Tag Archive | "Scales"


Hearing Tomorrow in Public Records Act Lawsuit Against COBI—Three Councilmembers Still Refuse to Comply

One of the complicating factors in the Public Records Act lawsuit against three councilmembers and the City of Bainbridge Island is that the councilmembers are also being sued as individuals, not just in their official capacity as representatives of the City. On September 10, Jessica Goldman, the attorney retained by Councilmembers Steven Bonkowski, Debbi Lester, and Dave Ward to represent them as individuals, and Ryan Vancil, another attorney representing Lester (to whom he is also married), filed a motion to dismiss the individual portion of the lawsuit and to dismiss the plaintiffs’ request that the councilmembers turn over their hard drives. Yesterday, September 25, Dan Mallove, the attorney representing plaintiffs Althea Paulson and Bob Fortner, filed an opposition to the request for dismissal. Tomorrow, Friday, a judge will oversee a hearing about the request for dismissal.

The lawsuit stems from Public Records requests made by Paulson and Fortner. The City Governance Manual requires councilmembers to use their city-assigned e-mail accounts for conducting city business. When Paulson and Fortner separately requested to see any e-mails related to City Utilities business, Councilmember Sarah Blossom, who is an attorney, immediately complied. From the e-mails she turned over it became apparent that Ward, Lester, and Bonkowski had been using their personal e-mails to conduct city business. The three did not comply with requests that they turn over relevant personal e-mails, and Fortner and Paulson sued on August 20.

Since the suit was filed, Ward and Lester have submitted some e-mails but not all, including ones that Blossom’s e-mails show to have been written. Councilmember-Mayor Bonkowski has turned over nothing and has admitted in writing to having deleted his e-mails.

Earlier this month, Mallove made a settlement offer to the City. The offer would have relieved the City of any fiduciary responsibilities with the exception of about $500 in filing and service fees. Interim City Attorney Jim Haney and Attorney Kathleen Haggard, who was retained to represent the councilmembers in their official capacity, were unable to accept the settlement offer because the three councilmembers continued to refuse to turn over their e-mails or their hard drives. Mallove said the City would have accepted the settlement otherwise.

Mallove said that the Public Records Act generally creates agency liability, meaning that only the City would be liable for the councilmembers’ actions. But because the City asked the councilmembers to turn over their e-mails and they refused, in Mallove’s opinion this case is unique. For that reason he alleged a novel legal theory in the lawsuit, that people could be sued as individuals under the PRA under certain circumstances.

Mallove also said that the councilmembers had been informed on multiple occasions and in multiple ways that they were to use only their city e-mail accounts for conducting official business. He said the councilmembers even discussed the rule at a January 8 retreat. He called their behavior “an intentional and willful violation of policy” that “exposed them to individual liability.”

When asked if there was any legal precedent for this situation, he said that the courts have previously authorized inspection of an elected official’s hard drive, but they have never previously addressed the issue of an official’s refusal to cooperate with the Public Records Act. Mallove said that is one of the problems with the PRA: “There is no provision for dealing with rogue public officials.”

But what if e-mails were deleted? How would turning over the hard drives even help? Mallove said that you can’t actually fully get rid of an e-mail. Technical experts with whom he has consulted say that most e-mails can be retrieved. That is also true if a person uses a hosted e-mail account like G-mail. In that case, the host, which would be Google in our example, can be subpoenaed to turn over the e-mails, which reside on their servers.

Mallove said again and again that his clients were not interested in seeing the personal content of the e-mails and that a third party would do the reviewing and be dedicated to maintaining the councilmembers’ privacy. He said his clients were looking only for a resolution of the issue of open and transparent government and for the violation of law to be addressed. He said the reason that only the three councilmembers were included in the suit is that Blossom had complied with the PRA request, and Councilmembers Blair, Hytopoulos, and Scales said they had not used personal e-mail accounts for conducting city business. The e-mails turned over by Blossom provided evidence that Bonkowski, Lester, and Ward had.

The Chair of the City’s Utility Advisory Committee, Arlene Buetow, who is running for City Council in the Central Ward against Wayne Roth, has also been asked to turn over e-mails relevant to the PRA request. So far she has not complied, but she has until tomorrow, September 27, to do so.

Attorney Jessica Goldman did not respond to our requests for comment.

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Photo by Kate Ter Haar.

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Council Delays Action on Police Management Study: Discusses Issuing an RFP

Councilmember Hytopoulos told the City Council on Wednesday evening that she believes consultant Michael Berkow would be the ideal person to lead the city through an analysis of the police department, something that the community has been clamoring for ever since a number of issues surfaced involving the Bainbridge police. These include both questionable hires and questionable police behavior such as the possibly unwarranted shooting of a mentally incompetent man, unauthorized blogging about police matters, illegal recording of a meeting, and unwarranted use of a police vehicle to tail a city councilmember.

