BEFORE THE BOARD OF ETHICS FOR THE CITY OF TACOMA

Board of Ethics Complaint Nos. 2011- 002 and 2011-003

PRELIMINARY FINDINGS, CONCLUSIONS AND RECOMMENDED DISPOSITION OF BOARD OF ETHICS

In the Matter of the Complaints Against Mayor Marilyn Strickland

I. JURISDICTION AND PROCEDURAL HISTORY

1.1. This Board of Ethics (Board) has jurisdiction over these matters for

purposes of making findings of fact, conclusions of law and recommended disposition pursuant to (Amended) Tacoma Municipal Code (TMC) 1.46.045 F.1

1.2. On March 8, 2011, the City Clerk received an e-mail from John

Hathaway requesting a complaint be opened based on the contents of the March 8, 2011, 4:21 pm blog posting by News Tribune reporter Lewis Kamb, entitled "Did Tacoma mayor's trip to Asia violate ethics rules?" appearing at http://blog,thenewstribune.com/politics/20 11/03/08/didtacoma-mayors-china-trip-violate-ethics-rules/. The e-mail is appended

1 The City of Tacoma Code of Ethics, Chapter 1.46 TMC was amended by Ordinance 27973, effective date March 21, 2011. Because the conduct that is the subject of these Complaints occurred prior to the effective date of the amendment, the Board considered the allegations contained in the complaints according to the types of conduct prohibited in the prior version of the Code of Ethics at former TMC 1.46.030. However, the amended Code is applicable to define the process for the Board's evaluation of complaints; therefore these Preliminary Findings Conclusions and Recommended Disposition contain citations to both the amended Code and the prior Code.

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here as Exhibit A. Mr. Hathaway's e-mail was processed as a complaint alleging a violation of the Code of Ethics by Mayor Marilyn Strickland and was assigned Complaint No. 2011-002 and forwarded to the Board of Ethics on March 9, 2011 for consideration by the Board.

1.3. On March 11,2011, the City Clerk received a letter from Robert

Randle, also referencing Lewis Kamb's article regarding Mayor Strickland's trip to Asia as appeared in the March 9, 2011 edition of the News Tribune and requesting the Ethics Board look into the matter of whether Mayor Strickland's acceptance of frequent flyer miles from Mr. Ron Chow constituted a breach of ethics laws regarding acceptance of gifts. The letter is appended here as Exhibit B. Mr. Randle's letter was also processed as a complaint alleging a violation of the Code of Ethics by Mayor Marilyn Strickland and was assigned Complaint No. 2011-003 and forwarded to the Board of Ethics on March 14, 2011 for consideration by the Board.

1.4. The Board initially considered Complaints 2011-002 and 2011-003

in an adjudicative session of a duly noticed Special Meeting on March 24, 2011 and determined that further information was necessary to be presented for the Board to determine if a violation of the Code of Ethics had occurred. (Amended) TMC 1.46.045 F (2) (b) (ii).

1.5. The Board further considered Complaints 2011-002 and 2011-003

in an adjudicative session of a duly noticed Special Meeting on March 31, 2011 and finalized the precise nature of the additional information the Board deemed necessary in order to determine if a violation of the Code of Ethics had occurred. (Amended) TMC 1.46.045 F (2) (b) (ii).

1.6. In order to establish the factual record necessary to determine

whether a violation of the Code of Ethics had occurred the Board conducted an investigation in the form of written interrogatories issued to Mayor Strickland, to Mr. Ron Chow and also in the form of a set of written questions and requests for certain publically available information to be gathered by City Staff and provided to the Board.

1.7. The written interrogatories and the sworn testimony contained

therein, together with information requested to be gathered by Staff, are the bases of the Preliminary Findings of Fact contained in Section II below. The written interrogatories and responses of Mayor Strickland, of Mr. Chow and the information provided by City Staff in response to the Board's requests are deemed the Board's record of this matter and are appended to this Order as Exhibits C (Strickland), 0 (Chow) and E (City Staff).

