Apexnerd has raised an interesting question about the ethics of appointing Ward Nelson, a sitting Council member to replace Bob Kelly.
The Whatcom County Charter clearly states that it is a conflict of interest for any council member to hold two offices or employment within county government.
Whatcom County Code and Charter:
Section 4.30 Conflict of Interest, Whatcom County Charter states:
The County Council, Executive, Assessor, Auditor, Treasurer, Sheriff and Prosecuting Attorney shall hold no other office or employment within County government. (Amended by referendum 1986; Ord. 93-046 (part)).
County Council ... shall hold no other office or employment within County government...
Technically, Ward Nelson accepted Sam Crawford's nomination (and Pete Kremen's appointment to fill Bob Kelly's seat) for a second county council job, while still legally holding his current seat. Which raises the question, does Mr. Nelson's appointment constitute a Conflict of Interest according to the Whatcom County Charter? If so, what remedies, if any, exist to address the issue?
Whatcom County Chapter 2.104 Code of Ethics:
Purpose of the Whatcom County ethics code:
The purpose of this code is to establish ethical standards, requirements and restrictions for elected public officials of Whatcom County in order that the public trust may be maintained. (Ord. 2002-023 Att. A § 1; Ord. 98-057 Att. A § 1; Ord. 97-045 § 1).
I haven't been able to find specific case law that pertains to council ethics violations in the State of Washington, but I did find an interesting ethics case that was heard in the State of Massachusetts back in 1992.
(I'm posting an excerpt from the case for your review).
Brief summary of Legislative Intent:
Applying s. 21A to every multi-member municipal body is consistent with the statute's history and purpose.[1] See McMann, 32 Mass. App. Ct. at 427 (G.L. c. 268A should be read to effectuate fully its comprehensive purpose "to strike at corruption in public office, inequality of treatment of citizens and the use of public office for private gain").
Facts of Case:
October 8, 1992
FACTS:
You are an elected City Councillor. The City Council will soon be voting to fill a vacancy in the office of City Clerk. You wish to be a candidate for this position.
QUESTION:
What limitations does G.L. c. 268A establish for you?
ANSWER:
1. The City Council may not elect you as City Clerk until thirty days after you cease to be a Councillor.
2. While you remain a Councillor, you may not participate, even informally, in matters related to your City Clerk candidacy.
DISCUSSION:
As a Councillor, you are a "municipal employee" under the state conflict of interest law. G.L. c. 268A, s. 1(g). Your request raises issues under the following sections of the conflict of interest law.
1. Section 21A
Section 21A of G.L. c. 268A provides in relevant part:
[N]o member of a municipal commission or board shall be eligible for appointment or election by the members of such commission or board to any office or position under the supervision of such commission or board. No former member of such commission or board shall be so eligible until the expiration of thirty days from the termination of his service as a member of such commission or board.
Since you wish to seek election by the City Council's members as City Clerk, whether s. 21A applies will depend on (a) whether the City Council is a "municipal commission or board" and (b) whether the City Clerk is "under the [Council's] supervision.
** Apparently, the state of Massachusetts does not approve of sitting council members seeking a second office without observing a 30 day waiting period after the elected official has officially tendered his resignation.
Pete Kremen's appointment of Ward Nelson while he still holds office appears to raise the question of a potential ethics violation.
And, the arbitrary decision to change the political balance of the council (voter's intent) also raises a question about the appearance of an ethics violation.
Question 1: Was Ward Nelson's appointment as Bob Kelly's replacement championed by Sam Crawford because he wanted to quash the progressive political views represented by Bob Kelly, the voter's previous choice?
Question 2: Is it appropriate for the County Executive to thwart the voter's intent by choosing a replacement that does not represent the voter's original preference? After all, Kelly's term has not expired.
Question 3: in the interest of transparency, can anyone direct me to a similar case in which a council or the County Executive appointed a council member that holds the opposite political opinion of the person he/she was appointed to replace? (creating a new political majority for one side or the other, where no majority previously existed)?
The county charter/code clearly states that the council is charged with the responsibility of choosing a new council member to replace Bob Kelly.
Question 4: Was there a tie vote when Council attempted the fill the vacancy? ( A commenter said, "Well, that depends on whether Ward Nelson’s vote was a “legal vote.” Under the likely scenario in which Mr. Nelson was not legally allowed to vote for or against himself or any other candidate, his vote was not “legal” and did not count in the final tally."
