Opinion by Bob Bilow
April 2, 2020
I wish to state my opinion regarding what I have been informed is a current decline in public confidence within the Sequim community for City Council members Troy Tenneson and William Armacost. And this is with specific reference to the very public debate over the Medication Assisted Treatment facility (MAT clinic) proposed by the Jamestown S’Klallam Tribe.
It appears to me that the generalized “public” is disappointed that those two Council members have not “done enough” to slow down the process within the City of Sequim which will determine whether that MAT facility is approved, approved with conditions, or disallowed. To the extent anyone feels that way, I believe that his or her feelings are totally misdirected.
From an overall perspective, I begin by complimenting recently elected Councilman Tom Ferrell for his focused and analytical participation in the most recent City Council meeting, as well as his active involvement in each Council meeting this year. At his first Council meeting, he expressed disappointment that three members ran unopposed for the opportunity to serve on the City Council. During the March 23 meeting Councilman Ferrell raised the critical issue of whether the MAT proposal should be delayed while the City dealt with the COVID-19 crisis; he led a very insightful discussion by describing his background of crisis control and referred to his instructions in the event the B-52 bomber he was flying suddenly caught fire during flight. His rule was to “get the plane down to the ground, period”; he suggested the Council consider following a similar approach to the MAT application and “slow this process down.” He then seconded the Tenneson motion for a 90-day delay of most pending applications, but that motion was “withdrawn” as I will discuss below.
Councilmen Ted Miller and Brandon Janisse have also sought more active participation by the Council in City affairs, whether policy or other matters, but have been frustrated in those attempts, which I will mention later.
After attending nearly every City Council meeting since October of 2019, reading most of the City Council Agendas/Minutes back to mid-2018, and reviewing thousands of pages received under my Public Records request, I feel that all curious actions by the 2019 and 2020 City Councils can be traced to three City Officials and one current City Councilman/previous Sequim Mayor.
The City officials are City Manager Charlie Bush, City Attorney Kristina Nelson-Gross, and Director of Community Development Barry Berezowsky. For the most part, Bush and Berezowsky have barged ahead with the MAT project in concert with the Tribe since at least March of 2019, but since last summer have been increasingly reliant on legal misdirection, bullying, or double-talking from the City Attorney. Nelson-Gross often confuses issues by raising imaginary “quasi-judicial and quasi-legislative conflicts”, or by abruptly rushing the Council into improper Executive Sessions.
On March 27, 2019, Berezowsky received from Tribal representative Brent Simcosky a copy of the Tribe’s capital budget request prepared for Representative Tharinger, and passed it on to City Manager Bush together with notice that the Tribe had purchased property behind Costco. Since Bush was out of town, Berezowsky alone then met the following day with the Tribe’s Brent Simcosky and Eric Lewis (CEO of Olympic Medical Center), reporting to Bush by email:
“I met with Eric and Brent yesterday and I don’t see any major issues with the property or zoning. Although this is a super project…I suspect some neighbors might have some concerns which means how the project is rolled out to the public is important. Both Eric and Brent agreed and are working on a PR campaign.”
The Tribe’s intention to build the MAT clinic became public in May, 2019 and in the first Peninsula Daily News article (5/31/2019), Bush stated “The property is zoned for the MAT, and the use does not require public hearings.” The topic next arose one day prior to the July 8, 2019 City Council meeting when Councilman Ted Miller informed Mayor Dennis Smith of a letter from a concerned citizen. Smith responded by alerting City Manager Bush via email very early the next morning (4:48 am):
“Charlie: I believe there is a movement just getting organized against this facility in the Sequim area…It appears that this movement is operating with limited accurate information which I have no idea where it is coming from…Needless to say, I believe we should take action ASAP to deter this movement which seems to be based on inaccurate information.”
