Baker County commissioners decided to scrap their effort to hire a contractor to run a visitors center in Baker City and restart the process after the county’s attorney concluded the process was flawed due to potential conflicts of interest.
The main change that commissioners decided on Nov. 4 was to have that attorney, Drew Martin, write a request for proposals that, upon approval by the commissioners, will be sent to prospective contractors.
Previously, commissioners relied on the county’s Transient Lodging Tax Committee for that task.
Commissioner Bruce Nichols said on Tuesday, Nov. 17, that he still wants the seven-member lodging tax committee, as well as the public, to review the draft request for proposals and to offer advice to commissioners about how the final version should read.
“We’re going to ask for input about what should be included in the proposal,” Nichols said.
Commission Chairman Bill Harvey said on Tuesday that he does not have a timeline for the process.
“We want to get it done right,” Harvey said.
Nichols said he wants the new contract to be of shorter duration than the current 6-year contract with the Baker County Chamber of Commerce. Nichols said he prefers a 2-year pact.
In the meantime, commissioners have extended the current visitors services contract with the Chamber of Commerce through the end of the year.
In September, commissioners asked Martin to answer a series of questions regarding a new contract, which the county initially had planned to award in February 2020.
Two bidders responded to the request for proposals the lodging tax committee wrote, and commissioners approved, in the late fall of 2019.
They were the Chamber of Commerce, which has operated the current visitor center on Campbell Street for about three decades, and Anthony Lakes Mountain Resort. The deadline for those proposals was Dec. 31, 2019.
Both the lodging tax committee and the Baker County Economic Development Committee recommended that commissioners award the contract to Anthony Lakes, which proposed to operate a visitors center at its business, The Trailhead, on Main Street in downtown Baker City. The Chamber of Commerce proposed to keep the visitors center at its current location, 480 Campbell St., just south of The Sunridge Inn near Interstate 84.
But commissioners decided in February to delay a decision on awarding the contract, which is for about $77,000 per year. The money comes from the tax that guests in motels, bed and breakfasts, vacation rental homes and RV parks pay. The tax is 7% of the rental rate.
In a Sept. 9 letter to commissioners, Peter Johnson, Anthony Lakes general manager, asked them to award the contract during their Sept. 16 meeting, pointing out that the two advisory committees had recommended Anthony Lakes receive the contract.
Commissioners declined to do so, in part because, due to the COVID-19 pandemic, the county had not had the public meetings on the matter that it had planned to schedule.
In a Nov. 10 written response to questions from the Baker City Herald, Johnson wrote that he thinks the commissioners’ decision to restart the request for proposals is a “joke.”
“It could be argued that releasing a new RFP after (Anthony Lakes’) proposal and budget have been released and are now public record, is in itself unethical,” Johnson wrote. “Baker County is currently missing out on some huge opportunities due to the complete mishandling of this RFP process.”
Public records request
The Baker City Herald requested a copy of Martin’s Sept. 24 responses to the commissioners’ questions in early October.
Heidi Martin, executive assistant to the commissioners, responded that Martin had concluded his responses were not subject to release, under Oregon’s Public Records Law, due to the attorney-client privilege exception in that law.
The Herald appealed that decision to District Attorney Greg Baxter.
On Oct. 19 Baxter determined that Martin’s answers were not exempt from disclosure and he ordered that the county supply the document to the Herald.
Martin concluded that the county commissioners, not the lodging tax committee, should oversee the process for soliciting a contractor to run the visitors center, including writing the request for proposals.
In his response to commissioners, Martin cited the county’s transient lodging tax ordinance, which commissioners approved in 2019. The ordinance states that requests for proposals or contracts “shall be adopted by the Commission prior to enactment.”
“So in reality this process should have been conducted by the County from the beginning,” Martin wrote.
Although the ordinance does give commissioners the ultimate authority to decide whether to issue requests for proposals or approve contracts, commissioners have in the past relied on the lodging tax committee both as an advisory group and to draft documents such as requests for proposals for commissioners to consider.
In his response to the commissioners’ questions, Martin wrote that the county should not have allowed Anthony Lakes Mountain Resort to submit a proposal in late 2019 because at that time the county still had a legal interest in the ski area, which the previous, and private, owners gifted to the county in 2010.
