CASINO v RUSTON - DAY ONE - AFTERNOON SESSION - DAN ALBERTSON

Monday May 17, 2010 1:30 pm courtroom 2A Judge Fred Cuthbertson

Please note:
No written or audio recording available. Transcript only on appeal. I have done my best but hard to keep up so post may not contain all testimony/arguments but I believe I have captured major points of interest.

This takes a lot of time be patient. Judge's decision may come before I can finish testimony. Judge very precise on issues both sides. Each side says they have the law on their side but Judge Cuthbertson makes the final determination.

Attorneys:
Joan Mell for plaintiff Steve Fabre. (m)
David Britton for defendant Town of Ruston. (b)

Judge- Deferring to Dan Alberton, sworn in (a)
a- Held official position as Ruston Council member 2007 thru 2009.
b- Obligation during that time, first discussed gambling tax?
a- Beginning 2008.
b- How many times gambling tax discussed?
a- Every meeting discussed enhancing revenues.
b- Review previous meeting notes?
a- yes. Minutes were a fraction.
b- Did you see Steve Fabre during 2007-2008?
a- I think he was at one meeting. I do believe one meeting.
b- Council began allowing public comments?
a- Always at end or beginning.
b- Was public comment moved?
a- Yes to end. At start every business item comment each business item. Meeting started 7 pm ran until 10 10:30.
b- Any meeting no public comment?
a- Not each business item. Any meeting we have quorum public attends.
b- Did Mr. Fabre attend council meeting regarding gambling tax?
a- No
b- Other contacts?
a- By phone 2-3 times. Answered once talked told him to put it in writing. Already had written letter including scheduled income tax.
b- defendant exhibit 10. Do you recognize?
a- Yes, letter Fabre sent with schedule D.
b- discusses impact doing poorly, partnership returns. 10 be admitted.
m- Objection. Witness has testified information private.
Judge- Sustained.
b- Letter addressed to?
a- Council members and Mayor.
a- Letter dated July 2 asked not to change taxes.
b- Admit def exh 11.
m- Objection same.
Judge- sustained.
b- Did you receive letter? Did they influence your decision?
a- Read plus attachment.
d- Mr. Fabre's profit/loss from 2008?
a- Knew he was losing money.
m- Grading tax scale rate 3 percent?
b- When was it imposed?
a- by Mr. Wheeler when in office.
b- How did that understanding affect your decision?
a- Was not favorable.
b- Out of business if tax increased?
a- Unlikely, gambling was small amount of overall revenue.
m- Million dollar gross what was net? Looked at town's problems not mr. Fabre's? How were town's finances?
a- Terrible. Entirely unsustainable.
b- If town to survive?
a- Surplus property fund used. Rainy day fund. Town was selling assets to survive. Only supposed to be used in emergency.
b- Budget, your understanding of revenue 2008?
a- Several months before tax increase, 600 to 700 per month.
m- Never saw $32 thousand per year over $30 thousand on an annualized basis?
a- general fund property tax biggest revenue.
m- What about pull tabs other gambling?
a- List not broken out. Unicorn pull tabs not broken out.
a- Gambling tax was across the board, increased all tax rates.
m- Increased tax how did it affect graduated rate?
a- Flat tax rate for pull tabs including any new business coming into town.
m- Card room gambling only enforcement?
a- Had police presence, subject came up. Don't remember well enough.
m- Was there concern on the council that tax money be dedicated to law enforcement, specifically gaming?
a- Not specific to gaming. Police budget went from $70 thousand dollars to $500 thousand dollars for police force. Huge amount of budget to police enforcement.
m- Issue of gaming when you ran for office? Was gambling an issue in campaign?
a- Background as a lawyer was significant. Was a topic in the town. Tax revenue came up.
m- Town of Ruston council procedures resolution. Did you help draft that?
a- Yes.
m- What was rule making procedures?
a- Meeting with council making proposed changes. Meetings got stretched out.
m- Were initially drafted when you came on council?
a- December 2007 one of immediate things.
m- Were they drafted and adopted by a super majority?
a- Version. No further changes adopted.
m- Did you at time of drafting take into account constitution of the State of Washington?
a- I can't say definitely.
m- Suppose council decides to outlaw all businesses in Ruston? What provisions are there for public comment?
a- Notice posted at town hall.
m- How would a citizen/business owner/resident hear other comments or influence legislation? How do you do this in a public forum?
a- Every meeting has comment period.
m- Any mechanism for public comment before council acts?
a- In regard to gambling in public comments earlier meeting.
m- Ordinance brought forward July 7. What time did citizenry have for comments? Tax rate?
a- I think 20 percent was floating.
m- Finally, as drafted rule 22 provides relevant party by motion, procedure for ordinances, rule 22 section8 day instituted by a majority of council plus one.Question is whether intent was before vote majority or majority present?
a- Calculated on number of members present. Impossible situation if Hedrick rule- four votes required you could have meeting not accomplish anything.
b- Ask about campaign environment prior to procedure rules?
a- Worst public display of public aggression I have ever seen.
a- Council members and mayor threatened got within four feet. Meeting stopped. Mayor stopped meeting. Fire chief had to persuade people to leave early. Never before seen at public meeting.
m- Why draft resolution not ordinance?
Judge - lead testimony as hostile witness.
m- No document communication of 20 percent tax increase before July 7th meeting.
a- Constant criticism of town clerk.
m- Refer to Terry Knapp comment. Public comment any reflection about notes not being accurate?
a-
1- On agenda but not on
2- Night adopted.
3- Public showed up and commented.
m- Who made motion?
a- I couldn't be there asked Wayne Stebner to motion 20 percent. Jane Hunt amended to 12 percent.
m- Ordinance 1253 referenced no political activity or need for law enforcement?
b- Objection.
Judge- overruled.
m- Was amount spent on Casino enforcement an issue?
a- Not subsequent to vote.
m- Did you study whether law enforcement budget applied to Casino?
m- Did you research other jurisdictions?
a- No.
m- Did you discuss with council members?
a- Police chief validating increase, Chief Reese.
m- Decorum at council meetings disseminated to public? Definition of Ordinance 1060?
a- I'm sure I read it.
m- Hands to witness to read.
a- means, reads law of the Town.
m- In Ruston ordinance includes resolution correct?
b- Objection.
Judge - overruled.
a- Form of resolution formal statement.
- A back and forth of 3-1 or 4-1 vote required followed ...
Judge- Move on.
m- Did you make contributions to Ruston Connection?
a- not based on trust based on doing.
m- Did Mr. Fabre express himself inappropriately?
a- No he didn't.
b- What about section D?
a- Law in quotes. Ordinance in Town of Ruston when appropriate. Resolution as statement of policy.
b- Provided law may be resolution not mandatory Pl Exh 30 page 8. Look over 19B take a minute.
b- Is there a difference between an Ordinance and a Resolution?
a- Yes Ordinance law a resolution legislative act.
m- RMC (Ruston Municipal Code) defines quorum as?
a- You can insert law into resolution must come from something else. Rule does not create law.
b- Regarding agenda and minutes?
a- Agenda can be amended issues added.
b- Town clerks job to publish minutes?
a- Minutes not transcript of meeting. She did her best.
b- If something not in minutes possible?
a- Yes.
b- Study session on raising taxes?
a- Marcotte study entirely possible.
b- Utility tax increase?
a- Compared rates to Tacoma raised to maximum rates by law.
m- Discuss annexation to Tacoma to solve budget issues?
a- Reasonable step to discuss what terms available.
m- before raising Mr. Fabre's taxes did Ruston benefit?
m- Did you study tax records prior to tax increase?
a- 2-3 months but not year.
m- In 2008 unable to pay but you went ahead with tax increase anyway?
a- Other businesses affected.
m- Surplus fund was dropping?
a- No interest rate dropping.
m- Mr. Fabre problem paying with gambling revenue. You were trying to tap into one million dollars in gross revenue?

