Randall K. Gaylord
SAN JUAN COUNTY PROSECUTING ATTORNEY
350 Court Street• P.O. Box 760 •Friday Harbor, WA 98250
(360) 378-4101 (tel)• (360) 378-3180 (fax)
Victim Services

Deputies

Sandra L. Burt, MSW
Christine Miller

Jonathan W. Cain
Gwendolyn L. Halliday
Amy S. Vira
Emma C. Scanlan
Hyrum J. Hemingway
MEMORANDUM

March 11, 2015
TO:

C:

Mike Thomas, County Manager
~hristopher Laws
County Council
Sam Gibboney, Director of Department of

M

FROM:

Randall K. Gaylord

RE:

Report on !GA Rep/rt

unity Development

d~ January 21, 2015
I.

INTRODUCTION

On January 21, 2015 at 4:53 p.m., Christopher Laws, the County Code Enforcement
Officer, delivered a written letter pursuant to Resolution 113-1992 1 which concerned alleged
improper governmental action ("IGA"). The re~ort was submitted in a timely manner and
properly submitted to the Prosecuting Attorney. The general nature of the Laws letter was
provided to the County Manager on January 22 and to the County Council on January 27.
The Prosecuting Attorney has sent a written acknowledgement of the report to Mr. Laws,
the County Council, and the Count)' Manager and stated that the approach used by the
prosecuting attorney will be consistent with the approach used by the State Auditor as set forth in
RCW 42.40.040.

1

The first page of Resolution 113-1993 is shown with the number 113-1992, which is an error. The subsequent
pages and date show correctly the year 1993.
2
IGA reports should be made within one year of the incident on which it is based. This report was made one day
after information regarding the incident was submitted to Mr. Laws as part of the Ecology Tracking System (ERTS).
Mr. Jim Doherty, Legal Consultant at MRSC has concluded that an IGA complaint can be taken directly to the
prosecuting attorney, and there is no need to first report to the supervisor or County risk manager. See RCW
42.41.030(3) and Resolution 113-1993. In accordance with Resolution 113-1993, the Prosecuting Attorney's office
is not simply a passive recipient or conduit for IGA reports but has investigative authority.
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Page 2
Pursuant to RCW 42.40.040 this matter will be handled with less formality because: (1)
the good quality of the written evidence that has been easily found, (2) the existence of
procedures which are intended to address the action in question, (3) the topic involves an isolated
issue that has not been repeated, and (4) because there is a need for a prompt resolution without a
formal investigation.
A preliminary report was prepared and issued on February 12, 2015 and the recipients
were requested to provide comments, in writing, within 15 days.

II.

MATERIALS REVIEWED

A. Documents:
1.

2.

3.
4.
5.
6.

7.
8.
9.

Resolution 113-1992;
Letter dated January 21, 2015 from Christopher Laws with attachments:
Department of Ecology ERTS No. 654194;
Email September 9, 2014 from Sam Gibboney to Annie
Matsumoto-Grah re: "Portland Fair property,"
Email September 9, 2014 from Annie Matsumoto-Grah to Sam
Gibboney re: "Portland Fair property,"
Email September 11, 2014 from Annie Matsumoto-Grah to Sam
Gibboney re: Portland Fair property (chain includes email from
Sheryl Purnel Albritton),
Email December 1, 2014 from Annie Matsumoto-Grah to Linda
Kuller re: Hughes (building-14-0229),
Letter dated August 27, 2014 from Annie Matsumoto-Grah to
Chris and Jenise Hughes c/o Travis Stanton re: Hughes Building
Permit Application Review,
· Polaris vicinity maps,
Chapter 15 of the Personnel Rules,
Memorandum dated January 26, 2015 from Annie Matsumoto-Grah to
Chris Laws re: Hughes Building 14-0229;
Email dated February 3, 2015 from Linda Kuller to Amy Vira re: Wetland
Review Process;
Email dated February 5, 2015 from Lisa Brown to Amy Vira re: Critical
Areas Checklist;
Letter dated February 5, 2015 from Doug Gresham, Wetlands Specialist
with Washington State Department of Ecology with photographs, forms,
and GIS information;
Personnel Rules (complete);
County Manager Employment Agreement with Exhibits.
Follow-up comments of Chris Laws

B. Statements:
No formal statements have been made or requested due to the informal and low-level

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nature of this matter. The content of informal conversations with Sam Gibboney, Mike Thomas
and Chris Laws with Randall Gaylord or Amy Vira has been relied upon where indicated.
C. Other:
A drive-by site inspection from Treeline Drive was conducted on March 4, 2015.

