HomeMy WebLinkAboutEthics Complaint Order Denying Sufficiency; Ethics Report to City Council RE: In re Port Townsend City Council1
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BEFORE THE HEARING OFFICER FOR THE CITY
OF PORT TOWNSEND
Phil Olbrechts, Hearing Officer
RE: In re Port Townsend City Order Denying Sufficiency; Ethics Report
Council to City Council
Ethics Complaint
OVERVIEW
The June 2, 2026 ethics complaint filed by Reverand Cox is dismissed as insufficient.
Seven of the eight allegations are not ethics claims and dismissed on that basis. Her
one remaining claim asserting a special privileges violation is dismissed as not yet
ripe for review. Reverand Cox's special privileges claim can only be considered if
she first acquires a judicial ruling that the City Council violated the First Amendment
or other law governing the use of public streets.
As the parties are likely aware by now, the special privileges clause provides as
follows:
(1) No municipal officer may use his or her position to secure special
privileges or exemptions for himself, herself, or others.
RCW 42.23.070(1).
Reverand Cox asserts a special privileges violation apparently because the City
Council authorized the Jefferson County Farmer's Market to paint PRIDE colors at a
City intersection while denying another group a similar opportunity to paint its
message on a City street.
An Attorney General Opinion supports Reverand Cox's position that preferential
access to City streets constitutes a special privileges violation. The Attorney
General's Office has opined as follows on the issue of preferential access to public
facilities:
Ethics Complaint P. 1 Order on Sufficiency
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"[a] special privilege may arise if an organization or corporation is
granted preferential access to state agency facilities or employees without
adequate justification for that preference. "
Attorney General Opinion (AGO) 2010 No. 3 (emphasis added).
The implications of the AGO opinion above are tempered by judicial holdings on
special privileges that recognize that government agencies often do have to treat
people differently. As noted in an ethics case involving a land use decision:
As the Court of Appeals noted, many zoning and development decisions
will favor one party over another. However, when a decision is made in
favor of one party and that decision violates the zoning code, it is
appropriate to consider the decision a special privilege because the
favored party could not have received the benefit of the decision without a
violation of the law.
Hubbard v. Spokane County, 146 Wn.2d 699, 716 (2002) (overruled on other grounds
by Rose v. Anderson Hay & Grain Co., 184 Wash. 2d 268 (2015).
Consistent with Hubbard, as outlined in the September 18, 2024 Faber Sufficieny
ruling, the most predominant line of Attorney General and judicial opinions
addressing special privileges are based upon the principle that "[a] special privilege
involves being allowed to do something that would otherwise be prohibited..." See
Attorney General Opinion (AGO) 2010 No. 3 (emphasis added).
The Attorney General's allowance for preferential treatment unless "otherwise"
prohibited is a recognition that it is a standard and historically approved practice for
local legislative bodies to recognize and honor groups and individuals. Applying
special privileges without such a limitation would prohibit a city council from issuing
a proclamation lauding the accomplishments of a famous resident mountain climber;
from placing a memorial at a public sports field honoring fallen soldiers; or from
naming a street after a former President of the United States. Those types of actions
would not be feasible if city councils were required to approve similar requests from
everyone else. The First Amendment and other laws regulating use of City streets
provides the standards necessary to ascertain when it is acceptable to allow one group
to use city property while denying that same right to others. If the City Council
conforms to those applicable laws in its decision making on street use requests, then it
has provided the "adequate justification" referenced in AGO 2010 No. 3 to treat
some groups differently than others.
Reverand Cox could very well have a compelling First Amendment claim for a
viewpoint based approval of the Farmer's Market application. This may even extend
to her PTMC 12.11.040 claim, which is designed to address First Amendment
requirements. However, Reverand Cox must first have a superior or federal district
court resolve such claims in her favor before pursuing his ethics claim. As identified
Ethics Complaint p. 2 Order on Sufficiency
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in the April 28, 2025 Wennstrom sufficiency ruling, the authority of an ethics hearing
officer is limited to adjudicating applications of the City's ethics chapter, Chapter
2.80 PTMC. The hearing officer has no authority to adjudicate First Amendment
claims or PTMC 12.11.040 claims.
The absurdity of using the ethics review process to adjudicate non -ethics claims was
highlighted in the Wennstrom sufficiency ruling. In that case Reverand Cox
requested the ethics hearing officer to adjudicate claims involving defamation, the
Public Records Act and the Open Public Meetings Act. There is nothing to suggest in
the City's municipal code that the ethics review process was designed to address
every legal claim that someone could conceivably throw at the City's public officials.
Another obstacle to Reverand Cox's special privileges claim is that the special
privileges clause may only apply to privileges involving financial benefits. As noted
in one of the councilmember responses to the complaint sufficiency, the purpose
clause of the ethics code, RCW 42.23.010, is to prevent financial conflicts of interest.
