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Kearns and Sons

Star Editorial

Some county commissioners are saying that they “saved” the county millions of dollars with their zero based budgeting and their tough fiscal policies over the past few years. The claim is primarily based on figures reflecting the amount of salaries, wages and benefits that are no longer being paid out. This is called a “savings to the county.” We believe this is misleading. Who is the “county” in this case? If they mean the county taxpayers, then it’s just not true. The huge and unprecedented Reduction In Force (RIF) in which 22 county employees lost their livelihoods did not save the taxpayer a single penny. There was no associated reduction in taxes, just a huge reduction in services.

So, what happened to the money that was “saved”? It was, for the most part, simply shifted to the county’s reserve funds or some other budget line.

Basically, they were sacrificing 22 employees – and the extra business in the community when those paychecks were spent – to build up a fund to help coast through lean times, especially the transitional time between fiscal years, and as a rainy day fund for unexpected things, like litigation.

Reductions like those in the Road Department have led to authorizing the use of reserve funds recently for up to five “temporary” driver/operators (about the number that was RIFed) just to get the work done that actually needs to be done every season, like mowing and road grading and dust abatement. The Sheriff has spoken loudly lately about how his office has suffered from understaffing for over a decade, a situation that has now reached an unacceptable level, threatening public safety and the safety of his officers.

Having healthy reserves is unquestionably sound fiscal policy. But it’s beginning to look more and more like the cost to the taxpayer in terms of loss of services is too great and litigation settlement costs threaten to eat up all the reserves. This is a lose/lose situation for the taxpayer.

The current Board of Commissioners is already busy telling us that the latest $675,000 settlement agreement, the one that may push them over the brink and require a “special tax levy” to address, was not their fault. They point a finger at the past board of commissioners that got the county into the litigation and blame them for everything. They are right, of course. That past board did get the county into this lawsuit. But another undeniable fact is that those former commissioners aren’t the ones settling it. This settlement agreement is a decision by the current board and they are the ones that need to answer to the public about it. The problem is, according to the record, there was no discussion by the commission when they made this settlement decision, leaving the public totally in the dark.

The judge in the case found the reasons given by the initial board for denying the developer’s variance request were valid and could legally justify a denial. The problem was in how the commissioners conducted the process. It was not legal and violated due process laws. The judge remedied that violation by remanding it back to the Board of Commissioners for reconsideration.

Then the makeup of the Board of Commissioners changed and, when they took up the issue again in 2011, they decided to approve both the variance and the associated subdivision application, despite the fact that the judge had already found that the reasons to deny it were valid.

After that, in a few separate rulings, the judge dismissed all the claims against the county except the original two: making an arbitrary and capricious decision in the first place and violating due process laws. He notes that those valid claims were remedied by remanding the decision for reconsideration. With respect to any potential claims for damages due to the delay between the time of the illegal denial and the approval, the judge notes that, given the economic situation of the time and the collapse in the real estate and housing markets, the delay may even have benefited the developer.

Nonetheless, the current Commissioners decided the other day to settle the case, for $675,000.

That leaves us wondering why.

Based on the court record it looks like we could make a case for the county owing $0 in damages for a bad goof that was remedied. Of course, we don’t know what the developer really argued in the long process of negotiation. And we don’t know what the Commissioners really feared or what their arguments were. The County Commissioners did all their thinking behind closed doors with their attorney.

The record also reflects that there was no public comment. Nor was the press in attendance.

Something’s not right here.

Didn’t anybody consider that the amount of the settlement would be of particular public interest? We’ll bet the farm that the public attendance at a properly noticed meeting concerning a $675,000 deal would draw a whole lot more people than ZERO. In our view the agenda notice was insufficient and the lack of any public comment is testament to that.

But maybe the Board of Commissioners didn’t know that number going into the meeting and couldn’t put it on the agenda. After all, they immediately closed the meeting and went into private consultation with the developer’s attorney. Maybe they only arrived at a final number in that session. We don’t know and can’t know because it was closed to the public.

This definitely appears to be a violation of the law with respect to open meetings. Why did the developer’s attorney get to sit in on the closed meeting and no one else from the public?

And was there any discussion of how they would pay for such a settlement before they agreed to settle? It appears to have come as an afterthought. Once again we can’t know if they discussed it the day of the decision with the developer’s attorney or not because that conversation took place behind closed doors.

We have heard people saying that the Commissioners seem intent on giving money away to developers. And some say they must have a good reason for doing so.

But the fact is, at least one Board of Commissioners has given money away to developers just for the asking, and they did it illegally, without proper public notice and in violation of the open meeting laws. So we know they can do it, and for no good reason!

They did it when they agreed at an illegal meeting to fork up $50,000 in road improvements for another developer in the Eight Mile area just because the developer requested it. The improvements were the same as the improvements requested earlier as part of a lawsuit but dropped as part of the settlement agreement. The Board of Commissioners violated the public notice laws and the open meeting laws to make that deal happen with as little public exposure as possible.

We took the Board of Commissioners to District Court over those alleged violations, and they were found guilty.

So can the commissioners give money away to developers and even do it illegally? Yes. Are they doing it in this case? Who knows?

If they did in fact violate open meeting laws in this case, as we believe they did, the District Court could be asked to void their decision, and the issue could be remanded back for reconsideration. Maybe second time around the public would hear some discussion and even be able to decide for themselves if it’s truly a reasonable decision, especially given that the county can’t afford it.

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