2.94.080 Board of ethics – Complaints against a councilmember, member of a board or commission, or mayor – Advisory opinions.
A. Board Established – Authority, Purpose and Duties – Membership – Officers – Policies and Procedures – Board Counsel – Staff.
1. Board Established. There is established a board of ethics for the city of Lynnwood.
2. Authority, Purpose and Duties. The purpose of this board of ethics is:
a. To issue advisory written opinions on the provisions of this code;
b. To hear complaints and determine if violations of this ethics code, or state ethics law applicable to cities, have occurred by the mayor, a councilmember, a member of a board or commission, and to enter appropriate administrative orders and make recommendations to the city council;
c. To hear and consider complaints referred to it by the mayor as provided for in LMC 2.94.095;
d. To adopt policies, procedures and rules, as it may deem necessary and appropriate to accomplish its purpose and duties;
e. To appoint a qualified individual or firm as “board counsel” who shall both provide the board with independent legal counsel apart from the city attorney, and be responsible to conduct investigations on complaints and conduct the functions and perform the duties set forth in subsection (A)(3) of this section;
f. To manage the expenditure of appropriations for operation of the board, board counsel, and other staff; and
g. To annually review: its budget; all service contracts to ensure ready availability of board counsel, third party investigators, and other staff, and to meet with contractors; activities for the proper training of such staff about this ethics code and the board’s policies, rules and procedures for the administration thereof.
3. Board Counsel – Authority and Duties. Board counsel shall have the following authority and duties:
a. To provide the ethics board with independent legal research, advice, assistance, and counsel on its organization and general operations, except in regard to any complaint once it has been filed and specifically in regard to such complaint during the time it is being considered by board counsel or the board under this section and LMC 2.94.085.
b. To agree to settle complaints in accordance with the policies of the board and the purpose and intent of this ethics code, to enter appropriate administrative orders of settlement and administrative orders determining the sufficiency or insufficiency of a complaint, as set forth in subsection (B) of this section.
c. To perform the functions of board counsel as set forth in this section and LMC 2.94.085.
4. Membership – Nomination, Confirmation and Alternates – Terms – Qualification – Removal. The board of ethics shall be composed of three members, none of whom shall be a city councilmember or city employee.
a. The board members shall be nominated by the mayor and confirmed by the city council, for a term of three years or for fulfillment of an unexpired term. The original appointees’ terms concluded as follows:
Position No. 1: January 1, 1998
Position No. 2: January 1, 1999
Position No. 3: January 1, 2000
Any person may be removed from the board by the mayor, with the approval of the council.
b. In addition to the members of the board, the mayor shall nominate, and the city council in its discretion shall confirm, first and second alternate board members. The alternates may attend all meetings of the board, and may participate as set forth in board rules, but shall have no voting rights unless they serve in the place of an appointed board member.
In the event a board member must recuse himself or herself, or is not present, or is otherwise unavailable to conduct any board business, the first alternate member shall serve in his or her place. If a second alternate is needed, the second alternate shall then serve.
c. Members and alternate members may be nonresidents of the city of Lynnwood.
d. In filling any vacancy or making a nomination for membership on the board of ethics, the mayor shall strive to select persons with diverse perspectives and areas of expertise appropriate to the review of ethical matters, and who are of good general reputation and character. For proposed nominees who are nonresidents, the mayor shall state reasons that contributed to the decision to nominate a nonresident, including, but not limited to, particular expertise of the person to review ethics matters, and/or a desire to have a person or persons serve on the board who as nonresidents are less likely to have some personal, social, or business relationship with whomever may be the subject of an ethics complaint, and who would be less likely to be disqualified; and for other reasons deemed appropriate by the mayor.