Question 5: does anyone have an example of a Council or a County Executive appointing a council replacement in order to "curb" what he refers to as political polarization? (Anywhere in the entire U.S.)? Can someone point out in the Charter, where this is the criteria for choosing a new council member?
I'm looking forward to reading your responses! (Click the comment link below).
Elisabeth,
ReplyDeleteThanks for raising these important questions. One question that may be even more critical was raised in your Dec 19 post, “Apexnerd questions County legal recommendation…”
The Whatcom County Code is very clear that any vacancies on Council be filled BY Council. County Code Section 2.02.030 provides an extreme measure that allows Council to fill vacancies even when its membership falls below the quorum minimum of four. In other words, even if Council membership fell to three members because of vacancies, “a majority of the remaining members [e.g., two out of three] may nevertheless fill the vacancies.” Clearly, the Code only allows the County Exec to fill the vacancy under rare and extreme circumstances… a tie.
The question is: Was there a tie vote when Council attempted the fill the vacancy? Well, that depends on whether Ward Nelson’s vote was a “legal vote.” Under the likely scenario in which Mr. Nelson was not legally allowed to vote for or against himself or any other candidate, his vote was not “legal” and did not count in the final tally.
Consequently, all candidates who received three votes received a majority of the five “legal” votes, as determined by the Sturgis “Standard Code for Parliamentary Procedure.” Council should have filled its own vacancy with one of these candidates by continuing to vote until one of them became the clear choice.
I believe the outcome is subject to a legal challenge, if anyone is so inclined, especially since Mr. Nelson clearly benefitted from his “illegal” vote.
Anonymous,
ReplyDeleteThank you for your comment. I will add the question about the council being required to vote on the appointment to the list of questions.
During the roll call vote to attempt to fill the vacancy, some nominees got three votes, but no nominee achieved the four votes that would have allowed the Council to make the appointment.
ReplyDeleteIf you remove Ward Nelson's votes, there were enough cases where some candidates would have received three of five "non-Nelson" votes, which would have allowed the Council to select one of the other 24 applicants.
And if Ward Nelson had declined the nomination, and he still voted as he did for the other 24 nominees, even then, Pete Kremen would have had to select someone other than Ward Nelson.
In either scenario, Ward Nelson would not be appointed to the vacant county seat.
And on the little matter of the 30 days and how it is no big deal... (I've been told that in person and online)...
ReplyDeleteWell, it is a big deal.
WCC gives the County Council 30 days to fill this vacancy. Not 31 days. And not the 45 days that the County is taking.
Now, the problem with this is as follows...
The part of the Whatcom County Code being used here (WCC 2.02.030) applies to the County Council, and the County Executive. This law is not relevant to any other citizens on the planet Earth. Really, if you are not either serving on the Whatcom County Council or as the Whatcom County Executive, then WCC 2.02.030 will never apply to you. If the County council doesn't have to comply with this law... then who does?
Bingo!!
ReplyDeleteWell, it certainly all sounds like grounds for a legal challenge. Who files? Ken and Carl, who've been relegated to minority status for all of 2009? Futurewise, when this new majority attempts to turn back land use reform?
ReplyDeleteAnonymous,
ReplyDeleteAnyone can file an ethics complaint. It does not have to be one of the appointees or a particular organization.
2.104.110 Complaint procedures.
A. Any natural person who believes a person subject to the code of ethics has committed a violation of the code may file a complaint with the ethics commission. Complaints shall be subject to the following requirements:
1. The complaint must be based upon facts within the personal knowledge of the complainant;
2. The complaint must be submitted in writing and signed under oath by the complainant;
3. The complaint must include a detailed factual description of the alleged violation including the date, time and place of each occurrence and the name of the person or persons who are alleged to have committed a violation. The complaint must also refer to the specific provisions of the code of ethics which are alleged to have been violated;
4. The complaint must be accompanied by all available documentation or other evidence known to the complainant to support the allegations of the complaint;
5. The complaint must be filed within two years of the date of the occurrence or occurrences alleged to constitute a violation of the code of ethics.