Michael BerkowHytopoulos, who is on the Police Management Study ad hoc committee, enthusiastically reviewed the credentials and experience of Berkow, who is President and COO of Altegrity Security Consulting. Berkow was former Savannah Chatham Metro Police Chief, Deputy Chief of the LAPD, and Chief of Police in three different cities in California. He served with the United States Department of Justice, as Director of the effort to rebuild the Somalia National Police Force, and as the first director of the Haitian National Police Project. He served on the board of directors of the Police Executive Research Forum. He provided training to police forces in Bulgaria, Hungary, and Romania, and was the police liaison for President Jimmy Carter’s election monitoring missions to Jamaica. He has provided civil disorder management training in Tanzania, Uganda, and Yemen. He is a published author on police investigations, discipline, and management. He provides training nationally on community oriented policing and operations of internal misconduct systems.

Councilmember Scales, also on the ad hoc committee, thought Berkow would be ideal for helping our city. He referred to a report Berkow had written on the community of Marblehead, Massachusetts, one that Scales said resembles our own in many ways, as an example of Berkow’s fine work. Scales described the report as “remarkable in its thoroughness, in its frankness,” adding that it “provided a whole host of very meaningful, very concrete recommendations.” Bonkowski agreed about the similarities between Marblehead and Bainbridge.

Hytopoulos said she wanted to bring Berkow in to do a full analysis of our police department.

Councilmember David Ward responded that he had done some cursory Internet research on Berkow and found him to have demonstrated “rather unsavory conduct.” He didn’t want to “go into the gorey details” but said he would be uncomfortable with choosing Altegrity.

What Ward is referring to are two lawsuits. The first was a 2006 Los Angeles-based lawsuit accusing Berkow of trading sex for promotions and helping cover up evidence in the murder of rapper Biggie Smalls. Berkow was dropped from the lawsuit in 2007. Berkow admitted in a deposition for that lawsuit to having had sex with one of his employees while he was still deputy chief.

Berkow was also named in a lawsuit brought by six LAPD officers against the city of Los Angeles for discrimination based on race or disability. That lawsuit was thrown out of court in 2007.

Hytopoulos responded that the first lawsuit was based on allegations, and she cautioned people about making decisions based on allegations that were eventually dropped. She said that there had been some infidelity and that Berkow was now divorced. She argued that this was not a good reason not to hire him.

Ward said he wanted to issue a request for proposals to find someone. He said he wanted to be able to compare and contrast available people. Hytopoulos countered that it was not necessary to issue an RFP for this project. She said, “I would like to see action.” But she challenged the Council to find someone who matched Berkow’s experience.

Ward said he still wanted to follow a process and that the Council shouldn’t let “a sudden sense of urgency allow us not to even use a modicum of process and seek other qualified firms.”

Scales countered that he feels a sense of urgency and the Council has been talking about this for more than a year. He said that if they opened up an RFP it would take a lot of council time and go on for months.

Councilmember Bonkowski asked for personal references for Berkow so the council could call them. Bonkowski wanted to take a week to do more research.

Mayor Lester supported Ward in his desire to issue an RFP. She also asked the ad hoc committee for a project scope including time frame and cost. And she encouraged Berkow to apply.


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City Council This Week: January 31, 2012

Councilmember Scales was not there at the outset, but there was a quorum. The meeting followed an Executive Session about the collective bargaining negotiations.

Councilmember Blair explained how a study session works. She said it’s more informal and includes community reports and commentary. She said it helps the Council to be briefed on issues. Staff, community groups, committees may bring the issues. She added that it’s also a regular meeting in that a vote may be taken.

Here were the elements of the Study Session:

A. Puget Sound Energy Briefing

A representative from PSE named Linda (sorry–couldn’t get that last name) spoke to the council.

1. 3-year commitment with community. The speaker reviewed this commitment, which is that if the community keeps energy use below the threshold of 58 megawatts, PSE will avoid the need for a new substation or a rebuild. She added the caveat that the threshold will exist unless they discover some significant operational stresses on that system that put customers at risk or their ability to serve them. She said that we did exceed the threshold twice, on December 13 (65.9) and on January 19 (64). She said that’s not a trigger but it is a reminder to the community to start lowering usage when the needle goes into the orange and red zone on the dashboard (which we have on our home page). She said there are a couple of risks that have surfaced:

  • She said our transformers between substations are exceeding their nameplate capacity (the recommended operating level), which could lead to equipment failure.
  • She said we had an oil leak and had to take the substation off line. So we were down to two substations. When that happened, the Port Madison sub peaked at 28.3. There were three other days of peaking on the Winslow substation. They are exceeding their recommended peak loads.
  • On November 30, PSE measured low voltage on several distribution lines. That’s a situation where there’s not enough capacity to meet the demand on an individual line. She said that can cause what customers see as problems with their electronics. The pumps at sewer treatment plant can trigger off, for example.

