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HomeMy WebLinkAboutM062413CO 0O District No. 1 Commissioner: Phil Johnson District No. 2 Commissioner: David W. Sullivan District No. 3 Commissioner: John Austin County Administrator: Philip Morley Clerk of the Board: Erin Lundgren MINUTES Week of June 24, 2013 Chairman John Austin called the meeting to order at the appointed time in the presence of Commissioner David Sullivan and Commissioner Phil Johnson. PUBLIC COMMENT PERIOD: The following is a summary of comments made by citizens in attendance at the meeting and reflect their personal opinions: • 7 citizens stated they believe a Home -Rule Charter style of government would be beneficial to Jefferson County; • A citizen mentioned he believed the arguments for having a Home Rule Charter style of government are good, but he is worried there will be a lack of participation; • A citizen stated 1) Interest rates are going up sharply; and 2) Yellow gold is selling better than paper gold on Wall Street; and • A citizen commented that he is unhappy with the public records process to obtain audio of the Board of County Commissioner (BOCC) meetings. He urged the Commissioners to make meetings viewable via a live broadcast on the internet. APPROVAL AND ADOPTION OF THE CONSENT AGENDA: Commissioner Sullivan moved to approve all the items on the Consent Agenda as presented. Commissioner Johnson seconded the motion which carried by a unanimous vote. 1. HEARING NOTICE re: Proposed Water System Franchise; Located within Jefferson County Water Service Areas; Walter Moa, Moa -Tel Water System; Hearing scheduled for Monday, July 13, 2013 at 10:30 a.m. in the Commissioners Chambers 2. RESOLUTION NO. 22-13 re: Declaring Jefferson County Burning Ban on Open Debris Burning other Than Recreational Fires for the 2013 Fire Season 3. AGREEMENT, Change Order No. 1 re: Alder Creek Tributary Culvert Replacement; In the Amount of $9,013.48; Jefferson County Public Works; Seton Construction 4. AGREEMENT NO. 13 -65400 -007 re: 2013 Community Development Block Grant (CDBG) Public Services Grant for Olympic Community Action Programs (OlyCAP); In the Amount of $97,729; Jefferson County Administrator; Washington State Department of Commerce 5. AGREEMENT, Subrecipient re: 2013 Community Development Block Grant (CDBG) Public Services Grant; In the Amount of $94,729; Jefferson County Administrator; Olympic Community Action Program (OlyCAP) 6. AGREEMENT, Amendment No. 1 re: Funding to Support North Pacific Coast Marine Resources Committee (NPC MRC); Additional Amount of $1,525 for a Total of $78,525; Jefferson County Public Health; Washington State Department of Fish and Wildlife (WDFW) Page 1 Commissioners Meeting Minutes of June 24, 2013 Y 0 7. AGREEMENT, Amendment No. 1 re: Expansion of Natural Resources Senior Culminating Projects to the Quileute Valley School for North Pacific Coast Marine Resources Committee (NPC MRC); Additional Amount of $1,525, Total Not to Exceed $2,647; Jefferson County Public Health; Port Angeles School District 8. AGREEMENT re: Waiver of Liability for Knotweed Control; No Dollar Amount; Jefferson County Public Health; Hood Canal Salmon Enhancement Group 9. AGREEMENT, Amendment No. 2 re: Public Defense Agreement, State v. Pierce 09- 1- 00058- 7; In the Amount of $7,717 per Month, Except During Sentencing Phase Amount is $4,630.20, not to Exceed $61,736; Jefferson County Administrator; Jefferson Associated Counsel 10. Letter of Support re: Redevelopment of Mt. Angeles View (MAV) Public Housing Development; Peninsula Housing Authority 11. Payment of Jefferson County Vouchers/Warrants Dated June 17, 2013 Totaling $858,150.12 and Dated June 18, 2013 Totaling $4,018.55 12. Payment of Jefferson County A/P Warrants Done by Payroll Dated May 6, 2013 Totaling $124,124.08 COMMISSIONERS BRIEFING SESSION: The Commissioners each provided updates on the following items: Chairman Austin - Spoke with Senator Murray's staff last week and discussed the impact of the ferry system here in Jefferson County. Commissioner Sullivan - Toured Clallam County's transportation projects with the Peninsula Regional Transportation Planning Organization (PRTPO) last week. - American Farmland Trust was in Jefferson County last week. They are helping local farmers with land use policies and other issues. Commissioner Johnson - Attended the viewing of "Salmon Confidential" at the Rose Theatre last week. RESOLUTIONNO. 23 -13 re: HEARING NOTICE: Proposed Formation of a Park & Recreation District Located within the Master Planned Resort of Port Ludlow; Hearing scheduled for Monday, July 15, 2013 at 11:00 a.m. in the Commissioners Chambers. County Administrator Philip Morley addressed the issues and reasoning behind not approving the Resolution at last week's Board of County Commissioners' meeting. He also gave a timeline for what is required for the proposed formation of the Park and Recreation District. Commissioner Sullivan moved to approve Resolution 23 -13. Commissioner Johnson seconded the motion which carried by a unanimous vote. HEARING re: 2013 Conservation Futures Projects: Environmental Health Specialist Tami Pokorny introduced the Chair of Conservations Futures Oversight Committee (CFOC) Richard Jahnke who delivered the committee's funding recommendations. The goal of Conservations Futures is Page 2 Commissioners Meeting Minutes of June 24, 2013 n µp.e. to preserve and protect the County's open space resources from development and from being negatively and permanently affected. CFOC Chair Jahnke stated they received 4 applications for funding: 1) Duckabush F000dplain, $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 a conservation easement on 15.2 acres and 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 $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 11, $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. 