01/29/2008: "Council Removes FAC Chairman & Reprimands A Member"

In a sometimes Alice In Wonderland set of actions, the County Council called a special meeting late Friday afternoon to hold an executive session on the following Monday morning, to conduct a “public employee performance evaluation” of two members of the SJC Ferry Advisory Committee (FAC).

At the end of the day, FAC Chairman Alex MacLeod was removed from the committee, and Ed Sutton narrowly escaped being put on “probation” for a year, but instead will receive a reprimand. The formal letters informing them of the discipline and removal will include praise for the years of hard work and service they have contributed to the FAC.

Hauling citizen volunteers into an executive session has never been done in San Juan County; let alone when the committee they sit on has no power except to give advise. And the matter becomes more confusing due to the unique status of the FAC as an advisory body to the Washington State Ferries (WSF), and also by County ordinance to the County Council. The County Council is required by RCW to appoint five members in SJC to the FAC.

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Prosecutor Randy Gaylord told the Council that since they appoint them, they can also remove them. Unlike some laws, neither the state RCW, or the County ordinance addressed the removal of a committee member.

The whole thing started when the FAC failed to advertise a meeting , and when the Council found out about it they strongly suggested the meeting not take place. The Island Guardian was in attendance at the meeting in question when a verbal vote was taken to decide if the FAC members would go home or continue the meeting, and it was unanimously decided to continue, but take no action.

So now there were two problems: one, what is an “action”, and two, is a volunteer member of an advisory committee subject to the RCW on executive sessions? Sutton was first up in the hot seat, and said that as per the RCW that governs executive sessions, he requested the meeting be held in open session.

At this point MacLeod, who was clearly agitated by the whole matter, demanded to know on what basis could a volunteer be subject to an executing session. Council Chair Rosenfeld said MacLeod should wait to speak when it was his turn to be questioned, but MacLeod was trying to raise a point of order, and so was having none of it. He stated the RCW only applies to Public Officials and Public Employees.

This caused Councilman Ranker to continually interrupt in an attempt to stop MacLeod from talking, but Rosenfeld resumed control from Ranker and said that the Prosecuting Attorney had advised them the RCW applied to volunteers “by analogy”. While it seemed odd to introduce the concept of an analogy into a legal definition, the question became moot when the Council opened the meeting to the public, At least for awhile.

What followed was a number of charges being made against both men, some of which were clearly in the record, but were interpreted differently by the parties. And then there were a number of interrogatory charges that were based on hearsay. One example was when Ranker asked MacLeod if he had “poked Rosenfeld in the chest” when he told him the FAC would continue the unannounced meeting. MacLeod said that was not true; and Rosenfeld turned to Ranker, and agreed it had not happened.

Knapp said it had been reported that in addition to the last meeting that had not been announced, there had been three other times when FAC held meetings without notice, and asked if that was accurate. MacLeod said that he did not believe it was. Knapp then asked if was accurate the FAC had held meetings by email. MacLeod said it raised the question of what constitutes a meeting.

That line of questioning was interesting because Prosecuting Attorney Randy Gaylord had said early on that he was not convinced the FAC was subject to the Open Meetings Act (OMA). That basic question did not come up during the questions to MacLeod, and were relevant only if the FAC was in fact subject to the OMA.

Rosenfeld asked MacLeod to respond to charges that a number of state agencies and departments found MacLeod too aggressive and difficult to work with. When MacLeod asked who made the charges, so that he might understand the context, Rosenfeld refused to name any names.

MacLeod did say that in his opinion it was not always a bad thing to be aggressive when state agencies are not forth coming with information the FAC needed to make evaluations and make recommendations.

As for the uncontested charges, Councilman Gene Knapp showed his past training as a prosecuting attorney as he walked both men through a list of questions. Knapp wanted to know if MacLeod had asked anyone prior to sending off an editorial to the Seattle Times, in which he referred to the staff of Washington State Ferries as ““dumb and inept”; and had sighed it as the Chairman of the FAC. MacLeod said that he had not. Knapp then asked if was accurate to describe MacLeod’s relationship with WSF as “belligerent and hostile?” “No”, said MacLeod.

Another issue repeatedly brought up was a charge against MacLeod and the members of the FAC related to a request that WSF do a draft ferry schedule that would delay the onset of the international run. According to Ranker this caused a lot of anger in Anacortes and elsewhere, because it would have an impact on the economy.

Knapp asked if the FAC had acted on the request without the knowledge of the Council, and MacLeod said yes; but MacLeod maintained that they only requested a draft schedule for review, and the FAC had not made a recommendation, but only a request for a draft, and that they had asked the WSF to consider a number of other issues at the same time.

Toward the end of the meeting, Rosenfeld told MacLeod that “you are projecting an aptitude that “your right, and their wrong, your right and were wrong”. Then added that “you might be right; my question is are you having any problem with your responsibility with a difficult working relationship with us, or anybody at the state level?”

MacLeod again said that he would not respond to charges at the state level unless he knew who had said what;” but in terms of the Council he said that he has devoted a great deal of time keeping them up to speed on issues and matters important to the county

Rosenfeld then said the Council go into an executive session to deliberate that would be a “closed meeting”. With that everyone except the press left the courthouse, but too soon as it turned out, because when the Council came out of a short executive session, the said they had decided to hold it in open session after all.

By then it was too late to contact the public to inform them the Council was holding a meeting open to the public. The irony was not missed by those in attendance.

Councilman Rich Peterson made a motion to reprimand Ed Sutton. Gene Knapp said the Council needed to take some responsibility since the Council does not train those they appoint to committees.
As for Alex MacLeod, Peterson said “the damage is so severe he should not remain a member of the FAC.”

Councilman Alan Lichter said that while MacLeod was perhaps too aggressive at times, “it just may be that we need someone assertive and a little aggressive at times.” Rosenfeld agreed that while MacLeod had a “fantastic grasp of the situation -and by and large he is correct- problem is he has been hostile, and shown no remorse.”

Peterson then made a motion to remove MacLeod from the FAC.

Lichter said that County will be losing one of its most knowledgeable people at a critical time for ferry service.

Vote was four to remove, with Lichter voting against removal. There was no response from the many FAC members that had been attending the meeting, since they had gone home after being told the meeting would be a closed session.