This Clallam County legal challenge received skewed coverage in local media, clearly intended to diminish its credibility. Based on unsubstantiated assertions about the lawsuit’s basis, and guesses from an uninvolved third party, the Peninsula Daily News discounted the lawsuit’s claims (see below). We will look at the facts, at recent court decisions on other mandate challenges, and at the future implications raised by the lawsuit.
—————————————-
A serious challenge by reputable, diverse businesses, brought by a respected attorney.
Six Clallam County businesses have sued Clallam County and Dr. Allison Berry, Public Health Officer for Clallam and Jefferson Counties, to invalidate her order requiring all persons entering bars and restaurants to provide proof that they are “fully vaccinated” against COVID-19. The order applies to Clallam and Jefferson counties. Restaurants and bars not complying with her order could suffer loss of their operating permit and referral to the Washington State Department of Labor for additional enforcement. “Full vaccination” is defined in Berry’s order as “all the required doses of a vaccine for COVID-19 (e.g., two doses of the Moderna or Pfizer-BioNTech vaccines or one dose of the Johnson & Johnson vaccine.) The definition has not yet been expanded to require proof of booster shots.
The lawsuit (full copy at this link) was filed November 24, 2021 by Sequim attorney William Payne on behalf of Jose’s Famous Salsa, The Oasis Bar & Grill, The Sunshine Grill and Blondies Plate, all of Sequim; Kokopelli Grill/Coyote BBQ Pub of Port Angeles; and The Blackberry Cafe of Joyce. The owners and operators of the restaurants are diverse ethnically and politically. They cannot be branded under one ideological label. Payne is a highly respected attorney, currently serving as Prosecuting Attorney for the Port Gamble* S’Klallam Tribe, formerly as Clallam County Prosecutor and Clallam County Prosecuting Attorney, and Assistant Attorney General for the State of Washington.
The lawsuit challenges Berry’s order on constitutional grounds. It seeks, first, to have the order declared an infringement of a fundamental right, “the freedom to inherit, purchase, lease, sell, hold, and convey real and personal property, and therefore a violation of equal protection of the law.” Were the court to conclude that a fundamental right is at issue, the order must then survive “strict scrutiny.” Defendants would have the burden of proving that the order is necessary to serve a compelling state interest, and the least restrictive means possible to serve that compelling state interest. As an alternate cause of action, the suit claims that the order is “arbitrary and capricious.” Lastly, in a claim that implicates both the other arguments, the suit alleges that the order is “not narrowly tailored.”
Jefferson and Clallam Counties stand almost alone in the state of Washington, indeed across the nation, in requiring restaurants and bars to demand patrons produce proof of “full” vaccination in order to obtain service inside. King Countyrequires proof of vaccination, but also permits entry with proof of a negative COVID test. This author, as reported previously, has visited nine states since Berry issued her order and entered bars and restaurants without any requirement of (a) showing proof of vaccination or (b) even being required to wear a face mask. See, “Travels Outside Washington State Should Shake Faith in Mask Mandates.” Florida, which for most of the pandemic has imposed no mask or vaccine mandates, continues to demonstrate the lowest or one of the very lowest per-capita COVID infection rates in the nation. Florida’s per capita rate of 7 is lower than that of Washington state, and ten to fifteen times lower than Jefferson and Clallam Counties, which have per capita rates of 65.2 and 104.2, respectively.
If the court agrees with plaintiffs that the proof-of-vaccine mandate impacts a fundamental right, they are almost certain of winning. Few governmental actions survive strict scrutiny. There is almost always a lesser restrictive alternative. In this author’s opinion, however, it is far from certain that the court will reach this conclusion. Business regulations are usually judged under the “reasonableness” standard.
While it can be demonstrated quite clearly that Dr. Berry’s mandate is arbitrary and capricious, the court is in fairly uncharted territory on this argument. Rarely have the emergency powers of a public health officer been reviewed by Washington courts. The authorizing statutes do not contain an “arbitrary and capricious” or “not narrowly tailored” standard that would invalidate the public health officer’s actions. The cost of litigating that argument thoroughly will involve considerable discovery and scientific and medical expert witness testimony. While many states, large employers, and business and employee trade groups have the resources to fund their frequently successful challenges to federal, state and municipal mandates, the restaurants and bars in this case may not enjoy similar deep pockets. From discussions with two of the businesses, it is clear they have sustained severe economic losses, further weakening their ability to take on county government.
If they can get to discovery, they will be able to force Dr. Berry to defend her order on specific medical and scientific grounds. They will be able to uncover any inaccuracies or exaggerations. They will also have their own experts analyze and rebut Dr. Berry’s opinions.
The federal judges that have struck down vaccine mandates and other COVID restrictions enjoy lifetime tenure. Our local judges are elected. Even if plaintiffs prevail here, the decision could ultimately be in the hands of the Washington Supreme Court. That body was one vote shy of releasing the Green River Killer and other violent men and women in an hysterical overreaction to the early COVID panic.
The implications of this lawsuit extend far beyond the limits of the current COVID controversies. Can a public health officer, or governor, vest in themselves unlimited and unreviewable powers by declaring an “emergency”? The Jefferson County Board of Health has declared that “systemic racism” is a public health emergency. Could the public health officer begin issuing unreviewable orders under the authority of that declaration, for instance, by requiring everyone to undergo indoctrination in critical race theory? Could she mandate racial preferences in the delivery of public and private services? Berry is inclined to believe in a “climate change” crisis. Could she declare a climate emergency, and ban gasoline-powered transportation or the burning of wood and fossil fuels for heat? Could she close businesses to reduce communities’ “carbon footprint”?
