Ethics officer dismisses complaints by ex-city leaders against Kennewick council members

The latest ethics complaints filed against three Kennewick city councilmen have been dismissed, with a temporary ethics officer finding they were not strong enough to move forward.

They may be the last ethics complaints decided under the current policy of the city.

Councilmen who have been the subject of complaints, some of whom have also made complaints, and their supporters say that the council code of ethics has been used for political reasons.

A subcommittee of the three council members who have not filed or been the subject of ethics complaints have been assigned to form a committee to consider a revamp of the policy created in 2019 or another way to handle ethics issues.

They include Councilman Jim Millbauer and the council’s two new members, Mayor Pro Tem Gretl Crawford and Councilman Loren Anderson.

They are looking at how other cities handle ethics issues and plan to present their work at a council workshop this summer for a full council discussion, said Evelyn Lusignan, public relations director for the city of Kennewick.

The most recent ethics complaints to be reviewed were filed by former Mayor Don Britain and former Mayor Pro Tem Steve Lee before they left office in December after losing their council seats in the November election.

The new council agreed that the complaints should be decided as they had in the past using the city ethics officer while the council considers the future of its ethics policy.

However, the contract for city ethics officer Tom Atwood, a Kennewick attorney, expired at the end of December and he declined to be reappointed to consider the latest complaints.

Instead, the council directed city staff to review the applications for the position filed when Atwood was appointed to serve as ethics officer under what was then a new ethics policy in 2019.

Then just one other fully qualified attorney applied for the position, George Cicotte of Kennewick, and he agreed to review the ethics complaints filed in December.

Ethics complaints

The complaints filed in December 2021 alleged that Councilmen McKay, Beauchamp and Trumbo knowingly violated the state’s open meetings law to get council members to sign an ethics complaint against Britain in January 2020.

An additional complaint filed against McKay, now the mayor, accused him of violating the state’s public records law by responding directly to a records request rather than following the usual procedure of a response from city staff.

Cicotte, the temporary ethics officer, said in his reports that none of the four complaints made a sufficient case to move forward to a hearing.

He also questioned whether the complaints even fell under a section of the ethics policy that are subject to a review by the ethics officer.

He interpreted the city policy as saying the policy gives an ethics officer authority over allegations of prohibited conduct, but not the ethical standards section that was the basis for the recent complaints.

In addition, the Washington state Open Public Meetings Act gives the responsibility to rule on open meetings violations to Superior Court judges and no complaints were filed in court, he said.

He made a similar finding for possible public records violations, saying that the Washington state Public Records Act gives jurisdiction to a judge but that no complaint was filed in court.

There may have been violations of the ethics policy’s transparency standard caused by McKay’s direct response to a request for records but both possible violations would be “inadvertent and minor,” Cicotte said.

The ethics complaint also said that “rules of process” were violated at the January 2020 meeting.

But Cicotte found that the council reserves the right to determine during meetings whether improper action has been taken and that was not done at the meeting.

Ethics accusations

A majority of council members are not allowed by state law to discuss council business outside of council meetings, whether in person or electronically. It could constitute a “serial” meeting hidden from the public’s eyes.

But McKay contacted five council members, which is a quorum, to get other council members to sign the ethics complaint against Britain, Britain alleged.

In addition, McKay said during the Jan. 7, 2020, council meeting that he had contacted all council members to give them an opportunity to sign the ethics complaint against Britain, according to the complaint.

Then during the meeting, McKay conducted more signature gathering even though that was not on the agenda, the complaint said.

McKay turned in the ethics complaint to the city clerk early in the Jan. 7, 2020, meeting.

The public records accusation against McKay accused him of bypassing the city’s public records officer when local government watchdog Roger Lenk, who died recently, filed a request for city documents in early 2020 related to the ethics complaint against the mayor, according to the new ethics complaint.

Britain said McKay went to Lenk’s house and let Lenk download emails, which included city documents, from his email account.

However, McKay said he was trying to be helpful and put emails that were public documents on a flash drive and took them to Lenk to fulfill Lenk’s public records request in the spirit of open government.

But he says now he should have let the city’s public records officer handle the request.

If Lenk had access to McKay’s email account he could have deleted email when he reviewed them, which could violate standards for conducting city business, Cicotte found. However, there was no allegation that happened.

In addition, McKay failed to retain a record of emails selected by Lenk, but the city could reasonably assume that all emails were copied and create a required list of public records disclosed, Cicotte said.

Both of those might be inadvertent or minor violations of the ethics policy, he said.

Response to complaints

At the end of December, Britain posted on his election Facebook page that “Bill McKay is one of the most judgmental, dishonest, and perjurious persons to ever serve on the Kennewick City Council.”

Lee called the ethics complaint something of a “Hail Mary pass to the community” so residents would know they have to pay close attention to the council’s new dynamic.

McKay told the Tri-City Herald that the complaint made nearly two years after the meeting in question and just before Britain and Lee left office was “obviously a case of sour grapes.”

McKay said that he learned shortly after the 2020 meeting that he should not contact a quorum of other council members and admitted then that what he had done was wrong.

Trumbo, contacted by the Tri-City Herald, said all he knew was that McKay contacted him about the ethics complaint but he would not have known who else McKay might have contacted.

Any discussion of the complaint at the council meeting two years ago before it was submitted would have taken place out of his hearing, he said.

Beauchamp said he was not sworn in as a new member until the council meeting on Jan. 7, 2020, so any communication with him before the meeting would not count as part of a council quorum.

Two previous complaints have been filed under the ethics policy, one against Trumbo, which was upheld, and the one against Britain, which was dismissed.