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05/06/2006: "Just Because You're Paranoid Doesn't Mean Nobody Is Out To Get You"

The crickets are chirping loudly in the fading light of dusk. An old grizzled farmer, a hitch in his step, walks down a deserted, narrow dirt road. A raven squawks loudly as it flutters into a bush. Suddenly the crickets cease their calls. The birds fall silent. No sound breaks the swiftly falling night. A strange light shines off in the woods, where the farmer knows no light should be. As the movie soundtrack's music builds, the farmer squints in the dim light, and then, his heart beating a little faster, ducks into the brush to investigate the strange light. We call out to him not to go, fearing for him but -- on the other side of the movie screen -- he doesn't answer.

So why did the farmer head off the safe pathway toward the forbidden light? We're alerted by strangeness. Whether from childhood training or genetic impulse, strange events make us curious. And nervous.

Strange events in San Juan County have me curious. And nervous. In my case, I wonder about something as prosaic as the appointment of the new Hearing Examiner. For San Juan County's new Hearing Examiner, the County Council has selected Bill Nielsen. Mr. Nielsen was the chair of the Growth Management Act Hearings Board during the period when the Board repeatedly ruled against the County's position on guest houses. On two or perhaps three occasions since his retirement from the Board (when I spoke with him, Mr. Nielsen didn't recall offhand whether the Friends or the County paid his salary on one occasion), Mr. Nielsen represented the Friends of the San Juans as its attorney, or was employed on behalf of the Friends in some other capacity.

The appointment of anyone to a position in which they may be called upon to rule against – or in favor of – a group with whom they have prior ties always merits a close look. See, for example, USA Today's recent reporting on the appointment of George Mitchell to investigate steroid use in major league baseball:

Mitchell … is on the board of directors of the Boston Red Sox. He is also chairman of the board of Walt Disney Co.… parent of ESPN, which has an eight-year, $2.4 billion contract to televise MLB games and is currently producing a reality show with Barry Bonds, one of the focuses of the probe.

"I side with those who would think it's questionable," said professor Deborah L. Rhode, director of the Stanford Center on Ethics at Stanford University, adding it's important to avoid even the appearance of conflict of interest in investigations of this nature.

"Is this somebody that has sufficient distance from the individuals and the institution being investigated? Can we count on him to lead an impartial investigation?" she said. "The more ties, the harder that becomes." …

The former prosecutor said the conflict of interest questions would be a "burden" for Mitchell. "I don't think it's healthy. Everything you do is not going to be trusted."

Sen. Jim Bunning, R.Ky., a baseball Hall of Famer, also questioned the appointment.

"While George Mitchell is certainly a man of great integrity, I believe that baseball would have been wiser to pick someone who is not as close to the game and may be able to take a more objective look into the facts."

USA Today, 3/31/06, page 15C.

The actual impartiality of Mr. Nielsen isn't the question: I presume he will in fact be impartial. The questions are these: when he rules in favor of the position advocated by the Friends of the San Juans (as he certainly must at some point), will the losing party distrust his impartiality, knowing of his former employment by the Friends? Very likely his impartiality will be questioned by some. And why, with perceived impartiality of the Hearing Examiner so important, would the Council nonetheless appoint him to that position?

Of course, any Hearing Examiner applicant may have potential conflicts of interest, actual or perceived. And certainly, Mr. Nielsen himself, in my recent discussion with him in preparation for this column, discounts potential concerns about his impartiality. "I have represented a lot of clients over the years," he said. "I understand some people might be uneasy, but I don't think it will be a problem." He pointed out that the issues on which he had represented the Friends are entirely different than issues he will be asked to decide as a Hearing Examiner. "I would be very surprised," he added, "if anything comes up on which someone doesn't think I could be impartial." He said he would of course give no special treatment to the Friends because they had hired him on a few occasions, and suggested that people should read his decisions while sitting on the Growth Management Board to get an opinion as to whether he is the right man for the job, rather than being concerned about whether he might favor the Friends for having paid him a few hundred dollars for something that will never come before him as a Hearing Examiner in the same context.

