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HomeMy WebLinkAboutCouncil September 13 20111 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 WHATCOM COUNTY COUNCIL Regular County Council September 13, 2011 CALL TO ORDER Council Chair Sam Crawford called the meeting to order at 7:03 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Barbara Brenner, Sam Crawford, Kathy Kershner, Bill Knutzen, Ken Mann, Tony Larson and Carl Weimer Absent: None FLAG SALUTE ANNOUNCEMENTS (7:04:09 PM) Crawford announced there was discussion with Public Works Administration regarding potential litigation (AB2011 -018) and discussion with Senior Deputy Prosecutor Karen Frakes regarding potential litigation (AB2011 -018) in executive session during the Committee of the Whole meeting. MINUTES CONSENT (7:04:53 PM) Knutzen moved to approve items one through three. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. REGULAR COUNTY COUNCIL FOR JULY 12, 2011 2. REGULAR COUNTY COUNCIL FOR JULY 26, 2011 3. SPECIAL COMMITTEE OF THE WHOLE FOR AUGUST 9, 2011 4. REGULAR COUNTY COUNCIL FOR AUGUST 9, 2011 This item was withdrawn from the agenda. OPEN SESSION (7:05:32 PM) The following people spoke: • Larry Helm, Squalicum Lake Road, spoke on limiting the amount of gas one can carry in their trunk at one time for safety reasons. Whatcom County Council, 9/13/2011, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Elizabeth Kilanowski, spoke on the resolution designating Bureau of Land Management lands in the San Juan Islands as a National Conservation Area, including Chuckanut Rock, Lummi Rocks, and Carter Point in Whatcom County (AB2011 -271). Greg Brown submitted a handout (on file) and spoke about the resolution designating Bureau of Land Management Lands in the San Juan Islands as a National Conservation Area, including Chuckanut Rock, Lummi Rocks, and Carter Point in Whatcom County (AB2011 -271). (Clerk's Note: The speaker following Greg Brown requested that his /her testimony not be included in the minutes. The speaker's testimony is available on the meeting's audio recording.) PUBLIC HEARINGS 1. INTERGOVERNMENTAL FRAMEWORK AGREEMENT, UPLANDS LEASE AGREEMENT, AND TIDELANDS LEASE AGREEMENT FOR LUMMI ISLAND FERRY USAGE AT GOOSEBERRY POINT (AB2011 -238) (7:15:28 PM) Crawford opened the public hearing, and the following people spoke: Bud Jewell, Lummi Island, stated approve the agreement. It's the best they'll get. He doesn't like it. He has questions about safety improvements that include a sidewalk and project priorities. Stuart Rich, Protect Lummi Island Community (PLIC) President, submitted and read from a handout (on file). Lisa Wochos, PLIC member, stated she disagrees that it is wise to reject the lease and force a legal challenge. The current situation calls for a political solution, not a legal solution. They will grapple with the aftermath with the Lummi Nation. Now, get it done and over. The County did not assert it's right -of -way rights in the 1960's, for whatever reason. It was a mistake. Not approving this lease may force the County into legal action, which would have an overwhelming cost. Approve the lease. Mark Sexton, Lummi Island, stated the agreement isn't perfect, but approve it. There is no other reasonable option. Form a citizen advisory panel to review other transportation options to Lummi Island. A ferry to Fairhaven is not feasible for school children, the elderly, and emergency response. It would be more expensive than the Lummi request. Safety improvements aren't unrealistic and are within road funds collected from the Lummi Reservation. The Lummi Island Ferry Task Force recommends a fare structure that takes the lease costs into account. Vote for the lease. The costs to the County have not changed. Fred Kinney, Lummi Island, submitted and read from a handout (on file). Diane Harper, Lummi Island Ferry Task Force Member, stated the Task Force chose not to discuss the lease or make recommendations concerning it. However, it included the annual payment in its financial calculations. Fares can be lowered while still affording this lease. Dale Kinsley, Lummi Island, stated it's been a long two -year process. It's time to vote for the agreement and move forward. It's a compromise, and the final document Whatcom County Council, 9/13/2011, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 involves something to not like. There's also much to like, including the certainty of 35 years. The framework can and must work. There are no other alternatives. The Ferry Task Force recommendations are excellent. Continue with plans to continue the ferry long term. It's too late to disagree with the agreement. Louis Hunter, Lummi Island, stated he and other students rely on the ferry to commute to school. The controversy have caused people to leave their homes and move off the island. Students are affected by this decision. On behalf of the students, vote for and sign the agreement so they can be done. The disagreement has caused stress and difficulty for all, including the students. Islanders stand by their institutions. Cara Blake, Lummi Island, stated she thanks the Council for keeping the ferry running so she can get to school. It's important for people to count on the ferry. Sign the lease so they can count on the ferry running and to move on to other issues. Michael Schneider, PLIC member, stated the Islanders want to be done with this issue and move on. The Lummis aggressive stance is fueled by righteous anger over crimes committed to their people in the past. However, if reparations are owed, they're owed by the United States government, not 900 people on Lummi Island. The County legal counsel is recommending that they take this deal because it is the best they can do. This same person's name is on the old lease. Don't credit his advice. Don't approve the lease and pay three times the market value for land in the lease. Whichever way the councilmembers vote, they should state their reasons. Nancy Ging, Lummi Island, stated she agrees that Fairhaven is not an option. There is no other option. They need Gooseberry Point. Sign the lease and move on. The Task Force recommendations are wonderful. She doesn't like the lease, but they have to settle it. There isn't another alternative. Litigation is not a good option because it would involve the federal government and Tribes all over the country. It's a local issue. Michelle Luke, Lummi Island, stated PLIC hired a bus to get Lummi Islanders to the meeting tonight. Approve the lease. She doesn't like it, but there are no other options. Support the community. Kate Underwood, stated her family depends on the family for school and work. It has been stressful for her family to think the ferry would not be there or the agreement would not be signed. There is no other solution. These are great questions that should have been considered ten years ago. Sign the agreement. Families will have to abandon their homes and move to the mainland. Homes won't sell without a ferry agreement. Buffy Fox, Lummi Island, stated that although they may not like the negotiations, it's time to approve agreement. There is no option. Voting against the lease puts the residents in danger in terms of safety, job loss, and retaliation against ferry use. Sign the lease and allow them to move forward. Begin to consider the options tomorrow for what they'll do in 35 years. Jim Dickinson, Lummi Island, stated everyone on Lummi Island is scared that the lease won't be signed and the ferry will end. The result is due to bad legal work by Whatcom County that started in 1976, when the ferry right -of -way was included on an unrelated lawsuit. The original right -of -way from 1919 has never been voided. County legal staff decided not to investigate it. That's not good enough. Whatcom County should convene a grand jury to evaluate the right -of -way. The tideland lease is too expensive. The County can't pay more than market rates. The uplands are mostly owned by Whatcom Whatcom County Council, 9/13/2011, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 County, and the County can't rent its own property from someone else. The agreement voids all previous agreements, which would abandon road right -of -way without due process. There is no guarantee of no further action by the Lummis. There's no law that allows the Lummis to stop a road or ferry. There are many other options. Don't vote for the agreement. Tip Johnson, City of Bellingham, stated he doesn't have an opinion on the lease. He's not sure why the lease is necessary. The right -of -way was approved and has never been vacated. The courts ruled repeatedly that tidelands under federal navigable waters are subservient to navigation and have been taken without compensation for such use. The secrecy of the negotiations was damaging to positive things that could have come out of the discussion. Consider whether