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Date Posted: 12:56:38 05/01/09 Fri
Author: McGee (Clatsop County)
Author Host/IP: 70-57-119-146.ptld.qwest.net / 70.57.119.146
Subject: That Nasty Memorandum



Unredacted County Staff Report #2 to County Commissionþ
From: K C PATRICK MC GEE (kc2patrick@q.com)
Sent: Wed 2/13/08 5:04 PM
To: info@ccfog.org

Memorandum For Clatsop County Commissioners - Two On Richard Lee - February 8, 2008
From Submitted Public Information Request

800 Exchange St, Suite 410 . Astoria, Oregon 97103 . (503) 325-8449 . FAX (503) 338-2969
CLATSOP COUNTY
COUNTY COUNSEL
MEMORANDUM FOR THE CLATSOP COUNTY BOARD OF COMMISSIONERS
CONFIDENTIAL COMMUNICATION/ATTORNEY CLIENT PRIVILEGED
DATE: February 8, 2008
RE: Commissioner Lee / Human Resources, Planning & Potential Litigation/
Risk Management Issues


County Manager Scott Derickson has presented an evolving situation to the County’s lawyers and requested recommendations. He perceived potential legal liabilities and political issues, coupled with employee rights, and County responsibilities. These issues are compounded by an appearance of impropriety and the risk of compounding County liability in the event incorrect choices are made.


Periodically in conjunction with Clatsop County’s annual audit, the County’s attorneys provide written assurance that whenever issues of potential county liability come to our attention, we will so advise our client.



This memorandum is submitted in accordance with that commitment.


The undersigned, Heather Reynolds, Blair Henningsgaard, Andy Jordan and Akin Blitz have
conferred, retained Jill Goldsmith, Attorney at Law PC, as a fact finder, and based on our respective roles and areas of expertise, have determined that the Board of Commissioners should be briefed and their support for a recommended course of action should be obtained due to the special circumstances of
the situation.


The undersigned counsel are aware that a recall petition against Commissioner Lee has been
submitted to the Clatsop County Clerk for signature verification. This memorandum is expressly not in response to or in connection with that effort, nor is it our purpose or intention that this memorandum be construed or used in way in the support of or defense against that effort.


The County’s legal team is in agreement and submits this summary and recommendation jointly.
The core elements of the situation are as follows:


• Commissioner Richard Lee is a land developer who has not complied with conditional use
permits and letters from the Planning Department staff requesting compliance, and who
has issues of non-compliance with the Building Codes Department.
Memorandum to the Clatsop County Board of Commissioners
February 8, 2008
Page 2
• He is a resistant and non-compliant Planning Department customer. His wife has made
demands upon the Planning Director that Jennifer Bunch, a Planning Staff member,
should be fired for her role in seeking to enforce land use requirements for the Lee’s
development.
• Commissioner Lee has taken complaints about Planning and Building Codes Staff
decisions concerning his development to the Assistant County Manager, and used his
access as Commissioner to interrupt meetings in her office in order to do so. On other
occasions, when matters have not gone as the Lee’s preferred, they have directly
contacted the County Manager. As a result, Planning Staff feels a need to deal with them
on a special basis. Despite the Lee’s efforts, the County Manager’s Office has not
interfered in the planning and permitting process.
• Commissioner Lee and his wife have been confrontational in private dealings with
Planning Staff and Building Code Officials. This behavior has caused Planning Staff and
Building Code Officials to seek assistance from the Community Development Director, the
County Manager’s office and County Counsel in their efforts to enforce the law and
execute their duties properly.
• Jennifer Bunch has filed a written complaint concerning this behavior with the Community
Development Director and the County Manager. She reports feeling threatened and in
fear of losing her job.
• The Community Development Director has voiced thoughts of resigning as his
predecessors have done, rather than continue to deal with the conflict generated by the
Lee’s behavior.
• On January 9 and 10, 2008, Richard Lee filed a public records request seeking disclosure
to him of copies of all memos, written communication, and anything that refers to him, his
wife, or properties or projects that they are involved in, between staff members and
County officials, Commissioners, and clients.
• On January 28, 2008, the County Manager received a Tort Claims Notice from Kenneth
Dobson, an attorney representing Lewis and Clark Development, LLC, a company owned
by Lynda and Richard Lee. The Tort Claim alleges interference with the business
relationship by County staff.


