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HomeMy WebLinkAboutReg 2012-11-05 Item 4E - Ethics - Acknowledge Receipt of Investigative Findings and DispositionCOUNCIL AGENDA SYNOPSIS Initials Mee tin Date Prepared b Ma yors review Couniil review 11/05/12 CO ITEM INFORMATION' ITEM NO. 4.E. 43 STArr SPONSOR: MAYOR HAGGERTON ORIGINAL, AGENDA DATE: 11/5/12 AGENDA ITEM TITLE Ethics investigative findings and disposition. CATEGORY Discussion Mtg Date ®Motionlconsent Mtg Date 1115112 Resolution Mtg Date Ordinance Mtg Date BidAward Mtg Date Public Hearing Mtg Date ā¯‘Other Mtg Date SPONSOR Council Mayor Adm Svcs DCD Finance Fire Legal P&R Police PW SPONSOR'S pursuant to Tukwila Municipal Code 2.95.040, the Mayor is required to place the Hearing SUMMARY Examiner findings of ethics complaints against elected officials on the agenda of a regularly scheduled meeting. This is for the Council's information only and requires no council action other than acknowledgement of receipt. REVIEWED BY COW Mtg. CA &P Cmte F &S Cmte Transportation Cmte Utilities Cmte Arts Comm. Parks Comm. Planning Comm. DATE: N/A COMMITTEE CHAIR: N/A RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE N/A COST' IMP ACT FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION MT ATTACHMENTS 11/5/12 Findings, Conclusions and Order of the Hearing Examiner 43 p FINDINGS, CONCLUSIONS AND ORDER OF THE HEARING EXAMINER FOR THE CITY OF TUKWIIA In the Matter of KATE KRULLER Concerning an Ethics Complaint Hearing Examiner File: E -12 -001 Introduction The Mayor issued a letter on July 2, 2012, concerning an ethics complaint filed against Kate Kndler, a Tukwila City Councilmember. Ms. Kruller filed a request for a formal hearing before the Hearing Examiner, pursuant to TMC 2.95.040.H. The hearing was held before the undersigned Hearing Examiner on September 18, 2012. Represented at the hearing were the City of Tukwila, by Martha Lanz, Tacoma Assistant City Attorney; and Kate Kruller, by Peter Jorgensen, attorney at. law. The record was held open through October 1, 2012, for receipt of written closing statements by the parties, which were added to the record. After due consideration of the evidence elicited during the hearing and the Examiner's inspection of the site, the following shall constitute the findings of fact, conclusions and order of the Hearing Examiner on this matter. Findings of Fact 1. The Mayor of Tukwila issued a written disposition dated July 2, 2012, concerning a complaint filed against Kate Kruller for an alleged violation of the City's Ethics Code. Ms. Kruller is a City Councilmember. 2. The Tukwila Community Center (TCC) is owned and managed by the City. The Parks and Recreation Department manages the use of the TCC. The Department has full-time and part- time employees who manage and staff the facility. 3. Bob Hasegawa is a state representative for the I V h District, and is currently running for State Senate. His daughter, Toshiko Hasegawa, is his campaign manager. 4. On Saturday, February 18, 2012, Bob and Toshiko Hasegawa and Ms. Kruller were at a town hall meeting in the TCC. Rick Still, the Director of the Parks and Recreation Department, was also in the building at some point during the town hall, and exchanged a brief greeting with Ms. Kruller. 45 Findings and Order of the Hearing Examiner E- 12-001 Page 2 of 8 5. While at the meeting, the Hasegawas decided that the TCC was a good venue for a campaign event that they wished to put on later in the spring. Ms. Kruller wanted to help the Hasegawa campaign, and both she and Ms. Hasegawa went to the front desk of the TCC to ask about renting space. 6. Mr. Blanchette, a recreation attendant at the TCC, was staffing the desk at that time. Mr. Blanchette is a part-time Department employee. Mr. Blanchette's supervisor is John Dunn, and Mr. Dunn reports to Mr. Still. Mr. Blachette staffs the front desk, answers the phone, and has other administrative responsibilities, but he is not authorized to make reservations for use of the TCC or to enter reservation information into the computerized reservation system. 7. Mr. Blanchette recognized Ms. Kruller as a City. councilmember, and during the conversation, she indicated that she was a councilmember. He told Ms. Kruller that he could not take a reservation, and that she would need to speak with either Stacey Agmata or Lisa Lee, who are charged with handling reservations, during business hours Monday through Friday. 