HomeMy WebLinkAboutPublic Works September 15 1998I WHATCOM COUNTY COUNCIL
2 Public Works and Capital Projects Committee
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4 September 15, 1998
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6 The meeting was called to order at 1:40 p.m. by Committee Chair Barbara Brenner in the
7 Council Committee Room, 311 Grand Avenue, Bellingham, Washington.
9 Also Present: Present:
10 Marlene Dawson None
11 Tom Brown
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14 Brenner announced a change in the agenda.
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16 Brown stated that the first item was regarding an emergency proposal to deal with the
17 Canyon Creek flooding issue. Federal Emergency Management Act (FEMA) funds are available
18 to finish the project. The permit has not been forthcoming. In the Natural Resources
19 Committee, they adopted a proposal to send forth a letter and a phone call on the Ritter Road
20 issue. The County Engineering Manager indicated that this issue was even more critical. He
21 requested a summary from Ed Henken, Public Works Engineering Manager.
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23 Ed Henken, Public Works Engineering Manager, stated that he encouraged passage of a
24 motion similar to the motion passed for Ritter Road during the previous committee, which was
25 approval of a letter to the State Department of Fisheries from County administration requesting
26 they make it a high priority. The project is funded. There is a concern by Lummi Tribe, and he
27 is willing to meet with them. It will be done in the dry, out of the waterway.
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29 Brenner moved to send a letter as specified by Brown and Henken. She questioned
30 whether Henken would talk with the Lummi Tribe to negotiate. Henken confirmed that he will
31 talk to the Lummi Tribe. Also, they've been waiting for a letter for five weeks from the
32 Department of Wildlife. It has not been forthcoming.
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34 Brenner questioned whether the letter is a precursor to declaration of an emergency.
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36 Brown stated that declaration of an emergency wasn't a viable option on the Ritter Road.
37 They need to pursue this because it would become an emergency during the winter.
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39 Larry Watts, owner of the property, stated that the County have invested hundreds of
40 thousands of dollars in 1994. FEMA has agreed to do repairs. If they do not take advantage of
41 that money, then it will cost the County much more. If the dike blows out, it will damage The
42 Logs Resort, Mt. Baker Highway, and the Glacier Springs area.
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44 Dan McShane, 1451 Grant, Bellingham, questioned whether the maintenance of the dike
45 would be in upper part. Henken stated that it would be.
Public Works Committee, 9/15/98, Page 1
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McShane stated that he has written five critical areas reports in the area. Last July, he
told a client that he could not write a report because there was no maintenance plan for the dike.
The Mt. Baker Highway is definitely in jeopardy.
Motion carried unanimously.
Brenner stated that she believed the County Executive and consultants declared the Ritter
Road an emergency.
Jeff Monsen, Public Works Director, stated that they agree with the landowners that it is
an emergency, however in the context of the law, the County declaration of emergency relates to
the purchasing code and waiving the purchasing requirements. In the context of fisheries code, it
relates to a situation where they still need a permit, but it is one that is verbal, and they need the
concurrence of the Department of Fisheries that the situation is an emergency. It is not
something that the County can do independently.
Dan Gibson stated that the County can't dictate to Fisheries when an emergency exists.
They are the ones that make the determination of whether there is an emergency. The County
can indicate that there is a real problem. Even in a flood fight, they are dealing with State
agencies. There is an abbreviated process, but they are the ones that determine whether or not an
emergency exists.
Brenner stated that basically they were doing the same thing for Canyon Creek and Ritter
Road.
(Clerk's Note: The committee moved to the last item on the agenda, Committee
Discussion item #1)
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. RESOLUTION APPROVING VAN WYCK ROAD ASSESSMENT
REIMBURSEMENT AREA AND ASSESSMENT (AB97 -413C)
Jeff Monsen, Public Works Director, summarized the five options outlined on packet
page 263.