future discussion will be open. The history should be more thoroughly detailed in the documents. Make sure they have an ironclad escape clause. Don't do this for 35 years if there is a way out of it. Dan Gibson, Prosecutor's Office, stated he was not the legal advisor to the Council in 1988, which is a rumor that has been circulating. Hearing no one else, Crawford closed the public hearing. Knutzen asked if the negotiating team was aware of the unlimited foot passenger and vehicles rides for tribal members and employees. Crawford stated he won't go into the details of what was or wasn't said. The lease is before the Council. It was negotiated with a lot of effort over a long period of time. There were many meetings and hours of discussion. It was the Lummi's understanding that was part of the agreement in concept. That's what is before the Council. He doesn't recall making that specific commitment himself, but he doesn't speak for the Executive or attorneys who were present. Weimer moved to approve the agreements. Knutzen asked if the Executive was aware of certain points of the negotiations, including whether the last lease included unlimited foot passage for tribal members and whether vehicles and their employees were added. Gibson stated he and Mr. Knutzen have had this discussion. He was present at the negotiations. He specifically recalls the discussion. Subsequently, they added the term 'anon- commercial" as push -back against the notion that commercial vehicles would be able to use this free of charge. There is no question in his mind this was specifically discussed. It was part of the negotiation in the early stages of the discussion. It came up during the time that Ralph Jefferson was part of the discussion. Ralph was there during the first two meetings. Knutzen stated that in a successful negotiations, both parties feel uncomfortable with what is done in the end. There are certain parts of the agreement he didn't assume would be included. Free passage is one of those items. He's not clear if that was made before he was on the negotiations team. Crawford stated they did not discuss it during the second year of discussions, during which Councilmember Knutzen participated. It was brought up early on. Brenner stated no councilmember has worked with the islanders as much as she has. She was at the School Board when the school was going to be shut down. She was in the minority when they tried to raise rates. It was unilateral and did not have enough Whatcom County Council, 9/13/2011, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 substance. She didn't vote for it. The islanders are beaten down. She will not support the lease. If the lease passes, the islanders will be paying a lot more money. Many of the people on Lummi Island cannot afford any more. She was warned to be careful about what she says, because the attorney would get up and argue with her. She will say it anyway. The County has a legal right -of -way. She doesn't blame the Lummis for doing what they did, because every party to a negotiation wants the best they can get. She faults this County. She is very upset. She is not practicing law without a license. She spent a lot of time with two government attorneys who can't believe what they're doing. She is not an idiot. She did her homework. She's upset that everyone feels this is what they have to do. The County runs the ferry. The County owes the islanders and has an obligation to get the residents to and from the island every day. This isn't something the County can make go away. They just voted to do an $8 million bridge in a very rural area because it is the only ingress and egress. The County has to get them to and from that island. If the County avoids litigation, every party in the world will come at the County again and again. There are times when they can't avoid litigation. The County has legal right to operate until or unless the federal government steps in, which is what she wanted all along. She's really sorry. She wouldn't make a different decision if she lived on the island. She is part of the island. She's disgusted too. She can't do something that is morally and legally wrong. Mann stated he also doesn't like the lease, but it is the only option at this time. He's looked for a reasonable, reliable, affordable plan B that they could implement. There isn't one that they can put in place any time soon. He's more than happy to work on finding alternatives to Gooseberry Point and the Whatcom Chief. Every option is still on the table, but not in the short term. He will support the lease. He was on the negotiating team. This is the best deal the County will get from their negotiating team. The Lummi Nation would lose no sleep if the islanders stopped driving down Haxton Way. He didn't believe that at first during early negotiation sessions. By the end, he was convinced the Lummi Nation was willing to walk away. They put in a lot of time and stress. This is the best deal they can get. He doesn't agree with Councilmember Brenner's legal interpretations of the right -of- way. He's also researched it and talked with attorneys. It's not a viable course of action. Even though it would be interesting, it is an experiment best left in the mind. He hopes the Council approves this and moves on to the Lummi Task Force recommendations to save money and ferry service to Gooseberry. Kershner stated the funding of this doesn't affect her personally because she doesn't live on the island. She wants to acknowledge comments made tonight and in letters she received. People have said that the process damaged relationships, made the residence of Lummi Island hostage and created fear, mocked the public process, made the cost three times the market value, puts the County in a terrible bind. Usually it's easy to know the right decision is. This decision is the hardest she's had to make since being sworn in as a councilmember. She hates the lease, but will support the lease, because she wants the islanders to be able to put their lives back together. Knutzen stated someone said that the lease created a divide between the County and Tribe and created animosity. However, it has done the opposite. As a member of the negotiation team. Their relationship with the Tribe has gotten better since this started. They worked hard to achieve a deal. The original costs negotiated have come down substantially, and they've met in the middle. He will take the word of Mr. Gibson that certain things were negotiated before he was on the team. The current document had things added that he wasn't familiar with. The Tribe always treated them with respect. Some things were done that made him feel comfortable. They acknowledged each others' cultures. He hopes for a continued good relationship with the Tribe. He will vote for this. Whatcom County Council, 9/13/2011, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Weimer stated no one likes this lease, but they can't find a better financial or route alternative. In some way, the ferry makes the people on Lummi Island stronger. He's always impressed with how well they organize, problem - solve, and advocate for themselves. People who don't often agree have come to an agreement tonight after lots of discussion, even though it's not a popular decision for any of them. They need to form a citizen advisory committee ferries on the island. The Task Force presented great ideas on how to deal with the operation of the ferry. It can provide equally great ideas on how to look for alternatives to this ferry since there is a clear out clause. In the next couple of meetings, he will bring forward a proposal to form a permanent ferry task force. Larson stated this impacts the lives of real families. Here, they are talking about a lease that expired in February 2010. Most of the people say they have to do it even if it's not a good deal and they don't like it. He disagrees that this was the best deal they could get. They are playing three time the market rate plus the consumer price index (CPI). That's not a very good deal. That doesn't include parking. There are parking challenges that aren't included in the lease. He's not in favor of the free non - commercial uses for the Lummi Nation. He didn't know about that agreement until the lease showed up after they initially agreed. The Lummi Nation leveraged their fear. It was like the County had a gun to its head. The Lummi Nation used substantial amount of leverage, but the County did not explore its rights or the right -of -way early on in the process. They talked about a number of options that weren't explored seriously. He is most concerned that the County let the Lummi Nation know up front that the County wasn't exploring any of those options. The County got rid of its leverage. The County spent $15 million on the Lummi Nation in the last 20 years, yet the County wasn't prepared to use that as