It will all come down to whether the court will accept being a rubberstamp and giving Dr. Berry complete deference in every aspect of her decision-making. But a court that will not jettison its role at mention of the word “emergency” can find good cause for a hard look into the justification for Dr. Berry’s edicts. There are very good reasons why extremely few jurisdictions have gone as far as she has in curtailing personal liberties and economic freedoms.
COVID Mandates Being Halted by Federal Courts
President Biden’s sweeping employer, federal contractor and healthcare worker vaccine mandates have all been blocked by federal courts.
The Fifth Circuit Court of Appeals halted the nationwide vaccine mandate issued by the Occupational Health and Safety Administration. The Sixth Circuit dealt a procedural blow to the Biden Administration’s effort to, in lay terms, get around the Fifth Circuit ruling. A U.S. District Court in Georgia issued a nationwide injunction against enforcement of the Administration’s vaccine mandate for federal contractors. A Kentucky U.S. District Court had previously enjoined the mandate in the states of Kentucky, Tennessee, and Ohio.
“The Court acknowledges the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe. However, even in time of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. [The government’s] strong interest in combating the spread of [COVID-19]… does not permit the government to ‘act unlawfully even in the pursuit of desirable ends.’”
– U.S. District Judge R. Stan Baker, Georgia v. Biden
Two decisions delivered since the Clallam suit was filed could help local restaurants and bars. The most significant, perhaps, was the recent ruling in a suit filed by ten states against the vaccination mandate imposed by Center for Medicare and Medicaid Services (“CMS”) on all healthcare facilities in the country. The injunction by the United States District Court for the Eastern District of Missouri was filed November 29, 2021, and blocked the vaccination mandate in the ten states that sought relief: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. This decision was released six days after the restaurants and bars filed their suit. A full copy may be read at this link.
Hot on the heels of a regional defeat for the Biden Administration, in Louisiana v. Becerra, a U.S. District Court in Louisiana issued a nationwide injunction against the vaccine mandate for healthcare workers.
These two district court decisions show that “arbitrary and capricious” COVID-related orders cannot withstand legal scrutiny. Even asserted emergency powers are subject to judicial review and must comply with constitutional and statutory laws. As these courts have pointed out, our nation is always facing some crisis, emergency or profound challenge, and will do so again. Courts have and will always have a critical role in measuring the actions of the government against the legal constraints on the exercise of power.
1. “The mandate is arbitrary and capricious because the record is devoid of particularized evidence regarding risk in the targeted facilities.”
So concluded the Missouri U.S. District Court. The CMS had presented no evidence regarding the impacted facilities specifically. It extrapolated data from long term care facilities. Judge Schelp, in very strong wording, repeated in his opinion, pointed out that using the very worst example to justify reaching other facilities, without providing data specific to those facilities was arbitrary and capricious. Long term care facilities have less than 1% of the U.S. population, but accounted for 35% of all COVID deaths during the first year of the pandemic. Of the approximately 656,000 Americans who died while having a COVID diagnosis (not necessarily the primary or direct cause of death), 30% are estimated to have died during a long term care facility stay. Using these grim stats to justify extending the mandate to all health care facilities was not reasonable.
Dr. Berry’s order contains a paragraph providing some factual basis for the exercise of her extraordinary powers, but it is quite vague and unparticularized: “As of August 21, 2021, 495 outbreaks of COVID-19 have been tied traced [sic] to restaurants, and bars in Washington State. Localized transmission of COIVD-19 outbreaks related to restaurants and bars have been documented in Clallam County. Indoor bars and restaurants are known to pose a high risk for COVID-19 transmission as they encourage unmasking of large groups of people indoors.” She did not define “outbreaks.”
Berry’s statement of justification does not state whether documented COVID transmission occurred between patrons and staff, between patrons who dined/drank together, between patrons who were strangers, or among staff. The mandate applies to unvaccinated patrons only, so to be relevant her data should state how many cases were related to unvaccinated patrons transmitting the virus to other patrons and/or staff. If any transmission was caused by vaccinated patrons, she should back those numbers out to avoid any exaggeration. As for restaurants and bars posing a “high risk” of transmission, that assertion is simply laughable. The DOH reports that Washington has seen a total of 780,835 infections or cases. The total number of infections/cases “tied traced” (Berry will have to decide which) is 495, representing a de minimis 0.06% of all infections/cases.
Dr. Allison Berry, Clallam/JeffCo Health Officer
Dr. Berry also does not state how many of those “outbreaks” were symptomatic or resulted in hospitalizations or deaths, if any. She also apparently lumps into her gross number all positive test results. This can be wildly misleading. It all depends on, in lay terms, how many cycles were run on the sample. As explained ably in the articles published here, and the sources cited therein, many of the PCR test results coming back positive are meaningless because of the way the tests were conducted. See Dr. Rob Rennebohm, “The Importance of Knowing the Ct Value at Which SARS-Cov-2 PCR Tests Are Positive,” PTFP, 2/7/21.
Berry’s mandate makes no sense when one thinks about who these patrons are coming to a bar or restaurant. Outside the targeted facility they don’t have to wear a mask. They may have been around each other in a home or other private location and may have driven to the restaurant together in the closed space of a motor vehicle. The whole time they may well have been, and probably were, without face coverings. If there is any transmission risk, it was more serious before they entered the restaurant or bar, and the higher transmission risk resumes once they leave and reenter their vehicle or go to another location together. (This assumes, for the sake of argument, that a mask will prevent transmission). It is arbitrary and capricious to require an eating/drinking establishment to demand proof of full vaccination from individuals who have already been congregating in close quarters without masks and without enforcing a vaccine mandate against each other.
