Time for a short rest

Like the majestic creature above, it's time for me to take a short rest.

We are currently averaging about 2,500 readers per month. Not bad, for a little blog that has been in operation less than 6 months!

Thank you very much for your support. Please know that your e-mails and input are always welcome.

We have regular visitors from Denmark, South Africa and the United Kingdom, as well as from across the United States.

In February, Latte Republic experienced a unprecedented 200% national growth rate. (A large number of Universities). I'm not arrogant enough to think that college professors like my blogs - so I assume that a number of college students have been using the site to research term paper topics. (Glad to be of service)!

What are Latte Republic reader's favorite topics? Sunshine Laws, Public Disclosure Commission Violations and the Hatch Act. Growth Management is the fourth most popular topic.

Federal Government Opens Formal Investigation into Dan Pike's Political Activity

During the campaign, The Bellingham Herald stated, “Dan Pike has shaken up the political landscape of city politics…”

But at the time of publication, The Bellingham Herald had no idea just how badly Dan Pike would shake up the political landscape of this sleepy, seaside town –

In retrospect, looking back over the media's coverage of alleged violations during the campaign, it appears that neither The Bellingham Herald or KGMI radio talk show host, Brett Bonner did much independent research into Dan Pike’s alleged or potential campaign violations. In fact, Bonner acknowledged that most of his and Sam Taylor's, (Bellingham Herald government reporter), research focused on the individuals who filed the complaints, as if the complainants, not the candidate, were the individuals who had done something wrong.

Mr. Pike appeared on Brett Bonner's talk show, expressing his outrage at being accused of campaign reporting violations. (Both The Bellingham Herald and Brett Bonner publicly supported Dan Pike during the Mayor’s campaign).

Meanwhile, thousands and thousands of Bellingham voters were casting their ballots based on information received from local media --

On March 4, 2008, city resident Tim Paxton filed a formal State and Local Employee Hatch Act complaint against Dan Pike, alleging, in part, that Mayor Dan Pike’s campaign became illegal onJune 13, 2007, the day Mr. Pike sought and received the endorsement of the Whatcom County Democratic Party. (Federal law prohibits covered Hatch Act employees from participating in partisan elections or advertising political party endorsements in campaign material, television ads, forums, blogs, websites and You Tubes). The endorsement can be viewed here:http://www.whatcomdemocrats.com/candidates.php

If the allegations are correct, Dan Pike was legally obligated to withdraw from the Mayor’s race or resign his position as Transportation Director with the Skagit Council of Governments effective June 13, 2007. Failing a voluntary resignation or withdrawal from the campaign, Mr. Pike’s former employer, Skagit Council of Governments, should have demanded that Pike withdraw from the Mayor’s campaign or resign from his position as Transportation Director.

But Dan Pike did not resign his position nor did he withdraw from the mayor’s race. By refusing to resign or withdraw, he may have placed his former employer’s federal funding in jeopardy. The Hatch Act is sometimes referred to the "resign to run" act. The OSC advisory can be viewed here: http://www.osc.gov/documents/hatchact/federal/fha-27.pdf

On April 8, 2008, Mr. Paxton received correspondence from Erica Stern Hamrick, an Attorney for the Hatch Act Unit of the US Office of Special Counsel (OSC) acknowledging that the OSC has opened a formal investigation into Mayor Pike’s political activities while he was employed at SCOG.

Mayor Pike has been silent on the matter, but was quoted by the media during the campaign stating that he had administered up to $500 million dollars in Transportation Projects while working in the Transportation industry, including his tenure as Transportation Director for the Skagit Council of Governments in Mount Vernon.

Now, before you haul off and shoot the messenger, try to remember that the Hatch Act has been on the books since 1939. (Almost 70 years). The State and Local Employee version of the Act was adopted in 1940. (68 years ago). A PowerPoint presentation and Video from OSC is available for your review at the bottom of this post. This is not some obscure law that no one knows about. The federal government has spent millions of dollars training covered employees about the Hatch Act.

Complainants don't write campaign laws. They file complaints when they believe a candidate has violated state or federal campaign law(s). In turn, enforcement agencies carefully review the documentation provided by the complainant to determine if they will open a formal investigation of the candidate's activities. State and Federal agencies do not open investigations based on heresay or rumor. They require solid evidence of alleged wrong doing before they open an investigation.