4) Winona Basin — Bloedel Il, $80,000 towards the fee - simple acquisition of 22 city lots consisting of wildlife habitat within the Fowler's 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. CFOC Chair Jahnke added that the total combined funding request is $295,000 which exceed the amount of available project funding which is $220,000. He stated that the ranking for these applications was held April 30, 2013. Due to Jefferson Land 'Trust (JLT) being a sponsor for all the projects, Sarah Spathe of JLT recused herself, and was not present at the meeting. He stated that at the beginning of the aforementioned meeting, committee member Raven had presented a letter listing a variety of concerns pertaining to the Conservation Futures Program Policies and Processes. He stated the issues were discussed at length by all committee members who decided that staff should submit a letter to the County's attorney to determine how they should proceed. (A copy of their meeting minutes, committee member Raven's letter and the County's response to Raven's letter were included in the packet turned in by the CFOC.) CFOC Chair Jahnke also noted that committee member Raven, chose to abstain from scoring the project proposals, but the scoring conducted by the other 10 members were subsequently discussed. During the discussion, the members reiterated that their ranking is advisory only, but nevertheless made their recommendation subject to the County's response to the issues that were raised. As a result of that meeting, the applicants were ranked as follows: Page 3 ECommissioners Meeting Minutes of June 24, 2013 k s '... h l 1) Short Family Farm — recommend be funded in full 2) Duckabush Floodplain — recommend be funded in full 3) Tarboo Forest Conservation — recommend be funded in half during this cycle* 4) Winona Basin — recommend be funded in full *Due to the application funding requests being greater than the amount of the available project funding, CFOC Chair Jahnke announced that Peter Bahls, Director of the Northwest Watershed Institute, had stated that they may be in a position to partially fund the Tarboo Forest Conservation project this year if funds were presumably made available next year to finish the project. Chairman Austin opened the hearing for public testimony. Raven, Port Townsend: Stated he is a member of the Conservation Futures Citizen Oversight Committee (CFCOC). He mentioned that he abstained from ranking the projects in this year's funding cycle. He also stated that he sent a letter to the Board of County Commissioners (BOCC) on May 30 expressing concern over legal conflict of interest and fairness violations in the Conservation Futures funding process. In response to the letter, he believes the County did not satisfactorily address nor resolve any of his questions. He stated the questions were submitted to the County by the committee as a whole. Committee member Raven also mentioned that another committee member voted to halt the ranking process until those questions had been resolved. On June 1.8, he stated he sent a second letter in which he rejected the County's response. In his letter he stated his apprehension that in light of County ordinances, RCW's and the State Constitution, the violations in the Conservation Futures program seriously compromise the legitimacy of the contracts currently under consideration. The choice and opportunity is now at hand; either to remedy the relatively simple yet fundamental problems in the Conservation Futures fund, or by more denial, confiscation and blithely going ahead with today's award process to further undermine the public's confidence and blindly obliterate an otherwise worthy program. Raven believes the necessary changes demand a new orientation, an adherence to law, some relinquishment and some sacrifice. In the end, such reform will provide a democratic, equitable and functional Conservation Futures program that is a benefit to all and a source of pride to the taxpayers and citizenry of Jefferson County. John Wood, Port Townsend: Stated he has been a member of the Conservation Futures Citizen Oversight Committee for the past five years. He mentioned that the last two years, he made the presentation to the Board of County Commissioners (BOCC) for those current year's Conservation Futures projects. He has long been a supporter of the preservation of public open space. This year, he voted in favor of all the projects, but Friday (June 21, 2013), he delivered a 25 page letter to the BOCC in which he reversed his vote. He now believes all the current applications are void for failure to comply with the rules against conflict of interests. He stated that all previously approved applications, are void as well for the same reason. If he is correct in regard to these, or many of the other matters he raised in his letter, there are serious implications for CF. His reversal position is a direct result of a wholly inappropriate and unworthy response from the County to the letter of concern delivered by Mr. Raven. His letter and the County's response prompted him to scrutinize everything. For years he has been telling the committee many of the things he believed were wrong, including many of the issues Raven mentioned. Mr. Wood expressed he believes that the process is not open to everyone, that it appears to be an insider game, limited to people who meet with the approval of the Board of Directors of the Land Page 4 Commissioners Meeting Minutes of June 24, 2013 17 8 ", Trust. He stated he had hoped there would be change within the committee, but was met with polite indifference and sometimes silence. He commented that it would be a mistake to approve any of the projects today and a mistake if the concerns were not taken seriously. The goal of open space conservation is very important, but the effort is not worth achieving with improper and illegal means. Raymond Hunter, Discovery Bay: Noted that he is a fairly new