Chapter 2.94
CODE OF ETHICS

Sections:

2.94.010    Policy.

2.94.020    Definitions.

2.94.030    Personal gain or profit – Use of persons, money or property.

2.94.040    Conflict of interest.

2.94.050    Acceptance of gifts.

2.94.060    Campaign activities.

2.94.070    Confidential information.

2.94.080    Board of ethics – Complaints against a councilmember, member of a board or commission, or mayor – Advisory opinions.

2.94.085    Conducting a board hearing on motions and a sufficient complaint.

2.94.090    Complaints against employees and officials other than the mayor, councilmembers, and members of advisory bodies.

2.94.095    Alternative procedure for complaints against employees and officials other than the mayor, council members, and members of advisory bodies.

2.94.100    Liberal construction – Limitation period – Effective date.

2.94.010 Policy.

The city of Lynnwood 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. Each employee and official should be informed of this code and meet its requirements. Questions regarding its interpretation concerning employees and officials should be brought to that person’s supervisor or mayor for interpretations of this code, and subject to any collective bargaining agreement, any action concerning violation of this code concerning officials and employees shall be determined by the mayor; provided questions regarding the interpretation of the code as applied to councilmembers, mayor and allegations of violation of this code by councilmembers, mayor, or members of advisory bodies shall be referred to the board of ethics through the process established herein. (Ord. 2112 § 2, 1996)

2.94.020 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 mayor 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 of Lynnwood Officials, Officers or Employees. “City official, officer, 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 mayor or a majority vote of the city council.

E. “Contract” includes any contract, sale, lease, or purchase.

F. “Contracting party” includes any person, partnership, association, cooperative, corporation, or other business entity which is a party to a contract with a municipality.

G. “Ethics” means standards of conduct that are regulated by this code.

H. “Family” means an individual’s spouse, and child, step-child, grandchild, parent, step-parent, grandparent, brother, half-brother, sister, or half-sister of the individual and the spouse of any such person and a child, step-child, grandchild, parent, step-parent, grandparent, brother, half-brother, sister, or half-sister of the individual’s spouse and the spouse of any such person.

I. “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 co-workers;

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, 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;

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.

J. “Person” means any individual, partnership, association, corporation, firm, institution, or other entity, whether or not operated for profit. (Ord. 2112 § 2, 1996)

2.94.030 Personal gain or profit – Use of persons, money or property.

A. An official or employee shall not knowingly use his or her office or position for personal or family benefit gain or profit, 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.

D. Notwithstanding the provisions of LMC 2.94.030, the mayor shall have discretion, and may adopt rules, regarding the nature, scope and extent to which the city of Lynnwood, 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 mayor, regarding the provision of any type of assistance, shall be in writing. (Ord. 2112 § 1, 1996)

2.94.040 Conflict of interest.

A. An official or employee shall not be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such person, in whole or in part, or which may be made for the benefit of his or her office, or accept, directly or indirectly, any compensation, gratuity, or reward in connection with such contract 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. 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 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 subsection (E) of this section;

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. An official or employee is not interested in a contract if he or she has only a “remote interest” in the contract. “Remote interest” means that of:

1. A nonsalaried officer of a nonprofit corporation;

2. An employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary;

3. A landlord or tenant of a contracting patty; and

4. A holder of less than one percent of the shares of a corporation or cooperative which is a contracting party.

None of the provisions of this section are applicable to any officer or employee interested in a contract, even if the officer’s or employee’s interest is only remote, if the officer or employee influences or attempts to influence any other officer or employee of the city to enter into the contract.

C. Repealed by Ord. 2493.

D. A councilmember may not vote in the authorization, approval or ratification of a contract in which he or she is beneficially interested even though one of the exceptions allowing the awarding of such contract applies. 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.

E. Restrictions after Leaving City.

1. For one year after leaving the city, a former official or employee may not hold or acquire a financial interest, direct or indirect, personally or through their family, in any contract or contracts having a total value of more than $5,000 made by, through, or under their supervision, or accept, directly or indirectly, any compensation, gratuity, or reward from any person interested in such a contract or transaction.

