Bellevue Council Can't Get a Grip on an Ethics Investigation
When there is no formal process for dealing with a council member's conflict of interest, and the council handles the matter itself,
things can get farcical. This is what is
happening in <a href="http://en.wikipedia.org/wiki/Bellevue,_Washington" target="”_blank”">Bellevue, WA</a>.
This wealthy suburb of Seattle, with a population of 120,000, has an
ethics code for employees, but with no independent enforcement. Its
ethics code for elected officials is just the state's limited
provisions, again with no independent enforcement, training, or advice.<br>
<br>
So when it came out that a council member had a possible conflict of
interest that he had not disclosed (see <a href="http://www.cityethics.org/content/how-deal-responsibly-conflict-falls-b…; target="”_blank”">a
blog post from a year ago</a>), there was no process to deal with the
matter. The result is that, a year later, nothing has been done. But
there is suddenly a lot of action.<br>
<br>
According to <a href="http://seattletimes.nwsource.com/html/localnews/2014748651_wallace12m.h…; target="”_blank”">an
article in the Seattle <i>Times</i> this Monday</a>, the city attorney says
that state law allows her, under the city manager's authority, to
collect facts and advise council members (Bellevue has a
council-manager form of government, with the city manager as
executive). The city attorney has decided to hire an investigator, but
this needs to be approved by the council.<br>
<br>
<b>Separation of Powers</b><br>
According to <a href="http://seattletimes.nwsource.com/html/localnews/2014756653_wallace13m.h…; target="”_blank”">an
article in Tuesday's Seattle <i>Times</i></a>, now that things finally look
like they're about to move ahead, the council member has hired a former
U.S. Attorney, who has himself conducted numerous investigations. The
attorney has taken the position that only the council, not the city
attorney, has the authority to determine the scope of the investigation. His argument appears to be based on separation of powers.<br>
<br>
Separation of the legislative and executive branches is a primarily state and federal concept
that does not work well in a council-manager form of government, where
the legislative branch selects the executive. The separation of powers argument actually brings us back to
the city's lack of an ethics program. If the council wanted to keep the
executive from investigating ethics matters, all it had to do was
create an ethics commission or appoint an ethics officer. But it has
chosen not to.<br>
<br>
The attorney wrote, "How do you think the Seattle City Council would
react if Seattle Mayor Mike McGinn commenced an investigation of
Seattle City Councilmember Tim Burgess without the approval of its
Council? It would certainly be viewed as an inappropriate incursion on
the legislative branch of Seattle's city government." This is a very
poor argument, since Seattle has a different form of government, where
the mayor is the executive, and it also has an ethics commission to
handle such investigations.<br>
<br>
<b>A Council Flounders As It Tries to Get a Grip on a Flounder</b><br>
What happened next – or didn't happen – is farcical enough to undermine
any argument that a council should handle its own ethics matters. The
matter of the scope of the investigation was raised in the council, and
the mayor and the council member with the alleged conflict sought to have
two other council members investigated along with him, one because
she sat on a regional board involved in the matter (as a representative
of the city, not in her own right and, of course, known to all council
members), the other because his law firm had represented the regional
board in the past or in other matters (which he had disclosed).<br>
<br>
In fact, there were three motions, one to investigate the three, one to
focus on the original matter, and the third to investigate all seven
council members. The question arose whether the three members who were
the subject of the main resolution could vote on it. The city attorney
said they should recuse themselves from voting. According to the
Tuesday article, there would be enough votes to investigate the three,
but not enough to investigate just the one council member.<br>
<br>
Considering that the one council member did not disclose his alleged
conflict, and the other two council members did disclose their possible
conflict, and the weakness of the argument for allowing the council to be involved
in any way other than approving the expenditure for an independent
investigator, voting to investigate the three council members seems
nothing but a way of asserting council power and confusing the issue.<br>
<br>
<a href="http://seattletimes.nwsource.com/html/editorials/2014767162_edit14walla…; target="”_blank”">An
editorial in Wednesday's <i>Times</i></a> refers to this as an attempt to
"deflect attention" away from the council member's failure to disclose.
The editors strongly take the position that the council member should
not get to shape his ethics probe.<br>
<br>
<b>Withdrawal from Participation</b><br>
This is where withdrawal becomes an important issue. The city attorney
talks about recusal from voting, but withdrawal by those with a
conflict applies to all participation in a matter, including raising a
resolution and discussing it (privately or publicly). It appears that
the council member discussed the resolution privately and possibly
raised the motion (the articles contradict each other on this). There's
nothing worse than failing to deal responsibly with a conflict that
arises from an investigation into how responsibly one dealt with one's
conflict.<br>
<br>
The Bellevue council should use this farcical occasion to set up a real
ethics program for the city, with an independent ethics commission,
training, and advice. The council member with the conflict issue should
use his attorney's simile about Seattle to argue for an ethics program
at least as good as Seattle's.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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