Bush responded immediately by notifying City Attorney Nelson-Gross, Director Berezowsky, and two staff members:
“All, please be ready for this tonight. Charisse, please share what you sent to Dennis [Smith] with the rest of the Council. Barry, please contact the applicant [Tribe], give them a heads up, and see if they can come to the meeting. Sheri, please be prepared to talk about substance use disorder in Sequim, from a factual perspective…I’m happy to chat with any or all of you with follow-up questions during the day today.” (emphasis added)
The City Council meeting that evening was quite well attended, and the Bush/ Berezowsky/Nelson-Gross group bandied about confusing comments regarding the potential MAT clinic review process. Bush first stated that the decision-making body for such a project “could be” the Planning Commission. Berezowsky agreed, stating that a design review would be done under a C-1 process and the Planning Commission would be the decision-making body. Next, according to the City Minutes,
“Nelson-Gross asked Berezowsky if there is any scenario where the City Council could be the decision-maker for such a project, because if so, that would be a quasi-judicial process. [Note the City Attorney is asking the Director of Community Development for legal advice!] Berezowsky stated that if a project required a Special Use permit the Council would be hearing it, and if a project was heard by the Planning Commission then the Council would be the appeal authority.”
When a member of the audience asked the City Council members for their opinions, both Bush and Nelson-Gross advised against any response from Council members due to the “possibility that this could become a quasi-judicial matter before the Council in the future”. Notably, when asked about the zoning code, “Nelson-Gross stated that the City has an obligation under the law to allow for siting of those types of facilities.”
Emails reveal that two days later Bush, Berezowsky, Nelson-Gross, and Mayor Smith were discussing the issue of whether the property near Costco would become “sovereign tribal land” with any resulting land-use implications.
Prior to the July 22, 2019 Council meeting, Councilman Ted Miller was frustrated by the Bush/ Berezowsky/Nelson-Gross trio in his attempt to understand why the MAT process anticipated by the trio did not require approval by the City Council. On July 17 he asked “Kristina…Why do you automatically exclude us?” City Attorney Nelson-Gross replied the same day (with copies to Bush and Berezowsky) by referring to the vague footnotes in Sequim Municipal Code (SMC) 20.01.030 and stating:
“Based on what Barry and Charlie have learned from the Tribe, they plan to submit a building permit and site construction permit, which is why we outlined the process the way we did.”
That final sentence appears to me to indicate that the Bush/ Berezowsky/Nelson-Gross group had some prior role in drafting the footnotes mentioned. In any event, Councilman Miller persisted in his attempt to find that the process should go before the Council, emailing Nelson-Gross the next day:
“Kristina, If your construction is correct, can you give me an example of an A-1 appeal that would go to the city council instead of the hearings examiner? Surely you agree that the code language and table could be clearer.”
Nelson-Gross responded immediately, with copies to Bush and Berezowsky:
“Yes, the code can be clearer and it is marked up for the code scrub. Barry—can you please answer Ted’s question below?”(emphasis in original)
By the date of the “Special Sequim City Council Meeting” held July 29, 2019 to receive public comments, the Bush/Berezowsky/Nelson-Gross trio had convinced at least Mayor Smith that the MAT clinic permitting was a “done deal under the law”; the mayor stated as he opened the meeting:
“We initially called this meeting to give you the opportunity to learn more about the City’s role and responsibility in the A1/A2 permitting process so that you understand the perimeters (sic) we are required by Washington State law to follow as it pertains to the proposed Medical Assisted Treatment Center.” (emphasis added)
City Manager Bush then followed by stating, before opening for comments:
“Based upon conversations with the Jamestown S’Klallam Tribe, we have been expecting an application for phase 1, the Medically Assisted Treatment Center, at some point in the future…The Tribe has stated that the phase 2 project is an inpatient behavioral health facility” (emphasis added)
Why has this INPATIENT phase 2 of the MAT clinic been ignored?
Before moving along to the September 23, 2019 Council meeting, I should add one comment regarding the Council meeting held September 9. A presentation was made by attorney Jeffrey Myers which described the process to be followed by a City under a Hearing Examiner System. His presentation included:
- Cities authorized to use Hearing Examiners by RCW 35A.63.170.
- Takes place of Planning Commission in Quasi-Judicial decision-making.
- Eliminates need for Board of Adjustment to hear variances.
RCW 35A.63.170(2): EFFECT OF HEARING EXAMINER DECISIONS
Decisions may be designated as either:
- Recommendations to City Council.
- Council must consider and takes final action.
- Final Decision
- Appealable to City Council.
- Council reviews after closed record hearing.