Another huge problem with Berry’s order—one mentioned in the complaint—is that vaccines do not prevent the vaccinated person from transmitting the virus, and do not prevent infection. A vaccinated person can transmit the virus to anyone else.
And, as we know, masks do not prevent transmission or infection.
While the Public Health Officer is entitled to some deference, courts cannot be mere “rubber stamps.” A Public Health Officer’s emergency powers are not intended to be an unchecked, unaccountable, and arbitrary dictatorship.
2. “The mandate is arbitrary and capricious because it rejected alternatives.”
The U.S. District Courts that have found the CMS mandate fatally defective also based their decision on the fact that CMS rejected or ignored the less restrictive, but equally or more effective, alternatives of daily or weekly testing, and also rejected or ignored the scientifically recognized natural immunity of those with a previous COVID infection. “CMS… rejected natural immunity,” Judge Schelp wrote, “despite an intense public debate and a trove of scientific data on the strength and durability of natural immunity from COVID-19—alone and compared to vaccine-induced immunity.”
In his decision, Missouri U.S. District Court Judge Schelp pointed out that the federal government itself has admitted that it “lacks solid evidence” regarding the transmission of COVID by the vaccinated. Relying on Federal data, coming primarily from the Centers for Disease Control, CMS admitted that “the effectiveness of the vaccine[s] to prevent disease transmission by those vaccinated [is] not currently known. This federal agency also admitted that the continued efficacy of the vaccines is “uncertain.”
Berry’s order assumes, without presenting any evidence, that requiring patrons of bars and restaurants to be vaccinated will prevent transmission. But her order offers nothing to justify this critical, fundamental presumption of what is not only an unproven medical fact, but also a presumption contrary to the best medical evidence available. Vaccination does not prevent transmission. As evidence mounts of the vaccinated transmitting COVID, and of the vaccinated themselves becoming infected, the clay feet of her order are becoming more and more exposed to erosion by facts.
3. “The scant evidence shows” that the mandate “placed a rock on one side of the scale and a feather on the other.”
Judge Schelp overturned the federal mandate because it failed to consider countervailing interests and relative harms. The vaccination mandate for all health facilities, he observed, came with substantial and dire consequences for the impacted facilities and patients. The CMS estimated that just in its first year, compliance would cost $1.38 billon, and could result in loss of employees, closing of facilities, and harm to patients denied or delayed treatment and care.
The Clallam County bars and restaurants allege that the arbitrary and capricious and unconstitutional mandate has caused them “irreparable damage and economic harm… including but not limited to lost revenue, lost customers and employees that have resigned due to the mandate.” While their damages must be proven, estimates shared with Port Townsend Free Press start at 20% loss of business just since Berry imposed her proof-of-vaccine mandate.
Berry’s order nowhere addresses the consequence and costs of her mandate. It assumes she has the authority to issue and enforce any order regardless of its economic and other negative impacts, regardless of its de minimis benefits. Weighed against the costs to these restaurants, and possible business failure, is the fact cited by Berry herself, that there have been only 495 instances of COVID “tied traced” or “related” to bars and restaurants since the start of the pandemic. As discussed above, that is an insignificant 0.06% of all infections/cases in the state, and Berry’s own mushy number fails to distinguish between the vaccinated and unvaccinated, staff and patrons, and patrons (vaxxed or not) who were in close, prolonged social contact before entering the establishment.
The legal question will be whether Berry is endowed with absolute, unreasonable and unreviewable power, and whether she can impose orders that cause injury and damage without sufficient justification and weighing of all interests. The statute under which Berry has issued her orders, RCW 70.05.070, states she shall “take such action as is necessary to maintain public health and sanitation; to control and prevent the spread of any dangerous, contagious or infectious diseases, and to take such measures as deemed necessary in order to promote the public health.” Does the latter italicized language mean there are no limits on the actions Berry can take?
Certainly, the state and federal constitutions check Berry’s power. They must, or else a bureaucrat could make herself a dictator under the mantle of protecting public health simply by declaring an emergency. “Emergency” is a legal term that must be defined by a court or else it is an invitation to rampant and unchecked bureaucratic and executive power. The Biden administration attempted to cry “emergency” to escape judicial review and evade the limits on its power. Federal judges have rejected this last resort argument. “Most, if not all laws passed,” Judge Schelp wrote, quoting a 2013 decision from the U.S. Third Circuit Court of Appeals, ‘are designed to eliminate some real or perceived harm.’ But all laws, and all actions by government officials, are reviewable by courts to ensure compliance with constitutional protections and other prohibitions against arbitrary and capricious exercises of power.”
What’s with the Peninsula Daily News?
On December 3, 2021, the Peninsula Daily News ran a story on the lawsuit. The reporter got a quote from someone speculating that the plaintiffs probably had not suffered much from Dr. Berry’s mandate. The source, the executive director of the Port Angeles Chamber of Commerce, admitted he did not know if the restaurants and bars had lost business, but then went on to say that he “sensed” that “they are doing very well.” The rest of his quote was yet another guess about why the plaintiffs had filed the suit.
The PDN reporter apparently never thought to call the plaintiffs or their attorney. We did speak with two of the plaintiffs, and they related that their losses are very substantial, perhaps even crippling to the continued viability of their businesses.
The PDN then took a shot at the lawsuit’s claim about people who have natural immunity because they had undergone a bout of COVID. It stated that people who had previously had COVID are “more than twice as likely to be reinfected,” and provided a link. But the link does not go to any source supporting that assertion. The PDN‘s unsupported claim is directly contradicted by the National Institutes of Health, which has found “lasting immunity” from a previous bout of COVID.
*Correction: The original version misstated the tribe where Payne served as prosecuting attorney.
