The heart of the problem

On July 25, 2005, I faxed the following complaint to the Office of Citizen Complaints. This was part 2 of my complaint alleging bias and financial conflicts of interests in DOT and DDES that has made those King County departments surrogates for the building industry. Here is that second complaint:

King County Office of Citizen Complaints - Ombudsman

400 Yesler Building
400 Yesler Way, Room 240
Seattle, WA 98104
206-296-3452 v/tty - 206-296-0948 fax

Complaint Form

The Office of Citizen Complaints - Ombudsman is not an office of first recourse. Therefore, we ask that you first try to resolve your complaint with the agency before filing a complaint with the Ombudsman. If you have been unsuccessful in resolving your concern with the agency, please fill out this complaint form and return it to our office by mail or fax.

Name: Michael Costello
Address:
City: Redmond
State: WA
Zip Code 98053
Phone number(s):

1. King County employee, department, division, or service your complaint is about:

King County Executive’s Office

· King County Executive Ron Sims

King County Department of Development and Environmental Services

· DDES Director Stephanie Warden

King County Department of Transportation

• DOT Director Harold Taniguchi
• DOT Road Services Director Linda Dougherty

2. File, permit, record, or other number, if applicable:

Redmond Ridge East Preliminary Plat Application

3. County employees you have dealt with (name, position, agency):

Stephanie Warden, Harold Taniguchi (Represented by Warden)

4. Witnesses/others involved (name, address, telephone number):

None

Summary of your complaint:

On February 28, 2005 I submitted a request to KCDOT and DDES that they recuse their respective agencies from performing the technical reviews for Redmond Ridge East. My stated reasons included the following:

1. Development and mitigation fees fund, to varying degrees, these departments. They fund salaries, raises, and drive the size of the departments. Mitigation revenue also tends to fund otherwise unfunded projects that the county is desperate to obtain. These dependencies on approval of development create a “direct financial conflict of interest”, because if applications are not approved, these departments and other projects are not funded. In simpler terms, County jobs are at risk if development is not approved.

2. Approval of applications tends to attract more applications. More applications mean more work, more staff, more managers, etc. This presents another direct conflict of interest. In fact, there are only benefits to King County when they approve development and this presents a significant coercion for planners to bias their results to benefit developers, and pressures on managers to "get the job done" no matter what it takes. In other words, there are only incentives to recommend approval of development applications, and only disincentives to recommend denial.

3. The King County Ethics Code requires disclosure by council members of financial or other interests that are related to issues they are responsible for, or where they are participants in the decision making process. When it comes to government review of development applications, there should be no less a requirement on county employees tasked with the responsibility to review project applications. I doubt that such disclosures have ever been made to the public or to the King County Council when DDES, DOT or the Hearing Examiner recommends approval of a development application. Whether disclosed or not, though, this conflict of interest is obvious and has serious consequences to the taxpayers and residents that live near projects approved based on biased reviews.

On March 24, 2005 I received the following response from Stephanie Warden, DDES Director:

Dear Mr. Costello:

Thank you for your email transmittal of February 28, 2005 requesting recusal from several departments.
We have evaluated your e-mail and have determined that King County Department of Development and Environmental Services (DDES) and King County Department of Transportation (KCDOT) do not have a conflict of interest in the review of the Redmond Ridge East project or other development projects. We decline your request that DDES and KCDOT recuse themselves from the review of such projects.

Respectfully,

Stephanie Warden
Director
Department of Development and Environmental Services

Harold Taniguchi
Director
King CountyDepartment of Transportation

Given the absence of an explanation or justification for the refusal, I submitted a PDA request in an attempt to obtain communication that would explain the basis for the position DOT and DDES had taken on my request. In response to that request, I obtained only 2 new documents related to my request. The first from Stephanie Warden to Harold Taniguchi and Linda Dougherty on February 28, 2005 stated:

“This request is very bizarre- by his definition all project reviews would create a conflict of interest. Should we wait for the Hearing Examiner to respond, since this is now in a hearing?”

There were no further documents related to this thread provided, if they ever existed. Apparently the director of DDES does not see the conflict when staff performs reviews for projects with a direct financial consequence to DOT and DDES. It is my understanding that King County agencies have been known for distributing memos to staff informing them of the specific consequences in denying permits, including personal layoffs, but Ms. Warden doesn’t see the conflict of interest staff is forced to work under when performing technical reviews? I find that bizarre.

The second new document was an email thread from Ms. Warden to a long list of individuals in KCDOT and the Prosecuting Attorneys Office. Her email appears to have been a single sentence, perhaps a question, but it was fully redacted in the copy sent to me. The several paragraph response from Cass Newell in the PA’s Office was also fully redacted. Therefore, I still had no indication of the justification for the county’s position on my recusal request.

My follow-up request of Warden and Taniguchi to waive their Attorney/Client privilege was also declined. With no clear risk to the public good, my interest was only further peaked as to what secrets were being kept from a citizen of the county that employed both Ms. Warden and the attorneys in the Prosecutor’s Office. What were they afraid of letting me see? Is it possible they were acting against the legal opinion of the PA’s Office?

Then things get really interesting. During the Concurrency Hearings for Redmond Ridge East in March and April of 2005, the PA’s Office did not represent KCDOT. Instead, KCDOT hired 2 outside law firms to represent them before the Hearing Examiner. One of those law firms, Buck & Gordon LLP, describes itself on its website as:

“obtaining permits and negotiating contracts for large and high-profile projects.”

Why was KCDOT hiring a private law firm that specialized in obtaining permits? Why was this agency hiring them at the additional expense to the taxpayer, and not being represented by the Prosecuting Attorney’s Office? Had King County DOT already developed a strategy for suing the examiner that required it to avoid the PA’s Office? By itself, this waste and improper use of taxpayer dollars was already “over the line”. But it gets worse.

