Coastal Post Online

April 2001

The Kinsey Report:

County Council Absolves Steve Kinsey In Conflict Of Interest?

By Jim Scanlon

In a letter dated March 19, 2001, Patrick K. Faulkner, the Marin County Council, responded to the Coastal Post's request for clarification on the propriety of Supervisor Steve Kinsey's voting on appointments and participating in revising the County's rules on septic systems when he himself constructed and then operated an illegal septic system for fourteen years.

Faulkner says that Kinsey and his engineering consultant are working with Environmental Health and that they have reached some kind of agreement on a final design which is expected soon. Since these negotiations are taking place under existing codes they will not be affected by any new regulations and therefore, "...conflict of interest questions ...are based on inaccurate factual assumptions and do not exist."

The Coastal Post is grateful for Mr. Faulkner's response and while not wishing to appear rude, it does appear that his analysis is unnecessarily narrow and restricted. It appears also that a crucial point is in error, perhaps as a result of the lack of documentation in this case.

As of March 21, 2001 neither the Building nor the Environmental Health Department had on file an application for a permit to construct a septic system. What is being considered is not "a new septic system," but the upgrading of a non conforming system that may be fifteen years old. (It is doubtful that a "new" system could be built on the lot.) After an entire year's time there is no application on file. Telephone conversations and discussions have, no doubt, occurred but are ephemeral and there is no official record of what has happened. As yet, no official, detailed plan has been submitted, and whether a plan will be submitted "soon" remains to be seen.

When a detailed plan is received, it will be examined by Environmental Health for from two weeks to thirty days and, if approved, a building permit will be issued. Since the conceptual plan does not involve easements on adjoining properties, it can safely be assumed that Supervisor Kinsey was not successful in his attempts to negotiate them as he stated in his request for an extension in September 2000. If it is an experimental system, as it will most likely be, it will have to be monitored for several years and if it does not perform as designed, it will have to be shut down and the new buildings removed.

When and if the detailed plan is approved, the question of the two illegal structures built on Kinsey's property in setbacks will have to be addressed by the Building Department and the Planning Commission. A decision will have to be made as to whether either, or both of the structures, can be used as bedrooms. This is crucial. If the buildings are considered as uninhabited structures, the septic system has a lesser design standard. If they are considered inhabited, the septic system has to be able to handle the extra load. So therefore the detailed plan will force the building department into a decision that will have serious consequences for Kinsey. There does not seem to be any impediment to making such a decision now, or earlier, however the building and planning departments do not seem to be in a hurry. If something looks like a bedroom and smells like a bedroom, is it a bedroom? It's hard to tell what is going on since very little exists on paper.

On March 19, the County's Building Enforcement Officer told the Coastal Post that Questa Engineering had been contacted by telephone that day and stated there was a design for an improved septic system that would be sent within thirty days. The enforcement record contained no new correspondence and there was still no written reply to the certified letter sent, November 17, 2000, giving ten days to comply.

It was publicly announced by Supervisor Cynthia Murray that the committee working with Environmental Health staff in studying the county's waste water rules was considering recommending an amnesty on illegal septic systems. It is not clear just what "amnesty" for illegally constructed systems means and what effect such an action might have on county workers charged with the difficult job of enforcing health and safety rules-occasionally against well connected land owners, It is also unclear how such a plan might affect state licensed contractors who can lose their licenses if it is shown that they performed work without proper permits.

Readers of this newspaper can judge for themselves as to the adequacy of the County Council's response to the questions of ethics and propriety raised by the Coastal Post. Nevertheless it seems abundantly clear that there is a serious lack of documentation of the Kinsey case and that it is unfair to expect county employees to deal directly with a powerful political figure. This is not to say that Kinsey would or could directly exert pressure on staff, (as he was accused in the Whistle Blower Case) but handling such a sensitive case "in house" necessarily creates the impression of favoritism and abuse of authority. It would be a simple matter to transfer the enforcement venue to a neighboring county since such arraignments are common.

The perception of unspoken, covert intimidation is reinforced by the recent turmoil in the Environmental Health Department where the Director and the senior septic inspector were basically thrown out of their offices on five minutes notice and later fired after filing so called "Whistleblower" complaints against Kinsey allegedly attempting to pressure staff to influence enforcement decisions on waste water (this was before Kinsey himself was outed for having an illegal system himself).