member to the Conservation Futures Citizens Oversight Committee. From what he has seen, the members work hard, make very talented and in depth decisions. They also tour the properties, talk to land owners including Roger Short and others. They bring a whole cornucopia of ideas both from the applicant and the Committee and they discuss these things in depth. He believes the outcome is good results and answers. He believes there is a lot of forethought, intelligence, wisdom, history and lore that goes into these decisions. From what he sees as a new member of the Committee, the system worked very well for many years and has accomplished so much. One of the tours they took was up Duckabush River. He commented that 12,000 years ago the Chehalis glacier melted back into Canada and so from our mountains sprung a myriad of the short run rivers. Since man has come into this country, after the indigenous Americans, they have more or less inundated these rivers to a certain part from their mouths and estuaries all the way up into what is now the Olympic National Park. We dammed the Elwah and you can see what happened to that, it was reversed. Of all the rivers on the Peninsula, including the Bogachiel, Dungeness, Dosewallips, Duckabush and the Hama Hama, the Duckabush River is the least interred with human habitation, except for maybe the Hama Hama. Mr. Hunter toured the Duckabush and stated that salmon carcasses were prevalent, as well as bear scat and the area is also known to inhabit elk. He urged the Board to approve the applications that the Conservation Futures Citizen Oversight committee has presented. Janet Welch, Nordland: Thanked everyone involved. She believes that protecting open space for perpetuity is one of the greatest gifts that anyone can give to the future generation. Ms. Welch encouraged the Board to support the recommendations of the committee, specifically to the benefits of the Tarboo project. She owns property in that area, and about 20 years ago is when work started there to develop the Tarboo natural area preserve. She stated that the work of the Northwest Watershed Institute (NWI) is amazing. Ms. Welch mentioned the Duckabush River and the work of the NWI to turn the nearly pristine watershed back into something that can work quite well. The NWl can go back and restore so much of the bits of human impact that happened. The two properties that are currently pending approval are absolutely fantastic. She has seen a lot of property when travelling around the area, and they are some of the prettiest she's ever seen in this County. The idea of the property being taken off the logging docket and being put into long term preservation for the benefits of the citizens is fantastic. She urged the Board to support the project. George Yount, Port Townsend: Stated he is speaking on behalf of the Jefferson County Democratic Party as their Chairman. They have a number of platforms that relate to the functions and values of our ecosystems as they relate to economic benefits. One in particular is the preservation of farmland. They support what the Conservation Futures Citizens Oversight Committee has arrived at, and particularly support the Roger Short farm and urged the Board to approve the application. William Smothers, Nordland: Thanked everyone involved. In regard to the Conservation Futures Citizen Committee who made the recommendations he questioned who is suffering from conflicting views on how to bring the overall procedures into what they described as a fair and more equitable way to Page 5 Commissioners Meeting Minutes of June 24, 2013 evaluate projects? He urged the Board to look into the issues raised by the spokespersons. Of the projects that were proposed, he endorses Janet's statements about the Tarboo project. Mr. Smothers has donated many hours to the Northwest Watershed Institute (NWI), planting trees, pulling weeds, going on outings and identifying native plants in that area. His family has a tradition of watching the salmon come up the Tarboo Creek every Thanksgiving. He urged the Board to consider their proposal. Owen Fairbanks, Port Townsend: Stated he appreciates the work everyone has put into this program which has been going for many years. He addressed Raven and John Woods' concerns and mentioned that it pertained to County and State ordinances and he would not speak to those issues. He does not want to point out concerns mentioned earlier regarding the Jefferson Land Trust (JLT). Mr. Fairbanks stated that he is a volunteer of JLT, and when landowners come to them with concerns regarding their property, the JLT works with them. He stated that the XT abides by their clear and public criteria and what they see as important. He also pointed out that the JLT works with the land owners and potential funding agencies like Conservation Futures and others to get matched. Mr. Fairbanks stated that it was an open process and that JLT was required by Conservation Futures to rank the applications. The way i1 is currently set up, there are no other organizations in a position or interested in being a sponsor for applications, so it's not that they're insisting on being the only one, but that seems to be where they are. He would like to think they're open with anyone who comes to them. Mr. Fairbanks appreciates the work going into this process and is excited about all the applications for this year. He encouraged the Board to support the committee's recommendations. Steve Moore, Port Townsend: Stated he is the Board President of the Land Trust and a member of the Conservation Futures Citizens Oversight Committee (CFCOC) as well. He is part of the assessment and evaluation and recommendation of various projects that come up. Mr. Moore has been on the committee for six years and has seen how many people are involved and how long these projects can take to get to fruition. Anything that involves the CF committee is