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Chapter 2.80
CODE OF ETHICSSections:
2.80.010 Policy.
2.80.020 Definitions.
2.80.030 Improper use of official position – Personal gain or profit – Use of persons, money or property.
2.80.040 Conflict of interest.
2.80.050 Acceptance of gifts.
2.80.060 Campaign activities.
2.80.070 Confidential information.
2.80.075 Councilmember violation of RCW 35A.13.120 – City manager – Interference by council members.
2.80.080 Hearings officer – Complaints against a councilmember or city manager.
2.80.090 Complaints against employees and officials other than the manager, councilmembers, and members of advisory bodies.
2.80.100 Civil action for slander, libel, defamation not affected.
2.80.110 Liberal construction – Limitation period – Effective date.
2.80.010 Policy.
A. The city of Port Townsend is committed to conducting its business in a fair, open, efficient and accountable manner. Public officials and employees shall conduct their public and private actions and financial dealings in a manner that shall present no apparent or actual conflict of interest between the public trust and their private interest. Each official and employee is assumed and expected to act in accordance with all laws that may apply to his or her position, as well as striving to avoid even an appearance of impropriety in the conduct of his or her office or business. To dispel suspicion, innuendo, and distrust in government that results from failure of public officials and employees to disclose financial or other interests in matters affecting the city, public officials and employees should disclose, before participating in any matter affecting the city, any financial, business, personal or other interests in the matter affecting the city. As provided by this code and state law, a public official or employee is prohibited from participating in a city matter where he or she may be specially benefited.
B. Each employee and official should be informed of this code and meet its requirements.
C. Questions regarding its interpretation concerning employees and officials should be brought to that person’s supervisor or the city manager for interpretations of this code, and subject to any collective bargaining agreement any action concerning violation of this code concerning employees shall be determined by the city manager. Questions regarding the interpretation of the code as applied to, and allegations of violation of the code by, councilmembers, or the city manager, city attorney, or members of the planning commission and civil service commission, shall be referred to the hearings officer through the process established herein at PTMC 2.80.080.
D. This code only addresses the specific issues of personal gain or profit, conflict of interest, acceptance of gifts, campaign activities, and confidential information. It does not address issues of sexual harassment, discrimination, workplace rules or personnel policies, or other activities prohibited by law or regulated by city policies. Where not in conflict with the provisions of this code, the manager is authorized to adopt personnel polices, and any such policies previously adopted (where not in conflict with this code) are ratified, provided any policy changes amendments to existing policy involving employee compensation require city council approval. (Ord. 2830 § 1(1), 2003; Ord. 2786 §§ 1, 2, 2001).
2.80.020 Definitions.
Throughout this code, the following definitions shall apply:
A. “Advisory body” means any board or commission, committee or other entity previously, or hereafter, and named a board or commission in the ordinance or resolutions creating the body, created by the city council to give advice on subjects and perform such other functions as prescribed by the city council. “Advisory body” does not mean task forces, informal committees, or working groups appointed by the manager or created by the city council for short periods of time or for specific tasks.
B. “Benefit,” “gain,” “profit,” or “interest in a contract,” applies only to situations or contracts involving business transactions, employment matters, and other financial interests, and does not apply to situations or contracts which confer no financial benefit.
C. “City official or employee” means every individual elected or appointed to an office or position of employment, whether such individual is paid or unpaid.
D. “Confidential information” means:
1. Specific information, rather than generalized knowledge, that is not available to the general public on request; or
2. Information made confidential by law including but not limited to as provided in taxpayer information (RCW 82.32.330), information regarding organized crime (RCW 43.43.856), criminal history information (Chapter 10.97 RCW), medical records (Chapter 70.02 RCW) and juvenile records (RCW 13.50.010); or
3. Information which is initially disclosed or discussed in executive session, and which is not available to the general public on request; or
4. Confidential information does not include information officially disclosed by the manager or a majority vote of the city council.
E. “Contract” shall include any agreement, contract, sale, lease, or purchase.
F. “Contracting party” shall include any person, partnership, association, cooperative, corporation, or other business entity which is a party to a contract with a municipality.
G. “Domestic partner” means a partner in a relationship resembling a family or household, where the partners share the same residence, have a close personal relationship, and have agreed to be jointly responsible for basic living expenses and/or each partner has specified responsibilities in the relationship.
H. “Ethics” means standards of conduct that are regulated by this code.
I. “Family” means an individual’s spouse, domestic partner, and child, stepchild, grandchild, parent, stepparent, grandparent, brother, half-brother, sister, or half-sister of the individual and the spouse of any such person and a child, stepchild, grandchild, parent, stepparent, grandparent, brother, half-brother, sister, or half-sister of the individual’s spouse and the spouse of any such person.
