HomeMy WebLinkAboutPublic Works July 14 19981
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WHATCOM COUNTY COUNCIL
Public Works and Capital Projects Committee
July 14, 1998
The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the
Council Committee Room, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Marlene Dawson
Tom Brown
Absent:
COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 2.28, CREATING THE
WHATCOM COUNTY HORTICULTURE PEST AND DISEASE BOARD (AB98 -237)
Brenner stated that she agreed with Hoag's proposed amendments. She spoke with a proponent
of the ordinance who said that organic farmers thought the ordinance was just fine. Since then, Hoag
talked to organic farmers that didn't agree. She is more comfortable with Hoag's changes.
Dawson thanked Hoag for her organization. There are only four members appointed by the
County Council. The organic farmers' concerns are addressed. It would be too restrictive to have one
member be required to be involved in organic farming.
Brenner proposed to attempt to have one member be an organic farmer, unless one is not
available.
Brown suggested adding language, "if there is an available organic farmer." This board means
that the average citizen has no representation on the board. This ordinance affects the average citizen.
He proposed one member of the board be a general citizen. The person specified to have practical
knowledge is reserved for an expert.
Hoag questioned whether it would be contrary to State law to require that the average
homeowners would be represented as one of the four positions or whether they could add an extra
member.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that the board composition could not be
added. She would look into it further before the evening Council meeting.
Steve Mach, Guide Meridian, stated that section 2.28.130 received Assessor and Treasurer input.
The Council needs to make a determination of whether this is going to be added to current expense or
create a taxing district. Frakes stated that this operates identically to the Noxious Weed Board, it does
Public Works and Capital Projects, 7/14/98, Page 1
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not create a special district. He was concerned that there is no budget.
Brenner stated that this will go into the general fund, but will not be dedicated. This is not a
levy. Money could be taken from another program to fund the board.
Hoag questioned whether the language obligates the Council to fund the board. The Council
decides what is sufficient. Frakes stated that if they don't fund the board, then they would abolish the
board.
Hoag also questioned taxing differently according to the crops that were being dealt with.
Brenner responded that is information the board would determine.
Tom Thornton, 6906 Goodwin Road, Everson, stated that there would be dialog between
growers and the board, if the Council doesn't fund the board, and growers may put up the money to fund
the board.
John Belisle, 231 Ten Mile Road, Lynden, stated that as years go by, the needs would change.
Nothing may happen for a long time, but at least the County would be prepared.
Hoag questioned the flexibility that would exist.
Belisle stated that he looked into other counties. Everyone finances their board differently. The
flexibility is there.
Brown questioned section 2.28.070 regarding right of entry. There needs to be multiple attempts
of notification, including a hanging card. He proposed three attempts. Brenner responded that two
attempts on separate days, including the door hanger, would be better.
Brenner moved to allow two attempts to notify the homeowner on separate days, and leaving a
door hanger, as definition of reasonable attempts of notifying the homeowner.
Hoag suggested adding language, "After making two unsuccessful attempts on separate days,
including leaving a door hanger, to contact said owner..."
Todd Sewell, 1197 Willeys Lake Road, Ferndale, questioned whether they would have to contact
the owner or occupant.
Brenner stated that it should be the owner.
Mach stated that an owner would have liability.
Hoag stated that the owner question was discussed at a previous meeting. It was decided to deal
with the owner. However, for the Pest Board to operate, it will be onerous for the Pest Board to get in
touch with an absent owner.
Public Works and Capital Projects, 7/14/98, Page 2
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Belisle stated that there are two issues that are enforcement of a procedure and an inspection that
precludes any enforcement. In this section, they are talking about the simple inspection that precludes
any enforcement.
Brenner stated that, in that case, it should be the resident.
Thornton stated that this board could follow the same protocol as the Noxious Weed Board.
Frakes stated that language in the Weed Board ordinance matches State law.
Sewell questioned whether there are more items for which the board would determine policies
and whether they must comply with State law. Brenner stated that is what she expects.
Hoag stated that a lot of farmland does not have homes, so specifying contact of a resident would
not work.
Brenner suggested saying "owner or resident."
Brenner moved to add language to section 2.28.070, "...may enter upon any property after
making two unsuccessful attempts on two separate days, which include leaving a door hanger, to contact
the owner for the purpose..."
Motion carried 2 -1 with Dawson opposed.
Brown moved that section 2.28.080 should be amended to add, "his or her."
Wareing stated that the reference could always be changed to "responsible owner."
Motion carried 2 - 1 with Dawson opposed.
Brown stated that he wanted to ensure that the citizen has the right of appeal of any action.
Hoag clarified that the appeal is only allowed on the removal of the plants or the application of
sprays. The idea is that the Board will work with people and nothing would be done to someone's
objections. This does not cover any action, only the two actions that are spelled out for review.
Frakes stated that, just because there is no appeal procedure built in, one would not have legal
recourse. They could file an injunction or a restraining order.
Belisle stated that this issue is about controlling a pest. When one sprays, they do not control a
pest long term. Pest Control boards don't spray unless a homeowner takes responsibility for dealing
with the pest on an on -going basis. The only guarantee is to remove the plant. The homeowner would
have to accept the option of spraying.
Public Works and Capital Projects, 7/14/98, Page 3
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Frakes stated that, regarding adding a member to the board, they couldn't change the
composition of the board. The State law has delegated very specific powers to a certain group of
people. The County can't change that. The County can limit their powers further and place restrictions
on their power.
