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HomeMy WebLinkAbout2830 Provide for a Hearings Officer to Review Ethics Complaints Against Councilmembers or City ManagerOrdinance No. 2830 AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING THE PORT TOWNSEND MUNICIPAL CODE BY AMENDING TITLE 2, ADMINISTRATION AND PERSONNEL, CHAPTER 2.80, CODE OF ETHICS, SECTION 2.80.080, HEARINGS OFFICER - COMPLAINTS AGAINST A COUNCIL MEMBER OR CITY MANAGER, PROVIDING FOR A HEARINGS OFFICER TO REVIEW ETHICS COMPLAINTS AGAINST A COUNCIL MEMBER OR CITY MANAGER, AND MAKING OTHER CHANGES WHEREAS, the City Council determines it appropriate to revise the Ethics Code procedures to provide for a hearings officer to review ethics complaints against a Council Member or the City Manager, consistent with the City approach to having a hearings examiner determine land use issues, and to make other changes. NOW, THEREFORE, the City Council of the City of Port Townsend ordains as follows: SECTION 1. Chapter 2.80, Code of Ethics, is hereby amended, repealed, and revised as follows: 1. Sections 2.80.010 C, 2.80.020 A and C, and 2.80.040 C, adopted by Ordinance 2786, are hereby amended, repealed, and revised as shown in attached Exhibit A, incorporated by reference (strike is deleted, underline is added). 2. Section 2.80.080 Board of Ethics, adopted by Ordinance 2786, is hereby repealed in its entirety, and there is hereby adopted a new section 2.80.080, as shown in attached Attachment B, incorporated by reference. SECTION 2. Severability. If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of the ordinance, or the application of the provision to other persons or circumstances is not affected. This ordinance shall take effect and be in force five days after the date of its publication in the manner provided by law. Adopted by the City Council of the City of Port Townsend, Washington, at a regular meeting there°f' held this sec°nd day °f June' 2003'~i1//~ ~Kees Kolff, Mayor Attest: Approved as to Form: John P. Watts, City Attorney Page 1 Ordinance 2830 EXHIBIT A 2.80.010 Policy. C. Questions regarding its interpretation concerning employees and officials should be brought to that person's supervisor or the City Manager for interpretations of this code, and subject to any collective bargaining agreement any action concerning violation of this code concerning employees shall be determined by the City Manager. Questions regarding the interpretation of the code as applied to, and allegations of violation of the code by, councilmembers, or the City Manager, City Attorney, or members of the Planning Commission and Civil Service_ Commission, shall be referred to the Heatings Officer through the process established herein at Section 2.80.080. 2.80.020 Definitions. Throughout this code, the following definitions shall apply: C. "City official or employee" means every individual elected or appointed to an office or position of employment, whether such individual is paid or unpaid. 2.80.040 Conflict of Interest C. Remote Interests. An official or employee shall not be deemed to be interested in a transaction involving the city if he or she has only a "remote interest" in the contract. "Remote interest" means: A councilmember shall disclose the fact and extent of a remote interest for the official minutes of the city council prior to taking any action related to the interest and, thereafter, all action taken by the city council related to such interest shall be by a vote sufficient for the purpose without counting the vote of the councilmember having the remote interest. None of the provisions of this section are applicable to any official or employee interested in a contract, even if the interest is remote, if the official or employee influences or attempts to influence any other official or employee of the city to enter into the contract. Participation in Council or Council Committee meeting discussion on a remote contract shall not be deemed to be influencing or an attempting to influence under this Section. Page 1 Ordinance 2830 - Attachment A EXHIBIT B 2.80.080 Hearings Officer -- Complaints against a Councilmember or City Manager A. Hearings Officer. 1. Ethics Hearings Officer Position Created. There is created and established the position of "ethics hearings officer" ("hearings officer") for the City of Port Townsend. The Council shall appoint a heatings officer and may appoint one or more alternate hearings officers. The first alternate hearings officer shall serve as the hearings officer if the heatings officer is unavailable or unable to serve, and the second alternate shall serve if the hearings officer and first alternate are unavailable or unwilling to serve. 2. Qualification. A hearings officer must be an active member of the Washington State Bar Association, have at least seven (7) years of experience as a lawyer, have no record of public discipline, and have experience as an adjudicator or as an advocate in contested adjudicative hearings. 