements, in regard to conflict of interest .which have not been observed by Ms. Sarah Spaeth, the Land Trust member of the Committee, for any project considered. while I have served on the CFFCOC. Ms. Spaeth has been a member of the Committee each of the five years I have served:. She is also, like all committee members, a "municipal officer." The understanding an the committee has been. that so long as Ms. Spaeth does not vote on any of the applications, she has a "remote interest".and can participate as fully as she wishes. Ms. Spaeth also prepares and usually delivers an oral presentation for all of the applications, In the five years I have served, all applications have come. from and through the Land Trust. Immediately following the first paragraph df RCW 42:23.030, as quoted above by Mr. Alvarez, there are 12 long numbered paragraph sections describing exceptions. The final paragraph of 42.23.030 is unnumbered and includes two sentences, the first of which says: "A municipal officer may not vote in the authorization, approval or ratification of a contract ih which he or she is beneficially interested even though :one of the exemptions allowing the awarding of sucha contract applies." 'This is the reason why Ms. Spaeth cannot vote on the applications... The second sentence of the final paragraph of RCW 42.23.030 contains a mandatory disclosure requirement which applies regardless of whether the municipal offficer votes: "The interest of the municipal officer must be disclosed to the governing body of the municipality and noted in the official minutes or similar records of the municipality before the formation of the contract." To my knowledge, based upon my recollections about the applications submitted by Ms. Spaeth and presentations made by' her to the committee since my appointment in 2008 and my review of the minutes of the GFFCOC, Ms. Spaeth has never satisfied this requirement for any project, including those proposed for 2013, and County Commissioners, page 5 ~ ~j "the official minutes or similar retards" would not demonstrate compliance with this requirement. I~GW 42.23.040 "Remote Interests" provides what might be deemed a "safe harbor" for Ms. Spaeth, in that it says: "A municipal officer is not interested in a contract .., if the officer has only a remote interest in the contract and the interest is disclosed to the governing body of the municipality of which the officer is an officer and noted in the official. minutes or similar records of the municipality prior to the formation of the contract, and thereafter the governing body authorizes ..:" The final sentence of RCW 42.23.040, which begins by offering a possible "safe harbor", says, however:. "None of the provisions of this section are applicable to any officer interested in a contract, even if-the officer's interest is only remote, if the officer influences or attempts to influence any other officer of the municipality of which he ar she is an officer to enter into the: contract:" Every year for five years, except for the Bahls project in 2013, Ms. Spaeth has made or participated in an oral presentation to the Committee for each project sponsored by the Land Trust (and: every project has been sponsored by the Land Trust) and the very purpose of her oral presentations has been to influence the committee members to act favorably on the application sponsored by the Jefferson Land Trust. RCW 42.23.050 is captioned: "Prohibited contracts void -penalties for violation of chapter" "Any contract made in violation of the provisions of this chapter is void... [and] "[i]n addition to all other penalties, civil ar criminal, the. violation by any officer of the provisions of this. chapter may be grounds for forfeiture of his or her office." Void means "void" and what is void cannot be made un-void oi- cured of its voidness. Should the ]efferson Land Trust have a seat on the CFFCOG Country Commissioners, page 6 3~ The idea that the Jefferson Land Trust should have a seat on the Citizens Oversight committee making. recommendations about the .distribution of taxpayer funds for projects it sponsors.. makes no sense in a democratic society or government. Inviting a land Trust member to sit ran the Citizen Oversight Committee that is reviewing applications, all of which came from the Land Trust, puts Ms. Spaeth in the obvious position of dt~ing two contradictory things at the same time: (1) She must present and promote the Land Trust-sponsored applications vigorously so as to get them approved. (2} She must also serve in a position of trust and confidence as a municipal officer whose job it is to provide "citizen oversight" to assure that the program principles, the application criteria., andthe ranking "paints system" are fair, open and accessible to ail citizens, including nvn-Land Trust sponsors should there ever be any. Consider the words of Mr. Alvarez in his. July 9, 2442 memorandum to the County Commissioners, the County Administrator and Dave: Christensen, Natural. Resources in regard to the Conservation Futures Fund and the CFFCOG: "If the goal is to ensure that the system used to distribute this money is not tainted with accusations that it favors insiders or arrives at decisions arbitrarily, what can the County do to assure an even-handed and open process is used to distribute GFF monies?" Historically, the basic legal rules for conflict of interest and fiduciary duty, derive from the old Biblical saying found in Mathew 6:24 (it was actually taught this way at Georgetown University Law Center in Washington, DC when I was a student}; "No man can serve two masters. Either he will hate the. one and love the other, or he will be devoted to the one and despise the other. He cannot serve both God and Mammon." Even a schoolchild could see that giving the Land Trust a seat of the "citizen oversight committee" reviewing the Land Trust sponsored applications makes no sense. The present Conservation Futures system 'is not much removed from: the idea of defendants in criminal trials being permitted to sit and serve on the very same jury which is deciding their case. They could Gt~unty Commissioners, page 7 ~~ recuse themselves from the final vote, but they could also accomplish a great deal by sitting around with the jury and helping establfsh the rules about how to decide. I've never heard of another government program anywhere, at any level, where applicants or sponsors for funds or subsidies could get a seat on the board or committee making grants. Everyone would be outraged if insiders could decide their own federa farm subsidies, tobacco subsidies, or oil subsidies or the oil depletion allowance. They, at least, are required to lobby from the outside. Here is an anomaly that shows the absurdity of the Gaunty practice: If Section 12 of the Washington State Constitution banning special privileges has meaning, and if you allow the .Land Trust tt~ have a seat on the CFFCOC, why shouldn't every other potential sponsor fQr Conservation Futures funds' be given a similar seat on the CFFGOC? Would another entity seriously consider sponsoring as CF application if the Land Trust has an inside seat and the other entity does not? Keep this in mind when you get to Pls. Pokorny`s spouses to Mr. Raven's letter pf concern, especially in "Issue 3"where s%e says: "J LT sponsors most of the CF projects because they are qualified ... Other N'GtTs have shown little interest in.being a CFF sponsor." After the CFFCOC considered Mr. Raven's .letter, we voted to approve the 2013 applications for consideration by the Commissioners subject to a satisfactory response from the prosecutor's office to the concerns raised in Mr. Raven's letter. M's. Pokorny first informed us that a response would be forthcoming from David Alvarez,.. Deputy Prosecuting Attorney within about 20 days. There has been no response from Mr. Alvarez. Nothing. What the committee members received (along with a courtesy copy to citizen-applicant for funds Peter Bahis) was an emailed letter dated May 16, 20I3, written and sent by Tami Pokorny, Environmental Specialist IL, under her name, in which she .presented the County's legal position. Ms. Pokorny wrote: Cdu~t~r Gommssianers, page 8 ~C "Raven's letter has raised 11 separate issues. While they will be addressed individually, please know that the Conservation Futures Fund ("CFF"') structure established in Jefferson County closely follows state law." She included a copy of the County ordinance establishing the CFFCOC, described what "state law intends", and concluded "I hope that this letter answers and alleviates any concerns." My answer to Ms. Pokorny is that her letter answers nothing. Rather, it raises more serious concerns, beginning with why the County chooses to use an Environmental Specialist to answer questions that properly should have been answered by the prosecutor's office.. Is she trained and. qualified to answer legal questions? :Does she know, and is she constrained to follow, the ethical rules that lawyers must follow in presenting legal opinions to third parties as part of her paid position as Environmental Specialist? Ms. Pokorny's covering email, which. accompanied the letter, said: "The County's response to the Committee's request for information is-also attached. Tt was written in close consultation with the deputy prosecuting attorney who has also agreed to <be available by phone at 3:10. p.m. for 10 minutes or during the next CF meeting to answer any follow up questions the group may have." Does the County think so little of Mr. Raven's letter of concern that Mr. Alvarez can spare us only ""10 minutes" of advice? `What cd'ufd he answer in 10 minutes? Did Ms. Pokorny mention the "close .consultation with the .deputy prosecuting attorney" to inflate the. importance of her "legal advice" or did she say this to implicate him in assisting her in practicing law in violation of an actual law? Wouldn't Mr. Alvarez know about the State Bar Act which strictly prohibits non-lawyers`from giving legal advice to third parties as part of their salaried jobs? Why did Ms. Pokorny send a copy of her legal. opinion to Peter Bahls who is not a member of the .committee?' Is she trying to impress him? County Commissioners,. page 9 ~~ Most seriously, each of her responses is evasive and many of her "re- framings" of Mr. raven's concerns mis-state what he actually wrote. Had Ms,. Pokorny been a lawyer, she.:. would have been governed by ethical rules, including RPC Rule 4.1 - "Truthfulness in statements to others" which says: "In the course of representing a client a lawyer shall not knowingly: (a} make a false statement of material fact or law to a third person; ..." That would mean that Ms. Pokorny could not, in her fetter to the committee members and the ever-.present Mr. Bahls, misrepresent Mr. Raven's issues or make omissions which are the equivalent df affirmative fatse statements Ms. Pokorny's letter containing the county's. legal position is filled with mischaracterizations, misstatements, over-simplifications, and both. mistaken and irrelevant assertions about state law. Her refraining of Mr. Raven's "concerns" appears designed so as to change them into different issues. Under General Rule 2~F, as issued` 6y the Washington State Supreme Court in its Court Rules, Ms. Pokorny appears to meet the definition of practicing law. In her letter, :she::. "applies legal principles and judgment with regard to the objectives of another entity or person{s) which require the knowledge and skill of a person trained. in the law, This includes but is not limited to: (1) Giving advice. or counsel to others as to their legal rights or the legal rights or responsibiii ies of others forfees or other consideration." Ms. Pokorny's letter gives Segal advice to the 11 committee members and Mr. Bahls, a member of the general public and funds applicant, and she is compensated by Jefferson County with a salary for her work as Environmental Specialist. II. RCW 2.48.180(2) says: {2} 1'he follo~nrng constitutes unlawful practice of law: {a) a non-tawyer practices law, or holds himself or herself out as :entitled to practice law.... (3){a) Unlawful practice of law is a crime, A single violation of this section is a grass misdemeanor. County Commissioners, page SO /( (b) Each subsequent violation of this subsection, whether alleged in the same or subsequent prosecutions, is a class C felony punishable according to chapter 9A.20 RCW." Furthermore, .Ethical Rule 1.2 (d} provides: "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the Lawyer knows. is criminal. or fraudulent." As indicated in her covering entail of May 16, 2013, Ms. Pokorny anticipated leading atwo-hour discussie~n of Mr. Raven's letter raising legal issues and Ms. Pokorny's presentation of the county's response to those issues, with a ten minute contribution by telephone from deputy county prosecutor David Alvarez. Comment 14 td Ethical Rule 1.2 provides that when a client's course of action is continuing; "A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal.... The lawyer must, therefore, withdraw from representation of the client'in the matter..... It may be necessary for the lawyer to glue notice of the fact of withdrawal and to disaffirm any opinion, document,. affirmation or the like. See. Rule 4. i." Ms. Pokorny's covering email states that the letter she signed "was written in close consultation with the deputy prosecuting attorney". A review of any passible criminal. violation of RCW 2:.48.180(2). would, presumably, be reviewed by the office of the same prosecutor who assisted Ms. Pokorny to write the letter; but because of conflict of interest rules, the matter would presumably be forwarded to the Washington Attorney General's office which is available in the event of conflicts in the proseoutor's office. The Washington State Bar Association also has a great deal of interest in who practices law. Did Ms Pokornv's "County Resoonses" to Mr. Raven's letter actually respond to his, or anyone's concerns Courrty Commissioners, page ii -1 Based upon what-she wrote, Ms. Pokorny took Mr. Raven's ietter and. selected and re-framed what she determined were "11 separate issues". I will address each of the eleven, briefly, in sequence. Issue #1: The Pokorny version.: "Current proposals and past proposals da hot follow the public open space guidelines of the ordinance". Mr. Raven actually wrote: "The Jefferson County Futures ~rdnanee, and the CF Program. Mission Statement stipulate that CF tax monies are intended tq provide a 'system of `public open spaces' and that `public open spaces acquired pursuant o the ordinance wl9 be available on the same conditions to afl residents of the county for the benefit of all county residents and visitors'; and further defines 'open space land thus acquired through CF as being for public use and enjoyment ; yet, many of the past projects and, indeed, three of the [four] proposals presently under consideration dt~ not folictw the public open space guidelines of the ordinance". Ms. Pokorny's response: She cited the "open `space" definition in RCW 84.34..020(1) and added that "The County Code at §03.08,010(8) has similar broad definition, meaning the CFF monies have been used in order to create and preserve open space' in compliance with the CFF mission. and the state law definition of that term" My Response: There is no §03.08.010{8} in the County Code in the Code Publishing version accessed through the county website, so it is difficult to find Ms. PQkorny's citation. The Pokorny response fails to address what Mr. Raven's letter alleged: that the County does not fallow the language of it's own ordinance. The County chose. to use language more restrictive than what is found in RCW 84.34.020(1) and defined "open space land" in a particuiar manner by adding a precise limiting clause. To quote the County ordinance, ""Open space land" means .... [as those terms are defined in Ch 84.34RCW] for :public use and enjoyment." County Commissioners, page 12 ~~ The legal effect of doing so is to restrict the term "open space land" to that which is actually for public use and enjoyment. The phrase "public open space" appears many times in the county ordinance. For example, the county ordinance says, at the bottom of page 3: "Whereas public open spaces acquired pursuant to this ordinance will be .available on the same conditions to ali residents of the county for the benefit of all Jeffersan County residents and visitors. NSW, THEREFORE BE IT ORDAINED by the Jefferson :County Board of Commissioners.:.." The obvious question to Ms. Pokorny and the Commissioners is to ask which of the projects funded over the last 12 years would actually meet the language quoted from the ordinance. Where are those "public open spaces" that were. promised in the 4ithereas clause?? The County is obligated to follow the language of its ordinance, and if the County legislated an additions restrictive phrase to thee: state definition of "open space", it 4s bound to follow it. Issue #2: Pokorny Version: "Applications have been made by private parties seeking to retain full ownership of property although paid for by CFF" Mr. Raven aetualiv wrote: "...the ordinance states that properties and easements acquired through CF funding shall be wholly or in part owned by a public entity (County, Municipality or State) with the option to share the ownership with a nature conservancy corporation; yet,. in the past -and among the present CF applicants -are private parties seeking to retain full ownership of property acquired' through CF funds." Pokorny Response: "The ordlnance and statute are satisfied. when property interests purchased with CFF are owned by JLT." My response: Ms Pokorny deletes, .amends, and/or changes Mr. Raven's statement so a to make it hardly recognizable; and it appears she has not taken the effort to read the county ordinance. Her answer is evasive and. makes no sense. County Commissioners, page 13 ~'~ Section 3, Paragraph 10 of Ordinance No 06-0:708-02 (Conservation Futures) states precisely what Mr. Raven says: "10. Ownership of .properties or easements will be held by public .entities (i.e. the County. Muhicipal governments, the State, or other as.defined in RCW 84.34.2.10). Government entities may choose to share the title of property or easement with a non- profit nature conservancy corporation or association (as defined in RCW 84.34.ZS0), or anon-profit historic preservation corporation (as defined in RCW 64.04.130)." This is a section of the ordinance which the County, like Ms. Pokorny, does not. follow, Issue #3: Pokorny Version: "The CFF,program is, in essence, controlled. by a non-elected body, the JLT directors, a condition that is anti- dernocratic." What Mr. Raven actually wrote.: "The Washington State constitution provides far democratic fairness and equal opportunity in access to and use of CF funds;. yet, through sponsorships and easements, the CF Program is - in practice - fundamentally controlled by anon-elected, non-pub#ic body; the BPD of the 7efferson Land Trust and its agenda." Ms Pokornv's Response: JLT sponsors most of the CF projects because they re qualified under state law to hold conservation easements and because they have the capacity and expertise to pursue other sources of funds in order to meet the 50% match. required by the CFF program. The City of Part Townsend relies on their expertise to purchase interests in land in the Quimper wildlife corridor. other NG0's have shown little interest in being a GFF sponsor. response: This is another evasive and dismissive answer. It's true no other NGO's (non-governmental organizations) show interest in applying for CFF funds -because the program has been stacked against them, by the insiders, by adjusting the requirements and the points ranking system so that no one else has a chance to compete against Ms. Pokorny's favored client, the Land'Trust. County Commissioners, page 14 ~' ThaugM addressed above, Section 12 of the Washington State Constitution is worth repeating: Section 12: Special Privileges and Immunities Prohibited. No law shall be passed :granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms sh-all not equally belong to all citizens, or corporations." I have repeatedly referred to this section of the state. constitution during meetings of the CFFCOC and never once did Ms. Palct~rny reply, respond, acknow edge, write anything dawn, or show any interest whatsoever. She would smile politely and act as if I had said nothing. Issue #4: Pokorny Version: "Is it lawful or proper to have a JLT representative on the CFF Oversight Committee? What. Mr. Raven actually wrote: "I question the legality and propriety of having a paid representative of the Jefferson land Trust sitting on the Conservation Futures Committee.. Pokornv's resoorise: "The CFF Oversight Committee, in accordance with the enabling ordinance from 2004, has members from abroad variety of constituencies, including one rnen~'ber from the JLT. The JLT member always recuses herself from ratings meeting." My resoonse. Ms. Pokorny re-framing of Mr. Raven's question is misleading because it omits the crucial word ".paid" from what he actually wrote. {MS. Pokorny's date is wrong, too. The ordinance is not from 2i)Q4 but from 2002, as amended. in 20Q6.} Ms. Pokorny also implies that the ]LT seat may be permanent, an issue she dutifully tried to push on behalf af'the Land Trust back in 2004. Attached to the David Alvarez memorandum of July 9; 2002, is-a copy of an email from Ms. Pokorny to David Alvarez°dated December 29, 2004, in which she asks severs questions, along with Mr. Alvarez's responses. In Question 3, Ms Pokorny asks: County Commissioners, page 15 /C~/ "Sarah Spaeth asked me to inquire whether or not Jefferson land Trust Ts a 'stakeholder' - by that I think he's asking if )LT could be allowed a permanent presence on the Conservation Futures Committee." Mr. Alvarez answered by referring to §'5'.3 page 6 of the ordinance, adding that; "none of the interest groups or categories of interest groups is guaranteed one of the nine citizen seats since there are more interests in existence than available seats." CF funds are, of course, taxpayer money that is given to special interests, and the only real stakeholders should be the taxpayers, Ms. Pokarny's enthusiasm for granting stakeholder status and a permanent committee seat for the ]LT and writing to David Alvarez for his approval should be contrasted with my repeated questions about the application of the state constitution to the CFFCOC process and her refusal to acknowledge my question let alone take the matter to Mr. Alvarez for an :opinion. Issue #5: Pokorny version: "Is `it lawful or proper that the same entity makes most of the applications and makes competing applications in a single. cycle? Mr. Raven a~ually wrote: "I question having the same entity sponsor multiple proposais/projects per funding cycle or dominate sponsorships in general." Pokornv's Response; "See responses to #3 and #4 above." M}~resoonse: Mr. Raven is not aware, because he is a new committee member this year, but this topic has been a :kind of ongoing... joke at the GFF meetings. The joke is that each year the Land, Trust finds out precisely how much money will be available for distribution anal sponsors the precise number of applications, with precise dollar amounts sa as to seek the entire amount of money brought in from the taxpayers. They also rank their projects from, say, 1 though 3 or 4, so we know which of their individual prajeets they prefer. They can be confident no other entity can or will compete with".them for the money -and all the committee does, so the joke goes, is determine County Commissioners, page f6' ~p whether the Land Trust applications: colored. "touched. all the bases" in the applications, or as someone put it -- colored inside the lines of the boxes. This is why some of us on the committee, including me, believe our job could be termed superfluous and maybe part of the joke -except that some of'us feel a duty to the citizens to expose he joke. Issue # Pokorny version: "Is it lawful or proper that the same entity has competing entries in :the same cycle?" What Mr. Raven actually wrote: "I question having a sponsor's representative ostensibly compete with another applicant who is sponsored by the same entity." Pokorny's response; "Presumably you are speaking of the JLT submitting in a single cycle competing applications for CFF money. JLT each year internally ranks its applications as requested in the CF Program Manual (page 9}. JLT is best equipped to make applications and the system. has worked to the advantage of County citizens ftxr a decade." MY response.: Mr. Raven is asking a fundamentally important question that eludes Ms. Pokorny or her dose. advisor. What this program does, as constructed and operated, is that it gives remarkable power to the Land Trust Executive Director and its. Board of Directors to dictate to any citizen who wants to seek CF funds that they have to do what the Land Trust wants or there is no chance for them to obtain CF funds. That means that people who are not elected by the citizens of Jefferson County get to decide (in what used to be Called smoke-filled rooms) who gets the cash. what happens 'rf someone an the Jefferson Land Trust Board of Directors has a personal dispute ar other conflict with a prospective funds applicant? What if the applicant is turned down by the Land Trust board. in favor of someone else? :Can the one who loses out sue the Land Trust? On what basis? Can an unhappy applicant seek to vote out, or run for office against., the Land Trust board members who turned them down? Not likely. What Mr. Raven was driving at, and Ms. Pokorny cases not for, is that if this program were administered fully and for real by the.: County, and someone lost out on an application,,: or was turned down. unfairly, there could tte legal recourse to determine ti3e question of fairness. County Commissioners, page 17 But because the decisions are made, in reality, within the Land Trust, and our committee determines whether the applications farms colored inside the boxes, our rubber stamp is what passes for the democratic process. In a true .democracy, a dissatisfied applicant should be able to vote aut (or run against.