The long drawn out hearing on one of the dismissals on an assortment of charges mostly for gender discrimination, bad language, sexism, favoring white males etc. was suddenly stopped for unknown reasons, after the county's lawyer presented the county administration's case and the matter was settled privately. The exact details are secret. Although the transcripts of five of the day long hearings were furnished to the Coastal Post, the transcripts of the last two days were denied. Furnishing the previous five was called a mistake.

Big Grant to Clean Up Tomales Bay

The complicity of County Council, top county officials and somnolent citizens of Marin in maintaining silence on the appropriateness of a violator of County Codes being the lead man in revising those same County Codes, is verging past the absurd. This embarrassing absurdity was heightened when Kinsey himself announced that the county would get a $350,000 grant from the State Coastal Conservancy "to deal with any sewage pollution to Tomales Bay."

Since the Coastal Post does occasionally pay serious attention to what its readers say, we will ask the Coastal Conservancy what they think of grant money being spent in a county where the highest authorities see no conflict of interest when the foremost advocate of easing waste water rules has outstanding, long standing waste water code violations.

Kinsey's aide Lisa Crosse reportedly worked enthusiastically, hard and closely, with Environmental Health in preparing the grant. Kinsey was quoted in the Point Reyes Light, " It is gratifying that the Coastal Conservancy recognizes the significant momentum that Marin has been building on watershed issues." It is difficult to understand what this statement means except, perhaps unintentionally, "building on watershed."

While the State Coastal Conservancy did not make the grant to Supervisor Kinsey, it is ironic that he should make the announcement. It could not be determined at press time if the Coastal Conservancy was aware of Kinsey's personal problems with his illegal waste water system when it made the grant, but clarification has been sought and will be reported in future editions.

If and when county regulations on illegal septic systems and the building and remodeled of homes without permits are eased, it is not clear what effect this might have on state licensed contractors who performed such work-and who may be performing such work right now in anticipation of the easing or regulations. Might they lose their licenses? Or be sued by disgruntled home owners? An amnesty would certainly seem to benefit contractors, a source of considerable support to Kinsey and to his partner in a contracting firm who has lobbied publicly for easing restrictions regarding septic systems.

During the next to last week of March there was a flurry of articles on the county's role in waste water. In addition to the grant from the Coastal Conservancy to help clean up Tomales Bay, the former Health Officer of Marin, Ted Hyatt wrote a short editorial in the Gannett Independent Journal calling for Environmental Health Services to be placed under the control of the County Health Officer.

The IJ reported that the current Grand Jury criticized the Board of Supervisors for not having moved forward in gathering basic data on septic systems. The county has records of only about a half of the estimated 9,300 systems. The IJ followed up with an editorial "Septic tanks: County needs more urgency."

There was the announcement by Supervisor Murray of the possible amnesty for unrecorded, illegal septic systems. She is quoted, "We want to facilitate them doing the right thing, not penalize them." Kinsey could not easily have made that statement.

So, to all appearance, on site waste water systems are a topic of considerable interest with Kinsey the central figure, as he has been for the past five years. All these years, Kinsey has steadfastly pursued a radical relaxation in county rules relating to waste water systems. During four of those years he, as a licensed contractor, knew that his own waste water system and two of his buildings were illegal, yet this didn't deter him from aggressively pursuing his goals. For the last year everyone else has known that his system is illegal as it dragged through the county's enforcement system, nevertheless he continues his drive to modify waste water rules.

Kinsey has overcome criticism for his being paid consultation fees by the Lagunitas School District for work that many people thought was volunteered. There were also questions raised as to whether work the private firm he worked for paid prevailing wages for work done on the school as required by law. He overcame criticism that he had advertised himself as an architect when he was not. His influence helped make the French Ranch subdivision of luxury homes a reality. A reality built on land zoned for agriculture.

Will he, or won't he achieve his waste water goals and dreams for West Marin? Will he ever get his own septic system built? Stay tuned.

The Coastal Post is interested in hearing from home owners about their experiences with the county after being cited for having constructed out buildings or addition to their homes or were found to have constructed or altered septic systems without permits. Call 868-1600, email to <[email protected]>, or write to PO Box 31 in Bolinas, 94924.


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