The clause states that the purpose of the ethics regulations is to regulate the
"transaction of business" of municipal officers "in conflict with the proper
performance of their duties in the public interest." Unfortunately, the Attorney
General and the courts have not yet addressed whether this purpose clause would
limit the special privileges clause to financial conflicts. Such a limitation would
significantly reduce the politicization of the City's ethics review process. It would
help focus ethics review to financial conflicts, the likely intent of both the City
Council and the state legislature.
Since the complaint of this case can be resolved on other grounds, the merits of the
financial interest issue are deferred to another day. When feasible, it is best to base
ethics decisions upon existing and established interpretations issued by higher
authorities that apply to the entire state as opposed to diverging into major new
directions that may not be followed in other jurisdictions'.
Although the special privileges claim might have some merit if properly initiated in
another forum, the other seven claims of the Cox claim are well beyond the scope of
ethics review. As previously noted, ethics review is limited to violations of the City's
ethics chapter, Chapter 2.80 PTMC. Those seven remaining claims are dismissed on
that basis.
Reverand Cox strongly disagrees with the limited authority of the hearing officer.
The City Council can to a certain extent broaden the authority of the officer by
amending its ethics code. The ethics code could, for example, identify that the
' The City may find it useful to ask the Attorney General's Office to issue a formal opinion on whether
special privileges violations should be limited to circumstances arising from the "transaction of business
by municipal officers." Cities apparently cannot directly request formal opinions from the Attorney
General's Office. However, that request can be made through the County prosecutor's office via RCW
43.10.030(4).
Ethics Complaint p. 3 Order on Sufficiency
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hearing officer can adjudicate PTMC and appearance of fairness issues as necessary
to resolve ethics claims. The Council could also go the opposite direction and
eliminate the special privileges clause altogether. The vast majority of the RCW
42.23 ethics code is based upon clear and specific standards that address financial
conflicts of interest. Eliminating the special privileges clause would help limit ethics
complaints to financial conflicts.
EVIDENCE RELIED UPON
1. June 1, 2026 Cox Complaint and June 2, 2026 amended complaint.
2. June 3, 2026 email from City Clerk to Hearing Officer forwarding complaint.
3. 6/15/26 sufficiency response from Councilmember Faber and reply from Cox
4. 6/16/26 sufficiency response from Councilmember Nelson and reply from Cox
5. 6/18/26 sufficiency response from Councilmember Obee and reply from Cox
6. 6/21/26 sufficiency response from Councilmember Howard and reply from Cox
7. 6/21/26 sufficiency response from Councilmember Rowe and reply from Cox
8. 6/22/26 sufficiency response from Councilmember Wennstrom and reply from
Cox
FINDINGS OF FACT
Procedural:
1. Complaint. By email dated June 1, 2026 Reverand Cox submitted a 12-
page ethics complaint against all the currently sitting City of Port Townsend City
Council. The complaint alleges multiple violations of state statutes, constitutional
provisions and the PTMC for approving a request by the Jefferson County Farmers
Market to paint PRIDE artwork in the crosswalk of a City intersection. The proposal
was also awarded a $1,500 grant from the City of Port Townsend Arts Commission.
The complaint alleges that the City has rejected a street mural designed to support
local police.
2. Amended Complaint. Reverand Cox amended her complaint on June 2, 2026 to
include an added special privileges violation. Upon receipt of the June 1, 2026
complaint, the City Clerk advised Reverand Cox that the Clerk would take up to 15
days to assess the completeness of the complaint as authorized by PTMC 2.80.050C.
Reverand Cox asserted in her amended complaint that the Clerk had never taken that
much time in her prior nine other ethics complaints. Reverand Cox believed that the
City was delaying the determination of completeness to avoid such a ruling issuing
prior to PRIDE events scheduled for June 6. The City Clerk forwarded the complaint
to the hearing officer as complete on June 3, 2026. None of Reverand Cox's prior
complaints have been processed in less than a month.
3. Sufficiency Review. The sufficiency review for the project was initiated by a
June 12, 2026 email from the hearing officer to all City Council members. Responses
Ethics Complaint p. 4 Order on Sufficiency
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from the Councilmembers were due June 22, 2026 and one reply from Reverand Cox
due by June 26, 2026.
CONCLUSIONS OF LAW
1. Hearing Officer Jurisdiction. PTMC 2.80.050 grants the hearing officer authority
to dismiss ethics complaints if they fail to allege facts that constitute an ethics
violation.