} the public officials, including. the Commissioners, who did not assure that their applications were treated fairly. A dissatisfied applicant. for funds cannot vote out the. Land Trust Board. issue #7: Pokornv version: "Is `rt #awful and proper to have commercial or private interests on the CFF committee?" What Mr Raven actually wrote: "I question whether CF Committee members should represent any entity, commercial or private interest such as real estate.'" Pokorny response: "As an advisory board to the County Commission, it is essential that all viewpoints, even clashing or different ones, have input into how CFF money is spent, since it is money raised via taxation on real property County-wide:." My responses Ms. Pokorny is correct that this is taxpayer money and that all viewpoints should be heard, but she misses the point of Mr, Raven's question. We are called the "Citizen's Advisory" committee and our job is, or should be, to assure that the taxpayer money is well-spent for the purposes for which ft is supposed to be spent. There is no reason at all why the real estate industry, for example, should have a special voice on the committee to the exclusion of say, the plumbers, the gardeners, the lawyers, the doctors, dock workers, the Food Coop. cashiers, or any other profession. Professions do not have protected interests. Citizens do. How, in fact, does the designation of special interest groups who should have special seats on the committee square with the equal protection clause of the US constitution or the pesky state constitutional prohjbition, set forth above, against special privileges? Where did the commissioners get the idea that special. interests deserve seats? It sounds and feels more like a payoff to those specials interests. Why not specify one requirement for committee membership: citizenship. Cawnty Commiss4oners, page 18 ~~ Issue # 8: Pokorny version.: "The application process is so complex that it requires professional guidance, which thwarts potential applcants." what Mr. Raven actually wrote: "I questidn an appldation process that is so expensive and convo#uted as to deter applicants, effectively require professional guidance and thwart the purposes of the program." Pokorny response: The county considers the GFF program a rousing success and does not concede that any potential applicants have been thwarted. by the application procedure. In one regard the application process has been simplified since the appraisal as to fair market value need not be supplied at the beginning of the application process. My resoonse: In 2004, I negotiated the real .estate transaction between George Heidgerken and the Jamestown Tribe to acquire title to the first phase of Tamanowas Reek. I also sat in and participated in subsequent discussions in regard to the Tribe's .application for Conservation Futures funds. At that time, I was astonished at how expensive the process was. In :particular, the Tribe was required to obtain a special appraisal which cost over $12OQ0.00 to cover an application for about $60,000.00 in conservation futures funds. In a private conversation, the tribe's attorney told me it ended up costing them about the same amount of money to apply-for CF funds as they received in funding, making the process essentially a wash:. I had advised the Tribe to seek $120,000 in a single application but Kees Kolff of the .Land Trust advised them to seek two separate installments of about $60,000 each -because, as he said at the time, "there could be other applications." There were others -all through the Land Trust. While the Tribe received approval. for the first application, and essentially covered their cost of applying, they were turned down for the second application:. Knowing a [this, and being offended at what I felt :was a waste of taxpayer money, I told Commissioner David Sullivan, whom I met at a Democratic primary function„held at Blue Heron School, about my concerns. His response was to contact l~s. Pokorny who asked me to join the CF Committee. County Commissioners, page 19 In my first year an the committee, I tried to raise my concerns but there was little interest in changing anything. The change to the date when the appraisal is due was the only change that was acceptable to the committee. After five years., my concerns about the mis-application of taxpayer funds has not abated. The situation is worse than I'd thought in 2008 and it is now largely entrenched. Issue #9: Pokorny version: "Most all of the applications in this cycle are likely invalid." What Mr. Raven actually wrote: "I question the validity of all but one proposal in this yea'r's funding cycle: The Winona Basin and, depending on the ultimate ownership of the property and easements, even that project may become invalid.. Pokornv Response.. "Conclusion noted." My res o~ This is the dismissive response. with its implied gratuitous insult, is indicative of the County's lack of interest in finding out "why" Mr. Raven might have come to his conclusion. Mr. Raven is correct that there is a serious and fatal flaw with all the applications! except that the word "invalid" should be changed to "void". "Void" and not "Invalid" is the term found in RCW 42..23.050 "Prohibited Contracts Void -penalties for violation". Because Ms, Spaeth did not follow the strict requirements of RCW 42;23, as outlined above, the contracts are void. This should be easy to determine because all one has to do is look at the official record to see if Ms. Spaeth .made the pr©per disclosures, on the record, as regia'ired by RCW 42.23 -specifically the final sentence of RCW 42.23.030 - and the final sentence of RCW 42.23.040., in relation to each contract. The first (42.23.030) says.: "The interest of the municipal officer [Ms. Spaeth] must be disclosed to the governing body of the municipality and noted in the official minutes or similar records of the municipality before formation of t+ie contract." Gan anyone find such a disclt7sure in the official minutes in regard to any of the contracts? County Commissioners, page 20 The second (42.23,.440) provides:. "None of the provisions of this section are applicable to any officer interested in a contract, even if the officer's interest is only remote, if the officer influences or attempts to influence any other officer of the municipality of which he or she is an officer to enter into the contract."' Would the official records show that Ms. Spaeth did not make any oral presentations nor submit any written applications for any of the contracts? Issue #i4: Pokorny version: "Why does the application process not :require the applicant to provide a detailed description of the protective covenants ar easements at the time of application? What Mr. Raven actualiv wrote: "I question the value and reliability of an applcationJproposal format that does not rewire a commitment to a clearly stated and detailed description of the covenants or easements of protection on the land .under consideration." Pokorny Response: "Because this is:a time-consuming process that often requires the assistance of a lawyer, the better practice is to prepare the instrument that will memorialize the. protective covenant or easement only if the application is successful and. the purchase will be occurring g with CFF money. If the easement or covenant had to be described in detail upon application, then the application process would be more complex, a fact complained about. in issue #8 above." My response: As any lawyer should know, it is customary, or at least good practice, to attach, say, forms of documents, most of which are standard, to purchase and sale agreements or other contracts involving real. estate. The. precise legal. descriptions of property and other details are left blank - .but the main portions of the forms of easement sand covenants are known in advance and are largely what is termed "boilerplate" much the way forms for real estate purchase and sale agreements are mostly pre-printed forms. Many years ago, Land Trust representatives gave a promotional seminar about conservation easements in the PT library and invited local lawyers to attend; they gave us lots of boilerplate forms for adaptation and use for conservation easements and covenants. The had the forms mentioned by Mr. Raven then, and they should have them now. County commissioners, page 21 ~ ~} Yes,. a lawyer .usually fills them out before the final. signatures, but the. forms themselves can be read in detail long before the final versions are prepared. Issue #Z1: Pokornv version:. " Is the scoring and ranking process valid if it merely quantifies known factors about the application process and does not get to the public worthiness of a proposal and does not inform the BoCC of dissenting opinion s, if they exist" Mr. Raven actua ly wrote.: "I question scoring and raking process that essentially qualifies and quantifies already known factors about the application process, but does little to determine the essential worthiness. of a project; and.. ultimately leaves the BOC unaware of any dissenting opinions." Pokorny Resoonse: "The County notes your conclusion that the ranking pracess'essentiatly quantifies already known factors about th`e application process.' The relative public worthiness of a particular CFF project is determined by the Oversight Committee which reflects a cross-section of the County's populace. vUhiie ranking applications in this manner is perhaps an imprecise tool., it is well-suited to determine how everyone's tax mahey will be spent. The BoCC sees the CFF minutes and there can read dissenting. views." My response: Mr. Raven may be referring to something I often said during committee meetings -- whether a project is worthy should be obvious to anyone without attempting to apply artificial numbers to create a ranking process. We-are required to give. numbers in a way that gives us relatively little choice. That is, when the process was set up in 2002, someone decided that a certain thing was worth X points and something else was worth Y points and so on -and we cannot question whether the original point scale makes any sense. For example, why should the fact that a sponsor has done a project before be worth: 50 points out of, say, 260 total? A "cross-section of the County's populace" is precisely what the CFFC4C does not have because of the special interests who occupy most of the seats. There .are members from each Commissioner District, but that's no evidence of across-section. Most of the people on the Committee appear to be retired, and "reasonably well-off, and a County Commissioners, page 22 ~ 2 good number are Land Trust enthusiasts; I would. call it a narrow non- cross-section. Finally, I have several miscellaneous concerns. Ms. Pokomev's committee emails: Ms. Pokorny's emails to armmittee members. consistently, include both a confidentiality notice and a notice that all records are available under the Public Records Act.. She usually sends copies of her committee emails to Mr. Peter Bahls who is a member of the public and an applicant for funds. How can these emails be all things at the same time: confidential, open