undertaken according to the rules and the way the committee has worked in the past and currently works. These projects have come to fruition this year and have been ranked and recommended. He urged the Board to support all of the recommendations. He suggested that if there is problems with the way the committee works, that topic should be handled separately. He believes it would be wrong to hold the projects hostage while the committee issues are sorted out. Mr. Moore reiterated that all 4 projects are good and deserve the Board's support and to look into committee issues separately. Keith Lazelle, Ouilcene: Stated he was recently elected to the Board for the Northwest Watershed Institute and has walked through the headland forest areas and the headwaters surrounding Tarboo Creek. He commented that the waters are pure as can be throughout the second growth forests. He believes it would be beneficial not to log that area due to sediment that could be created. Mr. Lazelle believes the salmon restoration project in the valley would also benefit from the headwaters not being logged as well. He is in support of the Tarboo project. Peter Bahls: Stated he is the Director of the Northwest Watershed Institute. He thanked the Commissioners and the Conservation Futures Citizens Oversight Committee (CFCOC) members for their work. He stated that he has been involved in writing hundreds of grant applications over the past 20 years to State, Federal, County and Foundations. He mentioned that there is no perfect grant proposal Page 6 Commissioners Meeting Minutes of June 24, 2013 process and if you were to drill into any of them, you could find problems. He observed that he has never seen a grant process as rigorous, fair and good as the Conservations Futures Citizens Oversight Committee. Most grant processes have a written proposal or they may have a field review or an oral presentation of 20 minutes. The Conservation Futures process has all three parts of that included in the process. He pointed out that the CFCOC ranking process is very open. It is a public meeting and very transparent. All scores are posted on the board and it's a lot of work for the committee members. He doesn't know if it would work if there were around 30 -40 projects, usually there is a half dozen or so. From his experience working on grants, he believes it is a really good process. He has some problems with the scoring of things, but overall he thinks it is good. He has read Raven's letter and the County's response. In his opinion, he believes the County's response adequately addressed the issues that Raven had brought up, and that other committee members probably feel the same way. In terms of the Tarboo Forest project, he elaborated that it was a conservation easement project that would highly restrict logging, but would allow some low impact, selective logging as a part of sustainable forestry. He reiterated that he has been a part of this process for many years and thanked all new and past committee members for their efforts on these projects and stated it was one of the best County programs for conservation. Raymond Collins, Port Townsend: He spoke on the matter of trust that was previously brought up. He mentioned that there are 9,000 people in the City and 29,000 in the County that are depending on trust. Mr. Collins stated that he wants to speak on behalf of those that could not be at the hearing. He pointed out that he is retired, doesn't have a television and no spare time, which he believes is true of a lot of people. He also stated that there are poor people, and that takes up a lot of time. Mr. Collins mentioned working people who are employed and can't attend the hearing either. He mentioned that because not everyone can attend these types of meetings, they really have to trust with observation. Natural selection forestry is a good idea, and in his opinion, works. He believes that clear cutting needs to stop everywhere due to the siltation and threat to the salmon, along with the viruses from fish pens. He stated everyone has a lot of work to do and are overwhelmed. Mr. Collins does not want to pick on the people who can't be here and stressed that they have to rely on representation. This is a republic, even our County. Sarah Spaeth, Port Townsend: Thanked the Commissioners and the committee for their hard work in conserving special places in Jefferson County. She stated she is not a lawyer, and so would not speak to the RCW or the County's Ordinance, but her understanding is that the program was designed to protect a whole range of conservation values that we have in our State. Public agencies and not - for - profit organizations are eligible to use these funds and a variety of tools to accomplish these goals. She wanted . to impart that she believes the Land Trust is a vehicle for the community. Landowners come to the Land Trust to see their family farm or forest protected forever. They then voluntarily enter into a conservation easement agreement in perpetuity where they sell the easement to the Land Trust. The Land Trust then has to seek funding. Ms. Spaeth commented that we are so fortunate that the County has this program because it can be a critical demonstration of our community's support, which they then leverage by getting additional public funding from a number of different programs. She pointed out that the Land Trust often times works with landowners for years developing the right tool and right vehicle to help them achieve their goals. They also work with public agencies such as the County and City to accomplish their goals such as open space protection. The Land Trust also works with a lot of partner organizations like the Northwest Watershed Institute, Department of Fish and Wildlife, North Olympic Page 7 asu Commissioners Meeting Minutes of June 24, 2013 fN' Salmon Coalition and the Hood Canal Salmon Enhancement Group. She stated that