Ken Williams Legal Questions
To: Attorney advising Board of Ethics (2)
Date: April 8, 2016
On February 4, 2016 a complaint was filed by an individual under the Port Angeles Code of Ethics (PAMC 2.78) The complaint alleged several instances of ethics violations against Deputy Mayor Kidd arising from a February 2, 2016, City Council meeting Pursuant to section PAMC 2.78.070 the City Council appointed a three member Board of Ethics to “receive, investigate and make recommendations for disposition of the complaint’” That Board met, took evidence, deliberated, and has orally found two violations of the ethics code and apparently dismissed the remaining allegations. (We have not yet seen the written findings of that Board.) I will refer to these as Complaint (1) and Board (1).
On February 19, 2016 Our Water – Our Choice, a non-profit corporation filed a complaint alleging ethics code violations against Deputy Mayor Kidd relating to the same conduct alleged in Complaint (1). Additionally allegations of ethics code violations were made against Councilman Gase. The City Council appointed a second ethics board (Board (2) consisting of three different individuals than Board (1). The second Board, on which I serve as Chair, met and dismissed the complaints filed as to Councilmember Gase. Complainant (2) has asked to withdraw the allegations against Deputy Mayor Kidd which Board (1) found to be in violation of the Ethics Code. They have not asked to withdraw those allegations which were apparently dismissed. The Deputy Mayor requests the Board (2) review and decide all the violations alleged in Complaint (2).
Board (2) seeks an opinion on whether or not we need or even can proceed to rehear allegations on the identical conduct ruled upon by Board (1). The code states we sit as a Quasi-judicial entity. The code uses both the term complaint and the term violation when discussing the hearing process. If the code is violation specific, (that is each individual violation alleged will be heard by a three member board,) as opposed to complaint specific, (that is each individual complaint filed will be independently reviewed regardless of prior reviews and determinations of the same conduct,) it seems to our Board that as many complaints could be filed for the same conduct as there are people willing to file them for the full three year statute of limitations set by the Code. This might force a public official to have to repeatedly defend themselves on the same issues. While ethics violations are not criminal charges subject to double jeopardy they do have potential adverse consequences to the accused. Personally, it seems to me that fundamental fairness and due process concerns require that the Ethics Code be construed in a manner that would render it constitutional and preclude forum shopping and continual jeopardy to the public official accused. To allow otherwise might run afoul of constitutional prohibitions. I believe that construing the Code to be violation specific would avoid that problem. We seek your input on that as our legal advisor.
Additionally, section PAMC 2.78.030 (J) declares that Board of Ethics members are public officials subject to the provisions of the Ethics Code. Section PAMC 2.78.070 (F) states that a Board of Ethics “does not have the authority to reverse or otherwise modify a prior action of a public official.” Does that subsection preclude Board (2) from hearing any matter decided by Board (1)? Does it support finding that the Code is violation centered rather than complaint centered?
Additionally we would ask whether or not allegations of violation may be withdrawn by the complainant prior to a Board decision on them. Does that answer change if the person complained against resists the withdrawal? (If this board cannot hear matters heard by Board (1) these questions become moot.)
Thank you for your advice and assistance in helping us meet our obligations under the Code.