to public under the PRA., and be given to a member of the public (which would contradict any claim of confidentiality) at the time of mailing? The only reason to label non- confidential emails as confidential is to discourage the uninformed. Ms. Pokorny's amendment to the minutest In the recent presentations of the Sp13 cycle of applications, Ms. Pokorny made a potentially significant change to the record on her own initiative. She added language to the record on behalf of Ms. Spaeth that Ms. Spaeth did not utter' during her presentation. Ms. Pokorny's explanation was that her tape broke or malfunctioned. My immediate. comment upon hearing. this is that her explanation reminded me of Rosemary Woods' explanation about: the famous i7 minute gap in the presidential taping system of Richard Nixon. Mr. Bahls asked that the Committee recommend a two year grant, based on the "precedent" that this was done one-time: in the past. The language of the Ordinance does not specifically permitthis and seems to exclude it. It refers to °annual allocation" and defines it on page 4 as "the allocation of conservation futures tax levy funds col ected in the previous year. The "annu,al collection period means the calendar year in which conservation futures tax levy funds are collected, which is the year preceding their:expenditure." County Commissioners,. page 23 h `'1' On page 5, it says: "A process is hereby established for the annual allocation..." In paragraph number 1 on page 5, the Ordinance says the "... CommissionErs shall provide public notice of the opportunity to apply to the county for a share of the annual allocation of the conservation futures funds. Notice shall be provided ..." Paragraph 3 says: "following an annual collection period the Citizen Oversight Committee ... shall make funding recommendations .:. from applications received ...? Page 8, paragraph 7 says: Approved disbursements for operation and maintenance of interests in real property purchased with conservation futures tax levy monies shall not exceed. in any particular year fifteen percent (15%} of the conservation futures monies raised in the preceding year," Page $, paragraph 8 says the BOC may reallocate unexpended funds. Nowhere does the Ordinance permit funds can be granted befdre they have been collected. If funds were' granted over a two year period in the past, it was done without being permitted by the Ordinarrc, How did the Committee react after receiving Mr, Raven's letter? One of the strangest aspects. of this saga i the response of some committee members a few days after receiving Mr. Raven's letter. One members sent an outraged email to ail committee members complaining about the "out of left field" letter and saying it was a waste of time. Others joined in the chain. Ultimately, a majority of the committee responded -making it a violation of the Open Public Meetings Act. This is explained on the MRSC website the county. officials use and where any:citizen can find several legal memos about why it violates the law: But the strangest and most unusual member response is worth reading to get a good flavor of what may happen to an individua who speaks up and raises questions in the face of an entrenched interest group committee: I'll leave the person un-named, as a courtesy, but anyone who wants can. find out easily enough by contacting Ms. Pokorny; County Commfss3oners, page 24 h ~~ Nere's what he wrote, with all spelling and punctuation exactly as it was: "i far one am appauled at this Mr. Raven's intrusion into our proceess without first asking questions and seeking real imformation and explination as to his `concerns:: This blind shot into the air is akin to the old saw about "he comes riding into our camp, kicks over our bacon and beans, pee's on our camp fire, then expects a warm. Ulanket and hugs all 'round" not so. I was under the impression he was a new. member? Is he not? Then he should be admonished for being out of order: we shall deal with this. [name deleted]. Ms. Pokorny had no response. She did nothing. I conclude by saying I strongly support land conservation, have had a long term interest in the issue, and .recognize the Land Trust for doing many wonderful things for the community.. However,. constitutional principles and prohibitions against cdnflict of interest. are fundamentally important and "the end does not justify the means". Not ever. I know this turned out to be a long Letter, longer than I imagined when I started writing -but it is important and I hope the commissioners will do what they are required to do. yely, Wood J W/aj County Commissioners page 25~j `P~~y~~ry JEFFERSON COUNTY PUBLIC ALTH K1f(A \u\41~K 615 Sheridan Street o Port Townsend o Washington e 98368 www.jeffersoncountypubl ichealth. org To: Jefferson County Board of Commissioners From: Rick Jahnke, Chair Conservation Futures Citizen Oversight Committee Date: June T7, 2013 Subject: Conservation Futures 2013 Funding Round Recommendations This spring, the Conservation Futures Citizen Oversight Committee (CF Committee) received four applications for conservation futures funding ahead of the March 1 deadline. The purpose of this memo is report the results of our ranking process and committee deliberations. The committee vetted and ranked the projects in a manner consistent with past funding cycles. The only significant difference from previous years is that, for this round, site visits were held ahead of the project presentation meeting. In reviewing our procedures last fall, the committee felt that physically seeing each property first would enhance comprehension of applicant presentations and facilitate clarifying exchanges. Thus, the process this year was to review the applications, visit the sites (or review the DVD of the site visit), hear presentations from the project sponsor or applicant followed by a question and answer period, score each application for each of the individual questions and then meet as a committee to discussion each score and develop an overall ranking. The ranking meeting is to discuss individual scores in the context of the evaluation questions and make sure that each committee member is comfortable with their score. There is no attempt to achieve unanimity. The projects are as follows: 1. Duckabush Floodplain, $5,000 towards the protection of two properties consisting of 37.1 acres of floodplain and associated uplands off of Duckabush Road near Brinnon. The project includes the purchase of conservation easement on 15.2 acres and the fee-simple acquisition of the remaining 21.9 contiguous acres. The proposed match is a $345,275 grant from the Salmon Recovery Funding Board. Jefferson Land Trust is the project sponsor. Project location: Sec. 17, T. 25N, R. 2W. 2. Short Family Farm, $43,500 towards the purchase of a conservation easement on 256 acres of pastureland and riparian habitat on Center Road near Chimacum. The proposed match is a $486,500 grant from the Washington Wildlife and Recreation Program and a $425,000 grant from the Farm and Ranch Lands Protection Program. Jefferson Land Trust is the project sponsor. Project location: Sec. 23, T. 29N, R. 1 W. 3. Tarboo Forest Conservation -Phase TI, $167,000 towards the purchase of a conservation easement on 118 acres of timberlands between Center and Dabob roads. The proposed match is a conservation easement on 158 acres of associated timberlands valued at $130,000, a portion of the value of the subject easement valued at $53,000 and $28,035 in related costs. Jefferson Land Trust is the project sponsor. Project location: Sec. 28, 29, and 31 T. 28N, R. 1 W. DEUVE OPMENTApD SABILITIES PUBLIC NEAL'tN ENVIRONMENTAL HEALTH MAIN: (360) 385-9400 At~lA'rS Rtt7RIfING F8R A SAFER ANIA WATER QUALITY AAA~~~~YU~~~~~, MAIN: (360) 385-9444 FAX: (360) 385-9401 H~LTN~ ~~~~ ~ (360) 379-4487 m®° • 4. Winona Basin -Bloedel II, $80,000 towards the fee-simple acquisition of 22 city lots consisting of wildlife habitat within the Fowlers Park Addition section of the Quimper Wildlife Corridor in the City of Port Townsend. The proposed match is 14 lots of associated open space valued at $120,000 and $95,000 in community funding. Jefferson Land Trust is the project sponsor. Project location: Sec. 33, T. 31N, R. 1 W. Al] of the projects requested acquisition funding only. No operation and maintenance funds were requested. The total combined funding request was $295,500. This year the program had $220,000 available for awards. The ranking meeting, which is open to the public, was held on April 30 at the Jefferson County Public Health Pacific Room. Jefferson Land Trust served as sponsor for all four projects. Consequently, Sarah Spaeth of Jefferson Land Trust recused herself from the meeting via email and was not present. A new committee member, Raven, chose to abstain from scoring the project proposals. The scores of the other ten members were discussed, adjusted by the scoring committee member if desired and compiled to provide a final project ranking. The scores and ranking of the projects are as follows: Project Score Short Family Farm: 268 Duckabush Floodplain: 247 Tarboo Forest Conservation Phase II: 245 Winona Basin -Bloedel B: 225 At the beginning of the meeting, committee member Raven provided a letter listing a variety of concerns pertaining to the Conservation Futures Program, policies and processes. The committee discussed these concerns and decided that staff should submit the letter to the county's attorney for a legal opinion on how the committee should proceed. During the course of the discussion, the committee acknowledged that its rankings are only advisory and made its funding recommendations subject to the county's response to the issues raised. As noted earlier, for this year's cycle, requested funds exceeded available funds. Prior to the meeting, Peter Bahls of Northwest Watershed Institute, provided a letter to the committee suggesting that it would be possible to partially fund the Tarboo Forest Conservation Phase II project in 2013 and 2014. The CF Committee voted that all four projects submitted this year were worthy of funding. An absolute majority of members voted to recommend funding levels as follows: Project Requested funding Recommended funding Short Family Farm: $43,500 $43,500 Duckabush Floodplain: $5,000 $5,000 Tarboo Forest Conservation Phase II: $167,000 $83,500 in 2013 funds and $83,500 in 2014 funds Winona Basin-Bloedel II: $80,000 $80,000 DOEVE OPMENTALDISABILITIES P!lBI.IC HEALTI'I ENVIRONMENTAL HEALTH AGWAPS YIORNBNr€$ A SAFH~ A6AD WATER QUALITY MAIN: (360) 385-9400 ~~ii IN: (360) 385-9444 FAX: (360) 385-9401 ~~~p ~ ~ _ X: (360) 379-4487 S~ ~--°- At the recommended funding levels, the total combined award equals $212,000 in 2013 funds and reserves $83,500 in 2014 funds. While this split funding permits support for the four projects, it is partly inconsistent with the ranking by deferring some support of ahigher-ranked project to the following year while fully supporting a lower ranked project this year. One committee member was uncomfortable with this recommendation. After the meeting, staff worked with the Deputy Prosecuting Attorney to provide a response to the concerns raised by committee member Raven. The drab minutes of the April 30 meeting, the letter from committee member Raven and the county's response are attached. The committee will meet this fall when it annually reviews the ranking questions and procedures used to evaluate applications. This year we will also discuss the issues raised. in committee member Raven's letter and the county staff response. In conclusion, we feel that each of the projects would contribute to the "preservation of lands that have significant regional or community benefit" (JCC 3.08.040). At the June 24 hearing, project applicants and sponsors, committee members and staff would be happy to answer any questions you may have. I look forward to seeing you then. AITAGHMEM S ~C COMMUNITY HEALTH DEVELOPMENTAL DISABILITIES MAIN: (360)385-9400 FAX: (360)385-9401 PUBIC HEALTH AI.W~'r5 WQRKI#IG F4~ A SAFSG ~MD HEALTHIER CO UNITY' ENVIRONMENTAL HEALTH WATER QUALITY MAIN: (360) 385-9444 FAX: (360) 379-4487 55' Jefferson County Code Chapter 3.08 CONSERVATION FUTURES FUND Sections: 3.08.010 Definitions. 3.08.020 Program goals. 3.08.030 Process for the allocation of conservation futures funds. 3.08.040 Preservation criteria. 3.08.050 Administration and oversight committee. 