An "Ethics Hearing Officer" has been appointed by City Council and given 10 days to review an ethics complaint filed by former Upstage Restaurant owner Mark Cole.

Meeting in a special session on Thursday, July 7, the Port Townsend City Council voted 3-1 to appoint Seattle attorney Peter Eglick as the city’s Ethics Hearings Officer, with Robert Gray dissenting. The meeting was confrontational in tone, with audience interruptions causing the mayor to make multiple requests for order.

The appointment comes in the wake of Cole’s 100-page ethics complaint filed against 13 current and former city staff and councilors, including the entire 2013 Port Townsend City Council, and City Manager David Timmons.

Cole alleges that David Peterson, Upstage business landlord at the Terry Building in downtown Port Townsend, improperly used his job as City Engineer to influence city officials regarding building renovations. In his complaint, Cole also asserts that Timmons and the entire 2013 City Council actively colluded in what he terms a "cover up."

The process for responding to ethics complaints is detailed in the city’s municipal code, adopted in 2001. In the 15 years since, Timmons recalled only one other ethics complaint.

Per city code, an ethics complaint must be heard by a qualified Washington attorney serving as appointed City Ethics Hearings Officer; no officer has ever been appointed. City code also requires the Ethics Hearings Officer to make an initial determination within 10 working days of a complaint's filing, adding urgency to the council's need to fill the position.

ESTIMATED COST TO CITY

City Attorney Steve Gross asked the council to approve spending $5,000 for initial costs of hiring an Ethics Hearings Officer. Billing for the officer is expected to be in the range of $275-$300 per hour, with amount of time needed dependent on the Officer's findings in the case. Gross also noted at the July 7 special council meeting that the costs could rise sharply if any of the 14 individuals named in the complaint sought their own legal counsel, which the city would be obligated to pay for.

Cole, now a Port Angeles resident, and some of his supporters were critical July 7 of the council's response.

The Upstage was a popular live music venue that Cole operated from 1998-2013 in the Terry Building. Cole’s complaint revolves around events surrounding its closing. Peterson, who bought the building in 2008, abruptly evicted the Upstage in June 2013, in the midst of a temporary closure for building repairs. Cole filed a lawsuit against Peterson in July 2013, which was settled out of court for $130,000 in 2014, according to Cole's complaint. The business space formerly occupied by the Upstage remains empty.

CONFRONTATIONAL TONE

Public comments were confrontational in tone, with more than 40 people in attendance July 7. Mayor Deborah Stinson reminded the assembly to limit their comments to the only matter under discussion, the appointment of an Ethics Hearings Officer, and specifically admonished the crowd to refrain from applause or booing.

Prior to the meeting, Cole had emailed the city requesting that he be allowed 15 minutes to speak, plus five additional minutes for “for response to any significant Council determination” made at the meeting. Both requests were denied; council rules limit public comment to three minutes per person, and limit public input to the formal comment period.

The first two speakers, Cole’s partner Tammy Markham and Thuy Langsea, former Upstage manager, then offered to cede their allotted time to Cole; council rules do not allow for ceding of time to other speakers and the request was denied.

For the remainder of the public comment period, multiple speakers requested that the City Council ignore the ethics hearing process specified in the city’s Municipal Code, and instead appoint a citizen committee to hear the complaint.

Jack Reid, a local musician who had also spoken at the July 5 council meeting when the ethics complaint was first discussed, said “when I pointed out to you that your ethics and honesty were called into question, and the only hope you had was to pick a committee in order to keep it transparent, I didn't mean to pick a committee to hire an ethics officer. I meant to replace the ethics officer with a committee, so that we're talking public. It had nothing to do with hiring an ethics officer. I think you ought to rewrite the code and hire a committee."

Several speakers expressed anger and confusion that public comment was limited to the hiring of the Ethics Hearings Officer; they had wanted to speak on Cole’s behalf and in support of the Upstage business as a cherished community resource; speaker Judith-Kate Freeman had to modify and cut short her prepared remarks. According to several audience members who asked not to be named, Cole had reached out on social media, asking for supporters to come and show their support for the Upstage, without explaining the purpose of the meeting and the limitations on public comment. Many of the audience members were local musicians who had formerly performed at the Upstage.