2. 2012 work plan. PSE is focusing on the distribution system this year:

  • Five treewire projects (treewire is coated electric line less susceptible to branches; it doesn’t trip out as easily): Miller between Arrow Point and New Brooklyn; Fletcher Bay between New Brooklyn and Bucklin; Eagle Harbor Drive; New Sweden, Taylor, and Blakely; and Baker Hill. These are all places where we have impacts from limbs.
  • Structural analysis on steel towers at Agate Pass.
  • Underground express feed to Winslow project, which will continue with Phase II of the project. The speaker said Phase I is complete, on time, underbudget. Some trees on Madison Avenue are in the way that may need to be replaced or relocated.
  • Annual tree trimming and maintenance (26.5 miles of distribution line, 7.5 miles of transmission) and the changing out of 51 poles.

3. Look ahead. PSE wants to start making multiyear plans (5 or 6 years out). The speaker said they’re trying to sequence with City capital improvement projects, for example. She showed a watch map, looking at data of outages in those areas.

Councilmember Hytopoulos asked about the potential tree removal in Murden Cove Phase II.

Mayor Lester pointed out that there is new stormwater load with the removal of some mature trees in the Murden Cove area and that we will need to look at that in the future.

A citizen from RAISE asked for data from PSE about capacity.

B. Unocal Site Park Project Update, AB 12-006

Mayor Lester said that in 2010 a citizen group formed to figure out what to do with the Unocal Property. The group included Rotarians, Women in Black, Arts and Humanities Council reps, and others.

Bruce Weiland spoke on behalf of that group. They’ve talked to Parks Department, they’ve reached out and expanded the membership of the original group, they received a 100 percent endorsement from Kitsap Transit, and they spoke with the Department of Energy (because of site issues).

Weiland reviewed the history. The property is jointly owned by COBI and Kitsap Transit. It was the site of a gas station. There was some leakage, as is typical of gas stations.

The initial vision is that this is a crossroads for the Island and a gateway to Kitsap and Olympics. He described it now as an embarrassment. Group is envisioning a passive, attractive design for the area. He clarified that it’s not about playgrounds or firepits. He described it as a landscape walkthrough with paths, benches, low-maintenance landscaping. Weiland said there are 60 groups on the roster including the Rotary. He said it would be privately funded, and he listed a range of group members.

He said he was hoping for formal approval from the Council. They’re scheduled to be on the agenda tomorrow with the Parks Board. He made four pledges:

  1. He emphasized it will not cost the City anything.
  2. He committed to a broad, public process involving asking the community what they think belongs in the park.
  3. He stressed that the Parks Dept. has tentatively said they will maintain the park.
  4. He promised they would do nothing environmentally irresponsible. He explained that the park would not slow down cleanup of the area and he explained how future remediation would work.

One citizen pointed requested that the City find out what specifically is in the soil there to avoid liability. She said there are grants available for cleanup. She thought the process could be completed quickly. Robert Dashiell said that the last monitoring was done in 2009 but that it had been monitored constantly before that. He said it is a safe site but that there are 43 other sites on the island that are dangerous. Weiland said that he supports the efforts to continue testing the site and that the improvements his group are proposing could easily be removed if needed down the road.

Ward wanted to know if Weiland and his group objected to the voluntary cleanup program of the DOE. Jill Johnson of Parametrix said that the only reason to avoid that is funding.

Lester moved to adopt Resolution No. 2012-02 regarding the park at the site. The Council voted to begin developing the park site (with the understanding that further exploration would be made into cleaning up the site).

C. Rockaway Beach Road Stabilization

Lance Newkirk of Public Works was the speaker. He explained what the city is planning to do to stabilize Rockaway Beach Road. He gave a historical over view of the slope failure. The city became aware in 1999 of the problem after a slide. There was a slope failure in 2005. Berger/Abam’s Bob Hernandez spoke about the design. He talked about the public safety issue and the pressure to get permits quickly. Because the Council declared this an emergency there is an obligation to follow through. He spoke about risks to the cost estimate. The council affirmed the proposed design approach. The Council voted to authorize the staff to negotiate phase II of the design.

D. Multi-Agency Police Response Interlocal Agreement, AB 12-010

Police Chief John Fehlman requested that the city authorize him and the city manager to sign the Kitsap County  investigative response team mutual aid agreement. The Council did so.

E. Shoreline Master Program Update Schedule

Morgan Smith presented the updated schedule. The planning commission will need 4 to 7 further meetings to complete the SMP and the Grow Community review. Then there would be four weeks to prepare for the public hearing. This would mean that the Council would be ready to consider the matter in June or July.