2. For one year after leaving the city, a former official or employee may not:

a. Assist anyone in proceedings involving the city where such official or employee worked on a matter in which they were officially involved in the course of their duties;

b. Represent any private person as an advocate on a matter in which they were involved; or

c. Compete for a city contract when they were involved in determining the scope of work or the selection process.

3. An official or employee may never disclose or use the city’s privileged or proprietary information except to perform official duties. (Ord. 2493 §§ 1, 2, 2004; Ord. 2308 § 1, 2000; Ord. 2112 § 2, 1996)

2.94.050 Acceptance of gifts.

A. Except for charitable contributions or campaign contributions required to be reported under Chapter 42.17 RCW, an official or employee may not accept gifts of cash in any amount that has any connection whatsoever with city employment or the performance of duties.

B. Except as provided in subsection (E) of this section, an official or employee may not, directly or indirectly, give or receive or agree to receive, or ask for any compensation, gift, reward, or gratuity from a source for performing or omitting or deferring the performance of any official duty, except from the city.

C. Except as provided in subsection (E) 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 mayor.

D. Except as provided in subsection (E) 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 mayor, or placed with the mayor’s records.

E. 1. An officer or employee may accept an item or cash if it is regulated or reported under Chapter 42.17 RCW.

2. No officer of 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 LMC 2.94.020. The value of gifts given to an office’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 LMC 2.94.020(I);

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.

F. This section shall not apply to gifts made to the city. All such gifts shall be given to the mayor for official disposition. (Ord. 2112 § 2, 1996)

2.94.060 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 Chapter 42.17.130 RCW.

C. This section does not prohibit any activity permitted or regulated under Chapter 42.17 RCW. (Ord. 2112 § 2, 1996)

2.94.070 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 confidential information gained by reason of the officer’s or employee’s official position or otherwise use 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 mayor (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 mayor 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 are presumed confidential, unless the mayor (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 mayor 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 mayor. For example, a department head, meeting with employee B to discuss employee C’s job performance, may determine that information discussed is confidential. (Ord. 2112 § 2, 1996)

2.94.080 Board of ethics – Complaints against a councilmember, member of a board or commission, or mayor – Advisory opinions.

A. Board Established – Authority, Purpose and Duties – Membership – Officers – Policies and Procedures – Board Counsel – Staff.

1. Board Established. There is established a board of ethics for the city of Lynnwood.

2. Authority, Purpose and Duties. The purpose of this board of ethics is:

a. To issue advisory written opinions on the provisions of this code;

b. To hear complaints and determine if violations of this ethics code, or state ethics law applicable to cities, have occurred by the mayor, a councilmember, a member of a board or commission, and to enter appropriate administrative orders and make recommendations to the city council;

c. To hear and consider complaints referred to it by the mayor as provided for in LMC 2.94.095;

d. To adopt policies, procedures and rules, as it may deem necessary and appropriate to accomplish its purpose and duties;

e. To appoint a qualified individual or firm as “board counsel” who shall both provide the board with independent legal counsel apart from the city attorney, and be responsible to conduct investigations on complaints and conduct the functions and perform the duties set forth in subsection (A)(3) of this section;

f. To manage the expenditure of appropriations for operation of the board, board counsel, and other staff; and

g. To annually review: its budget; all service contracts to ensure ready availability of board counsel, third party investigators, and other staff, and to meet with contractors; activities for the proper training of such staff about this ethics code and the board’s policies, rules and procedures for the administration thereof.

3. Board Counsel – Authority and Duties. Board counsel shall have the following authority and duties:

a. To provide the ethics board with independent legal research, advice, assistance, and counsel on its organization and general operations, except in regard to any complaint once it has been filed and specifically in regard to such complaint during the time it is being considered by board counsel or the board under this section and LMC 2.94.085.

b. To agree to settle complaints in accordance with the policies of the board and the purpose and intent of this ethics code, to enter appropriate administrative orders of settlement and administrative orders determining the sufficiency or insufficiency of a complaint, as set forth in subsection (B) of this section.

c. To perform the functions of board counsel as set forth in this section and LMC 2.94.085.