3. Impartiali _ty. A hearings officer should disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned. Alternatively, a hearings officer may, instead of withdrawing from the proceeding, disclose for the record the reason why his or her impartiality might be questioned. If based on such disclosure, the person making the complaint and the person complained against both agree in writing or on the record that the heatings officer's relationship is immaterial, the hearings officer may participate in the proceedings. The person or persons who make an ethics complaint or the person complained against may challenge the impartiality of the hearings officer. Any challenge shall be asserted in writing within five (5) days of the complaint being filed, or within five (5) days of the complaint being delivered to the person complained against, whichever is later. The hearings officer shall determine whether or not to disqualify himself or herself within three days of any challenge. If the hearings officer does not disqualify himself or herself, then the person making the challenge shall have five (5) days from the date of the hearings officer determination to initiate an action in the Jefferson County Superior Court, and the issue of the challenge shall be heard on motion on the record by the presiding judge (or such other judge, court commissioner or referee to whom the case may be assigned). 4. Purpose and Duties. The purpose of the ethics hearings officer is to review and issue written determinations on any alleged violations of this Code by the City Manager, City Attorney, Councilmembers, or a member of the Planning Commission or Civil Service Commission, all as set forth below. 5. Staff. The City Manager shall provide staff, as he or she deems appropriate, to assist the hearings officer. The hearings officer may make request for staff to the City Manager and/or City Council. Page 1 Ordinance 2830 - Attachment B B. Specific Complaint Against the City Manager, a Councilmember, or a Member of the Planning Commission or Civil Service Commission. 1. Written Complaint. Any person may submit a written complaint to the City Clerk alleging one or more violations of this Code by the City Manager, City Attorney, a Councilmember, or a member of the Planning Commission or Civil Service Commission. The allegation must set forth specific facts with precision and detail. In addition, the complaint must set forth the specific sections and subsections of this Code that the facts violate, and the reasons why. Each complaint must be signed under penalty of perjury by the person or persons submitting it, must state the submitter's correct name, address at which mail may be personally delivered to the submitter, and the telephone number at which the submitter may be contacted. The City Clerk shall promptly serve or mail, return receipt requested, a copy of the complaint to the individual complained against. The City Clerk shall submit the complaint to the hearings officer. 2. City Attorney Review. Before any person files a written complaint with the City Clerk, the person may provide materials and/or the complaint to the City Attorney, but is not required to do so. Upon approval of the City Manager, the City Attorney may provide a legal opinion on the matter or on the matters alleged in a complaint, and may provide information to the hearings officer or City Council with regard to the complaint, investigation and the interpretation or applicability of the ethic code or any pertinent provision of state law. The City Attorney's opinion is not determinative on the issue and does not affect the ability of the person to file a complaint or from the complaint being processed as provided in this section. 3. Hearings Officer Initial Determination. a. Upon receipt of the complaint, the hearings officer shall make an initial determination of the complaint. The purpose of this initial determination is to determine whether the facts asserted, if proved, would constitute a violation of the Code of Ethics. If the hearings officer determines that the complaint should proceed to hearing, then further proceedings shall occur as set forth below. If the hearings officer determines the complaint should not proceed to a hearing, then he or she shall enter an order dismissing the complaint. A complaint should be dismissed if: 1) It does not present facts which constitute a violation of the Code of Ethics. 2) If the hearings officer believes there are no reasonable grounds to believe that a violation occurred. 3) If the matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured. b. An initial determination should be made within 10 days of the filing of the complaint, or longer if determined necessary by the hearings officer. Page 2 Ordinance 2830 - Attachment B c. In making an initial determination, the hearings officer would ordinarily proceed without a hearing. d. For good cause as determined by the hearings officer, the hearings officer may schedule a hearing to allow presentation of such evidence as the hearings officer believes appropriate to make an initial determination. e. The hearings officer may allow oral argument, either on the hearings officer's initiative or on request of the person complained against. f. The hearings officer may meet with the person complained against or the person making the complaint, or request additional information, to assist the hearings officer in reaching an initial determination. For any information obtained, the hearings officer shall provide a written summary and allow comment by the other party to the proceeding. g. The hearings officer may waive minor irregularities to ensure the complaint is supported by identifiable facts. h. Prior to making an initial determination, the hearings officer shall provide an opportunity of not less than three (3) business days to the person complained against to submit written materials in response to the complaint. i. The initial determination of the hearings officer shall be in writing. j. The initial determination is final and unappealable, 'except in the case of (3) above (namely, determination that the complaint should be dismissed because the matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured), where the person complained against has a right of appeal to the City Council pursuant to the procedures