2001-903-Minutes for Meeting December 10,2001 Recorded 12/20/2001DESCHUTES COUNTY OFFICIAL RECORDS CJ 2001.903
MARY SUE PENHOLLOW, COUNTY CLERK
HJT E S CO COMMISSIONERS' JOURNAL 12/20/200103:06:00 PM
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www.deschutes.org
Tom De Woff
EXCERPT OF MINUTES OF WORK SESSION Dennis R. Luke
Mike Daly
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, DECEMBER 109 2001
Present were Commissioners Tom De Wolf and Michael M. Daly. (Commissioner
Dennis R. Luke called in for part of the meeting.) Also present were Mike Maier,
County Administrator; Cathy Tilton, Damian Syrynk, Chris Schmoyer, Christy
Morgan,and Kevin Harrison, Community Development; Rick Isham and Laurie
Craghead, Legal Counsel; and Tom Blust, Gary Judd and George Kolb, Road
Department. Also attending were Dan Peddycord, Health Department; Media
Representatives Barney Lerten of bendnet. com and Andy Andrews of "A Matter of
Fact"; and about 30 citizens.
Commissioner Dennis Luke called in on the conference phone to take part in
agenda items 92 and 93.
2. Before the Commissioners was Consideration of Approval and First
Reading of Ordinance No. 2001-038, Amending Title 23, Regarding
Irrigation District Activities.
3. Before the Commissioners was Consideration of Approval and First
Reading of Ordinance No. 2001-039, Amending Title 18, Regarding
Irrigation District Activities.
CATHY TILTON:
There are a couple of clarifications. Legal Counsel requested that what is on
the agenda this morning should read consideration of approval, first and second
readings by title only, declaring an emergency. We'd be doing the first and
second readings this morning.
Excerpt of Work Session Minutes
Monday, December 10, 2001
Quality Services Performed with Pride
Page 1 of 6 Pages
TILTON:
This morning I distributed to you a Swalley Irrigation letter that we received
after I submitted my memo to you last week. There are also a few minor
changes that we'd like to make to the text; they include changes to reflect the
correct public hearing dates and also the adoption dates, if the amendments are
adopted. And then there is some language that we'd like to correct to clarify the
language to make sure it is clear. One of them is related to Exhibit N and
Exhibit M, adding surface mining to non -goal mineral and aggregate resources,
which was left out before. It just specifies that the conditional use standards is
for surface mining for non -goal ...
DEWOLF:
So, it restricts it to the specific material that they are requesting.
TILTON:
Right. It just clarifies that language. We wanted to clarify Exhibit M, because
most of the irrigation canals are identified on the County's Goal 5 inventory of
wetlands. We just want to clarify by taking out the language that we originally
put in that references wetlands under the jurisdiction of the Division of State
Lands. We want to remove that, because it will not clarify that all the wetlands
in the County are identified on our inventory maps. We want to make sure we
don't run into a problem with wetlands that are not necessarily under the
jurisdiction of the Division of State Lands.
DENNIS LUKE:
Has it been made part of the record that the challenge to me on conflict of
interest, that there is no conflict of interest on my part on this, as I sat on the
Watershed Council. I get no personal benefit out of any of that. Legal Counsel
has issued a letter answering the challenge, which I would like to be a part of
the record.
TOM DEWOLF:
Here is the letter from Gary and Roxanne DeJarnatt, dated December 4. (Copy
attached as Exhibit A.)
The fact is, conflict of interest is specifically defined by state ordinance as
"financial benefit to either the person making the vote, or that person's family",
and neither of those is the case with Commissioner Luke. He receives no
financial benefit by being a member of the Upper Deschutes Watershed
Council. Does that cover it?
Excerpt of Work Session Minutes Page 2 of 6 Pages
Monday, December 10, 2001
LUKE:
Please make a copy of Laurie Craghead's letter a record a part of the record as
well. (Attached as Exhibit B.)
TILTON:
Since we sent out the memo last week, we want to clarify a section of the
wetlands ECEE, where we clarify the language to make it more readable and
understandable about why we are making the changes to the ECEE. (Copy
given to the Commissioners at this time.)
The last thing is, if the Board adopts this today, to give direction to staff as to
whether you'd like to adopt the staff report that was submitted for the
November 7 hearing, or adopt the Board's own findings, which we can work on
with Legal Counsel.
DEWOLF:
I have a statement to read. Do either of you, Mike or Dennis?
DALY:
I have nothing prepared to read, but have a few comments. As far as amending
Title 18, as near as I can determine from staff, this ordinance merely clarifies
the County's role in this issue. Quite frankly, as a County Commissioner I don't
want to get involved in the issue of whether the irrigation district has the right
to pipe these canals.
From reading the Carey Act and other acts that created the easements for these
canals, it is apparent to me that this goes back to the early 1800's, and it's an
issue between the property owners and the canal districts. I will be voting in
favor of these ordinances.
