In the face of two appeals citing conflicts of interest, the Haines Borough Assembly Tuesday voted unanimously to delay the controversial process of redrawing recreational helicopter flight and landing paths until next summer.
A newly-formed advisory panel will have more data on the plan’s effects on mountain goats and denning grizzly bears and have time to review code language on conflicts.
In several confusing exchanges, the assembly then decided in split votes to deny the appeals.
One challenged the participation of two local heliskiing company owners on the five-member heliskiing map committee, allowing them to deliberate and vote on recommendations in which had a financial interest.
The second appeal challenged an assembly decision to have the question of helisking map committee composition decided by the borough’s tourism advisory board.
The chair and co-chair of Tourism Advisory Board are both heliskiing company operators.
The assembly ruled the two appeals were moot because their vote to form a new committee next year essentially remedied the possible conflict-of-interest question.
Assembly Member Ron Jackson, who chaired the helicopter advisory committee, introduced the motion to direct borough manager Bill Seward to delay making his scheduled recommendations to the assembly on the heliskiing committee’s findings.
Jackson’s motion directed the borough manager to “create a resolution pursuant to HBC 5.18.080 (I)(2) to postpone the map committee and manager’s recommendations, to be considered at a future date in summer 2017 when reports from [fish and game] are available and a new committee has been established after the code has been revised.”
Jackson told the assembly that the specter of conflict of interest has been “a real sticky issue. I’ve already read through 25 pages of attorney’s opinions related to the heliskiing situation. We need to clean up the code so we’re credible when we go forward with this.”
In an interview after the meeting, Jackson said he quickly realized the heliskiing committee he was appointed to chair had flaws in its makeup. “We created this code of the random computer selection process and the manager applied it,” he said.
“Sundberg found a loophole and when he got in there, it suddenly raised this whole ethics thing. We had not specifically said an industry person could not apply to serve on the board as a resident. When Sundberg did that, it deprived us of a resident member and created two industry members.”
Residents questioned why local heliski co-owners Sean Brownell Scott Sundberg were both voting members.
The heliski committee was formed by several sources: Mayor Jan Hill, the helisking industry and a random-choice computer program.
To represent conservation interests, Hill selected Meredith Pochardt, executive director of the Takshanuk Watershed Council. Jackson was appointed to represent the borough assembly and Sean Brownell, co-owner of Alaska Heliskiing, was selected to represent the heliskiing industry.
A computer-generated random selection determined the two final members from seven Haines residents who applied for two at-large positions: Resident Lori Smith and Sundberg.
On Oct. 26, borough attorney Patrick Munson of Anchorage advised the borough that “having a member deliberate and vote on changes submitted by the member also creates a fairly obvious perception of a conflict of interest that may (understandably) trouble the public.”
Munson said the borough’s code of ethics did not categorically prohibit people affiliated with the heliskiing industry from participating in all heliskiing matters that come before the map committee because this would defeat the purpose of including an industry representative on the committee.
Munson concluded: “We therefore recommend that the member recuse him or herself from the deliberations regarding the map changes submitted by the member.”
However, the opinion did not make clear whether Munson’s statement referred to Sundberg, Brownell, or both.
Jackson and borough officials interpreted Munson’s wording to mean that Brownell could vote but Sundberg shouldn’t.
“If he had referred (by name) to specific people, that would have cleared things up,” Jackson said in the interview. He and Seward called Munson for clarification and “left feeling we were doing the right thing. If there was a communication gap, it was a two-way street.”
But the chosen approach did not quell complaints.
Dana Hallet told the assembly Tuesday that borough code was clearly violated by allowing the two heliskiing owners to deliberate and vote on map change proposals.
Hallett stressed that both heliskiing company owners on the committee benefitted if a new area was opened for helicopters. “Since there is no exclusive right to any given area of the map, all permit holders have a substantial financial interest in all of the proposals, not just the proposals put forth by their company,” he told the assembly.
