The following is a letter to the editor from Scott Lange. Readers may remember Lange as the victor in a 20 year lawsuit against Clallam County for a violation of a Land Use Act and later a violations of the Public Records Act. All of his legal contentions are found to be correct by local courts. Lange graciously made a generous settlement with the county during mediation saving the county a potential multi-million dollar judgment oh the Public Records Act violations.
Now Lange is about to reopen that case stating he was denied responsive records even as he was in mediation with the county on the county’s violation of the Public Records Act. We’ll let him tell the story himself:
Dear Mr. Wilson;
Some events occurred during last week that I wanted to make you and the citizens of Clallam County aware of.
Following the public disclosures by Selinda Barkhuis earlier this year I became very concerned that the County had failed to act in good faith in resolving the two litigated matters I was engaged in. Ms. Barkhuis’ public statements and the Nissen affidavit she released on 4/21/2017 confirmed the County’s violation of multiple elements of the Washington Public Records Act and made clear that the County’s Prosecuting Attorney had also violated litigation discovery rules by withholding critical records from discovery prior to the mediation session it requested in May of last year. At issue are a series of documents the County suppressed that made clear Ms. Barkhuis had advised the County of the thousands of pages of silently withheld records back in 2013 when my PRA suit was first filed. As you may recall, the County’s “discovery” of these public records in early 2016 in response to a public records request is what prompted the County to seek a mediated settlement.
A settlement agreement is a contract. Contracts formed on the basis of misrepresentation and fraud can be rescinded and nullified. The recent public and sworn statements made by Selinda Barkhuis confirm that the County willfully and unlawfully withheld material information from me to undermine my negotiating position in the settlement mediation. While the County was aware all along that it had knowingly violated the Public Records Act, it asserted during settlement negotiations that it had committed no violations. Of course, had the County complied with PRA and litigation discovery rules the County’s non-compliance would have been obvious.
I recently advised the County that I was considering rescission of the settlement agreement on the basis of misrepresentation and fraud. I was not “made whole” in the settlement agreement. After incurring $264,000 in legal fees to successfully establish all legal violations I had asserted against the County, I received only $210,000 in compensation and had to sell 400 feet of shoreline property on Clallam Bay to the County. In March I advised the County that in exchange for the unreimbursed $54,000 in legal fees incurred I would forego legal action to rescind the settlement agreement and agree to lay all matters to rest.
In response I received a letter from the Prosecuting Attorney’s Office dated March 29, 2017. That letter attempted to discourage me from pursuing rescission through a lengthy chronology of the County’s purported compliance with PRA and discovery compliance. According to the PAO, no fraud could be asserted because the County released to my counsel on July 6, 2016, in a benign email transmission, three 2013 emails between Selinda Barkhuis and Brian Wendt. These emails confirmed that Ms. Barkhuis had informed the County of the records in the basement storage vault well before my PRA lawsuit was filed. Mr. Wendt’s Mar 29, 2017 letter attempts to explain away the fact the County had more than sufficient notice in 2013 that the thousands of pages of records were in existence.
Mr. Wendt could not have known, of course, that Ms. Barkhuis would contradict his claims of inadvertent oversight with her Nissen affidavit released April 21, 2017. Not only does Ms. Barkhuis uncover Mr. Wendt’s multiple prevarications, she disclosed additional records that further confirmed the County’s bad faith and willful non-compliance with applicable laws. In his letter, Mr. Wendt states “As your request (dated 2/26/2016) would reveal, Clallam County failed to conduct a reasonable search in connection with the processing of PRA 13-003. This systematic failure potentially exposed Clallam County to significant liability. This is why the parties agreed to explore mediation, which might avoid unnecessary litigation and expense.”
The only problem, however, is that up to and during the mediation the County vociferously denied that it had violated the Public Records Act, providing numerous excuses and rationalizations for its conduct, asserting all along that no violations had occurred at all. Conveniently for the County, the withholding of records from release prior to the mediation session assured that I would be negotiating in the dark completely unaware of the extent of the County’s unlawful and dishonest manipulation of the public record. But for the integrity and courage of Selinda Barkhuis, I would to this day be unaware of the County’s manipulations of the facts and the law.
Let me expound for a moment on Mr. Wendt’s comments about “unnecessary litigation and expense”. It took me over 10 years of unnecessary litigation and expense to force the County to acknowledge the multiple land use violations at the Cebelak property. The County had sufficient factual evidence in 2007 to conclude the Cebelak developments were in violation of law, with all permits issued invalid. Had the County simply acknowledged the official record, and required the Cebelaks to comply with the same laws we are all required to abide by, my lawsuits would have been avoided. It is important to citizens to know that the Cebelaks could have applied for and obtained variances and permits that would have legalized most of their developments. The structures didn’t have to be destroyed. But instead, the County chose to ignore my valid land use complaints, allowing the Cebelaks to rebuild and expand a clearly illegal bulkhead following the December 2006 storm. I had every right to object to what the Cebelaks had done, and I followed the proper legal process.