J. “Gift” means anything of economic value for which no consideration is given. “Gift” does not include:
1. Items from family members or friends where it is clear beyond a reasonable doubt that the gift was not made as part of any design to gain or maintain influence in the city or with the recipient in connection with city matters;
2. Items related to the outside business of the recipient that are customary and not related to the recipient’s performance of official duties;
3. Items exchanged among officials and employees or a social event hosted or sponsored by a city officer or city employee for coworkers;
4. Payments by a governmental or nongovernmental entity of reasonable expenses incurred in connection with a speech, presentation, appearance, or trade mission made in an official capacity. As used in this subsection, “reasonable expenses” are limited to travel, lodging, registration fees, and subsistence expenses incurred the day before through the day after the event;
5. Items an official or employee is authorized by law to accept;
6. Payment of enrollment and course fees and reasonable travel expenses attributable to attending seminars and educational programs sponsored by a bona fide nonprofit professional, educational, or trade association, or charitable institution. As used in this subsection, “reasonable expenses” are limited to travel, lodging, and subsistence expenses incurred the day before through the day after the event;
7. Items returned by the recipient to the donor within 30 days of receipt, or donation to a charitable organization within 30 days of receipt;
8. Campaign contributions or other items reported or regulated under Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records);
9. Discounts available to an individual as a member of an employee group, occupation, or similar broad-based group; and
10. Awards, prizes, scholarships, or other items provided in recognition of professional, academic or scientific achievement.
K. “Person” means any individual, partnership, association, corporation, firm, institution, or other entity, whether or not operated for profit.
L. “Revised Code of Washington (RCW) – References to State Statutes.” All references to the Revised Code of Washington (RCW) include the cited statute and any amendments thereto. If the cited statute is repealed, then the same shall be considered repealed from this code, unless the statute is reenacted or recodified by the state.
M. “Transaction involving the city” means a proceeding, application, submission, request for ruling or other determination, contract, claim, case, or other similar matter that the official or employee in question believes, or has reason to believe:
1. Is or will be the subject of city action;
2. Is one to which the city is or will be a party; or
3. Is one in which the city has a direct and substantial proprietary interest.
“Transaction involving the city” does not include the following: preparation, consideration, or enactment of legislation, including appropriation of moneys in a budget, or the performance of legislative duties by an official or employee; or a claim, case, lawsuit or similar matter if the official or employee did not participate in the underlying transaction involving the city that is the basis for the claim, case, or lawsuit. (Ord. 2830 § 1(1), 2003; Ord. 2801 § 1, 2002; Ord. 2786 §§ 1, 2, 2001).
2.80.030 Improper use of official position – Personal gain or profit – Use of persons, money or property.
A. An official or employee shall not knowingly engage in any transaction involving the city or use his or her office or position for personal or family benefit gain or profit, or engage in any transaction involving the city or use his or her position to secure special privileges or exceptions for himself, herself, or for the benefit, gain, or profits of any other persons.
B. No official or employee may employ or use any person, money, or property under the officer’s or employee’s official control or direction, or in his or her official custody, for the personal or family benefit, gain, or profit of the officer or employee, or another.
C. This section does not prohibit the use of public resources to benefit others as part of an officer’s or employee’s public duties, or prevent the private use of city property which is available on equal terms to the public generally (such as the use of library books), or the use of city property in accordance with city policy for the conduct of official city business (such as the use of a city automobile), if in fact the property is being used appropriately, or prevent an official or employee from appearing on his or her own behalf or representing himself or herself as to any matter in which he or she has a proprietary interest.
D. Notwithstanding the provisions of this section, the manager shall have discretion, and may adopt rules, regarding the nature, scope and extent to which the city of Port Townsend, its officials and employees, may provide in-kind and other assistance, if any, to an activity or event; provided, that such assistance:
1. Does not unreasonably interfere with the proper performance of public duties and function; and
2. Provides a common benefit to the city; and
3. Is of a de minimus cost, or of reasonable value.
Any terms, conditions, or mutual arrangements determined to be appropriate by the manager, regarding the provision of any type of assistance, shall be in writing. (Ord. 2786 §§ 1, 2, 2001).
2.80.040 Conflict of interest.
A. Conflict of Interest Prohibited. Except as provided in subsection C of this section (relating to contracts where there is only a remote interest), or subsection D of this section (relating to specified exceptions to the rule against having an interest in a contract), an official or employee shall not be “beneficially interested,” directly or indirectly, in any transaction involving the city, or accept, directly or indirectly, any compensation, gratuity, or reward in connection with such transaction involving the city from any other person “beneficially interested” therein, and shall not knowingly engage in activities which are in conflict, or which have the potential to create a conflict, with performance of official duties.