The question Councilman Miller asked City Attorney Nelson-Gross on July 17 is answered in this September 9 presentation. Yet the City Attorney has apparently continued to mislead the City Council members with her footnote nonsense.
By the time of the September 23 Council meeting, Nelson-Gross also appears to have convinced Councilman Miller that the MAT clinic was a “permitted use” as an “outpatient clinic” under SMC Table 18.33.031. During that meeting, Councilman Miller emphatically repeated the legal position which had been “sold” to him by Nelson-Gross:
“The MAT proposal has two components—a legal component and a social/political one. The legal component answers the question, “CAN we build it?” The answer is “YES”. There are currently no legal obstacles to doing so. Any change to that status would require court action or legal changes at the state or federal level, none of which appear likely.”
Rather than yielding to the Nelson-Gross analysis, Councilman Miller should have maintained his previous position of July 17 that the MAT item should ultimately come before the City Council. However, I recognize that the City of Sequim employs a city attorney in order to give legal advice to the City, including members of the City Council. Accordingly, it should take a very unusual circumstance for a City Council member to question legal advice from the City Attorney.
And THAT is the point of this, my Opinion. I believe the City Attorney gives very questionable advice. Her advice to Councilman Miller is but one example. If Councilman Miller had given more thought to the Nelson-Gross advice, I do not believe he would have made the September 23 statements referenced above. He could have considered what types of issues “might arise” at a City Council hearing on the Tribe’s MAT application. For instance, an opponent might argue that the 18.33.031 zoning Table appears in Title 18 of the SMC, and Title 18 must comply with, or is subject to, SMC Title 20 which is titled “LAND USE AND DEVELOPMENT”.
The definitions of an A-2 process as one involving “limited public interest”, and the C-2 process as one involving “broad public interest” are found in Title 20, NOT Title 18. This issue could at least have been examined before the City Council had Councilman Miller not been misled by the Nelson-Gross advice.
Similarly, the enormous issue of sovereign immunity could have been considered by Councilman Miller had he questioned the advice from Nelson-Gross. Absolute immunity was established for recognized Tribes by the United States Supreme Court decision Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), wherein the Court stated:
“Indian tribes enjoy sovereign immunity from civil suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off the reservation. As a matter of federal law, a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.”
If the MAT clinic is approved without an express waiver of sovereign immunity, the City cannot proceed into any Court to enforce anything whatsoever the Tribe might do with the clinic. Incidentally, when I mentioned sovereign immunity to Director Berezowsky in an email December 23, 2019, he asked in a return email for my explanation of “…how it (sovereign immunity) impacts the land use process in particular…” While it was proper for Councilman Miller to rely on the Nelson-Gross advice in making his September 23 statement, I suggest that he and the other Council members hesitate in the future before following advice from this City Attorney.
The most recent example of legal arrogance and maneuvering by City Attorney Nelson-Gross occurred during the “virtual” City Council meeting on March 23. After the excellent discussion and analysis prompted by Councilman Ferrell mentioned above, Councilman Tenneson moved that all pending project reviews other than single-family residences be delayed for 90 days, due primarily to the COVID-19 crisis, which received a second from Councilman Ferrell. The City Attorney had already suggested that the Council move into “Executive Session” while the terms of the motion were being articulated. Then, when the motion received a second, Nelson-Gross again urged “Can we look at going to an Executive Session!”
Upon an unidentified staff member’s suggestion, the Tenneson motion was “left on the table for discussion later” and the Council moved into Executive Session. That Executive Session was improper under RCW 42.30.110 which specifies the 15 bases upon which an Executive Session may be called—–primarily relating to personnel issues and/or threatened litigation. This Executive Session was clearly called to discuss the pending Tenneson motion and second which was before the Council, since that motion was withdrawn with unanimous consent immediately following the conclusion of the Executive Session. Considering the 15 items specified in RCW 42.30.110, that was not a proper reason for holding an Executive Session. The City Attorney had somehow convinced the Council members during the Executive Session that the motion must be withdrawn. Perhaps Nelson-Gross claimed that “constitutional rights” were involved, which would be absurd. Or perhaps she convinced the members that they or the City would be exposed somehow to costly litigation if the motion passed, which would be equally absurd. In any event, the Bush/Berezowsky/Nelson-Gross objective of moving forward with the MAT clinic was the result. I do not know how City Attorney Nelson-Gross, Manager Bush, or Director Berezowsky convinced the City Council to unanimously allow Councilman Tenneson’s seconded motion to be withdrawn. Executive Sessions are confidential, which is appropriate when such a Session is properly called; this was not a proper Executive Session, so perhaps someone will let the Sequim public know the reason the motion was withdrawn.
