EDITOR’S NOTE — Read the five-page Aug. 13 letter from Clallam County Prosecuting Attorney Mark Nichols to county Treasurer Selinda Barkhuis at http://issuu.com/peninsuladailynews/docs/opfletter-er408?e=1313114/14814397
PORT ANGELES — Clallam County Treasurer Selinda Barkhuis has requested 22 sets of county public records in preparation for a possible court battle with the county commissioners.
It’s a fight she said Friday she will not start.
Barkhuis, through her county-appointed attorney David Alvarez, made the records request Friday in an email obtained by the Peninsula Daily News after the commissioners, through Prosecuting Attorney Mark Nichols, had asked her to honor $1.3 million in warrants for two disputed Opportunity Fund grants — one to the Port of Port Angeles and one to the city of Port Angeles — which consist of sales tax proceeds.
Two of three commissioners have said they intend to approve the grants for a second time — grants Barkhuis has, since May, refused to process.
“I have no intention to file anything” in court, she said Friday.
“In the event [the commissioners] do, my lawyer wants to be prepared, and he is asking for these documents because they are the official versions because we would have to present them in court if we do go to court.”
Alvarez, a Jefferson County deputy prosecuting attorney, did not return a text message requesting comment late Friday afternoon.
Commissioner Jim McEntire, the board chair, said Friday he would not give a definitive answer to the going-to-court question until he discussed the matter with fellow Commissioners Mike Chapman and Bill Peach, and with Nichols, who along with the state Auditor’s Office has said the board’s actions are legal.
But McEntire left open the possibility of the elected commissioners taking the elected treasurer to court.
“We certainly haven’t ruled it out, nor have we ruled it in,” he said Friday, adding that the topic may come up at the board’s regular Monday work session at 9 a.m. at the county courthouse.
In fact, the possibility “has always been there,” McEntire added.
Chapman has repeatedly said he does not favor court action.
“We need to go through the budget process,” he said Saturday.
“It needs to be clean.”
Peach said Saturday he hasn’t made up his mind.
“It’s just too bad,” he said.
“If she does not want to take advice from the prosecuting attorney, she needs to live with the consequences.”
Barkhuis has insisted the $1 million grant to the Port of Port Angeles and the $285,952 grant to the city must go through debatable-budget-emergency hearings and be accompanied by contracts, or she could be held personally liable as treasurer.
Commissioners for a second time approved the funds Tuesday on a 2-1 vote with Chapman voting no but in the second go-round held hearings and subjected the grants to memos of understanding, which Barkhuis told the PDN later Tuesday was not good enough.
To bring the matter to a head, commissioners must still authorize the warrants, which they have not scheduled a meeting to do.
Auditor Shoona Riggs would process the warrants, the board would issue them — and then Barkhuis would be asked to release the funds, which she reiterated again last week she will not do under those circumstances.
The $1.3 million originally was intended to fund the Carlsborg sewer project, which has been delayed.
County Administrator Jim Jones earlier this year recommended the funds for the port and city grants be placed in the 2016 budget, but commissioners wanted to expedite the process to spur economic development, Jones said Friday.
Barkhuis has insisted that either commissioners hold the hearings she says are necessary or, as part of a recent settlement offer, include the funds in the 2016 budget, which port and city officials have said would subject the infrastructure projects the money is intended for to undue hardship.
Nichols’ five-page letter to Alvarez, which was obtained by the PDN, was intended as a response to her offer, McEntire said Saturday.
In the correspondence, Nichols admits the commissioners are acting in a gray area of state law but that they have every right to do what they did.
“The BOCC [Board of County Commissioners] concedes there is no case law that answers the question whether a [budget] modification, as performed by the county and its sister jurisdictions, is allowed under Chapter 36.40 [Revised Code of Washington],” Nichols wrote.
“The BOCC believes state law is silent on this point, which thereby allows it to adopt regulations that do not conflict with state law pursuant to their Article XI, Sections 4 and 11 powers under the state constitution.”
Nichols said no “legal infirmity” has been found in the process employed by the board, and other counties have used a similar process to amend their budget “in order to respond to changing situations.”
Nichols concludes: “While there are things both branches of government probably wish they would have done differently with the benefit of hindsight, the BOCC asks that you recognize the significant ‘wins’ that you have accomplished to date (e.g. elevating the public debate in our community, requiring additional public hearings, obtaining written contracts and receiving a commitment to explore amendments to code and administrative policies), and honor any warrants issued in connection with this matter.”
After reading Nichols’ letter, Barkhuis referred to McEntire’s comment at Tuesday board meeting, when McEntire said the board had struck a “very conciliatory stance” toward her, followed by his statement, “Conciliation does not necessarily involve capitulation.”
“McEntire’s statement was that he’s not going to capitulate,” Barkhuis said.
“Well, I’m not going to capitulate either.”
The board approval of the grants Tuesday “puts us right where we started,” she added.
Chapman had approved the grants earlier this year when they first came to the board and has repeatedly said they are good projects that were approved in a flawed manner.
He recalled Saturday that Barkhuis had warned before that first approval that the commissioners should do as she suggested.
“I was in error in not doing enough homework in knowing what the treasurer’s concerns were,” Chapman said.
“Just because something is legal does not make it good government.”
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Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at pgottlieb@peninsuladailynews.com.
