Borough drops ethics case

Feb. 16, 2007

By Russell Stigall

Frontiersman

MAT-SU - The Mat-Su Borough Board of Ethics has closed its case against Jim Colver.

Colver was charged with wrongful intent to use his position while he was a borough assembly member to leverage bids for his company Colver Surveying Company.

Max D. Garner, special counsel for board of ethics, presented a consent decree during the ethic board's scheduled informational meeting on Wednesday. The decree was a joint effort between Garner and Colver's counsel, Scott Sterling.

Wednesday's meeting was an opportunity for prosecution and defense to present documentation for the case, for the board to receive the witness list and discuss the procedures of the ethics hearing that was to be held Feb. 26.

The board is made up of chairman Bill Siedler, Jim Sykes, Chris Ornquist and Amanda Browne.

Michael Chmielewski of Palmer was the complainant who first brought Colver's case to the board last year.

According to the consent decree, Chmielewski said Colver violated three Mat-Su borough codes. Colver was accused of using or attempting to use his office for personal gain, seeking other employment or contracts through use or attempted use of his official position and taking or withholding official action in order to affect a matter in which the municipal officer has a personal or financial interest.

Colver, a current Mat-Su School Board member, was said to have used his influence to win a subcontract with Greg Waisanen, president of Collins Construction. Collins was awarded the construction contract for the borough's career center project last May.

Colver had sent Waisanen a bid for subcontracting the survey work required for the project. Though Colver Surveying presented the lowest bid to Collins, Waisanen turned down Colver. The decree reports Waisanen's decision was based on a dispute between him and Colver about revisions to borough contracting and procurement codes know as the &#8220best-value law,” which Colver supported and Waisanen opposed.

Later, in a phone call, Colver asked if Waisanen had accepted his survey bid. Colver made reference to past projects done by Colver Surveying that had gone smoothly. Waisanen took this as a threat that Colver would make the career center project go less than smoothly if Waisanen did not pick Colver as the project's surveyor. This apparent misunderstanding and Colver's interaction with the career center project as an assembly member in the months before Collins was awarded the contract were the basis of the investigation.

The board's acceptance of the consent decree stipulates that the &#8220complaint against Mr. Colver is hereby dismissed,” according to a draft decree.

&#8220I am pleased that this misunderstanding is resolved and that the Board of Ethics has put this matter to rest,” Colver said in a prepared statement.

Colver may still face charges with the state Office of Special Prosecutions and Appeals in Anchorage. Palmer Police Department Det. Kelly Turney began a criminal investigation into Colver's alleged official misconduct and misuse of confidential information last year. Information Turney obtained through interviews and official correspondence was passed on to the special prosecutions office.

The prosecutors can review the case and decide if it is worth pursuing, Turney said. Special prosecutor James Fayette, who is assigned to the investigation, was unavailable for comment, but Turney said he has not heard that the investigation is finished.

Ethics board member Jim Sykes said part of the board's decision to accept the decree was based on Colver's pattern of practice.

The board looked at a year of assembly minutes, showing that Colver had a history of recusing himself on almost all votes relating to major capital improvement projects in the Valley, Sykes said. Colver also had worked with Collins Construction over the last few years and had recused himself on those instances as well.

However, the reason Colver had been recusing himself lately is due to a borough statute that says if an assembly member had done work for a client in the previous 12 months, they have to recuse themselves when issues concerning that client come before the assembly, special counsel Garner said. Collins Construction had recently been a client of Colver's.

Had Colver not worked for Collins in the previous 12 months, the case would have been different.

&#8220The issue would have been more interesting. It would have been a closer issue,” Garner said.

During an executive session Wednesday, the ethics board discussed Garner's decree and accepted it upon returning.

The ethics board requested a work session in April to gather information and input from previous ethics board members and state legislators and to review the ethics rules of different municipalities so the board can revise Mat-Su's ethics board procedures. The ethics board cannot revise ordinances, however. It is advisory to the assembly.

&#8220[The ethics board is] trying to make it both fair and right so that future decisions will be done correctly, as well,” Sykes said.

&#8220I know there will be criticism of our accepting the decree,” Sykes said. However &#8220I think Garner, the prosecuting attorney, stated his views very plainly,” he said.

Garner said he brought the decree forward based on economic reasons. He said the decree would save the borough &#8220in the range of $10,000.”

Since all parties involved could find common ground to permit a consent decree, Garner said he pushed it forward as fast as he could. Garner said he was pleased with the process and the outcome.

&#8220I think it was very good of Mr. Chmielewski to initially file the complaint and get the ball rolling,” Garner said. &#8220It was a valuable public service that he performed. He helped educate people that there is an ethics board out there.”

Garner added that a complainant does not have to be an employee of the borough or an elected official. Just file a complaint, he said. &#8220From there the process begins.”

Garner's decree showed that the attorneys could agree about facts, and about the broad sense that change was needed in the ordinance, Chmielewski said. But it left open the question as to Colver's intention.

However, Chmielewski said, he believes the Colver case is an example of a thorough look at an issue.

&#8220Now the ball is clearly in the assembly's court,” Chmielewski said. &#8220It's is a grand opportunity for the assembly to step forward and ride this little wave” of ethics reform.

People are talking about drawing bright lines separating ethical and nonethical, Chmielewski said.

One line is the legal line. &#8220Another says ‘do we allow people to put themselves at risk by neglecting to set up a safe area to do business for someone who holds office,'” Chmielewski said. &#8220It is easy to recuse yourself form a particular action, but that is not what we are talking about when you have two hats and you say you are taking off your assembly member hat and putting on your surveyor hat.”

Because people might have trouble understanding what hat you have on at the time.

&#8220It is not just the decision time that is important, it is all the other little interactions,” Chmielewski said.