Ethics Commission rules that Sawant’s use of city copiers doesn’t violate Ethics Code

Today Wayne Barnett, Executive Director of the Seattle Ethics and Elections Commission (SEEC), published a finding that Council member Kshama Sawant did not violate the city’s Ethics Code by directing her staff to use city-owned copying machines to generate materials for a rally she organized to promote the head tax.

Apparently (but not surprisingly) Barnett received multiple complaints about Sawant’s use of the copiers, which also received press attention and a rebuke from one of her colleagues. He issued his finding as a form letter reply to those who submitted complaints.

It’s important to point out up-front that the SEEC’s job is not to determine whether a city official behaved ethically or not; rather, its job is to determine whether a particular action by an official violated the city’s Ethics Code.  The Ethics Code is a law — officially part of the Seattle Municipal Code — both requiring and prohibiting specific conduct, and violating it invokes specific penalties also outlined in the law. As such, it’s critical (and a legal requirement) that investigations and findings are done “by the book” and to the letter of the law; it’s a well-established legal principle that if a reasonable person can’t determine whether she or he is breaking a law because of lack of specificity in how it’s written, then that law is invalid.

The relevant section of the Ethics Code, SMC 4.16.070(B)(2), states that an individual covered by the Ethics Code may not:

Use or attempt to use, or permit the use of any City funds, property, or personnel, for a purpose which is, or to a reasonable person would appear to be, for other than a City purpose, except as permitted by Section 4.16.071; provided, that nothing shall prevent the private use of City property which is available on equal terms to the public generally (such as the use of library books or tennis courts), the use of City property in accordance with municipal policy for the conduct of official City business (such as the use of a City automobile), if in fact the property is used appropriately; or the use of City property for participation of the City or its officials in activities of associations that include other governments or governmental officials;

Barnett explains in his letter the standard the SEEC uses to determine whether a use of city resources is for a city purpose, as articulated in an opinion from 2006. First, the SEEC tries to find explicit authorization of the use in an ordinance, resolution, executive order, or departmental rule. If there is explicit authorization and the action doesn’t violate state or federal law, then it is indeed for a city purpose. Conversely, if it is explicitly prohibited then it can’t possibly be for a city purpose.

However, if there is no explicit authorization or prohibition, then the question becomes whether the person who authorizes the use is acting within her or his scope of authority in doing so, and whether it is inconsistent with an official City action.

Barnett found no explicit authorization for the use of city resources to organize and/or create materials for Sawant’s rally. But according to Barnett, “Councilmember Sawant was, however, acting within the scope of her authority when she determined that the rally was a tool she could use to advance her position in support of the EHT… Elected officials have no supervisor beyond, of course, the residents of Seattle. Unlike a department employee, there is no process for a Councilmember to submit a planned expense to a supervisor for review and approval. The scope of a Councilmember’s authority is broad, limited only by the City Charter and City, State and Federal laws, and there is no evidence that [Sawant] exceeded that authority.”

Barnett ends his ruling with two points. First, the people who raised the complaint may appeal his ruling to the full SEEC under Rule 4 of its Administrative Rules. Second, he reminds us that he is only making a ruling about the application of the Ethics Code, and he makes “no judgment as to whether the use was prudent.” That question will ultimately be answered by the voters of District 3, if Sawant run for re-election next year.