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HomeMy WebLinkAboutEthics Complaint Order Denying Sufficiency; Ethics Report to City Council RE: In re Port Townsend City Council1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "[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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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