The Whatcom County Council appears unwilling to take over the review of a contract with a consultant writing the environmental impact statement for a proposed coal terminal at Cherry Point.
Several council members said at a committee meeting on Tuesday, Feb. 11, that they feared this would put them on shaky legal ground. Dan Gibson, a deputy prosecuting attorney advising the council at the committee meeting, didn't say anything to dispute that.
An ordinance written by council member Carl Weimer would require contracts that involve "pass through" money, not the county government's own money, to be approved by the council. Currently, the executive can approve such "pass through" contract amendments without consulting the council. The council only approves contracts in which the county's money would be spent.
A companion resolution, also introduced by Weimer, would have asked Executive Jack Louws not to sign the next contract amendment with the consultant, CH2M Hill, so the council could have a chance to pass the ordinance and possibly take over review of the contract.
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Weimer said the ordinance would close a loophole that enables even major contract changes to be approved without council oversight. The next CH2M Hill amendment, which will enable the consultant to start writing the environmental impact statement for the Gateway Pacific Terminal, involves a roughly $6 million payment from the project proponents -- Pacific International Terminals and BNSF Railway Co. -- to the consultant and the county for the costs incurred in developing the report.
Weimer also defended the ordinance by saying it would provide greater transparency to the public and provide better assurance the county is recovering all of its costs.
Gibson, the prosecuting attorney, raised warnings about both the resolution and the ordinance.
"Passing an ordinance or adopting a resolution as has been proposed should not be taken as an avenue to interfere where the county council doesn't have a place," Gibson said. "The process of scoping (the next contract amendment) is an administrative process, not a legislative process."
The Finance and Administrative Services Committee, comprised of Sam Crawford, Barry Buchanan and Rud Browne, voted 2 to 1 to hold the ordinance in committee. Browne and Buchanan voted "yes."
The vote served to thwart tonight's proposed agenda, which shows the ordinance being introduced. It would have come to a public hearing and a possible final council vote two weeks from now.
Despite the committee's recommendation, the ordinance could still be introduced tonight.
The companion resolution, asking Louws to sit on the contract until the ordinance is decided, fell even flatter in the committee, with a 3-0 vote recommending the full council not approve the resolution.
Buchanan said he wanted more legal advice before a final vote on the ordinance. If council members show any bias on the coal terminal, either the project proponent or its opponents could ask them to recuse themselves -- i.e. not vote -- on a project permit.
"I want to make sure we don't go down the wrong road and end up being recused from this process," Buchanan said.
Browne, who made the motion to hold the ordinance in committee, didn't explain his motion. Before the vote he had spoken in favor of council review of pass-through contracts, particularly significant ones.
"My concern has more to do with the overall process, not GPT," Browne said. "I would not be comfortable with not having broad oversight of large contracts because of the potential for secondary costs, including litigation or insurance liability."
But others on the council expressed reservations similar to that of Buchanan.
"This is going to set us up for liability. That's my big concern," council member Barbara Brenner said. "We could be recused."
"I agree with Ms. Brenner," council member Ken Mann said. "I'm not sure how we can reasonably administrate (the contract) without contaminating our impartiality."
After Weimer's ordinance became public, factions for and against the coal terminal were quick to respond.
"Although the proposed resolution mentions 'open transparent government,' its own content violates this principle," wrote Brad Owens and John Huntley, co-chairmen of the Northwest Jobs Alliance, a pro-terminal group. The statement was in a letter dated Feb. 7.
"Nowhere does the resolutions' author use language that forthrightly references his target, which is the Gateway Pacific Terminal project, to which he has long been opposed," the letter went on to say.
Weimer in interviews and public forums has maintained his neutrality on the project. He specifically said months ago that without a completed draft of an environmental impact statement, there is nothing to have an opinion on.
David Stalheim, former county planning director and unsuccessful candidate for county executive in 2011, wrote on Feb. 8 a response letter to concerns raised by Pacific International Terminals over "the Weimer resolution."
"The statement that the county executive has authority for these contract amendments because the costs are 100 percent paid by Pacific International Terminals is simply not true," Stalheim wrote. "When Whatcom County fails to charge for the time of their attorneys, secretaries, records and technology department, or the staff in the county council and executive offices, it is not getting 100 percent cost recovery."