According to the minutes from the commissioners’ Sept. 16 meeting, members of the nonprofit Baker County Development Corporation, which owns the ski area, had been appointed by the county.
Over the past several years the county commissioners have not had any involvement in the ski area’s operation, Commissioner Mark Bennett said on Tuesday, Nov. 17.
He said commissioners formally dissolved any legal relationship between the county and the ski area by voting to release the county’s interests earlier this year.
The request for proposals that commissioners approved in 2019 didn’t mention the county’s relationship with the Baker County Development Corporation and did not exclude Anthony Lakes from submitting a proposal.
Conflicts of interest claim
Commissioners in their September email to Martin also asked the attorney about Chelsea Judy, a member of the lodging tax committee who also works as Anthony Lakes marketing director.
Judy has acknowledged that her dual positions constitute a conflict of interest. According to minutes from the lodging tax committee’s Oct. 17, 2019, meeting, Judy abstained from voting when the committee approved the request for proposals during that meeting.
She also recused herself, sitting with the audience and not casting a vote, when the committee voted during its Jan. 30, 2020, meeting to recommend commissioners award the contract to Anthony Lakes, according to the minutes from that meeting.
In their email to Martin, commissioners acknowledge that Judy recused herself from voting on approving the request for proposals.
But commissioners claim that Judy “allegedly assisted the (lodging) Committee Chair in drafting the RFP” and that she “did have a copy of Baker County Unlimited’s (the Chamber of Commerce) proposal.”
Martin’s response: “Her participation in any part of the process certainly raises conflict of interest issues but also violates the RFP process, which allows proposal to be opened in a manner to avoid disclosing contents of the proposal to competing bidders.”
Martin cites Oregon Revised Statute 279B.06 (6), which deals with the manner in which proposals are opened.
But Johnson, Anthony Lakes general manager, contends Martin’s responses are “false, misleading, and show a complete lack of understanding of the RFP (request for proposals) process.”
The commissioners’ question to Martin does not state when Judy had a copy of the Chamber of Commerce’s proposal.
But Johnson, in a written response to the Herald, said Judy could not have seen a copy of that proposal until the rest of the lodging tax committee did, in January 2020.
“The proposals were submitted to Shelly Christensen with Baker County, not directly to TLT (the lodging tax committee),” Johnson wrote. “Following the closing date of the RFP, Shelly submitted them all at once to the TLTC. There is no way any TLT member would have proprietary information throughout the RFP process. The proposals were ‘opened in a manner to avoid disclosing contents of the proposal to competing bidders.’ It surprises us that the County and it’s attorney did not take the time to contact Shelly Christensen to understand the process.”
Johnson said he is offended by the county’s insinuation that Judy acted improperly.
“Chelsea Judy recused herself at the very start of this RFP process,” he wrote to the Herald. “This recusal is noted in the TLT minutes and Chelsea had no part whatsoever of the RFP process. To imply that an ALMR employee acted unethically is not something we take lightly and we will follow up directly with the County and/or it’s attorney regarding this accusation.”
Judy wrote in an email to the Herald that she is in “full support” of the statement that Johnson wrote.
Baker City Mayor Loran Joseph, who is the city’s representative on the lodging tax committee and attended each of the 2019 meetings during which the committee discussed the request for proposals for visitor services, agreed with Johnson that Judy had no involvement in that process.
“Chelsea recused herself entirely,” Joseph said.
Joseph also said there was “no way” that Judy, or any other member of the lodging tax committee, could have seen either of the two proposals because they were submitted to Christensen, who works for the county, not to the committee.
Christensen then brought the proposals to the committee during its Jan. 30, 2020, meeting, Joseph said. That was the meeting at which the committee voted 5-1 to recommend the county commissioners award the contract to Anthony Lakes.
Joseph said the committee was aware of the state law designed to ensure that proposals aren’t disclosed to competing bidders.
Nichols said he has no proof that Judy had a copy of the Chamber’s proposal at any time before Christensen supplied copies of both proposals to the lodging tax committee. He described the contention as “hearsay.”