III.

BACKGROUND

The Hughes own property conimonly known as 3 I 0 Treeline Drive on San Juan Island in
the Portland Fair neighborhood. The property is a pie-shaped, undeveloped parcel. The
neighboring property owners to the west are the Albrittons and the Portland Fair [Home] Owners
Association.
The property west of the Albritton parcel is owned by Council Member Bob Jarman and
his wife. Council Member Jarman also owns another parcel nearby.
A pond and associated wetlands and a seasonal drainage way are located on the Portland
Fair [Home] Owners Association property. This pond connects to another pond located downgradient. This wetland mosaic and the area around it are the subject of this matter. The pond
and surrounding wetlands have been previously identified and are shown on the wetlands layer
of the County's Polaris GIS system.
The Hughes, through their contractor, Mr. Stanton, applied for a building permit, and
were eventually issued Permit No. 14-0229 in September 2014.
The issue that is presented is whether the county requirements for evaluating wetlands
were properly followed before the building permit was issued.
Following the adoption of the County's critical area ordinances, a checklist was
developed and policies and procedures were set into place to assure that applications for building
permits included appropriate reports which show the location and boundaries of critical areas and
their buffers. One of these procedures concerns the identification of regulated wetlands (as
compared to exempt wetlands "dug ponds" and "farm ponds"). 3 The staff guidance documents
state:
Based upon the definition of wetland in 18.20.230, man-made ponds built
outside of wetlands that now contain some wetland plants are not treated
as a wetland. Man-made ponds that were never constructed in a wetland
and are not considered wetlands can be maintained including digging out
3

"Wetland" means an area that is inundated or saturated by surface water or ground water at a frequency and
duration sufficient to support, and that under normal circumstances does support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and
similar areas. Wetlands do not include those artificial wetlands intentionally created from nonwetland sites,
including, but not limited to, irrigation and drainage ditches, grass-lined swales; canals, detention facilities,
wastewater treatment facilities, farm ponds, and landscape amenities. or those wetlands created after July l, 1990,
that were unintentionally created as a result of the construction of a road, street. or highway. Wetlands may include
those artificial wetlands intentionally created from nonwetland areas created to mitigate conversion of wetlands.

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sediment. Man-made ponds constructed in a wetland are treated as a
4
wetland.
In addition, once the determination that an area is in fact defined and regulated, it is sized
and categorized and setback standards will depend on the wetland quality. Staff would also
examine the development of driveways and buildings and slope to determine whether a water
quality buffer and/or habitat buffer would apply, and if so, the size of the buffer(s). 5
In the adoption of the Critical Area Ordinances in December 2012, the County Council
set out the requirements for the preparation of wetland reports. SJCC 18.30. l 50(E). These
reports may vary in complexity based upon the nature of the wetland and the proposed
development. The least-detailed report results from a "wetland reconnaissance" which is an
abbreviated wetland evaluation that confirms the presence or absence of a wetland or the
application of the exception for a pond dug outside of a wetland. 6 SJCC 18.30.150(E). But in
every case where an evaluation of a wetland is done, some type of wetland report must be
provided. See SJCC 18.30.050(EjC1). In most cases the wetland report is prepared by a
"qualified wetland professional." There is no exception to the preparation of "a report." If a
regulated wetland is identified, field marking is required "prior to building permit approval."
SJCC 18.30.150(D)(4).
The Hughes' building permit was assigned to planner Annie Masumoto-Grah on July 19,
2014. Ms. Matsumoto-Grah looked at the available maps and estimated the size of the nearby
wetlands and the distC;l.llce from the wetlands to the Hughes' proposed house site. This evaluation
was necessary because under County regulations, every wetland within 300 feet of a
development is to be examined, even if it is located on a neighboring property. SJCC
18.30.l 50(D)(l).
A neighbor, Sheryl Albritton, inquired about the boundaries of the wetland and said they
were larger than shown on the maps, and if that is the case, then the buffers would need to be
·evaluated anew. Ms. Matsumoto-Grah visited the site and subsequently determined that a
formal wetland reconnaissance was necessary to determine whether this was a regulated wetland,
and if so, its boundaries. With that information, together with information regarding drainage
direction, the water quality buffer and proximity to the house site and other developments could
be determined.
On Wednesday August 27, 2014, a letter was sent to the owner's agent, Mr. Stanton,
requesting the wetland report and providing information on how to apply for a wetland
assessment at no cost through a County program which existed at the time.
4