451 children. 213 families. 75 volunteers. 35 businesses. Originating with the efforts of a Chimacum schools bus driver broken-hearted for kids who received no Christmas gifts, Jefferson County’s Christmas for Children now brings joy to more kids and families than ever before.
In 1973 several children told Janice Schauer, a school bus aide, that they had not received any gifts for Christmas. The following Christmas, out of her own pocket, she bought socks and other modest gifts for the small children on her bus route she knew to be in need. This was the start of “Tri-Area Christmas for Children.”
Schauer’s daughter, Laurie Schauer Liske, and her husband Tony then took up the program. They were followed by their son Tony and his wife Kelly, the third generation of the Schauer/Liske family to spearhead this highly organized, very cost-effective, far-reaching and growing outpouring of Christmas spirit.
Assembly of gifts for children from an earlier year
A similar program to serve needy Port Townsend children folded in 2013 and the Tri-Area Christmas for Children group took up the call, nearly tripling in size the number of children reached. Known now as Christmas for Children, it serves families in Port Townsend, Nordland, Chimacum, Port Hadlock-Irondale-Chimacum (the “Tri-Cities”) and Port Ludlow. The numbers, so far: 451 children in 213 families getting loved on, by 75 volunteers and 35 businesses hosting Giving Trees. You can pick up a tag and fulfill some child’s Christmas wish at the businesses on this list.
Kelly Liske says that kids get more than just the gifts on their wish list. “They also receive toothpaste, floss and toothbrushes donated by local dentists, socks, hats and gloves, candy assembled by a local Girl Scout Troop, and stuffed animals. I would say that the community, together with our financial support, is likely spending over $50,000 each year on this project. Our organization works on a budget of less than $10,000 annually…. We could not do this without the support of the community and their generous giving!”
As explained on the group’s website: “By October 1 of each year, applicants who are seeking gifts for their children fill out an application, which is then submitted to program volunteers to generate “tree tags” for the ‘want’ and ‘need’ for each child. Those tree tags are then distributed throughout Jefferson County to approximately 35 “Tree Hosts” to be placed on “Giving Trees”. The local businesses that accept the tags see that their customers or employees take the tags and then purchase the items requested. The purchased gifts are returned to the Tree Host site by a set date to be picked up by our teams.”
Liske encouraged Port Townsend Free Press to hurry up if we wanted photographs of the giving trees. “The tags go fast,” she said. She was right. The Giving Tree we found at Evergreen Fitness (shown in the feature photo with owner Michelle West) had been picked nearly clean, as members took up the children’s requests by plucking tags from the tree.
Christmas for Children depends on generous contributions from the local Rotary, Elks and Kiwanis groups, as well as financial support from local businesses. The Jefferson County Fair Board is a key partner, making its buildings available for storage, assembly and distribution of the Yuletide haul. Christmas for Children has developed a close relationship with the Marine Corps Toys for Tots program and makes deliveries for them. Says Liske, “Toys for Tots can’t supplement any clothing items or anything really other than toys per their mission and guidelines, so the cash donations that come into [Christmas 4 Children] are used to purchase the items that are considered needs rather than toys (socks, hats, gloves, coats, shoes, clothing, diapers, hygiene items, blankets, car seats, etc.).” Donations may be sent to Christmas for Children 1240 W. Sims Way #286, Port Townsend, WA 98368.
The organization doesn’t want any children overlooked. “Teens always get forgotten,” says Liske. “Most people like to buy toys for little kids, so we have an abundance of items typically for the 0-8 year-old group. The 9-16 year-old group are hard to buy for and we typically are short of donations in this area!”
Christmas for Children will be assembling the gifts and other supplies for needy children at the Fairgrounds on December 17 and 18. Families share the outpouring of the community’s generosity and Christmas spirit on December 19. Christmas doesn’t end December 25. “There are often gift tags that are left over from the Giving Trees that our program must try to fill,” the group’s website states. “That is where it is vital that we receive cash donations throughout the year.”
Port Townsend’s most costly public housing project sits empty. Four and a half years after being floated here from Victoria, B.C., the 1950s building, known as “The Cherry Street project” or “The Carmel House” continues to deteriorate. The doors have never been closed, letting birds and inclement weather inside. Moisture protection for the bare plywood walls has all but peeled away. Rain spouts have fallen off. The stucco is cracking; chunks of it have fallen out. The remains of a homeless camp are still evident where parking and gardens were planned. Inside, city inspectors have “observed multiple hazardous conditions such as holes in walls and floors large enough for a person to fall into.”
City Council avoids the subject of this colossal failure. For fourteen months there has been no public discussion about what to do with a relatively small project (8 modest apartments) that will cost over $3.3 million upon completion, should that day ever come. What was billed as a quick and easy “affordable” housing project has turned, per square foot, into possibly the costliest residential project on the Olympic Peninsula. By contrast, at the same time city council was buying into this boondoggle in 2017, it could have spent less than half the amount the Cherry Street project would eventually gobble up to acquire a 36-bedroom completed, operating apartment complex forty years younger than the Carmel House. As it is, the Cherry Street project, if it is ever completed, could come in at around $700 per square foot.
The city gave valuable land and a lot of money to Homeward Bound Community Land Trust so it could turn this old building into habitable space. In July 2020 Homeward Bound defaulted on its loan from the city. The city had to take the land and building back. The loan was supposed to have been enough to get the old building rehabbed and ready to rent. As a result of the default, city taxpayers are now on the hook for more than $1.4 million in principal and interest on the bond that generated the funds to loan Homeward Bound.