those groups are also working on really important conservation goals, but don't necessarily use the tools that are eligible for funding through Conservation Futures Program, and that's what the Land Trust does. She mentioned that the Land Trust is very proud to be a partner with landowners, the community and other agencies and organizations to accomplish their goals. They support all of the projects that have come forward this year and believes they are all worthy of funding and support from the County. David Reid, Port Ludlow: Stated he has been associated with the Jefferson Land Trust for many years and wants to add his support to the consideration of the projects. He mentioned there is so much good work being done in conjunction with the County's interests and the citizens' interests and it's worth supporting. There is a legacy and its very important and he wants to make sure his voice is added to that support. Hearing no further testimony, Chairman Austin closed the public hearing. After discussion and receiving public testimony, the Board concurred to seek legal counsel and make a decision at a later date. The meeting was recessed at 10:49 a.m. and reconvened at 1:27 p.m. with all three Commissioners present. DISCUSSION re: Fee Waiver Request: Habitat for Humanity Pre - application Conference to Create Affordable Housing in the Port Hadlock Urban Growth Area; In the Amount of $875; (Continued from June 17,2013): Department of Community Development (DCD) Director Carl Smith stated his staff has been looking into other possible funding for fee waiver requests. He spoke with Geoff Crump of OlyCAP and they concurred that the use of 20/60 funds would work great for these types of requests, and that there should be a system where organizations can apply for these types of funds in the future. Mr. Crump will bring this topic up at the next OlyCAP meeting. Chairman Austin stated he believes it is the County's responsibility to provide for low income housing. County Administrator Philip Morley stated if the pre - application and /or building fees were waived for Habitat for Humanity, it would pave the way for other organizations that fit the same criteria. This would lead to the question of affordability for the County. Habitat for Humanity staff stated they believed that not a lot of other organizations would follow suit. County Administrator Morley asked if a Habitat for Humanity -built house sells, would a portion of the proceeds come back to Habitat for Humanity? Habitat for Humanity staff stated a portion would come back. County Administrator Morley stated they will be looking into the fiscal impacts that granting these types of fee waiver requests would have on the County. Commissioner Sullivan commented that he will be at the next OlyCAP meeting later this week. All the Commissioners would like to assist low income housing, however, the Board concurred to look into other funding options and make a decision at a Page 8 Commissioners Meeting Minutes of June 24, 2013 later date. r 0Hr n't Letter of Support re: USDA Grant Program: Commissioner Sullivan moved to direct the Commissioner's Office staff to prepare a letter of support for the USDA Rural Business Opportunity Grant Program. Commissioner Johnson seconded the motion which carried by a unanimous vote. COUNTYADMINISTRA TOR BRIEFING SESSION: County Administrator Philip Morley reviewed the following with the Board. Calendar Coordination • Chairman Austin will be in Washington D.C. at a lobby meeting regarding renewable energy on June 25 -27, 2013 • County Administrator Philip Morley will represent the Board of County Commissioners (BOCC) at a JeffCorn Administrative Board meeting on June 27, 2013 • Integrated Watershed meeting on June 28, 2013 • Meeting on Hood Canal Coordinating Council (HCCC) to be determined • Chairman Austin and Commissioner Johnson will be attending a Washington State Association of Counties (WSAC) and Timber Counties meeting with Commissioner Goldmark on July 2, 2013 • Commissioner Johnson will be attending an Olympic Region Clean Air Agency (ORCAA) meeting on July 10, 2013 • All 3 Commissioners will be attending a Hood Canal Coordinating Council (HCCC) Retreat on July 10, 2013 • There will be a Director and Elected Officials Quarterly meeting on July 22, 2013 • Chairman Austin will be attending a JeffCorn meeting on July 25, 2013 • July 26, 2013 County Administrator Philip Morley will be attending a Jefferson -Port Townsend Response Emergency Planning (JPREP) meeting in place of Chairman Austin • July 29, 2013 there will be no Board of County Commissioner (BOCC) meeting • There is a tentative HCCC meeting scheduled for August 2, 2013 • Breakfast meeting at the Jefferson County Library on August 7, 2013 Miscellaneous Issues • State Budget • 2nd Quarter • Courthouse security • Request for proposals for Hargrove Fund • JeffCom: MOU license • American Farmlands Trust • Rural Business Opportunity Grant — Resource Conservation and Development (RC &D) — Agriculture strategy, Agriculture Advisory Committee letter • Fee waiver • Audio • Strategic Plan Page 9 Commissioners Meeting Minutes of June 24, 2013 NOTICE OFADJOURNMENT. • Commissioner Johnson moved to adjourn the meeting at 3:41 p.m. until the next regular meeting or special meeting as properly noticed. Commissioner Sullivan seconded the motion which carried by a unanimous vote. JEFFERSON COUNTY BOARD COMMISSIONERS Jo Austin Chair ATTEST:, Phil oh ember Carolyn very Davi u ivan; r Deputy Clerk of the Board Page 10 a -_;+� Raven Member - Conservation Futures Fund Citizen Oversight Committee PO Box 1370 Board of County Commissioners PO BOX 1220 Port Townsend, WA 98368 To: Commissioners Johnson, Sullivan and Austin Cc: Tami Pokorny, CF Committee Staff Port Townsend, WA 98368 June 18, 2013 �EJ" .i c5 ),')I,, On April 30'h, 2013, it was voted by the Conservation Futures Committee that my letter of concern