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Ethics in Government

Should I Tattle?

What should an official do if he or she believes a colleague has
committed an unethical (or maybe even a criminal) act? Do you
confront the person? Go to the press? Look the other way?

Eight suggestions on how to proceed are offered in an article
�Navigating the Perils of Public Service.�1 Here is a
summary of the article�s suggestions, along with a table outlining
some of the more common ways an official can get into trouble and
the consequences or penalties if he or she does so.

So, what should you do?

Pause and consider what your motives are. Is the desire
to report an actual or perceived violation rooted in improving the
public�s view of government or to aid the agency�s operation, or
is it based upon seeking personal or political advantage? If a
violation of law is suspected, is the violation significant, with
serious consequences, or is it more a technical violation, with
little or no real impact. If the moving force behind the concern
is personal or political, or if the ethics violation is relatively
inconsequential, it may be better to delay, if not forgo, action.

Determine what the ethical or criminal violation is. Laws,
whether adopted locally or by the state or federal government,
dictate what a person must do or not do. Ethics involve what
people should do, based upon community values; they may be
encapsulated in laws, but do not necessarily need to be. Sometimes
a violation will be clear, other times it is not so clear,
especially if there are competing standards.

Some cities
and counties have adopted local codes of ethics for their
officials. If your community has, refer to those standards to
determine what the suspected violation is.

The following chart details some of the state laws that
establish rules for local officers and the consequences if the rules
are violated.

* * * * *

Prohibition against Interests in Contracts (Chapter 42.23
RCW)

Acts prohibited With certain exceptions, no municipal
officer may be beneficially interested, directly or indirectly, in
any contract which may be made by, through, or under the supervision
of such officer, in whole or in part, or which may be made for the
benefit of his or her office, or accept, directly or indirectly, any
compensation, gratuity, or reward in connection with such contract
from any other person beneficially interested in the contract. RCW
42.23.030.

Penalties Five hundred dollars, in addition to such other
civil or criminal liability or penalty that might otherwise be
imposed upon the officer by law. RCW 42.23.050.

Forfeiture of office A violation may be grounds for
forfeiture of office. RCW 42.23.050.

Effect on Contract The contract is void, which may mean
that the contracting jurisdiction will not be required to pay for
the goods and services covered by the contract. RCW 42.23.050.

* * * * *

Personal Use of Public Resources (Article 8, section 7 of
state constitution)

Acts prohibited No officer or employee of a municipality
may receive property or services, or a loan of money or credit, from
the municipality for personal use without providing equivalent
consideration to the municipality, unless the receipt was made for
the necessary support of the poor and infirm.

Must recover value Personal use of public property or
services constitutes a gift and is a violation of the state
constitution; the jurisdiction from which the �gift� was taken may
(and likely must) recover the value of the property or service
given. See Tacoma v. Lillis, 4 Wash. 797 (1892), and Hillyard v.
Collier, 133 Wash. 249 (1925).

Crime Improper use, dependent upon the facts, could also
be classified as a theft of goods or services, a crime punishable
upon conviction as a misdemeanor or felony, based upon the value of
the goods or services involved. See RCW 9A.56.030-.050.

* * * * *

Use of Office or Facilities for Political Campaign (RCW
42.17.130)

Acts prohibited Except in certain qualifying situations,
no elected or appointed official or employee of a government agency
may use agency or office facilities (such as postage, machines,
vehicles, work time) to, directly or indirectly, assist a campaign
for election or promote or oppose any ballot proposition. RCW
42.17.130.

Penalties A person who makes improper use of a facility
may be subject to a civil penalty of not more than $10,000 for each
violation. RCW 42.17.390(3). In addition, a court may require
payment of costs, including those for the investigation and trial,
and reasonable attorney fees. If the violation is found to have been
intentional, the judgment, which includes the costs, may be trebled.
RCW 42.17.400(5).

* * * * *

Open Public Meetings Act (Chapter 42.30 RCW)

Act�s requirements All meetings of a governing body of a
public agency are to be open and public and all persons permitted to
attend any meeting of the governing body, except as otherwise
provided by law (e.g., during executive sessions). RCW 42.30.030.

Effect on action Any action taken at a meeting that is not
in compliance with the Open Public Meetings Act is null and void.
RCW 42.30.060(1).

