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The facts behind Ms. Albritton’s complaint occurred in three stages: (1) The County’s decision to issue a building permit for a construction project neighboring Ms. Albritton’s property without requiring a wetlands investigation; (2) The investigation into this decision by Code Enforcement Officer Chris Laws arising out of Ms. Albritton’s complaint to the Department of Ecology; and (3) Ms. Albritton’s public records request for the file created during Chris Laws’ investigation. Ms. Albritton’s Complaint, which sounds in the Public Records Act, directly relates to the last of these three stages. However, the first two provide important background.
Here I will detail these three stages. Where there appears to be a disagreement on the facts, I will point that disagreement out. In particular, where the County’s Answer to the Complaint denies that a fact occurred, I will indicate so here. Where a party’s position is supported by documentation available to the public, I will refer to that documentation with a link.
In the Spring of 2013, Ms. Albritton considered purchasing property neighboring her property in the Portland Fair neighborhood on San Juan Island. This neighboring property is known as Lot 9 of the Portland Fair subdivision. Ms. Albritton consulted with Annie Matsumoto-Grah, a planner in the county planning department. (The planning department at the County has had various names that I have not tracked. So I will call it the “planning department.”) After this consultation, Ms. Albritton decided to not purchase the property.
It is important to note that Ms. Albritton has expertise in this area. She has worked as a permit technician, building inspector, code enforcement officer, and private consultant on permit issues. She claims that she decided to not purchase Lot 9 because of mapped wetlands on the property. It is not clear from the Complaint how she would have improved Lot 9 or whether what was known about wetlands on Lot 9 would have prevented her proposed project. It is also not clear whether Ms. Matsumoto-Grah stated to Ms. Albritton that a wetlands survey would be required or whether Ms. Albritton, employing her expertise, surmised this on her own. However, while Ms. Albritton’s investigation into a potential purchase of Lot 9 may have motivated her subsequent actions, it is otherwise not relevant to the case.
In late 2013, Chris and Jenise Hughes purchased Lot 9. There is no relationship between Chris and Jenise Hughes and Councilman Rick Hughes. In this brief, I will refer to the owners of Lot 9 as the Hughes and refer to Rick Hughes by his full name, Councilman Hughes, or Mr. Hughes.
The Hughes submitted an application for a building permit in June 2014. Ms. Matsumoto-Grah, still a planner with the County, reviewed the application. Initially, she decided that a wetlands investigation was not required. However, Ms. Albritton inquired about the proposed project with Ms. Matsumoto-Grah. After that inquiry and a subsequent visit to the site, Ms. Matsumoto-Grah changed her mind and decided that a wetlands investigation was required. She contacted the Hughes agent on the project to inform them of her decision on August 27, 2014. (Exhibit 6)
Soon after Ms. Matsumoto-Grah contacted the agent of the Hughes, it appears that someone contacted Councilman Bob Jarman and asked him to look into the issue. Besides being a councilman, Bob Jarman was at the time (and maybe still is) the President of the Portland Fair Homeowners Association. Ms. Albritton claims that Mr. Jarman called her on August 28, 2014. Ms. Albritton claims that Mr. Jarman indicated in that phone call that the Hughes would not be required to obtain a wetlands survey.
Mr. Jarman contacted County Manager Mike Thomas and asked him to look into the issue. (Exhibit 36) Mr. Thomas at the time lived near Lot 9. Mr. Thomas has knowledge of wetlands issues through his experience in government, but he is not considered a wetlands expert. His wife, Jennifer Thomas, however, is a wetlands expert. Apparently, Mr. and Mrs. Thomas took a walk together around the Hughes project. (Exhibit 36)
On September 9, 2014, the Manager of the planning department at the time, Martha “Sam” Gibboney, sent an email to Ms. Matsumoto-Grah, stating, “Mike [referring to Mike Thomas] walked the site last night with a local wetlands expert (JT) and there are no signs of [a wetland]. So no need for a recon.” (Exhibit 7) Ms. Motsumoto-Grah asked who the wetlands expert “JT” is. Over the next two days, Ms. Matsomoto-Grah followed up with Ms. Gibboney seeking more information about Ms. Gibboney’s September 9 email. (Exhibit 8) According to Ms. Matsomoto-Grah, Ms. Gibboney never responded to these inquiries. (Exhibit 4)
“JT” refers to Mr. Thomas’s wife, Jennifer Thomas. (Exhibit 24) The County denies that Ms. Thomas had any role in the evaluation of wetlands on Lot 9. (Answer)
Under pressure from the Hughes and their agents, Ms. Matsomoto-Grah approved the building permit on September 12, 2014, without requiring a wetlands investigation. This ends the first stage of the story. I will note that, except perhaps relating to the content of Mr. Jarman’s phone call with Ms. Albritton, the facts stated above are not in dispute.