3.08.010 Definitions. (1) "Annual allocation" means the allocation of conservation futures tax levy funds collected in the previous yeaz. (2) "Annual collection period" means the calen- dar yeaz in which conservation futures tax levy funds aze collected, which is the yeaz preceding their expenditure. (3) "Conservation futures citizen oversight committee" means the Jefferson County conserva- tion futures citizen oversight committee estab- lished under this chapter. (4) "Conservation futures fund" means the 7ef- ferson County conservation futures fund estab- lished under this chapter. (5) "Conservation futures tax levy" means that Jefferson County tax levy upon all taxable property in Jefferson County authorized by RCW 84.34.230. (6) "County" means Jefferson County and/or its conservation futures citizen oversight committee. (7) "Interlocal agreement" means any agree- ment authorized by this chapter to be entered into between Jefferson County and any one or more other governmental agencies. (8) "Open space land" means the fee simple or any lesser interest or development right with respect to real property including, but not limited to, conservation futures, easements, covenants or other contractual rights necessary to protect, pre- serve, maintain, improve, restore, limit the future use of or conserve selected open space land, farm and agricultural land and timber land (as those terms aze de£med in Chapter 84.34 RCW) for pub- tic use or enjoyment. (9) "Project" means open space land, or any lesser interest or development right in specific real property, to which Jefferson County conservation futures tax levy funds are allocated for acquisition under the procedure outlined under this chapter. [Ord. 6-02 § 1] AITAE~T ~0 ~~ 3-5 3.08.030 3.08.020 Program goals. In accordance with Chapter 84.34 RCW, Jeffer- son County establishes the following goals for this chapter: (1) To maintain, preserve, conserve and other- wise continue in existence adequate open space lands; (2) To achieve an equitable geographical distri- bution of monies from the conservation futures fund over the long term; and (3) To leverage monies from the conservation futures fund in order to obtain additional resources to preserve lands in a manner that provides the greatest benefits to the community. [Ord. 6-02 § 2] 3.08.030 Process for the allocation of conservation futures funds. A process is hereby established for the annual allocation, commencing January 1, 2001, of the conservation futures fund to acquire fee simple or development rights in open space lands, including green spaces, greenbelts, fish and wildlife habitat and trail rights-of-way proposed for preservation for public use by municipalities, special purpose districts, and private nonprofit corporations within the county. Jefferson County government, other municipal corporations within Jefferson County, special pur- posedistricts, citizen groups and citizens may make application for funds in this allocation process. (1) The board of county commissioners shall determine an application submission date, no later than Mazch 30th, following an annual collection period. At least one month prior to the application submission date, the board of county commission- ers shall provide public notice of the opportunity to apply to the county for a shaze of the annual alloca- tion of the conservation futures funds. Notice also shall be provided in a daily newspaper of general county circulation at least 30 days in advance of the deadline. (2) Prior to March 30th following an annual collection period, the board of county commission- ers may, at its discretion, adopt a motion that pro- vides additional direction on priorities for evaluating such applications within the criteria identified in this chapter to the citizen oversight committee established by this chapter. (3) By October 1, 2002, and by July 1st in all subsequent yeazs following an annual collection period, the citizen oversight committee identified in this chapter shall make funding recommenda- tions to the board of county commissioners from applications received during the process outlined in this chapter. (Revised 2/06) O 3.08.040 (4) Frior to final action by the board of county commissioners on the annual allocation of the con- servation futures fund, a duly noticed public heaz- ing will be held on the submitted applications. (5) The project sponsor will commit to provid- ing amatching contribution no less than the amount of conservation futures funds awarded to the project before conservation futures tax funds are reimbursed to that sponsor. This contribution may consist of: (a) Cash; (b) Land trades if the valuation of the land to be traded is established by a valuation arising from an appraisal generated by a Member of the Appraisal Institute (MAI) certified appraiser; (c) The cash value of the land to be traded, excluding Jefferson County conservation futures contributions; or (d) Other open spaces acquired within the previous two years that aze situated either directly adjacent to or could, in the sole discretion of the county, be directly linked to the property under application. (6) Conservation futures tax levy collections shall be deposited with the Jefferson County trea- surer in the Jefferson County conservation futures fund and shall be used for the purpose of adminis- tering, disbursing and accounting said funds in a manner authorized by the Jefferson County board of county commissioners. (7) The disbursement requests shall be made for capital projects (purchases of interests in real property) or for operation and maintenance of interests in real property purchased with conserva- tion futures tax levy monies. Capital project expen- ditures shall be deemed to include all costs of acquiring real property, including interests in real property, and the following costs: the cost of related relocation of eligible occupants, cost of appraisal, cost of appraisal review, cost of title insurance, closing costs, pro rata real estate taxes, recording fees, compensating tax, hazardous waste substances reports, directly related staff costs and related legal and administrative costs, but shall not include the cost of preparing applications for con- servation futures funds. Directly related staff costs shall not exceed five percent of the total cost of the project. Approved disbursements for operation and maintenance of interests in real property purchased with conservation futures tax levy monies shall not exceed in any particulaz year 15 percent of the con- servation futures tax levy monies raised in the pre- ceding yeaz. Operation and maintenance funding may be used for any property that has been acquired with conservation futures funds. Conser- (Revised z/os) 3-6 vation futures tax levy funds may not be used to acquire any property or interest therein through the exercise of the power of eminent domain. Conser- vation futures tax levy funds appropriated for oper- ation and maintenance of interests in real property shall not supplant or replace any existing funding for maintenance and operation of pazks and recre- ational lands. (8) If there aze unexpended project allocations, including, but not limited to, project completion at less than the estimated cost or, alternatively, the abandonment of projects, the project sponsor shall notify Jefferson County, which may reallocate the unexpended fund proceeds to an approved project scope change or to another approved project. (9) Projects carried out in whole or part with conservation futures funds shall not be transferred or conveyed to third parties unless the document or instrument reflecting the transfer of title or owner- shipreflects awritten provision or clause providing that the land or interest in land shall be continued to be used for the purposes of this chapter and in strict conformance with the uses authorized under RCW 84.34.230. However, that same written pro- vision or clause shall also contain language that the land or interest in land shall not be converted to a different use unless and only if otlter equivalent lands within the geographic jurisdiction of the gov- ernmental agency aze received by the conveying party (the grantor) in exchange for the lands or interest in lands being conveyed. This section does not prevent the grant of easements or franchises or the making of joint use agreements or other opera- tions compatible with the use of a project as pro- videdfor in this section and authorized under RCW 84.34.230. (10) Ownership of properties or easements will be held by public entities (i.e., the county, munici- pal governments, the state, or other as defined in RCW 84.34.210). Government entities may choose to shaze the title of a property or easement with a nonprofit nature conservancy corporation or asso- ciation (as defined in RCW 84.34.250), or a non- profit historic preservation corporation (as deemed in RCW 64.04.130). [Ord. I-06 § 1; Ord. 6-02 § 3] 3.08.040 Preservation criteria. Specific criteria for ranking and selection of projects aze contained in a process guidance docu- ment approved by the Jefferson County boazd of commissioners that shall be provided to the citizen oversight committee annually. These criteria will be updated from time to time to reflect the priori- AnA~HMENT ~D-a ~, Jefferson County Code 3.08.040 ties and needs of the citizens of Jefferson County. Overall, the following criteria shall guide the use of conservation futures funds: (1) Preservation of sensitive lands that have truly unique chazacteristics that will be perma- nently damaged by potential development or resource extraction; (2) Preservation or enhancement of lands that provide a variety of habitat for flora and fauna, including habitat that supports threatened or endangered species; (3) Preservation of lands that have significant regional or community bene5t; (4) Leveraging conservation futures funds with other resources; (5) Acquisitions shall be supported by strate- gies toprovide stewazdship and long-term manage- 3-6.1 (Revised 2106) j This page left intentionally blank. ATTACHMENT ~j -~ ~3 (Revised 2/06) 3-6.2 .lei2erson County Code ment of the lands through the development and implementation of a management plan; (6) Other criteria consistent with RCW 84.34.020. (Ord. 6-02 § 4] 3.08.050 Administration and oversight committee. (1) The citizen oversight committee will meet at least quarterly to review program objectives, finalize application materials, and review project submittals for recommendation to the board of county commissioners. The committee shall be comprised of no less than nine citizen members. (2) The citizen oversight committee shall be staffed by Jefferson County, or a designated sub- contractor. The staff will provide all necessary administrative, technical, and logistical support to the program. The duties include education and out- reach, committee support, technical support for project applicants, and support necessary for acqui- sition. (3) The boazd of county commissioners shall seek representation on the citizen oversight wm- mittee from a broad spectrum of interests and expertise, including at least two individuals from each board of county commissioner district. The nine citizen positions shall be 511ed, to the extenC practicable, by a person or persons representing or reflecting one or more of the following interests: parks and recreation; user groups; agriculture; for- estry; incorporated land trust or similar nonprofit conservation organization; real estate; each incor- porated city in Jefferson County. This list of "inter- ests" is not exclusive or complete and the listing of any interest here does not guazantce that interest one of [he nine citizen seats, since [here are more "interests" in existence than there are seats. (4) Once established, the terms of the members shall be four yeazs, except that at the establishment of the committee, four members shall serve a two- year term. The citizen oversight committee shall adopt rules of conduct and abide by the roles of con- duct, to include adherence to applicable statutes on issues such as conflict of interest. A chair and vice- chair may be elected from among the members. (5) The citizen oversight committee shall review program principles at least once every two years and make recommendation to the board of county commissioners for modification to the pro- gram. [Ord. 6-02 § 5] -~N6-~ 3.10.020 Chapter 3.10 LEASE D EXCISE TAX Sectiee~~s: 3.10.01 Im osed. p 3.10.020~~ ate. 3.10.030 i•~~its. 3.10.040 Ad"tii2}pistration -Col tion. 3.10.050 Exem~tipn. .10. Inspecti~~~~f„records. 