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By Michael Howell
On Tuesday, March 29, the Ravalli County Commissioners hired Terry Nelson, of Applebury Survey, to be the new administrator of the Planning Department. That meeting, however, was later determined to be improperly noticed and at a subsequent meeting held on Monday, April 4, the commissioners officially voided that decision, and rescheduled a meeting to hire a new Planning Department Administrator on April
State law requires that notice of a meeting must be given sufficiently in advance of the meeting to permit the public to attend. It states the amount of notice required “should increase with the relative significance of the decision to be made.” The Attorney General has suggested that for county commissions it would mean 48 hours advance notice. But Ravalli County has adopted a resolution explicitly requiring at least 48 hours notice. However, the law does not apply to “ministerial” or “administrative” decisions.
The notice for the March 29 meeting only received 24 hours notice. Human Resources Director Robert Jenni said that, unlike the unusual hiring of a new Treasurer, which is an elected office, most hiring is handled by the commissioners as ministerial action and is thus exempt from the public notice requirement.
“Judging by the number of people who responded about that decision it is obviously one of significant public interest,” said Jenni.
“It was my mistake,” said Commission Chairman J.R. Iman. “I let it happen.” The solution, he said, was to void the original decision and set a meeting with proper notice to reconsider the matter and make a decision about hiring a new administrator once again.
The county received 17 applications for the job. Four of the applicants were interviewed including Nelson, current Interim Planning Director Tristan Riddell, former Ravalli County Planning Director Karen Hughes, and Diane Brody, from California.
At the March 29 meeting Nelson was hired on a vote of 3 to 1, with Commissioners Suzy Foss, Ron Stoltz and Matt Kanenwisher voting for Nelson and Commission Chair Iman voting against. Commissioner Greg Chilcott was absent.
Iman said at the time that he knew Nelson, but his decision was not personal, he simply believed that Nelson was not the best qualified applicant. The other three commissioners thought that Nelson was the best fit for the job based upon his experience and abilities. However, unlike in the treasurer’s position, the applicants’ resumes and application forms were not presented for public review.
HR Director Robert Jenni said that the applications, like most job applications at the county, were placed in a personnel file and not considered public documents because they contain private information such as medical information. However, after receiving several requests for the information, Jenni contacted the applicants and asked if they would waive their right to privacy and allow the release of their application material. According to Jenni, Terry Nelson was the only applicant to agree to making his application public. A redacted version of Nelson’s application was released to the Bitterroot Star.
The unredacted portion of the application shows that Nelson graduated from MSU with a B.S. in Electrical Engineering although the date of graduation was redacted. But in answer to a question about whether he had ever been charged with or convicted of a crime, Nelson states that he was “charged with stealing in 1987 in college but not convicted.” Nelson’s job history begins in September of 1989 when he worked as a delivery driver for Stageline Pizza in Bozeman. He worked there through 1992. From 1992 to January 2008 he worked for Applebury Survey under the supervision of Dennis Applebury, as a licensed surveyor and office manager. In 2008 he became president of the company.
Under “special qualifications” Nelson notes that he “has been a land use planner for a local survey company for 19 years” during which time he submitted and presented several hundred subdivisions and exemptions and was also very involved in subdivision regulation changes. He stated that he has served on a road standards committee for the county, has testified on and drafted bills for the legislature and has a good working relationship with other engineers and the Planning Department staff. He has also worked closely with the Flood Plain Administrator and FEMA on floodplain projects. He has attended two seminars on Coordination and he also has a thorough knowledge of the ARCView GIS program used by the county.
Commissioner Foss said that she voted to hire Nelson based primarily on the exit interview of departing Planning Director John Lavey, who identified the importance of being able to communicate with the public as the most important part of the job. She said that people were feeling disenfranchised by their government and the goal now was to heal some of those wounds. She said that public education would be the key. She said that Lavey made it clear that the county did not need another planner.
