County sued over meetings - Decisions leading to critical areas ordinance are questioned

By Barney Burke
Port Townsend Leader Staff Writer

September 6, 2006

A lawsuit alleging that Jefferson County has violated the Washington Open Meetings Act raises questions about a series of actions that led to the draft critical areas ordinance opposed by some farmers and property rights advocates.

Acting as his own attorney, Mats Mats resident Mike Belenski filed suit in Clallam County Superior Court Aug. 28.  According to the suit, he alleges that Jefferson County violated the Open Meetings Act and other state laws by not giving adequate notice and agendas for meetings, making decisions in executive sessions, changing agendas retroactively, and approving minutes that made no mention of actions taken on topics such as gravel mining and the Port Hadlock sewer project.

Chief Civil Prosecuting Attorney David Alvarez said Tuesday that the suit has "no merit."

The suit asks the court to nullify the county's agreement with the Washington Environmental Council, a statewide environmental group that has been a primary influence in the draft critical areas ordinance (CAO).  It also asks that the court order the county to disclose the names of lawsuits discussed in executive sessions on litigation, to follow its own rules on meetings, and to create written minutes for all meetings since Jan. 1, 2005.

Belenski, 49, said he has no financial or personal interest in the critical areas ordinance, and that he has not been working in concert with its opponents.

"I'd never heard of that," Belenski said of the critical areas ordinance.  But two days before the June 20 public hearing when farmers drove tractors to the courthouse in protest, someone called him at home and urged him to attend.  "How can you sit and do nothing?" he thought.

"Then I started turning in public records requests," said Belenski.

Whether or not he prevails in court, Belenski thinks  he's already had an effect on the county's meeting procedures.  "You can make a difference if they know that you're watching 'em," he said.

Monday, Tuesday

Belenski made his first request related to the CAO on June 26, and since then, the county has not conducted a Board of Commissioners meeting on a Tuesday.  Belenski's suit argues that the county's long-standing practice of having a board meeting on Monday and a second one on Tuesday violates the state Open Meetings Act.

"Anybody who's sitting there Monday morning's got no idea that they're gonna reconvene and take action on Tuesday," said Belenski.

But attorney Alvarez said that whenever the county commissioners have met on a Tuesday, it has been properly noticed on the Monday agenda.

"Maybe it's a coincidence that those Tuesday meetings stopped the same week plaintiff made his request," Belenski wrote.

"It's definitely a coincidence," said John Fishbach, county administrator.  Fishbach said it was his own suggestion that the meeting be consolidated to Mondays, and Commissioners Phil Johnson and David Sullivan confirmed his explanation.  Commissioner Pat Rodgers is out of town this week.

Agenda, minutes

When Belenski started checking printed agendas he received in response to records requests with agendas posted on the county's website, he learned that they are not the same.  The website posts the agendas in their original form, and then an "indexed agenda" is subsequently made, which includes items added.

"It's more informative," said Alvarez of preparing revised agendas.

On Feb. 22, 2006, the board approved a letter supporting new surface mining regulations that was not on the agenda, according to Belenski.  The suit notes that representatives of Fred Hill Materials and opponents to the company's planned pit-to-pier sand and gravel mining project attend virtually all Monday meetings, but apparently were not in attendance on that Tuesday.

The original agenda for a Dec. 6, 2005 meeting reportedly made no mention of an executive session that occurred that day, according to the suit.  "To document this executive session, the commissioners retroactively altered the Monday, Dec. 5, 2005 agenda that was previously provided to the public in an attempt to legitimize the existence of an executive session that took place after the Monday meeting had taken place," he claims.

Belenski also listened to audio recordings of meetings and compared them to the official minutes and found that some topics were not on the original agenda, nor in the meeting minutes.

The minutes of March 15, 2005 report that the commissioners approved letters of support for a grant concerning Tamanawas Rock and utility tax legislation.  According to the lawsuit, the tape of that meeting reveals that the commissioners also discussed and acted on the county budget, the Hadlock sewer project, and the WRIA 17 water rights regulations.

The issues left out of those minutes are important to the public, Belenski said.  "I don't want them (the commissioners) to decide what's good for me to know."

State rules loose

Commissioners Johnson and Sullivan, attorney Alvarez and clerk Lorna Delaney all said that it is the county's practice to include every "motion" or action in the minutes of every meeting.

Nancy Krier, senior assistant attorney general, told The Leader that state law requires that minutes be kept and made available to the public, but does not specify their content or format.  The state Attorney General's Office advises agencies to record all motions in minutes, but notes that advice is not binding, she said.

Violations of the Open Meetings Act can bring a fine of $100 per person per incident, but Belenski noted that a judge must find that a commissioner "knowingly" violated the law in order to impose a fine.

Belenski said he might amend his complaint if more information comes to light, and he's planning to file interrogatories with the court so he can ask county officials about "what they knew and when they knew it."

"I'm still diggin'," said Belenski, who said he has no plans to seek elected office.

(Contact Barney Burke at bburke@ptleader.com.)