Christensen, who takes minutes for lodging tax committee meetings, said on Tuesday, Nov. 17, that both the Chamber of Commerce and Anthony Lakes submitted their proposals before the Dec. 31, 2019, deadline.
Christensen said she emailed both proposals to all lodging tax committee members at 12:21 p.m. on Jan. 6, 2020.
Bennett said the reference to Judy having a copy of the Chamber of Commerce’s proposal was not in his view an assertion that she had a copy earlier than other committee members, or before the deadline to submit proposals.
Bennett said the allegation was raised by citizens, and he wanted to make sure Martin gave his legal opinion about all possible conflicts related to the process of recruiting a contractor to run the visitors center.
“I admire all the work that Chelsea does,” Bennett said. “I don’t want to be critical of Chelsea.”
In a letter to commissioners in February 2020, Keith and Suzan Ellis Jones of Bridgeport contended that Judy was “privy to all the information in the Chambers proposal and budget, giving the Anthony Lakes group and unfair advantage ...”
Harvey said on Tuesday, Nov. 17, that the reference to Judy having a copy of the Chamber’s proposal was not an accusation, but a “question.”
Question about phone call
Commissioners, in their questions to Martin, wrote that “During the meeting to award the RFP, one member of the (lodging tax) Committee stated that he did not know how to vote on the issue and left the meeting to make a phone call. After getting guidance on his vote he came back and cast his vote.”
The minutes for the lodging tax committee’s Jan. 30, 2020, meeting state that committee member Buell Gonzales Jr. “indicated he did not have enough information to make a decision. Loran (Joseph) recommended the Committee continue with the remaining agenda to give Buell enough time to make a few phone calls to get needed information.”
In his response to the commissioners’ question about the phone call, Martin wrote that the situation the commissioners described “certainly violated the RFP process if the member utilized information not included within the responses to RFP to make a decision.”
Gonzales said on Wednesday, Nov. 18, that before the Jan. 30 meeting he had reviewed the two proposals and preferred Anthony Lakes.’
Gonzales said he called two people during that meeting — Mark Witty, superintendent of the Baker School District, and Andrew Bryan, a member of the Baker School Board.
Gonzales said he doesn’t recall specifically what information he was seeking, but he thinks it was to confirm the name of someone he wasn’t familiar with.
He said the calls had nothing to do with him voting in favor of recommending the commissioners award the contract to Anthony Lakes.
The commissioners’ question misstates the circumstances of the Jan. 30 meeting by stating that the lodging tax committee met to “award” the RFP. Since the committee’s role is advisory only it does not have the authority to actually award contracts.
As the lodging tax ordinance states, only commissioners have that authority. They met on Feb. 19, 2020, to award the visitor services contract but ultimately decided to delay that decision.
Nichols said the wording likely was an oversight.
Another potential conflict of interest
The commissioners in their questions to Martin also raise an issue that did not exist when the lodging tax committee voted Jan. 30 to recommend commissioners award the visitor services contract to Anthony Lakes.
At that time Tori Thatcher was a member of the lodging tax committee.
In March 2020 her father, Tyler Brown, was also appointed to the committee to fill a vacancy.
The commissioners, in their list of questions to Martin, wrote: “Two members of the same family are currently serving on the Transient Lodging Tax Committee and both of those members have business directly with Anthony Lakes. Is this a conflict?”
Martin’s answer, in part: “Potentially yes, if those businesses would receive a financial benefit from Anthony Lakes being awarded the contract.”
Martin also wrote that “Regardless of whether it rises to the level of an actual conflict of interest it certainly looks bad and would taint the process even if Anthony Lakes is the best candidate.”
Brown said he doesn’t believe his or his daughter’s membership on the lodging tax committee constitutes a conflict of interest, calling the allegation “totally baseless.”
He said his daughter has a business that manages bed and breakfasts and vacation rental homes, which collect lodging taxes from guests.
According to the lodging tax ordinance, among the criteria that determine membership on the committee are people with, among other things, a “vested interest in County tourism.”
Brown said Anthony Lakes does serve beer from his brewery, although he said the ski area buys the beer not directly from him but from a distributor.
In any case, Brown said he considers Anthony Lakes a competitor as well as a customer, since the ski area also serves meals and potentially draws diners who might otherwise patronize his brew pub in Baker City.