* Berg will no longer represent city on Deluxe matters

SEDRO-WOOLLEY — The city employee who alleged that City Supervisor and Attorney Eron Berg tampered with the city’s Deluxe Recycling and Disposal documentation softened his accusations Wednesday.

Also Wednesday, an internal investigation countered the employee’s claims, and Berg announced he will no longer represent the city on Deluxe matters because attacks related to his involvement in the case have become personal and too distracting.

But the county’s position that Berg tampered with the Deluxe file hasn’t changed, according to a county attorney.

In sworn testimony filed by the county Monday in Skagit County Superior Court, city Solid Waste Division Manager Leo Jacobs said Berg told him during a meeting that he had no authority to submit a letter about Deluxe’s proposed refuse facility as part of the city’s consideration of the firm’s request to site a facility near Sedro-Woolley High School.

Jacobs also said that Berg removed the letter from the file, which was used in the city’s environmental review of the Deluxe project, then by the hearing examiner who heard and denied an appeal of the city’s process by Annie Janicki. Now the file, and the testimony filed Monday, are part of Annie Janicki’s Superior Court appeal of the hearing examiner’s decision.

“Mr. Berg told me in no uncertain terms that I lacked the authority to submit the ... comment letter,” Jacobs’ testimony said of the earlier meeting. “Mr. Berg stated that the ... comment letter was not to become part of the Deluxe SEPA record.”

But on Wednesday, Jacobs told the Skagit Valley Herald that he could not recall whether Berg told him he lacked authority to submit a comment letter. What he remembered Berg saying, Jacobs said, was that “I did not have the authority to write it like this.”

The letter, which was submitted to the city’s State Environmental Policy Act or SEPA file, includes 16 numbered statements about the Deluxe proposal, most of which are direct instructions as to what Deluxe “must” do.

The Planning Department, which reviewed comment letters and materials from Deluxe, was the one to set conditions under which Deluxe could get a building permit, Berg said.

“I specifically told Leo that he did not have the authority to set the conditions, and I did not tell him that he lacked the authority to make comments,” Berg said in an interview Wednesday.

Will Honea, the county’s chief civil deputy prosecuting attorney, said by e-mail Wednesday that Berg’s action still effectively tampered with the Deluxe file.

“Berg is predictably trying to turn this into some sort of ‘he said, she said’ debate about whether Jacobs or Berg is telling the truth,” Honea said. “That misses the whole point, which is exactly what Mr. Berg wants to happen. The point is that Berg inserted himself in the first place.”

But Berg insisted Wednesday that he did not interfere with the planning process. “I was not watching the file,” Berg said. “(Jacobs’) comment letter came to my attention because our Associate Planner (John Coleman) asked me about it.”

Jacobs’ clarification and Berg’s statement Wednesday about their meeting are consistent with what Mayor Mike Anderson heard from four other people also in the room during the earlier conversation, which took place on or about Feb. 8.

On Wednesday, Anderson launched his own investigation into whether Berg indeed “sanitized the record and tampered with evidence” as the county argued in a motion filed with Jacobs’ testimony Monday.

Anderson spoke with Jacobs, Berg, Planning Director Jack Moore, Associate Planner John Coleman, Building Inspector Eric Potash and Julie Rosario, a staff assistant in the Engineering Department, all of whom said they heard or took part in the conversation about the letter.

“Leo might have misunderstood, but the (other) five of them — it is amazing — they all said the same thing,” Anderson said of his interviews, which were conducted individually.

The interviews, with everyone but Jacobs, were to be followed by a second round with the city’s outside Attorney Bob Carmichael, said Anderson. Carmichael, who became the city’s sole attorney on the case after Berg stepped back Wednesday, will take sworn testimony and file it in court, Anderson said.

The mayor said that from his interviews, it appears one of the planners — not Berg — removed Jacobs’ letter from the file and that Jacobs, Berg, Moore and Coleman passed it around and discussed it. He said the planners and Berg pointed to another letter in the file, from city Wastewater Treatment Supervisor Debbie Allen, that made suggestions rather than setting conditions as Jacobs had done. They suggested Jacobs rewrite his letter in that format, Anderson said, and someone returned the letter to him. Jacobs did not return it to the file, Anderson said.

Jacobs’ recall of events did not fully match that one. He said that only he and Berg had the conversation, though others were in the room, and that Berg removed the letter from the file. Jacobs did not return the letter to the file, he said, because Berg “handed it back to me and wanted an internal memo instead.”

Jacobs said he has written SEPA comment letters in the same format for eight years and never had one returned or questioned. And being told to change his style was the same as being told to not submit comments at all, he said.

Pat Hayden, the city’s former attorney, said Wednesday that he might not have accepted Jacobs’ letter were he still at the city. That is because Jacobs is a part-time consultant for Tri County Recycling, a company that provides recycling pick-up services for commercial customers.

Hayden, who served under former mayors Sharon Dillon, Spud Walley and Bill Stendal, said Jacobs was excluded from the decision-making process previously in business with Waste Management, because of the potential conflict of interest.

Jacobs disputed that his work with Tri County Recycling had anything to do with his letter about Deluxe and said the two companies’ services do not overlap.

A filing from Janicki’s attorney, Tom Moser, on Wednesday said “motive, mistake or misunderstanding” are irrelevant and that what matters is that the letter did not become part of the official record. He argued that many of Jacobs’ points would support Janicki’s case and therefore the whole environmental review of Deluxe should go back to the Planning Department and start over.

• Elliott Wilson can be reached at 360-416-2147 or at .