8. Ms. Hasegawa told Mr. Blanchette that she had already spoken with John Dunn about the process and told him the amount of the deposit that she believed was necessary. Mr. Blanchette reiterated that he could not make a reservation or take a deposit, and that they needed to speak with Stacey or Lisa. 9. Ms. Kruller wanted to secure the reservation that day. She works for a state agency in Olympia and Seatac from Monday through Friday and is not in Tukwila during business hours. Having seen Mr. Still earlier, she asked Mr. Blanchette if she needed to "get Rick," referring to Mr. Still. Mr. Blanchette told her that Mr. Still would not be able to make the reservation. 10. Mr. Blanchette then called Stacey Agmata on her personal cellphone. She did not pick up the phone, so Mr. Blanchette left a message asking her to call him back about a rental. 11. He told Ms. Kruller that he was unable to reach Ms. Agmata. Ms. Hasegawa told Mr. Blanchette that to hold the room, they had to pay half the rental fee up front. Ms. Kruller then wrote out a check for $300 as the reservation deposit and pushed it over to Mr. Blanchette across the desk. Mr. Blanchette told them that he could not take the check, but ultimately decided that "no" was not an option, given Ms. Kruller's insistence on immediately leaving money that day to hold her reservation for the TCC. Ms. Kruller wrote a note to hold the room, and left her check. 12. Ms. Agmata later phoned Mr. Blanchette. Mr. Blanchette told her about his interaction with Ms. Kruller. Ms. Agmata told him to put the check in a lockbox in her office. Mr. Blanchette noted that if Ms. Kruller had been a "regular customer" and not a councilmember, "this would not have happened." 13 The TCC rental agreement packet is shown at Ex. A. The rental rates are shown in Ex. A -1. Under "Weekend Rates the "Resident' rate for use of the "Full Banquet Hall" is listed as $450 for a 5 -hour time period, and $825 for a 10 -hour time period. The rate chart states that 5- hour rentals are permitted during weekends on Friday evenings or from 8:00 a.m. to 1:00 p.m. on RE- Findings and Order of the Hearing Examiner E-12 -001 Page 3 of 8 Saturday and Sunday. At all other times during the weekend, a 10 -hour muumum rental is required. The exception to this is when TCC may negotiate shorter rental periods with interested parties within three weeks of the event, if the hall is unrented 14. The rental rules include specific rules and regulations concerning events at which alcohol is served; Ex. A, page 8. In order to serve alcohol during any use of the TCC, a separate "Alcohol Beverage Request Form" must be submitted and approved by the City. A $200 "Alcohol Fee" is charged in addition to the rental fees. Rule 10 states that "Serving/consuming alcohol without proper approval, outside the approved conditions, and/or in violation of any of the above rules and regulations may result in a citation by Police, immediate cancellation /shut down of event, forfeiture of Damage Deposit, and/or additional fees/penalties." When alcohol is going to be served, the TCC's normal practice is to have additional staff on duty during the event. In addition, the City may require organizations which plan to serve alcohol at the TCC to obtain proof of general liability insurance in the amount of $2 million. 15. Ms. Agmata emailed Ms. Kruller about the rental request on February 21, 2012, as shown in Ex. C. She copied Rick Still on this email. On February 21, 2012, Mr. Still sent Ms. Agmata an email stating "Follow our policy. Let me know if there are any issues that come about this situation." 16. Kimberly Matej is the Government Relations Manager for the City. At some point prior to February 27, 2012, Ms. Matej spoke with Ms. Kruller about Ms. Kruller's involvement in the Hasegawa campaign. Ms. Kruller asked about renting the TCC for use by the Hasegawa campaign in order to receive the resident's rate. Ms. Matej discouraged Ms. Kruller from doing this, because of her councilmember status and the appearance it might create. 17. On February 27, 2012, Ms. Agmata had not yet received a response from Ms. Kruller, and called her to talk about the rental request, the pricing and the contract process. During their conversation, Ms. Kruller told Ms. Agmata that she had spoken with "someone at City Hall" who had told Ms. Kruller that she could rent the hall on behalf of a non resident. Ms. Agamata also took from the conversation that Ms. Kruller wanted to receive the resident rate without a damage deposit, and to rent the TCC for a 5-hour period rather than the 10 -hour minimum that would normally be required for a Sunday afternoon. 18. Ms. Kruller denied telling Ms. Agmata that she had spoken with someone at City Hall. She also denied having asked Ms. Agmata for a waiver of the damage deposit or having asked to be charged for 5 hours rather than 10. 