The Gristle

From the annals of chutzpah

Tuesday, February 21, 2012

FROM THE ANNALS OF CHUTZPAH: What a difference a single new, reasonable voice can make on Whatcom County Council!

Pete Kremen helped roll back a Council decision to open 280 acres in the South Fork Valley to gravel mining—a harsh, extractive industry residents say would scar their rural farming community. With his vote, the zoning change failed 3-3.

Council member Ken Mann chose to recuse himself, after the attorney for Nor’west Concrete, the Burlington company that requested the zoning change, claimed Mann and Kremen should not vote on the matter, having earlier indicated how they would vote on the quasi-judicial decision. But here’s the key takeaway: everyone had earlier indicated how they would vote on the matter when the zoning change first came before council last fall. Kremen, then county executive, found their mixed approval flawed and suggested he might consider a veto. Yet gravel industry attorney Lesa Starkenburg-Kroontje asked that only those who publicly had indicated they opposed the change should recuse themselves. Starkenburg, Mann explained, “questioned my eligibility to vote on the mineral resource land expansion. I was deeply offended by that tactic,” he said, “but her claims may have had some technical validity.

“Because I did not want to jeopardize the county by exposing us to yet another time-consuming and money-wasting lawsuit, and because I have respect for my council colleagues and the county taxpayers, I recused myself from the discussion and the vote,” Mann said, adding, “I calculated that my vote was irrelevant, they needed four affirmative votes to pass it.”

Kremen was also deeply offended by Starkenburg’s tactics, but refused to recuse himself, declaring her claims against him had no merit. He characterized her attempts to meet with him privately on the matter when he was county executive as “entrapment.”

“I never made any view known until after the completed public process,” Kremen explained. “Although a clever legal tactic, I’m not going to buy it.”

A good attorney will of course employ many clever tactics on behalf of her client, but Starkenburg has potential conflicts of interest in a class of her own. The county, after all, is also her client.

County Council authorized a payment of $40,000 to have Starkenburg help prepare a legal defense of the Rural Element of the county’s comprehensive plan when the plan went in front of the Washington Growth Management Hearings Board last summer. Council’s legal counsel, Karen Frakes, admitted Starkenburg was well qualified to craft a defense of a plan that so favored build-out that the horrified board ruled it invalid and in violation of state law.

Let’s unpack that.

In 2010, County Council met in a semi-private meeting with development attorneys, ostensibly to settle pending lawsuits. In practice, the decision meant council could make substantial wholesale revisions to the Rural Element entirely favorable to private development interests without docketing those changes in a public meeting. Framed in the context of legal settlements, most of the council’s flimflam could be concealed in closed executive session, where they could quickly unwind work created from hundreds of hours of open testimony and process in front of previous councils and planning commissioners, the closest thing to a back-room deal permissible by law.

Their product was an outrageously unsupportable document—scoffed at by planners and planning commissioners alike—and certainly one not protective of the public’s interest in open government and democratic process or one protective of the public’s interest in intelligent land-use planning. No, it was specifically designed to enrich crony interests. To defend this ruinous mess, Frakes recommended hiring Starkenburg as a resourceful, talented legbreaker—a private practice attorney similar to the ones council had already “settled” with—to defend the indefensible and further kneecap the public’s interest. Starkenburg had spent a good portion of her career trying to poke holes in county planning; now she was hired by a council majority intent on facilitating a planning coup d’etat. What private interests wrote, private interests would now defend—paid by public dollars.

Frakes (and by extension her boss, Prosecutor Dave McEachran) knew all too well this unhappy history, which is exactly why Frakes recommended employing the formidable skills of Starkenburg to unwind it. But unlike Starkenburg, these public employees do not have the luxury of operating in the intersection of public and private interests. Their duty is clear: To uphold the laws of the State of Washington and—damn it—the democratic interests of the citizens of Whatcom County. Their job is to prevent lawbreaking, not to facilitate (or even tolerate) it.

Who was present, who had standing, at County Council’s evening session to declare the conceptual opposite of Starkenburg’s complaint: That some on council had already strongly telegraphed their preferences in favor of this mineral lands designation near Acme and in this quasi-judicial decision needed, like Mann, to stand down? Who was present, who had standing, to question the conceptual opposite of Kremen’s complaint, and demand that all ex parte communications be disclosed that might indicate the favorable bias of certain council members?

Ignoring the slippery slope nonsense of disqualifying from voting all who’ve in some fashion previously disclosed their opinions in an open, representative democracy, the person to out these flaws would have been the council’s legal counsel, Karen Frakes, impartial representative of the public’s interest in fair outcomes. Not much helpful guidance there.

Kremen was right for scoffing at the reasoning; Mann was right for walking away from it, disarming the bomb.

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