No official or employee may participate in a transaction involving the city or any transaction involving city legislative duties, including the consideration or enactment of any city legislation or appropriation of moneys in a budget in his or her official capacity in violation of this section.
An official or employee shall disclose the fact and extent of any benefit, gain, profit, or interest in a contract or transaction involving the city, or any transaction involving city legislative duties, including the consideration or enactment of any city legislation or appropriation of moneys in a budget, including even indirect benefit that is not deemed a “beneficial interest” under the law.
Examples of conflicts, or potential conflicts, of interest include but are not necessarily limited to circumstances where the official or employee, or their families:
1. Influences the selection or nonselection of or the conduct of business between the city and any entity when the official or employee has a financial interest.
2. Solicits for himself or herself or for another, a gift or any other thing of value from the city or from any person or entity having dealings with the city; provided, however, that no conflict of interest for the official or employee shall be deemed to exist with respect to solicitation for campaign contributions required to be reported under Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records) or for charitable contributions.
3. Accepts any retainer, compensation, gift or other thing of value which is contingent upon a specific action or nonaction by the official or employee.
4. Accepts a gift in any manner other than as provided in PTMC 2.80.050, Acceptance of gifts.
5. Intentionally uses or discloses information not available to the general public and acquired by reason of his or her official position which financially benefits himself or herself, family, friends or others.
B. Disclosure.
1. Officials and employees shall disclose in writing to the city clerk any personal involvement or private interest in any transaction involving the city. Personal involvement includes involvement by each person, his or her family, or any involvement by any person or family member in any partnership, association, corporation, trust, firm, institution or other entity, whether operated for profit or not. For example, if a councilmember’s son files for a building permit, the councilmember must disclose the fact to the clerk.
2. The clerk shall report the disclosure to the council and further report periodically on ongoing activities, so the information is available to the community. The disclosure and report may take the form of including the information in the council’s information packet. For example, if a councilmember files for a building permit, and then obtains a permit, both events will be reported to the council.
3. The city manager is authorized to establish policies providing for the outside review of projects or applications involving councilmembers and city employees (as determined appropriate by the city manager).
C. Remote Interests. An official or employee shall not be deemed to be interested in a transaction involving the city if he or she has only a “remote interest” in the contract. “Remote interest” means:
1. That of a nonsalaried officer of a nonprofit corporation;
2. That of an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary;
3. That of a landlord or tenant of a contracting party; and
4. That of a holder of less than one percent of the shares of a corporation or cooperative which is a contracting party.
A councilmember shall disclose the fact and extent of a remote interest for the official minutes of the city council prior to taking any action related to the interest and, thereafter, all action taken by the city council related to such interest shall be by a vote sufficient for the purpose without counting the vote of the councilmember having the remote interest.
None of the provisions of this section are applicable to any official or employee interested in a contract, even if the interest is remote, if the official or employee influences or attempts to influence any other official or employee of the city to enter into the contract. Participation in council or council committee meeting discussion on a remote contract shall not be deemed to be influencing or an attempting to influence under this section.
D. Exemptions. This section shall not apply in the following cases:
1. The furnishing of electrical, water or other utility services by a municipality engaged in the business of furnishing such services, at the same rates and on the same terms as are available to the public generally;
2. The designation of public depositaries for municipal funds;
3. The publication of legal notices required by law to be published by any municipality, upon competitive bidding or at rates not higher than prescribed by law for members of the general public;
4. The employment of any person for unskilled day labor at wages not exceeding $100.00 in any calendar month;
5. The letting of any other contract (except a sale or lease as seller or lessor) in which the total amount received under the contract or contracts by the official or employee or official’s or employee’s business does not exceed $1,500 in any calendar month (which amount shall be automatically adjusted if the amount in RCW 42.23.030(6)(a) is modified).
The official may not vote on the authorization, approval, or ratification of a contract in which he or she is beneficially interested even though one of the exemptions allowing the awarding of the contract applies. The interest of the official must be disclosed and noted in the official minutes or similar records of the city before the formation of the contract.
