Upstage Complaint (Unofficial Copy, page #s vary from filed

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Upstage Complaint
(Unofficial Copy, page #s vary from filed complaint;
copies of supporting documents available upon request)
David Peterson (DP hereon) and David Timmons, City Manager (CM hereon), and City
members violated City Ethics Code, City Personnel Policies, and Washington State
Ethics Code, in the least.
The complaint addresses present and former city members City Manager, David
Timmons (CM); City Engineer, David Peterson (DP); City Attorney, John Watts (JW);
Director of Public Works, Kenneth Clow (KC); Director of Community Services, Rick
Sepler (RS); Building Inspector, Michael Hoskins (MH); and City Councilors Catharine
Robinson, David King, Deborah Stinson, Kris Nelson, Mark Welch, Michelle Sandoval,
and Robert Gray.
I do not presume legal expertise, but have strived to read, understand, and address
code as best I can. Legal definitions and technicalities might negate some arguments
presented. However, I think lying, dishonesty, wrongful gain, favoritism, intent to harm,
and abuse of power are plain enough. I submit these complaints that change might
occur and those who subvert the public interest held accountable. Money gained and
power maintained immorally ought to be surrendered and those harmed compensated.
Port Townsend Ethics Code intends to be “liberally construed”. That is, the intent of the
law is most important. The intent of the law is transparency, honesty, fairness,
efficiency, and avoiding “even the appearance of impropriety.” In other words, good
government.
While the CM and DP are predominant in this complaint, there is the appearance of
coverup by and collusion with all mentioned. A response by all is welcome and I
apologize for naming any who might be innocent. However, all mentioned had obligation
and opportunity to question City actions that harmed myself, my family, Upstage and the
people of Port Townsend; expelled Upstage from the community; and appear to have
thwarted its relocation in the community. While I believe the CM groomed other City
personnel and officials to achieve unlawful ends, listing City Councilors in this complaint
is to understand why and how that occurred - so it does not happen again.
These complaints are substantial. They do not address mere rules of order. They
address corruption. Metaphorically, there is lead in Port Townsend waters.
Upstage was a renowned and strong contributor to Port Townsend cultural life, tourism,
and economic wellbeing. DP was apparently worth more than Upstage to City officials
and coverup worth more than fulfilling Ethics Code. Hubris and Situational Ethics ruled
in the government of Port Townsend.
COMPLAINT
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Besides holding City employees and officials accountable, it’s my hope the City will
enact new policies. These include:
•! an adhered to policy of mandatory outside review for matters that involve City
employees and officials, their family members, and for transparency’s sake, their
personal private-business clients. Our system recommends but does not require
it. It should be a requirement, not an option, of the City Manager.
•! Proper disclosure is already a rule, and I hope it will be hereafter enforced. It was
not enforced in DP/City affairs.
•! City Councilors should be required to respond to City Manager communications,
if only to acknowledge that they have read and accept the the City Manager’s
determinations.
•! Whenever a City Manager communication makes a determination, all mentioned
should be copied. In the CM’s 6/24 and 7/3 emails to Council, Upstage and Mark
Cole were mentioned, falsely described, but excluded from the communication.
While City officials laud open government, the truth is they simply do not document what
they do not want disclosed. The CM addressed DP/Upstage eviction matters in but one
lie-filled email to City Council and other officials. No recipient responded. It is plain all
decisions were made behind closed doors. Most disturbing are speculations of what
gain, what reward, City members received for their actions and nonactions. Such
speculation is due the appearance of impropriety and collusion.
All documents referenced are the extensive discovery provided during the DP/Upstage
unlawful eviction and breach of contract lawsuit in which DP filed a countersuit for
approximately $100K in fraudulent damages. Under financial duress, through mediation,
Upstage received 130K compensation and its legal expenses defending the countersuit.
This was far less than the financial impact of unlawful eviction and the penalty amounts
set in the 5/31/13 DP/Upstage contract. Over two thousand pages and photos of
supporting evidence are available. These include PT Building Department documents,
City emails, Superior Court documents, and internal DP/project personal emails. Be
assured, neither DP nor the City wanted DP’s lies or abuse of City services exposed in
Court hearings.
To avoid the appearance of impropriety, I urge the City to deliver these complaints to an
unquestionably skilled, fair, and outside of City and County hearings officer. The
hearings officer should be knowledgeable of building department procedures and
construction matters. Due the events described in this complaint, I have no faith that
anyone related to the purse strings or power complex of the City of Port Townsend can
provide fair assessment of DP/City/Upstage matters. The City of Port Townsend and its
affiliates were and are wholly and unduly influenced by City member interests.
Thank you,
Mark Cole, Upstage
611 E Park Avenue
COMPLAINT
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Port Angeles, WA 98362
360-385-2216
CONTENTS!!
Letter of Complaint Sections
1A. Statement of Violations of City of Port Townsend Ethics Code,
Personnel Policies, and Washington State Code of Ethics for
Municipal Officers
1B. Statement of Violations of City of Port Townsend Personnel Policies by
City personnel and officials.
1C. Washington State Code of Ethics for Municipal Officers and RCW City
Manager violations
2. Brief Timeline of Events
To understand the sequence of events, a timeline is provided
3. City of P.T. Building Department Activity Log Events
A timeline of file events to help understand the contents of Building Dept. files
4. City Manager Emails - Lies to Citizen & City Council
5. The Big Lie
Regards DP’s claim to have abandoned his BLD 13-048 REMODEL RETAIL
INTO RESTAURANT project before his work commenced in Upstage
6. Favoritism & Preferential Treatment:
1. Failure To Disclose, Failure To Document, Lying, And Collusion
2. Some Favoritism Examples
3. Summary
7. DP’s Contractor Tollefson’s Letter to Building Official Michael
Hoskins: Request for phase review and initial permit. 5/22/13
A. Breakdown and Analysis
B. Document: 5/22 Tollefson to Hoskins
8. DP’s 6/10 Letter to Building Department, modification of permit request.
A. Breakdown and Analysis
B. Document: 6/10 DP to Building Department
9. DP’s 6/17 Email to Hoskins: Request to withhold review of page 1, first
floor plan. 6/17/13
A. Breakdown and Analysis
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B. Document: 6/17 DP to Hoskins
10. DP’s 6/21 Email to Hoskins: Project “Story”
A. Breakdown and Analysis
B. Document: 6/21 DP to Hoskins
11. Engineer Drawings & Permits includes samples of Engineer Plans March through June
12. DP’s Eviction Strategy:
From Internal Emails, DP denied validity of Upstage lease and
contemplated eviction before BLD 13-048
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1A. City of Port Townsend Ethics Code Violations &
Upstage Complaint
Upstage Reference #s in red. Comments and violations in red. Code in
black typeface
26 2.80.010 Policy.
The city of Port Townsend is committed to conducting its business in
a fair, open, efficient and accountable manner. Public officials and
employees shall conduct their public and private actions and financial
dealings in a manner that shall present no apparent or actual conflict
of interest between the public trust and their private interest. Each
official and employee is assumed and expected to act in accordance
with all laws that may apply to his or her position, as well as striving
to avoid even an appearance of impropriety in the conduct of his or
her office or business. To dispel suspicion, innuendo, and distrust in
government that results from failure of public officials and employees
to disclose financial or other interests in matters affecting the city,
public officials and employees should disclose, before participating in
any matter affecting the city, any financial, business, personal or
other interests in the matter affecting the city. As provided by this
code and state law, a public official or employee is prohibited from
participating in a city matter where he or she may be specially
benefited. City Manager, David Timmons and City Engineer,
David Peterson grossly failed to avoid the appearance of
impropriety.
In that in the public eye and in Code, action is recognized as
both “action” and “nonaction,” this complaint states that other
City members failed to avoid the appearance of impropriety.
They are City Attorney, John Watts; Director of Public Works,
Kenneth Clow, Director of Community Services, Rick Sepler;
Michael Hoskins, Building Inspector; and City Councilors
Catharine Robinson, David King, Deborah Stinson, Kris Nelson,
Mark Welch, Michelle Sandoval, and Robert Gray.
COMPLAINT
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Upon DP’s attempted eviction of Upstage and the CM’s emails to
Venarchick and City Council, those City members named above
said nothing. They did not reply. In the nonresponse of
recipients, there is the overwhelming appearance of behind
closed doors decisions, agreement, and collusion to benefit DP,
wrongfully coverup City indiscretions, and harm Upstage by
influencing the Justice system. That not one City Council
member or official voiced question or dissent is remarkable and
indicates that behind closed doors decisions and collusion took
place. See Section 4. Also 5, 6, 8, 9,10,11,12
The CM’s email provides no evidence of true investigation, no
sources of his information, no assurances, and no request for
response. There is overwhelming lack of transparency. It is no
surprise that DP and CM’s lies were permitted to enter City
matters, Superior Court matters, and damage myself, my family,
Upstage, and Port Townsend. See section 4.
CM - On March 19, 2013, in email to City Council, Rick Sepler,
John Watts, and Pam Kolacey, the CM recognized the potential
need for “outside review” of DP Terry Building affairs. He
advised against but promised to activate “outside review” if
matters warranted. He promised to monitor matters in order to
protect the public interest. The CM, irresponsibly, neither
monitored DP matters nor implemented outside review when DP
BLD 13-048 matters so warranted. He did not request response
or invite discussion. He did not query Upstage of Venarchick’s
allegations or just ask Upstage if his “facts” delivered to
Counsel were accurate. Through all the above and his
leadership, the CM placed the entire City in jeopardy of Ethics
Code violations, harmed Upstage, and wrongfully influenced the
administering of Justice.
Three months after his 3/19/13 email, the CM presents to Council
his advice and declaration that DP/Upstage matters are of a
private nature. In other words, he is recommending that the City
neither investigate nor send matters for outside review. By their
silence, all are agreed. Their agreement and silence is remarkCOMPLAINT
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able and disturbing. There is the overwhelming appearance of
impropriety and failure of transparency.
This is their inappropriate response to a citizen and business
being drastically impacted by a City employee’s actions who is
using City services and is involved with City matters.
DP and the CM conducted their public and private affairs in
apparent and actual conflict of interest between the public trust
and their private interest. Neither acted in accordance with all
laws that apply to their position. They did not strive to avoid but strived to hide the appearance of impropriety. See Sections 4,
5, 6, 8, 9,10,11,12
27 2.80.030 Improper use of official position – Personal gain or profit –
Use of persons, money or property.
