Chapter 2.68
CODE OF ETHICS – OFFICIALS
Sections:
2.68.040 Standards of conduct.
2.68.050 No third party right of action.
2.68.080 Complaints, investigations, hearings and enforcement.
2.68.090 Liberal construction – Limitation period – Effective date.
2.68.010 Purpose and intent.
A. Purpose. The city council is committed to conducting its business in a fair, open, efficient, and accountable manner, and adopts this code of ethics for members of the city council and council-appointed public bodies to promote public confidence in the integrity of local government and its operation. This code of ethics will provide the basis for education and training for city officials, both elected and appointed, to ensure that the highest standards and best practices with regard to ethics will be followed.
B. Intent. The citizens and businesses of Newcastle are entitled to fair, ethical, and accountable local government that has earned the public’s full confidence. It is further the intent that city officials be permitted to fulfill their duties to represent the public to the greatest extent possible unless circumstances exist where such engagement is impermissible. Nothing in this chapter is intended to reduce, limit, or restrict the pool of available candidates for service on the council or service on council-appointed public bodies, all of which are either part-time or volunteer positions. It is in the public interest to ensure that barriers to citizen public service are not created by the provisions of this chapter. In keeping with the city of Newcastle’s commitment to excellence, the effective functioning of representative democratic government therefore requires that:
1. Public officials, both elected and appointed, comply with the laws and policies affecting the operations of government;
2. Public officials be independent, impartial, and fair in their actions;
3. Public office be used for the public good, not for personal gain; and
4. Public deliberations and processes be conducted openly, unless legally confidential, in an atmosphere of respect and civility. (Ord. 2021-628 § 1 (Att. 1)).
2.68.020 Definitions.
A. “Official” means a member of the city council or a member of council-appointed city boards and commissions and other council-appointed task groups or committees.
B. “Relative” means spouse, domestic partner, child, step-child, parent, grandparent, sibling, niece, nephew, cousin, step-parent, parent-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law. (Ord. 2021-628 § 1 (Att. 1)).
2.68.030 Required conduct.
A. Compliance with Ethics Laws. Officials shall comply with the individual conduct requirements of federal, state, and city laws in the performance of their public duties. These laws include, but are not limited to: the United States and Washington Constitutions; laws pertaining to conflicts of interest, election campaigns, financial disclosures, and open processes of government; and city ordinances and policies, including but not limited to the list below:
1. Chapter 9A.72 RCW: Perjury and interference with official proceedings.
2. RCW 35A.12.060: Vacancy for nonattendance.
3. Chapter 35A.13 RCW: Council-manager plan of government.
4. Chapter 40.14 RCW: Preservation and destruction of public records.
5. RCW 42.17A.555: Use of public office or agency facilities in campaigns – Prohibition – Exceptions.
6. RCW 42.17A.565: Solicitations of contributions by public officials or employees.
7. Chapter 42.23 RCW: Code of Ethics for municipal officers – Contract interests.
8. Chapter 42.30 RCW: Open Public Meetings Act.
9. Chapter 42.36 RCW: Appearance of fairness doctrine – Limitations.
10. Chapter 42.56 RCW: Public Records Act.
B. Conflicts of Interest. In order to ensure their independence and impartiality on behalf of the common good, officials shall not participate in quasi-judicial or site-specific land use city decisions, the purchase or condemnation of property, or city decisions involving the awarding of a grant or contract in which any of the following has a financial interest: (1) the official, (2) a relative, (3) an individual with whom the official resides, or (4) an entity that the official serves as an officer, director, trustee, partner or employee.
Officials shall abstain from participating in deliberations and decision-making where conflicts exist. RCW 42.23.040, as may be amended, shall apply to conflicts or potential conflicts with respect to remote interests in city decisions involving the awarding of a contract. This section shall not apply to legislative decisions regarding taxes or fees, or decisions having broad application to city residents or businesses.
C. Misuse of Public Position or Resources. Except for incidental use at little or no cost to the city, officials shall not use public resources that are not available to the public in general, such as city staff time, equipment, supplies, or facilities, for other than a city purpose.
