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Request for Recusal and Continuation

February 3, 2015

Driggs City Council

Mayor Hyrum Johnson

60 North Main Street

Driggs, ID 83422

RE: Request for Continuation of Feb 3, 2015 Huntsman Hearing and Recusal of Mayor Johnson from Processing, Deliberating, and Voting on the Huntsman Re-zone and Resort Proposal

Dear Council Members and Mayor Johnson:

This letter addresses several procedural and ethical issues that have tainted the quasi judicial process of the Huntsman rezoning application and resort proposal, (hereafter “Huntsman Application”) which we request the City Council address for tonight’s February 3, 2015 public hearing.

1. Request for Mayor Johnson’s Recusal from Processing, Deliberating and Voting on the Huntsman Application.

By statute, Mayors are entitled to a vote on all matters before the City Council, and their vote serves as the tie-breaker in the event of a draw. (I.C. §§ 50-602 and 50-810)  However, Idaho statutes and case law identify times when public officials, including Mayors, need to recuse themselves from processing, deliberating, and voting on city matters.

There is ample evidence that Driggs Mayor Johnson has reached that statutory threshold where he must recuse himself from processing, deliberating,  and voting on all matters pertaining to the Huntsman Application due to the combination of his repeated ex parte communications and demonstration of actual bias regarding this resort proposal. To recuse himself from only casting a vote would clearly be an insufficient remedy per Idaho caselaw.  Manookian v. Blaine County, 112 Idaho 697, 735 P.2d 1008 (1987) (Commissioners participated in the zoning proceedings right up until the last minute before disqualifying themselves still violated due process); Huber v Fremont County, CV-2011-215,  April 30, 2012. (Planning Administrator and County Commissioners were disqualified from having any involvement, direct or otherwise from any proceeding related to a pending land use application).[1]

As Mayor, Johnson is in a powerful position to influence this application process not only by casting the tie breaking vote, but also by guiding staff directives as chief administrator of the City with superintending control over all officers and affairs who also runs the meetings and participates in deliberations. I.C. § 50-602 and Driggs Code § 1-6-3.

A. The Mayor has Repeatedly Initiated Ex parte Communications Regarding the Huntsman Application.

Idaho Code § 67-5253 clearly forbids public officials from engaging in ex parte communications in contested cases.

“Unless required for the disposition of ex parte matters specifically authorized by statute, a presiding officer serving in a contested caste shall not communicate, directly or indirectly, regarding any substantive issue in the proceeding, with any party, except upon notice and opportunity for all parties to participate in the communication. “ I.C. § 67-5253

Certainly, public officers are occasionally approached by members of the public regarding a contested case, and when this happens, the expectation is that the officer will simply disclose the matter at the hearing.[2]  By contrast, Idaho Courts have been particularly troubled when officers in contested cases repeatedly initiate ex parte communications.

“I.C.  § 67-6523 still affirmatively places the burden on a presiding officer in a contested case to avoid ex parte communications, not on the third party with whom communication occurs. The use of the language ‘shall not communicate, directly or indirectly, regarding any substantive issue in the proceeding, with any party,’ could not be any clearer.” Huber at page 15.

Idaho courts have recognized that these ex parte communications can “reveal a lack of impartiality” on the part of a decision maker and “underscored the likelihood that he could not fairly decide the issue in the case.”  Eacret v Bonner County, 139 Idaho 780, 787, 86 P.3d 494, 501 (2004). It does not matter if the public official considers the conversation to be a casual chat which does not dive into specific details about the application.

“Even if the conversations were not substantive, an ex parte conversation by its very nature can show actual bias . . . . . . One can scarcely imagine a scenario where a presiding authority would ever be justified in initiating a private conversation with a party in which he expresses dissatisfaction, anger, or even justifiable frustration about public comments made by that party.” Huber at 19. [Emphasis added.]

For a decision maker to make such personal contacts in violation of state law “is indicative of either poor judgment or great hubris.”  Huber at 20.

On multiple occasions throughout processing of the Huntsman Application, Mayor Johnson has initiated vast and diverse ex parte communications regarding this quasi judicial application. He has personally contacted me, my Executive Director, individual members of our Board, members of the Planning & Zoning Commission,[3] and members of the public to not only criticize the public opinions of these persons regarding the Huntsman Application, but to discuss this quasi judicial application in detail. He has also personally communicated to many of these people his extensive history of ex parte communications with the Applicant, which he ironically uses as a basis for his dissatisfaction with the opinions of these persons and other decision makers.  The Mayor has expressly urged the public and decision makers to quell their criticism and concern regarding the Huntsman Application, and has specified details of the Application on which they should comment no further.  All of these conversations can be substantiated by sworn affidavit if needed.

B. The Mayor Has Demonstrated Unfairness and Bias in the Public Process.

The Idaho Supreme Court has been clear that “actual bias of a decisionmaker is constitutionally unacceptable.” Ferguson v. Board of Trustees of Bonner County School Dist. No. 82, 98 Idaho 359, 365, 564 P.25 971, 977 (1977).  That said, the mere appearance of bias or impropriety is not enough to meet this standard; actual bias requires a showing that a decision maker “definitely indicated his predetermination on the question” presently before them. Floyd v Board of Commissions of Bonneville County, 137 Idaho 718, 52 P.3d 863, 870 (2002).  Actual bias can also be demonstrated by repeatedly initiating ex parte communications. (See Section (a) above.)