4. Membership – Nomination, Confirmation and Alternates – Terms – Qualification – Removal. The board of ethics shall be composed of three members, none of whom shall be a city councilmember or city employee.

a. The board members shall be nominated by the mayor and confirmed by the city council, for a term of three years or for fulfillment of an unexpired term. The original appointees’ terms concluded as follows:

Position No. 1:    January 1, 1998

Position No. 2:    January 1, 1999

Position No. 3:    January 1, 2000

Any person may be removed from the board by the mayor, with the approval of the council.

b. In addition to the members of the board, the mayor shall nominate, and the city council in its discretion shall confirm, first and second alternate board members. The alternates may attend all meetings of the board, and may participate as set forth in board rules, but shall have no voting rights unless they serve in the place of an appointed board member.

In the event a board member must recuse himself or herself, or is not present, or is otherwise unavailable to conduct any board business, the first alternate member shall serve in his or her place. If a second alternate is needed, the second alternate shall then serve.

c. Members and alternate members may be nonresidents of the city of Lynnwood.

d. In filling any vacancy or making a nomination for membership on the board of ethics, the mayor shall strive to select persons with diverse perspectives and areas of expertise appropriate to the review of ethical matters, and who are of good general reputation and character. For proposed nominees who are nonresidents, the mayor shall state reasons that contributed to the decision to nominate a nonresident, including, but not limited to, particular expertise of the person to review ethics matters, and/or a desire to have a person or persons serve on the board who as nonresidents are less likely to have some personal, social, or business relationship with whomever may be the subject of an ethics complaint, and who would be less likely to be disqualified; and for other reasons deemed appropriate by the mayor.

5. Officers – Succession – Quorum – Procedures. The board shall elect from its membership a presiding officer who shall be the chief administrative officer of the board who shall be referred to as the board chair and a first vice-chair and a second vice-chair, who shall each serve for one year. If the board chair is unavailable, not present, or is recused from participation, the first vice-chair shall preside and have all authority and powers of the board chair during and, if necessary, between meetings of the board. If the board chair and the first vice-chair are both unavailable, not present, or are recused from participation, the second vice-chair shall preside and have all authority and powers of the board chair during and, if necessary, between meetings of the board. The board may elect any member to serve in additional offices or roles as the board deems necessary. The board shall provide a manner for minutes and records of all meetings to be kept. The board shall adopt policies, rules, and procedures; provided, a majority of the board shall constitute a quorum for the transaction of business, and a majority of the board shall be necessary to carry any proposition.

6. Meetings – Notice. A meeting of the board shall be held as the board deems necessary and advisable on 72 hours’ notice to all members, or as provided in board rules, or otherwise as agreed by a majority of the board.

7. Board Counsel, Investigative and Clerical Staff. The board of ethics shall receive the following staff support:

a. Normal Board Operations and Budgeting. The mayor shall provide staff, as he or she deems appropriate, to assist the board of ethics. The board shall make a timely request for necessary biennial budget appropriation(s) for “on-call” contract services for independent legal counsel, and for other staff and other operational costs to the mayor, who shall include that request in the preliminary budget, when, if otherwise necessary, the board may request appropriations directly from the city council.

b. Board Operations Involving a Complaint. If at any time a complaint creates a need for additional or special funding, the board shall make a supplemental request to the mayor or administrative services director who shall forward it to the city council for review and appropriate action.

B. Specific Complaint Against the Mayor, a Councilmember, or a Member of a Board or Commission – Complaint Requirements – Preliminary and Final Determinations of Sufficiency.

1. Complaint Requirements – Service. Any person may submit a written complaint to the finance director alleging one or more violations of this code by the mayor, a councilmember, or a member of a board or commission. The complaint must:

a. Set forth specific facts with enough precision and detail for board counsel to make a determination of sufficiency; and

b. Set forth the specific section(s) and subsection(s) of this code that the complaining party believes has been violated; and

c. An explanation by the complaining party of the reasons why the alleged facts violate this code; and

d. Be signed under penalty of perjury by the person(s) submitting it in a manner consistent with Chapter 9A.72 RCW; and

e. State each complaining person’s correct name, address at which mail may be personally delivered to the submitter, and the telephone number at which each complaining person may be contacted.

The finance director shall promptly serve or mail, by return receipt requested, a copy of the complaint to the individual(s) complained against and to board counsel. The finance director shall not send a copy of the complaint to board members, but shall send a notice to all board members and alternates setting forth only the name, address and any other necessary information identifying all complaining parties and the individual(s) complained against. The finance director shall notify all complaining parties, board members and alternates, and board counsel, of the date of completion of service or mailing of a copy of the complaint.