A summary of current status of Richard Lee’s land use file is as follows:


Commissioner Lee has several outstanding sets of issues with the County Planning Department.
The first involves compliance with conditional use permits for a golf course and an RV Park and requests of the planning staff for compliance in at least two letters. The second involves five property transfers from Lee to neighboring property owners. A final issue involves compliance with flood hazard regulations.


Memorandum to the Clatsop County Board of Commissioners
February 8, 2008 Page 3


In March 2003 Commissioner Lee was allowed to build a 9-hole golf course on property zoned for exclusive farm use.



His conditional use permit is subject to nine conditions.



The first required a final design layout showing 50-foot riparian setbacks.



The seventh required certain permits prior to construction of an outbuilding.



Lee has built the course but has not complied with conditions one and seven.


In January 2005 Commissioner Lee was allowed to develop a 90-space Recreational Vehicle
Park on 9.5 acres zoned for Rural Community Commercial use.



This approval was subject to 12 conditions.



Condition three requires compliance with Oregon Administrative Rules dealing with
Recreational Parks and Organizational Camps, OAR 918-650-0035 through 918-650-00801. OAR 918-650-0035 requires a set of construction plans prior to the issuance of any building permits.



Although construction of the park continues, Lee has not produced construction plans that comply with OAR 918-650-0035. Also see, ORS 455.680 requiring State approval of plans before construction begins.


Between 1984 and 2001 Commissioner Lee transferred portions of his property to neighboring
owners without the benefit of County approval.



These transfers were made by five separate deeds.


County Planning Staff believes that the County land use ordinance required each of these transfers to be approved by either a Property Line Adjustment or a Partition prior to the transfer of property.


It appears that the transfers involved either vacant land or were made to cure an encroachment.
Planner Jennifer Bunch discovered the problem in October 2007 after Lee submitted an application to further partition his remaining parcel of property.


As there was no County approval of the transfers, Lee is prohibited from further subdividing the
remaining parcel and also prohibited from obtaining permits for land use activities involving this property.


This prohibition includes obtaining the permits required by condition number seven of the golf course approval.



Richard Lee and Lynda Lee reacted to this situation with abusive behaviors directed at County
Planning Staff.


To resolve these problems, permits to transfer the property, development plans for the RV Park
and golf course and permits for the outbuilding are needed.


The last issue involves both the golf course and the RV Park.



Both developments lie within a Flood Hazard Overlay District (FHO).



These districts are designed to reduce flood damage and loss of life in areas subject to periodic flooding. §4.030(4) of the County’s Planning Code requires that fill placed below the base flood elevation in the FHO be compensated for with an equal volume of excavation from
below the base flood elevation.



Planning Staff has requested that Commissioner Lee demonstrate compliance with this code section on the plans for the RV Park and golf course. Although each development must comply with §4.030(4), it is unclear whether compliance must be demonstrated on the
development plans for the RV Park and golf course.


A summary of current status of Richard Lee’s building permit file is as follows:


Over the course of these two developments many building permits have been taken out by Lee or by contractors on behalf of Lee.



Some of these permits have not been closed out and are now stale.


Jim Byerly the County Building Official indicates that 22 permits are outstanding on these projects with 10 of them outdated.


The order approving the conditional use erroneously refers to OAR ch. 618.


Memorandum to the Clatsop County Board of Commissioners
February 8, 2008
Page 4


Clatsop County appoints a Building Official to administer the State Building Code program
pursuant to ORS 455.148. The Building Official is required to follow State regulations for the permitting, ORS 455.148, and enforcement, ORS 455.156, of the State Building Code. In non-compliance situations it is typical for the Official to issue a stop work order. There is no independent County procedure for enforcing the State Building Code nor has the County adopted any procedure for review of the Building Official’s decision.