set forth below. In the event of an appeal, the Council action is limited to affmning the hearings officer's initial determination or remanding the matter to the hearings officer for further proceedings. Hearings Officer Determination on Hearing. a. Hearing. After an initial determination that the complaint should proceed to hearing, the hearings officer shall set an evidentiary hearing. However, the hearings officer may, on the hearings officer's own action, or the request of the person complained against, consider the merits on a Page 3 Ordinance 2830 - Attachment B motion without an evidentiary hearing. In the event of a ruling on a motion by hearings officer that is adverse to the person complained against, then the person complained against shall have a right to an evidentiary hearing. The evidentiary hearing should be set within 30 days of the date of the initial determination, and upon at least seven (7) days notice to the person complained against. b. Determination. The hearings officer may take one of the following actions: (1) Determine that the complaint should be dismissed if the hearings officer believes there are no reasonable grounds to believe that a violation occurred. (2) Determine that the complaint should be dismissed because the matter alleged in the complaint was minor and inadvertent and the matter was or will be corrected or cured. (3) Determine that a material violation of the ethics code has occurred, and that one of the actions below (warning, admonition, reprimand, censure, or, other than for a Councilmember, removal) is appropriate. (a) Warning. A warning shall be a caution to the person complained against. (b) Admonition. An admonition shall be a verbal non- public statement made by the mayor to the individual (or deputy mayor if the individual is the mayor). (c) Reprimand. A reprimand shall be administered to the individual by letter. (d) Censure. A censure shall be a written statement administered personally to the individual. The individual shall appear at a time and place directed by the City Council to receive the censure. Notice shall be given at least twenty (20) days before the scheduled appearance at which time a copy of the proposed censure shall be provided to the individual. The censure shall be administered at the time and place set. It shall be given publicly, and the individual shall not make any statement in support of or in opposition thereto or in mitigation thereof. A censure shall be deemed administered at the time it is scheduled whether or not the individual appears as required. Page 4 Ordinance 2830 - Attachment B o (e) Removal. Nothing in this section authorizes removal of a Councilmember or the City Manager from his or her office. c. Written Determination. The hearings officer's determination shall be in writing, and set forth facts and provisions of law upon which the determination is based, and set forth the appropriate action, including the text of any action. For example: "Following determination that you have violated the ethics code for the reasons stated above, the following action is appropriate: you should receive an admonishment. You are admonished for the conduct which occurred, etc. ' d. Finality of Determination; Appeal. If the person complained against agrees with or does not appeal the determination, then that becomes the final determination on the matter. The person complained against shall have three (3) days from the date of the determination to appeal to the City Council pursuant to the procedures set forth below. An appeal shall be in writing and filed with the City Clerk. e. Procedures Regarding Determination. In addition to the general procedures set forth below in paragraph 6, the following procedures apply in making a determination: (1) The determination should be made within ten (10) days after the evidentiary hearing, unless a longer time period has been requested by the hearings officer and approved by the City Council; provided, however, that the running of these time periods shall be tolled and the complaint proceedings shall be stayed in the event the hearings officer makes application to the City Council for subpoena power or in the event the City Council issues a subpoena and any person refuses to obey such subpoena. The stay of the complaint proceedings shall continue until such time as the subpoena is either issued or denied by the City Council or until such times as a superior court issues an order on the subpoena. In making an initial determination, the hearings officer would ordinarily proceed without a hearing. (2) The City Clerk shall promptly serve or mail, return receipt requested, a copy of the determination to the person complained against, and the person making the complaint. Appeal to Council. a. Any appeal of the hearings officer's initial determination or determination must be made within three (3) days of the date of hearings officer decision. An appeal shall be in writing and filed with the City Clerk. Only the person complained against may appeal the hearings officer's initial determination or determination. b. If the person complained against appeals the hearings officer's determination to Council, the following shall apply: Page 5 Ordinance 2830 - Attachment B (1) Any appeal is based on the record prepared by the hearings officer. No new evidence is allowed to be presented to Council. The records shall consist of a transcript of the tape of the evidentiary hearing, and all exhibits admitted by the hearings officer. (2) The person complained against (or representative) shall have the opportunity to make argument to the Council. The Council shall not allow argument or