Saturday, February 18, 2012

No Fairness -- Not Even the Appearance

OK, I tried.  I tried to let it slide by.  You have to pick your battles, right?  And just because something is wrong doesn’t mean that you have any obligation to do anything about it.

But maybe there’s something about that word.  Fairness.

The Appearance of Fairness doctrine reared her enigmatic head the other night at the County Council meeting.  How sad, how terminally depressing, that this better angel of our nature looks like nothing but a cheap floozy when she consorts with Whatcom County politics.  

The news from Tuesday’s meeting was that two Council members were suddenly put on the spot. Lesa Starkenburg-Kroontje, the attorney for Nor’West Concrete – AND the County Council’s own attorney in its ongoing Growth Management litigation – told Ken Mann and Pete Kremen that they shouldn’t vote on a critical gravel mining issue affecting her client.  She said that they had expressed opinions on the gravel mine, and that their vote would therefore violate the “Appearance of Fairness.”  Here’s the Bellingham Herald’s article about the gravel mine and the attorney’s threat of litigation.  

Let us stop and make one critical observation:

The Appearance of Fairness does not appear magically, POOF! from behind the curtain like the Wizard of Oz.  If a matter is subject to the Appearance of Fairness doctrine, it is subject to all of the Appearance of Fairness doctrine, all along.  Not just at the last minute, and not just when it might be strategically beneficial for somebody. 

So what is the Appearance of Fairness doctrine, and when does it apply?  I blogged about this last year, when the issue arose with respect to the Gateway Pacific Terminal, so here’s more background information. 

For purposes of pondering the significance of last Tuesday’s event, let’s imagine a hypothetical situation. 

Imagine, hypothetically, an application for a gravel mine in Whatcom County.  Imagine that the applicant needs (1) a comprehensive plan amendment, and (2) a rezone for an area to be covered by a Mineral Resources Overlay zone.  (After all, stranger things have happened!)

If such an application were submitted, would the Appearance of Fairness doctrine apply?

Basic principle number 1:  The Appearance of Fairness doctrine only applies to “quasi-judicial” approvals.  Quasi-judicial matters are those that affect the rights of an individual more than the right of the community.  Quasi-judicial matters “adjudicate” an individual’s rights rather than deciding larger policy issues. 

Basic principle number 2:  Comprehensive Plan amendments are NOT quasi-judicial.

Basic principle number 3:  Zoning amendments are NOT quasi-judicial if they cover an entire zoning district.  Is a Mineral Resource Overlay a zoning district?  It certainly creates a “district” that is different from anything around it. And the decision about this district is an important policy decision.

Basic principle number 4:  When in doubt, look at the local code.  A “site-specific” rezone is quasi-judicial.  Whatcom County’s code says that a zone change application is NOT a “site-specific rezone" when it accompanies a comprehensive plan amendment.  As in our hypothetical example. 

How else can you tell if a land use matter is quasi-judicial, and therefore subject to the Appearance of Fairness?  You could look at the entire history of the matter.
  • The Planning Commission is subject to Appearance of Fairness.  So look at the Planning Commission hearing – did it meet the requirements of the Appearance of Fairness?
  • A site-specific rezone (quasi-judicial) goes before the Hearing Examiner in Whatcom County. Did the matter go before the Hearing Examiner?
  • The decision-makers, at the start of deliberations, would be asked to state whether they had ANY “ex parte contacts” (discussions outside of the hearing).  So, if anybody on the Planning Commission or City Council had discussed the mining proposal with – for example – the applicant or the applicant’s attorney, that discussion would have to be disclosed.  That’s a requirement of state law AND the Whatcom County Code. Did decisionmakers make any disclosures? 
  • The decision-makers would be asked to disclose whether they had received campaign contributions of more than $250 from anybody associated with the application, as required by the Whatcom County Code. 
  • No evidence would be allowed outside the written record and properly-noticed public hearings.  (Written notice to neighbors is required for quasi-judicial matters.)  The most important part of Appearance of Fairness is making sure that decision-makers aren’t swayed by evidence outside the record.  So you’d never have, for example, a “work session” where the applicant’s attorney was allowed to chat with County Council members outside a formal public hearing.  That’s an ex parte contact, and it just wouldn’t be allowed under Appearance of Fairness.  Or if it were accidentally allowed, it would have to be disclosed.
o   Now, let’s imagine that all of the decision-makers were influenced by an ex parte contact.  How could that happen?  Well, maybe the applicant’s attorney spoke with the Council at a committee meeting that did not include a scheduled public hearing (in a manner similar to “Committee Discussion Item 1,” here.)     Or maybe the applicant’s attorney met or spoke with Council members individually.  If all of them were thus “tainted” under Appearance of Fairness, they could all vote.  There’s a “savings clause” that allows elected officials to vote when too many are disqualified under Appearance of Fairness to result in a quorum.
  • Finally, you might also look to see if similar matters were handled similarly.  If a proposal for a Comprehensive Plan amendment and rezone application to add an MRL overlay were subject to the Appearance of Fairness doctrine, for example, a proposal that appeared before the same body, on the very same night, to remove an MRL overlay (through a Comprehensive Plan amendment and zone change) would also be subject to Appearance of Fairness.  Consistent treatment -- that's what Fairness is all about.
    • Ms. Starkenburg-Kroontje represented a second client, asking for a mineral resource overlay removal, on Tuesday, but nobody raised a peep about Appearance of Fairness.  
This is pretty basic municipal law, but it’s not something that County Council members deal with every day.  So imagine that “their” attorney -- the attorney who has been providing the County Council with advice about the Growth Management Act, the attorney selected and paid by Whatcom County  to represent the County Council on pending land use matters -- tells them that they’re subject to the Appearance of Fairness doctrine.  What “appearance” does that create? 