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1.8. The Board further considered Complaints No. 2011-002 and 2011-

003 together with the record of this matter during deliberations conducted during an adjudicative session of a duly noticed Special Meeting on

April 27, 2011.

1.9. Following its deliberations, and for the reasons contained in these

Preliminary Findings of Fact and Preliminary Conclusions of Law, the Board reached a determination on Complaints 2011-002 and 2011-003 that the record establishes a single violation of the Code of Ethics by Mayor Strickland.

1.10. Pursuant to (Amended) TMC 1.46.045 F 3 (a) (ii), the Findings and

Conclusions issued herein are Preliminary in order that Mayor Strickland may, at her option, and within ten days of receipt of these Preliminary Findings and Conclusions, request a hearing before the Board of Ethics to present any additional testimony, statements or documentary evidence as may be relevant. Following any such hearing the Board of Ethics will issue Findings, Conclusions as to whether the Code of Ethics has been violated and a Recommended Disposition if applicable. (Amended) TMC 1.46.045 F 5.

1.11. In the event Mayor Strickland does not timely request a hearing

before the Board of Ethics under (Amended) TMC 1.46.045 F 3 (a) (ii), these Preliminary Findings and Conclusions of the Board of Ethics shall become the final Findings and Conclusions of the Board of Ethics and shall be forwarded to the City Council along with the Board's recommended Disposition contained herein for the City Council's consideration as directed by (Amended) TMC 1.46.045 F 6.

1.12. The facts found by the Board herein are by a preponderance of the

evidence before the Board.

II. PRELIMINARY FINDINGS OF FACT

2.1. Starting February, 24, 2011 Mayor Marilyn Strickland traveled from

Seattle to Seoul, South Korea, Shanghai, China and Fuzhou, China, returning on March 6, 2011 to Seattle.

2.2. Mayor Strickland's trip was in her capacity as Mayor of Tacoma

with the goal of promoting economic development and tourism opportunities in Tacoma to business and government and other civic leaders in the planned Asian destinations.

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2.3. The idea for the trip originated with Mayor Strickland and she

began to research and plan the trip at least as early as November of 2010, including researching the price of airfare to the planned Asian destinations.

2.4. Prior to 2011, Mayor Strickland had been invited, in her capacity as

Mayor, to attend several trade or cultural exchanges in other nations, including China and Korea, but she determined to wait until her second year in office before engaging in international travel on behalf of the City.

2.5. The World Chinese Merchants Association Union visited Tacoma in

December 2010. In January 2011 they invited Mayor Strickland to visit China between February and March 2011 to further discuss and to establish investment relations in Tacoma.

2.6. Ron Chow is a Lakewood resident, who is a native of China and

has business and government contacts in China and has organized trade missions to China for elected officials. He and Mayor Strickland are personal friends.

2.7. In January of 2011, after receiving roundtrip airfare cost estimates

from a travel agent, Mayor Strickland approached Mr. Chow to ask him whether he would be willing to use his frequent flyer miles to procure Mayor Strickland's airline tickets to the planned Asian destinations. Mr. Chow agreed to do so.

2.8. Regardless of whether Mr. Chow provided frequent flyer miles,

Mayor Strickland intended to, and did, seek Mr. Chow's advice and assistance with planning the trip, and request Mr. Chow accompany her on the portions of the trip involving travel to China for the purpose of assisting her with translation, with setting up meetings and making other contacts and for the purpose of assisting with protocol and ensuring she was properly escorted.

2.9. The Asia trip was not contingent upon Mr. Chow's provision of

frequent flyer miles. If Mr. Chow had not provided the frequent flyer miles, Mayor Strickland intended to explore other funding sources for the airfare to Asia, including exploring the possibility of redirecting City funds allocated for other instances of official travel in order to fund the Asia trip. Mayor Strickland may have postponed the trip to explore other funding options, but would not have cancelled the trip.

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2.10. The City's biennial budget, approved by the Council, has a total

amount set aside for Council travel. This amount would include any travel by Mayor Strickland.

