Gathe says "no basis" for ethics investigation

Former Clark County resident, Robert Dean, filed an ethics complaint against Vancouver Mayor Tim Leavitt. Here’s City Attorney Ted Gathe’s response, which was emailed to Leavitt and city councilors on Monday.

—–Original Message—–
From: Gathe, Ted
Sent: Monday, October 22, 2012 11:28 AM
To: Burkman, Jack; hansen, bart; Harris, Jeanne; Leavitt, Tim; Smith, Larry; Stewart, Jeanne; turlay, bill
Cc: Holmes, Eric
Subject: RE: Ethics complaint- Mayor Leavitt
Importance: High

Mayor and Council:

As you know, Robert Dean filed an ethics complaint against Mayor Leavitt last week which alleges as follows:

1. That Mayor Leavitt ‘s employer PBS Engineering has a contract with Tri Met. That Tri-Met might contract with C-TRAN for light rail operations in Clark County. That CTRAN, the CRC or some other public agency might contract with PBS Engineering at some future date for services related to the construction and/or operation of light rail as part of the CRC project in Clark County and that Mayor Leavitt’s support of light rail such as including it as part of the locally preferred alternative for the CRC project is a conflict of interest. Mr. Dean cites RCW 42.23.030.

2. That Mayor Leavitt has accepted campaign donations from PBS engineering. That the City Council should investigate PBS engineering to determine if it has reduced Mayor Leavitt’s salary commensurate with his reduced PBS workload while acting as mayor. Mr. Dean cites RCW 42.23.070(2).

3. That Mayor Leavitt has accepted campaign contributions from persons who support the CRC light rail project and who might profit from the expansion of light rail into Clark County.

In a follow up e-mail dated October 20, 2012 and attached below, Mr. Dean alleges that I now have a conflict of interest based on my advice to Council in a previous matter where similar allegations were made against the Mayor. In that matter, I advised the Council that assuming the facts alleged by the complainant to be true, there was no violation of the Code of Ethics and therefore no reason to initiate an investigation. This process is consistent with Section 8.0 of the Council Ethics Policy 100-36.

I am not aware of any ethical obligation that requires me to recuse myself from reviewing Mr. Dean’s complaint simply because I reviewed a complaint making similar allegations in the past.

As to Mr. Dean’s complaint, I have reviewed it under the same standard as set forth in Ethics Policy 100-36 which is: assuming the facts in Mr. Dean’s complaint to be true, does the complaint on its face substantiate a violation of the Code of Ethics?

1. The first allegation is based on a string of assumptions with regard to possible future contractual relationships between the Mayor’s current employer, PBS Engineering, and other agencies. None of those contracts currently exist. Assuming that PBS engineering does have an existing contract with Tri-Met to provide on call services, that fact alone does not create a conflict of interest for Mayor Leavitt. RCW 42.23.030 cited by Mr. Dean prohibits public officials from having private interests, direct or indirect, in contracts which they approve or from receiving financial benefits from anyone else connected with the contract. There is no existing contract between PBS Engineering and the City involving the CRC and/or light rail that was approved by the Mayor and City Council.

2. The second allegation states that the Mayor has accepted campaign donations from PBS Engineering. Assuming this to be true and subject to existing campaign and public disclosure laws, PBS Engineering has the right to donate to political campaigns whether it is that of Mayor Leavitt or any other person. The City has no authority to investigate the compensation practices of PBS Engineering based on Mr. Dean’s allegations. The second allegation does not allege facts sufficient to constitute a conflict of interest on the part of Mayor Leavitt and does not implicate RCW 42.23070(2).

3. The third allegation states that Mayor Leavitt has accepted campaign contributions from persons who support the CRC light rail project and who might profit from its expansion into Clark County. Similar to allegation two above, there is no provision in Ch. 42.23 RCW that prohibits or restricts a municipal official from accepting campaign contributions provided such contributions are in compliance with state law. In fact, state law allows candidates for public office to accept campaign contributions even from constituents who have quasi-judicial matters pending before the decision making body. See RCW 42.36.050. The third allegation does not allege facts sufficient to constitute a conflict of interest on the part of Mayor Leavitt.

In summary, since there are no facts alleged that, if true, would constitute a violation of the Code of Ethics, there is no basis for commencing an ethics investigation.

Ted H. Gathe

City Attorney

City of Vancouver

P.O. Box 1995

Vancouver, WA. 98668-1995

360-487-8500