3. .010 I osed. `~~, ~e is her levied aiul, shall be toll ed a leasehbl~ excise on and a ti January 1, 6, upon the (nor privi e of occu ' 'ng or using pub- licly ownedt~.eal or onal pro ' arty within the co of Jef~B};xon thr h a "leas` old interest" as de d by Sec~gn 2, ter 61, s of 1975- 76, Sec Extraorxtary scion (h fter "the State Act' ~- he tax 11 be aid, toll ed, and remitted to th ' , epartm of enue of estate of Washington . he time d in t e mann pre- scribedbySection'ftheSt Act. [Ord. 1- §1j 3.10. Rate. The of the taxi sed b CC 3.10.010 shall be sr rcen[ of the able re (as defined by Section the State Ac ~ provi that the following credi~Phall be alto in det fining the tax payable: *=y,` (1) With respect ~., leasehold r erect arising out of lease or agr ' ent, the to s of which were binds ' on the less prior to Ju 1, 1970, where such le `" or agree t has not rene- gotiated (as defin~by Sects 2 of the Sta ct) since that date, and a eluding such credit: (a) Any leaseholnterest 'sing out of any lease of property covered, by th rovisions of RCW 28B.2t•Y~ and fig`,, (b) Any ' ace or eemen including options to renew ~ ' h extend'' yon anuary 1, 1985, as follows: ,, ith re~~[o taxes in calendar year 1976, a tit equal ` 80 pert of the tax produ by the a'7ltgve rate, ~) With ro~ect to [a due i alendaz ye 1977, credit eq'ihJ' to 60 ent o e tax pr ed by above ra iii) respect _ taxes du calendar year 197 credr qual to percent a tax produced by , e abo rate, (iv) ' h res t to taxe a in calendar year 1979, a cre equal to 20 percent of the tax produced by the abo rate. 3'~~ r^ (1~viSedriioal iLJ m -+ ~ m mv~ -Ian ov-+v~o_s~<v -~ m. -o u, ~'~1c~ `' ~? o x m _; ~ m c y ~ c d o m w m~ o ~ m~ o o F~l m ~ v ~c~ u.am a c a~ :»3~~r..~,c m v`S m -: , ~ "s7 ~ ~' m m m m ro ~. 5 Q ~. o v~ ~ ~ ry~~ ~ w ~ ~ b R_ ~ x ~ a i y=~ ~~ry~ ~ ~ ~~~ ~ a ~ ~, ~ '~ ~~e '~ N ~if ~ x O ~+ n ~. N V.. ''~ tD `D ° N a~ b fA a ~ O '~ y W ~ ~ ~~ '9 b y `. ~ a a a ~, m y '~ + ~ ~ ~ ~~ ~n Cn ON1A ~ NsJ O -+ W N N W V O W Ut 4 A~ to ~f OI O p IJ A Al O t0 W --. A A ray W G A ~+.~ A A N pJ Sp p) tC O OOSO ~I Q) ~1A W A A ~#b~0 tp fT qt (p A t0 W U4. N ~-+. A A W -+ [9 O OOOPPP f0 V W o Ci N C « ~ ~ w w ~ s a N D7 ~ ~ ox A ~ n A N N O ~~ j O ~ OcO OVUw N pV~ 01 O-+ ~' W O N t0 W ... W ~ A fWD W ~. N ~ ~ WW i~71 A _O -+ W~ N A ST ~ [T W N A N v OD W ppW ~. CA s Uwwt WM1S -+ O. O~+ A IV fmql~~ !J W °'+` O ON1 A V 61 N Q CVn A iNi1. tWO O v ~. O (~JI O al ~ W M ~ O ,~ p N ~ W O A Sn N-.~NW W A f'n m.N (o ~v~i O~N O W NANA +~.. W t4lL A y ~ 'V A AO V tO •CT ~ A01A01NOt~.~ V AQ IJ' QON .+ ~ p i0 N d1 W O 10 OD A W fT V (P N~ V .P 4 W (~t p~ t0 W W "' y fA fJ~ SD tD !o ???. N 61 + ~! N W CJi .... W (C! V W 4,A Oo N 01 ~~n A. N N f~0 -~ W N tx~ O V1 A O -~ ~ -~ N to W W V V N W N _c~Lf U l m N m A (WO SS~ y V V fD A W A ~~OayytO rNr~~ A t8 iJ J 03 ~:h ~ .fa fD i0 C4 O V ~ Q `~' ~ O 'm~V 61:0 AN VO~g1 tAO QNl~tO~O N. W V N ~ A ^. ATfACHMEN~ ~'` ~1 ____. 6~ r JEFFEItSONLAND TR[ISTANDSUBSIDIARY Cansottdated Statement of Cash Flows Far the Year Ended December .3I,, 2Q11 (With Comparative Totals for 201 ttj 2011 201{! Cash Flows from Operating Activities: Change in net assets $ 78,941 $' 162,117 Adjustments to reconcile change in net assets to net cash provided by operating activities- Depreciation 2,099 1,333 Imputed interest expense 36,400 13ealized and unrealized gain an investments ':5,487 (16x930) Write down of land value due to conservation easement 24,999 Donated stocks received (32,735) Danatedlandreceived (20;040) Pledge of donated land (15,000) Changes in assets and liabilities;: Accounts receiveble 24,452 22,746 Pledges receivable 29;804 (37,211) Prepaid expenses 668 2 683 Accounts'payable {2$,864) 20.475 Acarued expenses and deferred revenue 1,338 2,574. Net Cash Provided byOperating Activities 74,169 iS3,7S3 Casfi Flows from Investing Activities: Purahases of investments (239,>957) (181,925) Proceeds from sale of investments 119,995 221,887 Proceeds from note receivable 3,251 Purchases of land and land purchase option (174,186) {208,291) Proceeds from sale of land 308,T60 Sale of purchase options 52,500 Purchases of fumiEure and equipment _ (7,647) (3,243) Nat Gash Provided (Used) by Investing Aativities 62,716' (171,572) Cash Flows from Financing Activities: Payments on long-term debt (213,024} (5,229) Net Cash Used by Financing Activities (213,024) (5,229) Net:Ghange in Cash and Cash Equivalents. X76,135) 16,992 Cash balance, beginning of year 360;332 343,340 Cash Balance, End of Year $ 284,1 $ 360,332 Supplemental Disclosure of Cash Flow Information: Cash paid for interest $ 18,367 $ 23;151 See accompanyingnores. y~~' 1~~A~~` ~~ ~y V ~ ~ H l t ' II /r JEFFERSON LAND TRUSTAND SUBSIDIARY Consntidated Statement of Financial Position December 31, 20i1 (1Yith G'amparatiue TotrtLs for 2#Ii0} 2011 201t7 Assets Cash and equivalents $ 284,193 $ 360.332 Investments (Note 2) 459,277 312,047' Recounts receivable 51;840 76,292 Pledges receivable (Note 3} 484,224 499,028 Note receivable (Note 4) 81.;803 $5,054. Prepaid expenses. 1,879 2,347 Land, conservation easements, and purchase options- Habitat land 860,437 546,491 Working land 25,048 25,048 Open space land 256,332 176,094 Conservation easements q7 4;,y Land. held for sale 600;000 933,760 Lantl purchase option 52,500 Total land, conservation easements, and purchase options (NOt~5) 1,544,864 1,733,937 Furniture and equipment, net of depreciation of $12,996 {2010 - $10,897} 11,671 fi,123 Total Assets $ 2,916,551 $ 3;075,160 Liabilities and Net Assets: Accounts payable $ 8;863 $ 34,727 Accrued expenses and deferred revenue.. 49,676 48;338 Purchase option received 120,000 120,000 Long-term debt (Note 6) 444,000 657;024 Total Liabilities 822;539 860;089 Net Assets: Unrestricted (Note 9j- Undesignated 1$0,220 (130,320) t3aard designated 1,421,864 1,561,437 Total unrestricted net assets 1,602,084 1,431,117 Temporarily restnoted {Note 10) 660;932 763,728 Permanentiyrestric#ed(Note11) 30996 20,226 TotatNetAssets 2,294,012 2,215,071 Totat tiabltities and Net Assets $ 2,31':8,551 $ 5,075,160 5'eeaccompanyingnriYes. A1T~HMENT ~-C ~~ ?; Juelanne Dalzell JEFFERSON COiJNTY PROSECUTING ATTORNEY Guurthouse - P.O. Box 1220 Port Townsend, Washington 9836$ Telephone (360) 385-9180. FAX. (360) 385-0073 Jill Landes, Deputy Prosecutor Michael Haas, Deputy Prosecutor .David W. Alvarez, beputy Prosecutor Tracey L: Lassos, Aeputy ProsecutaY Lianne Perron-Kossow,'Victim Witness Advocate MEM©RANDUM TO: County Commissioners County Administrator Dave Christensen, Natural Resources FRAM: David Alvarez, Chief Civil. Deputy Prosecuting Attorney DATE: 7uly 9, 2002 RE: Conservation Future Fun€l Citizen Oversight Committee The Conservation Futures Fund (or "CFF"), because it receives money from a dedicated real property tax collected byths County at an approximate rate of $6 per $100,000 in assessed value,, has a guaranteed income stream of about $1 SQ000 annually. But Who will determine how that money is spent? While that decision ultimately rests with the County Commission in its role as the County's legislature, the County Commission has chosen to delegate`the responsibility of recanunending which. projects should obtain CFF monies to an advisory board. The advisory board will be called the "Conservation Futures Fund Citizen Oversight Committee," or CFFCOC. This County has an excellent opportunity to describe and delineate-the ground rules for the. CFFCOC before that advisory board meets or makes a single decision.. This memo will attempt to answer BEFOREHAND some of the procedural and substantive questions that arise'when a neW advisory board such as the CFFCOC is created. r~ Who will. serve an the CFFCOC and how will they be appointed? The CFFCOC will have nine members chosen and nominated by the County Commission; which has an: obligation to `seek representation on the citizen oversight committee from a broad spectrum of interests and expertise," according to §5.3 ofthe CFF Ordinance. Each Commissioner's District has to be represented by at leasttwo members on the CFFCOC. Additionally, the nine members should represent or reflect various interest goups or organizations, e.g., parks & recreation, user groups, agriculture, forestry, the incorporated Land trust or similar not-for-profit entity; real estate agents'and the incorporated city found in this county. IVo interest group is automatically and permanently entitled to one of the nine seats according to §5.3 ofthe Ordinance. What are the primary functions of the CFFCOC? I see three main fiutcfians. They are 1) establish grading and prioritizing principles that will be used to evaluate proposals, principles that must also mesh with the six preservation criteria outlined in §4 of the proposed Ordinance, 2) once the principles are in place determine which applications are worthy and 3) every two years; pursuant to §5.5 of the Ordinance, "review program principles ... and make recommendation to the BoCC"regarding those program principles. Cau the GFFCOC establish its own procedural.. rules'? Yes it must do so; including in such rules, if:t wishes, the election of a chair and vice-chair. Forexample, the CFFCQC will need to decide if it intends to operate on a consensus model or majority model. In other words, will. an action of the CFFCOC need to be unanirnausly approved by all present or only,a majority of those members present? Alternatively, of course, the CFFCOC could determine that when it comes to deciding which projects are worthy taf CFF monies, any project needs asuper-majority approval, perhaps 6 or 7 affirmative votes. Which procedural rules found in state law are applicable to the CFFCOC?' The Open Public Meetings Act, codified at Ch. 42.30 RCW, and the public Disclosure Act, codified at Ch. 42.17. RCW are both applicable to the meetings held and documents generated by the CFFCOC. Why? Because the CFFCOC will be accepting testimony,, deciding. and eventually recommending how public funds, i.e., a dedicated real property tax, are.to be spent, decisions-it makes are `actions' as that teen of art is defined in the Open Public Meetings. Act. Furthermore, because it is asub-agency of the County created: pursuant to state enabling legislation and asubsequently-enacted County Ordinance, the CFFCOC is "subagency" as that tern? of art is defined in the Open Public Meetings Act:. All of the above-listed logic makes it also subject to the Public Disclosure Act; which, as a general rule, requires that any public agency or sub-agency such as the CFFCOC make available to the public, when requested, copos of documents it has generated and/or reviewed whi e making its decisions. MEND - B ~9 If the goal is to insure that the system used to distribute this money is not tainted with accusations that it favors insiders or arrives at decisions arbitrarily, what can the County do to assure an even-handed and open. process is used to distribute CFF monies? The County can take several affirmative steps to assure that the process established and. used is fair to all concerned. • Establish and publicize before:a`single decision is made or a single meeting held a set of written rules that will lead to decisions that were fairly arrived at. • Implementsomglahce with the Open Public Ivleetings Act and the Public Disclosure Act, if requests are made by citizens for `public records,' which will keep this process honest and transparent. • County staff assigned to work with and for the CFFCOC'will need to have a heightened awareness of any possible conflicts of interest which might arise for a CFFCOC member as well as other acts or omissions that might taint or appear to taint the fairness of the process. • Most importantly, the members of the CFFCOC will have to be SELF- REGULATING, that is to say the CFFC(}C members will have to be fortlu7ghi about affttmatively declaring, when appropriate;. that they may not be an unbiased decision maker because, for example, they might stand to gain financially if a certain project is fimded. What would assist a CFFC4C member who chooses to act in as ethical manner? Strong language that should be instructivein providing guidance for CFFCOC member is found in the "Code of Ethics for Municipal Officers-Contract Interests," specifically at ItCW 42.23,030, which states, inpart: "No municipal o##icer shall be bens#icially interested, directly or indirectly, in any contract which may be made by, through or under the supen+isan of such officer, in whale or in