leverage for a better deal. The County had no leverage and the Tribe had substantial leverage. Their leverage was that every councilmember doesn't want to compromise the families on Lummi Island. He doesn't fault the Lummi Nation, because one puts their best foot forward during negotiations. The Lummi Nation played hardball, and the County played Nerf ball. He commends the councilmembers involved in the latter part of the negotiation process. The County started the negotiation at three times the market rate. There was nowhere to go from there. The only leverage was that the Council would not agree on the deal. He likes some pieces of the lease, includes the termination option. The $6 million is not a big deal, because the County would likely have spent that anyway. The councilmembers got a match dollar- for - dollar. He doesn't like the lease and will not support it. Crawford stated from the beginning of the process, it looked like the County would have to move the ferry to Fairhaven. The County did play hardball. He likes the agreement, and will support it. They got hung up on the land appraisal, but they all acknowledge that the appraisal didn't take into account the fishing impacts from running the ferry across the water 30 times per day. It didn't take the traffic impacts to Haxton Way into account. There is controversy over whether or not they can put a value on that. The lease amount of $200,000 is reasonable. This process enabled him to learn a lot about Lummi history, culture, and concerns. He respects them now, and believes them to be honorable. They've been put down by a lot of people through this process. They are real human beings with a vision of a better future for future generations of Lummis. They share concerns that all have. They are also striving to improve the physical environment, which is why they came back to the table in July 2010. They want to make significant improvements to the shared roads. He wants the County to be a partner in assisting the Lummi Nation and making those kinds of improvements. He will be proud when that happens. This is an opportunity to strengthen the relationship between Whatcom County government and the Lummi Nation. He will do what he can to promote mutually beneficial efforts between the Tribe and County. He thanked the folks who were involved, including Dan Gibson, who he's come to know well. There is a lot of criticism about the conclusions the Prosecuting Whatcom County Council, 9/13/2011, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Attorney's Office has reached regarding the County's rights and right -of -way. Attorneys are very restricted in what they can say, not knowing what the future holds. He is unable to have that dialog. However, no stone was left unturned. Every word was read, every conversation was had, and every legal aspect was considered. Some councilmembers may disagree with those legal conclusions. However, they have the best legal counsel who have reached the best conclusions based on the law. Executive Kremen, who participated in the entire process, deserves appreciation from the Lummi Islanders, Lummi Nation, and taxpayers of the county to keep this a high priority and for keeping the Council included in the process. It was an inclusive process. The councilmembers were updated every time there was a turn of events. Public Works Director Frank Abart is doing a great job. Councilmembers Mann and Knutzen came on board at the beginning of 2011 when they saw it would be beneficial to expand the negotiating team. He's glad they participated. On the Tribal side, he thanked Cliff Cultee, Henry Cagey, Richard Jefferson, Merle Jefferson, Diana Bob, and many others. They have a good deal. There is certainty for the islanders for the next 35 years. They can move forward with plans. Their next big task is to get a new ferry. Brenner stated she agreed with the $200,000 as an interim only because people were scared. She said it's too high, and they shouldn't be anywhere near that amount. She brought up the issue of right -of -way with the attorney, and was dismissed without any depth of consideration. Councilmembers have said they will approve this now and then work on something. She will hold them to that promise. She is concerned it won't happen because this passes. The motion carried by the following vote: Ayes: Crawford, Weimer, Knutzen, Mann and Kershner (5) Nays: Brenner and Larson (2) (Clerk's Note: The Council took a two - minute break at 8:29.) 2. RESOLUTION APPROVING THE WHATCOM COUNTY SIX -YEAR TRANSPORTATION IMPROVEMENT PROGRAM FOR THE YEARS 2012 THROUGH 2017 (AB2011 -267) (8 :31 :50 PM) Crawford opened the public hearing, and hearing no one, closed the public hearing. Brenner moved to approve the resolution. Mann asked Public Works Engineer Joe Rutan about the Bike and Pedestrian Advisory Committee (BPAC) recommendations. None of their projects made it onto the program. He would like to make amendments. He referenced Council packet page 729, item two, project 15 and asked why that stretch of Marine Drive was left off the transportation improvement program (TIP). Joe Rutan, Public Works Department, stated the County finished the Marine Drive project from the city of Bellingham north to McAlpine Road. One of the 21 projects removed from the TIP was the next phase of the project, which includes a bridge that is functionally obsolete, but structurally sound. As soon as there is any indication the federal government will again begin to fund bridges that are functionally obsolete but sound, he will apply for funding for that bridge. Mann stated that bridge is unsafe. Rutan stated it won't work to retrofit the vertical curve. For the cost, he recommends replacement. If they want, add the project to the six - year TIP as a longer term project. He prefers to do the sections in order. Whatcom County Council, 9/13/2011, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Mann stated the TIP is a wish list and should include projects in case funding becomes available. He asked the harm of including the project on the TIP. Rutan stated a few years ago, there were 63 projects on the TIP. It didn't provide a sense of being a six - year program. Staff worked to reduce the list to about 40 projects to reflect a true six -year program. Mann asked if any of the 14 recommendations from the Bike and Pedestrian Advisory Committee are on the TIP. Brenner stated they can't do much about the bridge on Marine Drive. She asked to widen the road from the bridge to Bancroft Street. Rutan stated that project is called Marine Drive three. Right now, Marine Drive two is on the six -year program. His recommendation is to add Marine Drive three to the program when the County completes the Marine Drive two project. Brenner moved to amend to include the Marine Drive three project from the bridge to Bancroft on the six -year TIP as item number 16. The Marine Drive three project is from Alderwood Avenue to the bridge over the railroad tracks. Project three is from the end of project two to the bridge, which is Marine Drive bridge 172. The bridge project is outside of the urban growth area. It would have a shared use paved shoulder. Mann asked the width of the shoulder. Rutan stated the shoulder is approximately a six- to eight -foot shoulder. Currently, there is a narrow gravel shoulder. It's a constant maintenance issue. As with all projects, the bulk of the cost is for drainage. They'll have to detain and treat it. They probably won't have to do much detention, since the bay is right there. Knutzen asked if Old Marine Drive is still accessible. Rutan stated it is. However, it doesn't cross the railroad. Knutzen asked if one could get around the bridge by going down Old Marine Drive and then using Wynn Road. Rutan stated the Railroad company has a serious issue with that option, because it crosses their facility. The bridge was designed to be the pedestrian crossing. The Railroad has no interest in allowing any type of crossing there, especially bicycles. Knutzen stated the councilmembers discussed earlier the option of alternate routes as a reason for not fixing a bridge that is damaged, and now they're looking at fixing a bridge that is structurally sound. He wondered if there are alternate routes for the pedestrian bridge. Rutan stated people have been using the alternate pedestrian route, and the Railroad company put up barriers to prevent the alternate route. Rutan asked how much money he should apply to the project, as a placeholder. He suggests designating $10,000 in year two or three. Brenner amended her motion to add $10,000 in year two or three as a placeholder for the Marine Drive three project, to be added as item 16. The motion to amend carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Mann and Kershner (6) Nays: Knutzen (1) Whatcom County Council, 9/13/2011, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Mann