PART 2: Council Adopted Annexation Biz Plan; Appeals Court Narrowed Conflict Limits


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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.

Jerry Robison

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.

Bob Edgar

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.”

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Comments

17 Responses to “PART 2: Council Adopted Annexation Biz Plan; Appeals Court Narrowed Conflict Limits”
  1. Erik Robbins says:

    Are there anti annexation groups out there?

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  2. SD says:

    I’m not sure we’re comparing apples to apples. From what I’ve read in this article, the conflict of interest addressed in the Gary Peterson case was not related to Gary casting a vote that may have directly or indirectly impacted Peterson or his relatives, but rather whether the City of Des Moines had a valid contract with Pete’s Towing.

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  3. Thanks for the great reporting Ralph on both the conflict of interests portion and the annexation business plan. I look forward to part three!

    Joey Martinez

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  4. SD says:

    The article also states that “for a contract to exist there must be an offer, acceptance, and consideration.” I’m not sure how pro-bono works, but Wikipedia says consideration can take the form of money, physical objects, services, promised actions, abstinence from a future action, and much more. The Washington State Bar Association is probably a more reliable source than Wikipedia, but if there are any legal buffs out there who can speak to oaths and obligations attorney’s have to their pro-bono client, I’d be interested in learning more about that.

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  5. Coverofnight says:

    Again, great reporting Ralph…

    I found the approval of the business plan a bit interesting. The article states, “…This plan – reviewed and accepted by the city council before it voted last fall to submit a notice of annexation…” Obviously, this plan must have shown that annexation was going to do wonders for the City of Burien – my question is, who put together that report and the numbers? Was it always biased toward making annexation work? Did the anti-annexation side ever stand a chance? The article goes on to say that the report, “…is included in the Berk Associates’ study…”, this sounds to me like Berk didn’t prepare the initial report but only included it in their study. And then it’s stated that, “…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…” Did Berk actually do any legitimate estimating or did they just rehash existing figures from the first business plan?

    I see this conflict of interest issue as being a Democrat-style misdirection from the possible corruption of the process for annexation. Maybe I’m missing something, but I get the impression the annexation was in the bag from the get-go. After reading this article, I’m reminded of another Democrat sleight of hand: “…We have to pass the bill first before we can know what’s in the bill….”

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    • raquel davis says:

      “We have to pass the bill first before we can know what’s in the bill…” That is one of the most ridiculous things I’ve ever heard.

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    • William Forest says:

      To call the Berk Report Buriens Business plan is really stretching it Mr Martin…

      The Berk Draft Report may contain the elements of what data would be used to come up with a Business plan but to call it Buriens Business plan is really disingenuous and I challenge the logic and conclusion that the Berk report qualifies as Buriens BUSINESS PLAN FOR AREA Y!

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  6. Bob Price says:

    In reading Mr Nichols article it appears that he has done a lot of research and checking to try and get the facts open. I can hardly wait to see the next article. But as usual if the articles don’t state what the people want to see or hear they say they are rigged and are not correct.. Well like them or not they should at least notice that there are some things out there that will never please them. I bet they would even say God is wrong if he does not t say what they think he should. Mr Nichols has it seems, to have put a lot of time in on checking things and should be given the chance to present them . I am sure that will be some very useful information presented when he gets done. Thank You. Bob Price

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    • DrMcDreamy says:

      I am awaiting Debbie’s letter to the editor to refute these claims.

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    • William Forest says:

      Bob I am not familiar with the fallible God you are referring too.. Not my God sorry..

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      • Coverofnight says:

        I agree William; my God is not fallible. Now BH Obama, who thinks he is God, IS fallible……but back to our regularly scheduled programming:

        I, too, had a similar thought regarding Robison’s response. My initial reaction was that it is typical “lawyer semantic games” – its only purpose is to divert your attention away from the real issue at hand. We’ll be seeing a lot of that in this upcoming election season – so everyone stay on your toes.

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        • William Forest says:

          CON Were you aware that Martin is planning on using city funds to provide interpreters for his “propaganda meetings” promoting annexation in Area Y. Of course he’s playing in the gray area of providing information, but we the Burien taxpayer are funding this excursion.

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  7. William Forest says:

    Robison’s response is typical lawyer legalise… smells really slimy to me..

    And to repeat another posters question… I am not familiar with any so called anti-annexation groups out there although I can see where Jerry is coming from since he belongs and founded the pro-annexation PAC group NHUAC.

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  8. William Forest says:

    Just for the record I think its pertinent for everyone to know that Martins sidekick Scott Greenberg was instrumental in the city of Burien losing the lawsuit for millions of dollars to Westmark. He should have been fired for that but oddly enough was given a raise instead.

    This is the same guy who would have us believe that the Draft Berk Report is a Business Plan.

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