County council clarifies commenting rules on Cherry Point terminal

Published on Wed, May 23, 2012 by Jeremy Schwartz

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Members of the public with opinions on the proposed Gateway Pacific Terminal should avoid commenting at Whatcom County Council meeting open sessions, the council’s attorney has advised.

County prosecutor Karen Frakes has issued an opinion that public comments on the $600 million Gateway Pacific Terminal proposed for the Cherry Point area just south of Birch Bay ought not to be accepted during the open session period of county council meetings. The open session is reserved for public comment on nearly any topic, barring topics already scheduled for a public hearing during the same meeting.

Frakes said verbal comments on the terminal should be be reserved for the formal public hearings yet to be held on the project. This will allow the county council members, when deciding on the permits for the terminal project, to have all the public comments recorded and available for their review. County council members are accepting written comments on the terminal, though council members will wait to review those until the formal hearings begin.

The Whatcom County Council will be acting in a quasi-judicial capacity when deciding on the permits for the Gateway Pacific Terminal.

Frakes said she fears accepting comments on the terminal outside of a formal public hearing is a violation of state law; specifically the state Appearance of Fairness doctrine. Frakes considers comment received during the council’s open session as “ex parte communication,” which is defined as “one-sided communication between a decision-maker and the proponent or opponent of a particular proposal which takes place outside of the formal hearing process on a quasi-judicial matter.” The Appearance of Fairness doctrine prohibits ex parte communications from the quasi-judicial hearing process.

County council chair Kathy Kershner first addressed this issue at the April 24 county council meeting after a member of the public asked about commenting on the Gateway Pacific Terminal during the open session. Frakes initially told Kershner open session terminal comments should not be allowed, drawing disagreement from county council members Barbara Brenner and Ken Mann.

After further research, however, Brenner has come to agree with Frakes’ decision. To Brenner, the state law has clear prohibitions against open session comment on proposals with pending hearings, which Brenner feels describes the Gateway Pacific Terminal project. Brenner agrees that council members could be unfairly biased by comments offered during open session.

“Wether you want to absorb it or not, it will be absorbed,” Brenner said.

Brenner said she wants to assure the public, though, that the time will come for formal comment on the terminal project. She said county council members can take as long as they want deciding on the terminal’s permit applications and can schedule multiple public hearings.

“It won’t be over until we say it’s over,” Brenner said.

Mann shared Brenner’s views on the importance of the public commenting in the correct venue. He said he’s conflicted about the open session comment issue, but thinks it’s important to set up the proper channels for commenting on the project now before it gets farther down the road.

“In general, I’m very protective of the open sessions because that is the public’s opportunity to come and talk with us,” Mann said. “The Gateway Pacific Terminal will get its hearing. It’ll get its chance for sure.”