2. Board Counsel Consideration of Complaint – Preliminary Determination of Sufficiency – Investigation. Upon receipt of the complaint, board counsel shall:

a. Initially review the complaint to determine if it reasonably complies with the requirements of a complaint in subsection (B)(1) of this section, and shall:

i. Meet at least once together with all parties to hear from them on all aspects of the complaint and issues involved;

ii. Allow all parties to submit at meetings, or otherwise, any information they have concerning the complaint and issues involved;

iii. Request, as needed, clarification, explanation or submission of information necessary to properly consider the complaint;

iv. Promptly distribute to all parties any correspondence between board counsel and any party; and

v. Meet or discuss with any party, at such time or times as board counsel determines appropriate, a settlement of one or more of the complaint allegations and issues involved.

b. When in the discretion of board counsel it is necessary or appropriate, refer the complaint and any information gathered to the investigative third party(ies) approved by the board; provided, board counsel shall direct and control that investigation.

c. At the conclusion of the third party investigation, distribute to all parties all information gathered by any third party investigator, and any report, findings, or conclusions therefrom.

d. After distribution of information from the third party investigation, convene at least one meeting with all parties in attendance to discuss a settlement and resolution of the complaint and the issues involved, and board counsel may submit proposals for settlement of one or more issues involved and set deadlines for response by any or all parties, and further, if a settlement of one or more issues is agreed to, board counsel shall enter an appropriate administrative order of settlement.

e. If a settlement of one or more issues cannot be achieved, then enter an administrative order that:

i. Dismisses any complaint allegation which remains insufficiently stated;

ii. Dismisses any complaint allegation which is not supported by substantial facts;

iii. Identifies and sets forth the terms of any agreed settlement between the parties and board counsel;

iv. Identifies any complaint allegations withdrawn;

v. Determines the sufficiency of all other complaint allegations which are supported by substantial facts; and

vi. Sets forth any additional allegations, if any, from evidence which board counsel has discovered during the investigation, and such allegations shall comply with subsection (B)(1) of this section.

This administrative order shall be served or mailed to all parties within seven days of the date it was signed by board counsel.

f. Board counsel may, with the concurrence of the board, refer any complaint allegation, or any matter discovered by board counsel during the course of an investigation, to a city or county prosecutor. The board shall adopt policies and procedures to receive a recommendation for such a referral, and when appropriate to concur in such a recommendation. All proceedings involving a recommendation for a referral to a city or county prosecutor shall not be open to the public, nor shall any party, any party’s representative, or any party’s attorney be allowed to participate.

3. Complaint – Final Determination of Sufficiency – Standard. Board counsel shall make the final determination of the sufficiency of a complaint. A complaint shall be sufficient if it precisely alleges and reasonably describes acts which if true would constitute a prima facie showing of a violation of a specific provision(s) of this code. The purpose of requiring that the board counsel make a determination of sufficiency of the complaint is to ensure that the complaint is supported by identifiable facts, and to ensure that the complaint is not based on frivolous, speculative, or vague allegations.

4. Final Determination of Sufficiency – Administrative Order – Appeal. Ten days after the last settlement meeting, board counsel shall make and enter a determination of sufficiency in the form of a written administrative order which shall be served or mailed to each party. The administrative order shall include findings of fact and conclusions upon which board counsel made the determination of sufficiency or insufficiency. The determination of sufficiency issued by board counsel shall become final and binding 10 days after service or mailing is completed, unless it is appealed to the board. If it is not appealed, the board shall conduct a hearing as set forth in LMC 2.94.085. If, upon appeal, the board determines that the complaint, or a portion thereof, is sufficient or insufficient, it shall enter an appropriate administrative order, and no administrative or other legal review or appeal is available. If the board on appeal finds that the complaint, or a portion thereof, is sufficient, a hearing will be conducted as set forth in LMC 2.94.085.