See Email dated February 3 from Linda Kuller to Amy Vira, page I.

5

Id.

6

"Wetland reconnaissance" means an abbreviated wetland evaluation that confmns the presence or absence ofa
wetland, determines the wetland type, rating, and approximate size, and identifies the edge of the wetland in a
limited area.
7
SJCC l 8.30. l 50(E)(8). Where a reconnaissance report is made of an obvious dug pond or farm pond outside an
existing wetland, sufficient information may be available from the property owner or others with historical
knowledge. See l 8.30.l 50(E)(8).

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On Monday September 9, 2014, Ms. Mastsumoto-Grah received the following email
from Sam Gibboney, the Director of the Community Development and Planning Department:

Annie-there is a permit application in for a property in the Portland Fair
neighborhood. Supposedly one of the neighbors reported there might be a
wetland. Mike walked the site last night with local wetland expert (JT)
and there are no signs of one. So no need for recon. Let me know if you
know which application I'm talking about.
In this e-mail "Mike" refers to Mike Thomas, the County Manager, and "JT" refers to
Jennifer Thomas, his spouse, and "recon" refers to the reconnaissance-styled report referred to in
SJCC 18.30.150(E)(4) and described above.
After this directive from the Director of Community Development & Planning, the
building permit was issued without any wetland report. Ms. Matsumoto-Grab expected a written
confirmation of "no wetland" (i.e., a reconnaissance report) would be submitted after the permit
was issued so that the file would be complete.
In response to the ERTS, Mr. Doug Gresham, a wetland specialist for the Department of
Ecology visited the site and prepared a detailed wetland report. Mr. Gresham's literature review
concludes that the pond is a "farm pond" that was identified 43 years ago on a historic plat map
of the Portland Fair Estates subdivision. The on-site investigation showed that the farm pond is
filled by a "seasonal stream that flows southeast into a farm pond impounded by a manmade
berm that seeps frorn the pond and flows southeast onto the Hughes' property." Significantly,
the literature review did not identify any additional information regarding the construction of the
farm pond and whether the pond was built in an area that was previously a wetland or not. 8 In
and around the farm pond are wetlands. Mr. Gresham wrote that according to the Department of
Ecology Rating system, the Wetlands are rated at Category IV, which has the smallest buffers,
and the boundaries of the wetlands buffers were shown. The Hughes house site is located
outside the buffers.

IV.

DISCUSSION

Improper governmental action means any action by a San Juan County officer or
employee that is made within the scope of an employee's official duties that is "in violation of
any ... local law or written departmental policy." See, Resolution 113-1993.
While there are other grounds for more serious improper governmental action, none are
applicable in this incident. See, Resolution 113-1993.
Mr. Gresham's c~mment that the pond was created by the impoundment of a stream would suggest that the pond
was created from an existing wetland area. Another source of infonnation regarding conditions on the ground is the
T-Sheets prepared in the late 1800s. A cursory review of the T-Sheet for the region west ofMulno Cove and Jenson
Bay - the Portland Fair neighborhood - show what appears to be a wetland at the location of the pond on the
Homeowner's property, but a more thorough review should be done to confinn this . In any event a fonnal
detennination will need to be made as to whether the impoundment was made in an existing wetland or not.
8

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The question presented is whether the determination by Mr. Thomas that there was "no
wetlands" and directing issuance of the Hughes building permit without a wetland
reconnaissance report was contrary to SJCC 18.30. l 50(E) or the departmental policies for
implementation of SJCC 18.30. l 50(E).
Mr. Thomas has added verbally that based upon his training on the Department of
Ecology Wetland rating system, the pond on the Homeowners' Association property was a "farm
pond," and therefore not a regulated wetland. The report of Mr. Gresham confirms Mr. Thomas'
observation that construction of the pond as a man-made "farm pond." But that determination is
only half of the information needed. To meet the requirements of the County Code, it must also
be determined whether or not the farm pond was constructed in an existing wetland.