Brenner moved to accept the amendments that Hoag suggested in addition to the two
amendments above.
Motion to amend carried unanimously.
Brenner moved to recommend approval as amended.
Motion carried unanimously.
OTHER BUSINESS
1. DISCUSSION REGARDING ORDINANCE 97 -045, ESTABLISHING A CODE OF
ETHICS FOR WHATCOM COUNTY ELECTED PUBLIC OFFICIALS (AB97 -187E)
Brenner stated that she talked to Dan Gibson, Senior Civil Deputy Prosecutor. He mentioned
State laws that pertain to County Council members that are not in the County's Ethics ordinance. She
submitted sections of the Revised Code of Washington (RCW) and suggested adding the sections to the
ethics ordinance. These items deal with County Council members. An Ethics Commission member
stated that if the law extended to legislative areas, as well as quasi-judicial areas, it would cover the
problem.
(Clerk's Note: End of tape one, side A.)
Dawson stated there is federal, State, and County law. The expectation is to look at different
levels of regulation. They should combine all the State and federal law and put it into everything that
the County does.
Brenner stated that the benefit to including it in the County Code is to put pertinent information
in one location.
Nelson stated that one problem with that was that, if a future Council would decide to change
one document, another ordinance would have to be changed.
Brenner responded that they could make a reference to say, "as specified by (ordinance)"
Brenner stated that there is case law to hold up the last sentence of Article II, subsection 30 of
the Constitution of Washington State.
Frakes stated that there is case law that provides for local legislation, but not a lot of case law to
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define private interest.
Brenner stated that they can't provide an answer for everything. That is why there is an Ethics
Commission. The Ethics Commission would recommend the definitions. They are trying to find middle
ground. Leaving the regulation for only quasi-judicial matters is insulting to the intent of what they are
trying to do, since the Council's basic function is legislative.
Brown suggesting including legislative action in the ordinance. Brenner stated that would work.
Dawson questioned the appearance of fairness regarding quasi-judicial matters.
Brenner stated that, if the same rules apply for legislative matters as for quasi-judicial matters,
then it would not compromise quasi-judicial matters.
Nelson clarified that Council members could have the same interest as the general public. If
there is more interest, then the Council member must disclose that interest.
Brenner stated that RCW 42.23.040 is about remote interest. She read it into the record. That
language should be applied to the legislative members.
Nelson questioned the definition of direct interest. Brenner stated that it is only financial.
Frakes stated that, theoretically, direct interest could go beyond financial interests.
Nelson stated that language should specify "direct financial interest." Frakes stated that State
law already has penalties for violations.
Nelson questioned what the ordinance is trying to address. Brenner stated that they are trying to
cover what is covered in State law. Right now, the County Code only covers quasi-judicial issues, not
contract or legislative matters.
Brown stated that there are parts of State law that only cover State officials. Frakes stated that
the section Brenner distributed also covers County officials.
Nelson stated that one area of State law refers to municipal officers.
Brenner stated that they are municipal officers.
Brown stated that the County Council members are not municipal officers. He read from the
Constitution. County and City officials are different from municipal officers.
Dave Wareing, Deputy Administrator, stated that the County is a municipal corporation. RCW
section 42.23.020 states that municipalities shall include all cities, counties, and districts. A municipal
officer is an appointed or elected officer of the municipality.
Public Works and Capital Projects, 7/14/98, Page 5
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Wareing stated that the reason this language wasn't included in the original Ethics ordinance was
because the rationale at the time was because it was included in State law. It was specifically excluded
for that reason.
Brenner moved to include language from the last sentence of section 30, Article II, of the
Constitution of Washington State, and also RCW 42.23.030 through RCW 42.23.070, into the County
Code.
Nelson questioned why the Ethics Commission was prohibited from dealing with these issues.
Brenner stated that the County Ethics Commission is prohibited from ruling on State law. They can
only talk about it. A complaint of a violation against State law would be taken to the Prosecutor or
Superior Court.
Roy Ingham, 2721 Russell, Bellingham, stated that it is outside the jurisdiction of the
commission to deal with anything outside of the Ethics ordinance.
Nelson stated that all types of disclosure are included. He questioned what effect the added
language would have, when the ordinance already spells out what actions should be prohibited. Brenner
stated that the current ordinance only covers quasi-judicial matters.
Frakes stated that she was fairly certain that there is a duty to disclose certain information in all
matters. The duty to not vote is only for quasi-judicial matters.
Frakes stated that the commission only has authority granted by what is spelled out in the
ordinance. The Council hasn't given them the authority to deal with the issues that Brenner was
discussing.
Brenner stated that no one who was appointed by the County to work on County issues, has
authority to deal with matters beyond the County.
Nelson questioned how they would determine that an official knowingly withheld information.
The commission could determine that issue.
Frakes stated that the duty to disclose applies both to quasi-judicial and legislative matters, but
the duty to not participate only applies to quasi-judicial matters. If they want to include the duty to not
participate in legislative matters, then that is what must be included.
Ingham discussed Section One, the purpose, of the County Code of Ethics. He would like to
emphasize that the public trust is to be maintained. The Council at large should err on the side of public
trust.
Motion to include the State language carried unanimously.
Public Works and Capital Projects, 7/14/98, Page 6
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ADJOURN
The meeting adjourned at 2:50 p.m.
Jill Nixon, Recording Secretary
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Council Member
Public Works and Capital Projects, 7/14/98, Page 7