The second stage of our story began when Ms. Albritton filed an anonymous report with the Department of Ecology Environment Report Tracking System. (Exhibit 10) She filed this report on or about January 17, 2015. This report was given the designation ERTS #654194, a designation that will be important later in this story.
The wording of this ERTS was important. The Albritton Complaint states that Ms. Albritton made the report using an on-line form. So it is possible that the wording of the report is Ms. Albritton’s. However, the exact source of the wording is less important than the fact that this was the wording received by the County.
The report questions the decision of the County to not require a “PWS,” which I assume means preliminary wetlands survey. It states, “There is nothing in the file to support the stream no longer being considered a stream or a wetland. It is believed that the previous owner was allowed to fill the channel to get the property to park. The new owner took it a step further getting county to waive requirements.” The report continues with some more details.
Importantly, the report also states, “The PRP was undergoing a permit process. The county asked the homeowner to get a PWS to review. Property owner and their builder then approached neighbors (county managers) which resulted in going over staff’s head and waiving critical areas review/evaluation of any kind.”
So arguably this report makes two allegations: (1) A wetlands investigation should have been performed before approving the project; and (2) The process by which the permit was approved was improper.
The Department of Ecology routed ERTS #654194 to San Juan County where Chris Laws, who was the Code Enforcement Officer at the time, investigated it. (Exhibit 25) His investigation was given the designation, “PCIINQ-15-0003,” which will be important later. Mr. Laws’ initial investigation involved reading notes entered into the permit tracking database, reviewing the permit file, and speaking with planner Ms. Matsumoto-Grah and manager Sam Gibboney. As a result of this initial investigation, Mr. Laws pursued two courses of action.
One of the two courses of action was to determine if, in fact, the Hughes project was in compliance with the critical areas ordinance. On January 22, 2015, Mr. Laws visited the site. In that visit, he found evidence of potential wetlands. He decided that further investigation was warranted.
On January 26, 2015, Mr. Laws again visited the site, this time with a Wetlands Specialist from the Department of Ecology, Doug Gresham. Mr. Gresham found three wetlands on the property, dug soil samples, and measured distances from the project to the wetlands. On February 5, 2015, Mr. Gresham produced a report on those three wetlands. (Exhibit 16) Based on this work, Mr. Laws determined that the Hughes project was in compliance with wetlands regulations. Mr. Laws wrote a report on this work dated March 11, 2015, although this report refers to closing the investigation on March 12, 2015. (Exhibit 25) The report refers to file number PCIINQ-15-0003, the file number originally assigned to Mr. Laws’ investigation.
As an aside, the Albritton Complaint describes a set of conversations on February 2, 2015, between Mr. Laws and folks at the Department of Ecology. Mr. Laws claims that Mr. Gresham stated that he would not be writing the report because the report was “too politically sensitive.” Mr. Laws had a subsequent phone conference with folks at Ecology after which Mr. Gresham produced the report. The Complaint insinuates interference on the part of the County with the Department of Ecology. However, Ms. Albritton does not disclose any evidence of this interference. So I do not give this allegation any credence.
