How to Deal Responsibly With a Conflict That Falls Between City and State Ethics Codes
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.<br>
<br>
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.<br>
<br>
A new council member is the president of a
development company that, according to <a href="http://www.wallaceproperties.com/people/detail?p_id=4" target="”_blank”">its
website</a>, "specializes in sustainable, transit-oriented mixed-use
development projects in urban centers in the Puget Sound."<br>
<br>
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 <a href="http://www.publicola.net/2010/02/09/afternoon-fizz-wallace-hires-consul…; target="”_blank”">an article on the Publicola website</a>, the council member's
firm owns $50 million in property along two of the proposed light-rail
routes.<br>
<br>
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.<br>
<br>
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 href="http://www.thestranger.com/seattle/why-dont-rich-eastside-developers-wa…; target="”_blank”">a
recent article in <i>The Stranger</i></a>. <br>
<br>
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.'"<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.bellevuewa.gov/bellcode/Bellevue03/Bellevue0390.html#3.90.04…; target="”_blank”">ethics
code</a>, although without independent enforcement, training, or
disclosure. But council members, as well as board and commission
members, are excluded from its coverage.<br>
<br>
<a href="http://www.bellevuewa.gov/bellcode/Bellevue03/Bellevue0392.html" target="”_blank”">
A separate "code"</a> applies <a href="http://apps.leg.wa.gov/RCW/default.aspx?cite=42.23" target="”_blank”">state law</a>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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." (<a href="http://apps.leg.wa.gov/RCW/default.aspx?cite=42.23.060" target="”_blank”">RCW
42.23.060</a>) In this case, the law should hardly matter at all.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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