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How to Deal Responsibly With a Conflict That Falls Between City and State Ethics Codes
Friday, February 12th, 2010
Robert Wechsler
Some situations clearly involve a conflict of interest, but are not
dealt with in a local government ethics code. Two issues arise. One is
the quality of the local government ethics code. The other is whether
the code matters at all, if the conflict is clear.
Such a situation exists with respect to a council member in Bellevue, WA, a Seattle suburb, with the extra twist that the city's ethics code applies to employees, and the state ethics code applies to council members.
A new council member is the president of a development company that, according to its website, "specializes in sustainable, transit-oriented mixed-use development projects in urban centers in the Puget Sound."
It so happens that the big issue in Bellevue right now is where a new light-rail system will run. The decision will greatly affect "transit-oriented mixed-use development projects" along its track. According to an article on the Publicola website, the council member's firm owns $50 million in property along two of the proposed light-rail routes.
No one could, with a straight face, say that the council member has no interest in the decision where to run the light-rail system, or that he might not receive more of a benefit from one route than another. And yet there is nothing in the city's ethics code that prohibits his participation in the matter.
So the council member is a leader in the battle to switch the route from that favored by Sound Transit to one favored by the council member and another local developer, who owns a great deal of property, including parking lots, in downtown Bellevue, and who has a long record of opposing rail projects in Bellevue, according to a recent article in The Stranger.
According to the Publicola article, "Bellevue assistant city attorney Lori Riordan said council members are prohibited by state ethics law from using their positions to 'secure special privileges or exemptions.' However, she noted that because being a council member is a part-time job, all council members, like Wallace, have jobs on the side. And she said Wallace might have his property condemned by Sound Transit; 'I don’t know that most people would consider that a special privilege.'"
Every lawyer knows you're not supposed to make assumptions and then base decisions on them. It's true that, whichever route is taken, some of the council member's land may be purchased at the market rate by the city of Bellevue. But it's also true that some of his land may turn out to be worth far more than its current market rate. It's also true that he might have understandings with other landowners to develop their properties should a light-rail station be located nearby.
The fact, without any assumptions, is that the council member's work is transit-oriented development and, therefore, he should not participate in any way, as a government official, in transit decisions.
But what about the law? Note that the assistant city attorney refers only to state law. Doesn't a wealthy city with a population of 125,000 have its own ethics code? Well, yes and no. For employees it has a half-decent little ethics code, although without independent enforcement, training, or disclosure. But council members, as well as board and commission members, are excluded from its coverage.
A separate "code" applies state law to them (it already applied to them, and the council could have supplemented it, but chose not to). State law is limited to contracts and the "special privileges" provision mentioned by the assistant city attorney.
It's one thing when a city's ethics code fails to prohibit certain conduct. That doesn't mean the conduct is ethical, but it at least provides some guidance. It's another thing when a city's ethics code does prohibit certain conduct, but council members are excluded from the code.
The responsible thing for a council member to do in such a situation is to either apply the code to his or her conduct anyway, or explain very clearly and honestly why the code should not apply to him, but should apply to an employee whose position would otherwise require involvement in such a matter. Otherwise, he should act as if the code does apply to him, even if it legally does not.
It's also important to remember that ethics codes are minimal standards, as the state ethics code expressly recognizes: "The provisions of this chapter shall be considered as minimum standards to be enforced by municipalities." (RCW 42.23.060) In this case, the law should hardly matter at all.
Robert Wechsler
Director of Research-Retired, City Ethics
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Such a situation exists with respect to a council member in Bellevue, WA, a Seattle suburb, with the extra twist that the city's ethics code applies to employees, and the state ethics code applies to council members.
A new council member is the president of a development company that, according to its website, "specializes in sustainable, transit-oriented mixed-use development projects in urban centers in the Puget Sound."
It so happens that the big issue in Bellevue right now is where a new light-rail system will run. The decision will greatly affect "transit-oriented mixed-use development projects" along its track. According to an article on the Publicola website, the council member's firm owns $50 million in property along two of the proposed light-rail routes.
No one could, with a straight face, say that the council member has no interest in the decision where to run the light-rail system, or that he might not receive more of a benefit from one route than another. And yet there is nothing in the city's ethics code that prohibits his participation in the matter.
So the council member is a leader in the battle to switch the route from that favored by Sound Transit to one favored by the council member and another local developer, who owns a great deal of property, including parking lots, in downtown Bellevue, and who has a long record of opposing rail projects in Bellevue, according to a recent article in The Stranger.
According to the Publicola article, "Bellevue assistant city attorney Lori Riordan said council members are prohibited by state ethics law from using their positions to 'secure special privileges or exemptions.' However, she noted that because being a council member is a part-time job, all council members, like Wallace, have jobs on the side. And she said Wallace might have his property condemned by Sound Transit; 'I don’t know that most people would consider that a special privilege.'"
Every lawyer knows you're not supposed to make assumptions and then base decisions on them. It's true that, whichever route is taken, some of the council member's land may be purchased at the market rate by the city of Bellevue. But it's also true that some of his land may turn out to be worth far more than its current market rate. It's also true that he might have understandings with other landowners to develop their properties should a light-rail station be located nearby.
The fact, without any assumptions, is that the council member's work is transit-oriented development and, therefore, he should not participate in any way, as a government official, in transit decisions.
But what about the law? Note that the assistant city attorney refers only to state law. Doesn't a wealthy city with a population of 125,000 have its own ethics code? Well, yes and no. For employees it has a half-decent little ethics code, although without independent enforcement, training, or disclosure. But council members, as well as board and commission members, are excluded from its coverage.
A separate "code" applies state law to them (it already applied to them, and the council could have supplemented it, but chose not to). State law is limited to contracts and the "special privileges" provision mentioned by the assistant city attorney.
It's one thing when a city's ethics code fails to prohibit certain conduct. That doesn't mean the conduct is ethical, but it at least provides some guidance. It's another thing when a city's ethics code does prohibit certain conduct, but council members are excluded from the code.
The responsible thing for a council member to do in such a situation is to either apply the code to his or her conduct anyway, or explain very clearly and honestly why the code should not apply to him, but should apply to an employee whose position would otherwise require involvement in such a matter. Otherwise, he should act as if the code does apply to him, even if it legally does not.
It's also important to remember that ethics codes are minimal standards, as the state ethics code expressly recognizes: "The provisions of this chapter shall be considered as minimum standards to be enforced by municipalities." (RCW 42.23.060) In this case, the law should hardly matter at all.
Robert Wechsler
Director of Research-Retired, City Ethics
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Comments
Dick (not verified) says:
Fri, 2010-02-12 20:50
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In addition to the "ethics" issued cited in your column, Washington state has a statute dealing with "appearance of fairness" issues when the decisions by a city or county legislative body is deemed to be "quasi judicial". When it comes to the granting of permits for light rail, if any of those decisions go to the city council for final action, the council person cited in your column would not be able to participate, perhaps leading to a 3-3 tie vote. In that event, the administrative decision made on that permit would stand, if it was before the council on appeal, Interesting, huh?
Robert Wechsler says:
Sat, 2010-02-13 08:57
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