Practicalities include the following:


The County Manager is responsible to ensure that the work place is free of hostile, aggressive,
intimidating and potentially violent behavior.



Were Richard and Lynda Lee ordinary consumers of County service, the Manager or the Planning Director could step in, describe appropriate behaviors and make clear that threats, intimidation, and aggression would not be tolerated. Here, the complained of behaviors have been committed by a County Commissioner and/or his wife acting as Richard Lee’s
agent in his role as a private land developer.



Thus, the County Manager is placed in a difficult position of being obligated to correct behaviors in the Planning Office committed by a person (or the wife as agent of
a person) who is his superior in the County organization.


The County Planning Staff is seeking to administer and enforce the County and Oregon State
land use laws and regulations, and is faced by a non-compliant citizen who also is the superior of their superiors.



In spite of Richard Lee’s leadership role in County Government and in the community, rather
than act in a matter which is above reproach and which reflects a higher standard, Richard and Lynda Lee by their words and conduct appear to seek special treatment and favors to which others would not be entitled.


Richard Lee’s history of dealings with the County and Lynda Lee’s recent behavior has escalated
the situation.



Jennifer Bunch has complained.



She thereby became a whistleblower also seemingly
protected by Oregon’s “public policy” and “wrongful discharge” common law tort theories.



The Lees have called for her dismissal as well as the dismissal of her superiors.


Richard Lee has hired counsel to represent him on issues arising from any “hostile workplace”
allegations.



His counsel has delivered a Tort Claim notice to the County Manager alleging interference
with the business relationship of the Lee business.


The Lee development remains out of compliance with the law, and at this time they have not
indicated any willingness to correct the past areas of neglect or non-compliance.


The County Manager has provided the Transportation and Development Services Department
staff with a memo re-affirming support for them, and re-affirming that no single commissioner has authority to affect individual employment.


Public records requests regarding Richard Lee’s businesses have been received from the Daily
Astorian and representatives of the Richard Lee recall committee in addition to the requests from Richard Lee himself.


Richard Lee has postured himself as adverse to the County with respect to his public records
request, his tort claim notice and threat of civil litigation against the County, and by his refusals to comply with land use laws and regulations.


Memorandum to the Clatsop County Board of Commissioners
February 8, 2008
Page 5


Several potential legal issues related to potential litigation involving the County are raised
by the circumstances, including:


Wrongful Discharge under Common Law. A cause of action for wrongful discharge exists
where an employer discharges an employee for performing an important public duty or societal obligation or when an employee is fired for pursuing private statutory rights that are directly related to employment.


Delaney v. Taco Time Int'l, 297 Ore 10, 681 P2d 114 (1984). To prevail, an employee must have been discharged for fulfilling an important societal obligation or for exercising an employment-related right of public importance.



Estes v. Lewis & Clark College, 152 Or. App. 372, 381 (App. Ct. 1998); Kinyon v. Fred
Meyer Stores, Inc., No. 03-3047-CO, 2004 U.S. Dist. LEXIS 21054, at 37 (D. Or. Oct. 12, 2004).



The employee must establish a causal connection between a protected activity and the discharge.



The protected activity must have been a substantial factor in the motivation to discharge or a factor that made a difference.



Estes, 152 Or. App. at 381.



Were Jennifer Bunch to face dismissal, the Lee’s conduct would serve as a basis for such a claim, and she could establish a prima facie case which the County could be hard pressed to defend.
Constructive Discharge.



A constructive discharge occurs when an individual leaves employment because of unlawful discrimination or as a result on intolerable conditions created by, condoned or tolerated by the employer.



The working conditions must be so intolerable that a reasonable
person in the complaining individual's circumstances would have resigned because of them.



McGanty v. Staudenraus, 321 Or 532, 557 (1995) Also, the employer either desired to cause the complaining individual to leave employment as a result of those working conditions, or knew or should have known that the individual was certain, or substantially certain, to leave employment as a result of the workinconditions. Of course, the claimant must show that she left employment as a result of the working conditions.