5. Officers – Succession – Quorum – Procedures. The board shall elect from its membership a presiding officer who shall be the chief administrative officer of the board who shall be referred to as the board chair and a first vice-chair and a second vice-chair, who shall each serve for one year. If the board chair is unavailable, not present, or is recused from participation, the first vice-chair shall preside and have all authority and powers of the board chair during and, if necessary, between meetings of the board. If the board chair and the first vice-chair are both unavailable, not present, or are recused from participation, the second vice-chair shall preside and have all authority and powers of the board chair during and, if necessary, between meetings of the board. The board may elect any member to serve in additional offices or roles as the board deems necessary. The board shall provide a manner for minutes and records of all meetings to be kept. The board shall adopt policies, rules, and procedures; provided, a majority of the board shall constitute a quorum for the transaction of business, and a majority of the board shall be necessary to carry any proposition.
6. Meetings – Notice. A meeting of the board shall be held as the board deems necessary and advisable on 72 hours’ notice to all members, or as provided in board rules, or otherwise as agreed by a majority of the board.
7. Board Counsel, Investigative and Clerical Staff. The board of ethics shall receive the following staff support:
a. Normal Board Operations and Budgeting. The mayor shall provide staff, as he or she deems appropriate, to assist the board of ethics. The board shall make a timely request for necessary biennial budget appropriation(s) for “on-call” contract services for independent legal counsel, and for other staff and other operational costs to the mayor, who shall include that request in the preliminary budget, when, if otherwise necessary, the board may request appropriations directly from the city council.
b. Board Operations Involving a Complaint. If at any time a complaint creates a need for additional or special funding, the board shall make a supplemental request to the mayor or administrative services director who shall forward it to the city council for review and appropriate action.
B. Specific Complaint Against the Mayor, a Councilmember, or a Member of a Board or Commission – Complaint Requirements – Preliminary and Final Determinations of Sufficiency.
1. Complaint Requirements – Service. Any person may submit a written complaint to the city clerk alleging one or more violations of this code by the mayor, a councilmember, or a member of a board or commission. The complaint must:
a. Set forth specific facts with enough precision and detail for board counsel to make a determination of sufficiency; and
b. Set forth the specific section(s) and subsection(s) of this code that the complaining party believes has been violated; and
c. An explanation by the complaining party of the reasons why the alleged facts violate this code; and
d. Be signed under penalty of perjury by the person(s) submitting it in a manner consistent with Chapter 9A.72 RCW; and
e. State each complaining person’s correct name, address at which mail may be personally delivered to the submitter, and the telephone number at which each complaining person may be contacted.
The city clerk shall promptly serve or mail, by return receipt requested, a copy of the complaint to the individual(s) complained against and to board counsel. The city clerk shall not send a copy of the complaint to board members, but shall send a notice to all board members and alternates setting forth only the name, address and any other necessary information identifying all complaining parties and the individual(s) complained against. The city clerk shall notify all complaining parties, board members and alternates, and board counsel, of the date of completion of service or mailing of a copy of the complaint.
2. Board Counsel Consideration of Complaint – Preliminary Determination of Sufficiency – Investigation. Upon receipt of the complaint, board counsel shall:
a. Initially review the complaint to determine if it reasonably complies with the requirements of a complaint in subsection (B)(1) of this section, and shall:
i. Meet at least once together with all parties to hear from them on all aspects of the complaint and issues involved;
ii. Allow all parties to submit at meetings, or otherwise, any information they have concerning the complaint and issues involved;
iii. Request, as needed, clarification, explanation or submission of information necessary to properly consider the complaint;
iv. Promptly distribute to all parties any correspondence between board counsel and any party; and
v. Meet or discuss with any party, at such time or times as board counsel determines appropriate, a settlement of one or more of the complaint allegations and issues involved.
b. When in the discretion of board counsel it is necessary or appropriate, refer the complaint and any information gathered to the investigative third party(ies) approved by the board; provided, board counsel shall direct and control that investigation.
c. At the conclusion of the third party investigation, distribute to all parties all information gathered by any third party investigator, and any report, findings, or conclusions therefrom.
d. After distribution of information from the third party investigation, convene at least one meeting with all parties in attendance to discuss a settlement and resolution of the complaint and the issues involved, and board counsel may submit proposals for settlement of one or more issues involved and set deadlines for response by any or all parties, and further, if a settlement of one or more issues is agreed to, board counsel shall enter an appropriate administrative order of settlement.