V.

FINDINGS

A. Good faith determination:

The IGA submitted by Mr. Laws was made in good faith. It was made in a timely
manner and does not have an alternative motive or purpose. This is demonstrated by the modest
request which is to have the wetlands "evaluated by a different qualified professional and the
[buffers] requirements of SJCC 18.30.150 verified .... " This remedy has now been
accomplished with the report of the DOE wetland specialist.

B. Informal Procedures for Reconnaissance:
The reconnaissance of the wetland was performed in an informal manner that was not
consistent with the County Code or the procedures set forth by the DCD. This occurred because
the County Manager personally performed the reconnaissance, 9 and then did not supply a written
report describing the basis for concluding the existing farm pond was not created out of a
wetland. Instead the planner was instructed (through the Director of the DCD) that no additional
reconnaissance was necessary and that the pond would not be treated as a wetland.
The instruction to issue the permit without a wetland reconnaissance report is
contrary to county ordinance and policy.
The wetland reconnaissance procedures were established by the County Council in the
CAO Ordinances and then implemented over the next year with written guidance to assure
uniformity and consistency in application throughout the County. If conflicting written reports
regarding existence of a wetlands is received, there would be discretion reserved for the director
of DCD. 10 But in this matter, there is nothing in the file to support the conclusion of the County
9

The email from Mike Thomas to Sam Gibboney mentions that a "local wetland expert (IT)" was present during the
site inspection. The I GA report contends that this is a "conflict of interest" if JT is the spouse of the County
Manager. Because no written report was submitted, it is not necessary to evaluate JT's qualification. Limitations on
hiring relatives of senior management are found in the ICMA Code of Ethics.
10
The instructions to issue the permit (whether made by the County Manager or at the direction of the County
Manager) without a wetland reconnaissance report is contrary to county ordinance and policies. The County

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Manager that "there are no signs" of a wetland. Further, there is nothing in the file to support a
waiver of a reconnaissance report, which would be required even when there is a man-made
pond.
The County Council has provided good guidance on the type of information it wants
County officials to use when making decisions on whether a regulated wetland exists. Some
type of written statement or report is necessary that is based upon the history of the construction
of the pond and whether it was built in an existing wetland. In this case, no such report was
obtained from the property owner or persons who saw the pond being constructed and had
knowledge of wetlands around it at that time.II The property owner has the duty to provide this
information for the consideration of the County planners. I2

VI.

CONCLUSION

No further action is needed to comply with the law. In the future, a written reconnaissance
report should be received before a building permit is issued, the discretion of the Director of DCD
should be reserved for those instances where there is a conflict among written reports.
It would appear that the building site for the Hughes property is located outside of the
applicable water quality buffers. A comprehensive wetland report for the area in question has been
received from the Department of Ecology Wetland Specialist and may be used to guide any desired
follow up.

Manager has the duty to "comply with all lawful governing body directives, state and federal law, Employer
policies, rules and ordinances .... " See County Manager Employment Agreement and San Juan County Charter
Section 4.40 and 4.41. The IGA Report mentions similar obligations of employees in the Personnel Rules Section
15, but the Personnel Rules (which have not been updated since the adoption of the Charter in 2005 or Charter
Amendments in 2012) were not written to apply to management level employees and do not apply to the County
Manager. See Section 1.010 and Chapter 4 of the 1992 Personnel Rules.
11
For example, a resident who has lived in the area for a long time, such as Council Member Jarman, or the
developer of the Portland Fair neighborhood could provide a written statement about their first-hand knowledge of
whether the pond was constructed in an existing wetland.
12
At the time a report was requested by the planner, the County Council was offering all permit applicants a wetland
assessment though a program at no charge.

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