See Draper v. Coeur Rochester, Inc., 147 F3d 1104, 1110 (9th Cir. 1998) (“a claim for
constructive discharge occurs when a person quits his job under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable”); but see, Jamal v. Wilshire Mgmt. Leasing Corp., 320 F Supp 2d 1060, 1083 (D Or 2004) (granting summary judgment; plaintiff’s allegations of being treated unfairly by supervisor and recitation of workplace friction and resentments did “not give [her] the legal right to throw up her hands and quit, and then sue her employer
for, in effect, firing her.”)


Oregon’s Whistle Blower Statute ORS 659A.203. The Oregon Whistleblower Law applies only
to government employees. See ORS 659A.200 to 659A.224. ORS 659A.203(1)(b)(B) provides that it is unlawful for an public employer to: “prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of…mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision.”



If adverse employment action were to befall any of the planning department employees for their role in addressing their legitimate concerns related to Richard Lee’s development and the Lee’s longstanding and non-compliance with the conditional use permit and laws, those employees would enjoy protected status under clearly established law.



In particular, the following are specifically protected:


1) Reporting public endangerment resulting from an action by a public employer;
2) A public employer may not prohibit, discourage, restrain, dissuade, coerce, or
otherwise interfere with any employee disclosing to any person, or take or threaten
to take disciplinary action against an employee for disclosing any information that
the employee reasonably believes is evidence of: (a) A violation of any federal or


Memorandum to the Clatsop County Board of Commissioners
February 8, 2008
Page 6


state law, rule or regulation by action of the state agency or political subdivision, or
(b) Mismanagement, gross waste of funds, abuse of authority, or substantial and
specific danger to public health and safety resulting from action of the state,
agency or political subdivision.


3) No public employer may identify the employee who discloses matters described in
this rule during any investigation of the information provided by the employee
without the written consent of the employee. And, no supervisory or management
employee of a public employer may reveal to an employee accused of
malfeasance the identity of the employee who discloses matters described in ORS
659A.203 or reports described in ORS 659A.212.


4) No public employer may take any disciplinary action against an employee for
employee activity described and protected by the law. An employer, however, is
not precluded from taking disciplinary action if:
a. The information disclosed is known by the employee to be false;
b. The employee discloses the information with reckless disregard for its
truth or falsity; or
c. The information disclosed relates to the employee's own violations,
mismanagement, gross waste of funds, abuse of authority, or
endangerment of the public health or safety.
Discrimination Based on Protected Status. ORS 659A.030 relates to claims of retaliation. To
establish a prima facie case of retaliation, a complainant must prove: (1) she engaged in protected
activities; (2) she suffered an adverse employment action; and (3) there was a causal link between the
protected activities and the adverse employment action. These elements are also stated in a corollary
federal statute related to federal employment claims, 42 USC § 2000e et seq. The elements of the claim
are the same under federal law – that is, to establish a prima facie case of retaliation, Complainant must
prove: (1) she engaged in protected activities; (2) she suffered an adverse employment action; and (3)
there was a causal link between the protected activities and the adverse employment action. Ray v.
Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
Tort Claim. The tort alleged by the Lee’s attorney, interference with the business relationship,
requires proof that 1) there is the existence of a business relationship 2) intentional interference with that
relationship 3) by a third party, 4) accomplished by improper means or for an improper purpose,



5) a causal effect between the interference and the damage to the economic relationship and 6) actual damages.



Services Employees Intl, v. Walter 2007 ORCA A129008-121207, citing McGanty v.
Staudenraus, 321 Or. 532, 535, 901 P2d 841 (1995).



There are no appellate cases in Oregon of this tort claim being successful against a public entity.



Counsels are unaware of any facts that would support the alleged tort.


Memorandum to the Clatsop County Board of Commissioners
February 8, 2008


Page 7


Public Records.



Finally, there is a potential for litigation over certain documents in the Board’s
possession, notably this memorandum and the Goldsmith report.

This document is advice to the Board regarding litigation.



It is arguably exempt from disclosure under ORS 192.501(1), but the Board must determine whether the “public interest requires disclosure in [this] particular instance”.