Personal Liability Any official who attends a meeting held
in violation of the Open Public Meetings Act, if he or she has
knowledge that the meeting is in violation of the Act, is subject to
personal liability for a civil penalty of $100. RCW 42.30.120(1).
The penalty is assessed by a superior court judge in an action that
may be brought by any person. There is no criminal penalty for a
violation.

Recall If an elected official has knowledge that a meeting
is being conducted in violation of the Open Public Meetings Act, he
or she may be subject to recall for malfeasance. See Bocek v.
Bayley, 81 Wn.2d 831 (1973), overruled on other grounds, Cole v.
Webster, 103 Wn. 2d 280 (1984) See, also, In re Recall of Anderson,
131 Wn.2d 92 (1997).

Costs and attorney fees A person who prevails against a
public agency in an action may be awarded all costs, including
reasonable attorney fees, incurred in connection with the legal
action. RCW 42.30.1120(2).

Mandamus/injunction In order to prevent a violation of the
Open Public Meetings Act, a person may file a lawsuit in superior
court to either mandate (require) that action be taken or enjoin
(prevent) an action from taking place. RCW 42.30.130.

* * * * *

Public Records (RCW 42.17.250-.348)

Act�s requirements Unless a record is exempt or its
release is prohibited, a municipality must make its records
available for public inspection or copying. RCW 42.17.260.

Penalty and costs If a person is improperly denied the
opportunity to inspect or copy a public record, and a court action
is pursued, the court may require the agency involved to pay the
costs incurred in the litigation, including reasonable attorney
fees, plus an amount not less than five dollars nor more than $100
for each day the record was improperly withheld. RCW 42.17.340(4).

* * * * *

Statutory Ethics Provisions (RCW 42.23.070)

Acts prohibited No municipal officer may use his or her
position to secure special privileges or exemptions for himself,
herself, or others. No municipal officer may, directly or
indirectly, give or receive, or agree to receive, any compensation,
gift, reward, or gratuity from a source, except the employing
municipality, for a matter connected with or related to the
officer's services as such an officer, unless otherwise provided for
by law. No municipal officer may accept employment or engage in
business or professional activity that the officer might reasonably
expect would require or induce him or her, by reason of his or her
official position, to disclose confidential information acquired by
reason of his or her official position. And no municipal officer may
disclose confidential information gained by reason of the officer's
position, nor may the officer otherwise use such information for his
or her personal gain or benefit. RCW 42.23.070.

Penalties Five hundred dollars, in addition to such other
civil or criminal liability or penalty as may otherwise be imposed
upon the officer by law. RCW 42.23.050.

Forfeiture of office A violation may be grounds for
forfeiture of office. RCW 42.23.050.

Crime Depending upon the type of action alleged, an
officer could be charged with a crime. Bribery is a class B felony;
requesting unlawful compensation, receiving or granting unlawful
compensation is a class C felony, as is trading in public office or
trading in special influence. RCW 9A.68.010-.050. The maximum
penalty for a class B felony is a prison term of ten years, or a
$20,000 fine, or both; a class C felony is punishable by a prison
term of five years, or a $10,000 fine, or both. RCW 9A.20.021(1).

* * * * *

Misconduct in Office (Article 1, sections 33-34 of state
constitution; RCW 29A.56.110)

Recall An elective public official is subject to possible
recall and removal from office, if he or she commits an act of
misfeasance or malfeasance while in office, or if he or she violates
the oath of office. RCW 29A.56.110.

* * * * *

Election Law Violations (Chapter 29A.68 RCW)

Election contest Any registered voter may contest the
right of a person declared elected to an office to be issued a
certificate of election for, among other things, the following
reasons: the person is ineligible for office; the person was
convicted of a felony; the person has given a bribe; or more than
one vote was cast by a single voter. RCW 29A.68.020.

Quo Warranto A quo warranto action can be begun to
determine whether a person has a right to public office. Green
Mountain School Dist. No. 103 v. Durkee, 56 Wn.2d 154, 159 (1960).

* * * * *

Whistleblower Protection (Chapter 42.41 RCW)

Whistleblowers are protected It is unlawful for a
governmental official or employee to take retaliatory action against
an employee because the employee provided information that an
improper governmental action occurred. RCW 42.41.040(1).