19. Ex. G shows email correspondence between Ms. Agmata and Ms. Kruller concerning the rental. Ms. Agmata's February 27, 2012 email, copied to John Dunn, includes the statement: "Since you have inquired with someone at City Hall that it would be ok to rent the room with your residency status here are the fees below." The email also states that "$500 Damage deposit would be waived.". Ms. Kruller's responsive February 28, 2012 email included a statement "Not sure if the check I wrote is the right amount up .font. Understand the Deposit is waived. We will follow up with the total amount asap, if that is what is required" 47 Findings and Order of the Hearing Examiner &11-001 Page 4 of 8 20. Ms. Kruller sent Ms. Agmata the rental application, Ex. E. Next to the question "Will Alcohol be Served?" the "No" space is checked. The application form includes an "Authorization" clause which states the applicant agrees to be bound by the regulations and policies governing the rental use of the TCC. 21. Ms. Agmata's February 29, 2012 email to Ms. Kruller included the contract shown in Ex. F, and a note that the "balance of the reservation is $300[.]" The contract provides for rental of the TCC full banquet hall and kitchen on Sunday April 22, 2012, from 12:00 p.m. to 5:00 p.m. The listed fees are $450.00 for the banquet hall, and $150.00 for the kitchen. 22. If the 10 -hour minim rental period had been charged, the fee for the banquet room would have been $825, and the fee for the kitchen would have been $275. 23. The contract was signed by Mr.' Hasegawa, with Ms. Kruller listed as the applicant. Ultimately, Mr. Hasegawa reimbursed Ms. Kruller for the $300 she had paid; he also paid the remaining $300 listed on the contract. 24. On April 22, 2012, the Hasegawa campaign held its event at the TCC. Upon arriving at the event, Ms. Kruller saw that alcohol was being served, and was disturbed to see this. However, after learning that the campaign had obtained a state liquor permit, and after the permit was displayed on a wall, she did not attempt to halt the service of alcohol, or to advise City staff that alcohol was being served. 25. Mr. Blanchette was on duty at the TCC that afternoon. The campaign did not vacate the hall and kitchen by 5:00 p.m. Failure to vacate the premises even one minute after the reservation hour will normally result in the renter being charged for a full additional hour, so Mr. Blanchette did not attempt to "rush" everyone out of the room after 5:00 p.m. Eventually someone from the event told him that they were done with the room. Mr. Blanchette entered and saw empty wine bottles and beer cans in the trash. Mr. Blanchette reviewed the contract and saw that no alcohol permit had been obtained, and no alcohol fee had been collected. He contacted John Dunn the next week to tell him that alcohol had been served at the event without the normal fees and approvals. 26. On May 8 2012, Mr. Dunn sent an email to Mr. Still, stating that staff had been pressured concerning the rental, the 10 -hour minimum rental period, and deposit waiver. Mr. Dunn also noted that the group had served alcohol without prior notice to the City and without paying the fee.. Mr. Dunn calculated that, had the rental occurred according to TCC policies, "we would have collected another $575 ($375 rental $200 alcohol fee). With the councils [sic] directive for 100 costs recovery in facility rentals, we need to have all parties following policy and paying the proper amount in the future." Ex. K. 27. A complaint against Ms. Kruller (which is not in the record) was filed by TCC staff on May 15, 2012; see Ex. L and Ex. N, page 1. The City retained an investigator, attorney Edward Lindstrom, who produced the report shown at Ex. N. The report cited TMC 295.030(1), Findings and Order of the Hearing Examiner E -12 -001 Page 5 of 8 General Prohibition Against Conflicts of Interest, and TMC 2.95.030(8), Improper Use of Position Prohibited. Ex. N, page 2. 28, Mayor Jim Haggerton issued a letter dated July 2, 2012, after considering the investigator's report. Ex. L. The letter sustained the complaint. 29. TMC 295.030(l) states: General Prohibition Against Conflicts of Interest. In order to avoid becoming involved or implicated in a conflict of interest or impropriety, or an appearance of a conflict of interest or impropriety, no current City ofter or employee should be involved in any activity that might be seen as conflicting with the conduct of official City business or as adverse to the interests of the City. Even the appearance of the conduct prohibited in TMC 2.95.030 alone may be sufficient to constitute a violation of this Code of Ethics 30. TMC 2.95.030(8) states: Improper Use of Position Prohibited No city officer or employee shall knowingly use his/her office or position to secure personal benefit, gain or profit, or use his/her position to secure special privileges or exceptions for him/herself, or for the benefit, gain or profit of any other persons. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to negotiate ,agreements that address the wages, hours, and working conditions of employees of the City. Conclusions 1. The Hearing Examiner has jurisdiction over this matter pursuant to TMC 2.95.040.H. Under TMC 2.95.040.I, the decision is to be based on the preponderance of the evidence. 2. The decision appealed is the Mayor's determination that Ms. Kruller violated the Code of Ethics. Although the Mayor's determination did not specify which sections of the Code were violated, the determination referred to the investigation, which cited TMC 2.95.030(1) and TMC 2.95.030(8). 3. Under TMC 2.95.030(1), "even the appearance of the conduct prohibited in TMC 2.95.030" may be sufficient to constitute a violation of the Code of Ethics. Thus, although TMC 2.95.030(8) refers to an officer "knowingly" using his or her office to secure personal benefit or special privileges, under TMC 2.95.030(1), conduct that might reasonably be seen as violating the Code, is itself a violation. In this appeal, the issue is whether Ms. Kruller's conduct violated the Code, or could reasonably be seen as violating the Code. 4. Ms. Kruller's initial contact with Mr. Blanchette had the appearance of asking for favored treatment because of her status. Ms. Kruller identified herself at least in passing as a. Findings and Order of the Hearing Examiner E- 12-001 Page 6 of 8 councilmember and insisted that Mr. Blanchette take her check to. reserve the hall, even after he repeatedly told her that he was not authorized to make reservations or to accept money. Her behavior, together with her statement asking whether she needed to "get Rick," the head of Mr. Blanchette's department, could reasonably be seen as an attempt to use her position to bully Mr. Blanchette and to override the TCC's policies concerning reservations, even if Ms. Kruller did not intend to create this impression. 5. Ms. Kruller also advised Ms. Agmata that she had spoken with "someone at City Hall" about granting her the resident rate. The evidence does not show that Ms. Kruller asked for or implied that she should also be given a waiver of either the damage deposit or the minimum weekend hourly charges. Ms. Kraller's responsive Febniaiy 28 email states that "Understand the Deposit is waived" but this statement was made after Ms. Agmata had already indicated that the deposit was waived. On its face, the Kruller email appears to confirm Ms. Kruller's understanding of Ms. Agmata's email message regarding the damage deposit. Ms. Kruller's email lacks any reference at all to the minimum hourly charges. 6. Instead, Ms. Agmata felt that she was being asked to deviate from these policies based on Ms. Kruller's reference to "someone at City Hall;" she also recalled Mr. Blanchette's report of his interaction with Ms. Kruller. Ms. Agmata's testimony was credible as to what she thought Ms. Kruller wanted, but the evidence does not show that Ms. Kruller's conduct implied that she wanted relief from the damage deposit or minimum hour rental, although she did in fact receive such relief. While her "someone at City Hall" comment could be viewed as inappropriate or overbearing, it was made in the content of her request for the resident rate, and it appears that the City allows this practice. 7. Ms. Kruller's application stated that alcohol would not be served. Ms. Kruller did not know prior to the event that alcohol would in fact be served, but she was responsible for ensuring that her representations to the City about the event were accurate. The rental packet and contract highlighted the importance of disclosing to the City whether alcohol would be served. Service of alcohol requires additional review and requirements (e.g., the City may require proof of adequate liability insurance) before an event may be approved, in order to fully protect the City's interests. After learning that alcohol was being served, Ms. Kruller did not advise City staff or to take other steps to halt the service of alcohol at the event. Her inaccurate representation concerning alcohol service and her failure to take steps to stop it after she was aware of it, could reasonably appear as conduct adverse to the interests of the City. 8. Thus, Ms. Kruller's interactions with Mr. Blanchette could reasonably be perceived as an attempt to use her position as a councilmember to gain advantageous treatment, even. though Ms. Kruller did not intend to do so. Her lack of attention to the TCC rental rules and her failure to adhere to them, could reasonably lead to an appearance that she was using the TCC in a way that was adverse to the City's interests. Finally, her status as a councihnember resulted in her receiving favorable rental rates, terms which would not be granted to others. All of these violate the City's Code of Ethics. 