Brenner questioned what the County should do about Mr. Leonard putting in more than
his share of work on the project.
George Leonard, 247 Van Wyck Road, stated that he was happy with option #3. He
doesn't begrudge paying the fee on the other lots.
Public Works Committee, 9/15/98, Page 2
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Monsen stated that the information is based upon the approximate current value of the
road. He did not try to gather receipts from the property owners on what they actually spent.
Brenner clarified that the calculations are based on the current value.
Leonard stated that he was the only property owner that could come up with receipts even
close to what was actually spent. One person that put in work is now deceased. Another did a
lot of work on a handshake and in trade.
Brown stated that this issue came back because Council Member Sutter had a funding
calculation that she would like to see.
Brenner stated that they resolved the issue, but not the calculation of how the credit
would be given.
Monsen stated that for option #3, the explanation is that they look at the current value of
the road compared to the total project. There is a 4 -1 ratio. That means that the people have put
in four units worth of improvements already.
Brenner stated that she wanted a formula to use in the future.
Monsen stated that he was uncomfortable trying to come up with a formula, with credit
issues, because all cases would be different.
(Clerk's Note: End of tape one, side A)
Brown stated that each road has to be treated individually when establishing credit.
Brenner stated that they could determine a maximum lot credit allowed.
Monsen stated that this issue is unusual because of the latecomers'. This may be the only
situation like this. The latecomers' was written stating that the individuals were to have a way to
recover their investment.
Brenner moved to recommend option #3 to the Council specifically relating to Van Wyck
Road and is not meant to set an example of application of credit for other roads.
Brenner read option #3 into the record.
Motion carried unanimously.
Monsen explained that the issue in Section II on packet page 263 is his recommendation
to the County Council that the County should contribute $51,500 as its fair share. He explained
the three options on the County's financial share. The $81,500 was a commitment by the County
to spend on the project.
Public Works Committee, 9/15/98, Page 3
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Brenner questioned what taking $15,000 off of $81,500 means for each lot. Monsen gave
the numbers: Option 1 is $4968 per lot to the 24 lots. Option 2 is $4281 per lot to the 24 lots.
Option 3 is an assessment of $3593 per each of the 24 lots.
Brenner moved to choose option #2, which is to increase the County's share by $15,000
to account for culvert work, which would bring the County's total cost up to $66,500.
Motion carried unanimously.
2. ORDINANCE AMENDING ORDINANCE 97 -045, ESTABLISHING A CODE OF
ETHICS FOR ELECTED PUBLIC OFFICIALS (AB98 -194A)
Brenner stated that there is a State definition of private interest, which she read into the
record. This answers Council Member Sutter's concern about the definition. This would be
considered the same as conflict of interest.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that this is all a part of the record,
and if anyone is interested in the intent, then they can look into the record.
Dawson stated that the biggest opportunity for conflict is on rezones. Frakes responded
that is a quasi-judicial matter.
Brenner moved to include the language as the definition of private interest. She read the
definition for the record.
Motion carried unanimously.
Brenner stated that Council Member Hoag requested that the definition of immediate
family include children not living at home and siblings.
Brown stated that they tried to include stricter standards than the State. The argument
was that when someone moves away from home, they are an adult and their activities are private.
Brenner suggested adopting the State definition. Also, Hoag was concerned with the
language addressed in the conflict of interest in legislative action. Brenner stated that she
believed that was covered by the definition of private interest. Frakes stated that conflict of
interest and private interest are the same thing. They may not need to define conflict of interest
if private interest is defined.
Brown moved to clarify that conflict of interest and private interest are synonymous.
Motion carried unanimously.
Motion to recommend the changes to the full Council carried unanimously.
Public Works Committee, 9/15/98, Page 4
2 (Clerk's Note: The committee adjourned.)