28 2.80.030 A. An official or employee shall not knowingly engage in any
transaction involving the city or use his or her office or position for personal
or family benefit gain or profit, or engage in any transaction involving the
city or use his or her position to secure special privileges or exceptions for
himself, herself, or for the benefit, gain, or profits of any other persons.
a - In DP’s transactions regarding the City, DP secured special
privileges and exceptions – from reduced scrutiny and
regulation to inappropriate assistance with BLD 13-048-related
submissions, applications, determinations, and rulings. These
privileges and exceptions were perhaps first received due City
negligence and mismanagement. From 6/18, DP received benefit
and gain from collusion with CM and other City elements to hide
Ethics Code and Personnel Policy violations. See Sections 4, 5,
6, 8, 9,10,11,12
b - The CM secured special privileges and exceptions for DP to
DP’s benefit. Covering up for DP and assisting DP’s litigation
strategy, the CM improperly used his position to another
person’s, DP’s, gain. Beyond protection of his personal
reputation and job, other CM gain is implied but to be
determined. See Sections 4, 5, 6, 8, 9,10,11,12
COMPLAINT
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29 2.80.030 B. No official or employee may employ or use any person,
money, or property under the officer’s or employee’s official control or
direction, or in his or her official custody, for the personal or family benefit,
gain, or profit of the officer or employee, or another.
a - DP used City resources – legal, departmental, time, and
influence – for personal gain. Many City personnel are under or
dutied to the City Engineer’s personal direction.
b – CM used City resources for another’s gain - to rescue DP from
charges of misconduct and threats of financial loss. He used City
resources to protect City personnel and officials from charges of
misconduct. Beyond protection of his personal reputation and job,
additional CM gain is implied but to be determined.
30 2.80.030 D. Notwithstanding the provisions of this section, the manager
shall have discretion, and may adopt rules, regarding the nature, scope and
extent to which the city of Port Townsend, its officials and employees, may
provide in-kind and other assistance, if any, to an activity or event;
provided, that such assistance: 1. Does not unreasonably interfere with the
proper performance of public duties and function; and 2. Provides a
common benefit to the city; and 3. Is of a de minimus cost, or of reasonable
value.
Any terms, conditions, or mutual arrangements determined to be
appropriate by the manager, regarding the provision of any type of
assistance, shall be in writing. (Ord. 2786 §§ 1, 2, 2001).
CM - While the CM arranged city resources to assist DP and the CM
might argue such had common benefit to the City, these
arrangements were wrongful, self serving, and not in writing.
The CM wrongfully used City resources to DP’s benefit that interfered
with the CM’s proper implementation of investigation of Personnel
Policy violations and implementing Outside Review. The CM coverup
protected the City from rebuke and financial liability but conflicted
with maintaining the Public Trust and fulfilling his duty to monitor
personnel.
COMPLAINT
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31. 2.80.040 Conflict of interest.
32. 2.80.040 A. Conflict of Interest Prohibited. Except as provided in
subsection C of this section (relating to contracts where there is only a
remote interest), or subsection D of this section (relating to specified
exceptions to the rule against having an interest in a contract), an official or
employee shall not be “beneficially interested,” directly or indirectly, in any
transaction involving the city, or accept, directly or indirectly, any
compensation, gratuity, or reward in connection with such transaction
involving the city from any other person “beneficially interested” therein,
and shall not knowingly engage in activities which are in conflict, or which
have the potential to create a conflict, with performance of official duties.
DP - Due his position, DP was wholly interested in City transactions
that involved his project BLD 13-048. DP was unduly benefited in
transactions involving the city. Also, he knowingly engaged in
activities which were in conflict and had potential to create conflict
with the performance and the required manner of his performance of
official duties.
CM – Again, that he did not properly and responsibly implement
Outside Review and was thereby vulnerable to reasonable
accusations of poor performance, the CM was wholly interested in
City transactions and matters regarding DP.
An official or employee shall disclose the fact and extent of any benefit,
gain, profit, or interest in a contract or transaction involving the city, or any
transaction involving city legislative duties, including the consideration or
enactment of any city legislation or appropriation of moneys in a budget,
including even indirect benefit that is not deemed a “beneficial interest”
under the law.
DP did not wholly, adequately, or properly disclose the fact and extent
of his interest in transactions involving the city. Neither did he
properly disclose updates and developments in these transactions.
Examples of conflicts, or potential conflicts, of interest include but are not
necessarily limited to circumstances where the official or employee, or their
families:
COMPLAINT
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33 2.80.040 A 1. Influences the selection or nonselection of or the conduct
of business between the city and any entity when the official or employee
has a financial interest.
1- DP did influence the conduct of business between the City, himself,
and his Terry Building 13-048 project in which he had financial
interest. His influence helped avoid outside review; his building
department communications lessened the level of city scrutiny and
regulation. He influenced the nonselection of City inquiry into his 13048 project and DP/Upstage litigation affairs. He influenced the CM’s
actions and nonactions regarding DP’s private affairs and his city
affairs related to 13-048.
2- First, CM influenced the nonselection of “outside review” in the
beginnings of DP’s 13-048 project. Despite later irregularities and
citizen complaints, he did not initiate “outside review.” Overall, the
CM wrongfully influenced the selection and nonselection of conduct
of business between the city and DP who had financial interest in
matters related to 13-048. The CM advised Council not to investigate
DP and 13-048 matters. He declared the DP/Upstage litigation a solely
private landlord/tenant matter when in fact it was not. The CM and the
City ought to have supervised and when appropriate investigated DP
activities. CM’s financial interest is personal – job protection, in the
least. There is the appearance of reimbursement, that is severance
pay guarantees, as reward for his actions, nonactions, and for risking
his reputation to the tbd gain of Councilors. Investigation could
discover other financial interest.
34. 2.80.040 A 2. Solicits for himself or herself or for another, a gift or any
other thing of value from the city or from any person or entity having
dealings with the city;
1 – DP. If a gift is always something of substance, a thing, then this
will not apply unless investigation reveals otherwise. If a gift is noninvestigation, legal advice, city collusion, i.e a favor, then DP did so
solicit a gift.
2 – CM. The CM did similarly for “another,” DP.
COMPLAINT
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35. 2.80.040 A 3. Accepts any retainer, compensation, gift or other thing of
value which is contingent upon a specific action or nonaction by the official
or employee. DP and CM. Similarly, see #34.
36. 2.80.040 A 4. Accepts a gift in any manner other than as provided in
PTMC 2.80.050, Acceptance of gifts. DP. Similarly, see #34
37. 2.80.040 A 5. Intentionally uses or discloses information not available to
the general public and acquired by reason of his or her official position
which financially benefits himself or herself, family, friends or others.
a - DP, for his personal interest, used information not available to the
general public. DP and his legal counsel knew the CM and City
Council were decided (as if promised) not to investigate DP/Upstage
or DP/Building Department matters. Knowledge of freedom from
internal and/or external review assisted DP in his private litigation
matters and harmed Upstage. DP acquired such information due his
official position.
This information was available to DP on 7/3/13. 10 months later, it
was provided Upstage, only after an extensive City disclosure request
and far too late for Upstage to use the information as it had right to .
DP similarly used Building Department information, knowledge of
permitting loopholes and knowledge (in appearance, perhaps
promised) that he would be wrongfully under-supervised in 13-048
permitting matters.
b – CM. While some benefits to the CM are to be determined by
investigation, in the least the CM received freedom from
embarrassment, criticism, and accusations of mismanagement and
malfeasance - all which could affect his position and future
compensation, including his unusual severance package. Through
having in hand and providing DP knowledge not available to the
general public, the CM gained. The CM acquired such information due
his official position.
38 2.80.040 B. Disclosure.
COMPLAINT
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39 2.80.040 -1. Officials and employees shall disclose in writing to the city
clerk any personal involvement or private interest in any transaction
involving the city. Personal involvement includes involvement by each
person, his or her family, or any involvement by any person or family
member in any partnership, association, corporation, trust, firm, institution
or other entity, whether operated for profit or not. For example, if a
councilmember’s son files for a building permit, the councilmember must
disclose the fact to the clerk.
DP did not disclose his private interests in writing to the city clerk.
City disclosure revealed no such communications. The only
disclosure was perhaps verbal and delivered by CM email 3/13 to City
Council.
In light of DP’s subsequent actions and litigation, failure to disclose in
writing appears intentional.
40 2.80.040 -2. The clerk shall report the disclosure to the council and
further report periodically on ongoing activities, so the information is
available to the community. The disclosure and report may take the form of
including the information in the council’s information packet. For example, if
a councilmember files for a building permit, and then obtains a permit, both
events will be reported to the council.
a. DP did not periodically report on ongoing activities. City
disclosures do not reveal any disclosures of this type - to City Clerk,
CM, Council and/or made available to the public. City disclosures
indicate no DP disclosures in writing.
In light of DP’s subsequent actions and litigation, failure to disclose in
writing appears intentional.
In that DP/Upstage litigation had potential to affect the city reputation
and was steeped in city business, regular disclosures ought to have
occurred. Litigation/court documents too ought to have been
disclosed. The CM ought to have required and demanded regular
disclosures. In writing.
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DP’s pre-litigation and litigation documents should also have been
disclosed to the City due that 13-048 legal matters had potential to
affect the City. This is especially so due 1) 13-048 proceeded with
challenges and veered far afield of the CM’s 3/13 disclosure to
Council and 2) that from 6/18 the City was well aware of and affected
by these challenges.
There was DP failure to provide proper disclosure and
b. and the CM’s failure to demand it, i.e. Poor Performance.
In the CM’s 3/13 disclosure, CM promised supervision and if needed
“outside review” of DP’s project 13-048. It is certainly the CM’s duty to
protect the City and keep aware of any matters that threaten the
reputation of the City.
At first negligent, the CM then mismanaged DP 13-048 matters. The
CM’s continued failure to monitor, to hide rather than disclose
information, and enforce code is malfeasant).
41 2.80.040 3. The city manager is authorized to establish policies
providing for the outside review of projects or applications involving
councilmembers and city employees (as determined appropriate by the city
manager).
This is further CM poor performance, negligence and
mismanagement. Regarding DP, it is also favoritism. He recognized
the need for outside review, promised to apply outside review if
necessary, and failed to apply it when most necessary to fulfill Ethics
code. In time, mismanagement became malfeasance.
No actual outside review policies have been disclosed. A question for
an investigator is if any “outside review’ has ever been conducted
regarding a City employee, official, or Councilor and their family
and/or their significant clients.
Cover up of negligence, mismanagement, and continued support of
DP are sign of the City Manager losing good sense, control, and
acting wrongfully outside the principles of City Code.
COMPLAINT
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42 2.80.050 Acceptance of gifts.
A. Except for charitable contributions made to the city, or campaign
contributions required to be reported under Chapter 42.17 RCW
(Disclosure – Campaign Finances – Lobbying – Records), or as provided in
subsection D of this section, an official or employee may not receive,
accept, take, seek, or solicit, or agree to receive, directly or indirectly,
anything of economic value as a gift, gratuity, reward, or favor from a
person (except from the city) for performing or omitting or deferring the
performance of any official duty, or if it could be reasonably be expected
that the gift, gratuity, or favor would influence the vote, action, or judgment
of the official or employee, or be considered a part of a reward for action or
inaction.
a. DP. If “gift” is a favor, then DP received a favor from the CM –
freedom from investigation and outside review. No official City act
providing it: this gift is from the CM and City Councilors performing
as individuals.
