Ellensbury Daily Record: "Kittitas County prosecutor does not file charges in AFLC binders"
May 28, 2010
By Mary Swift, staff writer
UPPER COUNTY -- The Kittitas County Prosecuting Attorney's Office will not charge two men involved in removing public records from the county's Community Development Services (CDS) Department.
In a seven-page report released Thursday, the prosecutor's office says that while the documents were public records and removing them was illegal, neither man apparently knew that.
The report was signed by Prosecuting Attorney Greg Zempel and Deputy Prosecuting Attorney Paul Sander.
Zempel blamed an apparent breakdown in CDS procedures for the fact the incident occurred.
"It does not appear that CDS has done a good job of making sure that the expectation is there that these documents don't go out the door," Zempel said Thursday afternoon following release of the report. "I would say there were inconsistencies on behalf of the employees and apparently not a clear, definitive policy on how to handle and not handle these."
According to the report, on March 20, 2009, Scott Turnbull, then a land-use planner with CDS, returned documents filed by the American Forest Land Co. (AFLC) in 2007 to Jeff Jones, the company's general manager. AFLC manages land owned by the company known as American Forest Resources.
Those records included parcel segregation requests initially submitted to the county in 2004 and later amended and re-filed in 2007 along with two other sets of parcel segregation requests.
The requests were contained in three different white binders. Parcel segregation requests, which generally do not involve a public process, can be used to divide up larger tracts of land into smaller tax parcels or adjust parcel boundaries.
The report says Turnbull returned two of the binders to Jones after Jones submitted a letter informing CDS that AFLC "was withdrawing the amended and new tax segregation applications" previously submitted and asked that "all the applications (notebooks)" be returned.
The letter was not date-stamped as having been received by CDS. At the time, CDS was facing a major reduction in force. Turnbull was one of the employees who was laid off at the end of that month.
The two binders returned to Jones contained documents that gained public notice in late October of that year.
By then the county, at the request of AFLC, was in the midst of a sub area land-use planning process for an area of the Teanaway in which AFLC is the major property owner. A sub area planning process is a formal procedure for developing a long-term land use plan for a given area. During a series of public meetings, AFLC outlined a plan for developing a community on part of the land it owns in the area.
Charge at public meeting
It was during one of those meetings that Catherine Clerf, an opponent of the AFLC plan, announced that some AFLC-related documents were missing from CDS, documents related to AFLC's parcel segregation requests.
The following day, Clerf filed a theft of public records report with the Ellensburg Police Department. She believes AFLC wanted those old documents returned because of concerns they might have a negative impact on the land-use planning process if the public became aware of their contents.
On Nov. 11, the Ellensburg Police Department turned its investigation over to the prosecuting attorney's office for review of possible felony theft charges against Turnbull.
Sander then met with two lead detectives from the Ellensburg Police Department to develop a strategy for the case. Over the next five months, the report indicates, "more than 10 recorded interviews and innumerable non-recorded interviews were conducted with various individuals who had information regarding the circumstances surrounding the investigation." Investigators also contacted attorneys for both Jones and Turnbull. Both men declined to be interviewed again regarding the case, the report says.
No charges against company or individuals
On May 18, the prosecuting attorney's office announced it would not file charges against AFLC. The report issued Thursday said there is "an insufficient basis to assign corporate criminal liability" to the company.
At the time, the Ellensburg Police Department launched its investigation, both Jones and Turnbull insisted they did not know what they had done was a crime.
While the documents were public records and shouldn't have been removed from CDS, Zempel said that "we do not believe there was criminal intent to commit that crime" and that the practices of CDS itself had contributed to an expectation that such action was not illegal.
"In order to prove a theft we have to show that they (Turnbull and Jones) took them and intended to deprive the owner, that being the county, of them," Zempel said Thursday. "We don't have any clear connection to motive. We can speculate that it was to take them out of the public eye. But we don't have that evidence."
Lax records practices
In fact, it appears what Turnbull did was not necessarily unusual.
"Past CDS employees and persons who do similar business with CDS have pointed to historically poor records retention by CDS, which makes it impossible to categorically state that originals are never returned without copies being made," the prosecutor's report says. (The report notes that CDS has no records of the tax parcel segregation requests the company initially filed in 2004 which were later taken back and then re-filed in the 2007 requests.)
The report said that based on past experience with the county and the company's belief that the binders were AFLC, not county, property, it's unlikely Jones would have had any concern about whether Turnbull made copies before returning the binders to him.
For that reason, "it is concluded that there is currently an insufficient basis to assign personal criminal liability to Mr. Jones," the report reads.
The report also found that Turnbull did not know he had erred in returning the documents and told police investigators he had returned other documents in the past.
Training questions raised
"No current or past CDS employees are able to say that Mr. Turnbull was ever specifically informed or trained on the necessity to retain either originals or copies of all materials submitted to CDS," the report says.
"While Mr. Turnbull's assertion that he has returned original applications on numerous occasions cannot be confirmed, it is not inconsistent with the historical practices of CDS as related by a number of individuals who used to work for CDS and/or interact with CDS," the report continued.
According to the prosecutor's report, if Turnbull didn't know he was supposed to retain the records, he couldn't be considered criminally liable for giving the documents back.
The report also noted that while Turnbull took a job as a contract employee with AFLC shortly after he was laid off, there was no evidence his decision to return the AFLC documents was connected to getting that job. According to the report, "historically it is apparently not uncommon for former CDS employees to become employed in various private sector jobs with companies that they serviced while in their county jobs."
While criminal charges won't be filed in relation to the public records that were taken from CDS, the issue of maintaining public records is vital, the prosecutor's office says.
CDS needs to address issues, prosecutor says
"The actions of Mr. Turnbull and Mr. Jones, while not criminal, are troubling as they reflect upon the failure of CDS to maintain the trust that our citizens place on government to retain public records that very well may have relevant information in future governmental endeavors," the report says.
Zempel said he thinks "a number of issues coming together" including the sheer volume of workload and turnover in the department may have contributed to the problems at CDS.
It broke down along the line of some individuals who maybe did not have a clear understanding about the handling of public records, Zempel said.
"They (CDS) just need to get on track and make sure there is no misunderstanding that once a document comes across the counter to be processed by the government, that's a public document," he said. "It doesn't go back."
David Bowen, president of AFLC, could not be reached for comment Thursday.