part, ar which may be made for tMe bertefit of his or her,office, or accep#, directly or indirectly,. any compensation, gratuity or reward in connection with such contract from any other person bene#icially interested therein:" This section is partcolarly pertinent because. the CFFCOC will be reviewing many projects that will require the County to enter into contractsfor professional services and the purchasing. of real property. The definition of "municipal. officer" found at RCW 42.23.020(2),. would include a member of the CFFCOC. An "interest" in a contract is deemed to be a "remote interest," i.e., the type of interest that while it exists does NOT lead to the presumption that a conflict of interest exists, in certain statutory circumstances laid out in RCW 42.23.034. Typical of a `remote irterest' is the interest of a volunteer far anon-profit, or the interest of a paid employee of anon-profit whose salary is "f xed wages or salary;" and thus, will not, presumably see an increased salaryif his,employer ~~ ENS 8-C wins the contract, E~~ g"~ ~l Is there a one sentence deTinition that explains what is meant by the phrase "conflict of interest?" Yes. If a person an any board or agency takes an action based on what benefits him or her financially, then there is potentially a conflict of interest because that person has in theory put his or her own interest(s) before the broad, general interest(s) of the entire. citizenry. That decision presumably reflects a bias. What is the difference beiween a `conflict of interest' as opposed to an "appearance: of fairness" problem? The major difference is that the appearance of fairness doctrine, now codified as part of state ]aw at Ch. 42,35 RCW, only applies in circumstances where the decision aboutto be reached by a board such as the CFFCOC is "quasi-judicial" in nature, rather than "legislative." Note that Ch. 92.36 only applies to land use decisions, but provides the most analogous set of rules. What do the terms "quasi-judicial" and "legislative" mean in the context of the CFFCOC? The distinction between the two is that broad public policy declaratiotzs' are legislative in nature, while applying that policy to a particular s#uation through hearing, findings, and Creating a record is aquasi-judicial proceeding. Thus, in the context of CFFCOC, the act of establishing the grading and prioritizing principles that will be used to evaluate the worthiness ofproposals, principles that must also mesh with the six preservation criteria outlined in §4 of the Ordinance AS WELL AS the review and analysis every two years, pursuant to §5.5 of the Ordinance, of the program principles would be legislative actions not subject to the."appearance of fairness" doctrine.. Conversely, deciding which applications will be funded, because then the CFFCOC would be dealing with each application individitally and each application would face a"yea or nay" decision of the CFFCOC, would be quasi- judicial. in nature. What is the public policy or reason for applying the "appearance of'fairness" doe#rine in those circumstances which are or could 6e deemed "quasi-judicial?" In the quasi judicial setting,... the appearance of fairness doctrine holds that the decision-maker; i.e., the CFFCOC member, must not have conflicting interests or preconceived views on a project or application. This ensures that {1) thee. decision is made solely based upon the'record before the decision-maker, (2) the decision-maker has no entangling alliances that would make it appear that he or she might. favor one side over the other, and (3) the proceedings are conducted in a rttanner that appears fair.. In other words was the hearing not only. fair in substance but also fair in appearance? ~~;HMENT - ~ ~2 Is there a method that can be used where someone who might have an "Appearance of Fafroess" problem can lay their cards nn the table and therefore eradicate the appearance of unfairness or bias? Yes, Before any hearing where quasi judicial decisions are to be made by the CFFCOC, the following questions should be asked out loud and on the record with respect to each DISTINCT application or proposal then before the cFFCOC: In order to obtain and maintain the appearance of fairness in this deci ion-making process, :the CFFCOC wishes to know if anyone in the audience who objects to the participation of any particular CFFCOC member in this decision-making process, and, if so, to state the reasons for that objection... If someone objects, then the CFFtrOC person whose objectivity is questioned must deternune if they should recuse themselves. Votes should not betaken on whether or not the member should recuse himself or herself because that can. only lead to "ganging up" and divisiveness. The presumption should always-be that the GFFCCIG member should recuse himself or herself to preserve the legality and fairness of the decision that is finally reached. Ultimately, however, the decision on recusal rests enfrely with the. CFFCOC member whose objectivity has been questioned. A CFFCOC member who does not recuse himself or herself,. but should have done so, risks having the entire decision invalidated later. Assuming no one from the audience objects to the participation of any particular CFFCOC member,. then who# occurs next? After asking for objections from the audience, then the CFFCt7C members should be asked these questions with respect to each-DISTINCT application or proposal: Do you, as a member of the CFFC4C, stand to gain or lose. any financial benefit as a result of the outcome of this hearing? Are you, as a CFFCOC member, unable to hear and consider this proposal or application in a "fair-and objective manner, i.e., without bias. and without a predisposition to any particular result regarding this proposal ox application? Have you, as a CFFCOC member, engaged in any communication outside this hearing with either a proponent or opponent of this particular proposal or application? If any CFFCOC member has to answer "yes" to the. first or second of these questions, then they must say so out loud, explain why hey have answered "yes," E1ND MUST IMMEI)IATELEY RECIJ5E themselves from any debate .., or deliberation regarding that proposal. Recall that ifa CFFCOC member holds what is deemed a `remote interest' by state law, then that CFFCOC member need not reply "yes" to the first question listed above. A reply of "yes" to the third question listed above must then lead to tihe CFFCOC member describing the substance and facts-regazding that outside conversation, e.g., what was said by whom: The occurrence. of an_outside conversation. daes not mean that the CFFGOC member must recuse himself or herself Iri the context of a land use decision this type of "appeazance offairness" problem can be eradicated if it is publicly stated at the meeting not. only the substance of the outside conversation BITT ALSO that the person or persons who were disadvantaged bynot being present at.the outside conversation will have :the opportunity to rebuf what was sazd ar argued during that outside.. conversation. In other words, "I've heard one side in private, so now I must offer the other side the opportunity to present their arguments." If this is done and the opportunity to rebut is truly provided, then the CFFCOC member answering "yes" to the third question, need NOT recuse himself or herself. Again, this is usne the rules applicable to' land use decisions analoay. As analogies go, it is not a perfect fit, but it is what we have. It is true that the need to provide this rebuttal opportunity to those persons or party disadvantaged by the outside conversation could cause a delay in the decision-making process from one hearing to the next. hearing, since the occurrence of the :outside conversation may come as a surprise to the disadvantaged, who might not even. be present at the first hearing. What steps does a CF'FCOC member take to recuse themselves? If it appears that the CFFCOC member cannot meet the ideal established by the appearance of fairness doctrine or that the:rebuttal"opportunity listed above won't or can't be provided, then any CFFCOC member who chooses to recuse himself or herself must also leave the room to prevent his or her non-verbal participation in the deliberaton or decision. The CFFCOC mentiber who should have recused himself or herself but does not risks seeing. a decision they had hoped for invalidated. So a CFFCOC member who has recused himself or-herselfean still. gain financially from a contract or decision he other CFFCOC members have made? Yes, it is absolutely true that the. recused member might theoretically gain from a decision the remaining members of the CFFCOC have made. But because the. recused CFFCOCmember did not have any `say' in the decision and did not influence the votes of others who did make the.decision, he or she has `clean. hands,' and is entitled to act. on that contract approved by others -~ _: ~ s . ~ But won't the "legislative" process of establishing the grading and prioritizing principles greafly shape. aad perhaps be a determining factor when the CFFCOC begins to decide which projects. are the worthiest and thus deserving of funding from GFF monies_and doesn't that imply that the County should be more worried about GFFC(?C members acting tram their own individual biases during'that legislative process rather than during the process of dealing with individual applications? While the question is quite valid, there are several responses to this question. Initially, note the daeument that establishes the grading and prioritizing principles will be well "worked :over," first. by staff, then by the CFFCOC and, finally, by the County Commission in their role as tte County's legislators. Thus, the biases, if any,. of GFFCOC members will come out in the wash Secondly, recall. that the final decision rests with the County legislators and they have a broad range of discretion to determine how the money will be spent in order to implement ttte goal. (save and preserve open space) established in the RCW. The County Commissioners have broad discretion in that regard. and their decisions would be hard to successfully challenge in a court of law if their decisions in this regard are even rernotely like the criteria laid out in §4 of the proposed Ordinance. Thirdly, whatever is decided with respect to grading and prioritizing the worthiness of applications or proposals will be up for review not less than frequently than every other year, further suggesting #hat the process will be reiterative, open. and resistant to favoritism. Fourthly, at least. in the context of land use decisions, the "appearance of fairness" doctrine simply does not apply to legislative decisions because. legislative-type decisionsare wide-ranging policy decisions and it is human nature and desirable to bring one's biases to bear when making policy decisions. Thus, this question should not be worrisome: Any questions? lam at-extension 219. David Alvarez Chief Civi] Deputy Prosecuting Attorney $-~ ~5 From: David Alvarez Sent: Wednesday, December 2g', 2004 1:41 PM To- Tami Pokorny Subject: RE: Conservatlon Futures Thank you for ttie calendar, dt helps me'to know what will be going on when. See my responses below do RED to yatir questions. From; Tami Pokorny Sent: Wednesday, December 29, 200412:44 PP1 To: David Alvarez Subject Conservation Futures Hi David:; The Conservation Futures Committee asked me to providelinquire about the following: 1. Do you have any comments/changes regarding the following language for a fourth recusaf question to be asked oF`Corrservation Futures members: "Da you certify that you have attentled the project presentation and either attended the site visit or viewed the official videotape?"' Such a statemont is fi and- would be hne as a fourth recusal question. 2. If appropriate, would you please amend the Juiy 13, ~002`merno to include this fourth question? ft gets messy if one attempts to amend an earlier memo. The best way to handle this would be far you to rely an this a-mail response as my written direction to you and the CF Committee that the fourth question (as listed above) should be asketl. i will attach a copy of this e ~maii exchange to my copy of the memo dated 7/8(02 so that I know that. a fourth question was added. You may want to do the same thing. 