05/13/02 Memo/Harball/Hearing on Wolford RequestCity Attorney
Charles A. Harball
DATE
TO
FROM:
RE
May 13, 2002
City of Kalispell
Office of City Attorney
312 First Avenue East
P.O. Box 1997
Kalispell, MT 59903-1997
Ron Van Atta
Chair, Kalispell City Planning Board
Charlie Harball U14
cCity Attorney ` `` ----
Hearing on Wolford Request for Planning Amendment
Tel406.758.7708
Fax 406.758.7771
cbarba11@61ispell. corn
Two matters have come to my attention to cause me concern as this Planning
Amendment request has worked its way to this point in the process. The first involves
board member Jean Johnson and the second involves board member Mark Brechel. I
have already discussed my concerns with Mr. Brechel and Mr. Johnson.
Mr. Johnson, as you are aware, has worked for Mr. Wolford on this project and has
represented Mr. Wolford in this capacity in discussions with the City. He has indicated
to me that he intends to recuse himself on this issue when it comes before the Board.
However, I have also been told, although I have not verified these facts, that Mr.
Johnson has made comments to other board members that if this request is not
recommended for approval and approved by the City, his client will sue the City and
the Boards. I have also been told that Mr. Johnson has arranged or attended public
informational meetings in Evergreen about this project and made statements to the
public that people need not or should not attend the public hearings on the matter as
all necessary information would be available at the Evergreen meetings. When I asked
Mr. Johnson about this he denied taking either action.
If, in fact, Mr. Johnson did take these actions, I believe he would have stepped so
far outside his scope as a board member that the City would not likely indemnify him
if he was personally named in a lawsuit for his actions.
My concern regarding Mr. Brechel's actions involves the letter written by him and
published in the Daily Inter Lake a couple of weeks ago. In that letter, Mr. Brechel
specifically names the applicant, sets forth some of his concerns and calls for the public
to become more involved in the process. When I spoke to Mr. Brechel about this, he
indicated to me that he has no prejudice against the project and has not made up his
mind about it. He told me he felt the public knew very little about the project and he
merely wanted to create more public awareness.
Memo to Planning Board
May 13, 2002
Page-2
Based upon the input I have personally heard from the public and other letters I
have seen referring to or commenting on Mr. Brechel's letter, it seems to me that most
people interpreted Mr. Brechel's letter as an alignment with those opposed to the
amendment and project. Frankly, although Mr. Brechel has assured me that he is
withholding judgment until all of the information is in, I think he would be hard
pressed to persuade any one else of this.
I will save my soapbox speech for another memo, but I will take some space here
to stress to all planning board members that it is not only imperative that each
member conduct themselves so as to treat every applicant in a fair, dispassionate and
impartial manner, but also to give every appearance to the public that the process will
be objective and unbiased. Our system will only be effective so long as we have the
support of the public.
If I thought my position gave me the authority, I would order Mr. Johnson and Mr.
Brechel to recuse themselves from the issue and step away from the discussion
entirely. I believe they may both expose the City, the Board and themselves,
personally, to liability.
This makes the task for the Chair of the Board more difficult. I would suggest that
even prior to taking staff report on the request, that you poll the members of the Board
regarding any conflicts they may have. Do any members have any relationship with
the applicant or any other party that would benefit directly from the amendment or
project? Has any member addressed the amendment or project publicly and expressed
any opinion about it that might reasonably be perceived as a bias? The inquiry may
need to be developed further on the fly as members respond to the questions.
Essentially, a record should be made to respond to those issues of conflict currently out
there. If these, or any other members, recuse themselves, I would suggest they come
away from the table completely for that entire agenda item, from staff report forward.
I would further discourage any board member who recuses himself from changing
hats and making any public comment as proponent, opponent or otherwise.
If you have any other questions, or wish to discuss this further, please call.
City of Kalispell `W
Office of City Attorney