The second course of action taken by Mr. Laws in response to the ERTS report was to file a report of Improper Government Action (IGA), which is a whistleblower complaint. (Exhibit 41) This report referred to the manner in which Councilman Bob Jarman, County Manager Mike Thomas, and planning manager Sam Gibboney overruled planner Anna Matsumoto-Grah’s decision to require a wetlands investigation. The IGA report was made under a County ordinance providing for whistleblower reports. (Exhibit 14)
The process by which Mr. Laws went about making this report of Improper Government Action has been the subject of some controversy. So I will briefly address it here. Mr. Laws went to Deputy Prosecuting Attorney Amy Vira for advice, apparently consulting with her more than once. The ordinance calls for an IGA report to go to the reporter’s immediate manager, in this case Sam Gibboney. (Exhibit 14) If the immediate manager is the subject of the report, then the report is to go to the Director of Human Resources, in this case Pamela Morais. Ms. Morais was at the time (and may still be) a board member of the Portland Fair Homeowners Association, of which Bob Jarman was the President.
Apparently concerned with conflicts of interest, Prosecuting Attorney Randall Gaylord ultimately decided to conduct the investigation into the IGA report himself. The County ordinance does not include the Prosecuting Attorney in the list of persons to whom an IGA may be reported or who may investigate an IGA. However, state law requires this list of persons to include the Prosecuting Attorney. RCW 42.41.030. (RCW 42.41.030) Therefore, the County ordinance does not comply with state law in this respect. Mr. Gaylord was complying with state law.
As part of his IGA report, Mr. Laws asked planner Anna Matsumoto-Grah to write a report on her part in the Hughes project permit processing. She did so on January 22, 2015. (Exhibit 4) Presumably Mr. Laws provided this report to Mr. Gaylord as part of the IGA. Ms. Albritton alleges that Mr. Gaylord requested that Ms. Matsumoto-Grah remove certain parts of her report. In the parts Mr. Gaylord wanted removed, Ms. Matsumoto-Grah expressed her opinion as to the inappropriateness of the County Manager overruling her determination that a wetlands survey was necessary and her frustration at being treated in this manner. Ms. Matsumoto amended her report on January 26, 2015. (Exhibit 5) The County denies that Mr. Gaylord made this request, although it is clear that Ms. Matsumoto amended her report. (Answer) The amended report still references Mr. Thomas’s participation in the process but without the commentary.
On February 12, 2015, Mr. Gaylord issued a preliminary report on the IGA. (Exhibit 17) On February 16, 2015, Mr. Laws wrote a memorandum disagreeing with parts of Mr. Gaylord’s preliminary report. (Exhibit 18) Mr. Gaylord issued a final report on March 11, 2015. (Exhibit 24) It appears that Mr. Gaylord addressed at least some of the points in Mr. Laws’ memorandum.
Mr. Gaylord’s conclusions are important here. (Exhibit 24) First, Mr. Gaylord concluded that Mr. Laws’ IGA report was made in good faith. He supported this conclusion with the fact that Mr. Laws’ only request was to have the Hughes project reevaluated by a wetland expert. Mr. Laws fulfilled his own request a short time after filing the IGA by inviting Doug Gresham to visit the property and issue a report.
Second, Mr. Gaylord concluded that a “wetlands reconnaissance” was required for this project. A “wetlands reconnaissance” is the least-detailed of the types of wetlands investigations required by the critical areas ordinance. A wetlands reconnaissance confirms the presence or absence of wetlands and determines the type, category, and approximate size of the wetlands found. The ordinance also requires that a written report of this reconnaissance be developed. In most cases, the report must be done by a “qualified wetlands expert” as defined in the ordinance.
Third, Mr. Gaylord concluded that Mike Thomas’s visit to the site did not meet the requirements of a wetlands reconnaissance. Apparently at issue is a pond that exists on the property. If the pond is a “farm pond,” which is a man-made pond that is dug outside of any wetlands areas, then the fact that the pond now harbors a wetland habitat does not make it a regulated wetland. If a wetlands reconnaissance involves an alleged farm pond, then the investigation must include a determination of whether or not the pond is a farm pond and therefore not a regulated wetland. This investigation includes determining if the pond was built in an existing wetland.
Mr. Thomas determined that the pond on the Hughes property was man-made. (Exhibit 36) Doug Gresham’s wetlands report confirmed Mr. Thomas’s observation. (Exhibit 16) However, Mr. Thomas did not determine whether or not the pond was created in an existing wetland. Mr. Gaylord noted that Doug Gresham’s report indicated that the pond was created by impounding a stream. Mr. Gaylord stated that this suggests that the area of the pond may have contained wetlands. Because Mr. Thomas did not investigate the state of the area when the pond was created, he did not complete a proper wetlands reconnaissance.