E. Restrictions After Leaving City.
1. No former official or employee may, within a period of one year from the date of termination of city employment, accept employment or receive compensation from an employer (other than another government agency, or person or entity that performs municipal functions currently or formerly performed by the city) if:
a. The officer or employee, during the two years immediately preceding termination of city employment, was engaged in the negotiation or administration on behalf of the city of one or more contracts with that employer and was in a position to make discretionary decisions affecting the outcome of such negotiation or the nature of such administration;
b. Such a contract or contracts have a total value of more than $10,000; and
c. The duties of the employment with the employer or the activities for which the compensation would be received include fulfilling or implementing, in whole or in part, the provisions of such a contract or contracts or include the supervision or control of actions taken to fulfill or implement, in whole or in part, the provisions of such a contract or contracts. This subsection shall not be construed to prohibit a city official or city employee from accepting employment with a city employee organization.
2. No person who has served as a city official or employee may, within a period of two years following the termination of city employment, have a direct or indirect beneficial interest in a contract or grant that was expressly authorized or funded by specific legislative or executive action in which the former city official or city employee participated.
3. No former city official or employee may accept an offer of employment or receive compensation from an employer if the official or employee knows or has reason to believe that the offer of employment or compensation was intended, in whole or in part, directly or indirectly, to influence the official or employee or as compensation or reward for the performance or nonperformance of a duty by the official or employee during the course of city employment.
4. No former city official or employee may accept an offer of employment or receive compensation from an employer if the circumstances would lead a reasonable person to believe the offer has been made, or compensation given, for the purpose of influencing the performance or nonperformance of duties by the official or employee during the course of city employment.
5. No former city official or employee may at any time subsequent to his or her city employment assist another person, whether or not for compensation, in any transaction involving the city in which the former city official or employee at any time participated during city employment. This subsection shall not be construed to prohibit any official or employee of a city employee organization from rendering assistance to city officers or city employees in the course of employee organization business.
6. As used in this section, “employer” means a person any employer or any other entity or business that the person owns or in which the person has a controlling interest.
7. An official or employee may never disclose or use the city’s privileged or proprietary information except to perform official duties. (Ord. 2830 § 1(1), 2003; Ord. 2801 § 2, 2002; Ord. 2786 §§ 1, 2, 2001).
2.80.050 Acceptance of gifts.
A. Except for charitable contributions made to the city, or campaign contributions required to be reported under Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records), or as provided in subsection D of this section, an official or employee may not receive, accept, take, seek, or solicit, or agree to receive, directly or indirectly, anything of economic value as a gift, gratuity, reward, or favor from a person (except from the city) for performing or omitting or deferring the performance of any official duty, or if it could be reasonably be expected that the gift, gratuity, or favor would influence the vote, action, or judgment of the official or employee, or be considered a part of a reward for action or inaction.
B. Except as provided in subsection D of this section, any and all gifts received by a city employee will be given immediately to the employee’s supervisor with an explanation of the circumstances surrounding receipt of the gift. The supervisor or department head will return the gift to the sender with a written expression of thanks and an explanation of the city policy concerning gifts. A copy of the memo shall be sent to the manager.
C. Except as provided in subsection D of this section, any and all gifts received by an official will be returned immediately to the sender, with a written expression of thanks and an explanation of city policy concerning gifts. A copy of the memo shall be sent to the manager.
D. The prohibitions in this section do not apply as follows:
1. An officer or employee may accept an item or cash if it is regulated or reported under Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records).
2. No officer or employee may accept gifts with an aggregate value in excess of $50.00 from a single source in a calendar year or a single gift from multiple sources with a value in excess of $50.00, and only if it could be reasonably expected that the gift, gratuity, or favor would not influence the vote, action, or judgment of the officer or employee, or be considered as part of a reward for action or inaction. For purposes of this section, “single source” means any person, corporation, or entity, whether acting directly or through any agent or other intermediary, and “single gift” includes any event, item, or group of items used in conjunction with each other or any trip including transportation, lodging, and attendant costs, not excluded from the definition of gift under PTMC 2.80.020. The value of gifts given to an official’s or employee’s family member shall be attributed to the official or employee for the purposes of determining whether the limit has been exceeded, unless an independent business, family, or social relationship exists between the donor and the family member.