2.80.070 Confidential information.
(“Confidential information” means: 1. Specific information, rather than generalized
knowledge, that is not available to the general public on request;)
43 2.80.070 A. No official or employee may accept employment or engage
in any business or professional activity that the official or employee might
reasonably expect would require or induce him or her to disclose
confidential information acquired by the official or employee by reason of
the official’s or employee’s official position. DP divulged to his counsel
the confidential information that the City would not question, censure,
or investigate DP 13-048 matters. This provided his counsel the tool
of harassment which he used to DP’s gain and Upstage loss.
44 2.80.070 B. No official or employee may disclose at any time
confidential information gained by reason of the official’s or employee’s
official position or otherwise use at any time the information for his or her
personal gain or benefit or the gain or benefit of another, unless the
disclosure has been authorized by the manager (or majority vote of the city
council) or by terms of a contract involving (1) the city, and (2) the person
COMPLAINT
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or persons who have authority to waive confidentiality of the information.
There is no official record, in writing, of authorization of confidential
information’s release by the CM or Council.
DP. City activity surrounding DP’s 13-048 project and subsequent
DP/Upstage litigation strongly indicates confidential information was
freely shared between City officials and employees and provided by
DP to his legal counsel, much to his own personal gain.
DP; CM; JW, John Watts; RS, Rick Sepler, and KC, Kenneth Clow. It
appears confidential information necessarily flowed between these
City members to DP and his attorney to own and DP’s personal gain.
City Councilors Catharine Robinson, David King, Deborah Stinson,
Kris Nelson, Mark Welch, Michelle Sandoval, Robert Gray. - It appears
confidential information necessarily flowed between some or all
Councilors and other City personnel to DP and his attorney, much to
their own and/or DP’s personal gain.
45 2.80.070 C. An official or employee shall not use information acquired in
confidence from a city customer, supplier, lessee or contractor for other
than city purposes. Investigation might disclose such occurred.
46 2.80.070 E. The manager shall determine, acting in the best interest of
the city, whether information is confidential; provided a majority of the city
council may vote to release any information which is not by law required to
be kept confidential. The types of information listed in RCW 42.17.310,
certain personal records and other records exempt, are presumed
confidential, unless the manager (or city council by majority vote)
determines it is not.
That Ethics Code and Personnel Policies both list but do not limit the
range of unethical actions or actions subject to disciplinary actions
and that Codes and Policies are intended to be “liberally construed,”
consider including the list below as violations:
Other violations include:
COMPLAINT
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47! Improper Governmental Action; City Manager, David Timmons;
City Engineer, David Peterson; City Attorney, John Watts; Director
of Public Works, Kenneth Clow, Director of Community Services,
Rick Sepler; Michael Hoskins, Building Inspector; and City
Councilors Catharine Robinson, David King, Deborah Stinson, Kris
Nelson, Mark Welch, Michelle Sandoval, and Robert Gray.
Violations of state law, gross mismanagement WA RCW 42.40.020
DP 13-048 matters and DP/Upstage were grossly mismanaged and
violated the prime directives of City code, resulting in the
appearance of City corruption.
48! Corruption; vicious and fraudulent intention to evade
prohibitions of the law
49! Obstruction of Justice – DP/City member strategies were aimed to
impair Upstage in Superior Court litigation proceedings.
50. Collusion – City Manager, David Timmons; City Engineer, David
Peterson; City Attorney, John Watts; Director of Public Works,
Kenneth Clow, Director of Community Services, Rick Sepler; Michael
Hoskins, Building Inspector; and City Councilors Catharine Robinson,
David King, Deborah Stinson, Kris Nelson, Mark Welch, Michelle
Sandoval, and Robert Gray. There is the appearance of an agreement
between these individuals to defraud Upstage and MC of their rights
and unlawfully obtain something prohibited by law. They intended
together to indirectly affect the outcome of DP’s court proceedings.
Had they opportunity to be in court, they intended to deceive the
court with the purpose of obtaining financial gain for DP and relief of
themselves and the City of Port Townsend from blame and
mismanagement.”
50! Practicing Deception;
51! Making False and Misleading Statements;
52! Malicious intent.
53 Demockery – Unethical government behaviors that make a
mockery of hallowed social institutions such as Justice, the Justice
System, Ethics Code, etc.. Derived from the Declaration of
Independence’s complaint against the King “For protecting (large
bodies of armed troops), by a mock Trial, from punishment for any
Murders which they should commit on the Inhabitants of these States.
COMPLAINT
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1C. Violations of WA State Code of Ethics Violations
Chapter 42.23 RCW, Code of Ethics for Municipal
Officers RCW 42.23.070, and WA State RCW 35A.13.080
City Manager-Powers and duties.
Prohibited acts.
(1)!Use of position to secure special privileges or exemptions for
himself, herself, or others.
1 – DP, through his own actions and the actions and nonactions of the
Building Department and the CM, secured special privileges and
exemptions – including lack of supervision, reduced requirements,
protection from the disclosure of wrongful acts, and assistance in
concealing wrongful acts
2 – DP used of position and special privileges to wrongfully assist and
execute his BLD 13-048 permit – from its submission, performance,
issuance and subsequent litigation regarding it.
2 – The CM similarly secured special privileges and exemptions for DP
by approving reduced standards and by orchestrating cover up of both
DP’s wrongful actions and City errors.
(2) Giving or receiving compensation, gift, reward, or gratuity from
a source except the employing municipality for a matter connected
with or related to the officer's services
(3) accepting employment or engage in business or professional
activity that the officer might reasonably expect would require or
induce him or her by reason of his or her official position to
disclose confidential information acquired by reason of his or her
official position. Confidential and special knowledge acquired due
position was disclosed by
a-! DP to his legal counsel and
b-! CM to DP and DP’s legal counsel
c-! CM to other city officials for purposes of collusion and coverup, not
the lawful performance of his duties.
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(4) Disclosing confidential information gained by reason of the
officer's position. Using such information for his or her personal
gain or benefit.
DP- If state definitions define confidential information liberally, there is
violation here. To his benefit, DP used confidential and/or special
information gained by reason of his position. In the least, he wrongfully
used privileged knowledge that the City would not question or
investigate his activities to his advantage for person gain and Upstage’s
disadvantage. Such knowledge was not available to Upstage.
WA State RCW 35A.13.080 City Manager-Powers and duties
(4) To see that all laws and ordinances are faithfully
executed…
CM violated the lawful duties of his office as described by the City in
Ethics Code, Personnel Policy, and WA RCW 35A. 13.080: “(4) To see
that all laws and ordinances are faithfully executed…) CM was aware of
DP’s code and policy violations and assisted in their coverup.
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2. Brief Timeline of Events
3/10/13 City Manager Timmons (CM) announces to council that David Peterson (DP)
plans to open a new restaurant in the Terry Building. Recognizing the prime directives
of Ethics Code regarding disclosure, the appearance of impropriety, and the possible
need for outside review, Timmons assures council he will keep an eye on matters.
“Since Dave is a City employee, I will determine (the same as with any City
Councilor or City employee seeking a City permit) if any permit rises to the level
of needing outside review to avoid any appearance of fairness or conflict of
interest issues.” Per subject line, this announcement seems prompted by newspaper
coverage of DP activities, including the termination of retail tenant tenancies.
4/3/13 DP submits plans for Remodel Retail Into Restaurant Space, Permit BLD
13-048. These include a structural upgrade to the Terry Building. The elements of
structural upgrade are in Upstage space. Structural upgrade plans stamped by
engineer Tracy Gudgel essentially match the plans approved and permit issued by city
6/21/13. The work accomplished essentially matches these plans. Tracy Gudgel is
Senior Design Engineer at Zenovic and Associates, a civil engineering firm serving
Clallam and Jefferson Counties.
5/22/13 DP’s contractor Tollefson Letter to Building Department is stamped
received by city 5/23. DP’s contractor describes the work to be accomplished and
requests Hoskins to expedite it. He requests a “phase review” and an “initial
permit.” The “initial permit” request includes fire-suppression system, demolition,
foundations, new footings, beams, and columns per engineer drawings. The expedition
request premise is “to keep impacts to an existing business (Upstage) as minimal
as possible.”
5/22 DP emails Tracy Gudgel, his engineer, and reports that Hoskins will expedite a
permit if DP provides the plans.
5/29/13 BLD 13-048 submitted Tracy Gudgel plans elaborate the structural upgrade.
The city building department receives structural upgrade materials breakdown for 13048 stamped by engineer Tracy Gudgel 5/21. Specific inputs are provided by Gudgel to
DP through the end of the month and June.
5/31/13 MOA between Upstage and DP is signed. The MOA declares it is the intention
of DP/Tailor Made Llc to perform a structural upgrade and improve the hood system, for
his own purposes. “The Tailor Made llc must make a structural upgrade to the
Terry Building.” “It is the intention of Tailor Made to improve the hood system in
the Upstage.” “A container will be rented to hold the contents of the upstage.”
Upstage was paid $21,400 to close temporarily to allow the work described in the MOA
and in BLD 13-048. Upstage agrees to close on requested date and remove all its
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equipment/supplies from the kitchen and adjoining areas so the floor can be removed,
the foundation addressed, new footings poured, a new floor and hood system installed.
Equipment is to be stored in a shed provided and paid for by DP, saving DP the
expense of moving it to a distant storage unit.
5/31/12 HPC 13-029 (Associate Permit, BLD 13-048) Installation of exterior mechanical
equipment, Administrative Design Review. Multiple submissions stamped city received
5/31 likely regard the new first floor restaurant, 13-048.
6/5/13 PDN. Before any demolition, DP reports to the press (PDN) that Upstage “will
close for a much needed hood upgrade in the kitchen.” This is not true and in light
of future events and other evidence possibly indicates 1) Upstage’s eviction was
planned from start, or an option, or 2) DP is hiding the nature of his work from the
building department, intending to later call it damage repair when convenient in order to
receive reduced scrutiny and increased expedition. Upstage closed to allow DP to
perform a structural upgrade.
6/7/13 FFP 13-005 (Associate Permit, BLD 13-048) fire-code related, is issued for the
new hood fire-suppression system. The “initial permit” requested already includes the
fire-suppression system. Fire-suppression systems require fire department approval.
The Permit Ffp 13-005 request is stamped received by the city 6/5; reviewed by fire
department and received for code compliance by Hoskins 6/6; it is approved, apparently
expedited, 6/7.
6/8/13 Upstage closes, kitchen capacity already reduced previously by partial
equipment dismantling.
6/9/13 All Upstage equipment is removed from kitchen and mostly stored in a shed
provided by DP, per MOA. Demolition begins.
