BOISE -- Last week, the Bannock County Prosecutor announced he found no cause for criminal charges against the Ada County Commissioners or Dynamis Energy. His decision came after an independent investigator prepared a 6,000 page report examining various allegations made by a citizens group called Idaho Citizens for a Safe Environment and a Transparent Government.
The group alleged the Board of County Commissioners violated Open Meeting Laws, failed to use due diligence by doing business with the new company, failed to require Dynamis to get a bond, failed to use Request for Proposal (RFP) procedures, failed to follow zoning ordinances and illegal lent money to Dynamis, a private company.
The investigator, who is a former FBI agent with a specialty in white collar and financial crimes, interviewed dozens of people and examined hundreds of documents, finding no evidence of criminal misconduct. Some civil matters, the report notes, will be examined in already pending litigation brought by the same group that requested the investigation.
Within the report, several county officials in various departments told the investigator they'd seen red flags in how the Dynamis deal came about. The county clerk had written memos to other officials talking about concern that spending of county money for the project plans wasn't being appropriately documented.
According to the report, he also told Commissioner Sharon Ullman to discontinue using a fast-track procedure to hand-deliver some large payments to the company. Ullman told the investigator she needed to use the procedure so the county met payment deadlines established in the Dynamis contracts.
Some county employees recalled the initial processes being "fast-tracked" and done in unusual ways. For example, a Certified Energy Manager in county Operations, said she was never consulted on the project, even though it is her specialty. She also noted other unusual elements, such as how much engineers were being paid for the project. Ullman told the investigator the project needed to move quickly because of federal stimulus money and application deadlines.
According to numerous people in the report, including commissioners, Dynamis missed all deadlines listed in the initial contract, but payments continued. According to various documents and accounts, Dynamis executives had excuses for the delays. One person recounted the CEO telling Ullman "that if the county 'pulled the plug' because of these missed deadlines, [Dynamis] would sue the county for breach of contract".
The investigator examined whether any of the commissioners involved in the deal may have been personally benefiting from approving the Dynamis project. No one interviewed provided any evidence that was going on, and each commissioner denied such a thing occurring. Former Commissioner Fred Tilman told the investigator if anyone had even suggested such an arrangement, he would have walked away.
Outgoing Commissioner Sharon Ullman says she wants the project to succeed and the investigator summarized Ullman "has a personal stake seeing the project come to fruition, in order to prove to the public that the Commissioners made a good decision." She says her interest is generating more local power and reducing waste in the landfill. Ullman has been scrutinized for recently building a new home, but she provided the investigator some personal financial records to show her parents gifted her $210,000 in 2009.
Copies of calendars and emails show commissioners had individual meetings back-to-back with Dynamis executives in 2010. A county attorney told the investigator he knew of the so-called "serial meetings" but does not believe the county violated Open Meeting Laws. He said the county is too big to practically do everything in open session.
The group asking for the investigation is disappointed no criminal action will be taken, but says more could come out through its civil lawsuit.
"Something interesting to note [with this report], is that the investigator, who did an, I think, really thorough job, really couldn't have done more because she didn't have the subpoena power and wasn't able to compel people to testify under oath or produce documents," the group's attorney Andrew Schoppe said. "I think when people are faced with the penalty of perjury, they're a lot more careful with what they say, and they're a lot less inclined to protect others."
Schoppe says on Thursday the county moved for their pending civil suit to be dismissed. That matter will be taken up in court in February, but he plans to continue fighting.
"We will also see what the attitude of the Board of County Commissioners might be after mid-January. Because I think the current composition is very interested, personally and otherwise, in stopping this lawsuit. The post-January 14th board might not be so interested in stopping that," Schoppe said.
Commissioner Rick Ysaguirre, according to an interview summarization, believes the "current controversy by the public has the objective of stalling, and trying to buy time, until the new Commissioners replace Ullman on the Board in January, 2012." The new commission has a majority that has voiced opposition to the Dynamis project.
Dynamis CEO Lloyd Mahaffey released this statement to KTVB last week, following the prosecutor's findings:
"Although we have not, yet, had an opportunity to read the detailed report, Dynamis Energy is very gratified to see this investigation come to a timely and positive conclusion. We have been confident, from the beginning, that no laws were broken. Our team of Idaho-based entrepreneurs and engineers have developed a suite of innovative and proprietary mobile and fixed technologies that convert municipal solid waste and tires into sustainable energy. In doing so, we provide an extraordinary solution to the pressing environmental problems generated from land-filling waste and, at the same time, deliver a steady source of base load electricity for communities around the world. Dynamis will remain focused on that mission." C. Lloyd Mahaffey, Chairman and CEO, Dynamis Energy, LLC.
Emails to the current commissioners for comment were not answered.
To read the documents from the report, click here to go to a dropbox set up by Idaho Citizens for a Safe Environment and a Transparent Government.