Instead of cutting its losses and selling the land for the best price possible, on September 28, 2020, city council decided to hand everything off to another local nonprofit. The City Manager was instructed to give it debt-free to Bayside Housing. Even with such a sweet deal, Bayside didn’t happen to have on hand the money needed to finish the project. It wanted the three hundred grand left over from the loan, all that had not been spent by Homeward Bound. It also wanted a $500,000 Community Development Block Grant to get going.
The city didn’t offer any financial help. As we reported in June, Bayside asked the county for $1.6 million to fix up the old building and another $200,000 for various related project costs. It still also wanted $300,000 in cash from the city and that $500,000 block grant. Their request for this pile of public monies has not moved forward.
The city must now regret turning its back last October on a $1 million cash offer from Keith and Jean Marzan of Port Townsend. They wanted to bail taxpayers out of this mess and build affordable housing on the site. The Marzans believe they were treated with disrespect, if not contempt, and have no intention of offering their help again.
A New City Council Should End the Long-Running Fiasco
Three individuals responsible for this mess are leaving city council. Michelle Sandoval, Ariel Speser and Pamela Adams voted to authorize spending the funds to buy the building and transport it here back in April 2017. They also voted to float the bond and loan the proceeds to Homeward Bound. In the superficial council discussion on April 24, 2017, when council got the city involved, Sandoval spoke glowingly of the project, and how proud she was that council was spending public funds to import the old building and barge it across the Strait of Juan de Fuca. She wanted the city to throw in even more money than was being discussed.
City Council may wish this meeting would go down the memory hole. They approved the project and committed the city without ever conducting their own inspection of the building, or having seen any kind of construction plan or even a basic pro forma on how this could ever be a viable affordable housing project. The group to which they gave the project, Homeward Bound, did not then exist except on paper. It had no experience with any project of this nature. It had no staff and no funds. The city had to give them a $30,000 “organizational grant” so they could get a board of directors together and set up a website.
Sandoval is an experienced real estate broker. You would think she would have shown the same concern for taxpayers that one hopes she shows clients considering buying an old house. At that critical April 24, 2017 meeting, she spoke at greatest length and most emphatically to persuade the rest of the council to commit the city to the project. She wanted the city to jump on this as “low hanging fruit.” This project had “been a long time coming,” she said. “Bully for us,” she added. “My plea is that we put our skin in the game here [and] show the community we are willing to put our money where our mouth is. This is a great start. I’m really excited about it.” The link to the video of the meeting is here. Sandoval’s comments begin at the 6:51 mark.
“A long time coming”? Then where was the building inspection, the construction plan and estimate, the feasibility study to determine if Homeward Bound could execute the project, renovate the building, rent it at affordable rates and pay the city back? The internal project estimate done by Homeward Bound, revealed in an investigative report here, was condemned by the president of Homeward Bound as “completely bogus.”
This was a pet project of Sandoval’s. Minutes of meetings of the board of directors of Homeward Bound showed Sandoval sometimes in attendance and the meetings being held at her office. A Homeward Bound director reported to fellow board members that Sandoval would give $10,000 to the group. One of Sandoval’s realtors, Paul Rice, in 2019 addressed city council and requested another $1 million. He was speaking as Homeward Bound’s president. [Minutes of Homeward Bound directors and public meetings were once regularly posted on the group’s website, hbclt.org. They are now gone, as is Homeward Bound’s own account of how it fumbled the Cherry Street Project and why it defaulted on the city’s loan. More on this, below.]
Ariel Speser objected to looking into Homeward Bound’s finances and capabilities, as requested by former council member Robert Gray in the May 2018 council meeting that was considering extending the loan to the group. Councilors Amy Howard and David Faber sided with Speser. They “had confidence” in Homeward Bound, which, after a year, had not even moved the old building off its temporary wooden supports onto a stable foundation, had blown its original loan deadlines, and had come nowhere near having the building ready to rent in the fall of 2017, an important representation made to city council when it sought initial funding in April 2017 to bring the building here from Canada.
All city councilors, except for Robert Gray, voted at every opportunity to move forward with the project, give away land worth $600,000, incur a hidden interest subsidy of more than $400,000 and obligate taxpayers to repay a bond that will cost them a total of more than $1.4 million. They voted to extend the loan to Homeward Bound even though, as Gray pointed out, Homeward Bound’s own pro forma showed them going into default in two years! Gray wanted a delay so the city could undertake its own due diligence. He couldn’t get a second for his motion. The link to the May 7, 2018 council business meeting where this debate occurred is available here. Gray’s critique of the project’s finances and his observation that the project, under its own terms, was predicted to go into an early default, begin at the 8:24 mark on the relevant agenda item.
In a separate May 28, 2018 analysis, Port Townsend Free Press reported that Homeward Bound was guaranteed to default under the very terms of its loan agreement with the city. The way the loan was set up, and considering that Homeward Bound would have no income with which to make its first loan repayment—despite a two-year grace period—default was inevitable. Robert Gray and Port Townsend Free Press called it right: Homeward Bound broke its promises and stuck taxpayers with the bill.
Scrubbing History
Homeward Bound wants people to forget it ever had anything to do with the Cherry Street project. They have renamed themselves “Olympic Housing Trust” and scrubbed references to the Cherry Street Project from their website. They have not, though, changed their website’s URL, which remains hbclt.org. The image for their website is still a view outside through windows of the Carmel House. Their board of directors is the same cast, by and large, that was responsible for mishandling the Cherry Street Project. Kate Dean, chair of the Jefferson County Board of County Commissioners, from the very beginning has played a key role in Homeward Bound—creating and training and serving on its board of directors—and continues as a director of the [whitewashed] Olympic Housing Trust.