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4 COMMITTEE DISCUSSION
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6 1. DISCUSSION REGARDING PROCESSING PROCEDURES BEING USED BY THE
7 WHATCOM COUNTY JAIL WHEN HOUSING INMATES ARRESTED BY LUMMI
8 LAW ORDER (AB98 -319)
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10 Dale Brandland, County Sheriff, stated that this issue started with Mr. Martin coming
11 before the County Council alleging he was held against his will by the County jail and that his
12 civil rights were violated.
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14 Brenner stated that he alleged he was held 17 days without being charged.
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16 Dawson stated that he also said he is not an Indian and should not have been held by the
17 Tribe.
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19 Wendy Jones, Corrections Lieutenant, stated that Mr. Martin was booked on October 27,
20 1997 on two counts of indecent liberties. The Lummi Tribal police booked him. A pro tem
21 Lummi judge did a probable cause on October 28th. The judge felt that there was probable cause
22 to arrest Mr. Martin, and a charge of rape was added. Bail was set. On November 6th, the
23 Lummi Tribal court judge reviewed the case and ordered that the bail be reduced and that a no
24 contact order be entered between Mr. Martin and his victim. That falls within the arraignment
25 timeframe. On November 13, the jail received a faxed order releasing Mr. Martin on his
26 personal recognizance, signed by the Lummi Tribal judge, and he was released. The jail met all
27 of the statutory requirements. He had his probable cause hearing within 48 hours. He also met
28 the first appearances and the arraignment time frames. He was held for 17 days, but had been
29 seen by the judge and had his case reviewed.
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31 Dawson stated he felt he was not clear on why he was held.
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33 Brandland stated it is common throughout the jail that inmates say they don't know why
34 they are in jail and that they are innocent. Jones responded that they have a way of
35 communication in the jail called "loose lips," which is a way of inmates requesting information
36 about a variety of things. People come into the jail in a variety of different states. Officers
37 respond to their questions about the circumstances of their arrest.
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39 Ralph Jefferson, Chief of Police for the Lummi Nation, stated that in the past, on August
40 26th, Henry Cagey sent a short letter to the Council, which he distributed (handout on file). He
41 agreed with Lt. Jones. Charges were withdrawn because he plead guilty, and then the victim
42 recanted, and his attorney requested a recant of a guilty plea. The Judge allowed the plea to be
43 withdrawn, because the victim, now the wife of the accused, recanted her story. Jefferson
44 suggested that the Council check the Superior Court records for the details of the case.
Public Works Committee, 9/15/98, Page 5
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Brenner stated that she has no further interest in this issue. The Council should
investigate reports of complaints by citizens, but should do it in a way not to take up committee
time. Spending more time on this issue was not appropriate.
Dawson stated that the essence of the meeting is not his particular case. He wanted the
Council to prevent other people from being booked that are not Indian. The point is that he is not
Indian and should not have been booked.
Brenner stated his main issue was that he'd been held without knowing why. He believed
that his due process had been violated. That has been answered. The other issue was about who
has the authority to make the arrest, whether it is Lummi and Law and Order. The committee
can address that issue.
Brandland stated that there are two issues. One is jurisdiction and the second is the
housing of Mr. Martin.
Brenner questioned whether everything was done according to the rules.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that the Tribe contracts with the
County to house people they arrest. The County does not get involved with determining the
legality of the arrest. The County does not have jurisdiction over the arrest.
Brown questioned whether the jail is holding people from other jurisdictions who can't
afford to pay for their own representation and aren't being given counsel.
Jones stated that Lummi Nation has a public defender.
Jefferson stated that a public defender can serve anyone, regardless of money. They must
request a public defender. In this case, the public defender for Lummi helped Mr. Martin prior to
his obtaining his own lawyer.
Dawson stated that there was a case when someone was held for two years without being
charged.
Brandland stated that perceptions of what happened aren't necessarily reality. He
questioned whether she was referring to the Dennis case. Dawson responded that she was. It
occurred from 1990 to 1992. It was a first - degree assault. The situation was a dispute over
jurisdiction. It was not a case of the accused being left and forgotten.