DEWOLF:
(Read a statement, attached as Exhibit C.)
LAURIE CRAGHEAD:
To clarify the two ordinances, Ordinance No. 2001-038 amends Title 23, the
comprehensive plan, allowing the process for the non -goal aggregate mining.
The second one, Ordinance No. 2001-039, covers both piping and non -goal
surface mining.
Excerpt of Work Session Minutes Page 3 of 6 Pages
Monday, December 10, 2001
LUKE:
I've been involved in water issues for a long time. I think the Planning
Commission and staff have done a very good job at researching this. There
were questions about easements, and as you mentioned, staff has answered
those pretty thoroughly. This is still something between the property owners
and the irrigation districts, and the County doesn't have much say about that
anyway.
There are still a lot of hoops for the irrigation companies to jump through
before they are allowed to pipe, including working out agreements with
property owners. I don't see any reason to require a County permit for them to
move forward, and I will be voting yes.
DALY: I move for First and Second Readings of Ordinance No. 2001-038, by
title only.
LUKE: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
DALY: I move approval of Ordinance No. 2001-038, incorporation the minor
changes recommended by staff, declaring an emergency, subject to
review.
LUKE: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
DALY: I move for First and Second Readings of Ordinance No. 2001-039, by
title only.
LUKE: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
Excerpt of Work Session Minutes Page 4 of 6 Pages
Monday, December 10, 2001
CRAGHEAD:
You need to indicate incorporation of the minor staff changes, and whether you
want to write your own findings or include the staff report.
DEWOLF:
I'm fine with the staff report.
LUKE:
I'm okay with that, too.
DALY: I move approval of Ordinance No. 2001-039, incorporating the minor
changes recommended by staff, declaring an emergency, subject to
review.
LUKE: Second.
VOTE: LUKE: Yes.
DALY: Yes.
DEWOLF: Chair votes yes.
DEWOLF:
I want to thank all members of the audience who made suggestions, as this
made for some good improvements to the language. The irrigation districts
don't have carte blanche to do whatever they want; there is still a very thorough
process in place for any activities that any of the irrigation districts want to
undertake. It's just that instead of having to have both the County and the state
force them to go through the same process, it will just be a state process. I hope
everybody is clear on that.
I also want to thank staff and our Planning Commission for all their hard work
on this issue.
- End of Excerpt -
No further action was taken by the Commissioners in this meeting.
Chair Tom De Wolf closed the meeting at 10:40 a.m.
Excerpt of Work Session Minutes Page 5 of 6 Pages
Monday, December 10, 2001
Chair Tom De Wolf closed the meeting at 10: 40 a. m.
DATED this 10th Day of December 2001 for the Deschutes County Board of
Commissioners.
ATTEST:
TMqk4iTAI&�—
Recording Secretary
Tom DeWolf, Chair
.007 �5
D nnis R. Luke, Commissioner
117,.,11w ., 4
Mich el . Daly, Co missioner
Attachments:
Exhibit A - A letter from Gary and Roxanne DeJarnatt, challenging Commissioner Luke
regarding a possible conflict of interest.
Exhibit B - A letter from Deschutes County Legal Counsel, responding to the letter challenging
Commissioner Luke's possible conflict of interest.
Exhibit C - Chair DeWolf's statement in support of the adoption of Ordinances No. 2001-038
and 2001-039.
Excerpt of Work Session Minutes Page 6 of 6 Pages
Monday, December 10, 2001
December 4, 2001
Deschutes County Board of Commissioners
1130 NW Harriman Street
Bend, Oregon 97701
Dear Commissioners,
We are concerned and question whether or not there is a conflict of interest for
Commissioner Dennis Luke to be a member of the Upper Deschutes Watershed
Council and to vote on the Amendment to Title 18.
Sncere
Gary DeJarnatt
Roxanne DeJarnatt
63885 North Hwy 97
Bend, Oregon 97701
Phone 541-382-4192
DESCHUTES COUNTY LEGAL COUNSEL
LAURIE E. CRAGHEAD WExt. 6593
Assistant Legal Counsel
TO: Commissioner Luke DATE: December 19, 2001
RE: Alleged conflict of interest raised in
December 4, 2001 letter from Gary and
Roxanne DeJarnatt
FILE NO.:
This memo is in response to your request for an opinion from the Legal Counsel
Department regarding a letter you received dated December 4, 2001 from Gary and
Roxanne DeJarnatt. The letter expresses the DeJarnatts' concern that a conflict of
interest exists between your membership on the Upper Deschutes Watershed Council
("Council") and your role as a County decision maker in relation to particular
amendments to Titles 18 and 23. These amendments would remove the requirement
for irrigation districts of applying to the County for a conditional use permit to pipe their
canals and defer the wetlands protection to the Oregon Division of State Lands. The
amendments would also create an inventory of non-significant aggregate resources and
allow the irrigation districts to sell the earth materials dredged from the canals during
maintenance and excavated during the creation of reservoirs.