Dan Pike is solely responsible for his behavior. Granted, Mr. Pike may have received bad advice from campaign advisors, but, in the end, he is the only person who is legally and morally responsible for his political decisions.

In short, playing fast and loose with campaign law compliance issues is like gambling. At some point, the odds will catch up with you. While one or two violations may go unobserved, sooner or later someone - a political opponent - the media - or enforcement agency official - is likely to start looking for larger transgressions. If they find violations, they will file complaints with appropriate state or federal agencies.

Daniel Venus Pike may be the Mayor of Bellingham, but if Paxton's allegations are correct, Pike may have won the seat illegally, pushing other qualified, law-abiding candidates out of the running for the mayor’s seat.

Yes indeed, Dan Pike has certainly shaken up the political landscape of this sleepy, seaside town.

Office of Special Counsel PowerPoint on State & Local Employee Hatch Act:https://www.osc.gov/documents/hatchact/state/HA%20presentation%20(State%20and%20Local).ppt

Office of Special Counsel State & Local Employee Training Videos:
http://www.osc.gov/hatraining.htm

PDC statement on Internet Use: http://www.pdc.wa.gov/archive/guide/pdf/07-04.pdf

Former Terre Haute Indiana Mayor Burke files lawsuit to remove Challenger Duke Bennett from Office for Hatch Act Violations

Burke v. Bennett

Kevin Burke, the former incumbent mayor of Terre Haute Indiana, who recently lost his bid for re-election filed a petition to have the Indiana court throw out the result of the election and declare the runner up (himself) the winner.

This case relies on interesting blend of state and federal law, where the cause of action and the proposed remedy, (removal from office), is provided by state law, but the basic defect, (violation of the Hatch Act), is supplied by federal law.

Former mayor Kevin Burke claims that the winner of the November General election, challenger Duke Bennett, was ineligible to run for office under U.S.C. 1501 which prohibits “state or local officers or employees from being a candidate for elective office” and, U.S.C. 1502(a) which defines state or local employees as “an individual employed by a State or local agency whose principal employment is in connection with an activity that is financed in whole or part by loans or grants made by the United States or a Federal Agency…” U.S.C. 1501(4).

Burke’s challenge relies on the premise that the Hatch Act provides similar limitations to employees of certain non-profit corporations in addition to state, federal and local employees.

Indiana Code 3-12-8 Section 2 provides the cause of action, while Section 17 provides the remedy: "a contest shall be heard and determined by the court without a jury. If the judge rules that winning candidate is ineligible, the court shall declare as elected the qualified candidate that received the highest number of votes."

On December 21st, 2007, Vigo Circuit Court Judge Bolk ruled that while Bennett was subject to a federal law that limits political activity, state law did not prevent him from taking office as Burke's attorneys argued.

Judge Bolk allowed Bennett to take office because, in Bolk's opinion, Bennett was no longer in violation of the Hatch Act when he took office on January 1st. Burke filed an appeal of Bolk's decision with the Appeals Court, claiming that Bolk's decision to allow Bennett to take office creates a legal loophole that does not exist under Indiana Code.

Bolk's decision raises some interesting questions about the application of the law in regards to elections. Does the law provide a candidate who violates the Hatch Act a legal loophole to take office once the election is over? Bennett's attorneys argue that mayor Burke should have filed the Hatch Act Complaint before the election --in other words, it's alright to break the law, as long as you don't get caught before the election. (Perhaps we can view Bolk's decision as classic example of how two wrongs can make a right).

Meanwhile, Bennett has filed an appeal asking the Appeals Court to overturn the part of Bolk's ruling that states Bennett was a covered employee under the Hatch Act when he ran for office.

Duke Bennett worked as a Director of Operations for a private health care provider. But Burke is claiming that 42 U.S.C. 9851(a) applies and that even though the Hatch Act only applies to state and local government, some federal statutes governing the allocation of federal grant money include a clause that private entities who accept federal dollars are considered "state and local agencies" for the purposes of the Hatch Act’s limitations on political activity."

Bennett's former employer, the Hamilton Center, operates a Head Start program with federal funds. Burke’s attorneys argue that a portion of Bennett’s salary was paid with Head Start funds. Bennett’s attorneys argue that Bennett’s job only indirectly had contact with the Head Start program and that he reported to a different Executive Director.

