2.95.100 Complaints, investigations, hearings, and enforcement

2.95.100 Complaints, investigations, hearings, and enforcement.

The Ethics Officer shall resolve inadvertent and minor violations of this code of ethics informally and may resolve inadvertent or minor violations informally, unless the Ethics Officer determines that doing so would not serve the public interest. When a violation is neither inadvertent nor minor, the Ethics Officer may initiate an action in accordance with this section.

(1) Time Limitation. Any complaint or action taken under this code of ethics must be commenced within three years from the date of the alleged violation.

(a) Complaint Requirements – Service. Any person may submit a written complaint to the Ethics Officer, through the City Clerk’s office, alleging one or more violations of this code of ethics by an official. The complaint must set forth specific facts with enough precision and detail for the Ethics Officer to make a determination of sufficiency. In addition, the complaint must set forth the specific sections and subsections of this code that the facts violate, and the reasons why. The complaint must be signed under penalty of perjury by the person(s) submitting it in a manner consistent with Chapter 9A.72 RCW. The fact that a complaint has been received, the contents of the complaint, and the identity of the person making the complaint shall remain confidential to the extent available under the law until such time as the Ethics Officer has made a determination of sufficiency.

(b) Finding of Sufficiency. The Ethics Officer shall make a determination of sufficiency within 30 days of receipt of the written complaint. A complaint shall be sufficient if the allegations, if established, would violate this code. The Ethics Officer’s determination is not reviewable. If the finding is one of sufficiency of the complaint, then the Ethics Officer may investigate the complaint as set forth below.

A finding by the Ethics Officer determining that a complaint is sufficient shall contain at the beginning the following specific language:

NOTICE: ANY PORTION OF THIS FINDING 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 ETHICS OFFICER. THE ETHICS OFFICER HAS ONLY DETERMINED THAT IF CERTAIN FACTS CONTAINED IN THE COMPLAINT ARE FOUND TO BE TRUE DURING A LATER HEARING TO BE CONDUCTED BY THE HEARING EXAMINER, THEN VIOLATION(S) OF THE CODE OF ETHICS MAY BE FOUND TO HAVE OCCURRED.

(c) Dismissal. The Ethics Officer shall dismiss the complaint if the Ethics Officer determines that the violation was inadvertent and minor; or a violation occurred, but appropriate actions have been taken to fully address the allegedly unethical conduct.

(d) Protection Against Retaliation. Neither the City nor any official may take or threaten to take, directly or indirectly, official or personal action, including but not limited to discharge, discipline, personal attack, harassment, intimidation, or change in job, salary, or responsibilities, against any person because that person files a complaint with the Ethics Officer.

(e) False Complaint. Any person who shall file a complaint for violation of this code knowing such charge to be false or to have been recklessly made without any reasonable attempt to determine relevant facts and circumstances shall be guilty of a misdemeanor and shall be punished as provided in Chapter 1.30 CMC.

(3) Immediate Removal – Member of Board or Commission or Other Appointed Task Group or Committee. In the event the individual against whom the complaint was made is currently a member of a City board or commission or other task group or committee appointed by the City Council, at any time after the complaint is filed pursuant to this section, the City Council may, in addition to or in lieu of the public hearing process and other possible penalties as provided for in this section, and notwithstanding any other provision of the Covington Municipal Code, by a majority vote remove the individual from such board or commission effective immediately.

(4) Notice. Notice of action by the Ethics Officer shall be provided as follows:

(a) Notice of a finding of insufficiency or dismissal of a complaint by the Ethics Officer shall be sent to the person who made the complaint and the person complained against within seven days of the decision by the Ethics Officer. A finding of insufficiency or dismissal of a complaint by the Ethics Officer is final and binding, and no administrative or other legal appeal is available through the Ethics Officer.

(b) Within seven days of the Ethics Officer rendering a finding of sufficiency, the City Clerk shall send notice to the person who made the complaint and the person complained against, of the Ethics Officer’s determination. If, after investigation, the Ethics Officer has reason to believe that a material violation of this code has occurred, the City Clerk shall give notice of the public hearing which will be held to determine if a violation has occurred. Notice shall be provided at least 30 days prior to the date set for the hearing. The person complained against shall have the right to file a written answer to the charge and to appear at the hearing with or without legal counsel, submit testimony, be fully heard, and to examine and cross examine witnesses.

(5) Stipulations. At any time after a complaint has been filed with the Ethics Officer, the Ethics Officer may seek and make recommendations that the City Council enter into a stipulation with the person complained against. The recommended stipulation will include the nature of the complaint, relevant facts, the reasons the Ethics Officer thinks a stipulation is appropriate, an admission of the violation by the person complained against, a promise by the person complained against not to repeat the violation, and if appropriate, a recommended remedy or penalty. The recommended stipulation shall be sent to the person who made the complaint and the person complained against and forwarded to the City Council for action.

