Jacqueline Haggerty, former county counsel plans to retire by the end of the month after an extended and unexplained absence. Assistant counsel, Oubonh White, has been filling in and has manifested what appear to be some evidence of glaring gaps in her grasp of the laws relevant to safely conducting county business. There is reason to question whether White is qualified to replace Haggerty. For example, there have been unauthorized executive sessions, currently under investigation by the Oregon Government Ethics Commission, which in one instance resulted in commissioners Main and Parry performing a “do-over”.
White participated in at least one illegal executive session January 14, 2011 during deliberations fill the elected assessors position and possibly another on May 17. White claims the May 17 session was legally exempted from the public, however, it seems clear that some unauthorized deliberations must have occurred during this meeting prior to Messerle being sworn in as a commissioner.
In each case, White and the commissioners failed to read subsections of the relevant ORS wherein when filling an elected position deliberations must be held in public session. Now, we find that counsel has been tripped up once again by yet another subsection, this one pertaining to land use and planning.
At the June 7 BOC meeting Jody McCaffree questioned the deadlines set by the planning department for a remand hearing and the time frame to reach a final decision set by the Land Use Board of Appeal in a matter regarding the Pacific Connector Gas Pipeline. Ms White insists that the hearing date must be set thirty days from when you get the request from the applicant, in this case PCGP, and the final decision must be reached ninety days from the date of the LUBA decision. McCaffree, who has some prior experience with this issue now, challenged the date for the final decision twice during the discussion, insisting it should be ninety days from the date of the request from the applicant, not the date of the LUBA decision. If you watch the video above, you will see that White is very forceful and commanding with her opinion on these dates and somewhat condescending telling McCaffree that she is mixing “apples and oranges”. The problem is, White is wrong. Once again, she has not read through the ORS and those pesky subsections.
From a legal opinion by land use attorney Corinne Sherton properly served on the planning department and all relevant parties June 14 by McCaffree.
The deadline for final action by the County on the PCGP application, following the remand by LUBA, is governed by ORS 215.435, which provides in relevant part:
“(1) Pursuant to a final order of the Land Use Board of Appeals under ORS 197.830 remanding a decision to a county, the governing body of the county or its designee shall take final action on an application for a permit, limited land use decision or zone change within 90 days of the effective date of the final order issued by the board. For purposes of this subsection, the effective date of the final order is the last day for filing a petition for judicial review of a final order of the board under ORS 197.850 (3). If judicial review of a final order of the board is sought under ORS 197.830, the 90-day period established under this subsection shall not begin until final resolution of the judicial review.
“(2)(a) In addition to the requirements of subsection (1) of this section, the 90-day period established under subsection (1) of this section shall not begin until the applicant requests in writing that the county proceed with the application on remand.“(b) The 90-day period may be extended for a reasonable period of time at the request of the applicant.” (Emphasis added.)
The emphasized provision in ORS 215.435(2)(a) above makes it clear that regardless of what is said in subsection (1), the 90-day period for final county action on an application after remand by LUBA does not begin until the applicant requests in writing that the county proceed.
LUBA has described the identical language in ORS 227.181(1) and (2), applicable to cities, as
follows:
“ORS 227.181(1) requires the city to take final action on a permit, limited land use decision or zone change within 90 days of a L UBA remand. The 90-day period does not begin until the applicant requests in writing that the city proceed with the application on remand. ORS 227.181 (2). * * *” Broderson v. City of Ashland, 55 Or LUBA 350, 355 (2007).
LUBA has also held that under ORS 215.435, “the applicant controls the timing of proceedings on remand.” Ploeg v. Tillamook County, 43 Or LUBA 4,9 (2002).
Thus, to identify the deadline for final County action in this remand proceeding, one must first determine when the applicant requested in writing that the County proceed on the remand. You provided me with the contents of County File #REM-ll-01, which you obtained from the Planning Department on June 7, 2011. The controlling document is the letter from attorney Mark D. Whitlow, submitted on behalf of applicant PCGP, which states that it is PCGP’s written request under ORS 215.435 for the County to proceed with the application on remand. 1 Attachment 1. This letter clearly constitutes the applicant’s written request to proceed referred to in ORS 215.435(2)(a). The letter is dated May 12,2011, and states it was transmitted via e-mail.
