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Interview with Joe Hyer, Part II

by Matthew Green, 5/19/10

Shortly after he pled guilty to one felony related to selling marijuana, former Olympia City Councilmember Joe Hyer sat for an interview with OP&L. In part 1, he discussed drugs, Jeff Kingsbury (who was the confidential informant), and his arrest.All quotes below are from Hyer.

After the Arrest

The next week was probably the single worst week of my life.”

The prosecutor filed three charges: selling marijuana to Jeff Kingsbury once, selling marijuana to Kingsbury a second time, and ‘intent’ to sell marijuana. The latter was based on having quantities of marijuana in pill bottles, which Hyer said was his way of portioning himself for medicinal use, but the prosecutor interpreted as preparation for sale.

Each charge came with an ‘enhancement’ for selling marijuana within 1000 feet of a school zone. Hyer’s house is about a half-block from two schools. No one suggested that Hyer sold marijuana to school kids, but that wasn’t necessary; proximity to the schools was enough.

Each felony carried a possible sentence of 0-6 months in jail, but each enhancement would add 24 months in jail, a series of consecutive mandatory minimum sentences that Hyer would have to serve in a maximum security prison, with violent offenders. “So suddenly, I’m going to be sent to prison for seven and a half years if I’m found guilty.”

Two days after the charges were filed, Hyer got a call from the prosecutors saying they didn’t plan to press the enhancements, and they didn’t want to take it to trial. “I finally breathed the first sigh of relief.”

According to Hyer, the initial police report – the one that led to Kingsbury wearing a wire – “said there were drugs in the house, there may be drugs in the house. But at that point, none of the police reports I read, and none of the statements from Kimball, indicated there was commerce going on, just that there might be drugs in the house.”

Well, that alone doesn’t get you a search warrant. That’s where they set up the sting, to entice me into selling to someone, using Kingsbury. So I’m like, ‘Oh, the idea of delivery, the idea of the crime was in the minds of the police so they could get a search warrant for my house.’”

Did they survey my house at any other time? Did they see other people coming and going? Did they try and set up other buys? You would think if you were building a strong case you would, you know.”

Hyer lives on a major street near the main Olympia police station, and says he sees police drive by his house many times each day, and often waves to them. “Do you really think I could run a marijuana empire out of my house, with that kind of scrutiny, with so many people knowing where I live? I’m just dumbfounded that even the Narcotics Task Force could believe that, although they clearly didn’t sound like they expected to find much.”

I’m told it was one of the shortest investigations they did, and one of the smallest busts they’ve probably ever done.”

When the prosecutor’s office called to say they didn’t want to pursue the enhancements, Hyer’s attorney “let them know we would not have our private investigator continue to follow this confidential informant. The prosecutor said, ‘You know who it is?’ We said, ‘Of course we know who it is.’ That’s what’s so odd, is that people think I didn’t know.”

So on March 9th, we filed a motion that pointed fingers but didn’t name a name. The next day we got called by both Kingsbury’s attorney and by the prosecutor saying ‘Keep this secret and it will help in your deal later on.’”

You can’t press delivery unless you produce your confidential informant in court. They didn’t want to produce their confidential informant.”

That’s when I started making calls and texts to anybody I had told or who knew, saying ‘Hey, please, just keep this quiet for a few weeks.’”

I debated resigning from the council [at this time]. My attorney advised me, ‘You go back to work, you go back to council like normal, because,’ he says, ‘your resignation from council, if that’s what they want, you can use. You can get a better deal.’”

Hyer’s attorney asked that Hyer, as a first time offender, to be sent to a diversion program or drug court, or maybe plead guilty to a misdemeanor such as marijuana possession. However, the offer from the prosecutor was to plead guilty to one felony, with up to 60 days work release.

Hyer says his attorney thought he had a strong case for entrapment, but with three felony charges, the fear was that a jury might find him guilty on one of them, perhaps as a compromise verdict, most likely on the ‘intent’ charge that did not directly involve Kingsbury. And, with the enhancement, that would mean at least two years in maximum security prison. “That’s what sealed it for me” to accept the plea bargain.

I’ve lately heard [Kingsbury] saying that no one would plead to a felony for selling pot once or twice. Well, you know, I’m not no one. It was obvious that what was being aimed for here was a felony conviction.”

And what they offered was to plead to one, not have to risk two years in prison for each one. I said ‘I can deal with that to end this.’”