42. U.S.C 9851(a) provides that “any agency which assumes responsibility for planning, developing, and coordinating Head Start programs and receives assistance under this subchapter shall be deemed to be a State or local agency.” The code in effect converts a private, non-profit health care facility into a State or local agency and may bar employees of the facility from seeking public office if the employee’s principal employment is in connection with an activity which is financed in whole or part by federal money."

Burke must prove that Bennett was covered by the Hatch Act before he can petition the Indiana court to remove Bennett from office. Jim Mitchell, a spokesman for the U.S. Office of Special Counsel, the federal agency that investigates and prosecutes complaints involving the Hatch Act, tells readers that the Hatch Act "has got a lot of ends and outs and that's why it takes some time for us to investigate the circumstances to find out what's really going on... It's not one of those three-paragraph laws." The OSC is actively investigating the allegations that Bennett may be a covered employee.

Here’s where it gets confusing – U.S.C. 1501(4) defines covered individuals as those employed by a covered agency “whose principal employment is in connection with an activity that is financed in whole or in part by loans or grants made by the United States or a Federal agency…” In other words, Burke can’t just claim that his opponent is barred from seeking public office just because he’s employed by a health care provider that receives Head Start federal funds. Burke’s attorneys must prove that Bennett’s principal employment is connected with activities funded by Head Start.

The burden of proof rests upon the ability of OSC or Burke’s attorneys to prove that Bennett carried out activities directly connected to Head Start or supervised individuals that were directly connected to the Head Start program.

In Williams v. U.S. Merit System, the Fourth Circuit opined that “an employee of a covered agency is subject to the Hatch Act if, as a normal and foreseeable incident to their principal position or job, he/she performed these duties in connection with an activity financed in whole or part by federal funds. The Act does not cover state or local employees whose connection with federally funded activities is merely a casual or accidental occurrence of employment, because such a de minimis connection does not justify application of the Act” (internal quotations omitted).

Lawyers for Burke said they will wait to comment on Bennett’s latest filing when they have a response prepared. The response is due around April 18, 2008. The appeal could take up to a year.

Timeline for Burke v. Bennett

November 6, 2007: Terre Haute Mayor Kevin Burke officially challenged the November 6th election results.

December 21, 2007: Judge David Bolk ruled that while Bennett was subject to federal law that limits political activity, state law did not prevent Bennett from taking office as Burke's attorneys claim.

February, 2008: Appeal filed with Appellate Court

April 18th, Burke response deadline

McEntee v. Merit Systems Protection Board: http://www.cafc.uscourts.gov/opinions/04-3066.pdf

Navigating the Hatch Act: http://www.napfe.com/HATCH.htm

Washington Post Article on Hatch Act resignation

The U.S. Office of Special Counsel is an independent investigative and prosecutorial agency. Among other functions, it investigates and prosecutes complaints alleging violations of the Hatch Act and provides advisory opinions regarding the Act’s requirements. For more information about OSC, please visit our web site at www.osc.gov or call 1-800-872-1855.

City's response to Public Disclosure Requests regarding SEPA DNS 2008-00002

I keep asking for clarification - and the city continues to treat me like another dumb housewife. Here's the latest regarding my public disclosure requests for documentation regarding delegation of Official SEPA Authority regarding SEPA DNS 2008-00002,

April 12, 2008

Mr. Tim Stewart
City of Bellingham
Planning and Development Director
210 Lottie
Bellingham, WA 98225

Dear Mr. Stewart:

"Mr. Steve Sundin is identified as the staff member that completed and signed the SEPA checklist (2008-00002) for this proposal. Did you appoint Mr. Sundin to sign any subsequent SEPA action for this proposal, including a review and recommendation for the SEPA determination, the Determination of Non-Significance, any transmittals of the checklist on behalf of the City to any other agency or party of record?

If you did not appoint Mr. Sundin for any of these actions, did he act on his own without your authorization as the SEPA Responsible Official?

Mr. Stewart, who is the properly authorized SEPA Responsible Official that signed DNS 2008-00002?

Please provide documentation for that staff person to be specifically authorized to perform that task in accordance with and fulfillment of the Bellingham Municipal Code.