These folks have good reason to want people to forget their involvement in the Cherry Street project. On the one hand, the city set them up for failure. They had no experience or expertise with anything of this nature. The project never could work. It was unfair to dump such a huge, predestined failure on presumably well-intentioned, but spectacularly unqualified and incapable volunteers. That’s why we once wrote about “The Tragedy of the Cherry Street Project” [PTFP, 12/12/18]. On the other hand, this group was not always straightforward, to put it mildly, in its pursuit of public funds. That’s why we published the report, “Multi-Million Dollar Fraud on Taxpayers: The Cherry Street Project Unmasked” [PTFP, 6/27/20].
A Majority of the New City Council Does Not Own This Debacle
None of the newly elected City Councilors—Ben Thomas, Aislinn Diamanti, and Libby Urner Wennstrom—bear any responsibility for this mess. Council member Monica Mick Hager campaigned against the wastefulness and incompetence of this project when she ran for office in 2019. She has been the lone council member to push for cutting the city’s losses and selling the land and building to the highest bidder.
The other city councilor now serving who did not vote for this disaster is Owen Rowe, who came into office after the damage had been done. He did, however, vote to try to keep the project going by giving it to Bayside Housing. In city hall emails, obtained by Port Townsend Free Press through a public records request, he has complained about our reporting on the Cherry Street project. Yet he has never contacted us to point out anything we got wrong.
The current City Manager, John Mauro, had no hand in launching the project or providing Homeward Bound with a huge loan it could never repay. This is an albatross draped around his shoulders by his predecessor and a city council with different personnel.
It is time for the City of Port Townsend to admit failure, abort the Cherry Street Project, cut its losses and move forward.
The building is worthless and a money pit. As we have reported over the years, the 1950’s building can never be brought up to code and made habitable at any reasonable cost, and the costs continue to mount as construction prices soar and the building ages and falls apart. Have we mentioned the little problem about asbestos and lead contamination? It was a little detail withheld from the city by Homeward Bound until it surfaced inadvertently. We covered it in our report “Multi-Million Dollar Fraud on Taxpayers: The Cherry Street Project Unmasked.”
The land, however, is very valuable: 1.5 acres with utility connections fixed and upgraded at taxpayer cost. The city had valued the property when it gave it to Homeward Bound at $600,000. That was 2017, before a problematic old water line was fixed. In 2020 the Marzans offered $1 million. It may bring an even greater price today.
The empty eyesore of an unusable building remains the stumbling block. The city still has $300,000 from the bond that was not burned up by Homeward Bound. Those funds could pay for crunching the building and removing its remains.
Or the city could try to get someone to buy the building and take it away, just like the city did when it paid to have the Carmel House lifted off its foundation in Victoria, B.C. and barged to Port Townsend. Right. There may be a sucker born every minute, but that doesn’t mean another sucker can be found for this white elephant.
Back in 2018 when the city issued the bond that raised the money to loan to Homeward Bound, it opted to pay a higher interest rate so the bond could be repaid early without any penalty. It actually expected Homeward Bound to come roaring off a huge success with the Cherry Street Project, repay the loan in less than ten years, then charge into its next big affordable housing venture. The cost taxpayers have been and will continue paying for this bit of delusional thinking isn’t cheap: an additional $3,000 annually for a term of 20 years that started in 2018.
Time to get real. Tear the Carmel House down and cut taxpayer losses. Make the land available for housing. Sell it to the highest bidder and use the proceeds to pay off the loan early (no penalty, yay!). Stop wasting tax dollars and maybe do something concrete on the affordable housing crisis.
There Must Be Accountability and Consequences
What if there’s still not enough to pay off the bond? Accountability must be demanded; malfeasance must have consequences. Putting taxpayers into this deal was beyond breach of the fiduciary duty city councilors owe their constituents… it was reckless, gross negligence, and wanton disregard of common sense and prudent business practices.
No due diligence whatsoever was attempted. City council failed to support Robert Gray’s motion to give the city time to conduct its own due diligence because a red warning light was blinking brightly: Homeward Bound’s own numbers showed they couldn’t meet their obligations. Instead, the city council, with the exception of Gray, gladly and blindly accepted hearsay representations from Homeward Bound that a couple of people in banking and construction had looked over their numbers. Nothing in writing from those “experts” was presented to or demanded by city council before giving Homeward Bound a lot of public money. Those experts weren’t even present to take questions.
If directors of a private organization, for-profit or non-profit, had acted as did city council, there’s no doubt they would be facing personal liability.
Those councilors who pushed and voted for this project—Michelle Sandoval, Amy Howard, David Faber, Ariel Speser, Deborah Stinson, and Pamela Adams—should make up any shortfall out of their own pockets. Though legislative immunity presents obstacles, the city should take action to hold them accountable if they don’t act honorably and step up voluntarily.
Michelle Sandoval did say she wanted “to put our skin in the game” and “put our money where our mouth is.”
Sadly, we can predict (a) not one of them will accept personal responsibility and (b) the city will let them off the hook, unlike the taxpayers who have to pay for the damage done by city officials utterly failing their constituents. I am afraid we will be as prescient in this prediction as we were in foreseeing Homeward Bound’s default and the ultimate failure of the Cherry Street Project.
Port Townsend Free Press has been on this story from the beginning. We’ve been the only media to conduct any sort of independent investigation into the city’s largest public housing venture. Unlike our local papers, we’ve done more than reprint press releases and take dictation. You may access all our reports by entering “Cherry Street” in the search box in the upper right. The following sample of reports, based primarily on documentation from city files, provides a fairly compete behind-the-scenes picture of this debacle.
What housing crisis? County Commissioners plan to make it even harder to afford housing in Jefferson County. They intend to increase the property tax levy at the same time that gas, food and all other costs are spiking. Homeowners already struggling to make ends meet will have to pay even more money to the county to keep from losing their homes.