3. The following are presumed not to influence the vote, action, or judgment of the official or employee, or be considered as part of a reward for action or inaction, so as to allow an official or employee to receive or accept them:
a. Unsolicited advertising or promotional items of nominal value, such as pens and note pads. Employees should endeavor to use such items in the workplace instead of taking them home.
b. Unsolicited tokens or awards of appreciation in the form of a plaque, trophy, desk item, wall memento, or similar item.
c. Unsolicited items received for the purpose of evaluation or review, if the recipient has no personal beneficial interest in the eventual use or acquisition of the item.
d. Informational material, publications, or subscriptions related to the recipient’s performance of official duties.
e. Food and beverages consumed at hosted receptions where attendance is related to the recipient’s official duties.
f. Admission to, and the cost of food and beverages consumed at, events sponsored by or in conjunction with a civic, charitable, governmental, or community organization.
g. Those items excluded from the definition of gift in PTMC 2.80.020.
h. Payments by a governmental or nongovernmental entity of reasonable expenses incurred in connection with a speech, presentation, appearance, or trade mission made in an official capacity.
i. Payments for seminars and educational programs sponsored by a bona fide nonprofit professional, educational, or trade association, or charitable institution.
j. Flowers, plants, and floral arrangements. The employee receiving the gift shall (i) notify the employee’s supervisor of the gift, (ii) take the item to a recognized relief agency, or alternatively, make the items available for the enjoyment of all employees in the employee’s work area, and (iii) send a thank-you card to the provider explaining what was done with the gift.
k. Food and beverages on infrequent occasions in the ordinary course of meals where attendance is related to the performance of official duties.
The presumption in this subsection is rebuttable and may be overcome by clear and convincing evidence based on the circumstances surrounding the giving and acceptance of the item.
E. This section shall not apply to gifts made to the city. All such gifts shall be given to the manager for official disposition. (Ord. 2786 §§ 1, 2, 2001).
2.80.060 Campaign activities.
A. Officials and employees may participate in the political process only on their own time, and only outside of the workplace by assisting a campaign for the elections of any person to any office, or for the promotion of or the opposition to any ballot proposition.
B. Officials and employees shall not use or authorize the use of the facilities or resources of the city for the purpose of assisting a campaign for the election of any person to any office, or for the promotion or opposition to any ballot proposition, except as may be authorized by law under the provisions of RCW 42.17.130 (Forbids Use of Public Office or Agency Facilities in Campaigns).
C. This section does not prohibit any activity permitted or regulated under Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records). (Ord. 2786 §§ 1, 2, 2001).
2.80.070 Confidential information.
A. No official or employee may accept employment or engage in any business or professional activity that the official or employee might reasonably expect would require or induce him or her to disclose confidential information acquired by the official or employee by reason of the official’s or employee’s official position.
B. No official or employee may disclose at any time confidential information gained by reason of the official’s or employee’s official position or otherwise use at any time the information for his or her personal gain or benefit or the gain or benefit of another, unless the disclosure has been authorized by the manager (or majority vote of the city council) or by terms of a contract involving (1) the city, and (2) the person or persons who have authority to waive confidentiality of the information.
C. An official or employee shall not use information acquired in confidence from a city customer, supplier, lessee or contractor for other than city purposes.
D. This section does not prevent an official or employee from giving testimony under oath or from making statements required to be made under penalty of perjury or contempt.
E. The manager shall determine, acting in the best interest of the city, whether information is confidential; provided a majority of the city council may vote to release any information which is not by law required to be kept confidential. The types of information listed in RCW 42.17.310, certain personal records and other records exempt, are presumed confidential, unless the manager (or city council by majority vote) determines it is not.
In any matter involving an advisory body, the presiding officer shall determine, acting in the best interests of the city, whether information is confidential, subject to approval by the manager or city council by majority vote.
In any matter involving city employees, the higher-ranking person shall determine, acting in the best interests of the city, whether information is confidential, subject to approval by the manager. For example, a department head, meeting with employee B to discuss employee C’s job performance, may determine that information discussed is confidential. (Ord. 2786 §§ 1, 2, 2001).
2.80.075 Councilmember violation of RCW 35A.13.120, City manager – Interference by council members.
It is prohibited and a violation of this code of ethics for the council, or any of its committees or members, to violate RCW 35A.13.120, City manager – Interference by council members. (Ord. 2786 §§ 1, 2, 2001).
2.80.080 Hearings officer – Complaints against a councilmember or city manager.
A. Hearings Officer.
1. Ethics Hearings Officer Position Created. There is created and established the position of “ethics hearings officer” (“hearings officer”) for the city of Port Townsend. The council shall appoint a hearings officer and may appoint one or more alternate hearings officers. The first alternate hearings officer shall serve as the hearings officer if the hearings officer is unavailable or unable to serve, and the second alternate shall serve if the hearings officer and first alternate are unavailable or unwilling to serve.
2. Qualification. A hearings officer must be an active member of the Washington State Bar Association, have at least seven years of experience as a lawyer, have no record of public discipline, and have experience as an adjudicator or as an advocate in contested adjudicative hearings.