Fourth, Mr. Gaylord concluded that the County Code required a written report arising out of the wetlands reconnaissance. No report was written.
It is important to note that Mr. Gaylord’s criticism is about the process, not the result. In fact, Mr. Gaylord noted that Mr. Gresham’s report established that the Hughes project is in compliance with wetlands regulations. Mr. Gaylord concluded, “No further action is needed to comply with the law.” The Albritton Complaint appears to take issue with this conclusion. But it does appear that the critical areas ordinance was complied with, albeit after the permit was issued. As stated above, Mr. Laws concurs.
On June 25, 2015, Councilmen Rick Hughes and Jamie Stephens issued a report that reached different conclusions. (Exhibit 36) Interestingly, this report does not specifically address Mr. Gaylord’s conclusions that research into the creation of the pond and a written report were necessary. Instead, the councilmen refer to previous reviews of the Hughes project that included one for the septic permit and one by a stormwater engineer. As such, the report does not rebut Mr. Gaylord’s legal conclusions. I talk about this report in more detail later.
Mr. Gaylord issued his final report on the same day that Mr. Laws issued his final report. (Exhibit 25) Mr. Laws then took all of the documents related to his investigation, including those documents related to the IGA, and put them together in the code enforcement file designated as PCIINQ-15-0003.
Now we get into the third and final stage of the story. On March 17, 2015, Ms. Albritton made a public records request. (Exhibit 27) She made this request shortly following both Mr. Laws’ report of his investigation instigated by the ERTS report and Mr. Gaylord’s report on the IGA, both dated March 11, 2015. I can only assume that Ms. Albritton was told of the completion of the investigation instigated by her ERTS report.
The wording of Ms. Albritton’s public records request is important. She requested, “Copies of all documents within enforcement file PCINQ-15-0003 related to ERTS #654194.” (It is clear that Ms. Albritton was referring to the file PCIINQ-15-0003 despite the missing letter ‘I’.) I interpret this wording to contain two limitations: Only those documents that are both (1) in the enforcement file PCIINQ-15-0003 and (2) relate to ERTS #654194 were requested. The primary allegation in Ms. Albritton’s Complaint is that she did not receive any documents related to the IGA in response to her request until 74 days after she made the request, and then only received a redacted version of Mr. Gaylord’s March 11, 2015 report.
What follows explains why the IGA documents were not provided in response to the public records request.
On March 23, 2015, the County Public Records Officer (or perhaps Clerk), Sally Rogers, requested the documents responsive to the public records request from Chris Laws. According to Mr. Laws, he provided Ms. Rogers a complete copy of the PCIINQ-15-0003 file within a week.
On March 31, 2015, Ms. Rogers wrote Mr. Laws an email requesting that he remove the IGA documents from the file. In that email, she stated, “Per Randy’s legal review I only need the Code Enforcement PCIINQ-15-0003/ERTS documents for the response to the PRR . . . and not the IGA documents.” (Exhibit 29) Mr. Laws responded that he considered the IGA to be a part of his investigation under that file number and that if Mr. Gaylord thought that the IGA documents should be removed then he should remove them himself.
According to Mr. Laws, what followed was several weeks of attempts to coerce Mr. Laws into removing the IGA documents from the file. As the County has admitted, Sam Gibboney made several such requests of Mr. Laws over those several weeks. (Answer) Mr. Laws also alleges that Ms. Gibboney instructed Mr. Laws to remove all mention of Mike Thomas from the file. The County denies this allegation. Concerned with his liability, Mr. Laws consulted with a union attorney who advised Mr. Laws to request that an instruction to him to remove documents from the file be made in writing. Mr. Laws made this request to Ms. Gibboney in an email dated April 22, 2015. (Exhibit 31)
On May 7, 2015, Mr. Laws amended his March 11, 2015 report on his investigation into the allegations of the ERTS report. (Exhibit 32) He claims that he did so acceding to Ms. Gibboney’s instruction that Mr. Laws remove from his report all mention of Mike Thomas’s role in the issuance of the Hughes permit. The updated report removes all of the history of County management’s reversal of Ms. Matsumoto-Grah’s decision to require a wetlands investigation. This alleged instruction to amend Mr. Laws report is critically important as I explain later.