2. Standard of Review. PTMC 2.80.050 requires that the Hearing Officer "shall
dismiss a complaint if, assuming all facts alleged are true, there is no violation of this
chapter or that any violation was minor." A sufficiency review is essentially a
Superior Court Civil Rule 12(b)(6) motion for dismissal for failure to state a claim for
relief. That rule requires dismissal if it appears beyond doubt that the plaintiff can
prove no set of facts, consistent with the complaint, which would entitle the plaintiff to
relief. Arthur W. v. Thurston Cnty., 282 P.3d 1150, FN 3 (Wash. Ct. App. 2012). CR
12(b)(6) motions should be granted only sparingly and with care. Any hypothetical
situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is
legally sufficient to support plaintiffs claim. Bravo v. Dolsen Companies, 125 Wn. 2d
745, 750 (1995). However, unlike factual allegations, legal conclusions are not
accepted as true. Grace v. Hagy, 153 Wn. App. 1007 (2009). Repeating the elements
of a special privileges violation, such as asserting that a councilmember used her or his
position to secure special privileges for her or himself, is a legal conclusion that by
itself does not establish a violation.
3. Intentional Delay Claim Insufficient. The intentional delay charge as outlined in
Finding of Fact No. 2 is insufficient because it fails to allege who was responsible for
the violation.
PTMC 2.80.050A3 requires that an ethics complaint must identify who is responsible
for an ethics violation. The Cox complaint repeatedly alleges that "the City"
committed a special privileges violation. The complaint identifies that the City Clerk
notified Reverand Cox of the 15-day time period. However, in the multiple allegations
of who is responsible for the violation the complaint only holds "the City" responsible.
PTMC 2.80.050D and 2.80.050E only authorizes complaints against elected officials,
employees and members of advisory bodies. Reverand Cox doesn't identify whether
she is holding the City Clerk responsible for the violation or whether she's insinuating
that some supervisor made her do it. There is no right to file a complaint against "the
City."
4. Non -Ethics Claims Dismissed. Allegations No. 1 and 3-9 of the Cox Complaint
assert violations of law that are outside of the City's PTMC 2.80 ethics code. As
identified in Conclusion of Law No. 4 of the April 28, 2025 Wennstrom ruling, the
Ethics Complaint p. 5 Order on Sufficiency
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hearing officer has no authority to adjudicate non -ethics claims. Those claims are all
dismissed as outside the jurisdiction of this ethics review process.
5. Special Privileges Claim Not Ripe for Review. Reverand Cox's special privileges
claim, Allegation No. 2, is not ripe for review. As outlined in the "Overview" section,
her special privileges claim can only be considered in this forum if and when she
procures a court ruling holding that the City Council violated the First Amendment or
other applicable law in approving the Jefferson County Farmer's Market request to
install art work on a City street. As identified in Conclusion of Law No. 4 above, the
hearing officer has no authority to adjudicate those non -ethics claims.
6. City Council Sufficiency Arguments. City councilmembers separately submitted
multiple arguments contesting the sufficiency of the Cox complaint. Those points by
themselves were not cause and/or not necessary to find the complaint insufficient.
One compelling point was that the code should be limited to instances of financial
conflicts of interest. This is based upon the purpose clause of the ethics code, RCW
42.23.010. That section provides that the ethics code applies to the "transaction of
business of municipal officers." Overall, RCW 42.23.010 does arguably appear to
state that the intent of the ethics code is limited to regulating financial conflicts of
interest. However, since its adoption in 1961 no judicial opinion or Attorney General
Opinion has yet addressed whether Chapter 42.23 RCW only applies to financial
conflicts of interest. All of the Attorney General and judicial cases addressed thus far
have at least tangentially involved financial benefit to someone. Since the Farmer's
Market street art can be construed as advocating equal rights and treatment, one might
be able to argue that a financial interest is involved in this case anyway. Limiting
special privileges claims to financial benefit would be a major refinement of the law
that would best be addressed by a higher level of ethics review. In this case the issue
need not be resolved because the Cox complaint is dismissed for other reasons. The
issue should be considered live, however, should the City be presented with another
complaint that arguably doesn't include any "transaction of business."
Another councilmember identified that she didn't incur any benefit from the street use
approval. The special privileges clause prohibits granting special privileges to
"others," which in this case would be the Jefferson County Farmer's Market.
A couple councilmembers asserted that the complaint failed to assert any violation of
the City's ethics code. The Cox complaint properly cited to RCW 42.23.070(1) as the
basis for the special privileges claim. The councilmembers otherwise correctly noted
that the other allegations in the ethics complaint had nothing to do with the City's
ethics complaint and should be dismissed.
Ethics Complaint
Order
Order on Sufficiency
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The June 2, 2026 City of Port Townsend amended ethics complaint filed by Reverand
Crystal Cox is dismissed as insufficient for the reasons identified in the Conclusions
of Law above.
Dated this 6 h day of July, 2026.
Ethics Complaint
Phil Olbrechts
City of Port Townsend Hearing Officer
p. 7 Order on Sufficiency