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Ellensburg Daily Record: "Documents case given to prosecutor"

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November 14, 2009 -- A former Kittitas County employee who returned public documents to a company planning development in the Teanaway should have known he wasn't allowed to release them, according to an Ellensburg Police Department investigation. 

By Mary Swift, staff writer  

KITTITAS COUNTY- A former Kittitas County employee who returned public documents to a company planning development in the Teanaway should have known he wasn't allowed to release them, according to an Ellensburg Police Department investigation.

The police department report says Scott Turnbull, an employee in the county's planning department, shouldn't have given the documents to Jeff Jones, a representative of the American Forest Land Co., because the records were public property, and a rule in the county's Personnel Policy Manual specifies that "county property, records or other materials" are not to be removed from the premises without permission of the department head.

Both Kirk Holmes, current interim director of the county's Community Development Services office, and Holmes' predecessor Darryl Piercy told police that the materials were public documents that should not have left the office.  

In addition, police say that at the time, both Jones and Turnbull should have been aware of a publicly posted note in the office about public records and the disclosure process. The correct procedure for obtaining copies of public records is to fill out a Kittitas County request form or send a written request to the CDS office address. All requests were to be directed to Mandy Weed, CDS' public records disclosure person.

This past Tuesday, the police department forwarded the case to the Kittitas County Prosecutor's Office with a recommended charge of second-degree theft on Turnbull.

The prosecutor's office has discretion to decide, what if any, charges will be brought in the case.

Turnbull, a former planner with CDS, was among a dozen department employees laid off on March 31 of this year. He told authorities he gave two of three, three-ring binders the company previously had submitted to CDS to Jones on March 20, the same day Jones walked into the office with a brief, handwritten note requesting them. Turnbull retained a third three-ring binder.

Turnbull told police he did not know it was wrong to return the materials related to efforts by AFLC to change the designation of commercial forest land it owns. In 2004, the company filed paperwork to perform several "administrative segregations" through CDS.

An administrative segregation means there is no public review of the creation of many parcels, and the plan could be approved without public notice or input.

According to Jones, those requests basically sat in the CDS office until 2007 when the company filed additional paperwork.
The documents pertained to a plan for massive development on the company's land. The planner working with the request, Joanna Valencia, recognized that the plans were of such magnitude they would require the department to issue a "determination of significance," a move that would lead to an environmental impact study and other public processes. Learning that, AFLC withdrew its application.

 But the paperwork related to it remained at CDS -- and that fact apparently made the company nervous when it decided to launch a new development effort in the Teanaway.

AFLC now says it hopes to develop a "self-contained community" on part of its land in the Teanaway, leaving at least half -- and probably more -- of the land currently designated "commercial forest" in some kind of conservation status.

Jones told police he did not know it was illegal for him to ask to get the binders the company had submitted on the previous plan back from the county.

According to a report by EPD Det. Drew Houck, Jones said during a meeting with company officials it was decided that the public did not need to know about what was in the documents. He was sent to retrieve them.

"Jones repeatedly indicated that the reason the company wanted the documents back was because the information in them was going to be controversial," Houck wrote.

In fact, the company was right.

The magnitude of its earlier plan was so enormous that it might well have damaged the company's efforts to win support for its new development proposal.

As it happens, Ellensburg's Catherine Clerf had been serving as an appointed member of the county's Land Use Advisory Committee (LUAC) when former CDS Director Piercy shared some of the documents related to AFLC's plan with committee members. Clerf told police the land plan called for a "master plan community" with as many as 34,000 homes.

This past summer, as AFLC began the new effort it hoped would lead to changes in the way it can use its land, and the county, at AFLC's request and expense, embarked on a sub-area planning process for the Teanaway, Clerf learned documents related to the company's earlier application for administrative segregations were missing.

Clerf says that on Saturday, July 11, she learned that two of the three binders that had been submitted were gone. She says she notified County Prosecutor Greg Zempel the next day. On Monday, July 13, she says she called Holmes' office twice to ask about the files. On Tuesday, July 14, she says Holmes confirmed that they couldn't be found. She says that when she asked him what he planned to do, he responded: "Nothing."

Holmes, who assumed his role with CDS in January of this year, has said previously that he does not recall that conversation.

In fairness, Holmes may have had reason to consider the binders lost rather than stolen. The department has gone through major layoffs. The police department's report notes that "the county filing system for keeping track of completed and pending projects appeared to be in shambles and no one at CDS knew if the missing books were gone from the facility or if they had been lost internally. The office at one time employed 22 employees but now only seven work there," the report notes.

Zempel, the prosecutor, told police that he learned the files were missing four months ago and "advised CDS to find the books or to report the theft to law enforcement," the police report says.

That advice apparently went unheeded.

On Oct. 28, Clerf was among more than 100 people who showed up at the Swauk-Teanaway Grange to hear details of AFLC's new plan for the Teanaway.

Clearly angry when she rose to speak, Clerf mentioned the missing files and threatened to report their disappearance.

Both Holmes and County Commissioner Paul Jewell were in attendance at the meeting. So was Turnbull, who had taken a job with AFLC after being laid off at CDS. (AFLC's Jones and Turnbull have both denied there was any agreement that Turnbull would be hired by the company in exchange for turning over the binders.)

Shortly after noon the next day, Clerf went to the EPD and filed a theft report on the missing public records.

At the police department's request, an attorney for the company returned three binders to the police. But they were black binders rather than the white ones originally submitted to CDS and their contents appeared to be copies of documents rather than the originals. At the police department's request, Jones searched his own office again, found the two original binders, and turned them over to police.

As it turns out, it wasn't only the binders that had gone missing -- only in this case, what had also gone missing would apparently stay missing.

On Nov. 4, the prosecutor notified police that the electronic folder which contained copies of correspondence, case notes and e-mails on the AFLC project had been deleted from the county's data system. Police called the county's information services department and was told that CDS used a shared drive to store project correspondence folders and that the drive could be accessed by any CDS employee. Although the drive was regularly backed up, a search produced no record of the electronic file, originally started by Valencia who had left the department for another job in 2008.

(As a side note, in the course of their investigation, police learned that it was "widely known" that the north door entry to CDS' office could be accessed by anyone sliding a credit card in front of the lock throw mechanism. Holmes told police that he had not known that prior to the investigation and he called facility services to have the problem rectified.)

Valencia told police that in reviewing the request it was apparent to her that the project AFLC proposed was extremely large and she did not believe that administrative segregation was appropriate to the project. According to the police report, she told police that state law limits projects that can be evaluated via the administrative segregation process to 11 lots. Larger projects are required to go through the State Environmental Protection Act (SEPA) process and have environmental impact requirements. She told police that when she met with Jones about the issue, he initially asked her to reconsider.

According to what Valencia told police, AFLC was concerned that the project would face serious public challenge if it had to go through the public review and hearing process.

Police said when Valencia was asked if she would have returned the binders, she told them "no" saying "that once it crosses the front counter it becomes public record."

AFLC, she told police, could have requested copies of the documents just like any other member of the public.

Turnbull, in a recorded conversation with police, was asked, "I think you told us earlier when we were talking about the public records situations and you were unaware of the public records (inaudible)".

He responded, "Yeah, what I should have done is made a copy of 'em. Just gave him the copies instead of the originals."

That, of course, would not have kept them out of the public eye.