3. Sarah Spaeth asked me to inquire whether or npt he Jefferson Land Trust is a "stakeholder" -- by that l think she's asking if Jt.T could be allowed a permanent presence. on the Conservation Futures Committee: Tha answer to this question Ties m the text of ine Ordinance. titan 5.3 on page 6 states that the CF Committee should nave equal representation from the three GommissionarDistnots. The Ordinance a9sa.states the CF Committee membership should rapt :ant vari s interests but specifically states that none of the interest groups or categories of interest groups is guaranteed one of the nine citizen seats, since there era more"intarests" in existence than available seats. Also, the Committee asked ma to provide you with the attached 200b funding round calendar. Thanks far the heads-up. Thanks, Tami «File: GFF Calendar Condensed 2405.doc» L C N RI O 7' 0 T O a ,y `G ~ < o D • o < m m m Z ~a ~ 0 m w ~ z 0 ~ ®o ~ ~ c y ry A A A A A~ A A A N N N ~O ID ~O ~D (O tp N N N W O~ m Y a N N N N N N N N N A A A Z W~ O r r r r .~ ~"~ .a r ..a r O N N N N N A N N N N N et N N ~ N N N N N N N N N bl Q> W Co w Oo Of w W m V V V 0 N N I~ 13 N N 13 N f3 13 1~3 13 D "' RRR O O O O O O O O O O O O N N N ~ ` J(~~ N N N+ -+ + 0 0 0 AI ((,~JJ V U, fn A A 01 V A N N fT O W V O O O V O N O O N 0 C O V O N O O O N O 0 0 0 0 0 V O O O O O V O 0 0 0 0 0 ~# N N N N N N<<<~~# 0 0 0 0 0 o r r r -. Z N N N N N O~~~ T p W L + S + S< o o~ Z C A ~ N N N N N r ~' 00000 ?~~ ~ C7 3 3 3 3 3 3 3 A # 3 D 3~ ~ A i ~ o 0 n ~ ' n T Q QJ (A T f ~ ~p N N N , A Z Z C A~ Z C A o 0 0 ' r O Z~ O~ z 3 O o o o ~ A A m ~ v O z T O O O ~ m ~ y~< m z z< m z w w v, m~ O Q p m~ p 3~ 3 O Z r A A O ~ ~ 0 y Gc b ii O W O m o O O G° 77 m O r A Z C ~l j ~< m w ? 0 y A ~ O Z~ p~ O m O~~ sA O A ~ v A + O N~ ~ N ~+ m .~0 1 O ti O N~ + A p< 0 2 o 3 r N N 7J T m m N O '~ A 0 7J w w w w w w w w w w w w 0 0 0 0 0 0 0 0 0 0 0 0 m a a a a m m m w a w m 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 D 0 0 0 0 0 0 0 0 0 0 0 0 n c(~pT (l~ Ur tNtpp N U~ tNtpp ttUpp~ (T ~(~ppT Ut (T A A C A A C~ 0 A A A A A A d W W w W W W W W W W W W tp <p tD [O ~p tp <O t0 tp [O ~D tp C A T OI O O OI m T W A T O~ Z ,,,) 0 0 0 0 0 0 0 0 0 0 0 0 ~~~~~~~~~~~~ ~ . ~1TAHMEN~ N~JV ~ ~~ STATE OF WASHINGTON County of Jefferson Dedication of Conservation Futures Funds to the } Duckabush Floodplain project as Authorized by } and in Accordance with Jefferson County Code } RESOLUTION NO. Section 3.08.030(7) to Provide a System of Public } Open Spaces } WHEREAS, conservation futures tax levy collections, authorized under RCW 84.34.230 are an important means of retaining community charactenand accomplishing the open space policies and objectives of the Jefferson County Comprehensive Plan that encourage the coordinated acquisition of key open space lands for long-term protection; and WHEREAS, Jefferson County is authorized by RCW 84.34.210 and 84.34.220 to acquire open space land, agricultural and timber lands as defined in RCW 84.34.220; and WHEREAS, the Conservation Futures Citizen Oversight Committee has reviewed project applications for 2013 and made its funding recommendations to the Board of County Commissioners in accordance with Jefferson County Code Chapter 3.08; and WHEREAS, under the provisions of the Jefferson County Conservation Futures Program, the Jefferson Land Trust, as project sponsor;. requests funding towards the protection of up to 37.1 acres of floodplain and associated uplands in Sec. 17 T. 25N, R. 2 W with Assessor's Parcel Numbers 502171004, 502171012 through the fee-simple acquisition and Assessor's Parcel Numbers 502171006, 502171005, and 502172005 through the purchase of a conservation easement; and WHEREAS, the County retains enough developable land to accommodate the Duckabush Floodplain project as well as the housing and employment growth that it is expected to receive, thus satisfying the requirements of Chapter 449, Laws of 2005; and WHEREAS, Jefferson County considers it in the best public interest to contribute financially to this open space project. NOW, THEREFORE BE IT RESOLVED that: Jefferson County hereby dedicates up to $5,000 in conservation futures funds in the 2013 funding cycle for acquisition expenses contingent on a matching contribution to be contributed by Jefferson County of ninety-nine percent (99%) of the total project cost. Resolution No. re: Dedication of Conservation Futures Funds to the Duckabush Floodplain project 2. This dedication of funding may be nullified if a submittal for reimbursement, accompanied by documentation of matching funds sufficient to complete the acquisition, is not received from the sponsor within three years of the signing of this resolution. APPROVED AND ADOPTED this Washington. SEAL: ATTEST: day of .2013 in Port Townsend, JEFFERSON COUNTY BOARD OF COMMISSIONERS John Austin, Chair Phil Johnson. Member Clerk of the Board David Sullivan, Member STATE OF WASHINGTON County of Jefferson Dedication of Conservation Futures Funds to the } Short Family Farm project as Authorized by and } in Accordance with Jefferson County Code } RESOLUTION NO. Section 3.08.030(7) to Provide a System of Public } Open Spaces } WHEREAS, conservation futures tax levy collections, authorized under RCW 84.34.230 are an important means of retaining community character and accomplishing the open space policies and objectives of the Jefferson County Comprehensive Plan that encourage the coordinated acquisition of key open space lands for long-Term protection; and WHEREAS, Jefferson County is authorized by RCW 84.34.210 and 84.34.220 to acquire open space land, agricultural and timber lands as defined in RCW 84.34.220; and WHEREAS, the Conservation Futures Citizen Oversight Committee has reviewed project applications for 2013 and made its. funding recommendations to the Board of County Commissioners in accordance with Jefferson County Code Chapter 3.08; and WHEREAS, under the provisions of the Jefferson County Conservation Futures Program, the Jefferson Land Trust, as project sponsor, requests funding towards the protection of up to 256 acres of farmland in Sec. 23 T. 29N, R. 1 W with Assessor's Parcel Numbers 901233002, 901233005, 907233008, 9012}3010, 901233011, 90122400], 901262002, 901262003 through the purchase of a conservation easement; and WHEREAS, the. County retains enough developable land to accommodate the Short Family Farm groject as well as the housing and employment growth that it is expected to receive, thus satisfying the requirements of Chapter 449, Laws of 2005; and WHEREAS, Jefferson County considers it in the best public interest to contribute financially to this open spape project. NOW, THEREFORE BE IT RESOLVED that: Jefferson County hereby dedicates up to $43,500 in conservation futures funds in the 2013 funding cycle for acquisition expenses contingent on a matching contribution of ninety-five percent (95%) of the total project cost. Resolution No. re: Dedication of Conservation Futures Funds to the Short Family Farm project 2. This dedication of funding may be nullified if a submittal for reimbursement, accompanied by documentation of matching funds sufficient to complete the acquisition, is not received from the sponsor within three years of the signing of this resolution. APPROVED AND ADOPTED this Washington. SEAL: ATTEST: day of 2013 in Port Townsend, JEFFERSON COUNTY $OARD OF COMMISSIONERS John Austin;: Chair Clerk of the Board Phil Johnson; Member David Sullivan, Member STATE OF WASHINGTON County of Jefferson Dedication of Conservation Futures Funds to the } Tarboo Forest Conservation -Phase II project as } Authorized by and in Accordance with Jefferson } RESOLUTION NO. County Code Section 3.08.030(7) to Provide a } System of Public Open Spaces } WHEREAS, conservation futures tax levy collections, authorized under RCW 84.34.230 are an important means of retaining community charactefand accomplishing the open space policies and objectives of the Jefferson County Comprehensive Plan that encourage the coordinated acquisition of key open space lands for long-teen protection; and:. WHEREAS, Jefferson County is authorized by RCW 84.34.210 and 84.34.220 to acquire open space land, agricultural and timber lands as defined ih RCW 84.34:220; and WHEREAS, the Conservation Futures Citizeml?versight Committee has reviewed project applications for 2013 and made its funding>recommendations to the Board of County Commissioners in accordance with Jefferson Count}~Gpde Chapter 3.08; and WHEREAS, underthe provisions of the Jefferson County Conservation Futures Program, the Jefferson Land Trust, asproject sponsor; requests funding towards the protection of up to 17 8 acres of forest land in Sec. 28, 29;'and 31 T. 28N, R. 1 W with Assessor's Parcel Numbers 801321016 and 801291002 through theacquisition of two conservation easements; and WHEREAS the County retains enough developable land to accommodate the Tarboo Forest Conservation -Phase ILproject as well as the housing and employment growth that it is expected to receive, thus satisfying the requirements of Chapter 449, Laws of 2005; and WHEREAS, Jefferson County considers itin the best public interest to contribute financially to this open space project. NOW, THEREFORE BE IT RESOL VED that: Jefferson County hereby dedicates up to $83,500 in conservation futures funds in the 2013 funding cycle and $83,500 in conservation futures funds in the 2014 funding cycle for acquisition expenses contingent on a matching contribution of fifty-six percent (56%) of the total project cost. Resolution No. re: Dedication of Conservation Futures Funds to the Tarboo Forest Conservation -Phase II project 2. This dedication of funding may be nullified if a submittal for reimbursement, accompanied by documentation of matching funds sufficient to complete the acquisition, is not received from the sponsor within three years of the signing of this resolution. APPROVED AND ADOPTED this _ day of , 207 3 in Port Townsend, Washington. SEAL: JEFFERSON COUNTY BOARD OF COMMISSIONERS John Austin, Chair ATTEST: Phil Johnson; Member Clerk of the Boazd David Sullivan, Member STATE OF WASHINGTON County of Jefferson Dedication of Conservation Futures Funds to the } Winona Basin -Bloedel II project as Authorized } by and in Accordance with Jefferson County Code } RESOLUTION NO. Section 3.08.030(7) to Provide a System of Public } Open Spaces } WHEREAS, conservation futures tax levy collections, authorized under RCW 8434.230 are an important means of retaining community character and accomplishing the open space policies and objectives of the Jefferson County Comprehensive Plan that encourage the coordinated acquisition of key open space lands for long-term protection; and" WHEREAS, Jefferson County is authorized by RCW 8434.210 and 8434.220 to acquire open space land, agricultural and timber lands as defined in RCW 8434.220; and WHEREAS, the Conservation Futures Citizen Oversight Committee has reviewed project applications for 2013 and made its funding; recommendations to the Board of County Commissioners in accordance with Jefferson County Code Chapter 3.08; and WHEREAS, under the provisions Qf the Jefferson County Conservation Futures Program, the Jefferson Land Trust, as project sponsor, 7equests funding towards the protection of up to twenty-two parcels of forested land in Sec. 23 T. 31N, R. 1 W with Assessor's Parcel Numbers 951902301, 951902201, 95 1 9023 03„and 951901804 through the purchase of a conservation easement; and WHEREAS, the County retains enough developable land to accommodate the Winona Basin -Bloedel II project as well as the housing and employment growth that it is expected to receive, thus satisfying the requirements of Chapter 449, Laws of 2005; and WHEREAS, Jefferson County considers it in the best public interest to contribute financially to this open space project: NOW, THEREFORE BE IT RESOLVED that: 1. Jefferson County hereby dedicates up to $80,000 in conservation futures funds in the 2013 funding cycle for acquisition expenses contingent on a matching contribution of sixty-six percent (66%) of the total project cost. Resolution No. re: Dedication of Conservation Futures Funds to the Winona Basin - Bloedel Il project 2. This dedication of funding may be nullified if a submittal for reimbursement, accompanied by documentation of matching funds sufficient to complete the acquisition, is not received from the sponsor within three years of the signing of this resolution. APPROVED AND ADOPTED this _ day of Washington. SEAL: 2013 in Port Townsend, JEFFERSON COUNTY `BOARD OF COMMISSIONERS John Austin, Chair ATTEST: Phil Johnson, Member Clerk of the Board David Sullivan, Member