It creates an appearance of reliability and authority, of course. 

Now imagine that the attorney who is giving this advice is also representing a private applicant.  Both the applicant and the attorney thus have an economic interest in the matter.  The attorney has an ethical obligation to her client, the gravel mine, to represent its interests to the fullest.  The interests of Whatcom County?  Um, gosh, not this time. 

How does that "appear"?


  1. Both Ken Mann and Pete Kremen conducted themselves well in the face of this SLAPP suit threat.

    Ken probably did a nose count and saw that there would not be four votes in the affirmative anyway, so that Concrete Nor'west request would fail, even if he recused himself.

    Pete stood up to the legalese bullying courageously, by saying that the complaint was "without merit". What a difference an election makes.

    Now, what did Council's own staff attorney (from the Prosecutor's office) advise Council members in regard to Starkenburg-Kroontje's BS? Was the staff attorney's opinion sought? Did it cover the same legal analysis that you used?

    Abe Jacobson

  2. Hi Abe,

    I don't know. Because Ken did recuse himself, perhaps it's reasonable to assume that the Prosecuting Attorney didn't contradict Ms. Starkenburg-Kroontje. And who could blame Ms. Frakes for that -- think how awkward it would be to second-guess Concrete Nor'west's attorney, Ms. Starkenburg-Kroontje, in front of Ms. Starkenburg-Kroontje's client, the County Council. It wouldn't engender the confidence in Ms. Starkenburg-Kroontje that the client (County Council) needs to have. And that's the impossible situation that the County has gotten itself into.

  3. Ms Starkenburg-Kroontje likely saw the votes coming and tried this Hail Mary. It was a huge stretch. And absolutely nothing will come of it.

  4. Things inside the County Courthouse are even worse than I thought. :(

  5. That pretty much sums it up, Michael.

    Dan, I think that this episode raises two issues of ongoing concern.

    First, are we (the people of Whatcom County) getting competent, disinterested, unbiased legal advice? Is that even possible when the Council and the Prosecuting Attorney's office have a close working relationship with the attorney for private applicants?

    As I mentioned above, there is no such thing as a "Hail Mary" move when it comes to Appearance of Fairness. Either it applied all along and the entire process was compromised because it wasn't treated as a quasi-judicial matter or it doesn't apply. If it had applied, at a bare minimum, the Prosecuting Attorney would have ensured that ALL Council members -- not just the ones likely to vote against the project -- disclosed ex parte contacts. But that disclosure did not take place.

    The second reason that this issue continues to matter is that it could have a chilling effect on subsequent matters. Will citizens be afraid to contact their Council representatives for fear that an applicant's attorney will pop up and say "Gotcha, that Council member can't vote, Appearance of Fairness"? There are more mining issues coming up, so this is not necessarily a one-time deal.

  6. Let's not lose perspective. The Starkenbergs have been a plague on the county for decades now. And McEachran's ties to the development community are hardly news.

    Thankfully, Jean, you and David remain.

    As for the electeds on the council, particularly my friends, remember the words of Edmund Burke, "It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do."