Thank you in advance for your time and thoughtful consideration of my request.

Sincerely,

Elisabeth Britt

cc: Attorney General’s Office

Here's the City's most recent response to my public disclosure requests regarding SEPA DNS 2008-00002 for the proposed Essential Public Facilities Land Use Amendments that are scheduled to be adopted on April 14th. (The Planning and Community Development Responses are in bold italics).

The responsive records for your two public disclosure requests dated 4/4/2008 and 4/5/2008 are available as pdf files and are attached. Let me know If you would prefer hard copies and the cost for that is 15 cents per page, per side.
Request from April 4th, 2008

1. Please provide me with the name of the City employee who signed the
SEPA Environmental Checklist.
The Environmental Checklist: (See attached file: SEPA CKLST FOR CAO
AMENDS.pdf)

2. I am requesting copies of any correspondence, including memos or
e-mail, from Tim Stewart delegating responsibility to other planning
department employees in regard to SEPA DNS 2008-00002 from January 2008,
through April 5, 2008.
No records were located that are responsive to this request.

3. I am requesting a copy of a complete list of agencies and interested
parties that were sent copies of the original SEPA DNS 2008-00002 and
the re-issued SEPA DNS 2008-00002.

The mailing list provided is the only responsive document in Planning
and is for the re-issued DNS for SEP2008-00002: (See attached file:
SEP2008-00002Mailing List.pdf)

Request from April 5th, 2008
Bellingham Municipal Code 16.20.050 designates the Planning Director as
the City's SEPA Responsible Official. Please provide documentation of any
written delegation of the SEPA Responsible Official responsibilities to
another City staff person during your tenure as the Planning Director. A
roster of the SEPA decisions made per your delegation of Responsible
Official role is also requested. Absent any documentation delegating the
Responsible Official role or absent a roster of SEPA decisions made by
the delegated Responsible Official, please provide written confirmation that
you have not delegated the Responsible Official responsibilities to another
person during your tenure.
Planning has already provided you all existing documentation for the
above request. The responsive record to your restated request is the
delegation of authority issued December 17, 2007.

If you missed out on the first series, scroll down until you reach the article entitled, just another dumb housewife. It was posted on April 5th.

Hatch Act Violation?

Several political satire cartoons lampooning Hilary Clinton are at the Center of a Social Security employee Hatch Act Investigation in Chicago.

The question is whether the e-mailing of political cartoons to others violates the Hatch Act's ban against political activity on the job. A union spokesman for region five social security employees tells viewers that this is taking the Hatch Act too far.

A March 3rd memo from the midwest region five Social Security commissioner says the region is currently investigating a relatively large number of potential violations involving 6 cartoons.

The Hatch Act was adopted in 1939 to prevent prohibited political activity by state, local and federal employees who work at agencies that receive federal dollars for programs and activities.

But e-mail isn't the only way for covered employees to get in to hot water. Below, is an excerpt from an article on Blogs printed in the "Federal Times" by Elise Castelli on March 9, 2008.

Blogs, e-mails land feds in trouble
By ELISE CASTELLI
March 09, 2008
"Blogs have revolutionized how this year’s presidential candidates reach out to voters, but they’ve also increased the ways government employees can run afoul of the Hatch Act.
The Office of Special Counsel, which investigates cases of improper politicking by government employees, is getting more inquiries than ever from feds about how they can use blogs and social networking sites without jeopardizing their jobs this campaign season.
Blogging about politics at work is a no-no, but even blogging off hours could land a fed in trouble under certain circumstances, said Ana Galindo-Marrone, chief of OSC’s Hatch Act unit.
Many campaign sites allow supporters to set up their own Web pages or blogs to support a candidate. The danger for feds who set up a page on a campaign-sponsored site: Many of these pages also contain a big, red “donate” button."

The entire article can be found here: http://federaltimes.com/index.php?S=3411565

Covered Employees: Inquiries about the Hatch Act may be made in writing or by telephone to:
Hatch Act UnitU.S. Office of Special Counsel1730 M Street, N.W., Suite 218Washington, D.C. 20036-4505Tel: (800) 85-HATCH or (800) 854-2824 (202) 254-3650
Requests for Hatch Act advisory opinions (only) may be made by e-mail to: hatchact@osc.gov

Additional information is available at the U.S. Office of Special Counsel website: http://www.osc.gov/hatchact.htm

How Many Homes will a 2.5 Million Gallon Reservoir Serve?