pertaining to illegal and unethical practices within the Conservation Futures Fund be submitted to the County Deputy Prosecutor for 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 attention. The short shrift given my genuine concerns 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 JLT /County partnership that Ms. Pakorny describes and the present roles played respectively by the Land Trust and the BOC; the Conservation Futures Fund Citizens Oversight Committee seems to be superfluous. Page 1 of 2 Never the less, 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. Respectfully, 7 Raven Committee Member and Natural Habitat Advocate Page 2 of 2 CC °_ N t42gJl3 John Augustus Wood Attorney at Law 4510 San Juan Avenue P.O. Box 742 •. Port Townsend, Washington • 98368 -0742 • Facsimile 360 - 385 -0350 Telephone 360 - 385 -3622 Jaww4510 @gmail.com June 21, 2013 County Commissioners David Sullivan, John Austin and Philip Johnson P.O. Box 1220 Port Townsend, WA 98368 Re: Conservation Futures; The Change of my Conservation Futures Vote, the letter from Mr. Raven and "the County's Response" and Other Concerns Dear Commissioners: I have served on the Jefferson County Conservation Futures Fund Citizen Oversight Committee (CFFCOC) since 2008; 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 have, however, been a critic of the means by which 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 lawyer. Introduction and Brief Summary 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 affirm 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, page 1 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 courtesy 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 committee'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 Ms. Pokorny did nothing 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 part, 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 RCW 42.23 - including 42.23.050 "Prohibited contracts void - penalties for violation of chapter"" 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 for 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 the Washington state Constitution which says: Section 12: Special Privileges and Immunities Prohibited. No law shall be passed granting to any citizen, class of citizens, or corporation other than County 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 terms, that means that any citizen who wants to apply for funds must seek the approval of the Land Trust Board. In my five years on the committee, there has never been an application that was not sponsored by the Land Trust. The ranking system was set up to give all Land Trust - sponsored applications a 55 point lead (see criteria 2 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 unwilling 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 manual, the County Ordinance establishing the committee, and various materials. There is no encouragement to read the actual RCWs involved. They are merely summarized and over- simplified in a few brief paragraphs. County Commissioners, page 3 The common understanding within the committee is that Sarah Spaeth, who is the Executive Director of the Land Trust, a member of the CFFCOC, and the person who makes a presentation on each Land Trust - sponsored project to the committee (except for Mr. Bahls' project in 2013 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 "recusal" from 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, 2002, 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," specifically 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 for 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 professional services and the purchasing of real property. The definition of 'municipal officer' found in RCW 42.23.020(2) would include a member of the CFFCOC." Following that, Mr. Alvarez's memorandum refers to "remote interest" but merely summarizes the concept and offers a single example which could be misleading without reading the entire RCW. County Commissioners, page 4 My review of RCW 42.23 shows that there are several 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 on 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 of 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 in which he or she is beneficially interested even though one of the exemptions allowing the awarding of such a 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 officer 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 CFFCOC, Ms. Spaeth has never satisfied this requirement for any project, including those proposed for 2013, and County Commissioners, page 5 "the official minutes or similar records" would not demonstrate compliance with this requirement. RCW 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 or 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 or 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 or cured of its voidness. Should the Jefferson Land Trust have a seat on the CFFCOC County Commissioners, page 6 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 on the Citizen Oversight Committee that is reviewing applications, all of which come from the Land Trust, puts Ms. Spaeth in the obvious position of doing 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, and the ranking "points system" are fair, open and accessible to all citizens, including non -Land Trust sponsors should there ever be any. Consider the words of Mr. Alvarez in his July 9, 2002 memorandum to the County Commissioners, the County Administrator and Dave Christensen, Natural Resources in regard to the Conservation Futures Fund and the CFFCOC: "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 CFF 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 County 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 establish 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 federal 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 County practice: If Section 12 of the Washington State Constitution banning special privileges has meaning, and if you allow the Land Trust to have a seat on the CFFCOC, why shouldn't every other potential sponsor for Conservation Futures funds be given a similar seat on the CFFCOC? 