3. Impartiality. A hearings officer should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned. Alternatively, a hearings officer may, instead of withdrawing from the proceeding, disclose for the record the reason why his or her impartiality might be questioned. If based on such disclosure, the person making the complaint and the person complained against both agree in writing or on the record that the hearings officer’s relationship is immaterial, the hearings officer may participate in the proceedings.
The person or persons who make an ethics complaint or the person complained against may challenge the impartiality of the hearings officer. Any challenge shall be asserted in writing within five days of the complaint being filed, or within five days of the complaint being delivered to the person complained against, whichever is later. The hearings officer shall determine whether or not to disqualify himself or herself within three days of any challenge. If the hearings officer does not disqualify himself or herself, then the person making the challenge shall have five days from the date of the hearings officer determination to initiate an action in the Jefferson County superior court, and the issue of the challenge shall be heard on motion on the record by the presiding judge (or such other judge, court commissioner or referee to whom the case may be assigned).
4. Purpose and Duties. The purpose of the ethics hearings officer is to review and issue written determinations on any alleged violations of this code by the city manager, city attorney, councilmembers, or a member of the planning commission or civil service commission, all as set forth below.
5. Staff. The city manager shall provide staff, as he or she deems appropriate, to assist the hearings officer. The hearings officer may make request for staff to the city manager and/or city council.
B. Specific Complaint Against the City Manager, a Councilmember, or a Member of the Planning Commission or Civil Service Commission.
1. Written Complaint. Any person may submit a written complaint to the city clerk alleging one or more violations of this code by the city manager, city attorney, a councilmember, or a member of the planning commission or civil service commission. The allegation must set forth specific facts with precision and detail. In addition, the complaint must set forth the specific sections and subsections of this code that the facts violate, and the reasons why. Each complaint must be signed under penalty of perjury by the person or persons submitting it, must state the submitter’s correct name, address at which mail may be personally delivered to the submitter, and the telephone number at which the submitter may be contacted. The city clerk shall promptly serve or mail, return receipt requested, a copy of the complaint to the individual complained against. The city clerk shall submit the complaint to the hearings officer.
2. City Attorney Review. Before any person files a written complaint with the city clerk, the person may provide materials and/or the complaint to the city attorney, but is not required to do so. Upon approval of the city manager, the city attorney may provide a legal opinion on the matter or on the matters alleged in a complaint, and may provide information to the hearings officer or city council with regard to the complaint, investigation and the interpretation or applicability of the ethic code or any pertinent provision of state law. The city attorney’s opinion is not determinative on the issue and does not affect the ability of the person to file a complaint or from the complaint being processed as provided in this section.
3. Hearings Officer Initial Determination.
a. Upon receipt of the complaint, the hearings officer shall make an initial determination of the complaint. The purpose of this initial determination is to determine whether the facts asserted, if proved, would constitute a violation of the code of ethics. If the hearings officer determines that the complaint should proceed to hearing, then further proceedings shall occur as set forth below. If the hearings officer determines the complaint should not proceed to a hearing, then he or she shall enter an order dismissing the complaint. A complaint should be dismissed if:
i. It does not present facts which constitute a violation of the code of ethics.
ii. The hearings officer believes there are no reasonable grounds to believe that a violation occurred.
iii. The matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured.
b. An initial determination should be made within 10 days of the filing of the complaint, or longer if determined necessary by the hearings officer.
c. In making an initial determination, the hearings officer would ordinarily proceed without a hearing.
d. For good cause as determined by the hearings officer, the hearings officer may schedule a hearing to allow presentation of such evidence as the hearings officer believes appropriate to make an initial determination.
e. The hearings officer may allow oral argument, either on the hearings officer’s initiative or on request of the person complained against.
f. The hearings officer may meet with the person complained against or the person making the complaint, or request additional information, to assist the hearings officer in reaching an initial determination. For any information obtained, the hearings officer shall provide a written summary and allow comment by the other party to the proceeding.
g. The hearings officer may waive minor irregularities to ensure the complaint is supported by identifiable facts.
h. Prior to making an initial determination, the hearings officer shall provide an opportunity of not less than three business days to the person complained against to submit written materials in response to the complaint.
i. The initial determination of the hearings officer shall be in writing.
j. The initial determination is final and unappealable, except in the case of subsection (3)(a)(iii) of this section (namely, determination that the complaint should be dismissed because the matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured), where the person complained against has a right of appeal to the city council pursuant to the procedures set forth below. In the event of an appeal, the council action is limited to affirming the hearings officer’s initial determination or remanding the matter to the hearings officer for further proceedings.