It's Contest Time!

How Many Brand New Homes will the City's new 2.5 Million Gallon Yew Street Reservoir Serve on the undeveloped hilltops overlooking Lake Padden?

The proposed Yew Street reservoir will serve the largely undeveloped Samish Neighborhood area on the hill north of Lake Padden and needs to be located in as high an elevation as possible. The project includes approximately 6000 linear feet of 12" transmission main from 40th Street to the reservoir site.

Because of this, the 12" main serving the new reservoir must extend through steep slopes and/or wetlands.

Geology Bonus Questions: (Worth two extra cups of coffee at the Black Drop).

1. How much water could be released if the 2.5 million gallon reservoir or the 12" water main ruptures during an earthquake, slope failure or other natural disaster? (Hint: the water main will be constructed in a steep, unstable slope).

2. If a natural disaster should happen, which way will the water flow?

Public Policy Bonus Question: (Worth one cookie)

Why would the City file suit to stop water service to the Lake Whatcom Treatment Center (a bonafide essential public facility) under the guise of protecting the Lake Whatcom watershed hillside from future development, then turn around and support unfettered development above Lake Padden? (ok, two cookies --and two asprin).

* The City lists this future "Essential Public Facility" project in the SEPA DNS #2008-00002, page 2-11, titled Future City Essential Public Facility Projects with Critical Areas Constraints.

Just another Dumb Housewife --

"Public servants can be successful only if the people know what we do and actively participate with us in conducting their business. The public should be able to trust that we, as elected leaders, will act on behalf of the greater good, without arbitrary exercise of power or secrecy. To build this precious trust and stimulate public involvement in decision-making, we must perform our duties in the light of day, where the merits of our work and the effectiveness of our policies can be seen and judged. To make a real difference, we must be visible, because by being visible we become accountable and credible in the eyes of the public." -- John Russo. City Attorney for Oakland CA. April 2004.

On April 2nd, I submitted a public disclosure request to Tim Stewart, Director of Planning and Community Development requesting documentation of any written delegation of State Environmental Protection Act (SEPA) Responsible Official responsibilities to another city staff person during his tenure as the Planning Director.

In response to my request, Mr. Stewart's staff forwarded me a copy of a blanket "Delegation of Authority."

Why did I specifically address my request to Tim Stewart? Bellingham Municipal Code 16.20.050 designates the Planning Director as the City's Responsible SEPA Official. A copy of the "Delegation of Authority," is posted below. I have posted my comments as to why this is not an appropriate response to my public disclosure request below the City's response. To date, I have submitted seven public disclosure requests to various state agencies and the City in an attempt to document the City's compliance with the WA State Environmental Protection Act (SEPA) law review process.

It's important to note that each of the state agencies I contacted promptly and cheerfully responded to my public disclosure requests, as required by law. No stonewalling, no games.

Planning and Community Development Department
Delegation of Authority
And Emergency Managment Succession Plan
December 17, 2007

The purpose of this document is to establish a standard Delegation of Authority and Emergency Management Succession Plan for the Department of Planning and Community Development, including the Building Division.

1. When the Planning Director (Stewart) is absent, the Assistant Planning Director (Thomas) has the full authority of the Director, including the authority to sign any and all documents.

2. In the absence of both the Planning Director and the Assistant Planning Director, the Building Official (Burris) has that authority.

3. In the absence of the Director, Assistant Director, Building Official and both Program Managers, the most senior Program Managers (Cahill, T. Sundin in order of seniority) has that authority.

4. In the absence of the Director, Assistant Director, Building Official, and both Project Managers, the most senior Senior Planner (Aucott, Vogel, Nabberfeld, in order of seniority) has that authority.

5. In the absence of all members of S&P, the next most senior employee of the Department shall have this authority.

"Absent" shall mean not physically available when a physical activity (such as a signature) is required. "Absent" shall also mean out of touch electronically (phone and email) when any other decision making authority is required.

Additional authority of the Director may be delegated in writing on a case by case basis.