Under item 2.62.040 of the code, he said, voting on certain questions is prohibited. He read the law, which states, “No assembly member or the member of any committee, board or commission may vote on any question on which the member has substantial financial interest.”
He said the borough assembly should restart the process with a code change that more specifically outlined what comprised a conflict-of-interest.
“In order to avoid conflicts of interest, the committee structure should be changed,” Hallett said. “Industry must not be selected as voting members.”
When several assembly members told Hallett his appeal had been rendered moot by the earlier vote to create a new committee, he persisted, saying his appeal “would have ramifications that spread beyond this case. It goes to how we manage other committees in the future.”
He added, “Ultimately, a flawed process brings on a flawed result. It’s important for this assembly to say ‘Yes, we’re here to follow the law.’”
Later, Hallett said he was disappointed by the assembly’s decision to refuse his appeal.
“They took the easy way out,” he said. “They could have made a bigger statement about the future expectation of ethical standards if they affirmed my appeal and then referenced the vote they had just taken on changing the committee. They didn’t do that.”
In his appeal, Eric Holle of Lynn Canal Conservation questioned whether the borough’s Tourism Advisory Board should have deliberated and voted on an ordinance to amend the makeup of the heliskiing map committee. In October, the assembly had referred the matter to the TAB.
Holle said the tourism aboard itself had a conflict because its chair and co-chair are also heliski permit holders. Chairman Sean Gaffney is a 74 percent owner of Alaska Mountain Guides and Sundberg is slightly over a 42 percent owner of Southeast Alaska Backcountry Adventures.
In his appeal, Holle requested that “any TAB actions pertaining to a change in the makeup of the heliski map committee that occurred in violation of Haines Borough code be disregarded by the manager and assembly.”
Assembly member Tom Morphet, who owns the Chilkat Valley News, voted to deny Hallet’s appeal but opposed denying Holle’s.
“I became uncomfortable with just denying the appeals – all we did was tell the applicants that we were going to go back and revisit this issue. We basically just postponed things,” he said. “I understand why they may be apprehensive to drop their appeals because we may not solve it to their satisfaction.”
Morphet said he found value in the issues brought to light by the appeals.
In an interview, Sundberg insisted that he abstained from any vote that involved his company.
“Even if the borough approves all the map changes, the heliskiing industry will take a 3 percent gain in its areas of operation. I challenge the borough to show that I or anyone else increased our financial opportunities by a 3 percent net gain.”
In a legal opinion issued Dec. 12, Munson suggested that the borough review its code of ethics to determine whether the assembly “intends to prevent citizens serving on specific advisory boards and committees from voting on subjects about what the citizens have both particular knowledge as a result of their business operation and financial or personal interests.”
Morphet also questioned whether the borough attorney was called in to issue an opinion of borough codes he reviewed in the first place. “I believe we have a problem with our attorneys,” he said.
“If one part of the code says the other is illegal or questionable, we have a problem with the laws. And we pay those lawyers to see that those laws are legal.”
Borough Clerk Julie Cozzie said the entire borough code was reviewed by attorneys when the borough and the townsite merged. She said some code amendments, but not all, were reviewed by borough attorneys.
“Otherwise, our legal budget would skyrocket.”
Jila Stuart, the borough’s chief finance director, said that in October the borough paid $1,979 in legal fees for its attorney to research conflict-of-interest issues on the heliskiing map committee.
Attorney pay for November and December, when legal reviews of Hallet’s and Holle’s appeals were conducted, were not available this week.
In postponing the heliskiing issue until next year, the borough will have the benefit of a Fish and Game study on numbers of mountain goats and grizzly bears due out next spring.
Meanwhile, Morphet has a proposal before the assembly to do away with the heliskiing committee entirely. He questions why the borough needs an advisory committee and borough manager to vet issues the assembly must ultimately decide.
“Why go through two filters if we have to make final decision anyway?” he said. “We don’t need a committee to tell us what the industry likes, or for that matter what the environmentalist like. The idea that the assembly can foist difficult decisions on advisory committees is misguided to say the least.”