6/10/13 DP letter to building department: DP alleges discovering extensive damage
while “cleaning” for a new hood system, needing to remove the floor, and redo a
building support in one corner. Many documents, submissions, and permit requests
already indicate these tasks. DP did not discover extensive damage while “cleaning.”
He discovered it while performing demolition for his structural upgrade The damage
discovered was not extensive; was not beyond that already anticipated; and regarded
elements already, per plans, slated to be replaced with new and improved materials.
His discovery while cleaning is actually discovery while removing the floor to access
columns, footing, and shoring areas, as planned. His handwritten letter asks “to
modify the permit to add rehabilitation of the Upstage kitchen as the first
phase of the project.” The modifications are items already generally listed in the
initial permit request 5/22 letter.
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By 6/12/13, the concrete kitchen floor is cut into small squares by subcontractors and
removed. Demolition of kitchen floor and walls begun 6/9 is close to completion. The
demolition accomplished matches the plans submitted. DP’s contractor photos show
the floor and weight-bearing walls removed as well. MC notes and conveys evidence of
structural stress after all load bearing walls are removed. DP team remedies this with
bracing that should have been in place before removing load bearing walls.
6/17/13 is the first time DP communicates that he’s considered postponing or
abandoning his current new restaurant plans. In court documents and statements, DP
later claims he’d abandoned his new first floor restaurant before his construction began
in Upstage space and was only installing the new hood system as a “favor” to
Upstage. That is a lie.
DP informs Upstage verbally he will not move forward with his new first level
restaurant at this time. DP also asks Upstage to work together with him towards a
newer better Upstage, incorporating his new restaurant plans and efforts into
Upstage, including hiring chef Tim Roth. He does not indicate if he is buying or
partnering into Upstage. He does not indicate that this partnership will or will not
include future first floor plans. All these options were once on the table between
February and early May 2013.
DP emails Hoskins, 6/17, he “will not go forward with the Washington Street
level restaurant as proposed.” He does not claim he has abandoned the
restaurant goal. He only asks Hoskins to “withhold the review of the page one,
first floor plan.” This seems necessary to get work already accomplished
approved and a permit issued. Contrary to DP’s court documents and statements,
6/17 is the date he actually either postpones or abandons his new restaurant goals.
In his email to Hoskins, his additional description is false. That is, “repairs in the
kitchen” did not lead to the discovery that a main support column was not sound.
Structural upgrade, not repair, is the purpose of DP’s work. One column did show
impairment but was bolstered by over twenty feet of load bearing wall and flooring.
No structural failure was evident or likely. The column was already slated to be
removed and replaced with upgraded members per structural upgrade 13-048 plans.
Documents verify this. He was not, as claimed, hurrying to get Upstage reopened
nor was he addressing one column. He addressed more than one column as well as
shoring, posts, and footings - more than half the work identified in his submitted
plans.
6/18/13, early am, CM Timmons receives an email from merchant Lois Venarchick
suggesting city favoritism might be at play regarding DP and his Terry Building project.
The accusation regards placement of a storage shed adjacent the Terry Building. CM
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immediately investigates. Due Venarchick’s email, it appears “all hell broke loose” at
the city. It’s unlikely the CM’s investigation was confined to the emails provided by city
disclosure.
The probable scenario is –
CM certainly learned the truth regarding the storage shed. More importantly, he
learned (if not previously) the devolving state of DP’s project 13-048-Remodel Retail
Into Restaurant. It was no longer a DP issue. It was now a City issue – an
embarrassment in the least and an election year issue potentially. More, it was a
legal and financial liability.
Without thorough investigation, which would have required Upstage input, the CM
probably did not know the whole truth - but knew enough. The CM orchestrates legal
resources for DP and expertise from City officials. For whatever motivations, the CM
chose lying, cover up, and complicity.
DP and Rick Sepler do not respond to CM on 6/18. Or records of such were
wrongfully either not provided as required or destroyed. Only Kenneth Clow replies.
Not the information the CM prefers, the CM’s email investigation ends abruptly same
day.
In fact, city-provided records indicate no response, ever, from DP.
SEE VENARCHICK EMAIL SEQUENCE for sequence and breakdown of email
exchange regarding the storage shed.
6/18/13 Midday, DP informs chef Tim Roth of his decision to not at this time pursue
the new first floor restaurant and instead asks Roth to be Upstage chef and design a
new Upstage kitchen. Roth works on that premise and eventually delivers a design.
6/18/13 to 6/24/13 At the city, a lot happens behind scenes during the next week.
Probably legal advice is sought and provided. A city legal strategy gels. The city
strategy and DP’s strategy are coordinated.
Malcolm Harris (Port of PT, Port Townsend, and Jefferson County associated attorney)
is secured as DP’s attorney. It’s likely John Watts, city attorney, Malcolm Harris, Rick
Sepler, and various City members converse to determine and refine strategies. City
departments, personnel, and probably elected officials are primed to promote
consensus. It’s determined DP will be copied but not respond to CM’s email response to
Venarchick, nor to Council. This perhaps allows the CM to blame lies on Peterson,
should he need to. Also, it lets DP know that the City will not investigate as well it
should.
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It appears the City requires DP to deliver specific and reifying information to the building
department in order to expedite permit 13-048: see DP’s 6/21 email to Hoskins and
Section Building Dept Activity Log, Violations, and Fabrication of a Story.
DP is anxious to have the permit in hand. The city is anxious as well to issue the permit
in order to cover up irregularities and issue the permit before DP initiates litigation with
Upstage.
6/21/13 DP delivers an email to Hoskins previous to receiving the issued permit. It
delivers a backtracking story full of falsehoods and appears to be an effort to cover up
facts and the actual process of events. It’s a false verisimilitude, a whitewash. There is
little true in the description of events.
6/21/13 Issuance Permit Bld 13-048. The city issues permit 13-048.
6/24/13 Timmons responds to Venarchick, Cc City Council and DP, and provides
false information, lies, to Council. CM asserts that the shed belongs to Upstage and that
a contractor is doing tenant work. This is not true. The response is nearly a week after
her complaint. Appearances are that CM discovered the extent of DP, building
department, and city issues. Subsequently collaboration of DP, DP agents, CM, and
City members is indicated before CM’s responded to Venarchick. SEE VENARCHICK
EMAIL SEQUENCE.
DP does not respond to the email.
There is no documentation of the CM’s investigation and the CM sites no source of the
information he conveys to Council. CM has not queried Upstage.
Peterson begins approaching Subject Matter Experts to be later used in litigation.
6/28/13 Upstage receives eviction notice on day scheduled for reopening.
7/3 Timmons report to Council regarding Upstage matters, calling it a
tenant/landlord issue. This report seems prompted by newspaper coverage of DP
eviction activities. Timmons further lies to Council regarding the DP’s shed. He conveys
to Council terms, damages and emergencies, that DP will use in his litigation efforts.
SEE SECTION: SHED/VENARCHICK EMAILS & CITY MANAGER EMAILS TO
COUNCIL.
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3. City of P.T. Building Department Activity Log Events
To better understand events, Calendar 1 contains City Building Department Activity Log
events. Calendar 2 combines Activity Log events and documents in the Building
Department’s BLD 13-048 file. Last in Section 3 is a hard copy of the Activity Log.
Calendar 1. City of P.T. Building Department Activity Log Events
4/3 (ENTERED INTO CHET)
intials: SF
4/3 John says it will need HPC Review for Deck
initials: SF
4/23 Plans to Chief Lowe for review
initials: MH
4/25 Approved Pizza Oven returned by Chief Lowe
initials: MH
5/23 Dave turned in more plans (structural scales)
initials: none
5/29 Dave brought 3rd copy in- sent info to Chief Lowe
initials: SW
6/10 Note to file. 6-10-13 (waiting for Ext. Revision)
initials: none
6/21 Plan Review
initials: MH
6/21 Received Revised Engineering for Structural
initials: MH
Approved Permit to follow : - MH(initials) 6-21-13
(Added above entry) Ok for Dave Peterson to shore up
building. & form new footings for concrete pour 6-28-13 ok
9/4 NO FINAL W/O NO PROTEST AGREEMENT for PARKING
initials: SF
Calendar 2. City of P.T. Building Department Activity Log Events and Building
Department BLD 13-048 file documents combined.
Activity Log events in red type. Building Department documents are in black type.
4/3 (ENTERED INTO CHET)
intials: SF
4/3 John says it will need HPC Review for Deck
initials: SF
4/3 Permit BLD 13-048 “REMODEL RETAIL INTO RESTAURANT SPACE submitted for
review and approval
4/23 Plans to Chief Lowe for review
initials: MH
4/25 Approved Pizza Oven returned by Chief Lowe
initials: MH
5/22 DP’s contractor Tollefson Builders letter to Michael Hoskins (MH) requests a phase
review and an initial permit for 13-048 to include
•! “Demolition, foundations, beams and columns…per engineer drawings
•! Miscellaneous removal, cleanup, and replacements of appliances and cabinetry
•! Install of new foams systems, welded ducting, fire insulation, and makeup air by
Alpine fire”
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5/23 Dave turned in more plans (structural scales)
initials: none
5/23 Submission by DP of Engineer Tracy Gudgel; material specs, “Re:
Columns and Footings” (Gudgel is PE - Engineering Manager,
Zenovic & Associates, Inc. serving Port Townsend, Jefferson, and Clallam
Counties)
5/29 Dave brought 3rd copy in- sent info to Chief Lowe
initials: SW
5/31 Note: DP signs MOA with Upstage. Upstage is paid $20,400 to vacate temporarily
for the structural upgrade time required by DP. See MOA
5/31 Re: HPC 13-029 (associate permit to 13-048) Installation of exterior
mechanical equipment (hood penetration) for 1st floor Pizza restaurant, 921
Washington St. Historical Preservation Committee (HPC) associate permit is
required to obtain permissions for visible penetrations for DP’s new restaurant.
HPC submission & site plan are received.
6/3 Elevations for HPC permit submission are received.
6/5 FFP 13-055 (associate permit to 13-048) City receives submission for
fire suppression system to be installed in Upstage space per 13-048, 5/22 initial
permit request, MOA description.
6/6 FFP13-055 is “received for code compliance” by Michael Hoskins, 6/6.
It is received and approved same day by Hoskins and Fire Department, Chief
Robert Low.
6/7 FFP13-055 is issued
6/8 Note: Upstage closes.
6/9 DP 13-048 demolition begins.
6/10 Note to file. 6-10-13 (waiting for Ext. Revision)
initials: none
6/10 DP letter to the City of Pt asks to modify permit and add demolition
and rebuild to the Upstage kitchen as first phase of work. He states extensive
damage was discovered in the kitchen and it requires a new floor. DP claims he
discovered this damage “in removing equipment in order to clean the for new
system…”
6/17 Peterson email to Michael Hoskins. Asks to “withhold the review of the
page one, first floor plan.” States he is “not going forward with the Washington
Street level restaurant as planned.” He states he discovered “a main support
column was not sound.” This column was slated to be replace per plans.