4. Hearings Officer Determination on Hearing.
a. Hearing. After an initial determination that the complaint should proceed to hearing, the hearings officer shall set an evidentiary hearing. However, the hearings officer may, on the hearings officer’s own action, or the request of the person complained against, consider the merits on a motion without an evidentiary hearing. In the event of a ruling on a motion by hearings officer that is adverse to the person complained against, then the person complained against shall have a right to an evidentiary hearing.
The evidentiary hearing should be set within 30 days of the date of the initial determination, and upon at least seven days’ notice to the person complained against.
b. Determination. The hearings officer may take one of the following actions:
i. Determine that the complaint should be dismissed if the hearings officer believes there are no reasonable grounds to believe that a violation occurred.
ii. Determine that the complaint should be dismissed because the matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured.
iii. Determine that a material violation of the ethics code has occurred, and that one of the actions below (warning, admonition, reprimand, censure, or, other than for a councilmember, removal) is appropriate.
(A) Warning. A warning shall be a caution to the person complained against.
(B) Admonition. An admonition shall be a verbal nonpublic statement made by the mayor to the individual (or deputy mayor if the individual is the mayor).
(C) Reprimand. A reprimand shall be administered to the individual by letter.
(D) Censure. A censure shall be a written statement administered personally to the individual. The individual shall appear at a time and place directed by the city council to receive the censure. Notice shall be given at least 20 days before the scheduled appearance at which time a copy of the proposed censure shall be provided to the individual. The censure shall be administered at the time and place set. It shall be given publicly, and the individual shall not make any statement in support of or in opposition thereto or in mitigation thereof. A censure shall be deemed administered at the time it is scheduled whether or not the individual appears as required.
(E) Removal. Nothing in this section authorizes removal of a councilmember or the city manager from his or her office.
c. Written Determination. The hearings officer’s determination shall be in writing, and set forth facts and provisions of law upon which the determination is based, and set forth the appropriate action, including the text of any action. For example: “Following determination that you have violated the ethics code for the reasons stated above, the following action is appropriate: you should receive an admonishment. You are admonished for the conduct which occurred, etc.”
d. Finality of Determination – Appeal. If the person complained against agrees with or does not appeal the determination, then that becomes the final determination on the matter. The person complained against shall have three days from the date of the determination to appeal to the city council pursuant to the procedures set forth below. An appeal shall be in writing and filed with the city clerk.
e. Procedures Regarding Determination. In addition to the general procedures set forth in subsection (B)(6) of this section, the following procedures apply in making a determination:
i. The determination should be made within 10 days after the evidentiary hearing, unless a longer time period has been requested by the hearings officer and approved by the city council; provided, however, that the running of these time periods shall be tolled and the complaint proceedings shall be stayed in the event the hearings officer makes application to the city council for subpoena power or in the event the city council issues a subpoena and any person refuses to obey such subpoena. The stay of the complaint proceedings shall continue until such time as the subpoena is either issued or denied by the city council or until such times as a superior court issues an order on the subpoena. In making an initial determination, the hearings officer would ordinarily proceed without a hearing.
ii. The city clerk shall promptly serve or mail, return receipt requested, a copy of the determination to the person complained against, and the person making the complaint.
5. Appeal to Council.
a. Any appeal of the hearings officer’s initial determination or determination must be made within three days of the date of hearings officer decision. An appeal shall be in writing and filed with the city clerk. Only the person complained against may appeal the hearings officer’s initial determination or determination.
b. If the person complained against appeals the hearings officer’s determination to council, the following shall apply:
i. Any appeal is based on the record prepared by the hearings officer. No new evidence is allowed to be presented to council. The records shall consist of a transcript of the tape of the evidentiary hearing, and all exhibits admitted by the hearings officer.
ii. The person complained against (or representative) shall have the opportunity to make argument to the council. The council shall not allow argument or comment by others.
iii. The council shall take action on the appeal within 30 days of an appeal being filed.
iv. Action by the council shall be by majority vote. If the proceeding involves a member of the city council (either as the person making the complaint or the person complained against), the member does not vote on any matter involving the member. Action by the council may be in executive session, however, upon request of the person complained against, the meeting shall be open to the public.
v. The council can take one of the following actions:
(A) Affirm the determination of the hearings officer.
(B) Modify the determination of the hearings officer; however, the council cannot impose a determination by the council that results in a more serious consequence than that determined by the hearings officer.
