Civil Service Commission dispute persists
September 30, 2011 · 3:15 PM
The city’s Ethics Board and the City Attorney Jack Johnson issued mixed preliminary statements about the facts behind the complaints filed by Kim Hendrickson, the former Civil Service Commission secretary/chief examiner, regarding the actions of two of the commission’s three sitting members.
Hendrickson has alleged that David Hand and George McKinney met with City Manager Brenda Bauer and Johnson in violation of the Open Public Meetings Act (OPMA) and the Code of Ethics of the city’s Ethics Program.
Neither Commissioner Robert Fernandez, who later self-reported attending the meetings, nor the city employees attending the meeting were addressed in the complaint.
In its preliminary determination issued on Friday, the Ethics Board said the facts were “credible” and that it appeared the commissioners violated the transparency requirement of the Code of Ethics.
On Tuesday, Johnson issued a legal opinion in a memorandum to the council stating that it did not appear as though commissioners were in violation according to state law.
The Civil Service Commission is an independent volunteer citizen commission designed to curb political favoritism and provide independent oversight of police department employment. It has been in turmoil since Hendrickson’s contract was terminated in August. Hendrickson was an independent contractor in charge of keeping the commission’s records and supervising examinations and other duties as assigned by the commission.
The three meetings in question were in January and May after Hendrickson had expressed concern about a lack of resources. She made a request for office space and outside legal counsel, among other concerns regarding the police department and commission business.
In response, Bauer said she met with commissioners to express her concerns about providing Hendrickson the resources she requested, including the legality of treating a contractor as an employee with City Hall office space, and budgetary concerns about hiring legal help.
Bauer contends that no decisions were made and that she was not an advocate for a particular solution.
Hendrickson has stated that the subject of reorganization was discussed by commissioners behind closed doors with both Bauer and Johnson, and eventually led to the reorganization and termination of her contract.
The Ethics Board, which serves the city in an advisory capacity, stated that the reorganization of the commission could be affected should a violation of the OPMA be found credible since any action taken at a meeting that does not comply with the OPMA is null and void, citing RCW 42.30.060.
The advisory Ethics Board also noted that courts have found that “subsequent action in an open meeting that merely ratifies action taken in violation of OPMA (or similar legislations) is also null and void.”
Johnson stated in his legal opinion that it doesn’t appear any violation of the OPMA took place because the noticing requirements for a “special meeting” differ from a “regular meeting.” The commission’s regular meetings are on the second Friday every month, therefore Johnson said, the meetings in question were “special.”
The “special meeting” noticing requirements require only to notify all other members of the commission and any news organization with a written request for notice on file with the commission. Johnson’s memo said that no media groups had filed a required written request of notification about special CSC meetings.
Johnson wrote: “Although one may argue, as a matter of policy, that more or better notice ought to have been given for the meetings in question, based on the alleged and known facts, it appears that these gatherings of the members of the CSC did not violate requirements of the Open Public Meetings Act.”
The Ethics Board will now give the commissioners a chance to respond before it makes its final determination. If the Ethics Board finds a violation under city Ethics Code, sanctions can include admonition, reprimand or censure, but the board has taken the stance that cannot remove officials from office.
Hendrickson also filed a petition to remove Hand and McKinney from office. The City Council voted last Wednesday to create a new process to review the request. The petition was made under a state law provision for the removal of officials from office, but the city had not created a process to review such a request.
The proposal, created by Councilor Bob Scales, will include using the city’s Hearing Examiner to take testimony and present evidence before the examiner makes a final determination. The hearing examiner’s judgment will be forwarded to council, which ultimately has authority to appoint or remove commissioners.