Councilmember Hytopoulos expressed “shock” and “concern” that the process was taking so long. She had understood that the Council would be reviewing this in February. An ad hoc committee was proposed to help push things along.

In citizen comment, Debbi Vann agreed with Hytopoulos that the Council would not be able to meet the SMP deadline if they weren’t presented with the draft until June or July. She encouraged councilmembers to begin educating themselves now on the complex issues involved.

F. City Manager’s Contract, AB 12-012

Councilmember Blair said that Councilmember Scales had asked to speak about the Executive Session on this matter. The Executive Session had preceded the Council meeting. Councilmember Scales moved that Executive Session confidentiality be waived from January 2012 for the limited purpose of discussing how the council reached its decision on the amendment. Mayor Lester seconded it.

The motion was unanimously approved. Blair said that the Council had asked Councilmember Bonkowski to be their spokesperson on this matter. He said that he, Scales, and Ward had been tasked to draft an amendment to the contract to enable them to seek a new manager.

In citizen comment, Barry Peters expressed concern about the city’s need for continuity and effective management. He said he was worried that the move to find a new manager would hurt the city. He asked the Council to reconsider its decision.

Debbi Vann thanked the council for taking its move on the manager issue.

Hillary Franz talked about what she described as Bauer’s leadership in transforming the city financially. She referred to a communication gap between the Council and the community. She warned the Council that they would be spending their tenure looking to rebuild the leadership they have right now with Bauer as manager.

Robert Dashiell said he had been hoping for transparency and openness when he voted for a change in government and deplored the lack of transparency that he perceives. Applause erupted after his words.

Yeta Hammer (sp?) wondered why the prior council needed a consultant to determine whether the manager was the right one. She said that transparency is very difficult to have. She said she was discouraged from speaking with the city attorney and is not so pleased with the city management.

Hytopoulos said that regardless of the different positions on the Council, the council worked together very well in their conversations. She said that some communitymembers have been worried about councilmembers’ ability to work together, but that so far she is impressed, that the outcome is the result of adult conversation. Ward agreed.

Bonkowski moved that the Council approve the amendment to the City Mangers’ contract. It was unanimously approved.

After a recess, Ward moved that they use a search firm to look for a replacement for Bauer and begin a study session on the matter.

Scales said he supported the amendment because he believed that it was in the best interest of the City because it provides for a transition period. He said there is no question that the Council has the authority to search for a new manager. He said that he believes he has a very different perspective on this issue from his colleagues. He said he has more experience on this council than his colleagues combined. He said he has been through the selection process before and that he understands how the departure of a key person can negatively impact operations and how the selection process often comes down to luck, that there’s no way to know if someone will be successful in that position.

Hytopoulos called a point of order. She said she was concerned that Scales was being allowed to state his position because the Council is not allowed to have this conversation within the confines of their agreement. She also said she was concerned that his words on the record would impact their future ability to secure a manager. Blair ruled that Scales could have 5 more minutes and that it should relate specifically to this motion.

Scales said he didn’t know that councilmembers could be limited in time and that he didn’t know if he would have time to complete his remarks. Blair said she would allow him 10 minutes.

Scales continued. He said you can’t turn in a city manager every 18 months like a used car. He said that no city manager candidate would knowingly enter into an abusive relationship, likening the relationship between city manager and council to that of a marriage.

Blair interrupted him. She said that his comments would be appropriate as part of the discussion next week about how to proceed. Scales said he did not understand why he wasn’t allowed to make his comments. He said it was outrageous. He said his comments were relevant to the decision to look for a new manager and so it was appropriate to the motion. Blair allowed him to continue.

He referred to the split vote on whether to make the manager’s position permanent as a destabilizing move. He referred to the Bainbridge Review and the Bainbridge Islander (we weren’t mentioned at all) as being singular in focus about one person and her accusations. A point of order was called again. Blair asked Scales to conclude by remaking his point. Scales said that the recent history on the Island will be extremely important to potential candidates and that this is why he doesn’t believe we will be able to attract a city manager.

The council moved to a vote to initiate a search for a new city manager and have a study session at the next meeting.

Hytopoulos said she wanted an opportunity to respond and make a comment. The council voted 5 to 2 to continue discussion. Scales complained again that he was being silenced and that he no longer felt it was productive to be there and he left.

Hytopoulos said it was absolutely unfair to the Council to be put in the position of not being able to explain how they reached their decision. She said there was a reason the Council could not be transparent about a private conversation. She said it was not serving the community’s interest to create a record of this not being a viable place for a candidate.

Hillary Franz returned to the podium. She said she went through three interview processes when she was a coucilmember. She said every one of them looked back through the newspapers and said,  “Can you explain the six years of bad press? This doesn’t look like a great place to work.” She told the Council they don’t have a history or a reputation to show to a potential candidate.

Hammer returned to the podium and said we did get to know the council through the election process.


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