6/18 Note: Venarchick’s email accusing City of favoritism regarding DP is received 5am.
6/21 DP emails to Michael Hoskins (cc Sepler, Tollefson) He does not request anything
specific to his project. Instead he describes his entire project as “It started as a permit
for a hood being upgrade to provide a safe foam system … for the Upstage kitchen.
How can any one believe this?! The letter appears required before the city will issue a
permit for the work already accomplished.
It is a letter of lies that aims to cover up his past activities, transgressions, city
culpability.
6/21 Plan Review
initials: MH
6/21 Received Revised Engineering for Structural
initials: MH
Approved Permit to follow : - MH(initials) 6-21-13
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(Added above entry) Ok for Dave Peterson to shore up
building. & form new footings for concrete pour 6-28-13 ok
6/21 BLD 13-048 permit issued
6/24 Note: CM Timmons delivers email response to Venarchick; also delivered to City
Council and DP
6/28 Note: DP delivers Upstage eviction notice
7/3 Note: CM Timmons delivers email summary of DP/Upstage matters to City Council,
John Watts, DP, Rick Sepler, & Kenneth Clow
9/4 NO FINAL W/O NO PROTEST AGREEMENT for PARKING
initials: SF
!
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4. CITY MANAGER’S EMAILS & LIES TO CITIZENS AND CITY
COUNCIL:
Venarchick’s “Shed” Emails
On 6/18, PT merchant Lois Venarchick sent an email to the CM regarding a
storage building, asking if DP was inappropriately using his city position to
obtain special treatment. The following email sequence was not revealed to
Upstage until ten months after DP initiated eviction of Upstage.
The Venarchick email provoked the City Manager into action. He quickly learned
the ownership of the storage building (DP’s), the state of DP’s project, and DP’s
manipulations of Building Department processes. He perceived City
responsibility and vulnerability. A great favor to DP, the CM decided to cover up
the situation at great cost to myself, my family, Upstage, and Port Townsend.
In these emails, the CM lies to Council. Not one City Councilor or official Cc’d ,
responds. Not one questioned the CM’s determinations. It is likely all Councilors
were primed, for whatever reasons, not to respond or question on record. If
questioning or priming or agreement occurred at all, it occurred behind closed
doors.
Note - DP did not respond (or his response was not disclosed) to CM queries.
The CM did not demand a response of record from DP at all. Cc’d in emails, DP
did not object to any information the CM delivered to Council regarding the
storage building.
The CM intentionally did not ask Upstage if it owned the storage building. Of
course Upstage did not. DP’s 5/31 MOA with Upstage reads “2. Tailor Made llc
must make structural upgrades to the Terry Building… The bulk of the work will
be between June 10 and June 22… A container will be rented to hold contents of
the Upstage. A professional will be hired to move the piano.”
Following is the email sequence in red, Mark Cole (MC) comments in black.
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LOIS VENARCHICK TO DAVID TIMMONS
From: Lois Venarchick [mailto:lois@wynwoods.com]
Sent: Tuesday, June 18, 2013 5:45 AM
To: David Timmons
Subject: storage building
Hi David, There is a large storage building that has been placed in the city parking
lot just off Tyler Street, downtown, behind the James & Hastings building. Was a
permit required for this? If this is permitted, does that say that when I get ready to
do some of my shops' remodeling in the fall, that I also will be allowed to place a
storage building in this parking lot? This is not a complaint but more of an issue
where a city employee ( David Peterson, current owner of the Terry building on
Washington Street ) could be using his city office to allow this storage unit
placement. An issue of impropriety? I have never seen a storage building placed
downtown on city property before for a private business. Many thanks for looking
into this and please, do not hesitate to contact me with your comments. Lois
Venarchick
FROM DAVID TIMMONS (CM) TO RICK SEPLER, DAVID PETERSON (DP), &
KENNETH CLOW
-----Original Message----- From: David Timmons Sent: Tuesday, June 18, 2013 7:41
AM To: Rick Sepler; David Peterson; Kenneth Clow Subject: FW: storage building
Anyone know about this? ——
Only Clow responds. Meantime CM, by conversation or destroyed record, likely
learns the truth from DP. He learns it within the seven hours it takes for Clow to
respond to CM’s “So is this for Dave or someone else?” He does not query
Upstage. Neither DP nor RS replied. The CM does not demand a response of
record from DP or from Sepler. His investigative actions, of record, end the same
day.
FROM KENNETH CLOW TO DAVID TIMMONS
Original Message----- From: Kenneth Clow Sent: Tuesday, June 18, 2013 8:31 AM
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To: David Timmons Subject: RE: storage building Dave, I approved the placement
of a storage container in the back alley as part of the structural repair project in
the Upstage.
(DP’s project Bld13-048 was structural upgrade. It was not repair. It was Remodel
Retail into Restaurant Space that required structural improvements) Originally
Jerry Spieckerman contacted me to see if we had any objections to the Police
allowing the Upstage (Upstage did not make this request. It was either DP and/or
his agents) to put a construction dumpster in the back alley. After asking some
questions I found that it was really a storage container they (DP’s and/or his
agent) wanted for approximately a month or so. Dave Peterson confirmed the
request. (Again, DP confirmed the request) The approval was based on the fact
that the building would be closed during the repair work and hence not
generating its normal parking loads and the container is roughly adjacent to the
building. Also this was done to facilitate the maintenance of the historic buildings
in the downtown. We have supported other building owners (like DP) repair work
by allowing limited use of the ROW for contractor parking, dumpster placement,
and scaffolding.
DAVID TIMMONS TO KENNETH CLOW
From: David Timmons Sent: Tuesday, June 18, 2013 8:32 AM To: Kenneth Clow
Subject: RE: storage building So is this for Dave or someone else?
FROM KENNETH CLOW TO JERRY SPIECKERMAN
From: Kenneth Clow [mailto:kclow@cityofpt.us]
Sent: Tuesday, June 18, 2013 11:15 AM
To: Jerry Spieckerman
Subject: FW: storage building
Jerry, Do you recall who came to you initially to place the container in the back
alley - the contractor doing the work; Mark Cole, business owner; Dave Peterson,
building owner; or someone else? Thanks, Ken (Spieckerman’s answer is the
contractor. The contractor is DP’s).
FROM KENNETH CLOW TO DAVID TIMMONS
From: Kenneth Clow [mailto:kclow@cityofpt.us]
Sent: Tuesday, June 18, 2013 4:01 PM
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To: David Timmons
Subject: RE: storage building
Dave, The request for the storage building came from the building contractor
(DP’s contractor Hulbert or DP’s agents. By this time, Speickerman has informed
Clow that it is Tim Roth. Everyone in the City knows that Roth and DP are working
together on DP’s project). It turned out to be a storage shed, not a dumpster, for
the Upstage, not Undertown. (Undertown is DP’s past and closed business. The
shed was for DP’s Terry Building BLD13-048 Remodel Retail Into Restaurant
project’s structural upgrade phase in Upstage space and used by DP to store
Upstage equipment removed from Upstage kitchen) I did become aware that this
was Dave's building before the final decision to allow the shed was made,
however the fact that Dave Peterson owns the building did not influence the
decision one way or the other. Original Message——
(Ken From: Jerry Spieckerman Sent: Wednesday, May 29, 2013 2:52 PM To:
Kenneth Clow Cc: Jerry Spieckerman Subject: Dumpster Ken A contractor, Tim
Roth, (Tim Roth is DP’s agent. Everyone in the City knows that Roth and DP are
working together on DP’s project) wants to park a large dumpster for about 3
weeks in the Tyler Street lot, near as possible to the Undertown. This would take
up one or two parking spaces. Do you see any issues with this and should he
provide us with an insurance certificate since he will be on city property? Thanks
Jerry Spieckerman ——) (No response to insurance certificate question).
It is significant that Spieckerman’s reply “contractor” - not Mark Cole, not DP –
was delivered by Clow. The CM’s follow up question should be “Whose
contractor, Mark Cole or DP’s?” However, the CM already knows it is DP’s
contractor. The Building Department also knows the contractor doing structural
upgrade work in Upstage space (or the fallacious description, structural repair) is
DP’s contractor.
Indications are CM damage control efforts began 6/18. Legal assistance for DP is
secured, Malcolm Harris. Stories and strategy are worked out between DP, his
counsel Malcolm Harris, the CM and other City officials – John Watts, Rick Sepler,
Kenneth Clow, and Michael Hoskins – in the week following the email. It is likely
City Council members were partially privy or primed to not respond at all to the
coming CM’s 6/24 email response to Venarchick and his next 7/3 email advice to
Council. Same week, emails indicate DP desperately seeks future litigation’s
expert witnesses due that it has become a “legal matter.”
There is a rush to approve (legitimize) the structural upgrade work DP already
pursued and accomplished in Upstage before the CM responds to Venarchick. A
6/21 DP email to Hoskins encapsulates the new story and strategy. The City,
Hoskins, issues an approved 13-048 permit on 6/21. The appearance is that DP
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has perhaps not been working under an issued permit 13-048 at all, or that both
DP, the Building Department, and the City now prefer that perception.
Documentation however refutes that and in fact it is 13-048 that is “issued” on
6/21.
FROM DAVID TIMMONS TO LOIS VENARCHICK Cc: CATHARINE
ROBINSON, DAVID KING, DEBORAH STINSON, KRIS NELSON, MARK
WELCH, MICHELLE SANDOVAL, DAVID PETERSON
From: David Timmons [mailto:dtimmons@cityofpt.us]
Sent: Monday, June 24, 2013 6:10 PM
To: Lois Venarchick
Cc: Catharine Robinson; David King; Deborah Stinson; Kris Nelson; Mark Welch;
Michelle Sandoval; Robert Gray; David Peterson
Subject: RE: storage building
Lois, Sorry I did not take the last sentence of your email to mean I should
respond? But anyway, I did get the message. The "storage shed" was approved
to be placed there temporarily at the request of a contractor working for Mark
Cole. (Mark Cole had no contractor) The work was for Mr. Cole's tenet (sp, tenant,
CM) improvements. (Mr. Cole was not making tenant improvements) The request
was reviewed by Jerry Spieckerman and Ken Clow. David Peterson was not
involved in the request. (DP, or his agents, made the request) I do not see
anything unusual with the request and would consider the same for anyone else
that has a similar circumstance. We have been monitoring (there are no
indications of such) Mr. Peterson's personal activities relating to any potential
work conflicts and have in placed safe guards (there were none, not even proper
disclosures) that assure any activity is above board and no preference is offered
or provided to any request he might have. (No safeguards were at any time
evident) Let me know if you have any evidence to the contrary and I will gladly
investigate it. (She would have no evidence. She depended upon the veracity of
the CM. Neither Lois nor the CM nor any email recipients showed this email
sequence to Upstage, so Upstage did not have opportunity to provide the truth)
Regards, David Timmons
Council Members and DP do not respond to the CM’s email. Had Upstage been
queried at all regarding the shed or provided this email for review, the truth would
have been provided Timmons and Upstage alerted to DP’s duplicity - his secret
effort to escape his contractual obligations to Upstage; evict Upstage; and
conceal misuse of building department services. Plainly, the CM did not want
Upstage to read this email or know about storage container matters.