The Commissioners have put taxpayers on notice that they intend to raise the ad valorem tax by 1%, something that has become an annual ritual for them. Raising property taxes makes housing more expensive. It also makes rentals more expensive, as landlords pass along rising costs to tenants.
Back in 2017 the BOCC declared a housing emergency. That emergency has been constantly reaffirmed in commissioner discussions. But the BOCC has never acted as though it took the emergency seriously. It has never taken advantage of the emergency declaration to loosen regulatory and land use restrictions, which drive up the cost and and limit the supply of housing. And every year it continues to add to the cost of housing by raising property taxes.
How bad is our housing affordability crisis? Try finding an affordable rental. Good luck with that. And good luck to the first time home buyer. Young people who grew up in this county have no hope of buying a home here.
The crisis is real and strangling our economy. Employers lose workers, or prospective hires go elsewhere because they can’t afford to live here. We have people with jobs living in their cars, for heaven’s sake, because housing is so insanely expensive. Many members of the creative class, who have made Port Townsend such a special, vibrant place, are leaving because they can’t afford to live here.
Jefferson County is the second most unaffordable county in Washington state, after San Juan County—and nobody gets a house in San Juan County unless they are a millionaire or fortunate to inherit an island property.
Median home prices have jumped 65% in just five years, from $276,600 to $455,900. The minimum wage boost is insignificant when measured against such huge inflation in housing prices. Other incomes in Jefferson County have been almost stagnant.
Rental vacancies range from absolutely nothing to only 1%, meaning that even those with incomes can’t find a place to live.
29% of renters pay 30% and more for housing.
Let’s hope housing activists speak out against the BOCC making housing more expensive for everyone. These painful tax increases hurt the poor, seniors, workers and young people the most. There is nothing “progressive” whatsoever about the BOCC’s property tax increases.
Anybody reading this who lives in Jefferson County knows too well the staggering property tax bills hitting them every year. Very few homeowners who do not have appreciating significant stock portfolios are seeing their incomes rise at the same rate their property tax bills keep going up.
The county is the beneficiary of unprecedented federal largesse. At the October 11, 2021, meeting of the Board of County Commissioners, acting county administrator Mark McCauley, in response to a question from Beth O’Neal, stated that Jefferson County has already received $3.129 million and will receive another $3.129 million in May 2022. Furthermore, the county expects another $4 million over the next two years from Washington State revenue sharing of those federal funds starting in September, 2022.
There is always reason to question how the BOCC is spending the tax money it is already collecting. The same BOCC that again wants to raise taxes on a county still struggling with the economic costs of the COVID lockdowns and mandates, on top of inflation at the highest level in 20 years, found enough extra money to give out $337,000 in bonuses to county workers. Those bonuses were from taxes paid by many people who lost their jobs and saw their businesses close during the lockdowns.
Affordable housing requires affordable property taxes. To keep the cost of housing from continuing to rise, property taxes must be held in check, even reduced. That is a direct and immediate step the BOCC could take to do something to address our housing affordability crisis.
It is time they act on the emergency they declared.
The hearing on raising property taxes yet again will be November 15, 2021. The Commissioners will be protected from facing angry, scared taxpayers as the meeting will be on-line. Written comments may be sent to jeffbocc@co.jefferson.wa.us. Follow instructions in the public notice on how to participate in the Zoom meeting. Click here to read those instructions.
A crisis of faith. Anybody who has recently traveled outside Washington State has good reason to seriously doubt the necessity for the lockdowns and mandates decreed by Governor Inslee and our public health officer. Other states are much freer. Some never locked down. Others required only looser restrictions for a much shorter period of time than we have experienced. Yet those states are doing better. You can feel it and see it in the shops and restaurants, in the museums and churches, in performance halls and on the streets.
I have taken two long trips since our public health officer required vaccine passports to dine out and masks indoors for everyone. One excursion was a 4,600 mile road trip through seven other states. We reached Iowa on a route across Oregon, Idaho, Utah, Wyoming, and Nebraska. After wandering back roads and visiting small towns and villages amid Iowa’s cornfields, we returned on a northerly route through South Dakota, Wyoming again, Montana, Idaho’s panhandle and Washington’s Palouse country.
After leaving Washington, we were required to wear a mask only once, in the Pendleton factory store in Pendleton, Oregon. But the restaurant where we ate in that town told us not to bother.
In Idaho we saw next to no one wearing masks.
In Salt Lake City, Utah, some of the waiters and store clerks wore masks, some did not. Customers dared show their faces. We caught Michael Bublé at the Vivant Arena. His performance had been rescheduled two times since the onset of the pandemic. Admission required proof of vaccination. (I had weighed much of the evidence and studies, including articles on this site, and decided my health needs were best served by getting the Moderna vaccine.) Inside, the sold-out crowd of nearly 20,000 was maskless, as was Bublé. I can’t imagine him delivering Louie Prima’s “Just a Gigolo” through a blue surgical face covering. Some members of his orchestra wore masks—like the piano player—but not, of course, the men blowing saxophones or trombones or his backup singers.
In Wyoming and Nebraska, some employees at truck stops wore masks, as did some travelers. If the station were part of a national chain, the staff usually wore masks, but not at independent businesses. Nobody wore masks in the huge Cabela’s flagship store in Sidney, Nebraska.
Monumental taxidermy exhibit, Cabela’s, Sidney, NE
Mask wearing was entirely voluntary throughout the trip. The vast majority of people we saw chose not to wear masks.
