[Vision2020] Group Files Lawsuit Against Whitman County and Hawkins Companies

[Tom Hansen]

Courtesy of today's (January 25, 2012) Moscow-Pullman Daily News.

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Group files lawsuit against county, Hawkins
By Kelli Hadley, Daily News staff writer
A group calling itself the Organization to Void Illegal Conduct has filed a complaint through Superior Court against Whitman County and the Hawkins Companies, claiming that among other issues, Whitman County commissioners did not comply with the Open Public Meetings Act in their decisions leading up to the agreement with Hawkins.
The organization, described as a Washington nonprofit corporation, is represented by Timothy Esser of Esser & Sandberg, PLLC in Pullman. In the complaint, members are described as "Whitman County residents, taxpayers and property owners."
Esser said the organization formed Jan. 3, the same day the commissioners passed the amended agreement in a 2-1 vote, and is largely composed of constituents who attended the meeting and hoped to provide input.
"Not one of them is opposed to growth, and they are all very experienced, successful, longtime Whitman County businessmen and women," Esser said.
In the agreement amended from the original 2008 contract with the Boise-based firm, Hawkins asks the county for $15 million to reimburse for public infrastructure in the Moscow-Pullman corridor just west of the Idaho state line. In exchange, Hawkins agreed to supply two big-box stores in a 700,000 square foot shopping center at the site.
The first issue in the complaint alleges Commissioners Greg Partch and Patrick O'Neill, who voted in favor of the agreement, communicated with each other outside of public meetings and approached the Jan. 3 meeting having already agreed to the outcome, as both came with prepared written statements. Esser said doing so is a violation of the Open Public Meetings Act. Even so, if the commissioners had adopted the action at the public meeting and allowed public input, that would have "cleansed" the violation, Esser said.
"In this case, they didn't allow that public input, so that still makes it a violation," Esser said.
Esser said the county has 20 days to respond to the complaint and Hawkins has 60, as they are being served outside the state of Washington. An additional problem outlined in the lawsuit claims Hawkins is not yet a registered agent within the state, which is required if they want to execute a contract with the county.
"For some reason Hawkins has not complied with that law and does not have a registered agent," Esser said. "Here you're contemplating a $15 million public fund project, and you haven't bothered to do business in the state."
Hawkins Representative Jeffrey DeVoe said the company could not comment on the complaint as of Tuesday afternoon.
Prosecuting Attorney Denis Tracy has expressed his concern over legal and economic "flaws" in the agreement, stating that the contract has the county paying for infrastructure it would not own, particularly $5.3 million planned to be spent on grading of the development site. The lawsuit filed by OVIC brings up the same concern, stating that "in reality the contract between Whitman County and Hawkins calls for taxpayer funds to be utilized for private improvements in violation of the Washington State constitutional ban on gifts of public property."
Tracy is and will remain the commissioners' legal counsel in the matter.
"I have read it, and the plaintiffs have some interesting legal theories," Tracy said. "We've scheduled a meeting with the commissioners Monday afternoon to discuss how they'd like to proceed."
Partch declined to comment on the lawsuit until the commissioners' discussion with Tracy next Monday. Commissioner Patrick O'Neill could not be reached for comment.
Commissioner Michael Largent, who opposed the agreement, said the issue is now in the hands of the attorneys.
"Constitutionally the prosecuting attorney is our attorney unless the Superior Court judge determines differently on appeal by the commission," Largent said. "I don't plan to appeal, and I have no reason to believe he wouldn't do a fine job."
Esser said nobody in the organization accuses the commissioners of "bad faith," but they disagree that the decision was made in the best economic interest of the county.
"Nobody is questioning their integrity, but how it's been carried out calls into question the enforceability of the contract," Esser said.
The ultimate goal of filing the lawsuit, Esser said, is to void the amended agreement and find clarification as to exactly how money will be spent.
"If it would be for anything other than public improvements, we ask for a permanent injunction prohibiting that," Esser said. "They could schedule a new public meeting and theoretically re-enact the contract."
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As Charlie Rich so aptly stated . . .
"Oh, no-one knows what goes on behind closed doors . . . "

Seeya later, Moscow.

Tom Hansen
Post Falls, Idaho

"If not us, who?
If not now, when?"

- Unknown


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