D. Confidential Information. Officials shall not disclose confidential information gained by reason of the official’s position unless authorized to do so. No official shall use confidential information for his or her personal gain or benefit. An official shall not engage in business or professional activity that the official might reasonably expect would induce him or her by reason of his or her official position to disclose such confidential information. “Confidential information” means: (1) specific information, rather than generalized knowledge; and (2) information made confidential by law.
E. Representation of Third Parties. Except in the course of official duties, officials shall not appear on behalf of the financial interests of third parties before the bodies on which the officials serve or in interaction with the body’s assigned staff. The members of the city council shall not appear on behalf of the financial interest of third parties before the council or any board, commission, or proceeding of the city, or in interaction with staff.
F. Solicitation of Charitable Contributions. No official may make direct personal solicitations for charitable contributions from city employees.
G. Gifts. Officials shall not, directly or indirectly, give or receive, or agree to give or receive, any compensation, monetary value, gift, favor, reward, or gratuity from any person or entity for a matter connected with or related to the official’s performance of official duties for the city. The gifts listed below are presumed not to be prohibited gifts; provided, this presumption is rebuttable and may be overcome based on the circumstances surrounding the receipt or giving of the gift:
1. Receiving items from family members or friends where it is clear beyond a reasonable doubt that the gift was not made to gain or maintain influence;
2. Unsolicited advertising or promotional items of nominal value, such as pens and note pads;
3. Unsolicited tokens or awards of appreciation in the form of a plaque, trophy, desk item, wall memento, or similar item;
4. Unsolicited items received by an official for the purpose of evaluation or review, if the official has no personal beneficial interest in the eventual use or acquisition of the item;
5. Informational materials, publications or subscriptions related to the recipient’s performance of official duties;
6. Food and beverages consumed at hosted receptions where attendance is related to the official’s duties for the city;
7. 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;
8. Unsolicited gifts from dignitaries from another state or a foreign country that are intended to be personal in nature;
9. Food and beverages on infrequent occasions in the ordinary course of meals where attendance by the official is related to the performance of official duties;
10. Unsolicited flowers, plants, and floral arrangements;
11. Any gift that would have been offered or given to the official if he or she were not an official; and
12. Campaign contributions that are solicited or received and reported in accordance with applicable law.
H. Impermissible Conduct After Leaving Office.
1. No former official shall disclose or use for his or her personal gain or that of any other person any confidential information gained because of his or her office.
2. No former official shall, during the period of one year after leaving office:
a. Assist any person in matters involving the city if, while in the course of duty with the city, the former official was officially involved in the matter, or personally and substantially participated in the matter, or acted on the matter; or
b. Represent any person as an advocate in any matter in which they were involved as an official; or
c. Participate as or with a bidder, vendor, or consultant in any competitive selection process for a city contract in which he or she assisted the city in determining the project, or works to be done or the process to be used.
I. City-Funded Events. The provisions of this section and of this chapter do not prohibit the city from funding, or contributing to the funding for, an event, activity, or function at which public officials attend and/or in which they participate, where there is a corresponding benefit to the city to have its public officials attend or participate, and where the city council approves funding, or the contribution towards funding thereof. (Ord. 2021-628 § 1 (Att. 1)).
2.68.040 Standards of conduct.
Officials are encouraged to comply with the following standards of conduct:
A. Personal Integrity. The professional and personal conduct of officials must be above reproach and avoid even the appearance of impropriety. Officials shall refrain from abusive conduct, threats of official action, personal accusations, or verbal attacks upon the character or motives of other members of council, city staff, or the public. Officials shall maintain truthfulness and honesty and not compromise themselves for advancement, honor, or personal gain. Additionally, officials shall not directly or indirectly induce, encourage, or aid anyone to violate this code of ethics and it is incumbent upon officials to make a good faith effort to address apparent violations of this code of ethics.
B. Working for the Common Good. Recognizing that stewardship of the public interest must be their primary concern, officials will work for the common good of the people of Newcastle and not for any private or personal interest, and they will ensure fair and equal treatment of all persons, claims, and transactions coming before the city council, boards, and commissions.
C. Respect for Process. Officials shall perform their duties in accordance with the processes and rules of procedure established by the city council and boards and commissions governing public meetings, the deliberation of public policy issues, meaningful involvement of the public, and implementation of policy decisions of the city council by city staff.