There is one obvious reason why the County refused to respond to my valid land use complaint – it knows that perhaps thousands of similar situations exist throughout the County – thousands of developments in violation of law that can still be cited and enforced. If they responded to my complaint, the County would face a barrage of similar valid land use challenges from other aggrieved residents who had been told by the County they had no right to challenge similar illegal development. In challenging the Cebelaks, I found an effective way around the Land Use Petition Act and its ironclad 21 day barrier to the rights of aggrieved landowners. The County couldn’t allow upstarts like me to force them to comply with the law and wipe out the special privilege it had been dispensing under cover of the Land Use Petition Act. So it simply stonewalled me for 10 years. And unlike most people, I didn’t give up.
The public should know that the May 2016 mediation session was communicated as a session to resolve the Public Records Act violations. They should also know nearly one year earlier I had met with newly elected Prosecuting Attorney Mark Nichols and Deputy Prosecuting Attorney Kristina Nelson-Gross to propose a settlement to both litigated matters. During that session, I agreed to drop the Public Records Act litigation in exchange for the County issuing an enforcement order in the Cebelak matter. The County never provided a response to that session until months later when in an email exchange threatening yet another lawsuit I demanded a response. Finally, on December 28, 2015, I received the following response:
“First, please let me apologize for not getting back to you regarding the County’s answer to your “offer”. The County rejects your offer. Based upon our meeting with you, we have no reason to believe that you would entertain anything less than complete capitulation on the matter.”
Less than 4 months later, the County was begging me for mediation and suddenly very concerned about “unnecessary and expensive litigation”.
Getting back to the 2016 mediation session, we were surprised to find when we arrived at the session that the County wanted to resolve both the land use and public records act matters in a single “global” settlement. I was amenable, but should note that we were completely blindsided by this proposal. My land use counsel was not in attendance and we had no opportunity to consider or evaluate a reasonable settlement outcome for both matters. We were prepared to negotiate a settlement to the Public Records Act litigation but during the mediation the County took a strong position that no material violations had occurred. The County’s asserted arguments that no PRA violations had occurred were so compelling my counsel, late in the session, could not forcefully assert that any violations had occurred. In effect, I was on my own at the end of the session and based on the information we had, I took the best deal I thought available to end years of frustrating legal action.
I am writing this to explain to my fellow citizens how disgusted I am with the County’s deceit and manipulation of the law in the matters I’ve endured. Despite being subject to hundreds of thousands of dollars in fines for the multiple code and shoreline act violations committed by the Cebelaks, they were rewarded for their unlawful acts by the County, who willingly paid top market value for their property. They didn’t even have to pay for defending the lawsuits I brought – they made their insurers defend them for their wilfull and illegal code and statute violations. All the while protected by the County who refused to acknowledge the simple fact that the Cebelaks had gamed the system we are all required to comply with. And when I pressed, seeking public records to demonstrate the validity of my claims, the County again suppressed my rights by knowingly withholding public records that would have established the legal points I had asserted.
Several times during my battles with the County I gave serious thought to throwing in the towel. My brother inspired me to keep fighting though. He said “Scott, you have to keep going. Little guys like me can’t fight the system. If they say I can’t develop my land, I can’t fight them. I have to sell to someone with connection who can get his government buddy to look the other way while he gets around the same law I have to comply with. If they say something I did is in violation of code, I have to fix it. You are smart enough, and have the money to fight these slimy bastards. You have to press on for the little guy like me. If you don’t fight this, the people with connections in government will keep getting special deals, and us little guys will keep getting screwed. You have to fight this.”
This fight isn’t over. I’ve retained expensive Seattle counsel to review the merits of rescinding the Public Records Act elements of the settlement deal with Clallam County. My offer to accept $54,000 in final settlement of all matters expired – without a response from the County – on Wednesday, May 10. The following day I consulted with Michele Hubbard, the pre-eminent Public Records Act counsel in this state. She was booked for the coming two months and could not take my case. She recommended William Crittenden as my best option so I initiated an informed dialogue with him on Thursday. It may take a while to determine how strong my case for reopening the dismissed public records act suit is, but I’ve been assured I have plenty of time to do so. In addition to reopening that case, this time around I will be adding claims for the substantial personal effort associated with over a decade of litigation, misrepresentation and fraud, and for violation of my constitutional rights. If the case gets a green light it is going to be expensive pressing forward.
Dale, I hope you will share this message with my fellow citizens. The County will spin my efforts as a greedy attempt to hold them up for more money – as going back on a deal I signed. And the Peninsula Daily News will either avoid any disclosure or accept whatever the County’s dishonest public officials tell them as gospel. I want the public to know just how sleazy and corrupt their County government is. I want the public to know that while I attempted to settle valid disputes in good faith the County was still knowingly cutting corners and manipulating the facts and the law to gain unfair advantage. It’s going to cost me a lot of money, and I’ll be taking on a lot of risk once more taking on city hall but I’m not going to let the County get away with its deceitful conduct without a fight. If people understand what I’m up against, and what I’m really fighting for, I hope they will understand I am fighting for all of us. It comes down to whether the people want their government to win at all cost or to treat people equally and fairly with dignity and respect.