B. Complaints shall be filed with the clerk of the ethics commission who shall forward the complaint and any accompanying documentation and evidence forthwith to the chairperson of the ethics commission. The chairperson shall review the complaint for compliance with the requirements of subsection (A) of this section. Should the chairperson find that:
1. The complaint is untimely; or
2. The complaint has not been signed under oath; or
3. The complaint does not, on its face, state facts which, if proven to be true, constitute a violation of the code of ethics referred to in the complaint; or
4. The complaint fails to refer to a specific provision of the code of ethics which is alleged to have been violated, the chairperson shall, within five working days of the filing of the complaint, enter a written order stating the chairperson’s findings and, except as hereinafter provided, dismissing the complaint. If the chairperson finds that the complaint is deficient pursuant to findings (2) or (4), the chairperson shall issue an order notifying the complainant that unless a corrected complaint is filed within five days of the issuance of such order, the complaint shall be dismissed. The complainant may appeal the dismissal of a complaint under this subsection by filing an action in the Whatcom County superior court for a writ of certiorari pursuant to Chapter 7.16 RCW within 10 days of the date of issuance of the order dismissing the complaint.
The entire code can be read here:
An ethics violation at the County level can be penalized by a $1,000 fine.
ReplyDeleteAn ethics violation at the State level (RCW 42.23) on the other hand can be penalized by forfeiture of office. (RCW 42.23.050)
Hint: Municipal public officers are subject to this part of RCW, even in a home rule charter county.
2.104.180 Public disclosure rules to govern.
ReplyDelete**The rules and precedents established by the Washington State Public Disclosure Commission shall be considered in interpreting those sections contained herein which are analogous to state law. (Ord. 2002-023 Att. A § 16; Ord. 98-057 Att. A § 16; Ord. 97-045 § 16).
:)
IMO, rather than treating the entire issue as an ethics violation, it would be more effective to simply confirm that Mr. Nelson's votes for and against other candidates were not "legal" and do not count. Such a finding is consistent with the Sturgis "Standard Code," which the County Council follows.
ReplyDeleteConsequently, there were only five legal votes. Since many candidates received three yes votes, the majority requirement is met. Simply fill the vacancy from among those candidates with a new vote.
The legal action needed is simply to invalidate all of Mr. Nelson's votes. No ethics violation needed.
To add to last post:
ReplyDeleteEarlier, Councilman Carl Weimer argued that 4 “yes” votes were needed for Council to conduct its business. Actually, the Council Code states that 4 members need to be present for a quorum to conduct Council business; however, the implication is that only a majority of the quorum is needed to pass ordinances and resolutions. In other words, if 6 or 7 are present and vote legally, then 4 legal “yes” votes are needed; if 4 or 5 are present and vote legally, then 3 legal “yes” votes.
Further, the Code states that if there are so many vacancies on Council that a quorum of 4 cannot be met, then the remaining Council members could still fill the vacancy THEMSELVES with a simple majority vote. That is, if 2 or 3 members are present and vote legally, then 2 legal “yes” votes is all that’s needed to fill the vacancy. Theoretically, if only 1 Council member remained, (s)he could fill all the vacancies.
Since the Code anticipates the situation where only 3 Council members remain and allows a majority of 2 to fill any vacancies, it’s clear that if 5 Council members vote legally, a majority of 3 is all that’s needed.
Going back to the vote, there were 5 “legal” votes, excluding Mr. Nelson’s, and only 3 “yes” votes were needed.
I cannot imagine this being any more clear and straightforward.
Ethics != Law
ReplyDeleteThat's why we call it ethics violation, not illegal.
I ultimately blame the council. They deadlocked, then quit and left it to Pete. Well, heck, who's Pete beholden to? His administration. The council had a duty not to let it remain deadlocked, to--among them--figure out a way to appoint someone acceptable to a majority. Even CONGRESS behaved better, and THAT'S saying something.
25 names and they couldn't do it? Didn't even bother to filibuster or take it into overtime? Shameful.
The ethics violations we are referring to on this thread are codified into the state law and the county code.
ReplyDeleteI agree that not all ethical violations are illegal.
However, those ethical violations that are prohibited by RCW and WCC are illegal.
RCW 42.20.080
"Every officer or other person mentioned in RCW 42.20.070, who shall willfully disobey any provision of law regulating his official conduct in cases other than those specified in said section, shall be guilty of a gross misdemeanor."
FYI. the misconduct described in 42.20.070... those are class B felonies.
ApexNerd,
ReplyDeleteEverything you've said is true; however, I do not see anyone's actions rising to the level of an ethical violation.
I do believe that Mr. Nelson should not have voted for or against himself or any other candidate; however, I don't believe he or anyone else willfully disobeyed the law.
