Using false claims of attorney-client privilege to circumvent the Open Meetings and Public Disclosure acts has become a common tactic in recent years.  It’s really just a stall, because the courts (all the way up to the Washington Supreme Court) have ruled that just passing something a government agency wants secret through an attorney doesn’t exempt it from disclosure.  However, it does make it necessary for the public to go to the courts every time this dodge is attempted.

This enables public agencies to use public funds to circumvent sunshine laws enacted by the public through the initiative process.

The cure would be to gin up some specific actions to confront these abuses and then, when the courts rule in the public’s favor, follow through with complaints to the Washington Bar Association Ethics Committee and get some of these snakes disbarred.

It isn’t just the Port of Bellingham. The City of Seattle, local water districts and Western Washington University are just a few of the government entities who have availed themselves of this smokescreen.

Now, the Bar Association has an obvious interest in protecting clients and their counsel’s ability to discuss matters in confidence.  But if privileged communications are subject to widespread abuse, the Bar has a responsibility to address the problem.  If they don’t, it becomes a legitimate matter for public legislative action.

This is an abuse by the executive branch and the remedy lies in the judicial and legislative branches.

The people and legislature have spoken loud and clear. They demand to know what their government is doing.

As Jefferson so succinctly put it: ?Information is the currency of Democracy?

The Port?s attorney spits in the eye of all, with this culture of secrecy; The Lummi?Fairhaven Shipyard accord, being only the most recent. A two decade long culture of secrecy, now cleverly hidden behind the attorney-client privilege.

But who is Chmelik?s client; The Port management, or the citizens who own the Port? Chmelik clearly thinks that the Port management is his client. He is wrong, the citizens who own the Port are his clients, and this alone is enough reason to remove him.

But this is the tip of the iceberg. When a culture of secrecy invades the Port?s culture, the managers become used to being able to hide any variety of ?mistakes? from public view. When a culture pervades for two decades, secrecy hides precisely what the public wishes to know about how their Port is being managed. Voting without the basic information of Port Management Performance becomes a farce.

If we are denied the basic information necessary to become informed about what the Port is doing, and why: How would we know whether they are doing an adequate job on our behalf. Ask the Port?s managers, and they will always tell us they are doing a spectacular job; World class management, in fact.

Secrecy is used to hide embarrassing facts from the voters. Secrecy protects management, not the citizen owners. Ask the Port of Seattle how secrecy worked for them, when staff began hiding embarrassing details from the elected Commissioners.

Remember how the Port Commission incumbents paraded out the ground-breaking Lummi Accord, during the election campaign. Vote for us, we have negotiated a good deal with the Lummi Nation, which clears the way for job creation.

It has turned into a spectacular failure. We asked for details, but were told the details were secret. The details matter.

It is exceedingly difficult to challenge government run amok, especially by the common citizen. THEY KNOW THIS. This Lummi-Fairhaven Shipyard brings this Port management performance into public view in ways that other issues are not able to capture the public?s attention.

Why is this important?

New sewage treatment plant ? Pay Tribal Impact Fees.

Waterfront Redevelopment ? Pay more Tribal Impact Fees.

Additional water for our cities ? Jackpot! Pay huge Tribal Impact Fees.

This list will expand and impact all future development in Whatcom County. This gusher of tribal funding has been opened by the Port.

Let?s call these what they are ? taxes. The table has been set by the Port?s attorney.

Negotiate fees prior to beginning of the project? Makes sense. Unfortunately if this Lummi Accord is any illustration, even fairly bargained, public agreements are unilaterally renegotiable afterwards, like when the investments have been made, and you are bent over the railing. The Port will come to your defense; or will it?

The Port Attorney and Commissioners were quick to praise this agreement, but when it was broken, they are silent. Fairweather friends, and a warning to other Port customers, do not depend upon Port administration to come to your support.

Do we owe these Port negotiated Tribal Impact Fees at all?

      Excellent question!!

Although the Port?s attorney has been dubbed a SuperLawyer, unfortunately for us it was not in the very specialized field of Native American Treaty Law. What legal basis do does the Lummi Tribe have to demand cash for a shipyard to lift a vessel?

We will never know, as it was done in secret.

Could the Port and their exclusive SuperLawyer be wrong, and we do not owe cash to the Lummi Tribe? Absolutely. The Port?s Superattorney is certainly not a recognized expert in Native American Treaty Law, but someone that was at these secret Lummi-Port meetings has determined that the citizens of Whatcom County owe fees to the Lummi Nation.

I hope the Port had expert legal counsel in these meetings, where new taxes were imposed upon us.

The normal procedure for projects that have impacts to salmon, is that the projects may be required to mitigate the damages to the resource. If the shipyard kills a 100 salmon smolt, then they could be forced to raise and release 1000 salmon smolt, but this new payment in CASH. Mitigation like the illustration above is often used, but CASH payments are a new twist, that I can find scant legal basis.

Regardless, the Port?s attorney should disclose the legal basis for this cash payment, and reveal the legal advice that supports these cash payments to the tribe. The legal advice provided to the Commissioners prior to their deciding to pay the Lummi?s for future impacts, is critical.

Gaming revenues are down for the Tribal casinos. They are desperate to replace this revenue. If the Port did not have the advice of a recognized Native American Treaty Law expert advising them, then the Lummi?s Cagey has pulled of a spectacular bluff, which I admire.

If the Port did not utilize an expert to determine that we in fact owed these impact fees, then I understand the Port negotiators wanting to keep this a secret from the public.

There is one problem though, these Tribal Impact Taxes comes out of their neighbors pocketbooks. They will remember getting skinned. This is not some sort of garden variety negotiation. When we are done negotiating, we need to be able to live as neighbors, forever.

This is just another tax that one way or another we will all have to pay, and the details are secret. Once the Port opened this spigot, there will be more Tribal taxes to come. We have not heard from the Nooksack tribe, but I am sure that we will.

The Impact Fee paying public, deserves to have the whole truth.