City staff appear to be undermining Salem City Council policies

A seemingly insignificant item on the July 13 City Council meeting agenda is a window into a really important question: are City of Salem staff undermining City Council priorities through shadowy, if not sleazy, administrative schemes? It sure seems so.

Best undermining cartoon I could find.
Substitute city staff for tunnel digger and City Council for people standing on top.

On June 18 I wrote a blog post called "Shady stuff associated with Salem City Council agenda item." The agenda item was postponed, and a hearing on the appeal by E.M. Easterly of the city's purchase of a house at 298 Taybin Road NW was scheduled for next Monday's council meeting.

Easterly is one of those unsung heroes who cast light on dubious actions by government officials that otherwise would go unnoticed. He has dug deep into the geeky details of the Taybin Road purchase, forcing city staff to defend what may turn out to be indefensible.

With the passage of three weeks, the shadiness of the house purchase has gotten even darker. Here's four perspectives on this issue that provide a good overview of the various levels of concern the City Council should have about what city staff have done.

First, I got these thoughts today from a fellow citizen activist who prefers to remain anonymous. This is the highest level of concern -- whether city staff are deliberately undermining City Council policies regarding the construction of Marine Drive in West Salem.

A Race Between the City Council and the City Administration -- Operate in a Parallel Universe

 

Institutional resistance is common when new leadership takes over an organization, but what the Salem City Council faces with the current City management could be characterized as indifference or complete disregard. It is one thing for the Council to set policy, but it is another thing for management to interpret that policy as it sees fit.

 

Unless there is accountability, future City Council votes may be meaningless.

 

Since June 10, 2019 when the City Council voted to use $3.6 million to route a future City street called Marine Drive through one of two alignments, the City management has made more progress on the alignment that was not approved by the City Council. Here is the status update on each route.

 

Percent Surveyed --  The City has recently surveyed part of the alignment that the City Council voted against.

Percent Appraised -- The City has paid for appraisal reports on property the City voted against buying.

Percent Purchased -- The only property actually purchased so far is for the "wrong" alignment and is the subject of the appeal hearing on Monday. The City Council has approved three agreements to buy right-of-way, but none have closed other than along the 'wrong" alignment.

Houses Displaced -- City Administration 1 of 6 and Council zero of two.

Cost per SF -- City Council has approved spending no more than $5.10 per square foot on the Council alignment and City Administration paid over $8 (I will confirm exact amount) per square foot on their alignment.

 

It is a race between the unelected City administration and the elected City Council to purchase their own version of Marine Drive. As of the middle of July 2020 and 13 months into the race, the City administration is winning.

 

But how can the City bureaucrats be buying property for a street that is not supported by a majority of the City Council, when the City Council has the "power of the purse"?  The answer so far is that City management use another source of money and justify the purchase for a yet-to-be-identified other purpose related to stormwater.

 

The reason this is all coming to a head in front of the City Council on Monday, July 13, is because the City administration had to be "creative" in finding a source of money and a citizen activist, E.M. Easterly, is using state law to get the attention of the City Council in an appeal hearing to stop the City from using a dedicated funding source that might be inappropriate.  

 

Second, here's public testimony submitted by Mark Wigg on the Taybin Road house purchase appeal.

Dear Mayor and City Council,

The purchase of this property raises many questions that are not addressed in the staff report of June 2, 2020.

Staff learned of a development planned for this property in 2017 when it was owned by Charlotte Wilson, who was 74 years old at the time. Did Ms. Wilson submit plans for development to the city? The City hears many rumors of developments that do not proceed beyond rumor. What record does the City have that a development was imminent?

(1) In March of 2019, Ms. Wilson died. If the City was worried about a development on the property, why didn’t the City negotiate with the executor of the estate to obtain the property? The property sold in May of 2019 for $199,500. 

(2) The City agreed to purchase the property in October, 2019 for $401,765. Where is the City’s appraisal for the property? Did the City consider using condemnation to acquire the property for less than this amount? The City agreed to pay twice the purchase price of the property less than six months after it was purchased by JDV Investments.  Some people may think this deal smells a little fishy.

(3) The Staff Report states that the purchase was needed for immediate use for stormwater detention and stream bank conservation. Where are the City’s plans for making this a stormwater detention facility? How does the City know that this is the best property for a stormwater detention facility if no plans for the facility have been developed? The city could have required any development of the property to protect the streambank and slough?

(4) Who specifically at the City negotiated the price and determined the need to purchase this property?

(5) When purchasing right of way for Marine Drive north of Cameo, how often did the City pay over 200% of appraised or recent sales price? If 200% over appraisal is the new standard for property acquisition, the City should let everyone know.

The City should not be spending money foolishly. This purchase was not needed. The City Manager needs to follow up on this serious error in judgment by making the property acquisition process based less on whim and rumor and more on facts. This type of transaction makes people think that the City favors some people over others and may be corrupt.