The Mayor has also initiated numerous and diverse ex parte communications where he has demonstrated a clear bias and a predetermined intention secure the Huntsman resort entitlements as quickly as possible.  More specifically:

  • The Mayor has expressly discouraged public comment on the height of the resort hotel because he deemed the height to be acceptable and a settled matter.
  • The Mayor has repeatedly disparaged the value and utility of the public comment received on the matter.
  • The Mayor personally directed staff to invest no further energy into communicating with the public and answering questions on this application.
  • The Mayor has disclosed that city staff (Economic Development Director Doug Self) was directed by him to act as the applicant and advocate for the Huntsman Application.
  • The Mayor has repeatedly granted unlimited time and opportunity for the Huntsman team to offer testimony at public hearings while limiting the public to 3-4 minutes per person.

In addition, the Mayor’s personal handling of our January 16, 2015 public records request is a further demonstration of bias. (See Section (2) below.)

2. Request for Continuation of the February 3, 2015 Hearing.

We submitted two record’s requests on January 16, 2014 related to this hearing, one of which remains entirely unfilled.[4]  As such, we hereby request a continuance for tonight’s hearing because the requested documents, which directly relate to the hearing have not been provided in a timely manner where we would be able to adequately review them prior to the hearing.  In addition, there is no time for us to appeal and receive the documents that have been pre-emptively denied by the Mayor prior to tonight’s hearing.

 A. The Jan 16, 2015 Records Requests Directly Relate to Tonight’s Hearing

The purpose of our Jan 16th records request clearly and directly relates to tonight’s hearing.  Over the past few months, the staff at Valley Advocates for Responsible Development have received numerous questions and concerns from members of the public as well as Driggs own city officials involving the Mayor’s bias and ex parte communications regarding the Huntsman Application. In addition, the Mayor has made several public representations about legal directives on the Huntsman Application which allegedly stem from the City Attorney, such as the following:

  • The Huntsman Application must be approved, and it must be done as quickly as possible to avoid a lawsuit from the Huntsman team.
  • Likewise, 10,000SF of retail must be approved to avoid a lawsuit.
  • MD Nursery and Mike Stears (a partner on the Huntsman Development team) recently filed a Notice of Tort Claim[5] against Planning & Zoning Commissioner Larry Young  which is “actionable.” As such Mr. Young must retract his statements made at the November 20, 2015 or face removal from the Planning & Zoning Commission.[6]

Again, all of this can be substantiated by sworn affidavit if needed. All of these alleged legal directives that the Mayor has publicly stated have the ability to significantly impact the outcome of this contested case.

The truth and origin of these directives is matter of public concern and may demonstrate further bias on the part of the Mayor.  We submitted a records request to the City on January 16, 2014 to help ascertain the truth of the matter behind these statements.  At present, our records request appears to be personally handled by the Mayor as all of our correspondence regarding this request has come from him.  Originally, the Mayor proposed a deadline of Feb 6th  (21 days) to fill our request and also issued a blanket written denial of our request for communications between himself and the City Attorney. We responded that three weeks was unreasonable and violated the Idaho Public Records Act.[7] Moreover, the Act requires that all documents that are readily available must be provided at once. We also expressed our concern that the Mayor’s curious responses to our records request gave an appearance of impropriety that documents were being withheld in bad faith until after tonight’s public hearing on Huntsman Springs.

The Mayor has since provided the December 30, 2014 Notice of Claim filed by MD Nursery and Mike Stears, and has written that all records will be provided as soon as they are available, except for the ones that are denied. He furthered that they would be provided by the day of the hearing if possible.  However, as of the date of this letter (2:00pm on Feb 3, 2015) nothing has been provided.

3. Conclusion

We ask that the February 3, 2015 public hearing be continued to such time when we have received all public records included in our January 16, 2015 requests, including time to appeal the Mayor’s pre-emptive written denial of certain public records. In addition, we request that our records requests be processed independently from the Mayor by another city official, and that Mayor Johnson recuse himself from processing, deliberating, or voting on any proceeding related to the Huntsman Application.

            Sincerely,

 

___________________________________

Anna Trentadue

VARD Program Directors & Staff Attorney

 

CC:      Driggs City Attorney Stephen Zollinger

      Driggs City Council

      Driggs Planning Administrator Ashley Koehler

 

[1] Attachment A: Huber v Fremont County, CV-2011-215, April 30, 2012.

[2] As aptly summarized by the Idaho Supreme Court, “members of the City Council are free to take phone calls from concerned citizens and listen to their opinions and arguments prior to a quasi-judicial proceedings. In order to satisfy due process, however, the identity of the callers must be disclosed as well as the general description of what each caller said.” Idaho Historic Preservation Council v. City Council of Boise, 134 Idaho 651, 656, 8 P.3d 646, 651 (2000).

[3] Attachment B: February 2, 2015 Letter from Planning & Zoning Commissioner Larry Young to Mayor Johnson.

[4] Attachment C: January 16, 2015 Public Records Request.

[5] Attachment D: Dec 30, 2014 Notice of Tort Claim.

[6] Attachment B: February 2, 2015 Letter from Planning & Zoning Commissioner Larry Young to Mayor Johnson.

[7] Section 9-339 of the Idaho Public Records Act states: “A public agency or independent public body corporate and politic shall either grant or deny a person’s request to examine or copy public records within three (3) working days of the date of the receipt of the request for examination or copying. If it is determined by employees of the public agency or independent public body corporate and politic that a longer period of time is needed to locate or retrieve the public records, the public agency or independent public body corporate and politic shall so notify in writing the person requesting to examine or copy the records and shall provide the public records to the person no later than ten (10) working days following the person’s request.”

 

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