5. Rights of Parties. Except as provided in subsection (B)(2)(f) of this section, each party to the complaint and the person(s) against whom the complaint was filed, and any other parties as the board may determine should be involved, shall all have the right:

a. To attend and participate in person or through a designated representative of a party, and an attorney, during any board counsel meetings, or board hearings;

b. In any board hearing on a motion or appeal, to present written and oral argument, supported by affidavits or declarations as may be appropriate, on any legal or factual issues involved in the motion or appeal before the board; and

c. In any board hearing on a sufficient complaint, to call witnesses, cross-examine witnesses, and to present written and oral argument on any legal or factual issues involved in the complaint before the board.

6. Violation of the Ethics Code – Remedies. In the event the board’s administrative order determines that the individual against whom the complaint was made has violated the code, then the city council may take any of the following actions by a majority vote of the council:

a. Admonition. An admonition shall be a verbal nonpublic statement approved by the city council and made by the council president, or his/her designee, to the individual.

b. Reprimand. A reprimand shall be administered to the individual by a resolution of reprimand by the city council. The resolution shall be prepared by the city council and shall be signed by the mayor or council president. If the individual objects to the content of such resolution, he or she may file a request stating the reasons for objections with the council president and asking for a review of the content of the resolution of reprimand by the city council. The city council shall review the resolution of reprimand in light of the board’s administrative order and the request for review, and may take whatever action appears appropriate under the circumstances.

c. Censure. A resolution of censure shall be a resolution read personally to the individual in public. The resolution shall be prepared by the city council and shall be signed by the mayor or council president. The individual shall appear at a city council meeting at a time and place directed by the city council to receive the resolution of censure. Notice shall be given at least 20 calendar days before the scheduled appearance at which time a copy of the proposed resolution of censure shall be provided to the individual. Within seven days of receipt of the notice, if the individual objects to the contents of such resolution, he or she may file a request stating the reasons for objections with the council president and asking for a review of the content of the proposed resolution of censure by the city council. Such a request will stay the administration of the censure. The city council shall review the proposed censure in light of the board’s administrative order and the request for review, and may take whatever action appears appropriate under the circumstances. The action of the city council shall be final and not subject to further review or appeal. If no such request is received, the resolution of censure shall be administered at the time and place set. It shall be read publicly, and the individual shall not make any statement in support of, or in opposition thereto, or in mitigation thereof. A censure shall be administered at the time it is scheduled whether or not the individual appears as required.

d. Removal – Member of Board, Commission or Committee. In the event the individual against whom the complaint was made is currently a member of a city board, commission, committee, or other multimember bodies nominated by the mayor and confirmed by the city council, the city council may, in addition to the remedies set forth in subsections (B)(6)(a), (b), or (c) of this section, and notwithstanding any other provision of the Lynnwood Municipal Code, by a majority vote remove the individual from such board, commission or committee effective immediately.

The action of the city council in the selection and carrying out of remedies shall be final and not subject to further review or appeal.

7. Proceedings Open/Closed. Proceedings by the board, when they relate to action involving a person, shall be made in executive session; however, consistent with RCW 42.30.110(1)(f), upon request of the individual against whom the complaint was made, one or more hearings before the board on a motion or the hearing on a sufficient complaint shall be open to the public. The deliberations of the board shall not be open to the public; however, any final action by the board on any administrative order shall be taken at a meeting open to the public and only after proper public notice is given.

8. Public Records. The complaint, board counsel’s administrative order of settlement, an administrative order determining sufficiency or nonsufficiency of a complaint, and any other administrative order of the board shall be considered public records. An administrative order by board council determining that a complaint is sufficient shall contain at the beginning the following specific language:

NOTICE: ANY PORTION OF THIS ADMINISTRATIVE ORDER DETERMINING SUFFICIENCY OF ANY PORTION OF A COMPLAINT DOES NOT DETERMINE THE TRUTH OR FALSITY OF THE ALLEGATIONS CONTAINED IN THE COMPLAINT FILED WITH THE BOARD. BOARD COUNCIL HAS ONLY DETERMINED THAT IF CERTAIN FACTS CONTAINED IN THE COMPLAINT ARE FOUND TO BE TRUE DURING A LATER BOARD HEARING THEN A VIOLATION(S) OF THE ETHICS CODE MAY BE FOUND TO HAVE OCCURRED.

The city shall release copies of any written reports resulting from an investigation of 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 and any other applicable public disclosure laws.