Gibson stated that he prosecuted the case. He was charged with first degree assault for
stabbing his estranged wife. He was charged very quickly on. He sought dismissal of the State
charge, claiming he was not subject to State jurisdiction because he was an Indian. He obtained
dismissal of the State charge, was transferred to federal court, where he argued that the federal
court did not have jurisdiction because he wasn't an Indian, so he obtained dismissal in federal
court. This is all on the record. Gibson then attained a re- hearing in front of the State judge who
Public Works Committee, 9/15/98, Page 6
I dismissed it for the State and argued that it has to be one or the other. The State judge reversed
2 his earlier decision and stated that State court has jurisdiction. During this time, he remains in
3 custody, because a crime had been committed and there was confusion about jurisdiction. It then
4 went to the Court of Appeals, who stated that it should be in one court or the other, however the
5 State judge can't change his mind once it had been dismissed. They ended up pleading to a
6 misdemeanor. He was not in the County jail. He was also under the custody of the federal
7 marshal while under federal charges.
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9 Brenner stated that it was his own statements that kept him locked up even longer. Also,
10 the confusion was not about whether or not he had committed a crime, but his jurisdiction.
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12 Jefferson stated that, at the time, the definition of Indian jurisdiction was in turmoil
13 anyway due to federal legislation.
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15 Dawson clarified that the Lummi Tribe, for criminal purposes, can arrest all Indians.
16 Jefferson stated that they could as long as they are eligible for enrollment in a tribe.
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18 Dawson questioned whether Mr. Martin was eligible for a tribe. Jefferson stated that he
19 is enrolled in a federally recognized tribe in Alaska.
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21 Dawson stated that Eskimos and Aleuts are not considered Indians. Jefferson stated that
22 the government has recently given them recognition. They are native Americans.
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24 Brown stated that they have been considered to have the same legal status.
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26 Jefferson stated that Native Americans and Indians are two different terms, but they use
27 the same standard as the U.S. Attorney definition.
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29 Dawson asked Jefferson if they arrest non - Indians. Jefferson responded that the federal
30 regulations in court require them to deliver non - Indians criminals to the State authorities.
31 Locally, that means that they hold them for the State authorities. The Sheriff's office is close
32 enough that they don't have to physically drive them somewhere. The Sheriff will come to the
33 Tribe. In other jurisdictions in the U.S., some Tribes will transport them several hundred miles
34 to the authorities.
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36 Dawson questioned whether the Lummi Law and Order says an individual is under arrest
37 when they are detained. Jefferson stated that they are careful to say that they are detaining the
38 person until the Sheriff arrives.
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40 Dawson questioned whether there was a problem with requesting someone acknowledge
41 they are under the jurisdiction of the Tribe. Gibson stated that it is an issue between the
42 individual and the tribe. The relationship is only a space rental arrangement. The County does
43 not determine tribal jurisdiction over the people that they arrest.
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45 Jefferson stated that the Tribe has no interest in charging people inappropriately. If
46 someone is not under their jurisdiction, then they call the Sheriff's office. Mr. Martin has
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maintained they are Indian and eligible for enrollment. He has never once stated that he was not
an Indian.
Brandland stated that everyone goes to great lengths to stay on top of jurisdictional
issues. It is not as cut and dried when dealing with tribal jurisdiction.
Brenner stated that the document provided to the committee by Mr. Martin was not
adequate for review. It was not a federal document.
Jefferson stated that this case was open to anyone who wanted to look at it.
Dawson asked about their Miranda rights policy. Jefferson stated they always read the
rights before booking into jail.
(Clerk's Note: The committee moved to Committee Discussion and Recommendation to
Council item #1)
ADJOURN
The meeting was adjourned at 2:30 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Barbara Brenner, Council Member
Public Works Committee, 9/15/98, Page 8