Yeah, I screwed up, and I got caught, and I was set up but I opened myself to being set up. But it also still shocks me. I said to a few people, ‘I wish I’d just driven drunk.’ God, I can take my 5000-pound death machine and potentially kill somebody, and it’s only a gross misdemeanor.”

But in the privacy of my own home, medicinally I use marijuana for the past 12 years and that is a harm to this community? Maybe it’s the libertarian in me, but I think that what you’re doing in your own home, if you’re not harming others, really is your own business.”

In preparation for his sentencing hearing, Hyer collected letters of support to be presented to the judge, including from State Senator Karen Fraser, State Representative Sam Hunt, County Commissioners Karen Valenzuela and Sandra Romero, Olympia City Councilmember Stephen Buxbaum, former Olympia Mayors Bob Jacobs and Mark Foutch, Tumwater City Councilmembers Neil McClanahan, Ed Stanley, Tom Oliva, and Joan Cathey, Lacey City Councilmember Andrew Ryder, several downtown business owners, and more. The letters primarily argued for a lenient sentence based on Hyer’s service to the community.

Right as the court session was starting, Hyer’s attorney came into the courtroom and pulled him out. “He says, ‘They have a last minute change to your deal. They want you to not name the name.’”

Hyer says he had gone back and forth on whether to reveal Kingsbury as the informant after sentencing. “I was told that I was on the high ground if I didn’t name names. I don’t even know what high ground is anymore, because I’ve tried to be on the high ground on the council year after year after year, and what has it gotten me? I’m losing my right to vote, I’ve spent $8,000 now on this whole debacle that I’ve liquidated all my retirement to pay for, I’m off the council, I’ve gone through two months of hell. Wait a minute, where is this high road? And the people who didn’t take the high road seem to be doing just fine and having no penalty.”

He had decided he would tell the name if asked by reporters. “Then at the last moment, I’m told I can’t. Why? Why now? Why at the last minute? My attorney said, ‘Well, someone’s been making some calls to the prosecutor, both probably to our prosecutor and to the elected Prosecutor, and putting some pressure on.’”

So Hyer did not name Kingsbury, but later directed reporters to some of the people Hyer had previously talked to, who were under no legal prohibition against repeating what Hyer had said. Thus, Kingsbury’s name may have come out shortly anyway, which appears to have prompted Kingsbury to announce it himself the next day.

At the court hearing, “the prosecutor basically said, ‘We tried to find a middle ground. Yes, he’s a first offense, he did have this, and he did have these pre-packaged containers in his house, and we don’t know if he was selling to others’ – he admitted that – ‘but there was evidence here and there and this, and we thought 60 days in work release was a fair deal because we have to treat him differently, we have to treat him to a higher standard because he’s an elected official, and that’s what he gets when he becomes an elected official.’”

Hyer asks, when someone runs for public office, does “someone give you something to sign that said you were held to a different legal standard than others? I don’t remember that, personally. While I think the voters clearly can and should hold me to a higher standard, that’s the voters, that’s not the legal system. Justice is supposed to be blind.”

I tried for the last 67 days [from his arrest to his sentencing] to be your average defendant. I didn’t use the media. I didn’t go to the press. I kept things quiet. I made no public statements. I tried to act like anyone else in the legal system would, with the expectation that the legal system would then treat me like anyone else, not special.”

If I were any other defendant, I probably would have had diversion, drug court, or a misdemeanor plea. But I wasn’t any other defendant.”

Hyer spoke on his own behalf at the hearing. “I basically said, ‘Yeah, I screwed up. I am the village idiot. I showed very poor judgment.’ Yes, I should have gotten a prescription years ago. Yes, I should not have sold it to a close friend. Yes, that was wrong. Yes, that was illegal.”

The judge ordered 10 days in work release – down from the prosecutor’s request for 60 – and 240 hours of community service. “I thought Judge Strophy was, in fact, very fair.”

I have to go into schools and talk to kids about leadership, the public trust, judgment, and how mistakes can affect and have consequences there.”

About the City Council

Going back to the city council on March 9, the day of arraignment, that was one of the longest and worst days of my life. I was only working 4 to 6 hours at a time, because I was just exhausted by being out in the world.”

I realized that night, and the next week at council, that my head was not in the game. I wasn’t reading the entire packet. I wasn’t moved to act on issues. I admit, I was paranoid and fearful of the police. I said to the city manager later that week, ‘Even if I can, I’m not sure I can stay on the city council. I’m not sure I have the judgment. I’m exhausted. I’m not sure I have the energy to do this anymore.’”