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 Ms. Pokorny's responses to Mr. Raven's letter of concern, especially in "Issue 3" where she says: `ILT sponsors most of the CF projects because they are qualified ... Other NGO's have shown little interest in being a CFF sponsor." Was the Tami Pokorny Letter dated May 16, 2013 a satisfactory response to the Committee's request to the Commissioners? Or was it a violation of RCW RCW 2.48.180(2) The State Bar Act. 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. Ms. 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 Bahls) was an emailed letter dated May 16, 2013, written and sent by Tami Pokorny, Environmental Specialist II, under her name, in which she presented the County's legal position. Ms. Pokorny wrote: County Commissioners, page 8 "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. It 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 could 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 letter to the committee members and the ever - present Mr. Bahls, misrepresent Mr. Raven's issues or make omissions which are the equivalent of affirmative false 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 reframing of Mr. Raven's "concerns" appears designed so as to change them into different issues. Under General Rule 24, as issued by 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 responsibilities of others for fees or other consideration." Ms. Pokorny's letter gives legal 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) The following constitutes unlawful practice of law: (a) a non - lawyer 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 gross misdemeanor. County Commissioners, page 10 (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 email of May 16, 2013, Ms. Pokorny anticipated leading a two -hour discussion 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 10 to 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 give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1." 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 possible 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 prosecutor's office. The Washington State Bar Association also has a great deal of interest in who practices law. Did Ms Pokorny's "County Responses" to Mr. Raven's letter actually respond to his, or anyone's, concerns? County Commissioners, page 11 Based upon what she wrote, Ms. Pokorny took Mr. Raven's letter 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 do not follow the public open space guidelines of the ordinance ". Mr. Raven actually wrote: "The Jefferson County Futures Ordinance, 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 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 do not follow 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. Pokorny's citation. The Pokorny response fails to address what Mr. Raven's letter alleged: that the County does not follow 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 particular 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 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 ..." 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 Whereas clause ?? The County is obligated to follow the language of its ordinance, and if the County legislated an additional restrictive phrase to the state definition of "open space ", it is 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 actually 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 ordinance and statute are satisfied when property interests purchased with CFF are owned by ]LT." My response: Ms Pokorny deletes, amends, and /or changes Mr. Raven's statement so as 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- 0708 -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. Municipal governments, the State, or other as defined in RCW 84.34.210). 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 84.34.250), or a non - 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- democratic." What Mr. Raven actually wrote: "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 - fundamentally controlled by a non - elected, non - public body: the BPD of the Jefferson Land Trust and its agenda." Ms Pokorny'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 Port Townsend relies on their expertise to purchase interests in land in the Quimper wildlife corridor. other NGO's have shown little interest in being a CFF sponsor. My 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 Though 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 shall 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. Pokorny reply, respond, acknowledge, write anything down, 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. Ms Pokorny's response: "The CFF Oversight Committee, in accordance with the enabling ordinance from 2004, has members from abroad variety of constituencies, including one member from the JLT. The JLT member always recuses herself from ratings meeting." My response. 