e. If a settlement of one or more issues cannot be achieved, then enter an administrative order that:
i. Dismisses any complaint allegation which remains insufficiently stated;
ii. Dismisses any complaint allegation which is not supported by substantial facts;
iii. Identifies and sets forth the terms of any agreed settlement between the parties and board counsel;
iv. Identifies any complaint allegations withdrawn;
v. Determines the sufficiency of all other complaint allegations which are supported by substantial facts; and
vi. Sets forth any additional allegations, if any, from evidence which board counsel has discovered during the investigation, and such allegations shall comply with subsection (B)(1) of this section.
This administrative order shall be served or mailed to all parties within seven days of the date it was signed by board counsel.
f. Board counsel may, with the concurrence of the board, refer any complaint allegation, or any matter discovered by board counsel during the course of an investigation, to a city or county prosecutor. The board shall adopt policies and procedures to receive a recommendation for such a referral, and when appropriate to concur in such a recommendation. All proceedings involving a recommendation for a referral to a city or county prosecutor shall not be open to the public, nor shall any party, any party’s representative, or any party’s attorney be allowed to participate.
3. Complaint – Final Determination of Sufficiency – Standard. Board counsel shall make the final determination of the sufficiency of a complaint. A complaint shall be sufficient if it precisely alleges and reasonably describes acts which if true would constitute a prima facie showing of a violation of a specific provision(s) of this code. The purpose of requiring that the board counsel make a determination of sufficiency of the complaint is to ensure that the complaint is supported by identifiable facts, and to ensure that the complaint is not based on frivolous, speculative, or vague allegations.
4. Final Determination of Sufficiency – Administrative Order – Appeal. Ten days after the last settlement meeting, board counsel shall make and enter a determination of sufficiency in the form of a written administrative order which shall be served or mailed to each party. The administrative order shall include findings of fact and conclusions upon which board counsel made the determination of sufficiency or insufficiency. The determination of sufficiency issued by board counsel shall become final and binding 10 days after service or mailing is completed, unless it is appealed to the board. If it is not appealed, the board shall conduct a hearing as set forth in LMC 2.94.085. If, upon appeal, the board determines that the complaint, or a portion thereof, is sufficient or insufficient, it shall enter an appropriate administrative order, and no administrative or other legal review or appeal is available. If the board on appeal finds that the complaint, or a portion thereof, is sufficient, a hearing will be conducted as set forth in LMC 2.94.085.
5. Rights of Parties. Except as provided in subsection (B)(2)(f) of this section, each party to the complaint and the person(s) against whom the complaint was filed, and any other parties as the board may determine should be involved, shall all have the right:
a. To attend and participate in person or through a designated representative of a party, and an attorney, during any board counsel meetings, or board hearings;
b. In any board hearing on a motion or appeal, to present written and oral argument, supported by affidavits or declarations as may be appropriate, on any legal or factual issues involved in the motion or appeal before the board; and
c. In any board hearing on a sufficient complaint, to call witnesses, cross-examine witnesses, and to present written and oral argument on any legal or factual issues involved in the complaint before the board.
6. Violation of the Ethics Code – Remedies. In the event the board’s administrative order determines that the individual against whom the complaint was made has violated the code, then the city council may take any of the following actions by a majority vote of the council:
a. Admonition. An admonition shall be a verbal nonpublic statement approved by the city council and made by the council president, or his/her designee, to the individual.
b. Reprimand. A reprimand shall be administered to the individual by a resolution of reprimand by the city council. The resolution shall be prepared by the city council and shall be signed by the mayor or council president. If the individual objects to the content of such resolution, he or she may file a request stating the reasons for objections with the council president and asking for a review of the content of the resolution of reprimand by the city council. The city council shall review the resolution of reprimand in light of the board’s administrative order and the request for review, and may take whatever action appears appropriate under the circumstances.