It was a simple mistake that is equally simple to correct. Simply... do not count his "illegal" vote. Then, all that's needed is 3 "yes" votes out of 5 to achieve a majority. Since many candidates received 3 votes, Council should narrow their choice from among those.
Why complicate something that is so simple to fix?
Anonymous,
ReplyDeleteApexnerd will be along shortly to respond to your post.
The Republicans have a majority on the council after several years,(that is, if Barbara continues to vote with them).
I can't see the R's giving up something they have fought so hard to get.
Ward won't step down. So, it's probably going to take a legal challenge to sort things out.
Elisabeth,
ReplyDeleteYou're probably right; however, the person who is most likely to step up is the one who has exhibited great integrity in the past... Barbara Brenner.
Barbara routinely shows her concern when things are not done right. This appointment is not right.
Barbara, are you up to the challenge? Are you willing to set politics aside and challenge the way Council's vacancy was filled? Do you understand that Mr. Nelson's vote against those candidates who received 3 "yes" votes was not a "legal" vote because he received a direct benefit?
In other words, if Mr. Nelson did not vote, then each candidate who received 3 "yes" votes received a majority of the 5 legal votes cast.
Barbara, please exhibit the integrity you have shown in the past and challenge this process. It's time to step up.
Anonymous 1,
ReplyDeleteThank you for posting your comment. Maybe Barbara will help.
So is this is what is up? (Love sushi by the way!)
ReplyDeleteThe Japanese via CAITAC money buy the 2009 election for its puppets. Look at the expenditures. It was bought and paid for.
Crawford and Kremen and Nelson conspire to appoint illegal Nelson to solidify Asian control of Whatcom County development decisions and tax raises.
Kremen fakes a "stroke" to get rushed out of County building and away from a leading Council candidate who was in his office asking some pointed questions. Kremen had already made the decision for Ward weeks before the wild ambulance ride. (Ask his staff about this one!)
Phony Dem Kremen will soon resign in favor of Dale Brandland who has eagerly shown his approval of appointment of illegal Nelson.
Obsequious new Japanese purchased County Council quickly appoints DB. Ask Brandland if he will decline such an appointment (get it in writing).
Brandland's seat will be filled by either Ericksen or Kremen via happily back stabbing County Council appointment.
The Herald cooperates with its new master, as usual.
Dark ages begin. Larrabee Springs, West Blaine, City of Cherry Point, Samish Lake City, Padden Lake Condos, sprawl, sprawl,... etc. all paid by the credit card that is your property tax.
Of course, it could be that all this was done for the benefit of single moms, retired Vets, senior citizens and puppies / kitties.....
naah
In response to the excellent points made by 'Anonymous 1'
ReplyDeleteThe Council had 30 days to act to fill the vacancy. After that there appears to be no mechanism to return the matter back to the present Council or any future council.
Statute leaves this matter in the hands of the Executive branch.
Even if you accept the argument that this was a simple mistake, part of what prevents a simple solution is that those who made the mistake appear unwilling to admit error.
The issue of intent is well taken. However, it is worth noting just how little noise this question is generating from those who support Mr Nelson's appointment.
Anonymous 1 has argued that there was no intent to disobey the law, but does acknowledge that there was at least the appearance of impropriety.
I am unaware of anyone who supports Mr Nelson's appointment choseing to make any public statement on this matter.
Those who support Mr Nelson's appointment have many qualities, but shyness isn't one of them.
The same folks who supported Mr Nelson's appointment had plenty to say about Carl Weimer's on-the-record response. So, in addition to an absence of shyness, they also don't appear to have much forgiveness on hand, either.
These same folks have nothing to say on this matter.
Look at the statements I've made on Latte Republic on this issue. Then look at the statement Carl Weimer made after Ward's appointment.
Carl's comments ignited a very small, but very real, flame war.
My comments, thus far, have not.
The YouTube videos I posted during the campaign provoked a lot of criticism from those who disagreed with me.
I have publicly accused a sitting county council member of violating the law. And days later, you could still hear a pin drop.
Very good points Apexnerd. Why the silence from the Nelsonites? Where are the usual Republican activists to support one of their own?
ReplyDeleteConflicted?
Update:
ReplyDeleteNow that this story is being covered in the Herald, the Usual Suspects are defending Keyser Soze.
Also, I've posted another youTube video.
So, we are back in business.