asked when it's likely that funding will become available for Marine Drive bridge 172. Rutan stated transportation funding is a big issue in the federal government. There's potential for funding for these types of projects. Mann moved to amend to add Marine Drive bridge 172 to the program as item number 18, and renumber the rest of the projects down the list, with $10,000 designated in years two or three. Brenner stated it's not a horrible bridge if people get off their bikes and walk across. Mann stated walking on the bridge is dangerous. Any driver would have to go over the center line to give a safe distance to pedestrians. Rutan stated he'd proposed to the BPAC installing a sign directing bicyclists to dismount and use the sidewalk. It's narrow and uncomfortable, but it was the standard at the time. There is a sidewalk on one side of the bridge. Kershner stated she's not opposed to the motion, but questions the order of the projects on the TIP. She asked the criteria by which the projects are ranked. Rutan stated the first criterion is what was approved the previous year. That's their starting point. They do consider the road rating program as a guide to develop maintenance and capital improvement projects. This is the capital transportation improvement program. They attempt to implement the Comprehensive Plan. Many of the projects have a lot of history to their ranking. Nothing prioritizes a project quicker than having someone willing to fund the project for the County. Kershner asked if the projects are really just listed to be available for any funding that comes along. Rutan stated the priority numbers are optional. Other counties have chosen to not prioritize projects, because it may confuse people. It's more important for a project to have funding. Larson stated he will support the motion. The six -year TIP is required by law. It provides the County an opportunity to get funding for projects that are on it. However, he reserves his right and ability to speak against a project at the time they come up for funding. If a project isn't necessary, it's a waste of taxpayer dollars, no matter from which government it comes. Rutan stated he understands. However, the federal Bridge Replacement and Rehabilitation Program funding is very competitive nationwide. If the County doesn't apply for and receive the funding, another jurisdiction will receive it. Larson stated that at some point, if it isn't needed, someone has to put a stop to the project. If the County says the funding isn't needed, maybe another community will say it's not needed. It's got to start somewhere. Rutan stated he understands, but he will continue to look for those funds wherever possible and bring them to the Council for its decision. Rutan continued to describe the BPAC recommendations. Regarding the Drayton Harbor trail, the County Council decided a few years ago to do Lincoln Road first. When Lincoln Road was committed, the County would engage the community on how it could be reconfigured. The Nooksack River trail isn't on the road network at all. Mann stated he was interested in the Kendall trail, especially now that the Resource Center is there. Rutan stated that is a State route. The State Department of Transportation would have to include it on their six -year TIP. The County can't use County road funds on State facilities. The County would have to work with the State through the Council of Governments (COG). The Northshore Road recommendation is on the six -year TIP. There Whatcom County Council, 9/13/2011, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 is controversy about how the project should be designed. It is a very dangerous road with no shoulders. Another BPAC recommendation, the Dewey Valley section of the Bay to Baker trail, is also on a State route. Crawford stated he is opposed to the motion. He respects the BPAC recommendations. He's concerned about the prioritization of this bridge. He's willing to put it on the list, but not as the top bridge priority. A number of projects have safety needs. He prefers that it be added to the bottom of the list. Brenner stated she agrees. Mann amended his motion and moved to include Marine Drive bridge 172 as item number 24 at the bottom of the bridge list. The motion to amend carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) Kershner asked about adding Ferry Task Force recommendations to the Lummi Island ferry list. Rutan stated the ferry list includes only capital improvements for the ferry. They don't have a lot of money for capital. They review the list every year. Kershner moved to include a new, replacement ferry on the list as a placeholder in case funding becomes available. The placeholder wouldn't obligate the County to do anything. Crawford asked if the Public Works Director endorses the idea. Rutan stated they had that discussion earlier. There is talk about funding for shovel -ready projects. The County has a design for a new ferry. Knutzen stated he supports the motion. There are some ferry items listed in the bridge repair and replacement list, which gives credence to the notion that the ferry system is considered a bridge. Rutan stated parts of the two docks are considered bridges. The motion to amend carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) The motion to approve the resolution as amended carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) CONSENT AGENDA (9:13:17 PM) Mann reported for the Finance and Administrative Services Committee, withdrew items one, seven, 11, and 12 and moved to approve items two through six and eight through ten. Knutzen withdrew item ten. The motion to approve items two through six, eight, and nine carried by the following vote: Whatcom County Council, 9/13/2011, Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. REQUEST APPROVAL OF THE ECONOMIC DEVELOPMENT INVESTMENT BOARD'S RECOMMENDATIONS FOR EDI FUNDING (AB2011 -281) Mann reported for the Finance and Administrative Services Committee and moved to approve the request. Vote to allocate the funds now, and schedule a discussion of water law and the contract specifics during a Surface Water work session. Crawford stated he will support the motion. His concerns have been addressed. Once they come up with a contract, they can specify they would like to reconvene the Water Resources Inventory Area (WRIA) One Planning Unit to provide input at the beginning of the contract and again toward the end of the contract. Brenner stated she has misgivings about any party that competes for water rights being in a position like this. The County is not a water purveyor, so it should be in that position. She hopes the Planning Unit will make that recommendation. She is in favor of the motion, given the conditions. Kershner stated she voted against the request during committee today because she is opposed to secret meetings that deal with issues in which the public has a vested interest. Also, she didn't understand how Economic Development Investment (EDI) funds could be used for this request. Now, she's concluded that water is essential to economic development. She will vote for this. She hopes the secret, exclusive meetings will cease. Larson stated he agrees with Councilmember Kershner. The Index Industries project requires double the original cost of the building. If those types of projects continue to come forward, he would like to see quantified what they will receive for the additional public funds. He will vote for it, but be aware of what exactly they're getting in the future. Crawford referenced an email from the Port received this afternoon. That money is all being paid by Index Industries over time, with the exception of $200,000. All those millions will be paid back. Mann stated he was astonished to hear that construction to Leadership in Energy and Environmental Design (LEED) gold status doubled the price of the building. He got the impression the Port representative didn't understand Councilmember Larson's question. He doesn't believe it doubled the cost. Larson stated the project cost is $2.9 million. The representative said they could have developed the building for $1.4 million without LEED gold status. That's a lot of money. There are other ways to raise building efficiency. Mann stated he agrees, but doesn't believe those figures are accurate. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) (Clerk's Note: Discussion of this item continued at the end of the Consent Agenda items, below.) Whatcom County Council, 9/13/2011, Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 2. RESOLUTION ORDERING THE CANCELLATION OF ACCOUNTS RECEIVABLE MORE THAN A YEAR OLD (AB2011 -282) 3. RESOLUTION ORDERING THE CANCELLATION OF WARRANTS MORE THAN A YEAR OLD (AB2011 -283) 4. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND EDUCATIONAL SERVICE DISTRICT 105 FOR THE ANNUAL HIDTA GRANT AWARD FOR PARTIAL FUNDING OF THE DRUG COURT COORDINATOR IN THE AMOUNT OF $30,000 (AB2011 -284) S. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES DIVISION OF BEHAVIORAL HEALTH AND RECOVERY TO PROVIDE FUNDING FOR SUBSTANCE ABUSE PREVENTION, TREATMENT AND OUTREACH SERVICES IN THE AMOUNT OF $3,390,024 (AB2011 -285) 6. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND THE WASHINGTON STATE MILITARY DEPARTMENT EMERGENCY MANAGEMENT DIVISION TO ENHANCE LAW ENFORCEMENT PREPAREDNESS AND OPERATIONAL READINESS ALONG THE INTERNATIONAL BORDERS OF THE UNITED STATES, THROUGH THE US DEPARTMENT OF HOMELAND SECURITY FFY2010 OPERATION STONEGARDEN PROGRAM, IN THE AMOUNT OF $793,815 (AB2011 -286) 7. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND BERGERABAM, INC. FOR DESIGN OF THE SEISMIC RETROFIT OF THE PORTAL WAY DAKOTA CREEK BRIDGE NO. 500, IN THE AMOUNT OF $163,838 (AB2011 -287) Mann reported for the Finance and Administrative Services Committee and moved to approve the request. Knutzen stated other bridges in other counties are being retrofitted without any visible cracks. This bridge was built in 1920, has visible cracked supports, and has shifted. That's alarming. The Council recently designated the area a limited area of more intense rural development (LAMIRD). Local businesses are located there and depend upon the bridge for their deliveries and access to Interstate 5. He supports the motion Brenner stated she is against the motion. The Council has to say no somewhere. It would add only four minutes to take an alternate route, if the bridge were closed. Don't compare it to other bridges that don't have alternate routes. It seems like the road fund is not able to sustain itself. Frank Abart, Public Works Department Director, stated they are starting to see a decline in the road funds, which makes this project more attractive. They are likely to get 100 percent funding to make the repair. Without it, the County would have to make alternate plans if the bridge fails. The staff is very concerned the bridge will fail, and someone will get hurt. Whatcom County Council, 9/13/2011, Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Knutzen stated they talked earlier about the importance of bicycle and pedestrian access. There is zero bicycle or pedestrian access on Interstate 5. An alternate route that is four minutes longer is only for vehicles. The bicycle and pedestrian traffic between Semiahmoo and Blaine and between Birch Bay and Blaine will be nil. Pete Kremen, County Executive, stated he thanks Councilmember Knutzen for his accurate view of the issue. Congressman Larson is coming to Whatcom County for a tour. The Congressman asked for a tour of the bridges in Whatcom County that need the most attention. This particular bridge will be on that tour. It's possible they may be able to secure federal funding to address this glaring problem with the bridge. They must fix infrastructure that needs fixing, and can also provide local jobs. Larson stated he is against the motion. This is a seismic retrofit, and the probability of the bridge failing due to seismic activity is unlikely. Unless there is a major earthquake, the bridge won't fall down. If there is a major earthquake, the County will have problems more serious than that one bridge. There are area alternative routes. The bridge is very stable. This is an investment of $2 million. It's not the highest priority. Knutzen stated they voted to spend $11 million for Potter Road bridge. There is no other way to get a bicycle from Blaine to Semiahmoo. Mann stated there is. There is Blaine Road and Peace Portal Drive. State Route 548 goes over Dakota Creek. Knutzen stated the Potter Road bridge didn't have any noticeable physical damage. Brenner stated the Potter Road bridge was an imminent problem. Kershner called the question. Brenner asked how Potter Road bridge compares to this bridge, in terms of not being functional. Chris Brueske, Public Works Department, stated Potter Road bridge has a sufficiency rating of 11.9 out of 100. That's not a probability. It is a metric based on the condition of all the various elements. Dakota Creek bridge is rated now as 47 or 48 structurally deficient. Both are structurally deficient. Kershner stated she asserts calling the question. The Councilmembers are not engineers. The motion carried by the following vote: Ayes: Crawford, Weimer, Knutzen and Kershner (4) Nays: Larson, Brenner and Mann (3) S. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A GRANT AGREEMENT BETWEEN WHATCOM COUNTY AND THE WASHINGTON STATE DEPARTMENT OF COMMERCE FOR GRANT FUNDING TO SUPPORT THE NORTHWEST REGIONAL DRUG TASK FORCE IN THE AMOUNT OF $171,797 (AB2011 -289) 9. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO APPROVE THE PURCHASE OF FIVE PURSUIT VEHICLES FOR THE SHERIFF'S OFFICE USING Whatcom County Council, 9/13/2011, Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 THE WASHINGTON STATE CONTRACT FOR VENDOR, COLUMBIA FORD, IN THE AMOUNT OF $131,086.75 (AB2011 -290) 10. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO AWARD BID #11 -66 AND ENTER INTO A CONSTRUCTION CONTRACT WITH LOW BIDDER, HB HANSEN CONSTRUCTION, FOR THE CONSTRUCTION OF THE LILY POINT TRAILHEAD AND PARKING LOT IN THE AMOUNT OF $198,072.24 (AB2011- 291) Mann reported for the Finance and Administrative Services Committee and moved to approve the request. Knutzen stated he's concerned with the size and scope of the project. There is already parking there. Neighbors are concerned that the project is too big. Brenner asked if staff talked to the lawyers who sent the letter. Rob Lamb, Parks and Recreation, stated they didn't. They just heard this afternoon about the letter from the attorney. They never got a copy of the email. Brenner asked why it doesn't have merit. Lamb stated the Planning and Development Services Department is the lead agency on State Environmental Policy Act (SEPA) reviews. They submitted the SEPA review on May 4, 2011. He described the SEPA timeline. By July 12, 2011, there were no comments on the SEPA application. Brenner asked if he disagrees that the process was flawed legally. Lamb stated he does not agree with that analysis. He also disagrees with other things in the memo, which contains misinformation. It asserts that 30 cars cover 1 Y2 acres. That's false. The parking lot covers .53 acres. The memo says that the parking lot is a clear cut of 1 Y2 acres, but it's not. The memo says little information about the proposal was provided to the public in advance of the Council action. However, they had four public meetings in Point Roberts and Bellingham. All the information was published on the website beginning in May 2011, including the SEPA checklist and the MDNS. The memo says a parking lot exists nearby. However, that's not true. People are forced to park on the shoulders of an APA Road, which the Public Works Department discourages. Also, there is no wheelchair access or pedestrian accommodations. Visitors are forced to walk in the traffic lanes. It's not a busy road, but it's still a conflict. The memo says the parking lot was designed without consideration of bald eagle habitat, which is the reason the property was acquired. That's not true. The Washington State Department of Fish and Wildlife was contacted in March 2011. He provided the design drawings and indicated that anticipated impacts included vegetation removal. The Department issued a bald eagle management plan on March 25, 2011 that allows the County to provide those impacts, with conditions to protect bald eagle habitat. County parks met with individuals who had concerns, as well as with the Department of Ecology and Land Trust to review the drawings. Their real concerns were about the trails, not the trailhead or parking lot. According to a representative of the Department of Fish and Wildlife, there is no objection to the effects of the proposed parking lot and trailhead. The concerns were with the increased visitation to the forest uplands, which has eagle habitat. The County agreed to work with them on locating the trails away from known nesting sites. They are delaying trail construction until they have baseline data to provide guidance on trail location. Whatcom County Council, 9/13/2011, Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Mann asked how the lawyers got the information about 1 Yz acres. Lamb stated he doesn't know where that comes from. The actual footprint of the circular parking lot is half an acre. The center of the circle is native vegetation with no impact. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 11. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO RENEW INSURANCE FOR THE WHATCOM CHIEF FERRY FOR POLICY YEAR 09/30/2011 THROUGH 09/30/2012 IN THE AMOUNT OF $35,136 (AB2011- 292) This item was withdrawn from the agenda. 12. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY AND HENEFIN CONSTRUCTION LLC FOR PAINTING THE ROEDER HOME, IN THE AMOUNT OF $16,799. 