You are here
Bellevue Council Can't Get a Grip on an Ethics Investigation
Thursday, April 14th, 2011
Robert Wechsler
When there is no formal process for dealing with a council member's conflict of interest, and the council handles the matter itself,
things can get farcical. This is what is
happening in Bellevue, WA.
This wealthy suburb of Seattle, with a population of 120,000, has an
ethics code for employees, but with no independent enforcement. Its
ethics code for elected officials is just the state's limited
provisions, again with no independent enforcement, training, or advice.
So when it came out that a council member had a possible conflict of interest that he had not disclosed (see a blog post from a year ago), there was no process to deal with the matter. The result is that, a year later, nothing has been done. But there is suddenly a lot of action.
According to an article in the Seattle Times this Monday, the city attorney says that state law allows her, under the city manager's authority, to collect facts and advise council members (Bellevue has a council-manager form of government, with the city manager as executive). The city attorney has decided to hire an investigator, but this needs to be approved by the council.
Separation of Powers
According to an article in Tuesday's Seattle Times, now that things finally look like they're about to move ahead, the council member has hired a former U.S. Attorney, who has himself conducted numerous investigations. The attorney has taken the position that only the council, not the city attorney, has the authority to determine the scope of the investigation. His argument appears to be based on separation of powers.
Separation of the legislative and executive branches is a primarily state and federal concept that does not work well in a council-manager form of government, where the legislative branch selects the executive. The separation of powers argument actually brings us back to the city's lack of an ethics program. If the council wanted to keep the executive from investigating ethics matters, all it had to do was create an ethics commission or appoint an ethics officer. But it has chosen not to.
The attorney wrote, "How do you think the Seattle City Council would react if Seattle Mayor Mike McGinn commenced an investigation of Seattle City Councilmember Tim Burgess without the approval of its Council? It would certainly be viewed as an inappropriate incursion on the legislative branch of Seattle's city government." This is a very poor argument, since Seattle has a different form of government, where the mayor is the executive, and it also has an ethics commission to handle such investigations.
A Council Flounders As It Tries to Get a Grip on a Flounder
What happened next – or didn't happen – is farcical enough to undermine any argument that a council should handle its own ethics matters. The matter of the scope of the investigation was raised in the council, and the mayor and the council member with the alleged conflict sought to have two other council members investigated along with him, one because she sat on a regional board involved in the matter (as a representative of the city, not in her own right and, of course, known to all council members), the other because his law firm had represented the regional board in the past or in other matters (which he had disclosed).
In fact, there were three motions, one to investigate the three, one to focus on the original matter, and the third to investigate all seven council members. The question arose whether the three members who were the subject of the main resolution could vote on it. The city attorney said they should recuse themselves from voting. According to the Tuesday article, there would be enough votes to investigate the three, but not enough to investigate just the one council member.
Considering that the one council member did not disclose his alleged conflict, and the other two council members did disclose their possible conflict, and the weakness of the argument for allowing the council to be involved in any way other than approving the expenditure for an independent investigator, voting to investigate the three council members seems nothing but a way of asserting council power and confusing the issue.
An editorial in Wednesday's Times refers to this as an attempt to "deflect attention" away from the council member's failure to disclose. The editors strongly take the position that the council member should not get to shape his ethics probe.
Withdrawal from Participation
This is where withdrawal becomes an important issue. The city attorney talks about recusal from voting, but withdrawal by those with a conflict applies to all participation in a matter, including raising a resolution and discussing it (privately or publicly). It appears that the council member discussed the resolution privately and possibly raised the motion (the articles contradict each other on this). There's nothing worse than failing to deal responsibly with a conflict that arises from an investigation into how responsibly one dealt with one's conflict.
The Bellevue council should use this farcical occasion to set up a real ethics program for the city, with an independent ethics commission, training, and advice. The council member with the conflict issue should use his attorney's simile about Seattle to argue for an ethics program at least as good as Seattle's.
Robert Wechsler
Director of Research-Retired, City Ethics
---
So when it came out that a council member had a possible conflict of interest that he had not disclosed (see a blog post from a year ago), there was no process to deal with the matter. The result is that, a year later, nothing has been done. But there is suddenly a lot of action.
According to an article in the Seattle Times this Monday, the city attorney says that state law allows her, under the city manager's authority, to collect facts and advise council members (Bellevue has a council-manager form of government, with the city manager as executive). The city attorney has decided to hire an investigator, but this needs to be approved by the council.
Separation of Powers
According to an article in Tuesday's Seattle Times, now that things finally look like they're about to move ahead, the council member has hired a former U.S. Attorney, who has himself conducted numerous investigations. The attorney has taken the position that only the council, not the city attorney, has the authority to determine the scope of the investigation. His argument appears to be based on separation of powers.
Separation of the legislative and executive branches is a primarily state and federal concept that does not work well in a council-manager form of government, where the legislative branch selects the executive. The separation of powers argument actually brings us back to the city's lack of an ethics program. If the council wanted to keep the executive from investigating ethics matters, all it had to do was create an ethics commission or appoint an ethics officer. But it has chosen not to.
The attorney wrote, "How do you think the Seattle City Council would react if Seattle Mayor Mike McGinn commenced an investigation of Seattle City Councilmember Tim Burgess without the approval of its Council? It would certainly be viewed as an inappropriate incursion on the legislative branch of Seattle's city government." This is a very poor argument, since Seattle has a different form of government, where the mayor is the executive, and it also has an ethics commission to handle such investigations.
A Council Flounders As It Tries to Get a Grip on a Flounder
What happened next – or didn't happen – is farcical enough to undermine any argument that a council should handle its own ethics matters. The matter of the scope of the investigation was raised in the council, and the mayor and the council member with the alleged conflict sought to have two other council members investigated along with him, one because she sat on a regional board involved in the matter (as a representative of the city, not in her own right and, of course, known to all council members), the other because his law firm had represented the regional board in the past or in other matters (which he had disclosed).
In fact, there were three motions, one to investigate the three, one to focus on the original matter, and the third to investigate all seven council members. The question arose whether the three members who were the subject of the main resolution could vote on it. The city attorney said they should recuse themselves from voting. According to the Tuesday article, there would be enough votes to investigate the three, but not enough to investigate just the one council member.
Considering that the one council member did not disclose his alleged conflict, and the other two council members did disclose their possible conflict, and the weakness of the argument for allowing the council to be involved in any way other than approving the expenditure for an independent investigator, voting to investigate the three council members seems nothing but a way of asserting council power and confusing the issue.
An editorial in Wednesday's Times refers to this as an attempt to "deflect attention" away from the council member's failure to disclose. The editors strongly take the position that the council member should not get to shape his ethics probe.
Withdrawal from Participation
This is where withdrawal becomes an important issue. The city attorney talks about recusal from voting, but withdrawal by those with a conflict applies to all participation in a matter, including raising a resolution and discussing it (privately or publicly). It appears that the council member discussed the resolution privately and possibly raised the motion (the articles contradict each other on this). There's nothing worse than failing to deal responsibly with a conflict that arises from an investigation into how responsibly one dealt with one's conflict.
The Bellevue council should use this farcical occasion to set up a real ethics program for the city, with an independent ethics commission, training, and advice. The council member with the conflict issue should use his attorney's simile about Seattle to argue for an ethics program at least as good as Seattle's.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
- Robert Wechsler's blog
- Log in or register to post comments
