The Gristle

The winter of our discontent
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THE WINTER OF OUR DISCONTENT: Beneath a pavement of endless asphalt, the twisted remains of a brutal hunchbacked tyrant were exposed last week. (Oh, and the skeleton of Richard III was identified buried in a parking lot in Leicester.)

The Building Industry Association of Washington (BIAW)—”once the biggest, baddest, best-financed conservative political organization in the state,” as political commentator David Goldstein notes—suffered another crippling blow last week when a state appeals court not only upheld a lower court ruling that found BIAW guilty of skimming millions of dollars from members’ trust funds, but overturned the lower court ruling that BIAW was not responsible for repaying skimmed interest. As a result, the trade association must ultimately repay members hundreds of thousands of dollars more than it would have had BIAW not appealed.

Be careful when you ask for a reconsideration. You might get it.

BIAW members pay into a collective insurance pool, a program that returns a rebate to members when they are able to improve worker safety and reduce injury. For years, the BIAW was skimming 20 percent of this rebate to wage a corrosive political war against the state’s environmental and growth laws.

Members had sued the BIAW for skimming $20 million in “marketing fees” and using the money to fund political campaigns, including more than $8 million spent on behalf of Republican Dino Rossi’s 2008 campaign for state governor.

“Eight small companies filed lawsuits seeking to hold BIAW accountable for breach of trust and to require the BIAW to return wrongful profit back to over 10,000 BIAW members who participated in the BIAW’s retrospective rating (‘retro’) program,” Seattle attorney Knoll Lowney explained. “Under retro, BIAW members earned hundreds of millions of dollars in tax refunds and the State of Washington paid all these refunds to the BIAW. The BIAW agreed to hold these refunds ‘in trust’ for its member participants, but instead commingled the trust funds with its own moneys and skimmed interest and principal from the trust for its own use.”

The state court agreed with the reasoning in 2010, but did not require BIAW to repay monies skimmed from the fund. The organization filed an appeal. The appeals court agreed with the lower court, except on one point: Interest from skimmed funds needs to be repaid, in the amount of approximately $400,000. The decision also awarded hundreds of thousands of dollars in attorney fees to the builders who brought the original suit.

Weakened by the collapse of the building industry in 2008 and again through a series of lawsuits, BIAW operatives intend to demonstrate that even a decapitated tyrant can still carry disease.

In November, the organization launched a counter­offensive against efforts to prevent the trade association from engaging in brutal, bruising politics, including local elections. The BIAW asked the state Court of Appeals to publish a ruling the court issued in October that found the organization might be considered a political action committee, subject to all the stringent reporting requirements imposed by the state Public Disclosure Commission.

By publishing the unpublished decision, the court would add the ruling to the canon of state law, and it would apply to every organization that raises money to elect politicians. Every trade association, every environmental and political-activist group, and every labor union that operates its own PAC could be required to provide a full accounting of its activities to the PDC.

That bit of sour grapes mischief triggered a wave of friendly supporting briefs from strange bedfellows, four of the state’s most politically active labor organizations, joining BIAW to overturn the court’s opinion on what constitutes a PAC.

The reversals and reprisals serve as reminders of the long and costly damage the reactionary warfare against reasoned land-use and environmental policy has done—and continues to do—to communities across the state like Whatcom County.

The war is financed by deep pockets like the BIAW and Realtors PACs; organized into shadow movements like Wise Use and the Citizens’ Alliance for Property Rights (CAPR). Its footsoldiers are the aggrieved moms-and-pops, elderly property owners with a “nest egg” to protect, their retirement bound up in some ill-advised property purchase with an upzone understood as trigger to the “investment.” These footsoldiers are essential, lending a sweet face to a realm that is frequently bitterly at odds with public opinion. Its dual weapons are the upzone and the vesting privilege—the first, imposed by political mischief, creates artificial wealth where none existed; the second, protected by the courts, locks in the wealth, so that fraud granted in political heat and election backlash cannot be ungranted.

The weapons yield the illusion of permanence, that “it’s always been this way,” and that the hardheaded response of county policymakers to the state’s 20-year-old growth management laws represent somehow a principled and sacrosanct natural order. No; 90 percent of the compliance issues have come into focus since that law has passed, were introduced in defiance of that law, and violations need to be rolled back in accordance with that law.

It’s what prompted Kathy Kershner, president of the Whatcom County Council, in an otherwise intelligent inter­view on KGMI a few weekends back, to mourn the loss of property value as investments to people who had no expectation of an upzone under current law. They had, in other words, no right or reason to expect that county government would violate state law to grant them personal wealth.

It’s what prompted Kershner’s dimwitted amateur host to afterward read from Mein Kampf, the screed of tyrant Adolf Hitler, as though that provided insight or parallel to Whatcom County. Better, perhaps, might’ve yielded Richard III:

“And thus I clothe my naked villany
With odd old ends stolen out of holy writ;
And seem a saint, when most I play the devil.”


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