"It doesn't look good, but there was no wrong-doing." That was the message Council member Bob Jarman wanted to convey Monday, June 8, 2015 when he came to the San Juan Islander office.
What doesn't look good was the way the county Manager Mike Thomas apparently chose to subvert the permitting process for one of Jarman's neighbors. And the way, the county Director of Community Development Sam Gibboney, directed staff to process the permit without the required report.
And the way the county Prosecutor's office processed the Improper Government Activity report and determined that while there was a clear breach of policy, procedure and regulations, there was no improper governmental action.
In August 2014, Chris and Jenise Hughes were told by county Planner Annie Matsumoto Grah, they needed to have a wetland delineation done before a building permit could be issued for their property in the Portland Fair neighborhood on San Juan Island. The work could be performed at no cost to the couple through the county's free wetland technical assistance which was available at that time.
Instead of obtaining the free technical assistance offered, the couple talked to Council member Jarman. who has served continually as either the president or vice-president of the Portland Fair Homeowners Association since the 1980s. Jarman believes the pond is exempt from the Critical Area Ordinance regulations. He spoke about the situation with county Manager Mike Thomas.
Thomas and his wife, Jennifer, took a walk around the property.
September 9, 2014 Gibboney sent an email to the county planner who had sent the original letter to the Hughes:
Annie - there is a permit application in for a property in the Portland Fair neighborhood. Supposedly one of the neighbors reported there might be a wetland. Mike walked the site last night with local wetland expert (JT) and there are no signs of one. So no need for recon. Let me know if you know which application I'm talking about.
JT is Jennifer Thomas. Recon refers to the reconnaissance-styled report referenced in the county code.
Grah asked for the identity of the expert and a copy of the required written report. Despite lacking the report required by all applicants, on September 12, 2014 at the direction of Director Gibboney, the planner issued the permit.
In January, 2015 an accusation of Improper Government Activity (IGA) was filed. It stated:
Though M. Thomas is the county manager it is unprecedented, nor within the County Manager's duties, to conduct field investigations to validate the proper interpretation or application of the provisions of this code or a land-use reviewer whereas the proper course of action would be for the applicant to appeal the determination to the Director of Department of Community Development. 18.10.030(A)1: Upon request or upon the administrator's own initiative the administrator shall review and resolve any questions involving the proper interpretation or application of the provisions of this code.
...Conducting a site visit on a property that is adjacent to a County Councilman after the owner of such property leveled a complaint to the Councilman; and overturning Annie's requirement using an un-identified "Local Expert" who is later revealed to be Mr. Thomas' wife is clearly an ethical impropriety that can only lead to the public questioning the integrity of DCD and the County and lends credibility to those who accuse the County of a double standard which is clearly validated by this action; unless of course Mr. Thomas is offering the services of his wife's wetland expertise at no cost to the rest of the citizens of San Juan County not just to those who happen to be neighbors of a Councilman.
County Prosecutor Randy Gaylord issued a memo to the Council, Mike Thomas and Sam Gibboney on March 11, 2015 in which he identifies the whistle-blower who filed the IGA accusation. In the memo, Gaylord states:
The instruction to issue the permit without a wetland reconnaissance report is contrary to county ordinance and policy.
The wetland reconnaissance procedures were established by the county Council in the CAO Ordinances and then implemented over the next year with written guidance to assure uniformity and consistency in application throughout the county. If conflicting written reports regarding existence of a wetlands is received, there would be discretion reserved for the director of DCD. But in this matter, there is nothing in the file to support the conclusion of the county Manager that "there are no signs" of a wetland. Further, there is nothing in the file to support a waiver of a reconnaissance report, which would be required even when there is a man-made pond."
The county Council has provided good guidance on the type of information it wants county officials to use when making decisions on whether a regulated wetland exists. Some type of written statement or report is necessary that is based upon the history of the construction of the pond and whether it was built in an existing wetland. In this case, no such report was obtained from the property owner or persons who saw the pond being constructed and had knowledge of wetlands around it at that time. The property owner has the duty to provide this information for the consideration of the county planners.
While Gaylord decided county policy was not followed, he dismissed the other issues raised by the IGA report – including the ideas that Thomas violated county Personnel Policy or improperly employed his wife.
Since Jennifer Thomas did not issue a written report, Gaylord concluded the required evaluation of her qualifications wasn't necessary. He did note nepotism is covered under the ICMA Code of Ethics.
Despite provisions that indicate otherwise, Gaylord claims the county's Personnel Rules were not written to apply to management level employees and do not apply to the county Manager.
He concluded nothing else needed to be done to comply with the law since the building site was not within the buffer of the wetland.
A Department of Ecology staff member who visited the site after questions were raised about the issuance of the permit wrote a detailed report contradicting the verbal report provided by the County Manager's wife. That report is filed with the permit.