D. Commitment to Transparency. Transparency, openness, and accountability are fundamental values of the city and are also required by the laws of the state of Washington. The public has a right to inspect and copy public records unless exempt by law from disclosure. All materials relating to the conduct of city government that are prepared, possessed, used or retained by any official, including email and other electronic records, are subject to requirements for retention, protection, and disclosure. Officials may assume that all copies of materials received from city staff have already been archived and do not need to be retained. Officials shall not discard, damage, or destroy the original copy of any public record unless the city complies with the record retention schedules established under Chapter 40.14 RCW and records management policies of the city, as may be amended. In accordance with the requirements of state law officials shall promptly provide any records requested by the public records officer in response to a disclosure request under the Public Records Act, Chapter 42.56 RCW. It is the responsibility for the public records officer together with the city attorney to decide which records meet the definition of “public record” and whether or not such records are exempt from disclosure; officials must not take it upon themselves to decide whether a record meets the definition of a public record, that a record is exempt from disclosure, or to otherwise conceal a record.
E. Conduct of Public Meetings. Officials shall prepare themselves for public issues, listen courteously and attentively to all public discussions before the body, and focus on the business at hand. Officials shall refrain from interrupting other speakers, shall be respectful to fellow councilmembers, city staff and the public, and shall refrain from interfering with the orderly conduct of meetings.
F. Decisions Based on Merit. Officials shall base their decisions on the merits and substance of the matter at hand and on greater public policy considerations, rather than on unrelated considerations.
G. Advocacy. When acting in an official capacity as a city official representing the city, officials shall represent the official policies or positions of the city council, board, or commission to the best of their ability when the city council, board, or commission has taken a position or given an instruction. When presenting their individual opinions and positions, officials shall explicitly state they do not represent their body or the city of Newcastle, nor will they allow the implication that they do. Officials have the right to endorse candidates for all council seats or other elected offices. It is inappropriate to make or display endorsements during council meetings, board/commission meetings, or other official city meetings. However, this does not preclude officials from participating in ceremonial occasions, community events, or other events sponsored by civic groups. (Ord. 2021-628 § 1 (Att. 1)).
2.68.050 No third party right of action.
Nothing in this chapter shall be construed as creating or providing a basis for a private cause of action against the city or against any official by third parties. (Ord. 2021-628 § 1 (Att. 1)).
2.68.060 Ethics officer.
A. The city council creates the position of ethics officer. The city manager will contract with one or more persons or agencies to fill this position as needed. The ethics officer shall be admitted to the practice of law and shall have sufficient experience and training.
B. The ethics officer will review and recommend training materials for education regarding the code of ethics and advisory opinions concerning the code of ethics as requested by the city manager. The ethics officer shall also be responsible for the prompt and fair enforcement of its provisions when necessary and shall at all times maintain the impartiality of the office by revealing information provided to the officer only in the context of rendering opinions to the city and its officials and staff as necessary or in response to legal process.
C. The ethics officer, in addition to other duties, and in consultation with the city manager, shall conduct a review of the ethics code as requested by the city manager.
D. In rendering opinions under NMC 2.68.070 or 2.68.080, the ethics officer shall consider the purpose and intent underlying this code of ethics and in RCW 42.23.010. (Ord. 2021-628 § 1 (Att. 1)).
2.68.070 Advisory opinions.
A. Upon request of any official, the ethics officer shall render written advisory opinions concerning the applicability of NMC 2.68.030 to hypothetical circumstances and/or situations solely related to the persons making the request. The ethics officer will not render advisory opinions on matters that are the purview of other government agencies such as the Washington State Public Disclosure Commission, Newcastle prosecutor, or the King County prosecutor.
B. Upon request of any official, the ethics officer may also render written advisory opinions concerning the applicability of the code of ethics to hypothetical circumstances and/or situations related to a matter of city-wide interest or policy.
C. The ethics officer will endeavor to respond to requests for advisory opinions within 30 days of submission of the request, or more rapidly if the requester expresses urgency in the request.