In January, the council had unanimously chosen Hyer to serve as Mayor Pro Tem (essentially the deputy Mayor). “I had conversed with Stephen Buxbaum in December. When we agreed that I would be Mayor Pro Tem, it was because I could garner seven votes, or six we knew. He could garner potentially four or five, and he agreed ‘Okay, Joe, you do this for now.’”

On March 16, Hyer announced that give up his role as Mayor Pro Tem He says he would have preferred that the council pick a new Mayor Pro Tem that night “so there wouldn’t be politicking going on” for the position, but the council chose to wait a week.

I was heavily politicked on that. I could not believe the lobbying going on that week. Most of the lobbying – almost all of the lobbying – came from Craig Ottavelli. I’ve never seen Craig want something more.”

Hyer preferred Buxbaum.“In my mind, what it came down to was this division of old council and new. What we needed was Doug [Mah] and a new councilmember to lead the council. Also, I have a huge amount of respect for Stephen. He’s just a saint, and just a great policy mind. We’ve collaborated so much already.”

There was politicking all that day” before the council vote. In the end, the council chose Buxbaum by a 5-2 vote, with Ottavelli and Rhenda Strub dissenting.

A few weeks later, Hyer resigned his council seat. The rest of the council is now in the process of selecting his replacement.

When asked about the future of the city council, Hyer says “It can only get better. It hasn’t been that good a time the last six, eight, ten months.”

When I joined the council [in 2004], half of them wouldn’t talk to the other half, because of the conference center, but that went away.”

The last year has been just – the isthmus was very divisive, hurt feelings and everything else.”

And this last retreat – [OP&L] did a great story on it, I thought the story captured it. People said it was mean to Rhenda, and I said, ‘Well, to be honest, I thought it was very nice to Rhenda.’ I was in the room. The story was very polite to her.”

And that was one of the things that I have taken both Doug and Craig to task on. Last November, when Rhenda went off on [a member of the public] when he came to council, I was the diplomat who made the opposite comments, and didn’t yell at her because I don’t want to do that in front of people. A the council retreat, when she was started basically slamming the new colleagues, I stood up. Doug didn’t, Craig didn’t.”

When someone behaves badly, you don’t take them to task in public, because then you’re behaving just like them, but you do what you can to be a diplomat and a statesmen and make up for it immediately and publicly. What one person does on the council reflects on everyone else.”

So in the same way, whether or not I got a misdemeanor or a felony out of this, I seriously considered resigning because what I had done, my stupid mistake, did reflect on everybody. Just as when Rhenda runs her mouth off it reflects on the rest of us.”

It is time for Doug to speak up and say, ‘No, we need to have a sense of decorum.’ That’s the thing we learned from [former Mayor] Mark Foutch. If anybody didn’t [show decorum], he would gavel them down right then, he’d say something nice, and he would politely pull them aside privately and say ‘You’ve got to shape up.’”

The problem on the council now is nobody is talking to each other.” Hyer says he met frequently with Buxbaum, Jeannine Roe, and Karen Rogers, but not the others. “I even spoke with Rhenda a few times in January and February. I have not heard word one from Rhenda since my arrest. She has never made eye contact with me in the meetings we were in together, never spoken to me, never anything else, never once.”

I think it might be surprisingly easy” to appoint a new councilmember. “I think they should avoid anybody who was running for office last year, just out of courtesy for those that won. I think they should look at skill sets and qualifications, someone who is analytical, thinks well.”

How you make this team work is probably the biggest challenge that Mayor Mah has now. I do think that he needs to be more proactive, reaching out and meeting personally with a lot more of the council.”

Everybody has to share the burden, and they have to trust one another. There is not good trust right now.”

Regarding future issues the council faces, Hyer says “At this point, its almost like there’s a little bit of breathing room. We did a ton of bricks-and-mortar type projects [recently].”

The single biggest thing over the next five years we can do would be the Budd Inlet partnership. We’ve talked about saving Budd Inlet as a part of saving Puget Sound, and we need to take real serious actions now. In many ways, I feel great now because I can really advocate and lobby and say what I want on that issue.”

The lake/estuary issue last year, I was so hamstrung by a council that just didn’t want to do the homework, but wanted to give the sound bite. I was embarrassed at times. The term ‘stinking mud flats’ coming from city council members who don’t seem to understand that the bay is full of mud flats that smell briny, but stink comes from sewage. You explain that over and over again, and they don’t listen. We need councilmembers who do their homework and do their work regularly.”

We have done a whole lot over the last five years. It’s a time when I think they need to spend a lot of time educating themselves, and learning all the policy nuances of sewer and water and waste and the nuts and bolts of government, and how they can get things done.”