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 2004 but from 2002, as amended in 2006.) Ms. Pokorny also implies that the JLT seat may be permanent, an issue she dutifully tried to push on behalf of 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 several questions, along with Mr. Alvarez's responses. In Question 3, Ms Pokorny asks: County Commissioners, page 15 "Sarah Spaeth asked me to inquire whether or not Jefferson Land Trust is a 'stakeholder' - by that I think she's asking if JLT 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. Pokorny's enthusiasm for granting stakeholder status and a permanent committee seat for the JLT 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 actually wrote: "I question having the same entity sponsor multiple proposals /projects per funding cycle or dominate sponsorships in general." Pokorny's Response: "See responses to #3 and #4 above." My response: 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 CFF meetings. The joke is that each year the Land Trust finds out precisely how much money will be available for distribution and sponsors the precise number of applications, with precise dollar amounts so 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 projects 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 16 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 the joke. Issue #6: 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 for a decade." My response: Mr. Raven is asking a fundamentally important question that eludes Ms. Pokorny or her close 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 if someone on the Jefferson Land Trust Board of Directors has a personal dispute or 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 cares 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 be legal recourse to determine the 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 forms 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 out (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: Pokorny version: "Is it lawful 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 response: 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 it 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 prohibition, 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. County Commissioners, page 18 Issue # 8: Pokorny version: "The application process is so complex that it requires professional guidance, which thwarts potential applicants." What Mr. Raven actually wrote: "I question an application process that is so expensive and convoluted as to deter applicants, effectively require professional guidance and thwart the purposes of the program." Pokorny response: The county considers the CFF 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 response: In 2004, I negotiated the real estate transaction between George Heidgerken and the Jamestown Tribe to acquire title to the first phase of Tamanowas Rock. 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 $12,000.00 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 all 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 Ms. Pokorny who asked me to join the CF Committee. County Commissioners, page 19 In my first year on 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 year's funding cycle: The Winona Basin and, depending on the ultimate ownership of the property and easements, even that project may become invalid. Pokorny Response. "Conclusion noted." My response. 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 proper disclosures, on the record, as required 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 the contract." Can anyone find such a disclosure in the official minutes in regard to any of the contracts? County Commissioners, page 20 The second (42.23,.040) 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 #10: Pokorny version: "Why does the application process not require the applicant to provide a detailed description of the protective covenants or easements at the time of application? What Mr. Raven actually wrote: "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 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 #11: Pokorny 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 actually 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 Response: "The County notes your conclusion that the ranking process `essentially quantifies already known factors about the 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. While ranking applications in this manner is perhaps an imprecise tool, it is well- suited to determine how everyone's tax money 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 CFFCOC 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 a cross - section. Most of the people on the Committee appear to be retired, and reasonably well -off, and a County Commissioners, page 22 good number are Land Trust enthusiasts; I would call it a narrow non - cross- section. Finally, I have several miscellaneous concerns. Ms. Pokorney's committee emails: Ms. Pokorny's emails to committee 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 minutes: In the recent presentations of the 1013 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 17 minute gap in the presidential taping system of Richard Nixon. Mr. Peter Bahls' request for a grant of CF funds over a two year period, covering 2013 and 2014. Mr. Bahis 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 permit this 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 collected in the previous year. The "annual 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 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 8, paragraph 8 says the BOC may reallocate unexpended funds. Nowhere does the Ordinance permit funds can be granted before they have been collected. If funds were granted over a two year period in the past, it was done without being permitted by the Ordinance. How did the Committee react after receiving Mr. Raven's letter? One of the strangest aspects of this saga is the response of some committee members a few days after receiving Mr. Raven's letter. One members sent an outraged email to all 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 individual 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 Commissioners, page 24 Here's what he wrote, with all spelling and punctuation exactly as it was: "i for 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 blanket 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 conflict 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. J W /aj Since ely, ohn Wood County Commissioners, page 25