Mark Wigg

UPDATE: It looks even more like City of Salem staff, in the person of Glenn Davis, the city's chief development engineer, are stonewalling attempts to find out what happened with the highly suspicious Taybin Road house purchase. Here's screenshots of an email exchange between E.M. Easterly and Glenn Davis. Easterly wants answers to pertinent questions. Davis says, in effect, get lost.

Third, here's public testimony on the appeal submitted by Linda Bierly. "SDC" refers to System Development Charges.

Mayor Bennett and Councilors:

Thank you for the opportunity to comment on Agenda Item 4.a, the Public Hearing on Appeal of System Development Charge Expenditure.

I support Mr. Easterly's appeal of the use of Stormwater System Development Charge (SDC) funds for the purchase of real property at 298 Taybin Road NW.

Public works staff makes the argument that this property was purchased for stormwater detention and streambank conservation. If this is true, project details have yet to be provided. This purchase is not identified in the 309 list of stormwater projects and the $400,000 price tag exceeds the 5% contingency allowance for small projects in the West Bank. 

The staff report also states "possible future use for Marine Drive NW construction."  

It is my understanding that City Council has rejected routing the future Marine Drive from Glen Creek Road NW to Cameo Street NW. Rather, Council has supported a more direct (and much more cost effective) route for the future Marine Drive utilizing the existing 5th Avenue NW to connect to Marine Drive at the Cameo St. NW / 5th Street NW intersection, thereby sparing Wallace Marine Park, Pioneer Village, and Willamette Slough the environmental, noise, and safety impacts that road construction and the road itself would inevitably bring.

I hope you will also look at the context of this transaction that appears to have cost the City far more money that it should have, was justified by vague and undefined stormwater plans and, inexplicably, includes the possibility of funding a defunct transportation project with Stormwater SDC monies. If the construction of Marine Drive through this property somehow materialized, the Stormwater SDC fund was to have been reimbursed with Transportation SDCs. 

Please support Mr. Easterly's appeal. It is to the public's advantage that transactions of this nature receive far greater public scrutiny than staff provided. It is to the public's advantage that the entire Stormwater SDC process and use of this fund is more transparent.  

Currently, it appears to be far too easy to hide motive and cost in bureaucratic legalese and without folks like Mr. Easterly calling attention to process, to simply slip an extra $400,000.00 into budgetary business as usual.  

Linda Bierly
Ward 8

Fourth, and lastly, here's a summary of E.M. Easterly's appeal sent to me by Easterly.

Executive Summary of Salem Stormwater SDC  Expenditure Appeal

• This appeal addresses the inaccurate policy assumptions and fuzzy procedural practices of Salem City staff seeking to use “unspecified” Stormwater SDC moneys to purchase land without actually affirming that the purchase complied with the Salem Stormwater Master Plan and State statutes. The recommendation and initial generalizations are described by Easterly as an abuse of staff discretion. See Easterly Document #7.
• November 2019: City of Salem staff recommended the purchase of land along the edge of Wallace Marine Park in West Salem with Salem Stormwater SDC funds.
• The Salem City Council authorized the land purchase.
• March 2020: E.M. Easterly reviewed the above staff purchase recommendation against the 2000 Salem Stormwater Master Plan. Easterly learned:
• (a) the recommended land purchase was not included in the stormwater project list for the West Bank basin,
• (b) the land purchase was not included in the 2019-2020 Stormwater SDC expenditure budget, and
• (c) staff claimed mid fiscal year Stormwater SDC “unspecified” moneys were an eligible expenditure resources and expendable without Council budget modification. 
• Easterly challenged the staff claim and asked for historical evidence of prior Council authorizations of  mid-year expenditure of Stormwater SDC funds on non-budgeted projects.
• May 2020: City Attorney Atchison identified the 2000 Salem Stormwater Master Plan 5% pipes and ditches conveyance allowance as the actual source of the SDC funds.  
• Easterly challenged the Atchison claim on multiple levels. 
• (a) The total West Bank Basin 5% conveyance allowance allocation was less than the land purchase price. 
• (b) The pipes and ditches project description in the 2000 Salem Stormwater Master Plan provided no evidence that a land purchase and dwelling removal qualified.
• (c) Questions were raised seeking evidence to support whether the Stormwater SDC expenditure met the requirements of the Stormwater Master Plan and State statutes. 
• June 2020: Staff issued a report to Council declaring the Stormwater SDC expenditure “... is consistent with the allowance for small projects …” by declaring the 5% allowance for small projects was system wide rather than a basin by basin allocation.  The Easterly Document #4 disputes that interpretation and raises additional questions staff has never answered.  

Comments

[Lora Meisner]

Finally someone uncovering what's been going on for years especially in the public works department under Peter Fernandez and even before him. The city council needs to "listen" to what city staff says, then politely tell them to redo whatever their reporting on, maybe then we'll get to the truth. City staff is expert at ignoring the rules and ordinances when it comes to development. PacTrust/Costco is a perfect example among many others. We have a city staff that's been co-opted by the development community.