54, FOR A TOTAL AMENDED CONTRACT AMOUNT OF $44,966.24 (AB2011 -298) Mann reported for the Finance and Administrative Services Committee and moved to approve the request. In his opinion, the contract low- balled the bid, and deliberately tried to add change orders. Crawford stated that goes too far. There was a lead based paint removal that wasn't bid. The contractor got the bid without it, and stated how much more was needed to remove the lead -based paint. Don't say it was intentional. They don't know the circumstances. Mann stated that's correct, they don't know the circumstances. However, a very low bid came in for the project, the contractor was awarded the bid, and then the contractor issued a change order for a very large amount that went over the original approved budget, even though their total expenses are more than other bidders on the contract. Don't authorize the change order. Instead, re -bid the contract to start again and save some money. Crawford stated the Council can reject the contract and start the process over again. It will be clear to everyone that lead -based paint removal is involved. The successful contractor can bid like everyone else. Mann stated he finds it hard to believe that any contractor didn't know there was lead -based paint in this 100 -year old building. Knutzen stated he would like to see the Roeder Home used in a way that the County receives a return on its investment. The Parks Department can put offices there. Other buildings can be used for storage. This was donated to be used for parks. Pursue using this facility for Parks Department offices or something along those lines. The motion failed by the following vote: Ayes: None (0) Nays: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Whatcom County Council, 9/13/2011, Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 1. REQUEST APPROVAL OF THE ECONOMIC DEVELOPMENT INVESTMENT BOARD'S RECOMMENDATIONS FOR EDI FUNDING (AB2011 -281) (Clerk's Note: Discussion continued from above.) Desler stated the EDI recommendation included three parts: the adjustment to reflect a change in the assignment of where the money goes; the Index Industry program, and; the PUD program. He anticipates moving forward with the recommendation to adjust the fund assignments. OTHER ITEMS 1. RESOLUTION IN SUPPORT OF DESIGNATING BUREAU OF LAND MANAGEMENT LANDS IN THE SAN JUAN ISLANDS A NATIONAL CONSERVATION AREA INCLUDING CHUCKANUT ROCK, LUMMI ROCKS, AND CARTER POINT IN WHATCOM COUNTY (AB2011 -271) (9 :47 :10 PM) Crawford reported for the Natural Resources Committee and moved to approve the substitute version of the resolution as approved by the committee and with corrected scrivener's errors. Mann asked if they ever received information on any restrictions this will place on the land. Crawford stated the Bureau of Land Management (BLM) is not creating any restrictions. It completely depends on the public input process, which may take five to ten years after the designation is made. The BLM will not be able to sell the land for private use. Knutzen stated he appreciates the skepticism. They've looked for negative consequences of a designation, but he can't find any. There is no downside. Crawford stated they don't even know if this designation will occur. Congressman Larson is committed to bringing it before Congress. If that happens, he's committed to participate in this issue. He's interested in the recreational boating aspects. They also have a vested economic interest to make sure the shipping traffic isn't impeded. This will attract people nationally to the San Juan islands, which will have an economic benefit of increased tourism. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 2. ORDINANCE REVOKING ORDINANCE 96 -032 WHICH ESTABLISHED THE WHATCOM COUNTY MENTAL HEALTH AND SUBSTANCE ABUSE REVOLVING FUND (AB2011 -259) (9 :52 :46 PM) Mann reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. Whatcom County Council, 9/13/2011, Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 3. ORDINANCE AMENDING THE 2011 WHATCOM COUNTY BUDGET, EIGHTH REQUEST, IN THE AMOUNT OF $113,984 (AB2011 -269) (9:53:40 PM) Mann reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. Crawford stated he will support the Sheriff's Office request because additional funds related to interest income will become available and because of the gang violence that occurred recently at the Northwest Washington Fair. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen and Kershner (6) Nays: Mann (1) 4. ORDINANCE AMENDING THE 2012 WHATCOM COUNTY BUDGET, FIRST REQUEST, IN THE AMOUNT OF $229,415 (AB2011 -270) (9:55:41 PM) Mann reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) S. RESOLUTION TO ELECT EXPENDITURES OF NATIONAL FOREST RELATED SAFETY -NET PAYMENTS UNDER PL 110 -343 (AB2011 -280) (9:56:49 PM) Mann reported for the Finance and Administrative Services Committee and moved to approve the resolution. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 6. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT AND ROSARIO ARCHAEOLOGY, LLC FOR ADDITIONAL SERVICES NECESSARY TO COMPLETE THE CHAREL TERRACE DRAINAGE IMPROVEMENT PROJECT, IN THE AMOUNT OF $60,004.29 FOR A TOTAL AMENDED AMOUNT OF $74,526.02 (AB2011 -288) (9 :57:19 PM) (Clerk's Note: Council acting as the Whatcom County Flood Control Zone District Board of Supervisors.) Mann reported for the Finance and Administrative Services Committee and moved to approve the request. Whatcom County Council, 9/13/2011, Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) OTHER BUSINESS (9:59:47 PM) Larson stated the Council made a motion about putting an ordinance together about premium pay. The Council also passed a motion about reviewing budget items in the general fund. He would like to separate those two issues. He received a copy of the memo from the Prosecutor to the administration. He disagrees with the memo. He would like to discuss the issue. He asked if the administration is prepared to introduce an ordinance on September 27. He asked if there is some reason the administration needs him to prepare an ordinance. Dewey Desler, Deputy Administrator, stated a lot of discussion about this issue occurred at the end of the meetings on July 26 and August 9. He said the administration would construct something. He also said that he wants Council assistance because the topic is very broad. Larson stated Councilmember Brenner's motion was very broad, and his motion was very specific. Desler stated they're both together. Larson stated he wants to separate those motions. Desler stated he wanted to ask a series of questions of the councilmembers, but the Deputy Prosecutor resisted because it should be discussed in an open meeting. He then sent a memo to the Council and asked the Council to bring the material to a meeting and talk about it. Today's Finance Committee meeting didn't have time to deal with it. He is prepared to talk about it at the next meeting. The Prosecutor has good, solid legal advice that needs to be incorporated in Council decisions regarding supplemental compensation and the adjustment to the budget. For now, he suggests a work session or a discussion during a Finance Committee meeting. First, read the questionnaire that he sent. Larson stated he perused the questionnaire. Mr. Desler is combining the motions. He's asking the administration to separate them. His motion was very specific regarding an amount of $176,760. That is very specific, and doesn't require a broad conversation and multiple meetings. It requires an ordinance to come forward. He would like an opportunity to discuss the ordinance. He received a copy of the memo from the Prosecutors about which he has questions. Mr. Desler, the Prosecutor, and the Executive all receive premium pay. This needs to be a transparent and open discussion. He asks how he should move forward. Desler stated the technical term is supplemental compensation. He suggests that the Council discuss it at a work session or at the next Finance Committee meeting. Councilmember Crawford recommends the same thing. Larson asked if the administration is prepared to provide the details of the supplemental income, including who receives it. Desler stated he is. Larson asked if it's the administration's opinion that it's against the State Constitution to eliminate supplemental pay that was put forward by Executive order. Desler stated the administration will follow the advice of the Prosecutor about how it impacts elected officials. He recommends following the advice of the Prosecutor. Whatcom County Council, 9/13/2011, Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Larson stated he didn't see advice in the memo from the Prosecutor. He saw an opinion that the administration requested. David McEachran, County Prosecutor, stated the specific question he was asked was if an