Hawkins deal: Citizens sue to stop pact

A group of Whitman County citizens filed suit in Superior Court Monday to stop the county’s development agreement with Hawkins Companies of Boise.

Pullman Attorney Timothy Esser filed the suit on behalf of a group identified as the Organization to Void Illegal Conduct. Ten people Monday formed the corporation to file the suit.

“These are, without exception, men and women who have been successful in business in Whitman County for decades,” said Esser. “They are not the usual suspects that come out of the woodwork anytime growth is proposed.”

Richard Appel of Dusty is one of four directors named on the group’s articles of incorporation filed with the Secretary of State’s office. The other officers named for the non-profit corporation are Karen Johnson, Joe Henderson and Donald Deen, all of Colfax.

Appel said their goal was to have the court nullify the deal before construction begins this spring.

“It’s a short timeline,” he said. “If the court is going to stop it, it had better do it before they start moving dirt and it’s too late.”

Their suit accuses commissioners of violating Washington’s Open Public Meetings Act; using public funds to build private property, and contracting with a corporation not licensed to do business in Washington.

“I’m very disappointed it’s come to this,” said Commissioner Greg Partch Tuesday. “But I feel, and we feel, that we’ve done everything legal and feel it’s critical that the Hawkins proposal go forward.”

The group is asking the court to decide if those actions were indeed illegal. If so, the suit asks the court to enjoin the county from continuing.

“We’re not out to get them. We’re not asking for any money,” said Appel. “This just gives them a legal way to get out of their problem.”

The suit does ask the court for reimbursement of legal fees and costs. Members of the organization are soliciting donations to pay the legal bills.

The suit also named Hawkins as a defendant. Jeff DeVoe, Hawkins project manager, declined to comment on the suit, saying his firm does not speak on pending litigation.

Commissioners Jan. 3 agreed on a 2-to-1 vote to commit $15 million to build infrastructure on Hawkins’ 714,000-square-foot shopping center on this side of the Idaho state line. The vote added $5.9 million to a $9.1 million commitment made in 2008.

The group’s suit alleges commissioners Partch and Pat O’Neill approved the amendment Jan. 3 after deciding on it in sessions that violated the open public meetings act. Commissioner Michael Largent voted against the deal.

O’Neill and Partch read prepared statements Jan. 3 while announcing their votes, and Esser contends that indicates they had made their decisions before the formal vote. Esser also contended the vote date was advanced a week, also an indication that decisions were made in violation of the open meeting act.

The organization’s complaint cites precedent established in a 1996 Adams County suit. Commissioners’ refusal to take public comment from a group of residents before the Jan. 3 vote runs contrary to a state supreme court “sunshine” decision which otherwise would have absolved their alleged open meetings violations.

The state’s high court in that case ruled a decision made by commissioners in an unannounced session could be considered valid if it was subsequently discussed in an open session where an “independent final action” was made “in the sunshine.”

That was not done when commissioners declined to take comment before voting, the suit contends.

“When they walked into that room, they already knew what they’re decision was,” Esser said Tuesday.

The suit alleges Hawkins approached the county Dec. 19 and asked for the increase to $15 million.

Commissioners received a memorandum in executive session from Prosecutor Denis Tracy Dec. 27, where Tracy expressed concern about state law that prohibits gifting public money to private projects being violated.

Esser contends Partch and O’Neill then reached an agreement with Hawkins to amend the proposal. Language in the amendment, he said, was approved outside of a public meeting.

Partch Tuesday said the language written for the amendment was agreed to in the Dec. 27 executive session.

“We included language the prosecutor felt was needed,” said Partch. “But the important decision was ‘are we willing to go from $9.1 million to $15 million?’ That was the decision. Not minor changes in the language.”

“No they didn’t,” Tracy said Tuesday of the executive session. “There was no discussion at the executive session of any changes to the agreement or changes to the amendment that Hawkins proposed Dec. 19.”

Tracy asked to review and comment upon the amendment Jan. 3, but was denied by Commissioner Greg Partch, who was named chairman of the board for a third straight year earlier that morning.

Largent, too, said he could not recall discussion of the amendment language at the Dec. 27 executive session. He said he first saw the proposed changes to the amendment in an e-mail he received from Administrative Director Gary Petrovich Dec. 30.

O’Neill was out ill Tuesday and did not return phone call requests for comment.

The suit said Tracy’s concerns about the legality of the contract was the gifting of public funds for private infrastructure. The county prosecutor questioned how $5,330,608 listed in the budget plan as earthwork to subgrade could mean county funds might be used for Hawkins property. The suit alleges Hawkins replies to questions on that item were “not responsive.”

The suit alleges the revision to the contract was made by Hawkins and the two commissioners after Tracy questioned the budget item.

Third point in the suit contends Hawkins is not a licensed contractor in the state of Washington and therefore not qualified to execute an agreement with the county.

“That one just fell out of the sky,” said Esser. He said he discovered the firm was not licensed in the state when he went to find a local contact to serve the suit upon.

Commissioners plan to meet with Tracy in an executive session next Monday to decide if he will represent them in the suit.

“Obviously, he’s had some strong differences with us on this,” said Partch. “But we’ll discuss that with him.”

Tracy before the Jan. 3 vote sent a memo to county officials, equating the Hawkins deal to gambling a child’s college fund in Vegas.

“I have a great deal of confidence in Denis’ professionalism,” said Largent.

Commissioners have 20 days to respond to the summons.