Accordingly, I conclude the deadline for final County action on LUBA’s remand is 90 days after May 12,2011, which is August 10,2011.
It gets worse. Instead of being grateful for correcting the error, White instead accused McCaffree via email in very stern terms of ex parte contact for submitting this opinion to the planning department. It is the second time the counselor has warned McCaffree of engaging in ex parte contact. The first time was marginal at best as McCaffree was simply responding to a request from Commissioner Parry. Further, White probably should have directed her warnings to the attorney of record listed on the LUBA case rather than contact McCaffree directly.
The applicant, in this instance, plans to request an extension of time rendering this deadline debate moot for the moment and it is worth noting that the planning department was equally culpable in miscalculating the deadlines. The real issue is whether the county is receiving proper legal counsel and how much trouble will it get into if it isn’t. During the same meeting on an unrelated matter, Main says they will have to get advice from counsel but even if the commissioners trust White can the public maintain confidence under these circumstances?
This also raises the burning question of why did Haggerty disappear under such mysterious circumstances and why isn’t the public being informed?
On 29 June 2010, county commissioner Bob Main signed a letter addressed to former assessor Adam Colby. That six page letter, released to the public in early July, authored by a neophyte lawyer or a lawyer wannabe, a person who did not let ignorance of Oregon law stop them from flaunting the unknown law, includes this statement; “To date the County has incurred expenses in excess of $200,000 dealing with” the Colby matter. I do not recall the commissioners authorizing payment of any bills adding up to amounts “in excess of” $200,000 (primarily for outside counsel legal fees and related to the Colby matter), nor any other related discussion and payment authorization. Perhaps one of you nattering nabobs of negativism – as Clarkie of the bird cage liner believes you to be – who regularly attend county meetings could ask Mr. Main, while Mr. DeMille has the camera rolling, where our money in excess of $200,000 went and why, with qualified counsel of Haggerty and White, such expenses were even incurred.
You are right, Richard. Commissioner Main’s characterization of Jody as a “housewife” may have caused White to underestimate Jody’s competence and experience.
I concur about arguing a point with Jody McCaffree. I have never seen Mrs. McCaffree state anything in public that she did not have a document to back it up. If she was a lawyer in some corporate setting delivering the level of performance to her client that she does on the issues before the Port and Coos County she would be pulling down a salary of half a million dollars. All of these pathetic rats sneaking from one back room deal to the next would be well advised to listen carefully to what this lady has to say. Insted snot-nosed legal understudys give her lectures. This only make her mad and work even harder to prove her point. One of these days we are going to find a national news reporter or federal attorney who looks into the activities of the business development people and county officials of Coos County and they are going to have a lot of explaing to do. Jody McCaffree will be a hero.
Correction: giggly-girly exchanges with White, Main and Cam.
I saw this the same way as well RU. I suggest the BOC do something about this situation ASAP. They are just digging further holes for themselves. Jody M is NOT one to be argued with. I’ve seen way too much giggly-girly nonsense in the exchanges with Cam and Main. The first time I watched one, I actually winced.
Come on ! ! Let’s get serious about governing this county and stop the nonsense, this ain’t a college government class any longer.
Run for office damnit, then do your job. Fire workers and pay for another $100 thousand in studies? What a novel idea for Coos County. Bring in another Messerle? What the hell did you think you were going to get? Another study?
As I have stated in this blog tooooooooooo many times; in my humble opinion, having spent a few years reading law books myself, having spent my entire professional life, and much of my life following retirement, involved in some aspect of international, federal , or state law, it is a cruel joke being foisted upon the people by Mr. Main, et al, to be relying upon and considering employing as county cousel a person who has been a lawyer lady sine May 2006 – a tad more than 5 years. Five years in the lawyer business is not enough time to locate the court house rest room. Some of what you state above certainly clearly shows inexperience and inability to operate as a team member employee of the people. County counsel is neither a private law practice nor a feifdom. County counsel is the peoples employee, not Mr. Main’s employee, and people demand an experienced lawyer at the county helm – a person who need not be spending so much of the peoples money hiring outside counsel because they have not been around the track before. I would NEVER EVER argue a point with Ms. McCaffree where she has convinced me that she has been there before.