PART 2: Council Adopted Annexation Biz Plan; Appeals Court Narrowed Conflict Limits
by Ralph Nichols
[This is the second of three reports involving City Councilman Gerald Robison, allegations of a conflict of interest, and the North Highline Unincorporated Area Council.[
What constitutes a conflict of interest that requires recusal by an elected city councilmember from deliberating and voting on a particular issue?
This question has become a recurring theme in Burien in recent months, both before and after the city council’s 4-3 vote on April 2 to put annexation before North Highline voters in November.
Annexation opponents claim Councilman Gerald Robison has a conflict due to his close relationship with the North Highline Unincorporated Area Council (NHUAC) and should have recused himself, rather than casting the deciding vote.
But Robison says not so, stating he has no attorney-client relationship with NHUAC, no contract with them for legal services, and has been paid no retainer or other fees. Providing infrequent pro bono advice does not constitute a conflict of interest, he adds.
Annexation Business Plan
In the meantime, another oft-stated objection by those who oppose Burien’s annexation of the remaining North Highline unincorporated area hasn’t received the same attention.
They claim the city council failed to adopt a business plan for the proposed annexation – ignoring a self-imposed requirement that such a business plan must be in place before proceeding with any annexation.
Not only does this constitutes a violation of Burien’s comprehensive plan, opponents add, the King County Boundary Review Board acted improperly by giving Burien the green light to move forward without that plan, they add.
But, Burien Community Development Director Scott Greenberg told The B-Town Blog, the city does have a business plan for annexation on the books.
This plan – reviewed and accepted by the city council before it voted last fall to submit a notice of annexation to the Boundary Review Board – is included in the Berk Associates’ study of Burien’s proposed annexation of the remaining unincorporated area, Greenberg said.
City Manager Mike Martin said the council required a business plan before the city’s annexation of the southern part of North Highline, which was approved by voters there in 2009, and followed the same process this time.
He said the new Berk report estimated the costs of annexing this area, including hiring additional city staff, and how city services there will be managed and paid for. This is what’s required in a business plan, and the Berk report does that, Martin noted.
A Conflict of Interest? Or Not?
Annexation opponents argue that Robison, in giving legal advice to NHUAC, if only infrequently and on a pro bono basis, has a conflict of interest that also suggests a de facto attorney-client relationship.
If that isn’t enough to demand recusal, they add, his close connections with White Center – including serving as a volunteer director of Jubilee Days – underscores this conflict.
Robinson, however, recently told The B-Town Blog that a contract for legal services would not, in and of itself, constitute a conflict of interest – which, he restated, he does not have.
And if these affiliations did constitute conflicts of interests, he asked, then why shouldn’t Councilman Bob Edgar, who opposes annexation, be held to the same standard because of his connections with anti-annexation groups.
The Revised Code of Washington [Title 42, Chapter 23] contains the Code of Ethics for elected city officials, primarily addressing contracts and fiduciary interests.
And a 2005 Court of Appeals decision that settled a claim of a conflict of interest on the part of a Des Moines City Councilman appears to back Robison.
In that case – Citizens for Des Moines, Inc., et al., v. Gary W. Petersen [125 Wn. App. 760] – the appellate court held unanimously there was no conflict of interest on the part of then-Councilman Petersen simply because his company, Pete’s Towing, provided towing services for the City of Des Moines and, therefore, that he could remain on the city council.
Peterson was seated on the Des Moines City Council in January 2002 following his election the previous November. That election, which featured four contentious races, produced a dramatic shift in the balance of power on that council.
In the first of several unsuccessful attempts by a group called Citizens for Des Moines to reverse the results of that election, a complaint was filed against Petersen one month after he was sworn in, seeking his removal from the council based on a conflict of interest under RCW 42.23.
[The new council majority did fall apart in early 2003 with the resignation of then-Mayor Don Wasson after the state Public Disclosure Commission determined he had received and distributed campaign contributions for those 2001 races, which were never reported. But the complaint about the campaign financing irregularities was not filed by this citizens’ group.]
Councilman Petersen and Pete’s Towing
Petersen was identified as president, majority shareholder and a salaried employee of Petersen Northwest Corp., the parent company of Pete’s Towing. Petersen was paid an annual salary of $60,000 a year by the corporation.
“For several decades before Petersen’s election, city police and authorized staff persons from the marina, parks and public works departments of the city routinely called Pete’s Towing when vehicles needed to be towed from city property,” the appellate court’s review noted.
“The city had no express or implied contract with Pete’s Towing and no written policies regarding towing requests.
“Pete’s Towing was simply preferred by police and other city staff, to the exclusion or near exclusion of other providers, because it was the only conveniently located full-service operator with sufficient trucks and related facilities and equipment to meet the needs of the city, and it had a 40-year history of consistently providing quality service in a consistent manner.”
The record showed that Pete’s Towing removed vehicles from city property and rights-of-way approximately 500 times a year, the review stated. Pete’s Towing had accounts payable of about $250,000 annually for these tows, with actual collections of about $100,000.
“Citizens’” Lawsuit Dismissed
At the end of a trial in King County Superior Court, Judge Laura Gene Middaugh ruled that each individual tow constituted a contract between Pete’s Towing and the City of Des Moines, that Petersen had a beneficial interest in each such “contract” and, therefore, that each such contract constituted a conflict of interest on his part.
Judge Middaugh voided all towing “contracts” since Petersen had joined the council, and ordered him to accept no new “contracts” from the city.
But, she also said from the bench, the intent and application of the conflict-of-interest law was unclear in this case, especially in the absence of any appellate cases addressing the question, and encouraged Petersen to appeal.
The Court of Appeals granted Petersen review and, after a hearing, reversed Judge Middaugh and remanded the case to her court for dismissal of the lawsuit.
Citizens for Des Moines then appealed to the State Supreme Court, which let the Court of Appeals ruling stand by declining to accept the case.
“For a contract to exist there must be an offer, acceptance, and consideration….” the Court of Appeals said, finding none existed.
“It would be an oddity for an elected official automatically to be placed in violation of the ethics code merely by being sworn into office,” the ruling concluded. “Soon it would be difficult to find capable people willing to run for public office, particularly in small towns where virtually every proprietor in the village may at least occasionally do business with the town.”