comment by others. (3) The Council shall take action on the appeal within thirty (30) days of an appeal being filed. (4) Action by the Council shall be by majority vote. If the proceeding involves a member of the City Council (either as the person making the complaint or the person complained against), the member does not vote on any matter involving the member. Action by the Council may be in executive session, however, upon request of the person complained against, the meeting shall be open to the public. (5) The Council can take one of the following actions: (a) Affirm the determination of the hearings officer. (b) Modify the determination of the hearings officer; however, the Council cannot impose a determination by the Council that results in a more serious consequence than that determined by the hearings officer 6. General Procedures. a. Quasi-Judicial Status. Actions of the hearings officer and Council on appeal are quasi-judicial proceedings. This means that due process protections apply. For example, on a pending investigation of an ethics compliant, no one may contact a Councilmember, and no Councilmember shall seek out information, or receive information other than through the Clerk's Office or at the evidentiary hearing, because the matter may come before the Council on appeal. All information should be presented in writing or at a hearing. b. Public Disclosure. The City shall release copies of any written reports resulting from hearings officer action on a complaint and any written censures or reprimands issued by the City Council in response to public records requests consistent with Chapter 42.17 RCW (Disclosure- Campaign Finances-Lobbying-Records), and any other applicable public disclosure laws. c. Time Computation. In computing any period of time, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be Page 6 Ordinance 2830 - Attachment B included, unless it is a Saturday, Sunday or legal holiday, in which event the period of time runs until the end of the next business day which is neither a Saturday, Sunday, or holiday. Legal holidays are defined in RCW 1.16.050. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, or legal holiday shall be excluded in the computation. d. Evidence. To establish a violation of the ethics code, the violation must be found by a preponderance of evidence to have occurred. The person complained against is presumed not to have committed any violation, until determined by the hearings officer to have violated the Code of Ethics by a preponderance of evidence. e. Evidentiary hearings. All matters related to the Code of Ethics violations shall be closed to the public, except as authorized or required by statute. For example, as authorized by RCW 42.20.140 (2), the open meetings act does not apply to: "That portion of a meeting of a quasi- judicial body which relates to a quasi-judicial matter between named parties as distinguished for a matter having a general effect on the public;" and RCW 42.30.110 (1) (f) which provides for closed meetings "to review and evaluate complaints or charges brought against a public officer or employee." As provided by RCW 42.30.110 (1) (f): "However, upon the request of such officer or employee, a public hearing or a meeting open to the public shall be conducted upon such complaint or charge." Evidentiary hearings shall be closed to the public, unless, at least 48 hours prior to the hearing, the hearings officer receives from the person complained against that the hearing be open to the public. In any evidentiary hearing, the hearing will usually be conducted in the following order: (1) Presentation by the City Attorney to describe the matter and summarize issues presented. (2) Presentation by the person initiating the complaint. (3) Responses by the person complained against. (4) Final statement for the initiator of the complaint. (5) Final statement from the person complained against. Testimony will be under oath. The hearings officer shall administer the oath. A taped record shall be created. Page 7 Ordinance 2830 - Attachment B f. Timeframe for Request for Information. At least three (3) days shall be provided whenever a person complained against is afforded an opportunity to present to the hearings officer written_materials. g. Delivery_. Delivery of materials may be personally, or by first class mail, or email confirmed by telephone message to the recipient. In the event of delivery by first class mail, whenever a party has a right or is required to do some act within a prescribed period after the service of a notice or other paper, three (3) days shall be added to the prescribed period. h. Other Enforcement. Nothing herein in any way precludes criminal or civil enforcement of any violations of state or local law. i. Subpoena. The hearings officer is authorized to issue subpoenas. In the event any person disobeys a subpoena, the heatings officer may invoke, or authorize a party to invoke, the aid of any Superior Court of the state. Such court may issue an order requiring such person to appear before the heatings officer to produce documentary evidence, and/or to provide testimony, and any failure to obey such order may be punished by that court as contempt. j. Rules of Evidence. The extent to which the Washington Rules. of Evidence (ER) will be applied shall be determined by the hearings officer in the exercise of his or her discretion. The Rules of Evidence, to the extent determined applicable by the heatings officer, should be liberally construed to promote justice. The hearings officer may adopt additional rules, which supplement the procedures in this section. Page 8 Ordinance 2830 - Attachment B