The ruling several months later by that hearing examiner was a crushing blow to Weyerhaeuser and KCDOT, with the examiner finding that in no less than 4 different instances, KCDOT engaged in “arbitrary and capricious” actions to help Weyerhaeuser improperly obtain a concurrency certificate in 2002 when they shouldn’t have. The examiner recommended denial of the development and the rescinding of the improperly issued traffic concurrency certificate from 2002.

So a couple weeks have passed and now we’ve just learned that Weyerhaeuser is suing the examiner. This is no surprise as Weyerhaeuser is justified in believing that with the right judge and pressures applied, they can prevail as they have over nearly equally insurmountable legal and political hurdles before. But the unfortunate thing is that King County DOT is also suing the King County hearing examiner. And again, Buck & Gordon is representing KCDOT in the lawsuit? KCDOT is suing King County with taxpayer funds paid to a private law firm and King County will be defended with taxpayer funds by the PA’s Office.

This appears to have created a new conflict of interest for King County. With King County funding both sides of this issue with taxpayer dollars, how can the public expect the PA’s Office to defend the hearing examiner with the necessary vigor? With the clear bias demonstrated by KCDOT to assist Weyerhaeuser in overturning the Hearing Examiner’s ruling, KCDOT has entered into a situation where King County, as a government, is hopelessly conflicted.

Given that KCDOT works for Executive Sims, did Executive Sims authorize this expenditure of tax dollars and the lawsuit against the detailed and thorough conclusions made by the hearing examiner? With funding budgeted by the Executive’s Office and authorized by the County Council, does Sims’ endorsement of KCDOT’s hiring of the private firm send a message to the Prosecuting Attorney’s Office of the Executive’s position?

It is beyond my understanding how King County can operate in a fair and impartial way with agencies like DOT and DDES performing the technical reviews of significant development applications like Redmond Ridge East. There is no argument that recommendations for approval or denial have significant financial impacts on those agencies and to suggest that these pressures don’t influence studies is foolish. It is also disproven by the recent Hearing Examiner ruling that found that in no less than 4 instances, KCDOT committed “arbitrary and capricious” actions to assist Weyerhaeuser in obtaining a traffic concurrency certificate.

It is also incredible to me that government agencies consider it ethical to go outside the PA’s Office to hire private pro-development law firms to represent their agencies in appeals and lawsuits against other government agencies.

Therefore, in light of my comments to this point, I wish to make the following allegations and requests:

1) I am formally requesting that the Ombudsman’s Office launch an independent investigation into the ethics of government agencies performing the technical reviews on development applications that will result in significant impacts on agency or project funding. Simple disclosure is totally inadequate given the importance to the county council of the resultant recommendations. I am alleging that King County Executive Ron Sims, DDES Director Stephanie Warden, DOT Director Harold Taniguchi, and Road Services Division Director Linda Dougherty have created an environment where fair and impartial reviews of major development applications like Redmond Ridge East are impossible.

2) I am formally requesting that the Ombudsman request an opinion of the King County Ethics Board on the allegation that agencies performing the technical review of major development applications have a conflict of interest, when the resulting recommendation has direct financial impacts on those agencies, including the risk to employment of those involved in the studies.

3) I am also formally requesting that the Ombudsman investigate the ethics of one government agency hiring an outside private law firm to engage in appeals or lawsuits against other government agencies. As a single government, official positions should be established by the election officials, such as the Executive and/or King County Council, and those positions should be prosecuted or defended by the PA’s Office. Only when the PA’s Office is unable to represent the county because of resource issues, should private representation be sought. But such representation should never be allowed in instances where that representation would challenge other agencies defended by the PA’s Office, or create a conflict within King County.

4) As before, I’m requesting that the Ombudsman seek the opinion of the King County Board of Ethics on the ethics of one government agency hiring a private law firm to represent it in litigation against the county and the PA’s Office.

5. In your view, what would be the best way to resolve your complaint?

1) King County agencies, such as DOT and DDES, should be required by policy to hire outside independent consulting firms to perform the technical reviews of significant development applications. AT what point an application is major enough to require outside review should be worked out by the King County Council to achieve a reasonable balance between responsiveness, performance and cost.

2) Agencies like DOT and DDES should be streamlined to provide more oversight of application reviews, and less actual involvement. Such policy would create a more consistent staff requirement that would not be impacted by approval or denial of permit applications. Independent reviews would also result in fair and more honest reviews of development applications, where the independent consultants would be paid regardless of the outcome of their recommendations.

3) King County agencies should not be allowed to hire outside law firms to challenge other agency decisions. These are matters for the elected representatives to decide and direct the subordinate agencies as appropriate. For example, it should be up to the King County Council to decide on the validity of the Hearing Examiner’s ruling based on the evidence. Should KCDOT choose to challenge that ruling, their opportunity was during that hearings before the examiner. Their appeal, if deemed necessary, should be represented by attorneys in the PA’s Office, and not by hired guns from outside King County.

I affirm that the above statement and facts are true and correct to the best of my knowledge. I reserve the right to amend this complaint as new information becomes available.

Signature Michael Costello
Redmond, WA 98053

Date: July 25, 2005

Request for non-disclosure: I request that my name not be disclosed (Initial)

“I waive my right for non-disclosure”

pursuant to the provisions of RCW 42.17.31 O( e). If you initialed the request for non-disclosure we will not release your name in the event we receive a public disclosure request for your complaint.

Please mail your complaint to the Ombudsman Office at 400 Yesler Way, Rm. 240; Seattle, WA 98104. You may also fax your complaint to us at 206-296-0948. Please contact the Ombudsman Office at 206-296-3452 if you have any questions about how to fill out this form.

Rev. 12/03