'FAILED TRANSPARENCY'

Cole denounced the council’s plan to appoint an Ethics Hearings Officer that night. He offered to release the council from any legal consequences of missing the timeline for response to his complaint, feeling that a slower and more deliberate process would better serve the goal of transparency and open government.

Cole opened his remarks by criticizing the meeting's agenda, and his restriction to three minutes: "I came with a plan and an olive branch, to offer a solution to addressing the problem. I thought this meeting was not about deciding on an officer necessarily, but about the process of deciding it. I believe you completely failed transparency on [July 5] in terms of the public eye, and feel you're failing it this evening by not giving me an opportunity to talk."

STINSON, GRAY RELEASED

In a surprise move, Cole verbally released councilors Stinson and Robert Gray from being charged in his ethics complaint, stating that they were junior councilors at the time the alleged ethics violations took place. Removing Stinson and Gray as respondents, Cole noted, left a quorum of four non-respondent councilors to choose an Ethics Hearings Officer. Cole urged councilors Michelle Sandoval and Catherine Robinson – the only two sitting councilors were named in his complaint after withdrawing Stinson and Gray – to recuse themselves from the appointment decision. Cole spoke well beyond his appointed three minutes, necessitating repeated reminders to wrap up his remarks.

SLATE OF CANDIDATES

Once public comment ended, the council began discussion. In response to Tuesday’s request from council to have more detail on possible appointees and a wider range of choices, City Attorney Steve Gross had provided resume information for a slate of nine possible Ethics Hearings Officers, all of whom had responded to Gross’ Request for Statement of Interest, which was broadcast to Washington State Association of Municipal Attorneys (WSAMA) membership after the July 5 council meeting. Gross asked the council to appoint one Officer and two alternates, and explained the process whereby both complainant and respondents could object to an appointment on grounds of impartiality.

Gross also reached out to both the executive director of the Seattle Ethics and Elections Commission and the State Auditor’s Office; both agencies were unable to provide a candidate at this time. By municipal code, the Ethics Hearings Officer must “be an active member of the Washington State Bar Association, have at least seven years of experience as a lawyer, have no record of public discipline, and have experience as an adjudicator or as an advocate in contested adjudicative hearings.” Because of this requirement, Council rejected the proposal put forth in public comment that the complaint be heard by a citizen committee. The municipal code governing Ethics Hearings is available online.

The council’s discussion was repeatedly interrupted by angry outbursts from Cole’s partner Tami Markham. Mayor Stinson had to remind Markham multiple times to refrain from disrupting the proceedings.

Having been a municipal attorney since 1995, Gross also noted that he knew almost all of the applicants professionally, and that Eglick had previously advised the city on a land use appeal issue in 2015. Gross said “I have no reason to believe that my professional relationship with them would have any effect on their ability to serve as an impartial Ethics Hearings Officer.”

None of the nine candidates live or work in Jefferson, Clallam or Kitsap counties. Eglick's resume notes that he has represented both citizen complainants and city staff in past ethics cases.

Per ethics rules, the respondents are presumed innocent until proven guilty, much as in a criminal trial. Respondents have the option of requesting that the matter be heard in an open public hearing, or in a closed hearing. City Manager Timmons has already requested an open hearing, and reminded the meeting of this, saying "I've already gone on record stating that I want an public, open hearing."

SANDOVAL, ROBINSON RECUSED

Much of the remaining discussion centered around whether Councilors Sandoval and Robinson should recuse themselves deciding on a Hearings Officer. City Attorney Gross stated that they were not required to do so, but after some discussion, both Sandoval and Robinson chose to leave the meeting. Sandoval joined Timmons in choosing to hold an open hearing, saying "I'm choosing [to recuse] because I have been – I think wrongly – maligned. But nevertheless, I'm happy to have an open hearing, and I'm happy to recuse myself."

The remaining four councilors (Councilor David Faber was not present) discussed the nine candidates, stating a top-three choice. This narrowed the field, with firm agreement that Peter Eglick was the top choice to appoint as Ethics Hearings Officer. A motion to appoint Eglick passed 3-1, followed by approval of Jennifer Robertson and Wayne Tanaka as alternates. Councilor Robert Gray dissented, preferring Tanaka as Officer and Eglick as an alternate.  Eglick's letter of interest and qualifications are available on the City of Port Townsend website.