50 Findings and Order of the Hearing Examiner E -12-001 Page 7 of 8 9. The Mayor's determination called for no discipline, only a reminder that Ms. Kruller needed to "be aware of how your position as a City Councilmember can be perceived when interacting with City staff for private matters." No error was shown as to the Mayor's determination to issue this statement rather than impose discipline. 10. The Mayor's determination also required Ms. Kruller to make restitution to the City in the amount of $1000 for the deposit and charges that should have been paid: $1100 in fees for the minimum 10 -hour rental period for a Sunday afternoon, and the forfeiture of the $500 deposit (that should have been collected for the event) for violation of the alcohol rules, less the $600 that was actually paid to the City. 11. Ms. Kruller's closing statement argues that she should not have to pay restitution, except the $200 alcohol event fee, since the $600 rental fee listed in the City's contract has been paid. Ms. Kruller did not ask for the damage deposit to be waived or for relief from the minimum hour rental, but she nevertheless was excused from those charges solely because of her status as a councilmember. To allow her to retain this benefit would violate the Code of Ethics. Failure to pay the separate alcohol fee and to obtain approval for the service of alcohol, also normally triggers forfeiture of the damage deposit, so the inclusion of $500 for a forfeited damage deposit is appropriate. Restitution in the amount of $1000 should be required 12. While not identified in the Mayor's determination, training in the City's Code of Ethics might be useful for all elected officials to help them avoid engaging in prohibited conduct or appearing to engage in such conduct. This is particularly important given that the record indicates some City employees are reluctant to refuse actual or perceived requests by City officials for special privileges or exceptions, because the employees are concerned about risks to their jobs. 13. Attorney fees. In Ier closing statement, Ms. Kruller asked for attorney fees, but cites no Code or other authority for an award of fees to her. In any event, the Mayor's determination is being upheld, so Ms. Kruller would not be the prevailing. party, even if the Hearing Examiner had such authority. Decision and Order The complaint is sustained and the Mayor's Determination dated July 2, 2012, is affirmed. Entered this 16 day of October, 2012. a t= P44 Anne Watanabe Tukwila Hearing Examiner 51 Findings and Order of the Hearing Exhn lner &12 -001 Page 8 of 8 Concerning Further Review NOTE: It is the responsibility of the person seeking to appeal a Hearing Examiner decision to consult Code sections and other appropriate sources, to determine applicable rights and responsibilities. TMC 2.95.060 provides for review of orders that are issued pursuant to the Code of Ethics. Exhibits The following Exhibits were entered into the record: A. Tukwila Community Center (TCC) Rental Information Packet A -1 TCC Rental Fees B. Handwritten note from Kate Kruller dated. 2118/12 C. Emails dated 2/21/12 between Still, Agmata and Dunn D. Emails dated 2/27/12 between Still and Matej D-1 Emails dated 2/27,2/28 and 2/29 between Agmata and Kruller D -2 Email dated 2/27/2012 from Kruller to Agmata E. TCC Reservation Application 2/28112 F. Versions of rental contract 8623 G. Emails dated 2/27/12 between Agmata, Kruller and Dunn H. Rental group check -out list 1. Withdrawn (duplicate of Ex. K) J. Email dated 5/10/12 between Matej and Kerslake (forwarded message) K. Email from Dunn dated 5/8/12 to Still and Johnson L. July 2, 2012 letter from Haggerton to Kruller M. TMC Chapter 2.95 and City of Tacoma Code of Ethics N. June 26, 2012 letter from Lindstrom to Haggerton O. Email dated 9n112 from Kruller to Jorgensen with photos P. Voided record of Kruller check 4030 for deposit Q. Record of Kruller check 4031 to TCC marked Deposit Witnesses The following witnesses offered testimony: Kate Kruller, Appellant Toshiko Hasegawa Bob Hasegawa Bruce Stotler Daniel Blanchette Stacey Agmata John Dunn Kimberly Matej Rick Still 52