2.11. Mr. Chow redeemed frequent flyer miles to obtain airline tickets for

the Asian destinations in Mayor Strickland's name, which Mayor Strickland redeemed by checking in with the airline under her name and by use of her passport.

2.12. No terms or conditions were attached by Mr. Chow to Mayor

Strickland's use of the frequent flyer miles, beyond the terms and conditions imposed by the fact that the miles were used to book a ticket to a particular destination, for a particular set of dates, under Mayor Strickland's name.

2.13. The trip was approved by the City Manager on February 16, 2011

by way of the City's travel authorization form required by the City's travel policy to be completed with estimated expenses prior to travel by the Mayor, or by any City personnel. The travel authorization form, approved by the City Manager on February 16, 2011 notes the Mayor's travel destination of "China/Korea", the travel dates of February 24-March 6, 2011 and the purpose of "meeting with key business leaders."

2.14. The travel authorization form for the Mayor's February 24, 2011 to

March 6, 2011 travel does not have an amount estimated for airfare; instead, the "common carrier" fare estimated amount field on the form is blank. The field entitled "departmental notes" is completed to indicate "trip is being paid by private company."

2.15. Members of the Council were formally informed of the Mayor's trip

during the course of the February 15, 2011 Council Committee of the Whole Meeting.

2.16. The Tacoma News Tribune published a blog posting on February

23, 2011 , describing Mayor Strickland's trip and stating the purpose of the trip to "promote Tacoma abroad" including by meeting with "various dignitaries in all three cities."

2.17. Mr. Chow joined Mayor Strickland for the Shanghai and Fuzhou

portions of the trip, carrying out functions such as interpretation, and introducing Mayor Strickland to business and government representatives in Shanghai and Fuzhou.

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2.18. Neither Mr. Chow nor any of his business entities have current or

pending business or financial relationships with the City of Tacoma.

2.19. Mr. Chow did not request or suggest any future business related

opportunities with the City of Tacoma be provided to him or any of his business entities in exchange for his provision of the frequent flyer miles, in exchange for or related to his role in Mayor Strickland's trip or for any other reason, nor were any future business related opportunities promised or provided to him in exchange for his provision of the frequent flyer miles, in exchange for or related to his role in Mayor Strickland's trip or for any other reason.

2.20. During the course of the trip Mayor Strickland met with various

business and civic groups and with potential investors for the purpose of cultivating relationships, promoting Tacoma and Tacoma's business climate and promoting potential business opportunities in Tacoma. Informational tools, such as a power point presentation were used by Mayor Strickland in her meetings with the various groups.

2.21. The City of Tacoma Travel Policy provides that the City of Tacoma

will pay reasonable and necessary expenses incurred by its employees while conducting City business. If it is a combined business and personal trip, the City will pay allowable business expenses incurred during the business portion of the trip.

2.22. The City Travel Policy dictates payment for allowable travel

expenses can be reconciled by reimbursement of expenses or by a travel advance.

2.23. Mayor Strickland did not receive an advance or request

reimbursement from the City of Tacoma for any of the expenses related to the trip.

2.24. Mayor Strickland received her salary during the time spent on the

trip.

2.25. Mayor Strickland was engaged in the conduct of official City

business on the trip.

2.26. The City Council has not passed an ordinance for the purpose of

accepting as a donation to the City the frequent flyer miles provided by Mr. Chow to Mayor Strickland, or their equivalent value in actual airline tickets or in cash.

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2.27. The Board of Ethics finds the provisions of (Prior) TMC 1.46.030 H

(Improper Use of City Position) and (Prior) TMC 1.46.030 K (Acceptance of Gifts) as well as the definition of "Gift" contained in (Prior) TMC 1.46.020 F applicable to the Board's analysis of the allegations contained in Complaints 2011-002 and 2011-003.

2.28. (Prior) TMC 1.46.030 H stated:

Improper Use of Position Prohibited. No City official

shall knowingly use his or her office or position to

secure personal benefit, gain or profit, or use his or her position to secure special privileges or exceptions for himself, herself, or for the benefit, gain or profits of any other persons.