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Four days after CM’s response to Venarchick, DP serves Upstage eviction notice
and breaches his MOA with Upstage. The CM emails City Council members, John
Watts, DP, Rick Sepler, and Kenneth Clow. By this time, Councilors and all Cc’d
know these matters regard DP’s building project. Not one of these Cc’d is, via
disclosure, on record as inquiring, questioning, correcting or protesting.
FROM DAVID TIMMONS TO CATHARINE ROBINSON, DAVID KING, DEBORAH
STINSON, KRIS NELSON, MARK WELCH, MICHELLE SANDOVAL, ROBERT GRAY
Cc to JOHN WATTS, DAVID PETERSON, RICK SEPLER, KENNETH CLOW
From: David Timmons [mailto:dtimmons@cityofpt.us]
Sent: Wednesday, July 03, 2013 5:01 PM
To: Catharine Robinson; David King; Deborah Stinson; Kris Nelson; Mark Welch;
Michelle Sandoval; Robert Gray
Cc: John Watts; David Peterson; Rick Sepler; Kenneth Clow
Subject: City Employee
To City Councilors This lets you know:
1 - The City Administration has received inquiry and assertion that David
Peterson (City Engineer) is or may be receiving favorable City treatment with
respect to building permitting for improvements he is making to the Terry
Building which he owns (southeast corner of Taylor and Washington). One
assertion involves David being allowed to place a storage container in the back
alley to hold furniture's during repairs. The fact on this allegation is that the
contractor doing tenet work requested to place a temporary storage unit in a
parking space in the back of the building. Dave Peterson was not involved or
does he even benefit from this. Upstage did not request city permission to place
a storage unit in the public parking lot. The contractor was not doing tenant work.
The work was not “repairs.” The work was DP’s BLD13-048 “Remodel Retail into
Restaurant” structural upgrade work on the Terry Building, as outlined in his
permit and initial permit request.
DP was wholly involved in the shed. DP or his agents secured the shed. DP
benefited from the time and cost difference between using a close-by shed to
store Upstage equipment and the greater expense of moving equipment to
storage at an offsite location. The 5/31 DP/Upstage MOA specifies DP will provide
the storage shed for his 13-048 project“A container will be rented to hold the contents of the Upstage.”
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David has received no treatment that is not given to others in a similar
situation. Owners facing emergency repairs routinely receive emergency permits
to undertake demolition and temporary repairs. Likewise, an owner can be
granted a temporary uses of the right of way during construction (dumpsters,
scaffolding). Why this reference to Dp “an owner” if the CM believes the shed is
not DP’s?
There were no repairs and no emergency repairs in the Upstage space. Such was
later claimed in legal documents as part of DP’s legal strategy. The shed was for
DP’s BLD 13-048 project and structural upgrade as outlined and pursued, not
repairs. He was an owner installing a new business that required structural
upgrades. In his MOA with Upstage, DP clearly states his intention to perform a
structural upgrade, improve the hood system … and secure a storage container
for his own, Terry Building, purposes.
I have directed that David Peterson is not to have any contact with City staff on
permitting or building issues, and that all such contact is to be through his
contractor. I will continue to evaluate if permitting issues require outside review
(for example, by the County). DP had rein-free contact with city staffs and
inappropriately manipulated city processes to his advantage from his project’s
beginnings.
CM’s direction is too late. It is also insincere. At this point certainly and in
retrospect much earlier, outside review ought to have been required from the
project’s start. The CM fully understood the potential need for outside review and
stated so in March 2013, but for tbd reasons persistently fails to initiate outside
review or internal investigation. Instead we witness the appearance of City coverup, complicity, and collusion. By the time the CM delivers this email, he has
colluded with DP, DP’s attorney, and other City members.
2 - I have become aware that there may be civil/legal matters between David
Peterson as landlord and the Upstage as tenant. These matters are private in
nature and do not involve the City. Apparently, there is damage to structural
portions of the Upstage area of the Terry Building and require repairs, and the
closure of the Upstage during repairs. The City has approved temporary liquor
licenses for events that the Upstage has moved to the American Legion
The City Manager knows there are civil/legal matters between DP and Upstage.
The matters do involve the city, city processes, city transactions, and city
permits. CM does not state why these matters do not involve the City or why
these are “private in nature.”
The “damage to structural portions” is a description contrived by DP, his
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attorney, and City elements. The CM, in collusion, enters the future language of
DP’s litigation and lies into a City document. He provides no documentation to
verify this damage. He does not cite how he knows it. That is intentional, to
conceal the false information’s origin. The CM has now adopted a DP/City
storyline – that repairs and emergencies, not BLD 13-048 Remodel Retail Into
Restaurant and structural upgrade – is the basis of DP’s work in the Upstage.
BTW and more precisely, the approved licenses were the American Legion’s, and
the American Legion received all gain from licensed sales.
Let me know any questions. There are no records of question revealed in city
disclosure and no response from DP. Again and intentionally, DP is privy to
information that is not shared with Upstage.
David T
Conclusion
Hidden in emails rather than Building Department files, the CM figured the emails
would unlikely be discovered. In fact, the emails were not revealed to Upstage
until 10 months after DP initiated eviction proceedings against Upstage.
At the end of Upstage financial resources with attorney fees approaching $80K,
the emails convinced Upstage to settle immediately. It was one matter to be in
litigation with DP. It was quite another to realize DP had the lies, support, and
resources of the CM and the City of Port Townsend.
The CM intentionally provided misleading information and lied to Venarchick. City
Council members and all others Cc’d did not respond to these emails, indicating
their agreement. It is possible all recipients knew the CM was lying. That is why
the names of Cc’d City officials and Councilors are included in this complaint - in
order that we might hear from them why they said nothing regarding a citizen and
a Port Townsend business and arts facility being impacted by a City official in
process of using City services.
The CM again provides a great favor to DP, declaring to Council that DP/Upstage
matters are of a private nature and do not involve the City.
DP knew the City (its CM, Councilors, and Officers agreed) would not itself
investigate DP for his Building Department transgressions and multiple violations
of Codes and Personnel Policy. Such investigation would decimate DP’s litigation
arguments, much to DP’s financial loss.
The simultaneous appearance of DP’s building department descriptions, DP’s
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litigation lies, the CM’s lies, and the CM’s copy of DP’s litigation terminology
indicate complete collusion between DP, DP’s attorney, and the CM from 6/18 on.
DP, City Engineer, received wrongful favor, support, and gain from the CM’s
actions and the City’s non-actions. Officials and City resources were used in
support of DP. Other City officials were to degrees likely involved in cover up.
Upstage was consequently harmed and impeded in seeking justice.
Venarchick was correct: “favoritism” was provided and benefitted DP.
!
COMPLAINT
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Section 5. THE BIG LIE
Intending to install a new restaurant on the floor above Upstage, DP planned,
commenced, and significantly accomplished a structural upgrade in Upstage space per
submitted BLD 13-048.
However, in WA Superior Court court documents DP claims he’d given up his BLD 13048 Remodel Retail Into Restaurant project and its required structural upgrade before
he started work in Upstage:
“…by the time the work in Upstage commenced, Peterson had abandoned his plans for
the restaurant upstairs and the only work that was going to be performed in the Upstage
premises was work being done for the Plaintiff’s benefit, namely the rehabilitation of the
hood system…” (See Included Court Document)
This is a lie. The lie is coordinated with information the CM delivers to City Council.
How believable is it DP gave up his “BLD 13-048 Remodel Retail Into Restaurant”
project, his new restaurant and structural upgrade plans” before he began work in
Upstage?
DP •! announced plans to install a new restaurant in the space above Upstage in
March, 2013; the CM reported such to City Council 3/19
•! forced his retail tenants to move from his future restaurant space
•! researched extensively and planned extensively for months, through June 2013.
•! submitted a permit BLD 13-048 titled Remodel Retail Into Restaurant on 4/3
•! submitted engineer plans addressing the work from 3/2013 through 5/31,
fundamentally the same work pursued and accomplished
•! requested an initial permit and phase review 5/22
•! signed an MOA with Upstage 5/31, a week before structural upgrade work
commenced; paid Upstage $20,400 to remove equipment, suspend business,
and temporarily vacate. Contracted for Upstage reimbursement if the project was
not completed in time for Upstage reentry.
•! At no time asked or made any effort to alter this MOA.
•! Secured BLD 13-048 associate permit HPC 13-029 on 5/31
•! Secured BLD 13-048 associate permit FFP13-005 on 6/7
•! Started work, per plans, 6/8 in Upstage space and by 6/18 had completed near
half of the work per 13-048 plans; by 6/28 over 75% of the work per plans
•! Until 6/17, evidenced no documentation (even in personal emails) that he’d
changed his mind, abandoned his 13-048 new restaurant plans, and begun work
for reasons other than new restaurant & structural upgrade plans.
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•! Not until 6/17 actually asks Hoskins to “withhold the review of the page one, first
floor (BLD 13-048) plans. He asks to withhold. He does not ask to abandon. This
is the first documentation and only documentation of possible plans to abandon
his new restaurant effort. Even so, he does not abandon his structural upgrade.
He continues it.
_____________________________
DP’s court statement intended to help him escape from his MOA with Upstage. The
MOA specified reimbursement should Upstage not reopen on time due to construction
activities. DP’s claim would not stand in court, but DP and City strategists did not expect
the case to reach court. CM and City elements, in agreement, perceived little risk in
delivering the same fallacious story to Council and the public. It is possible Council was
prepped and fully knew DP’s story was fallacious.
In emails to City Council, the CM implies that DP’s work in Upstage regards damage
and emergency repairs, not structural upgrade planned and performed per BLD 13-048.
DP is lying in court documents and the CM is lying (or providing intentionally false
information) to City Council and the citizens of Port Townsend. There is no
documentation of DP’s claims and much documentation otherwise. The CM provides
zero documentation upon which he made his determinations.
From personal to official, documents evidence that DP’s structural upgrade work began,
was conducted and accomplished according to “BLD 13-048 Remodel Retail Into
Restaurant” plans. DP’s work in Upstage regarded neither repairs nor emergency. In the
least, DP and CM colluded and lied in order to benefit DP, harm Upstage, and cover up
City errors and corruption.