First, the letter does not state with any specificity what conflict the DeJarnatts believe
exists between your membership on the Council and on the Board of County
Commissioners ("Board"). Thus, I am not able to address any specific concern.
In general, however, ORS 244.020 defines an actual conflict of interest as
any action or any decision or recommendation by a person acting in a
capacity as a public official, the effect of which would be to the private
pecuniary benefit or detriment of the person or the person's relative or any
business with which the person or a relative of the person is associated
unless the pecuniary benefit or detriment arises out of circumstances
described in subsection (7) of this section.
Subsection (7) then defines a potential conflict of interest:
any action or any decision or recommendation by a person acting in a
capacity as a public official, the effect of which could be to the private
pecuniary benefit or detriment of the person or the person's relative, or a
business with which the person or the person's relative is associated,
unless the pecuniary benefit or detriment arises out of the following:
& jct&� 0 , pa, /
Commissioner Luke
December 4, 2001
Page 2
(a) An interest or membership in a particular business, industry,
occupation or other class required by law as a prerequisite to the holding
by the person of the office or position.
(b) Any action in the person's official capacity which would affect to the
same degree a class consisting of all inhabitants of the state, or a smaller
class consisting of an industry, occupation or other group including one of
which or in which the person, or the person's relative or business with
which the person or the person's relative is associated, is a member or is
engaged. The commission may by rule limit the minimum size of or
otherwise establish criteria for or identify the smaller classes that qualify
under this exception.
(c) Membership in or membership on the board of directors of a nonprofit
corporation that is tax-exempt under section 501(c) of the Internal
Revenue Code.
Unlike a quasi-judicial hearing on a particular land use application, when hearing and
deciding on ordinance amendments, you are acting in a quasi -legislative capacity.
Legislators all have biases of some sort and probably engage in official actions,
decisions or recommendations that benefit the particular industries or interests of the
legislators. Conflicts arise when the public official or the official's relatives or business
gain personal pecuniary benefit or the public official causes a private pecuniary
detriment to another.
As a County Commissioner hearing these ordinance amendments you are not engaged
in any action, decision or recommendation that will result in a private pecuniary benefit
or detriment to you, your relatives or your business. Thus, you have no actual conflict of
interest. Even if you were to receive a private pecuniary interest, your decision on the
amendments would not create a potential conflict of interest because, I assume, the
Watershed Council is a 503(c) tax-exempt, nonprofit corporation.
Further, your actions on legislative amendments are not governed by the "Code of
ethics" in ORS 244.040 unless you are using your official capacity for personal financial
gain or loss, to solicit honoraria or future employment, to receive gifts in excess of $100
or to represent a client for a fee before the governing body of which you are a member.
These amendments provide none of these personal gains to you or any of the County
Commissioners or your relatives or businesses.
Regarding Ordinance 2001-038 and 2001-039
(Operation, maintenance, piping or canals; and Irrigation District Activities)
December 10, 2001
Tom DeWolf, Deschutes County Commissioner
I've spent a great deal of time studying the various aspects of this proposal. I
respect the desires of homeowners who live along canals to maintain the water feature
running through their property. Based on the testimony I have received, and further
research by our legal counsel, nothing we do today will affect the easement agreements
between irrigation districts and property owners. That is a separate issue that this ruling
does not impact. And this is a very important point that I hope people will understand: If
both these ordinances (related to both piping and excavation) are adopted today, it does
not change the relationship between the districts and the property owners. The
easements, and what can be done within them, are still an issue between the districts
and the property owners.
What this ordinance does do is remove one layer of government control over a
land use process. It streamlines the process without taking away the rights of private
property owners. There are many miles of canals that can be piped where the underlying
property owners do not object to the piping of canals. I want to make it easier for the
Districts to do so where they can.
The distribution of water by the irrigation districts is to support agriculture. That
has been the case in Central Oregon for over 100 years. According to Gail Achterman,
Director of the Deschutes Resources Conservancy, the flows necessary to restore the
Deschutes River "can be obtained through water conservation—lining and piping the
leaking canals and laterals."
I believe it is my duty to do my best to be a wise steward of our resources.
Through mitigation efforts such as piping of canals, which, according to testimony we've
received will be done through the cooperative efforts of irrigation districts and property
owners, we will see (according to Ms. Achterman) "restored streamflows in the Middle
Deschutes, Squaw Creek, Tumalo Creek and the Crooked River. River quality standards
will improve, fish habitats will be restored."
I agree with the manager of Squaw Creek Irrigation District who said, "If we
make the right thing to do hard and the wrong thing easy, then anyone could start buying
farmland and stripping the water off to mitigate future ground water withdrawals. As a
result all of the wildlife that has benefited and flourished because of irrigated farmland
will start to disappear as the water is removed. The green open space that has been
protected by the irrigation community will start to disappear in order to meet city growth
demands."
I will vote to adopt these two ordinances.
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