I also think they can put their heads up and think about the next 25 or 30 years, instead of just the next six or the next five. One of the last things I was starting to work on was a resolution on water quality, to develop a vision of water quality in the city over a 30 year period. That would help us set policy in the near term.”

When I look back at the policy initiatives that I worked on, zero waste is what I’m most proud of. What we did there is we set a resolution with a bold 30-year goal, and then said to staff, ‘Go write us a plan that for the next six years gets us on a course to get there.’ It was exactly what the council was supposed to be doing, setting a bold policy vision by resolution and then letting our experts come back with the plan that’s going to get us steps on the way there.”

I think this council could do wonders by just having some bold resolutions for some key policy areas, and then working on specifics after that.”

About His Future

After his arrest, “I couldn’t go out in public for two weeks. I was just embarrassed, ashamed. And now I realize that that’s how they want to make you feel. That’s what the point of all the guns and the body armor and the jail and everything else is, to make you feel a certain way. And they did it for a while. I just wanted this to end.”

When he accepted the plea deal in early April, “I knew then that I would have to resign the council seat.”

It took me two or three or four days just to separate myself from the idea of city council. In five and a half years, I’ve lived and breathed the city council. I didn’t have a social life for most of those years.”

But early in the spring break week, I kinda realized, ‘Wait a minute, I can still serve this community, and I can still do things on non-profit boards, and I’m enjoying working at the store again.’”

That whole week, it was liberating to begin to think, ‘God, I can go backpacking.’”

I admit, the first two weeks, I wanted revenge. I wanted to get back at Jeff. I wanted to get back at everybody who was involved in this, because it seemed like there was more than just Jeff. There were two individuals [who went to Sheriff Kimball]. But half of me said, ‘I don’t care.’”

The worst part was not being able to just stand up to everybody and say ‘Here’s exactly what happened, exactly what I did, exactly what I didn’t do, judge me as you will.’ But that’s not the way the legal system works.”

To be honest, resigning city council wasn’t the worst part. People kept saying ‘Oh, your political career.’ It was a part time job, $8,000 a year does not a career make. But what really bothered me more than anything is they wanted to take my right to vote, one of the basic things of being a citizen. For $120 of marijuana, they wanted to take my right to vote. I was dumbfounded.”

But I’ve kind of reconciled that. I said, ‘Wait a minute, I can go backpacking again, and I hadn’t been for a few years. I can go skiing 50 days a winter. I started thinking of having a life again. I hadn’t been reading books in a long time.”

In the days after my arrest, I did think serious thoughts about selling my house – because the pictures that had been in the media about my house – selling my house, selling my business, moving somewhere, moving out of the country to Mexico, starting somewhere else entirely. I thought about that. Those thoughts didn’t last very long. Olympia is my home. I was born here, I was raised here, I came back here [after college], and I’m incredibly invested in this community.”

Hearing from the community the absolute support, people didn’t care what I had done or not done, who set who up or anything else, they just supported me, and that was just overwhelming. The cards, the letters, the texts, the emails, the calls. I saved them all, actually.” He says he’s planning to send thank you notes for all of them.

You know you have friends out there, but you don’t know how far they support you until it comes down to it. And I’m not going to leave that. I realize that there’s life after this, and I can still do so much.”

Every time I walk home, I try to walk up Legion Way, because that sidewalk with the bulbouts, I did that. And sometimes at night when I take a walk, I go on East Bay Drive and turn at San Francisco Street and go up the hill – that sidewalk, I fought for. And when I look at the roundabout at Boulevard, when I look at all the things we’ve done, and that [the city has] weathered this recession and kept our reserves intact, I think ‘We’ve done a lot of good work in five and a half years.’”

I’m proud of what I did on council. I wish that I could keep doing that work on council, but I’m not going to stop just because I’m not on council. I am going to get on some non-profit boards, and I am going to energize all my supporters. The best thing I can do to the people that did this is go back to work and do good deeds.”

I think I’ve paid a very heavy price because of it. I’ll learn from it and move on. I’m not going to give up on the community, or stop doing the service or the great things that we do just because of this.”

I am feeling renewed and refreshed. I’ve had several non-profits already ask me to be on their boards. Family and close friends are saying ‘Take it easy, take some time for yourself.’”

My biggest desire is to get back into this community and serve.” ◙

Matthew Green served on the Olympia City Council with Joe Hyer in 2004 and 2005.

Joe Hyer’s business, The Alpine Experience, advertises with Olympia Power & Light.

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