On May 12, 2015, Mr. Laws and Ms. Gibboney had a meeting witnessed by the president of the local union, Colin Maycock. Later, Deputy Director Linda Kuller joined the meeting. In that meeting, Ms. Gibboney again instructed Mr. Laws to remove the IGA documents from the code enforcement file. Mr. Laws refused but stated that Ms. Gibboney could remove the documents if she desired to. Ms. Gibboney then got Randy Gaylord on speaker phone. Mr. Gaylord stated that the IGA documents were “personal data,” similar to notes of an unrelated phone conversation with a relative that is mistakenly put in an official file. Mr. Gaylord refused to put his request in writing, claiming doing so was unnecessary because of the witnesses to the conversation. He told Mr. Laws that he was being “insubordinate.” Mr. Maycock’s recollection of this meeting is set forth in his email sent that evening. (Exhibit 33)
The County’s answer to this allegation is interesting. (Answer) The County states, “[Ms. Gibboney] spoke to Officer Laws and informed him of Mr. Gaylord’s position that the IGA material was not part of the code enforcement file and should not have been placed therein, but should be segregated by Mr. Laws into a separate file.” The County’s Answer also characterizes Mr. Gaylord’s suggestion as “his advice.”
Between May 21 and May 28, 2015, Mr. Gaylord retrieved the file from Mr. Laws, removed the IGA documents, placed those documents into a file labeled “Chris Laws personal information IGA – 1/21/2015 Report,” and returned these two files to Mr. Laws. The list of documents that Mr. Gaylord placed in the “personal information” file included Mr. Gaylord’s preliminary and final reports, Mr. Laws response to Mr. Gaylord’s preliminary report, Mr. Laws’ March 11 “final report” that he ended up revising in May at Ms. Gibboney’s instruction, and other related documents. The County has admitted these facts. (Answer) Mr. Laws also claims that some documents have “vanished,” but the County denies this allegation.
So ends the three stages of the story. But there is more.
Mike Thomas’s participation in the Hughes permit process became public in June of this year. On June 8, 2015, during public access before the County Council, Ms. Albritton brought up the Hughes permit process. (video) Following Ms. Albritton, the union representative spoke to the Council mentioning “ethical challenges” that County employees faced due to the Albritton matter and other similar matters. This was followed by articles in the San Juan Islander on June 8 (article), the Trojan Heron on June 13 (article), and the Island Guardian on June 17 (article). It appears that the information in these reports came from a written piece circulated by Ms. Albritton. However, I do not have that document.
On June 25, 2015, Councilmen Rick Hughes and Jamie Stephens published a report in which they responded to the accusations Ms. Albritton made. (Exhibit 36) I have referred to this report several times in this brief since it provides some counterpoint to Ms. Albritton’s allegations. The report was very critical of Randall Gaylord’s conclusions about Mike Thomas’s actions and was also very critical of Chris Laws. I will address this report more carefully below.
On July 13, 2015, Shireene Hale, a former manager in the planning department, attended a meeting of the County Council intending to speak on the Hughes permit process. According to her, Mike Thomas and Human Resources Director Pamela Morais confronted Ms. Hale to convince her to not speak on the issue. “She felt coerced,” according to an opinion piece published on December 4, 2015, in the San Juan Journal. (article) The next day, July 14, she told the Council about her experience with Mr. Thomas and Ms. Morais and made the comments she had intended to make the previous day. (video) Councilman Bob Jarman apologized for what had happened the day before and stated that anyone should be able to speak to the Council.
On December 2, 2015, the County announced the settlement of the Albritton case. (Press Release). In that release, the County stated, “[T]he County has always supported the goal of transparency and providing records to the public.” It also stated, “This lawsuit was based upon a misunderstanding of Albritton’s request, which sought production of a code enforcement file.” It announced the Council’s decision to make changes in how it processes public records requests. The release did not address the allegation that the County attempted to cover-up Mike Thomas’s participation in the Hughes permit process. I address this release more carefully below.