“I was looking for someone who could herd cats,” said Foss. She also said that she was kind of old fashioned in the sense that she thought a lot of book learning did not necessarily help with that and that experience was more important.
As regards the potential appearance of making a political appointment, since Nelson currently serves as President of the GOP Central Committee, Foss said, “I’m not going to not do what’s right just because people might misconstrue it.”
Commissioner Kanenwisher said that Nelson has 20 years of experience with subdivision review and subdivision regulations. He said that kind of experience carries more weight in this case than a formal education in planning. He said that the county does not need another planner or Planning Director and the job description they put out for a “Planning Office Manager/Administrator” reflects this.
“The Planning Department’s primary duties are to review subdivision applications, review and write subdivision regulations and manage administration of the floodplain,” said Kanenwisher. He said that the county “has a history of anti-development planning directors” and that Nelson, with his extensive experience on the business side of development, represented a much better choice for administering the department since he could see the process from the side of those who use it.
“He provides a completely different perspective and that’s what I’m looking for,” said Kanenwisher.
Commission Chair J.R. Iman said that when the decision comes before the Board of Commissioners again that all the applicants would be considered again.
“Every applicant for any job has strengths and weaknesses and these will be considered when we vote again,” said Iman.
One issue that has already arisen concerning Nelson’s experience on the development side of the subdivision process is the dispute over a subdivision he created in 2004 by dividing a parcel of land into seven lots through the Family Transfer procedure, which does not require subdivision review. The lots were each transferred to a different family member including his wife and children, but were then sold to other parties, the first sale taking place within two months of completing the family transfer. The rest were sold within a few years and no family member ever lived on the property.
Neighbors accused Nelson of using the Family Transfer exemption to evade the subdivision regulations and the cost of subdivision review and possible mitigation costs. They especially complained about the effects of the development on the neighborhood roads.
The issue finally came before the Commissioners in 2007. Nelson claimed that he was innocent and that it was extenuating circumstances that led him and his family to change their plans and sell off the lots and that everything he did was within the law.
Deputy County Attorney at the time, Alex Beal, noted that the statute of limitations had expired on the charge of evading the subdivision regulations anyway.
The consensus of the commissioners at the time was that the problem was primarily with the law and the changes in the law over time during this process.
According to the official minutes of the meeting, “Commissioner Chilcott stated the situation was clear, however unfortunate. He stated what they have here is someone who has taken advantage of the loophole who understood the practices. He noted Terry was aware of the elasticity of the regulations and it did make an impact on this entire body. The exemption process has been used statewide as an evasion process and no one can use it better than someone who works in that profession.”
The result was that the county attorney’s office was directed to look into charging Nelson with “unjust enrichment” for his activity, arguing that Nelson unjustly benefited by not going through subdivision review which would have required road improvements as part of the project.
The case never was presented, however, as the parties reached an out of court settlement which states explicitly that Nelson’s subdivision was legal and proper under existing law at the time and that the subsequent land transfers and sales were legal as well. The agreement also called for Nelson to make a $20,000 payment into a fund that would be held by the county and used for road improvements in the area.
Nelson told the Bitterroot Star that two different county attorneys found at the time that he had not violated any laws. His own attorney advised him that he would likely win any legal challenge.
“I decided to donate to the road maintenance in the area to make everyone happy,” said Nelson. He said it could have ended up costing him a lot more to prove his innocence.
Concerning the glitch in the hiring process over public notice, Nelson said that he was glad the commissioners recognized their error and were going to set it straight
“The process needs to be legal,” he said.
With respect to his qualifications for the job, Nelson said that he hoped having 20 years of actual experience in working with the subdivision process and laws would balance out his lack of a formal degree.
Nelson said he did not believe his appointment was politically motivated related to his position as chairman of the Ravalli County Republican Central Committee. He said that the commissioners may have had the opportunity to see some of his leadership qualities that he exercised in that position, but other than that, he applied for the job based on his qualifications and not based on any “political connections.”
“I want to be hired because I’m the most qualified person for the job,” he said.
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