Wick Dufford, our former Hearing Examiner, was a man of unquestioned integrity. The Council had the opportunity to retain him as Hearing Examiner, under his proposal in which he would have shared his Hearing-Examiner duties with another attorney. Instead, the Council chose Mr. Nielsen, a man with ties – however tenuous – to a group which arouses strong passions on both sides of the isle, so to speak. I find that … strange.

From my brief conversation with Mr. Nielsen, I was impressed by his openness, frankness and sense of humor. Hopefully, Mr. Nielsen will have the ability to rise above the concerns I've expressed and demonstrate that he is the right man for the job. In following Wick Dufford, he has big shoes to fill.

But regardless of the qualifications of Mr. Nielsen, I'm left with that sense of strangeness. I don't know Mr. Nielsen. While I spoke to him briefly in preparation for this article, I have neither met him, nor reviewed his opinions, nor reviewed the merits of the cases which the County repeatedly presented to him, and on which he repeatedly ruled against the County. If I had been sitting on the Growth Management Board, I don't know whether I would have voted with him or against him.

But the point is not whether he was right or wrong in his opinions. He was chair of the Growth Management Board when it ruled against San Juan County on more than one occasion on the guest house issue. Maybe he was right. But almost 74% of the County voted in the advisory ballot to support detached guest houses. And Mr. Nielsen and the other Board members nixed the County's proposed version of detached guest houses. When 74% of the County was on the other side of the issue, what does it say about the County Council – Bob Myhr, Kevin Ranker and Alan Lichter – and their respect for the opinions of their constituents, when they give Mr. Nielsen a kind of a high-five, an "atta boy!", for his opinions which were adverse to San Juan County by awarding him the position of Hearing Examiner for San Juan County?

The three Council members are members of the Friends of the San Juans (at least, so I have been told) at the same time they are proposing to settle the guest house litigation with the Friends of the San Juans, over the advice of the County's Prosecuting Attorney. At the same time, some members of the public have repeatedly questioned the extent of their relationship with the Friends of the San Juans.

The Friends of the San Juans serve an important role in defending the county's environment. But why would the Council throw more wood on this particular fire by appointing a Hearing Examiner with ties to the Friends of the San Juans? Most recently, two Council members have continued to feed the fire's flames, this time by a casual meeting on the ferry between the two Council members (Mr. Lichter and Mr. Myhr), the Vice President of the Friends of the San Juans, Lynn Bahrych, and the Secretary of the Friends of the San Juans, Roger Collier.

The less interesting question is whether the two Council members took "action" in the meeting, which would have made it illegal. After all, it is easy enough to meet in secret if they wanted to conduct illicit business. The more interesting question is whether they had met together enough times previously that all the participants in the meeting were desensitized to the dangers of the public's perception. It is strange that we have these questions.

I'm left without answers. And, like the farmer looking toward a strange light in the dark woods, I'm feeling a little concerned. My deepest fear isn't about the strange Hearing Examiner appointment, but that the public's perceptions of the County Council's strange positions may cause a conservative backlash within the County which could have unfortunate, and broader, impacts reaching beyond the County. This isn't a trivial fear. Last election, San Juan County could have swung the Governorship to the Republican party. What will happen next time around if these strange goings-on continue?

Bob Dylan sang "There's somethin' happenin' here, What it is ain't exactly clear." He suggested we stop, look around, find out what's going down. In the same song, he also said "Paranoia strikes deep. Into your life it will creep." But just because you're paranoid doesn't mean that nobody's out to get you.

Post Script. I miss John Evans. I typically prefer a Democratic majority on the Council. But a loyal opposition with enough power to be troublesome is important. We've seen it on the national scene, where a corrupt, cruel and calculating Republican majority has been able to act as it will because the number of seats they control makes Democratic opposition meaningless. I'd rather not see the same shoe (but this time on the Democratic party's foot) in San Juan County. Had John Evans still been on the Council, I am convinced that a lot these questions would never have arisen, because Mr. Evans would have raised such a ruckus.