In Dodge City, Iowa, the woman in the featured photo at top haphazardly wore a mask, but only as part of her costume. She was dishing out free cups of mac n’ cheese and mashed potatoes at a gas station, “just to cheer folks up.” That’s Iowa friendly, for you. Iowa really is a cheerful and amiable place. People meet your eye and smile at you on the street, in the stores… everywhere.
It was great to see so many smiling faces again. It’s a shame we had to travel to the center of the country for that pleasure.
The iconic Taylor’s Maid-Rite, Marshalltown, Iowa
For over a week we had seen no signs requiring masks until we were inside the Badlands National Park. At the bottom of a hill in the middle of nowhere sat a diminutive National Park Service tourism center. It announced that federal law required masks. About half the people complied. At Mount Rushmore nobody paid attention to placards repeating President Biden’s mask decree, though some people in masks did pose for photos with the four presidents—maskless—towering behind them. Go figure.
Like its big sky and sprawling landscape, Montana was wide open. We got snowed in for two days in Livingston and holed up in a chain hotel. The staff wore masks, sort of. One of our fellow stranded travelers walked his dog after the blizzard lifted. He was out there alone making tracks in a patch of white and wearing a surgical mask. God is great, beer is good, and people are crazy, so the Billy Currington song goes. Rather than “crazy”, it might be more accurate to say this man was “irrationally terrified.” But that would never work in a country song.
When we reached our hotel in Spokane on the return leg I caught the evil eye from a masked hotel clerk as I passed through the lobby trundling luggage to our room. Right, I’m back in Jay Inslee’s domain. It took me a while to locate the mask I had stuffed somewhere in the van. At least we did not have to pull out our vax passports for the unexpected delight of a dinner of fiery Ethiopian food. Showing our papers in order to dine out would not happen again until we had returned to Jefferson County.
We saw no bodies in the streets along our route. No black crepe over doors. I know that’s overstating how we would measure the success of these states’ measures against COVID. But I paid attention to local news and read nothing about any medical crises.
Jay Inslee points to Idaho as a way of trying to convince people his dictatorial decrees and their costs and impositions are medically necessary to save lives. Yes, Idaho has gone through a challenging period of time as it struggled to maintain the delivery of medical services to everyone. But so did Washington. Starting in March 2020 for several months Governor Inslee flat out prohibited any medical procedures except treating COVID, addressing immediate threats to life (e.g., gun shot wounds) and surgical abortions. Hospitals were never close to overwhelmed. (See my article from last year, “You Can’t Believe Jay Inslee: His Big COVID Hospital Crisis Lie.”)
Please recall that Seattle received an emergency Army field hospital and sports arenas were turned into expansive hospital wards. Except for Inslee’s photo ops, these facilities were never used. Hospitals were actually quite empty and laying off nursing staff. Inslee ignored the pleas of the Washington hospital association and medical society to let doctors care for their patients. One can only wonder how many people Jay Inslee killed and caused to suffer grievously. One can only wonder how many cancer cases advanced to more serious stages because of Inslee’s orders that blocked preventive care and kept surgical theaters empty. I have a friend who was rushed not long ago into surgery to remove part of his cancerous colon. A fairly young man, his colonoscopy had been cancelled by Inslee’s 2020 order. The log jam caused by the disruption of delivery of medical services pushed his rescheduled appointment out almost a year. He was in the ER before that postponed appointment came around. He is now undergoing chemotherapy.
And, of course, there’s Florida, which I did not reach on my travels. That state has been mocked by our Governor and former public health officer for minimal restrictions that favored upholding the merits of personal and economic freedom. Yet Florida for some time has had the lowest per capita incidence of COVID infections in the country. Its economy is booming and it is not suffering infrastructure problems. Meanwhile, Inslee’s government has slashed ferry schedules and announced that mountain passes may not be regularly cleared of snow because the Washington Department of Transportation has lost so many key people to his vax mandate penalties.
I am writing now from Pennsylvania. In the past week I have worn a mask only in the senior facility where I’ve visited family members. The rule there is a bit nonsensical. The octogenarian walking to dinner must wear a mask, though they may be alone in the hallway. Inside the dining room, by way of contrast, I saw over a hundred senior citizens seated at tables talking and laughing without masks. Everyone has been vaccinated, and there have been no outbreaks of COVID since the start of the pandemic. The ladies playing cards in the Bistro and chatting in the lounges on the resident floors, I will add, regularly ignore the masking rules and management has let them be.
Life seems normal here. One can shop at the historic Allentown Fairgrounds Farmer’s Market. No need to cover your face to stock up on smoked pig’s ears or smoked beef trachea. And don’t pass up the fresh scrapple, a Pennsylvania Dutch delicacy. Yum.
I am heading back to SeaTac in a short while. Except when I am eating and drinking, I will have to wear a mask from the time I return my rental at the Philly airport until I reach my own car at SeaTac. Allowing people to remove their masks at any time during their flight seems to undermine the rationale for mandating masks at any other time. All those passengers crammed in a metal tube without masks eating and drinking (and stretching out their meals to extend their taste of liberty) would seem to risk spreading COVID—if there were a real risk. Alaska Airlines assures us that the air filtration systems in their planes are amazingly effective, rendering cabin air perfectly safe to breathe. I believe them.
I scored a first-class seat on the return trip. Conceivably, I could eat and drink for the six-plus hours it will take to cross the continent. “Another coffee, please.” “Do you have more nuts?” I could then nibble my cashews and almonds one at a time and order a drink to sip afterwards and then request a bag of popcorn and stretch that out. And then, of course, I would again need to wet my whistle, very, very slowly.
Rick Steves says travel “acts as our greatest teacher.” So what are the lessons of traveling beyond our fear-riddled, mandate-hobbled community? The answer is obvious: It doesn’t have to be this way.