ordinance could be passed that would remove the supplemental pay. Brenner stated it was listed in last year's budget as premium pay, not supplemental compensation. Last year, she made a motion to eliminate it. Mr. Desler stated the Council couldn't do that. Mr. Desler said they couldn't prevent people from getting their compensation. She supports transparent compensation. Premium pay is a flat amount of money. She wants the administration to do it a different way. People have said that it would cost the County more, but those are the people who receive a lot of money. The public should get to see the salary and the premium pay. Kershner stated she would like to complete the rest of the agenda before continuing discussion. Brenner stated she would rather it be discussed during Finance Committee or a work session. Larson asked if they are prepared to put together an ordinance. The Council requested an ordinance with a vote of 5 -2. He asked if the Prosecutor considers the supplemental pay a salary. McEachran stated he does. It's compensation, which is exactly what the Executive Order indicated. Executive Order from 2004 indicates it is supplemental compensation. It is treated as taxable income to all those individuals who receive it. It's taxable income that is part of the compensation and part of the salary. It's part of compensation for the job. It includes various components that are set forth in it. It is part of the paid package that goes to all the people who receive it. Whenever they look at changing pay, there are two classifications of people. The first is the elected officials. The second is those who are not elected officials. The analysis is different due to the different positions. The Constitution includes a provision in Article XI, Section 8, that indicates the salaries of all the officers shall not be increased, except as provided in Article XXX or diminished after his election or during his term of office. The funding bodies, such as the County Council, should be prevented from punishing the enemies or helping their friends, as the courts have looked at this. This was visited again in 1968 after an amendment to allow an increase in salary. However, the provision about not diminishing salary wasn't touched. The reason may have been because of inflation. The Attorney General's office also looked at changing salaries, and reported that diminishing a salary during a term of office is in violation. The salary of elected officials is a Constitutional issue. The salary of appointed officials is not Constitutional, but may create problems with contractual obligations. If a hiring package is indicated to be money as well as a supplemental income, there is a contractual obligation that could raise liability issues to the County. Crawford asked if the Council could reduce the salaries due to financial restraints when most of the elected officials start a new term next year. McEachran stated it would be legal to start at the beginning of a new term. Whatcom County Council, 9/13/2011, Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Crawford stated it would be proper to have that discussion for the new terms starting in January 2012 for certain elected officials. McEachran stated that is correct. Brenner stated she agrees with Mr. McEachran, but that is not what they're talking about here. They have money in the budget for transportation and other things. Most of them don't use it. If they used it, they would be taxed on it. They don't use it. McEachran stated they wouldn't be taxed on it. Crawford stated they don't get taxed on expense reimbursement. Brenner stated the pay is supposedly like the formula because it's not transparent. she would have to fill out if she wants to get people their compensation. Just change the done, so it's transparent to the public. a flat expense reimbursement. She doesn't She wants the people to have to fill out what reimbursed. That's what the pay is for. Pay formula. She only wants to change how it's Larson asked if the pay increased to the following election term when the order was passed in 2004. McEachran stated the pay could increase with that term. Amendment XXX allows that to happen. Larson stated he argues that it is not salary. Salary is a public record. The premium pay is not a public record. McEachran stated it is a public record. Larson stated one would have to dig very deep for it. The argument was to have certainty of salary, and the salary would not change. That's not to say whether the County Council decides the County can no longer allow a car allowance due to a $6.4 million budget shortfall. They are not talking about cutting salaries. He asked if they could cut a vehicle allowance. McEachran stated they could, depending how it was done. However, this was done as a form of compensation. According to Amendment XXX, the compensation cannot be decreased. It is compensation because it is taxable to all who receive it. It's not like a reimbursable expense. It was done because the Executive's Office felt it was cheaper to do that than provide vehicles, phones, and other requirements. Larson asked if the Executive can essentially choose to change anyone's pay by Executive Order, and go around the Council. The Executive is not allowed to change his pay, but he got the supplemental pay. McEachran stated the County Executive would have to go through a process that is approved by Superior Court judges. Larson stated the County Executive created an Executive Order that allows a Superior Court judge to decide whether he gets a supplemental increase. McEachran stated it would be up to the Superior Court judge to make that determination. Larson asked if the Superior Court judge got an increase. McEachran stated he doesn't know. Larson asked if the Constitutional issue relates only to increasing and decreasing pay for an elected official during their term. The question is whether the pay is salary or supplemental pay. The whole purpose was to avoid filling out mileage reports. McEachran stated it is compensation that is taxable income. Larson asked if the County adds $800 onto the salary if it were advertised in public. McEachran stated it is part of the package the contracted department heads received and Whatcom County Council, 9/13/2011, Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 agreed upon. That's why he indicated in the memo that there would be contractual obligation problems if that is suspended, because it has been extended as part of the pay. If they have relied on that, the Council can't pull it away as part of the contractual obligation. Larson asked if the County cannot reduce someone's salary if the budget is tight. McEachran stated they can't reduce the salary unless they are willing to be sued. Larson asked if they have long -term contracts with those employees who are not elected officials and who receive the supplemental pay. He asked if the contracts are written. McEachran stated he's quite sure the County has obligations to people who have been hired. He can't say if all the terms are written. If the supplemental pay is stated as part of the pay, and the employee relies on it as a contract with the County, removing it will subject the County to an obligation and liability. Larson asked if the Council could decide to eliminate the pay at the end of term by ordinance. He asked how the Council would deal with the Executive Order. McEachran stated they could enter into discussions with the Executive about how they want that to occur. Larson asked if the Executive could rescind the previous Executive Order, by a new Executive Order. McEachran stated he would have the same problem as the Council. He could do that in the future, as of the new term. Larson asked if the obligation to appointed officials goes into perpetuity regardless of whether there is a written employment contract. McEachran stated it depends on what was done during negotiations. If the employees are hired at -will, it could extend through the Executive's term of office. Or, it could be done annually. They'd have to look at each employment agreement individually. Brenner stated she's not concerned about the hired people as much as the elected officials. The salaries of the elected officials are stated publicly. She doesn't believe the pay is embedded in the salary that is made public. The pay was only found due to a Freedom of Information request. Since then, it was published in the newspaper. The elected officials are supposed to be transparent. There's nothing to prove that it would cost the County more if the expenses have to be reimbursed upon request. She asked how can something so non - transparent be legal and not have to be stated as part of the salary. McEachran stated it's part of the total compensation. Knutzen stated he thanks Mr. McEachran for talking to them. He asked how Snohomish County got around this with their salary