Why would the CM lie for DP and risk his reputation? Was gain involved? Were
officials wrongfully protected? Was a city employee ‘too big and knew too much to fail?”
Such assertions are plausible once the prime directives of City Ethics Code are blatantly
compromised.
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6. FAVORITISM & PREFERENTIAL TREATMENT:
1. Failure To Disclose, Failure To Document, Lying, And Collusion
2. Some Favoritism Examples
3. Summary
1. City responsibility for monitoring and regulating DP’s behavior is clearly declared in
City Manager Timmons’ email to Council 3/2003. CM, DP, and other city personnel had
substantial reason to believe that DP matters would “be “the subject of city action.”
Performing inadequately and with deception, they violated City Code. From BLD 13-048
project expedition to later legal DP/City collusion, they violated City and State Codes.
To DP’s advantage, orchestrated by the CM, the City •!did not fulfill its responsibility to monitor or investigate its employee
•!did not fulfill its responsibility to demand proper disclosure
•!chose a course of either non-action or obfuscation whenever action (such as
documentation) occurred
•!let DP proceed freely despite evidence that his project was devolving, was a
matter of City concern, and, later, devolved into eviction of a local business.
•!acted with complicity and collusion with DP regarding DP matters, including
wrongfully entering new legal terminology and determinations into City
documents simultaneously with documents in DP’s personal litigation
•!conveyed false information, lies, internally, to City Council, and to the public.
DP received wrongful advantage from his City position, colleague relationships, and
knowledge of City procedures and codes. City scrutiny should have been more, not
less, than average. DP •!received reduced scrutiny from the City
•!received preferential treatment, from project expedition to departmental laxity
•!wrongfully advantaged loopholes in City Building Department procedures
•!was not required to provide consistent, in writing, regularly disclosures to City
Clerk, contrary to City Ethics Code. The intent of City Code disclosure
requirements was not fulfilled. There were no public records “in writing” that
document the required periodic disclosures of “on ongoing activities, so the
information is available to the community.” There is also no submission and
written disclosure of court activities all that address BLD 13-048 and properly of
concern to the City.
•!Was allowed to convey unquestioned, uninvestigated, undocumented, and
erroneous information through City officials to other City employees, officials, and
the public. Some City members were wholly aware of the unverified nature and
falsity of this information.
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•! Was assisted by some City Council members who, primed, appear agreed to say
nothing.
2. Some Favoritism Examples
1. 5/22/13 Expedited permit. DP to Gudgel, Zanovic Engineering . DP tells Gudgel
that Building Inspector Hoskins will expedite the permit. At this point, construction has
not commenced and an MOA with Upstage is not formed. Expedition is a favor to DP.
The topic of “expediting” is columns/ and footing structural upgrade plans per permit
BLD 13-048. It has nothing to do with a Fire Suppression System that DP later alleges
in public records is the singular premise of his construction. In documents, public and
private, DP consistently uses the wellbeing of his tenant as the premise for expediting,
the tenant he will soon initiate legal action against.
2. 6/5/13 Expedited approval for Permit Fpp13-005,. The fire suppression system is
submitted 6/5, approved 6/6 by Fire Chief Low and Building Dept. Hoskins. The
expedited approval is issued 6/7. Within the permitting process, DP uses Permit FPP
13-005 to disguise his activities and pursue the structural upgrade under reduced
scrutiny, despite the building department specifically knows DP’s plans per submitted
BLD 13-048 and contractor Tollefson’s 5/22 BLD 13-048 initial permit request. Never
mind the legal landscape that follows DP’s eviction of Upstage.
3. 6/10 Lack of Supervision & Inspection. Building officials did not adequately
observe and supervise DP’s work, despite aware of DP’s permit submission, his
contractor’s 5/22 “initial permit” request, and later DP 6/10 submission stating that
“unexpected damages and consequent work is now included in the initial permit.”
These “unexpected damages” regard members already slated to be replaced, identified
in his plans and initial permit request. His construction completed in June 2013
matches submitted plans, phase reviews, and initial permit requests for 13-048. It
appears likely some city personnel know what DP was doing, i.e. twisting proper city
procedures to his advantage and avoiding normal departmental scrutiny. No Building
Department official questions the conflicting information in DP’s 6/10 request.
“Damages” is a word that every building and engineering professional knows will
provide “easy street” and less regulated solutions.
It appears DP intended to complete as much work as possible before incurring the effort
and/or expense needed to finalize plan approval. In the least, it appears an escape
strategy.
It allowed an uncommitted stance that left opportunity and convenience for DP to define
his project as best it served him at any moment. Later it allows him to morph his
Remodel Retail Into Restaurant project into one of “emergency” and “damages,” as a
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strategy to evict his tenant while conducting clearly defined work under a city permit.
4. 6/24 Favored treatment by City Manager. Email response to Lois Venarchick
from CM, Cd City Council and DP. CM lies and delivers false information to local
merchant Venarchick, Council, and DP, the latter without response to the errors. False
information deflects concern and assists DP’s legal strategy.
5. 7/3 Favored treatment by City Manager and City Officials. Email from CM
Timmons to City Council, Cc Watts, Sepler, Clow, DP. CM conveys erroneous,
unsourced, and highly disputable information to Council. No documentation verifies the
information CM delivers to Council. No Council members ask for verification. From
whom, where, and when? Collusion is evidenced regarding story, legal strategy, and
legal terminology. See Section, Venarchick Shed/Emails & CM Emails to Council
6. Privileged access
City employees sense and express improper protocol regarding city records, city
attorney, DP, DP’s council, and more. DP’s privileged access to and congress with City
officials generated unlawful coordination of story and legal terminology, and is further
evidence of favored treatment, complicity, and collusion.
__________________________
3. SUMMARY
It appears DP received favored treatment by the Building Department, the CM, City
employees, and potentially some City Council members. Code reads that an employee
should not benefit from any “action or non-action” due his position. Despite DP’s
devolving project and legal actions, DP provides no written disclosures. No documented
City investigation is conducted. No officials ask Upstage for more information. No official
documents indicate any query of DP. One exception (6/18) asking who owns the
storage shed, brings no documented response from DP. No official requires DP’s
response. DP did benefit from the City actions or non-actions due his position.
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COMPLAINT
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Breakdown and Analysis of
DP Contractor letter to Building Dept. 5/22
This document broadly describes DP’s contractor’s specific and Upstage’s broad
understanding of the project. He requests the building department for a phase review
and initial permit. The project is DP’s installation of a new restaurant in the retail shop
space above Upstage, BLD 13-048. It requires structural upgrades to building elements
situated in the Upstage space.
“On behalf of David Peterson, we are requesting a phase review of the plan for the
Terry Building…”
“We are requesting an initial permit for work in the Upstage which includes… (as
specified in the request”)
“We need to expedite the work to fit in (the specified time schedule).”
Expedition is a favor, helping to fulfill DP’s personal contractual obligations. Until
eviction notice is served, DP often uses Upstage, not DP, as grounds for expedition.
Request is made to expedite June work due a limited window requested by DP of
Upstage and provided by Upstage. The work is for the purpose of installing the new 1st
floor restaurant and overall building safety, not any Upstage request.
The contractor’s “initial permit” request specifies demolition. The plan is to remove the
Upstage floor and walls in the kitchen and wherever other new upgraded structural
support requires floor removal. The new restaurant’s proposed heavy oven sits above
Upstage kitchen. As well, “change of usage” from retail to restaurant probably requires
upgrade due increased customer and equipment load. The engineer plans are clear and
specify the supports to be addressed - new column concrete footings, columns, and
shoring of walls beneath the Upstage floors. See Building Depart 13-048 plans. From an
earlier DP document:
“The Lessor will be installing structural improvements for better shoring and earthquake
proofing of the building as well as structural, plumbing and electrical improvements to
upgrade the street level (first floor above the upstage) that will require access to the
upstage during the day.”
The initial permit request also addresses installing a new fire suppression system.
COMPLAINT
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COMPLAINT
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8. Breakdown & Analysis of DP handwritten letter to Building
Department 6/10/13
Despite DP contractor Tollefson Builders’ 5/22/13 request to Hoskins for a phase review
and initial permit for 13-048, DP’s 6/10 letter seeks to modify permit application 13-048
and add demolition and rebuild of Upstage kitchen as 1st phase of 13-048. That is, this
letter is not to withdraw or modify the 5/22 request.
The two documents deliver copying but confusing and/or conflicting information. The
6/10 letter adds a story element “damage” that DP later expands.
“This is to modify the permit to add rehabilitation of the Upstage kitchen…”
Tollefson’s request clearly listed foundations and beams (some beneath the kitchen
floor, and nearly all beneath floors and/or encased by cabinetry), fire suppression foam
system, demolition, etc. Demolition, replacement of the floor (an old walk-in frig),
accessing the concrete foundation, new footings and shoring were all addressed in
previous conversations and many documents, including 13-048.
To perform the above is the reason DP wrote and signed an MOA with Upstage and
paid Upstage $20,400 to temporarily vacate specified areas and suspend business. It is
the reason all equipment and supplies were removed from the kitchen, all plumbing and
electrical severed and mostly demolished, the concrete floor demolished, and the
grease trap removed - all promptly addressed in the first days of work in order to access
the foundation.
“This is to add demo and rebuild of the Upstage kitchen to the permit as the 1st phase of
work.”
Demolition was specified in Tollefson’s 5/22/13 “phase review” and “initial permit”
request. Where demo is specified, rebuild is implied. What is DP’s intention of adding
“demo and rebuild” at this point? Upstage cannot reoccupy without rebuild.
•! Both documents, 5/23 and 6/10, are filed with the city.
•! Neither are recorded in the Building Permit Activity Log for 13-048.
•! No permissions or denials for phase reviews, 1st phases, initial permits, or
modifications appear in the activity log.
•! No documents were issued that grant, modify, or deny phases, phase reviews,
initial permits, or modifications.
In light of DP’s later legal strategy, the 6/10 letter begins to change the Remodel project
story and its clear initial description. This change is a tactic and it’s eventually
developed into a new story: that is to describe his work as an address to damage, not
the same work specified in 13-048. Yet the work specified in 13-048 is the work pursued
and accomplished.
COMPLAINT
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“In removing equipment in order to clean for the new hood system, extensive water
damage was discovered in the kitchen. This will require a new floor…”
DP was not cleaning the kitchen. He, his contractor, and subcontractors immediately
removed the kitchen floor to access the column slated to be replaced. New column,
footings, and shoring required removal of the floor.
It appears DP is skirting and using loopholes in City procedures. He might not have
been working under a permit at all. Or he might have been working under an initial
permit, as he requested. Nevertheless, he begins using “damage” as cause for work he
already had planned and to name “damaged” the items he’d already slated to replace.