c. Censure. A resolution of censure shall be a resolution read personally to the individual in public. The resolution shall be prepared by the city council and shall be signed by the mayor or council president. The individual shall appear at a city council meeting at a time and place directed by the city council to receive the resolution of censure. Notice shall be given at least 20 calendar days before the scheduled appearance at which time a copy of the proposed resolution of censure shall be provided to the individual. Within seven days of receipt of the notice, if the individual objects to the contents of such resolution, he or she may file a request stating the reasons for objections with the council president and asking for a review of the content of the proposed resolution of censure by the city council. Such a request will stay the administration of the censure. The city council shall review the proposed censure in light of the board’s administrative order and the request for review, and may take whatever action appears appropriate under the circumstances. The action of the city council shall be final and not subject to further review or appeal. If no such request is received, the resolution of censure shall be administered at the time and place set. It shall be read publicly, and the individual shall not make any statement in support of, or in opposition thereto, or in mitigation thereof. A censure shall be administered at the time it is scheduled whether or not the individual appears as required.
d. Removal – Member of Board, Commission or Committee. In the event the individual against whom the complaint was made is currently a member of a city board, commission, committee, or other multimember bodies nominated by the mayor and confirmed by the city council, the city council may, in addition to the remedies set forth in subsections (B)(6)(a), (b), or (c) of this section, and notwithstanding any other provision of the Lynnwood Municipal Code, by a majority vote remove the individual from such board, commission or committee effective immediately.
The action of the city council in the selection and carrying out of remedies shall be final and not subject to further review or appeal.
7. Proceedings Open/Closed. Proceedings by the board, when they relate to action involving a person, shall be made in executive session; however, consistent with RCW 42.30.110(1)(f), upon request of the individual against whom the complaint was made, one or more hearings before the board on a motion or the hearing on a sufficient complaint shall be open to the public. The deliberations of the board shall not be open to the public; however, any final action by the board on any administrative order shall be taken at a meeting open to the public and only after proper public notice is given.
8. Public Records. The complaint, board counsel’s administrative order of settlement, an administrative order determining sufficiency or nonsufficiency of a complaint, and any other administrative order of the board shall be considered public records. An administrative order by board council determining that a complaint is sufficient shall contain at the beginning the following specific language:
NOTICE: ANY PORTION OF THIS ADMINISTRATIVE ORDER DETERMINING SUFFICIENCY OF ANY PORTION OF A COMPLAINT DOES NOT DETERMINE THE TRUTH OR FALSITY OF THE ALLEGATIONS CONTAINED IN THE COMPLAINT FILED WITH THE BOARD. BOARD COUNCIL HAS ONLY DETERMINED THAT IF CERTAIN FACTS CONTAINED IN THE COMPLAINT ARE FOUND TO BE TRUE DURING A LATER BOARD HEARING THEN A VIOLATION(S) OF THE ETHICS CODE MAY BE FOUND TO HAVE OCCURRED.
The city shall release copies of any written reports resulting from an investigation of a complaint and any written censures or reprimands issued by the city council, in response to public records requests consistent with Chapter 42.17 RCW and any other applicable public disclosure laws.
9. Council Action – Executive Session – Councilmember or Mayor Disqualification from Voting. Final action to decide upon remedies by the city council shall be by majority vote in a public meeting. If the proceeding involves a member of the city council, that member shall not vote on any matter involving the member. As provided in RCW 35A.12.100, the mayor may vote in the case of a tie, except if the action is against the mayor. Deliberations by the council may be in executive session; however, upon request of the individual against whom the complaint was made, a public hearing or public meeting before the council will be held on the issue of remedies.
C. Advisory Opinions.
1. Upon request of any employee, the mayor or a member of the city council, or any official, the board of ethics may also render written advisory opinions concerning the applicability of the code to hypothetical circumstances and/or situations solely related to the persons making the request.
2. Upon request of the mayor, or two members of the city council, the board of ethics may also render written advisory opinions concerning the applicability of the code to hypothetical circumstances and/or situations related to a matter of city-wide interest or policy. (Ord. 3404 § 3 (Att. A), 2021; Ord. 2493 § 3, 2004; Ord. 2133 § 1, 1997; Ord. 2112 § 2, 1996)