In addition, paragraph (2) of RCW 42.30.110 was violated, which states: “Before convening in executive session, the presiding officer…shall publicly announce the purpose for excluding the public…”. No such announcement regarding the Tenneson motion was made by Mayor Armacost at the time, and all Councilmen agreed to the Executive Session. William Armacost is in my opinion a polite gentleman who is attempting to act in the best interests of the City of Sequim. Like the example of Councilman Miller mentioned above, I believe Mayor Armacost acted innocently in following the advice of the City Attorney when proceeding into Executive Session. The fault is with the City Attorney, not Mayor Armacost.
In this Opinion item, I also wish compliment Councilman Brandon Janisse for his positive attitude and attention to detail while serving on the Council despite often being treated by staff in a manner I would term “dismissively”. When Councilman Janisse asserts his fiscal attention to detail by questioning staff regarding FTEs, which is a personnel head-count term for “Full Time Equivalent”, he receives only shallow responses in the Public Record materials I have reviewed. In February of 2019 Councilman Janisse was inquiring why the sensitive issue of “Church homeless camps” was assigned to the Planning Commission and, when he appeared to receive a bland answer, stated:
“I just am wondering if this council or some previous one made this call or if Charlie and Kristina decided a major policy question was better off decided by them and not elected officials.”
As a conclusion to this Opinion, I believe the City of Sequim is currently operating primarily as dictated by the group of Bush, Berezowsky, and Nelson-Gross plus their associated staffs. For the most part, Resolutions and Ordinances are suggested and drafted by this group and then presented to the City Council for expected approval. Rather than following policy or other directions by the Council, Bush, Berezowsky, and Nelson-Gross generally follow directions given by the City’s risk pool insurer, the Washington Cities Insurance Authority (WCIA). When the WCIA anticipates any possibility of liability, the Bush/Berezowsky/Nelson-Gross group moves into a protective mode. Ordinances drawn for City Council consideration are frequently pulled from WCIA recommendations. WCIA also conducts annual audits of the City, the extent and results of which I do not believe are being subject to critical review for the City Council.
I feel Councilmen Troy Tenneson and Tom Ferrell have been outstanding additions to the Council and should be celebrated. Councilmembers Ted Miller and Brandon Janisse also render valuable and honorable service, although Councilman Miller should exercise independent judgment when dealing with this City Attorney. Mayor William Armacost represents the City with distinction and, as mentioned above, I believe is a polite individual who has received neither loyalty nor appreciation and support from the Bush/Berezowsky/Nelson-Gross clique of insiders. I hope the City Council can succeed in its mission despite the activities of entrenched individuals. The MAT clinic deserves a fair assessment by the Council, which I do not believe will be possible while the City continues to employ Charlie Bush, Barry Berezowsky, and Kristina Nelson-Gross.
However, as a final examination into the ability and integrity of Charlie Bush, Barry Berezowsky, and Kristina Nelson-Gross, and to ensure a fair review of the MAT application, I suggest that the City Counsel assign that group the task of preparing an Ordinance for submission to the Council. That Ordinance must amend SMC 2.10.090 (Hearing Examiner Appeal), and SMC 20.01.240 (Appeals, including Hearing Examiner) to clarify that all appeals must proceed before the City Council prior to any appeal to the Clallam County Superior Court. That Ordinance must also amend (a) SMC 20.01.030 Table 1 (Application Process) to reflect the amendments above to SMC 2.10.090 and 20.01.240, and (b) SMC 20.01.030 Table 2 (Application Type) by adding a final item to the identified Type C-2 list of actions, specifically “Any unusual project selected by the City Council.” This Ordinance will eliminate the confusing “footnotes” and clarify the entire appellate process.
Respectfully, and just my personal opinion,
Bob Bilow
(Bob (Robert) Bilow is a Sequim resident and retired attorney.)
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