9. Council Action – Executive Session – Councilmember or Mayor Disqualification from Voting. Final action to decide upon remedies by the city council shall be by majority vote in a public meeting. If the proceeding involves a member of the city council, that member shall not vote on any matter involving the member. As provided in RCW 35A.12.100, the mayor may vote in the case of a tie, except if the action is against the mayor. Deliberations by the council may be in executive session; however, upon request of the individual against whom the complaint was made, a public hearing or public meeting before the council will be held on the issue of remedies.

C. Advisory Opinions.

1. Upon request of any employee, the mayor or a member of the city council, or any official, the board of ethics may also render written advisory opinions concerning the applicability of the code to hypothetical circumstances and/or situations solely related to the persons making the request.

2. Upon request of the mayor, or two members of the city council, the board of ethics may also render written advisory opinions concerning the applicability of the code to hypothetical circumstances and/or situations related to a matter of city-wide interest or policy. (Ord. 2493 § 3, 2004; Ord. 2133 § 1, 1997; Ord. 2112 § 2, 1996)

2.94.085 Conducting a board hearing on motions and a sufficient complaint.

A. Evidentiary Standard for Violation – Burden of Proof – Motions – Procedural Administrative Orders – No Appeal. The board shall find a violation of this ethics code, or of state ethical laws which apply to cities, only upon a preponderance of the evidence presented and admitted during a hearing on a sufficient complaint. The burden of proof shall be upon board counsel to prove a violation by a preponderance of the evidence. The board is authorized to conduct hearings on any motion from the parties or board counsel, including motions for summary judgment. The standard of proof for summary judgment shall be that used by the trials courts of this state under Civil Rule 45. The board is authorized to determine and establish by administrative order all necessary and appropriate procedural matters including, but not limited to, scheduling, hearing procedures and other administrative matters regarding a hearing. Any board administrative order shall not be subject to review or appeal.

B. Hearing – Time Periods – Tolling of Periods. The board shall conduct a hearing on a sufficient complaint or portion thereof which has not been otherwise disposed of as provided for in this chapter.The board shall begin a hearing no later than 15 working days after the final determination of sufficiency of the complaint unless a longer time period is requested by a party or board counsel, and approved by the board. The board shall render a final administrative order concluding the hearing no later than 90 calendar days after it begins the hearing unless a longer time period has been requested by the board and approved by the city council. However, the running of these two time periods shall be tolled and all proceedings of the board, or as may be applicable to the board counsel’s activities in LMC 2.94.080(B), on the complaint, shall be stayed:

1. During any period from when the board files with the council president an application to the city council for subpoena power to the time a council decision on the application is made;

2. During any period from when the board becomes aware that any person refuses to obey such subpoena and until such time as a superior court issues an order on the subpoena and such person complies with that court order;

3. During any period from the date an appeal is made to the board regarding board counsel’s administrative order of sufficiency until the board enters a final administrative order deciding the appeal;

4. During any period from the date a summary judgement motion is filed with the board until the board enters a final administrative order deciding the motion; or

5. During any period from the date a referral is made to a city or county prosecuting authority until a determination is made by each prosecuting authority that it will not proceed with a criminal prosecution concerning the matter(s) referred by the board or board counsel, or until a criminal proceeding is terminated or completed.

C. Board Administrative Order – Finality – Reconsideration – Recommendations. The board shall render an administrative order and decision setting forth its findings of fact and conclusions of law as to whether or not the individual against whom the complaint was made has violated the code. Its administrative order and decision shall become final 10 working days after its entry, unless a motion for reconsideration is filed. The administrative order may include recommendations for the improvement of the city’s ethics code as the board may in its discretion determine.