Penalty If there has been retaliation, an administrative
law judge may reinstate the employee, with or without back pay,
provide injunctive relief to return the employee to the position he
or she held before the retaliatory action, and, to prevent any
recurrence, award costs and reasonable attorney fees. In addition, a
personal civil penalty may be imposed of up to $3,000, payable to
each person found to have been retaliated against. RCW 42.41.040(7)
and (8). The judge may also recommend that the retaliator be
suspended, with or without pay, or dismissed.

What happens if you don�t act? Or if you do? The chart
outlines some of the possible consequences if violations are
reported, investigated, found to be true, and punished. Merely
reporting a suspected transgression, though, may itself result in
consequences beyond those provided by law or official policy; they
may create negative press, personal embarrassment, strained
relations, the need for and cost of legal counsel, and an impact
on future elections. Before proceeding, one should weigh the harm
associated with the offending action with the consequences likely
to occur if the action is reported or not.

Speak with others to determine whether they share your
concerns, or whether you are acting alone. Gain a better idea
about what is going on and whether the suspect action is in fact
unethical or unlawful. A colleague, supervisor, human resources
person, or legal counsel (city, town, or prosecuting attorney) may
be able to provide perspective and, if necessary, correct any
misperceptions that may exist as to whether there actually is an
ethics breach or other problem.

Discuss the issue with the person involved. If you, or
someone on your behalf, talks to the person involved, it may be
possible to either stop an on-going violation or prevent one from
occurring in the future. Try to find out why the person has
decided to engage in inappropriate or unlawful behavior. Has the
person thought his or her decision through, and, in doing so, is
logic being applied, or is the person merely supplying
unjustifiable excuses for taking the action? And has the person
considered the legal, ethical, personal, and operational
consequences of the action? Given the potential consequences, can
the person be persuaded to alter or forgo his or her questionable
behavior? Depending upon the answers, you can then better assess
how to proceed.

Does it make sense to conduct an internal
investigation? If there is any doubt about the ethics or
legality of the behavior involved, an internal investigation might
help confirm or deny those doubts. An internal investigation may
allow the city or county an opportunity to react to the conduct.
If the suspect activity is merely a violation of an internal rule
or policy, an internal investigation may allow an easy resolution.
However, if there has been a violation of law, the prosecuting,
city, or town attorney should be contacted to see if an internal
investigation would be useful or counterproductive. If there is an
investigation, findings should be prepared and a course of action
outlined.

Should external enforcement authorities be contacted?
If it is determined that additional, external assistance or
enforcement is required, there are a variety of persons or
agencies that can be contacted, depending upon the nature of the
suspected violation. For example, the county prosecutor can be
contacted if there is a suspected violation of state law. The
Public Disclosure Commission could be contacted if there is a
campaign violation. The state auditor and attorney general might
intervene if a conflict of interest is alleged, or there is an
open meetings violation. A private action could be begun if recall
is sought or if records have been improperly withheld. While the
press could be contacted, they may not be the best place to start
if an investigation is needed or corrective action is sought.

What can be done to prevent the behavior from happening
again? Education may be the key to correcting or preventing
inappropriate behavior, and there are agencies prepared to help,
if asked. The Public Disclosure Commission provides detailed
information on campaign laws, and it will offer opinions on
issues, if asked. The attorney general�s office has recently
issued model rules to help local governments comply with public
disclosure requests. Agency attorneys can be consulted for
information on how to identify and comply with laws and procedures
affecting government operation. The city and county associations,
including the Municipal Research and Services Center, can provide
training and materials to help officials live within the law and
promote public trust in government.

Whether suspected illegal or unethical behavior exists and, if
so, what to do about it, are not easy issues. Analyzing the acts and
their consequences, though, may help assure a positive result, with
improved behavior, less embarrassment, and improved public trust.

By Paul Sullivan, Legal Consultant
Municipal Research and
Services Center

1The August and September 2005 issues of
the League of California Cities publication, Western City,
presented an excellent two-part article, "Navigating the Perils of
Public Service." The article, which discusses ethics in government,
provides information on what an official should do if he or she
believes another official is performing in an unethical manner. This
article is inspired by the Western City article and draws
upon its suggestions as to how one should proceed, if wrongdoing is
suspected.

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