2.29. (Prior) TMC 1.46.030 K stated:

Acceptance of Compensation Gifts. Favors. Rewards.

or Gratuity Prohibited. No City official may, directly or indirectly, give or receive, or agree to give or receive, any compensation, gift, favor, reward, or gratuity for a matter connected with or related to the City official's services with the City of Tacoma, except this prohibition shall not apply to:

1. Attendance of a City official at a hosted meal when

it is provided in conjunction with a meeting directly related to the conduct of City business or where official attendance by the City official as a City representative is appropriate;

2. An award publically presented in recognition of public service; or

3. Any gift valued at $50 or less, which cannot reasonably be presumed to influence the vote, action or judgment of the City official or be considered as part of a reward for action or inaction.

2.30. (Prior) TMC 1.46.020 F defined "Gift" as follows:

"Gift" means a voluntary transfer of real or personal property of any kind or the voluntary rendition of services of any kind without consideration of equal or greater value, but not including any reasonable hosting, including travel expenses, entertainment, meals, or refreshments furnished in

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connection with appearances, ceremonies and occasions reasonably relating to official City business, where otherwise permitted by law.

III. CONCLUSIONS OF LAW

3.1. (Prior) TMC 1.46.030 H, Improper Use of Position.

3.1 .1. Mayor Strickland's trip was for an official, not a personal, purpose.

She would have taken the trip regardless of the frequent flyer miles, and the availability and use of the frequent flyer miles cannot be said to transform an official trip into an event that provided personal gain or benefit to Mayor Strickland. The facts surrounding the provision and use of the frequent flyer miles do not establish a violation of the prohibition against a City official's use of his or her office to secure personal benefit gain or profit or to secure special privileges or exceptions for him or herself as was contained in (Prior) TMC

1.46.030 H.

3.1.2. Mr. Chow placed no terms or conditions on the transfer of the miles, beyond any imposed by the airline. Mayor Strickland would have requested Mr. Chow accompany her on the portions of the trip involving travel in China, regardless of whether Mr. Chow had provided frequent flyer miles. There is no evidence to establish that Mr. Chow or any of his business entities have received, been promised or expect to receive any favorable treatment from the City in connection with or in exchange for providing the frequent flyer miles, for accompanying Mayor Strickland on the trip or for any other reason. The facts surrounding Mr. Chow's provision and Mayor Strickland's use of the frequerit flyer miles do not establish a violation of the prohibition against a City official's use of his or her office for the benefit, gain, or profits of others, as was contained in (Prior) TMC 1.46.030 H.

3.1.3. No facts have been shown to establish a violation of (Prior) TMC 1.46.030 H.

3.2. (Prior) TMC 1.46.020 F and (Prior) TMC 1.46.030 K Acceptance of Compensation, Gifts, Favors, Rewards or Gratuity.

3.2.1. The frequent flyer miles at issue here were converted to a round

trip airline ticket from Seattle to Seoul, Shanghai and Fuzhou; therefore the frequent flyer miles have a fair market equivalent to the price of an airline ticket from Seattle to the Asian destinations; which is a value greater than $50.00.

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3.2.2. (Prior) TMC 1.46.020 F sets out as an exclusion from the definition of "gift" "reasonable hosting" in connection with "occasions reasonably relating to official City business" inclusive of items such as travel expenses. However, the "reasonable hosting" exclusion from the definition of "gift" contained in (Prior) TMC 1.46.020 F is modified by the clause "where otherwise permitted by law."

3.2.3. (Prior) TMC 1.46.030 K contains a ban on receipt of all gifts for matters connected with or related to the City official's services with the City. However, (Prior) 1.46.030 K 1, 2 and 3 contain exceptions to the ban on gifts including an exception for "any gift valued at $50 or less." (Prior) TMC 1.46.030 K 3.

3.2.4. The frequent flyer miles have a value in excess of $50 and, therefore, are not subject to the exception from the gift prohibition for those gifts valued at $50 or less, as was contained in (Prior) TMC 1.46.030 K 3.