commission. McEachran stated the only way to do that is outside the term. He hasn't seen their ordinance. They can't change it during the term. Larson asked if the appropriate process for the elected officials would be to rescind the pay by ordinance and if the County Council can submit that ordinance. McEachran stated an ordinance would suffice, as long as it is between terms for those officials. Larson asked if the County still has liability, regardless of whether or not there is a written contract. McEachran stated he doesn't know what happened during the job negotiations. If there was an agreement, it is a binding contract and Whatcom County will be obligated. Whatcom County Council, 9/13/2011, Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Larson asked how they deal with the length of that obligation if it isn't written. McEachran stated they would have to sit down and determine the length of the agreement. Desler stated the administration generally avoids written employment contracts. The written letter of appointment and County policies in effect serve that contractual role. The written documentation is embedded in that material. Larson asked if Mr. Desler can help the Council put together an ordinance for the elected officials and provide the Council with information on contracts that exist for the list of folks who are receiving the supplemental pay. Desler stated he will provide the information. The Executive Office is ready to assist the Council. Before constructing an ordinance, he would like to know what the Council is trying to achieve with the ordinance. The purpose of this discussion is so the Council receives all the information and understands all the costs and past procedures. The Council may realize that the administration has saved money with this approach. Larson asked for information that indicates the reason some people receive certain pay amount and others receive a different pay amount. Desler stated he will provide that information. Larson stated he would like to get the information he's asked for and talk about it further. He would like a list of the people who receive the pay and to know who has a written contract and who doesn't, the expectations of those employees who don't have written contracts, how the administration reached the specific compensation amounts for each person, and what those amounts are supposed to include. Mann stated they can discuss this in Finance Committee in two weeks. It's worth discussing further, but he doesn't endorse it one way or another. Brenner asked what the administration wants to do about her motion to look at other places to cut. Desler stated he hopes all the councilmembers review his questionnaire. The staff have laid out a program for the County budget for two years. The Council made some adjustments, and then adopted it. They even discussed the issue of supplemental compensation last fall as part of the budget process. The administration believes that the larger discussions about the budget ought to be done through the larger budget development process. They are preparing to go through a mid - biennial review in October and November. That's the time to adjust things for 2012. The administration is working on that. If the Council wants to work outside of that process, have a broader discussion of priorities. It's tough to do that. He's never been able to do good, quality, priority- setting with the Council, especially on broad, global issues. Brenner stated she prefers to go through an annual budget process. Instead, they are to review these cost savings and other things every year. All she saw were necessities. She is looking for things that are nice to have, but not necessities. Mann stated this conversation started because the Sheriff asked to reinstate two deputies. The purpose of reducing premium pay was to fund the two deputies. He asked what they are going to cut to pay for them, given the continuing declining balance. He doesn't know how premium pay became the focus of how they are going to make up that money. If they do this in Finance Committee, he would be happy to hear other ideas from Mr. Desler about achieving that budget neutral idea. Brenner stated that was her motion. Whatcom County Council, 9/13/2011, Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Desler stated he would like to hear from the Council about what they would like to have happen. He provided a series of options and questions. Read them, and call him. He also said that even with the additional costs of two deputies, the administration still predicts that the County will be $500,000 above the balance anticipated last November. Also, they were able to move $1.5 million from other accounts into the general fund. In a sense, they've come a long way in the last year to stabilize the County budget. Larson stated that if pay can never be reduced because of budget shortfalls due to the liability of an oral contract, it would be a reason to transition the pay into a reimbursement instead of a salary. He asked if the Executive Order has to be eliminated, or if the Council could adopt an ordinance. McEachran stated that could be done by ordinance, or the Council can work it out with the administration. Larson asked if they can transition the pay into a different structure to eliminate the liability, so it could be modified in the future if necessary. McEachran stated they could work something out with the folks who are not elected officials. OTHER ITEMS 7. RESOLUTION ADOPTING THE WHATCOM COUNTY MULTI - JURISDICTIONAL HAZARD MITIGATION PLAN (AB2011 -293) (Clerk's Note: This item was withdrawn and added to Introduction Items.) 8. RESOLUTION OF THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS ADOPTING THE WHATCOM COUNTY MULTI - JURISDICTIONAL NATURAL HAZARDS MITIGATION PLAN (AB2011 -294) (Clerk's Note: Council acting as the Whatcom County Flood Control Zone District Board of Supervisors. This item was withdrawn and added to Introduction Items.) 9. REQUEST CONFIRMATION OF THE COUNTY EXECUTIVE'S APPOINTMENT OF DAVID FRANKLIN TO THE WHATCOM COUNTY ETHICS COMMISSION (AB2011 -295) (10 :45 :11 PM) Brenner moved to confirm the request. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 10. REQUEST CONFIRMATION OF THE COUNTY EXECUTIVE'S APPOINTMENT OF JENNIFER URQUHART TO THE POINT ROBERTS COMMUNITY ADVISORY COMMITTEE (AB2011 -296) (10 :45 :26 PM) Brenner moved to confirm the request. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) Whatcom County Council, 9/13/2011, Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 INTRODUCTION ITEMS (10 :45:54 PM) Crawford stated item one has been held in committee. Brenner moved to accept Introduction Items two through six. The motion carried by the following vote: Ayes: Larson, Crawford, Brenner, Weimer, Knutzen, Mann and Kershner (7) Nays: None (0) 1. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE TITLE 17, FLOOD DAMAGE PREVENTION (AB2011 -242) 2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY ZONING MAP FOR APPROXIMATELY 470 ACRES SOUTH OF DRAYTON HARBOR ROAD AND NORTH OF LINCOLN ROAD, FROM THE DESIGNATION OF RURAL 1 UNIT PER 10 ACRES TO RURAL 1 UNIT PER 5 ACRES (AB2011 -274) 3. ORDINANCE AMENDING THE 2011 WHATCOM COUNTY BUDGET, NINTH REQUEST, IN THE AMOUNT OF $1,418,987 (AB2011 -297) 4. ORDINANCE AMENDING THE COMPREHENSIVE PLAN, URBAN GROWTH DESIGNATION AND COMPREHENSIVE PLAN AND ZONING MAP DESIGNATIONS FOR PROPERTY IN THE YEW STREET RESERVE UGA (AB2011 -210) 5. RESOLUTION ADOPTING THE WHATCOM COUNTY MULTI - JURISDICTIONAL HAZARD MITIGATION PLAN (AB2011 -293) 6. RESOLUTION OF THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS ADOPTING THE WHATCOM COUNTY MULTI - JURISDICTIONAL NATURAL HAZARDS MITIGATION PLAN (AB2011 -294) OTHER BUSINESS (Clerk's Note: See above.) REPORTS AND OTHER ITEMS FROM COUNCILMEMBERS (10 :47 :06 PM) Brenner stated she attended a democracy school that she recommends to other councilmembers. It's an organization that invited her. Larsen stated they recently loss of Don Haggen, an icon in the business community. His company was an example that demonstrates how important it is to support local businesses. The Airport Advisory Committee toured the new airport terminal. It's extraordinary and state -of- the -art. Scotty Brown's will be there next year. They can expand to international flights. Whatcom County Council, 9/13/2011, Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 1 1 1 1 z z The Northwest Business Expo and Technology Showcase is on October 20, 2011. He described various events that would occur during the day. ADJOURN The meeting adjourned at 10:49 p.m. The Council approved these minutes on October 11 , 2011. ATTEST: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Please contact the Council Office to obtain an official, signed copy: 360- 676 -6690 or council &o.w hatcom .wa.us Whatcom County Council, 9/13/2011, Page 25