Signed, Tim Stewart
12-17-2007

As Director of Planning and Community Development Department, Tim Stewart is the Designated SEPA Official for the City of Bellingham. I submitted a pubic disclosure request for copies of any and all correspondence in which he delegates any SEPA authority to a city employee during his tenure as Planning and Community Devlopment Director.

Mr. Stewart's blanket "Delegation of Authority" does not apply to my public disclosure request for the following reasons:

1. The "Delegation" form relates to the Director's absence in emergency situations. SEPA is an on-going responsibility with specific time frames so that decisions are not forced into an "emergency mode."

The state mandated SEPA process establishes ample time frames to ponder the impacts of permits and non-projects that are long-term in their implementation and impact, it is not designed for spur of the moment emergency situations.

Mr. Stewart's "Delegation of Authority policy" seems to relate to daily decisions (all codes) that may need immediate turnaround if the Director is not available within a 24 hour period.

2. I do not believe the SEPA Responsible Official can delegate SEPA responsibilities within a blanket administrative protocol like the one presented to me. The SEPA delegation must be specific, either for a specific time frame or a specific project, but in both cases to a specific individual.

The reason is the SEPA process is greater than 24 hours and requires continuity of the person reviewing the information so that the analysis is directly linked to the decision (or lack of decision).

Absent any specific written SEPA delegation, my opinion is that Tim Stewart is the Responsible Official and is obligated to perform all the tasks specified within the BMC.

Consequently, I am submitting a third public disclosure request:

April 5, 2008

Mr. Tim Stewart
City of Bellingham
Planning and Development Director
210 Lottie
Bellingham, WA 98225

Dear Mr. Stewart:

I’m writing in response to the attached “Delegation of Authority” that you sent me in response to my public disclosure request dated April 2, 2008. I have included a copy of my original request for your review.

My April 2 letter requested documentation of any delegation of the SEPA Responsible Official role. In response to my request, your staff forwarded a blanket "Delegation ofAuthority.......(December 17, 2007). Although this may be a general protocol for daily management and communication, the form you provided me does not address the specificity of my original request.

I will re-state my request in detail to assist your understanding of the question.

Bellingham Municipal Code 16.20.050 designates the Planning Director as the City's SEPA Responsible Official. Please provide documentation of any written delegation of the SEPA Responsible Official responsibilities to another City staff person during your tenure as the Planning Director. A roster of the SEPA decisions made per your delegation of Responsible Official role is also requested. Absent any documentation delegating the Responsible Official role or absent a roster of SEPA decisions made by the delegated Responsible Official, please provide written confirmation that you have not delegated the Responsible Official responsibilities to another person during your tenure.

Thank you in advance for your time and thoughtful consideration of my request.

Sincerely,

Elisabeth Britt

cc: City Attorney for Bellingham

Washington State Attorney General's Office

Brief FAQ: Courtesy of Washington Coalition of Open Government.

Q. Can a person get public information by phone or by fax?

A. Short of a public disclosure request, the law does not provide for such access, but governmental agencies often provide it to be helpful.

Q. What is a "public record"? What constitutes a "meeting" of a public agency?

A. A record is defined in broad terms of documents and information in government's possession. The concept of a public record covers "all records, document, tape, or other information stored or preserved in any medium" -- including on a computer -- "of or belonging to" a government agency. A government agency is considered to be "meeting" when a majority of its members are talking about or taking action upon any matter within the scope of the governmental body's policy-making duties. That, too, is a broad definition, consistent with the law's emphasis on openness. Many city councils, for example, have committees whose membership constitutes fewer that a majority of the council. These meetings are open public meetings, however, even though the "decisions" or "recommendations" from the committee to the full council are not final. In Washington, the deliberative process of government, at all levels, is public.

Q. Does a person have a right to speak at a meeting of a government agency?

A. No. School boards, city councils, etc., routinely invite comments and discussion from the general public, but they can say "No" to requests to talk and can place the time limits on comments.

I hope the above questions and answers provide you with insight as to why the public disclosure request process is important to citizens and journalists.

Additional Information regarding public information requests can be located at:

Open Government Manual: http://www.atg.wa.gov/OpenGovernment/InternetManual.aspx

Washington Coalition for Open Government: http://www.washingtoncog.org/index.html