D. An official’s conduct based in reasonable reliance on an advisory opinion rendered by the ethics officer shall not be found to violate this code of ethics, as long as all material facts have been fully, completely, and accurately presented in a written request for an advisory opinion, the ethics officer issues an advisory opinion that the described conduct would not violate the code of ethics, and the official’s conduct is consistent with the advisory opinion. The ethics officer reserves the right to reconsider the questions and issues raised in an advisory opinion and, where the public interest requires, rescind, modify, or terminate the opinion, but a modified or terminated advisory opinion will not form the basis of a retroactive enforcement action against the original requestor. Advisory opinions will contain severability clauses indicating that, should portions of the opinion be found to be unenforceable or not within the ethics officer’s authority, the remainder of the opinion shall remain intact.
E. All officials subject to this chapter are strongly encouraged to seek advisory opinions from the ethics officer at the earliest possible opportunity whenever an official has reason to believe that his or her circumstances could present a conflict of interest or the appearance of a conflict of interest or any other violation of this chapter. Advisory opinions are subject to the attorney-client privilege. (Ord. 2021-628 § 1 (Att. 1)).
2.68.080 Complaints, investigations, hearings and enforcement.
The ethics officer shall resolve inadvertent and minor violations of the code of ethics informally, unless the ethics officer determines that doing so would not serve the public interest. When a violation is neither inadvertent nor minor, the ethics officer may initiate an action in accordance with this section.
A. Complaint Process.
1. Complaint Requirements – Service. Any person may submit a written complaint to the ethics officer alleging one or more violations of NMC 2.68.030 by an official. The complaint must be based on personal knowledge, and set forth specific facts with enough precision and detail for the ethics officer to make a determination of sufficiency. It must be signed under penalty of perjury by the person(s) submitting it in a manner consistent with RCW 9A.72.085, as may be amended.
2. Dismissal. The ethics officer shall dismiss the complaint if the ethics officer determines that the complaint is insufficient; the violation was inadvertent and minor; or a violation occurred, but appropriate actions have been taken to fully address the allegedly unethical conduct.
3. Referral. The ethics officer may refer a complaint to another agency with jurisdiction over the violation, such as the Washington State Public Disclosure Commission, Newcastle prosecutor or King County prosecutor. The ethics officer may refer the complaint or send notice that the complainant should refer the matter to the proper agency with jurisdiction.
4. Finding of Sufficiency. The ethics officer shall make a determination of sufficiency within 30 days of receipt of the written complaint. A complaint shall be sufficient if the allegations, if established, would violate NMC 2.68.030. The ethics officer’s determination of sufficiency is not reviewable. If the finding is one of sufficiency, then the complaint shall be investigated as set forth below.
5. Notice. Notice of action by the ethics officer shall be provided as follows:
a. Notice of a finding of insufficiency or dismissal of a complaint by the ethics officer shall be sent to the person who made the complaint and the person complained against within seven business days of the decision by the ethics officer. A finding of insufficiency or dismissal of a complaint by the ethics officer is final and binding, and no administrative or other legal appeal is available through the ethics officer.
b. Within seven days of the ethics officer rendering a finding of sufficiency, the city clerk shall send notice to the person who made the complaint and the person complained against, of the ethics officer’s determination. If, after investigation, the ethics officer has reason to believe that a material violation of NMC 2.68.030 has occurred, the city clerk shall give notice of the public hearing which will be held to determine if a violation has occurred. Notice shall be provided at least 30 days prior to the date set for the hearing. A finding by the ethics officer determining that a complaint is sufficient shall contain at the beginning the following specific language:
NOTICE: ANY PORTION OF THIS FINDING 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 ETHICS OFFICER. THE ETHICS OFFICER HAS ONLY DETERMINED THAT IF CERTAIN FACTS CONTAINED IN THE COMPLAINT ARE FOUND TO BE TRUE DURING A LATER HEARING TO BE CONDUCTED BY THE HEARING EXAMINER, THEN VIOLATION(S) OF THE CODE OF ETHICS MAY BE FOUND TO HAVE OCCURRED.
The person complained against shall have the right to file a written answer to the charge and to appear at the hearing with or without legal counsel, submit testimony, be fully heard, and to examine and cross examine witnesses.