(a) All hearings on complaints found to be sufficient by the Ethics Officer shall be conducted by the City’s Hearing Examiner. The hearing shall be informal, meaning that the Hearing Examiner shall not be bound by the strict rules of evidence prevailing in courts of law or equity. The Hearing Examiner may call witnesses on his or her own motion and compel the production of books, records, papers, or other evidence as needed. To that end, the Hearing Examiner shall issue subpoenas and subpoenas duces tecum. All testimony shall be under oath administered by the Hearing Examiner. The Hearing Examiner may adjourn the hearing from time to time to allow for the orderly presentation of evidence. The Hearing Examiner shall prepare an official record of the hearing, including all testimony, which shall be recorded by mechanical device, and exhibits; provided, that the Hearing Examiner shall not be required to transcribe such records unless presented with a request accompanied by payment of the cost of transcription.

(b) Within 30 days after the conclusion of the hearing, the Hearing Examiner shall, based upon a preponderance of the evidence, make and fully record in his or her permanent records, findings of fact, conclusions of law, and his or her recommended disposition. A copy of the findings, conclusions, and recommended disposition shall be sent to the person who made the complaint and to the person complained against. Additional copies of the findings, conclusions, and recommendations shall be forwarded to the Ethics Officer and City Council.

(7) City Council Action. Final City Council action to decide upon stipulations and recommendations from the Ethics Officer and findings, conclusions, and recommendations from the Hearing Examiner shall be by majority vote in a public meeting. If the proceeding involves a member of the City Council, deliberations by the Council may be in executive session. The member of the Council against whom the complaint was made will not participate in any executive session and shall not vote on any matter involving him or herself. However, upon request of the member of the Council against whom the complaint was made, a public hearing or public meeting before the Council will be held on the issue of penalties.

(8) Disposition. In the event the Hearing Examiner finds that the person against whom the complaint was made has violated the code of ethics, then the City Council may take any of the following actions by a majority vote of the Council. The action of the City Council shall be final and not subject to further review or appeal except as may be otherwise provided by law or as provided in this section.

(a) Dismissal. Dismissal of the complaint without penalties.

(b) Referral. A complaint may be referred to another agency with jurisdiction over the violation, such as the Public Disclosure Commission. Final action on the complaint may be stayed pending resolution of the matter by the agency to which it was referred.

(c) Admonition. An admonition shall be an oral nonpublic statement made by the Mayor, or his/her designee, or if the complaint is against the Mayor, the Mayor Pro Tem or his/her designee, to the official.

(d) Reprimand. A reprimand shall be administered to the official 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, if the complaint is against the Mayor, the Mayor Pro Tem.

(e) Censure. A resolution of censure shall be a resolution read personally to the person in public. The resolution shall be prepared by the City Council and shall be signed by the Mayor, or if the complaint is against the Mayor, the Mayor Pro Tem. The person 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 person. The resolution of censure shall be read publicly, and the person shall not make any statement in support of, or in opposition thereto, or in mitigation thereof. The resolution of censure shall be read at the time it is scheduled whether or not the official appears as required.

(f) Civil Penalties. The City Council may assess a civil penalty of up to $1,000 or three times the economic value of anything received in violation of this code of ethics or three times the economic value of any loss to the City, whichever is greater. Any monetary penalty assessed civilly shall be placed in the City’s general fund.

(g) Contract Void. As provided by RCW 42.23.050, any contract made in violation of Chapter 42.23 RCW, “Code of Ethics for Municipal Officers – Contract Interests,” is void.

(h) Other Penalties. The City Council may impose a restriction, loss of a committee assignment, or loss of appointment as a representative of the City for any regional or multijurisdictional body or membership on any board or commission which requires an appointment or confirmation of an appointment by the City Council.

(i) Review of Civil Penalties. If the City Council orders an official to pay a civil penalty, the official may seek a writ of review from the superior court pursuant to Chapter 7.16 RCW, within 30 days of the City Council’s order.

(9) Public Records. Records filed with the Ethics Officer and/or Hearing Examiner become public records that may be subject to inspection and copying by members of the public, unless an exemption in law exists. The City shall release copies of any written reports resulting from an investigation of a sustained complaint, any Hearing Examiner orders, and any written censures or reprimands issued by the City Council, in response to public records requests consistent with Chapter 42.56 RCW and any other applicable public disclosure laws. To the extent required to prevent an unreasonable invasion of personal privacy interests protected by RCW 42.56.230(2), identity information may be redacted when an unsubstantiated complaint is made available in response to a public records request; however, in each case, the justification for the redaction shall be explained fully in writing. (Ord. 14-16 § 1 (Exh. A))