Mayor Bruce Botelho for the first time ever on Wednesday was prepared to ask the Assembly to censure a fellow assemblymember — Assemblywoman Ruth Danner — over lack of an apology for remarks made about the law department “misleading” the Planning Commission.
The issue arose following the April 10 meeting of the Planning Commission, when it approved a gravel crushing operationñ in a D3 zone.
The Assembly met as the Finance Committee first on Wednesday and then convened as the acting body in a special meeting because Danner had requested a legal opinion for what the logic was behind recommending approval of the crusher when the city’s permissible uses doesn’t allow it. No appeal has been filed and the matter isn’t delegated to the Assembly.
Wednesday’s meeting turned into more than a review of the request itself — which some Assembly members also found unorthodox — but also of Danner’s comments to the commission last week.
Botelho said he wanted the Assembly to consider three things with the legal opinion request.
“One is the question of the appropriateness of a request under the circumstances,” Botelho said. “The second: merits of the specific request. Third, I want to talk about its decorum.”
Botelho said the appropriateness of the request was a concern because the process is that once the commission approves a permit it is considered a final decision unless someone files an appeal. If someone files an appeal then it comes to the Assembly for consideration.
“It will at some point be an appealable decision,” Botelho said. “My concern is that if one of us is seeking a legal explication of the advice provided to the commission before an appeals process takes place, that we may have compromised our own ability to hear the case, but we may have intervened at the wrong time. The time for us is if there’s an appeal and brought before us.”
City Attorney John Hartle was asked about the process. Hartle said since there was no notice of reconsideration given by the commission, there is a 20-day appeal period for when it can be appealed to the Assembly. No appeals have yet been filed.
“I don’t think it is an appropriate time for me to give legal advice to the Assembly on that topic,” he said. “It’s not before the Assembly.”
Hartle was asked if he’d find it appropriate once the appellate period was over. Hartle said as an educational matter, sure.
Danner said she was surprised by the issue of asking for a legal opinion since she’s been told since she started serving that she could contact the city attorney about questions of the code. She said he has always been very forthcoming.
“I am struggling to understand them (the codes),” Danner said. “It’s very important to me, above all else, that we follow the rules. I don’t care what the rules say and I don’t care if we need to change them. I didn’t ask for the attorney to tell this entire group the reasoning behind his determination.”
Danner said she also felt that way because Hartle sent an opinion to an individual during the Atlin Drive rezoning. She said he sent an opinion to the person saying he agreed that the Assembly approving the rezoning was illegal, and said that Hartle never issued that opinion to the Assembly.
Hartle said he would need to review correspondence to address that.
Hartle said he receives a “fair amount” of email from Danner and he tries to answer the questions as best he can, however this particular question made him uncomfortable so he did not respond until the meeting. He said he didn’t feel it was appropriate because Danner had testified to the Planning Commission as a private citizen — not as an Assemblymember.
Botelho said the thing about this whole issue he’s most concerned about is “decorum.” When he heard about Danner’s testimony he asked for a verbatim transcript of her testimony that evening.
The part he’s most upset about is when she talks about the crusher and regrets that the law department wasn’t there to discuss it with the commission.
“...You simply can’t have a crusher, so I don’t see a way around that,” she said, according to the transcript. “I’m really disappointed in the Department of Law’s current interpretation. I know they have misled you in the past. I apologize for that.”
Chairman Michael Satre interrupted Danner at that point, objecting to her statement.
“We have legal counsel and to state that we’re getting misled by them, I think, is going a bit too far,” he said in the transcript.
He asked her to stick to the topic at hand. She agreed to “bend” to the commission’s wishes, but added that she felt it was part of the issue at hand.
“I have to express my dismay is probably understating it,” Botelho said. “The statement that the commission had been previously misled by the law department — the very least the choice of word “misleads” clearly, to me, means deceit. That may have been what was intended in the remark, what troubles me most is what that comment does both to demeaning the department in my view, which also has the effect of undermining public confidence in the integrity.”
Botelho said he was shocked by the statement and said he believes the law department has the highest integrity employees working for it.
“We have a very difficult job as Assembly members,” Danner responded. “We are representatives of the public without the benefit of professional knowledge, experience or understanding of how city government works. Staff is by and large excellent. I would agree with you whole heartedly. Most of the work and most of the individuals are above reproach. It is still our responsibility to ask questions, to look deeper. ... I know this is labeled as a discussion on decorum and you are telling me I acted inappropriately. I cannot apologize for what I’ve done. I am trying to represent the people’s interests, and I will not apologize for it.”
Assemblyman Johan Dybdahl said he didn’t want to be included with Danner’s representations and wanted the Assembly to decide on whether the legal request was appropriate.
Assemblyman David Stone said that in his nine years on the board he’d never seen an Assembly member make a legal request like this. He felt it was inappropriate because it went beyond the bounds of clarifying code for an issue before the Assembly or whether it would be appropriate for a member to discuss/vote on a topic they may have a conflict of interest with.
Assemblyman Carlton Smith said he was at that commission meeting and said they operated with “surgical precision” on the topic and believes they addressed it appropriately.
“I have never been in this position before,” Botelho said, struggling to make his statement. “I am going to make a recommendation to the body, which I think is unprecedented. I believe it is appropriate for Ms. Danner to raise questions, to challenge as she sees her (role)... I’m most deeply troubled that you’re not prepared to apologize for the remark about the department misleading a commission. Absent that, I’m going to request the body censure you. I do this very reluctantly. I’ve never confronted this issue in my years in city government. I have to say I am so disturbed about this I don’t see any other course.”
A censure, had it been approved would have given a united rebuke of Danner’s actions.
“I want to make it perfectly clear anything I say here is not to avoid censure,” Danner said. “That doesn’t hurt my feelings. I do want to clarify what I meant when I said I had no intention of apologizing. I have no intention of apologizing for trying to do my job to the best of my ability. If however, I did it inelegantly, if the word that came out of my mouth — and since I see there is a verbatim transcript which I have never seen before, I must have said that. Let me rethink it, what did I really mean.”
Danner said that she isn’t good at public speaking and “misled” may have been an inappropriate word choice.
Botelho said what he’d be looking for is a direct apology to the law department staff. He said for a lawyer or any individual there is great value in their reputation.
“I want to address my apology to city manager and city attorney,” Danner said. “I know the people of Juneau do have a great deal of faith in what you do. By and large we have a great deal to be proud of here. To Mr. Hartle, to the degree that I have said anything that indicates any kind of bad behavior or intentional misleading I truly do apologize. That was not at all what I was trying to convey. I think I should probably stop there.”
The Assembly did not wish to have the law department issue an opinion on the commission’s decision.
Danner asked Botelho why he didn’t mention these issues when they spoke on Sunday. Botelho said he wasn’t going to invest a lot of time in it over the weekend, and said that if he’d have known all the details of what he knows now, he probably would have jumped earlier.
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