WITNESS Bradley Huson, Ruston Council member. (h)
m- Are you a part time resident of Ruston?
h- Yes.
m- Law enforcement at PDC&C same since gambling tax implemented? Did you research review gambling act? Did you do research on police response?
m- Did you state just the sight of Mr. Fabre makes your skin crawl?
h- Yes.
m- Did you have meeting with Mr. Fabre before before you were on council? Did you have prior contact with Mr. Fabre?
b- Objection.
Judge- Overruled.
m- Did you direct gambling tax increase to law enforcement?
h- No.
m- Did you have citizens asking you to increase taxes?
h- No.
b- Was this a temporary tax?
h- no.
b- Regarding gambling tax increase in 2008 did Mr. Fabre contact you?
h- Called on telephone. Dim recollection.
b- Procedures, procedural rules what understanding did council members have to make Dan Albertson responsible?
h- make it safe and orderly.
b- Any restrictions on council members?
m- Did you follow?

4:13 pm DAY ONE ADJOURN until tomorrow 9am.

Judge- to lawyers. No speculation to be considered such as annexation, dislike, oligarchy, cabal. Legal theory only.

My comment: Regarding unruly crowd. Attended all meetings remembering only one time crowd rushed the council to within four feet and that was when their own supporters, after after an EXECUTIVE SESSION they voted to not shut down the COMMENCEMENT, all rushed the council screaming "Do what we voted you in for!!!" I was not scared at all but thought it was rather hilarious.

One other time at a Study Session when they were discovered having secret talks with Tacoma to get rid of the Volunteer fire Department a huge crowd showed up to voice their displeasure and they quickly terminated the session and high tailed it out the door under police protection.

They always had their own agenda not serving the interests of the town.
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DAY TWO next. On page 23 of 63. Stay tuned.
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