Atty Gen. Public Records & Meetings Manual p. 32 (January 2008).



The Goldsmith report is arguably exempt under ORS 192.502(2)(a) as “[p]ublic records of information the disclosure of which is prohibited or restricted or otherwise made confidential or privileged under Oregon law.”



This letter and the Goldsmith report are privileged confidential communications that fall within the lawyer-client privilege set out in ORS 40.225.



The Public Records Law does not mandate confidentiality and is interpreted as a “sunshine” and “disclosure” law.



Here, the records relate to actions of an elected official accountable to the public; the actions relate to the Lee’s conduct and interactions with the staff of the County the governing body of which he serves as a Commissioner.



A public entity has the daunting burden of proving that the public interest in non-disclosure “clearly” outweighs the public interest in disclosure.



City of Portland v. Oregonian Publishing Co, 200 Or App. 120, 112 P.3d 475 (2005)


RECOMMENDATIONS AND OBSERVATIONS:


The difficulties posed by this situation are serious. They involve the credibility and integrity of
Public Officials, the livelihood of public employees, the rights of public employees in the workplace, and the just and efficient operation of county government.


The Planning Staff is obligated to enforce the law. Clearly, Richard Lee is out of compliance, has
been for some time, and has continued to resist Planning Staff requests.


The County Manager must support the Planning Staff in enforcing the law, and so should the
Board of Commissioners.



Counsel has recommended that staff action include:



1) Enforcement action be undertaken on the Planning Code violations.

2) Stop work orders be issued on the Building Code violations.

3) No further County permits be issued until compliance is achieved.

4) Issue a letter to the Lees that they will only be permitted in Community Development offices for a pre-arranged meeting with management staff, that no other staff will be permitted to speak with them on their personal issues, and that any threatening behavior may result in the issuance of a “no trespass order” as provided for by Oregon law.
At this point, Counsel would recommend that the Board consider the following actions:
1) Support the County Manager and County staff in upholding the law.
2) Determine whether you will authorize the release of this Memorandum and the
Goldsmith Report to the public at this time or resist disclosure.
3) Put safeguards in place in your communications with Commissioner Lee to avoid
disclosure of information material to the defense of the Lewis and Clark
Development, LLC Tort Claim. Commissioners will need to careful in their
consideration of issues and handling of documents pertaining to Commissioner
Lee.
4) Be aware Commissioner Lee may have conflicts in the following areas:
a. Any matter involving the Community Development Department including
land use appeals.
Memorandum to the Clatsop County Board of Commissioners
February 8, 2008
Page 8
b. The Community Development Department budget, and the County
budget generally if funds must be budgeted for litigation.
c. Enforcement actions against him and any disputes he has with the
County. Counsel and staff will need to communicate on those issues
with Commissioners at meetings from which Commissioner Lee is
excluded and maintain the confidentiality of such communications in the
interest of the County as a whole.
This unique situation is caused by Richard Lee’s actions that have placed him in a
position of legal adversity with Clatsop County. We recommend the Board of Commissioners support
County Staff in enforcing the law in their decision to prohibit any construction activity on the property until
the regulatory matters are resolved and are in compliance. If Commissioner Lee chooses not to comply
then the Board of Commissioners should make clear that the Board’s expectation is simply that staff shall
treat any member of the Board of Commissioners exactly as the County would treat any other member of
the public at large. On employment matters, we recommend a non-interference stance in support of
County administration as overseen by the County Manager. We recommend Commissioners affirm that
the Board does not condone any Commissioner, a Commissioner’s agent, or indeed any citizen,
manifesting threatening behavior toward County Staff, and thereby acknowledge the seriousness of
these matters. We further recommend that the Commissioners be sensitive to the need to protect
confidentiality in the preparation of any defense to any litigation brought by Commissioner Lee against
the County.
Respectfully submitted,
Blair Henningsgaard, Attorney at Law
Heather Reynolds, Attorney at Law
Akin Blitz, Attorney at Law
Andrew Jordan, Attorney at Law
Memorandum to the Clatsop County Board of Commissioners
February 8, 2008

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