6. Stipulations. At any time after a complaint has been filed with the ethics officer, the ethics officer may seek and make recommendations that the city council enter into a stipulation with the person complained against. The recommended stipulation will include the nature of the complaint, relevant facts, the reasons the ethics officer thinks a stipulation is appropriate, an admission of the violation by the person complained against, a promise by the person complained against not to repeat the violation, and if appropriate, a recommended remedy or penalty. The recommended stipulation shall be sent to the person who made the complaint and the person complained against and forwarded to the city council for action.
B. Conduct of Hearings.
1. All hearings on complaints found to be sufficient by the ethics officer shall be conducted by the hearing examiner. The hearing shall be informal, meaning that the hearing examiner shall not be bound by the strict rules of evidence prevailing in courts of law or equity. The hearing examiner shall have the powers set forth in Chapter 2.20 NMC to conduct the hearing. All testimony shall be under oath administered by the hearing examiner. The hearing examiner shall prepare an official record of the hearing, including all testimony, which shall be recorded electronically, and exhibits; provided, that the hearing examiner shall not be required to transcribe such records unless presented with a request accompanied by payment of the cost of transcription.
2. Within 30 days after the conclusion of the hearing, the hearing examiner shall, based upon a preponderance of the evidence, issue findings of fact, conclusions of law, and a recommended disposition to the city council. A copy of the findings, conclusions, and recommended disposition shall be sent to the person who made the complaint and to the person complained against. Additional copies of the findings, conclusions, and recommended disposition shall be forwarded to the ethics officer and city council.
C. City Council Action. Final city council action to decide upon stipulations and recommendations from the ethics officer, and findings, conclusions, and recommended disposition from the hearing examiner shall be at a public meeting. If the proceeding involves a member of the city council, deliberations by the council may be in executive session, consistent with state law. The member of the council against whom the complaint was made shall not participate in an executive session pertaining to the complaint.
D. Disposition. In the event the hearing examiner finds that the person against whom the complaint was made has violated NMC 2.68.030, the city council shall review the action and may take any of the following actions by a majority vote of the council present, excluding the respondent or complainant:
1. Dismissal. Dismissal of the complaint.
2. Admonition. An admonition shall be a verbal nonpublic statement made by the mayor, or his/her designee, or if the complaint is against the mayor, the deputy mayor or his/her designee, to the official.
3. Reprimand. A reprimand shall be administered to the official by letter. The letter shall be prepared by the city council and shall be signed by the mayor or, if the complaint is against the mayor, the deputy mayor.
4. Censure. A resolution of censure shall be a written statement read personally to the official in public. The resolution shall be prepared by the city council and shall be signed by the mayor, or if the complaint is against the mayor, the deputy mayor. The official 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 official. The resolution of censure shall be read publicly, and the person shall not make any statement in support of, or in opposition thereto, or in mitigation thereof. The resolution of censure shall be read at the time it is scheduled whether or not the official appears as required.
5. Removal – Member of Board or Commission or Other Appointed Task Group or Committee. In the event the individual against whom the complaint was made is currently a member of a city board or commission or other task group or committee, appointed by the city council, the city council may, in addition to other possible penalties set forth in this section, and notwithstanding any other provision of the Newcastle Municipal Code, by a majority vote of council present, excluding the complainant, remove the individual from such board or commission effective immediately.
6. Contract Void. As provided by RCW 42.23.050, any contract made in violation of Chapter 42.23 RCW, Code of ethics for municipal officers – Contract interests, is void.
7. Other Sanctions. Any sanction imposed under this code of ethics is in addition to and not in lieu of any other penalty, sanction, or remedy that may be imposed or sought according to legal or equitable jurisdiction.
E. Final Action. The action of the city council shall be final and not subject to further review or appeal except as may otherwise be provided for under legal or equitable jurisdiction. (Ord. 2021-628 § 1 (Att. 1)).
2.68.090 Liberal construction – Limitation period – Effective date.
A. Liberal Construction. This code of ethics shall be liberally construed to effectuate its purpose and policy and to supplement existing laws that relate to the same subject.
B. Limitation Period. Any action taken under this code of ethics must be commenced within two years from the date of violation.
C. Effective Date. No retroactive application is intended by the adoption of this chapter, which shall only apply to acts that occur after the effective date thereof. (Ord. 2021-628 § 1 (Att. 1)).