3.2.5. Because the gift of the frequent flyer miles is valued in excess of $50, it is not a gift permitted by law, such that the "reasonable hosting" exception to the definition of gift, inclusive of items such as travel expenses, as was contained in (Prior) TMC 1.46.020 F, is not applicable here.

3.2.6. The frequent flyer miles are a "gift" under the definition of "gift" contained in (Prior) TMC 1.46.020 F. No exceptions or exclusions to the definition of "gift" apply, such that the frequent flyer miles constitute a prohibited gift under (Prior) TMC 1 .46.030 K.

3.2.7. Mayor Strickland received the frequent flyer miles in connection with a matter related to her official capacity as Mayor and in connection with her services to the City of Tacoma.

3.2.8. Mayor Strickland's receipt of the frequent flyer miles constitutes receipt of a prohibited gift under (Prior) TMC 1.46.030 K and is a violation of the City of Tacoma's Code of Ethics.

3.3. Municipal Authority to Accept Donations, RCW 35.21.100

3.3.1. The City of Tacoma has state law authority under RCW 35.21.100 to, by ordinance, accept any money or property donated to it and to carry out the terms of the donation, if there are terms and conditions

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attached, or to use the donation for any proper municipal purpose if no terms or conditions attached.

3.3.2. Had the City Council properly accepted by ordinance the frequent flyer miles as a donation from Mr. Chow to the City of Tacoma for the purpose of offsetting some of the cost of Mayor Strickland's City

related travel, the frequent flyer miles would not be considered a prohibited gift under (Prior) TMC 1.46.020 F and no violation of the City of Tacoma's Code of Ethics would be found.

IV. RECOMMENDED DISPOSITION

Based on the foregoing, the Board of Ethics makes the following recommendations to the City Council:

4.1 Upon these Preliminary Findings of Fact and Conclusions of Law

becoming final that the City Council:

4.1.1 Find that the record before the Board establishes by a preponderance of the evidence that a single violation the Code of Ethics occurred when Mayor Strickland accepted a gift prohibited by (Prior) TMC 1.46.030 K.

4.1.2 By majority vote of the Council request the Deputy Mayor issue an admonition, pursuant to (Amended) TMC 1.45.050 C 1 J to Mayor Strickland that all gifts or donations offered for the purpose of providing a benefit to the City as a whole, such as appeared the case here by offset of public expense for official travel, be placed before the City Council for acceptance by ordinance as authorized by RCW 35.21.100.

V. NOTICE OF OPPORTUNITY TO RESPOND

This document contains the Preliminary Findings, Conclusions and Recommended Disposition of the Board of Ethics. Mayor Strickland may request a hearing before the Board of Ethics for the purpose of presenting any additional testimony, statements, or documentary evidence as may be relevant. (Amended) TMC 1.46.045 F 3 a ii.

A hearing may requested by filing a written request for hearing with the Office of the City Clerk within ten days of the date this document is received by Mayor Strickland. The date of receipt is deemed to be the third business day following the date the document was served by certified mail by the City Clerk. A courtesy copy of this document will be served on Mayor

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Strickland bye-mail on the same date as the document is served by certified mail.

In the event Mayor Strickland timely requests a hearing, the Board will convene a hearing at the earliest opportunity. If a hearing is convened the Board may call additional witnesses or consider additional documentary evidence beyond any such witnesses or evidence presented by Mayor Strickland. Following any such hearing the Board will issue Final Findings of Fact, Conclusions of Law and Recommended Disposition, which will replace these Preliminary Findings of Fact Conclusions of Law and Recommended Disposition.

If no hearing is timely requested these Findings, Conclusions and Recommended Disposition will become the Board's Final Findings, Conclusions and Recommended Disposition and will be forwarded to the City Council as final for further action.

Dated this I Cj day of ____;",;.;1{..!..,;G..=t!'---_, 2011

City of Tacoma Board of Ethics

cc:

Mayor Marilyn Strickland City Attorney

John Hathaway

Robert Randle

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