Bainbridge city attorney finds flaws in two recent Ethics Board opinions

Bainbridge Island City Attorney Joe Levan has issued two memos that point out several legal flaws in a pair of opinions issued last week by the city’s Ethics Board.

The two statements — addressed to the “general public” — follow a flood of opinions advisory opinions and complaint determinations released by the Ethics Board.

The board issued eight opinions following its meeting April 15.

Two days later, Levan took the unprecedented step of writing statements on two of the Ethics Board opinions.

In both statements, Levan wrote he was issuing the memo “to avoid any misunderstanding that could occur.”

One statement was in response to the Ethics Board opinion on Councilman Ron Peltier, and the other was an advisory opinion that answered a query from Councilwoman Rasham Nassar.

While Levan’s critique of the Peltier opinion was limited and did not address most of the Ethics Board’s determination, the attorney’s assessment of the Nassar opinion undermined the board’s view in its entirety.

Peltier complaint

Peltier has been the subject of a flurry of complaints since last year that center on bullying and bad behavior by the first-term councilman.

The most recent board opinion centered on a complaint submitted by Lisa Schulze, the wife of former Bainbridge city manger Doug Schulze.

In her complaint, Lisa Schulze said Peltier had been harassing the couple since they left Bainbridge for Doug Schulze’s new job in Banning, California.

Lisa Schulze said Peltier contacted Banning City Councilman Don Peterson after her husband took over as Banning’s city manager, and that Peltier shared information with Peterson that has since been used to attack Doug Schulze on Facebook.

In its opinion, the Ethics Board said that Peltier has been engaged in activities that appear to violate the city of Bainbridge Island Code of Ethics. It started soon after Schulze submitted his letter of resignation to the council last year, and ethics officials called Peltier’s behavior “unprofessional,” “unacceptable” and “bullying, pure and simple.”

Peltier also filed complaints against Schulze with the International City Manager’s Association after he resigned, which the Ethics Board said was not approved by the city council and represented a conflict of interest for Peltier because he used his official council position to pursue a private interest.

In its seven-page report, the board bluntly told Peltier: “Stop this harassing behavior.”

The Ethics Board opinion listed eight areas of violations by Peltier:

• Violation of core values of the Bainbridge Island Code of Ethics, specifically integrity, mutual respect, obligations to others and fairness;

• Initiating contact with a council member in Banning to engage in discrediting Schulze;

• Harassment of a former employee by Councilman Peltier vis-à-vis following Schulze to a new position in another city;

• Possible collusion with a Banning City Council member to create a hostile work environment for a Banning city employee;

• An extended campaign, on-going since July 2018, to discredit Schulze;

• The use of city resources to conduct a campaign against the former City Manager Schulze;

• Confidentiality violations in documents offered to Banning councilmember and in the process used to file complaints with the International City Manager’s Association (ICMA); and

• Possible conflict of interest through actions taken in an official capacity to pursue a matter of private interest.

In the city attorney’s April 17 statement on that Ethics Board opinion, however, Levan noted the board’s opinion mentioned “harassment” and a “hostile work environment.”

Those words are legal terms, Levan noted, but he added the board did not refer to the terms’ legal definitions, so the city attorney said they should be viewed as statements of general opinion, and not legal conclusions.

Levan also wrote that he had not been consulted by the Ethics Board about the use of those terms.

Additionally, the city attorney said the board erred when it made “an incorrect legal conclusion” on what constitutes a breach of confidentiality under Washington state law.

The Ethics Board had faulted Peltier for sharing what Peltier wrote as part of Schulze’s performance evaluation with a Banning City Council member.

Levan noted in his statement, contrary to what the Ethics Board said, that performance evaluations of city managers are not exempt from disclosure and could be released publicly.

Levan did not comment on any other parts of the Ethics Board opinion.

Nassar complaint

In a separate statement, also issued April 17, the city attorney also found incorrect legal conclusions in the Ethics Board advisory opinion on Councilwoman Nassar.

Nassar had asked the Ethics Board if it was proper for her to participate in the council’s consideration of land-use regulations given that she owned property on Bainbridge that contained critical areas and wetland buffers.

The Ethics Board, though, noted that Nassar had been found in violation of the city’s land-use codes and an enforcement order had been issued.

Nassar and her husband Trenton Riely-Gibbons were given a “Warning of Violation & Order to Correct” by the city last year and were told to stop all work in environmentally sensitive “critical areas” on their property. They were also ordered to apply for and obtain permits for the development that had already been done on their land, and to also submit a restoration plan to the city.

The Ethics Board, in its advisory response to Nassar, said she should have disclosed “the fact that there were anomalies being assessed by the city code enforcement officer” and “that these issues were likely significant.”

“The city council member should have recused herself from voting on matters of land use and zoning,” the board added.

The board also said their advisory opinion had been deferred until “the code enforcement determination was issued.”

Levan wrote in his statement that Nassar’s permit problems were still ongoing.

“As a factual matter, the city’s code enforcement action related to Councilmember Nassar’s property is an ongoing matter for which the city is in the process of determining the extent of any violations and is working with the property owners to achieve compliance, consistent with the city’s code enforcement process more generally. At this point, a final determination has not been reached related to what will constitute full compliance,” Levan wrote.

The city attorney said the board’s advisory opinion also reached incorrect legal conclusions because the board referred to the “appearance of fairness” doctrine.

That doctrine, Levan said, applies to “quasi-judicial” matters and did not require Nassar to recuse herself from voting on land-use regulations.

Also, the “appearance of fairness” doctrine does not require city council members to recuse themselves from voting on “area-wide regulations” such as land-use rules.

The board was also wrong when it said that other city council members could have excluded Nassar from participating in legislative matters.

Next steps

The Ethics Board has been hit with a historic number of complaints over the past two years.

There were eight requests for opinions or complaints in 2018, and five so far this year.

By contrast, the Ethics Board received just seven referrals in the five years between 2013 and 2017.

Prompted in part by its rising workload and the broad scope of the board — it not only responds to complaints and requests for waivers and advisory opinions, but it also trains elected officials and members of other committees on ethical principles and standards — city officials have been considering a review of the city’s ethics program.

“First, it is important for me personally to acknowledge the work of the members of the Ethics Board, and to express my appreciation for the time they have taken to respond to these issues,” said City Manager Morgan Smith.

“It is a volunteer board that seeks to support the city, and to help us meet our organization goals related to good governance and transparency. They are volunteers community members tackling difficult and time-consuming issues,” she said.

Smith said the board and the city council have been considering the structure of the city’s ethics program in recent months, “and how to improve clarity related to how the program is written and applied.”

That discussion will continue, Smith said, with a joint workshop for the city council and Ethics Board members on Tuesday, April 30.

Smith said the workshop will be facilitated by regional experts who work in this area and have assisted other cities.

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