D. Subpoenas – Requests – Authority to Issue – Service. The city council may issue subpoenas on behalf of any party in response to board counsel’s or the board’s application (which each shall include any party’s requests and justification for subpoenas) for the attendance and testimony of witnesses, and the production of documentary evidence, at board counsel meetings of all parties, witness interviews, depositions, or hearings relating to any matter under investigation by board counsel or the board, or in connection with any hearing conducted by the board. Board counsel or the board shall request subpoena power by making a written application to the city council describing in detail the subject matter of the proposed subpoena and an explanation of why such information is reasonably necessary in order to conduct board counsel’s or the board’s investigation or hearing. The subpoena may be issued in the event the city council determines the subpoena request is reasonable. Board counsel shall be responsible to serve or mail all subpoenas authorized by the city council. In the event any person disobeys a subpoena, board counsel or the board may make a written application (which each shall include any party’s requests and justification for enforcement) to the city council to direct the city attorney to invoke the aid of any superior court of the state. Such court may issue an order requiring such person to appear before board counsel or the board, to produce documentary evidence, and/or to provide testimony, and any failure to obey such order may be punished by that court as contempt.

E. Right to Fully Participate. No administrative order may be issued by the board unless a person against whom a complaint was made has had a full opportunity to prepare for, and fully participate in, and present information, including affidavits in support or opposition to a motion before the board, and to cross-examine witnesses at the final hearing before the board on the merits of board counsel’s final administrative order on sufficiency.

F. Service of Administrative Order. A copy of the board’s administrative order shall be served or mailed to the city council, the individual against whom the complaint was made, and the complaining party within seven calendar days of the board’s presiding officer signing the order, unless a longer time period has been requested by the individual against whom the complaint was made, and has been approved by the board, or unless a longer time period has been requested by the board and has been approved by the city council. (Ord. 2493 § 4, 2004)

2.94.090 Complaints against employees and officials other than the mayor, councilmembers, and members of advisory bodies.

Any and all complaints regarding city employees and officials, except for the mayor councilmembers, and members of advisory bodies shall be brought to the employee’s supervisor, or mayor. The supervisor, or appropriate individual as determined by the mayor, shall investigate the complaint and recommend to the mayor appropriate action. Any action shall be determined by the mayor, and a report thereof shall be made to the city council in executive session. (Ord. 2112 § 2, 1996)

2.94.095 Alternative procedure for complaints against employees and officials other than the mayor, council members, and members of advisory bodies.

A. If it appears after an administrative investigation that a person who reports directly to, or is supervised by, the mayor or that both a person who reports directly to, or is supervised by, the mayor and another employee may have both violated this chapter, then in either situation the mayor shall have an additional alternative procedure. In the discretion of the mayor, if the circumstances require it, or it is in the best interests of the city to strive to avoid even an appearance of impropriety in the conduct of the enforcement of this code, the mayor may refer any complaint within the scope of LMC 2.94.090 to the board of ethics and request it to either:

1. Begin its own investigation and issue written reports to the mayor on any alleged violations of this code which shall include recommendations for action by the mayor; or

2. Review only the initial investigation materials provided with the referral, then issue written reports to the mayor on any alleged violations of this code which shall include recommendations for action by the mayor; or

3. Review the initial investigation materials provided with the referral and determine if additional investigation is needed, then issue written reports to the mayor on any alleged violations of this code which shall include recommendations for action by the mayor.

B. The mayor’s referral shall comply with the requirements for a “specific complaint” as outlined in LMC 2.94.080, except that:

1. The mayor’s referral may also include any initial investigation materials or information prepared by third parties other than the mayor; and

2. Since the mayor has sworn to an oath of office and has a legal duty to enforce the law, the referral shall not be required to by signed under penalty of perjury.

C. When considering a mayor’s referral(s), board counsel and the board shall have:

1. All the authority and responsibilities that it would otherwise have under LMC 2.94.080 and 2.94.085, respectively, while investigating a complaint, holding hearings, and issuing an administrative order for disposition by the city council, including making an application(s) for subpoena powers and the issuing and enforcement of subpoenas under LMC 2.94.085(D); and

2. Authority to recommend to the mayor any action that would otherwise be available to the city council under LMC 2.94.080(B)(6).

D. Any final action shall be determined by the mayor, and both the board’s written report and a written report of final action taken by the mayor shall be provided to, and reviewed by, the city council in executive session. (Ord. 2493 § 5, 2004)

2.94.100 Liberal construction – Limitation period – Effective date.

A. This code shall be liberally construed to effectuate its purpose and policy and to supplement existing laws that relate to the same subject.

B. Any action taken under this code must be commenced within three years from the date of violation.

C. This code shall take effect March 1, 1997. (Ord. 2112 § 2, 1996)