6. General Procedures.
a. Quasi-Judicial Status. Actions of the hearings officer and council on appeal are quasi-judicial proceedings. This means that due process protections apply. For example, on a pending investigation of an ethics compliant, no one may contact a councilmember, and no councilmember shall seek out information, or receive information other than through the clerk’s office or at the evidentiary hearing, because the matter may come before the council on appeal. All information should be presented in writing or at a hearing.
b. Public Disclosure. The city shall release copies of any written reports resulting from hearings officer action on a complaint and any written censures or reprimands issued by the city council in response to public records requests consistent with Chapter 42.17 RCW (Disclosure – Campaign Finances – Lobbying – Records), and any other applicable public disclosure laws.
c. Time Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period of time runs until the end of the next business day which is neither a Saturday, Sunday, nor holiday. Legal holidays are defined in RCW 1.16.050. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, or legal holiday shall be excluded in the computation.
d. Evidence. To establish a violation of the ethics code, the violation must be found by a preponderance of evidence to have occurred. The person complained against is presumed not to have committed any violation, until determined by the hearings officer to have violated the code of ethics by a preponderance of evidence.
e. Evidentiary Hearings. All matters related to the code of ethics violations shall be closed to the public, except as authorized or required by statute. For example, as authorized by RCW 42.20.140(2), the open meetings act does not apply to: “That portion of a meeting of a quasi-judicial body which relates to a quasi-judicial matter between named parties as distinguished for a matter having a general effect on the public”; and RCW 42.30.110(1) (f) which provides for closed meetings “to review and evaluate complaints or charges brought against a public officer or employee.” As provided by RCW 42.30.110(1)(f): “However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge.”
Evidentiary hearings shall be closed to the public, unless, at least 48 hours prior to the hearing, the hearings officer receives from the person complained against that the hearing be open to the public.
In any evidentiary hearing, the hearing will usually be conducted in the following order:
i. Presentation by the city attorney to describe the matter and summarize issues presented.
ii. Presentation by the person initiating the complaint.
iii. Responses by the person complained against.
iv. Final statement for the initiator of the complaint.
v. Final statement from the person complained against.
Testimony will be under oath. The hearings officer shall administer the oath.
A taped record shall be created.
f. Timeframe for Request for Information. At least three days shall be provided whenever a person complained against is afforded an opportunity to present to the hearings officer written materials.
g. Delivery. Delivery of materials may be personally, or by first class mail, or email confirmed by telephone message to the recipient. In the event of delivery by first class mail, whenever a party has a right or is required to do some act within a prescribed period after the service of a notice or other paper, three days shall be added to the prescribed period.
h. Other Enforcement. Nothing herein in any way precludes criminal or civil enforcement of any violations of state or local law.
i. Subpoena. The hearings officer is authorized to issue subpoenas. In the event any person disobeys a subpoena, the hearings officer may invoke, or authorize a party to invoke, the aid of any superior court of the state. Such court may issue an order requiring such person to appear before the hearings officer to produce documentary evidence, and/or to provide testimony, and any failure to obey such order may be punished by that court as contempt.
j. Rules of Evidence. The extent to which the Washington Rules of Evidence (ER) will be applied shall be determined by the hearings officer in the exercise of his or her discretion. The Rules of Evidence, to the extent determined applicable by the hearings officer, should be liberally construed to promote justice.
The hearings officer may adopt additional rules, which supplement the procedures in this section. (Ord. 2830 § 1(2), 2003).
2.80.090 Complaints against employees and officials other than the manager, councilmembers, and members of advisory bodies.
Any and all complaints regarding city employees and officials, except for the manager, councilmembers, and members of advisory bodies, shall be brought to the employee’s supervisor, or manager. The supervisor, or appropriate individual as determined by the manager, shall investigate the complaint and recommend to the manager appropriate action. Any action shall be determined by the manager, and a report thereof shall be made to the city council in executive session. (Ord. 2786 §§ 1, 2, 2001).
2.80.100 Civil action for slander, libel, defamation not affected.
Nothing in this code affects the right of a person complained against to initiate a private legal proceeding for slander, libel, defamation or similar action in the event a complaint is filed which makes unfounded or frivolous allegations. (Ord. 2786 §§ 1, 2, 2001).
2.80.110 Liberal construction – Limitation period – Effective date.
A. This code shall be liberally construed to effectuate its purpose of protecting the public’s interest in full disclosure of conflicts of interest and promoting ethical standards of conduct for city officials and employees, and to supplement existing laws that relate to the same subject.
B. This code shall be interpreted and applied a manner consistent with the maxim “de minimus non curat lex” (“the law does not concern itself with trifling matters”) and to allow inadvertent minor violations to be corrected and cured without full hearing in conformance with the spirit and purpose of this code.
C. Any action taken under this code must be commenced within three years from the date of violation.
D. This code shall take effect March 1, 2002. (Ord. 2786 §§ 1, 2, 2001).
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