After Venarchick’s email (see section) disturbs the city 6/18, DP further elaborates this
story into “emergency” and “damages,” As City Engineer, he knows these terms distract
from the truth of the project and provide leniency and expediency in terms of city
approval and permitting. Timmons (CM) delivers the same story components to Council
6/24 and 7/4, for the first time using the words “repair,” “damage,” and “emergency
permits.” His 7/4 words and advice now match DP’s and provide great service to DP’s
new “eviction” strategy. There is no record of DP disclosure and there is no record of
how CM obtained the information he conveys to council. “I have become aware…” is
CM’s only explanation of the source of information. He could only “have come aware”
from DP, DP’s legal agent, and City co-strategists.
In fact, there were only three emergencies during the structural upgrade - 1), when DPs
contractor removed load bearing wall before proper bracing, 2) when DP understood
that his project was very flawed, and 3) when DP understood he could and would not
meet his MOA’s obligations to Upstage.
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COMPLAINT
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COMPLAINT
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9. Breakdown & Analysis of Peterson (DP) email to Hoskins,
Building Department 6/17
DP’s email to Hoskins is the first and only statement documenting DP is possibly
abandoning his new restaurant plan. It is well after his work began on the new
restaurant and his construction commenced in Upstage; three weeks since signing an
agreement with Upstage and paying Upstage to close; and almost a month since his
contractor Tollefson requested his phase review and initial permit.
Later, in letters and court documents (apparently not disclosed to city), DP claims he
abandoned his new restaurant plans before work began in Upstage space. He claims
his only work in Upstage was to install a fire suppressions system and repair floor as “a
favor” for benefit of his tenant, Upstage. These are documented lies.
David Peterson (DP) informs the City he will not proceed with his new restaurant “as
proposed” and asks Hoskins to “withhold the review of the page one, first floor plan.”
“I hope you can review and approve the structural plan sheet … as we are scheduled to
pour the footing tomorrow … for a 3pm inspection.” In other words, please expedite.
“We are on fast track to improve one footing and support column in the building in the
Upstage and to get them back open.” Again, his future evictees are excuse for
expedition.
This “one footing and support column” is the first item DP addressed in the kitchen, one
already identified for replacement and upgrade per plans and permit submission. In fact,
per plans, DP quickly moved to replace others and shore brick walls while the floor was
removed. The floor was mostly concrete; it had to be cut into small pieces and removed
in order to access shoring and footing in structural upgrade areas; it was to be replaced
with wood flooring.
DP does not write he’s giving up his new restaurant plans. He simply states he is not
going forward with the 1st floor plan “as proposed” asks to withhold review of the 1st floor
plan. He wants it removed as a restriction for the city approval of work accomplished.
DP’s email could mean the new restaurant is on back burner, or not. He’s keeping
options open as long as possible.
With the dilemma of flawed plans, DP also faces a deadline for Upstage reopening. He
must figure a way to incorporate his obligations to both Upstage and his assistant future
chef Tim Roth. Many pages of docs explain what he’s actually considering. On 6/17, DP
asks MC that Upstage and DP now team together to create a better Upstage. He asks
MC to accept Tim Roth as Upstage chef.
Next day, however, the Venarchick email arrives at the City Manager’s office, raising
concern about preferential treatment of a city employee. Probably all hell breaks loose
at the City as the CM becomes aware of DP’s troubled project and city-related issues
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and vulnerability. (See Venarchick – related emails). On 6/18, DP’s solutions change
again as the CM takes the helm on matters.
Venarchick’s email, the CM’s involvement, and new legal advice inspire new solutions.
New legal solutions appear supported, and likely designed, by city elements and DP’s
counsel. DP plans and soon initiates eviction action against Upstage.!These solutions
become part of the CM’s 6/24 response to Venarchick, the 6/28 eviction served to
Upstage, the CM’s 7/3 report to Council, and subsequent DP/Upstage litigation.
COMPLAINT
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COMPLAINT
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10. Breakdown and Analysis of Email, Peterson to Hoskins,
June 21
Sent to Hoskins 3 days after Venarchick’s email accused the City of favoritism regarding
DP, DP’s email is a carefully worded and DP/City orchestrated document. It’s void of
Building Department business. It’s a story that never happened, a false verisimilitude, a
false documentation of events. It appears the City required DP to write this story in
order to further cover up Building Department permitting irregularities, DP lies and
dishonesty. Having received the email, Hoskins issues a 13-048 permit that approves
the work DP has already accomplished.
“I am taking the day off…” City awareness and perhaps strategy now has Peterson
delivering a message that he has not been spending city time on his own site. Not true.
This deception is repeated below.
“It started as a permit for the hood being upgraded …” It did not. It started as Remodel
Retail Into Restaurant Space, a structural upgrade. (See Peterson’s Permit Application
BLD 13-048; handwritten letter to Bldg. Dept 6/10 designating “Permit Application 13048; DP contractor letter to Hoskins 5/22; DP’s email 6/3 to Gudgel. DP/Upstage MOA)
“then it grew to the kitchen floor being rotten…” The kitchen floor was slated to be
demolished in order to address a structural column and new footing beneath it, install
new shoring, and replace the concrete floor of a former walk in cooler that was uneven
and had been in place over 35 years. (See Permit Application BLD 13-048; DP
contractor letter to Hoskins 5/22; DP’s email to engineer Gudgel 6/3).
“…then it was found that a main building post was deteriorated…” The main building
post was slated to be removed, upgraded, and properly re-footed. (identified in BLD13048; in Peterson’s contractor’s letter to the Hoskins 5/22; in Peterson’s email to
engineer Gudgel 6/3). It’s condition was irrelevant; no structural failure was evident.
“Todd and the crew have been keeping you informed and there have been regular
updates between you, the contractor and Tracy…” There is no record of regular
updates.
“I have my day job so I am being brought up to speed each evening…” Again,
deception. In fact, Peterson visited the site frequently and was in conversation with his
contractor on a regular daytime basis.
“All parties are proceeding on this under somewhat emergency measures …both from
structural concerns…and the fact that an existing business is down.” The only
emergency is that Peterson is grossly behind schedule. He ineptly addressed and lost
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control of his project. Concern for an existing business being down? He serves Upstage
eviction notice 7 days later.
“Todd has been working with you directly to keep you informed as he finds new
information.” There is no record of such communication with Hoskins.
“I have let Todd know that he is to be the main contact and provide full communication
with you…” A little late to be establishing this based on the records provided by the city.
There has not been full communication. The sparse communication is mostly DP’s and
indicates DP manipulation of department procedures. No documents indicate full
communication or city supervision. Incidentally, Peterson had no written agreement
with his contractor and future in-law.!!!
!
COMPLAINT
50!
!
COMPLAINT
51!
!
11. ENGINEER DRAWINGS & PERMITS
March to June 2013 Engineer Drawings Match DP work accomplished.
DP claims the work accomplished is repairs.
Included in this section are samples from many Engineer/BLD 13-048 documents. The
fact is that the work engineered, planned, pursued, and accomplished matches DP’s
earliest structural upgrade plans and engineer drawings. Study the drawings, dates, and
approved plans. These essentially match. DP planned, executed, and performed a
structural upgrade.
However, as DP’s project went sideways and appeared to take far more time and
money than DP projected, he initiated eviction and damage claims against Upstage in
order to escape the DP/Upstage Memorandum of Agreement he signed but 28 days
before. Nor could Upstage counter sue for reentry due the Upstage space was now
gutted.
Engineer Tracy Gudgel drew structural upgrade plans for DP’s Terry Building project
“BLD13-048 Remodel Retail Into Restaurant Space” in March 2013. The project
concerned installing DP’s new pizza restaurant in the Terry Building in the first floor
retail space above Upstage. The new restaurant required DP to perform a building
structural upgrade. Plans were submitted in March/April and updated through June
2013. All plans are essentially the same. They match the construction accomplished
through June and after by DP.
Despite lies in Superior Court documents, all documents evidence that DP started
construction in Upstage space with the intent of installing a new restaurant above
Upstage and performing a structural upgrade of the Terry Building.
While DP probably used loopholes in Building Department procedures from his
construction’s June start, he further used loopholes to rename his work. After 6/18, the
CM, Building Department, and other City elements colluded with DP in DP’s efforts to
redefine his structural upgrade work as damages repair – alleging the damages were
caused by Upstage. But none of the work addressed damages. The work was structural
upgrade.
The CM and City elements aimed:
1.! to wrongfully assist and benefit DP;
2.! coverup CM and Building Department errors (poor supervision, permitting
irregularities, and manipulation of departmental procedures by DP, City
Engineer);
3.!escape potential embarrassment and financial liability. !
!
COMPLAINT
52!
!
12. DP’s Eviction Strategy
Upstage eviction is not new to DP plans. He planned to force or evict Upstage from the
Terry Building from the time he purchased the Terry Building in 2008.
DP challenged Upstage’s lease in 5/2008 and again in 2/2013. Through 3/2013,
disclosed emails tell that DP considered evicting Upstage, even when Upstage and DP
were supposedly negotiating in good faith. However, DP eventually decided it to his
benefit to first develop the 1st Floor retail space of the Terry Building into a pizza
restaurant.
He decided to forward his new Pizza restaurant in the Terry Building and deal with
Upstage in the future, keeping Upstage as a rent paying tenant. DP’s strategy, keep all
options open is revealed in DP Superior Court disclosures in December 2013.
From March, DP focused on his new pizza restaurant – drawing plans, researching
equipment, and 4/3/13 submitting BLD 13-048 Remodel Retail into Restaurant for
review and approval. The new restaurant required a structural upgrade of the Terry
Building. The main upgrade elements were in Upstage space.
DP requested an initial permit from the City on 5/22. After months of negotiation with
Upstage, Peterson signed an MOA with Upstage on 5/31. Upstage agreed to close
temporarily and vacate areas of the Upstage to enable DP’s structural upgrade
construction activities. Due business impact, Upstage was paid $20,400, closed
temporarily, and fulfilled its MOA obligations. DP would not provide longer lease
guarantees in the MOA, so the 5 year extension in Upstage’s lease remained disputed.
However the MOA provided mutual guarantees of notification that satisfied both parties.
In that way, DP could still attempt to end Upstage’s tenancy within 2 years, but Upstage
secured a specified period of warning of lease termination to assist a more cost-efficient
relocation.
Later in litigation, DP contested both the original lease and the less than one-month old
DP/Upstage MOA in order to evict Upstage and elude specified reimbursements should
Upstage not open on 6/28.
DP’s eviction strategy resurfaced in his 6/10 handwritten letter to the Building
Department, wherein he describes his work being performed as an address to “damage”
rather than his, in fact, structural upgrade and 5/22 initial permit request. While mention
of “damage” might had many building department benefits for DP, the end result
accomplishes DP’s 8 year Upstage eviction strategy.
COMPLAINT
53!
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COMPLAINT
54!
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COMPLAINT
55!
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COMPLAINT
56!
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COMPLAINT
57!
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COMPLAINT
58!