Pierce County Ethics Commission 2522 North Proctor Street #184, Tacoma. Washington 98406 Findings of Fact, Conclusions of Law, and Initial Determination Ethics Complaint ~1ch lb Oi Complainants: Referral from the Pierce County Human Resources Department; loan K. Mell Alleged Ethics Code Violator: Mark Lindquist, Pierce County Prosecuting Attorney Findings of Fact 1. Complainant, the Pierce County Human Resource Department, commissioned attorney Mark Busto to investigate two Whistleblower complaints, with the complainant alleging misconduct on the part of the Pierce County Prosecuting Attorney, Mark Lindquist. Mr. Busto prepared a detailed report. The Busto report was referred to the Pierce County Ethics Commission by the complainant for possible Ethics Code violations on the part of Mr. Lindquist. 2. The referral is not presented in the manner contemplated by the Ethics Code, in that no speci?c violation is alleged and no Ethics Code section is cited as having been violated (see Ethics Code section 3.12.080). 3. After the Busto report was referred to the Ethics Commission, complainant Joan Mell filed a complaint with the Ethics Commission citing to the Busto report. 4. Additionally, Jeffrey Helsdon as counsel for Recall Mark Lindquist ?led unsolicited material with the Ethics Commission not meant to be a complaint but to assist the Hearing Officer. 5. The Hearing Of?cer has struggled with the problem of how to keep the matters confidential as required by the Ethics Code yet at the same time produce Findings of Fact and Conclusions of Law that dispose of all issues in one place and at one time. The Ethics Code offers no solution. The Hearing Officer has determined to treat the Human Resources Department and Ms. Mell as complainants in a single complaint. Mr. Helsdon will not be considered a complainant but the issues he raises will be considered by the Hearing Officer in that they are an inseparable part of the total package. 6. The Hearing Officer looks first at the referral of the Busto report to the Ethics Commission. By referring the Busto report to the Ethics Commission the Hearing Of?cer is, in effect, invited to "find the After reviewing the Busto report, reviewing numerous other documents and interviewing witnesses it appears that the most plausible violation of the Ethics Code concerns Mr. Lindquist's legal representation, at no expense to Lindquist, by attorney Stewart Estes in the case of Nissen v. Pierce County. Free Attorney 7. Although there is a serpentine history behind the Nissan case, it can be described in these ?ndings as a Public Records Act demand by Ms. Nissen against Pierce County wherein Ms. Nissen asked for, among other items, all telephone records including text messages from Mr. Lindquist?s personal phone. 8. Deputy Prosecutor Dan Hamilton represented Pierce County. Mr. Hamilton and his fellow deputy prosecutors say they urged Mr. Lindquist to intervene in the litigation to protect Mr. Lindquist's privacy rights as well as the privacy rights of all county employees. Mr. Hamilton states and Mr. Lindquist con?rms that Mr. Lindquist was reluctant to intervene and withheld his consent. 9. Mr. Hamilton says he continued to "work" Mr. Lindquist. Additionally, Mr. Hamilton solicited attorney Stewart Estes to represent Mr. Lindquist in the litigation. Mr. Hamilton asked Mr. Estes to represent Mr. Lindquist pro bono. Mr. Estes agreed. Both men state that there was no discussion nor promise of future employment by Pierce County for Mr. Estes. Both men further state that the issues raised in the case were of considerable interest to them and to the public employees whose interests they often represented. 10. For about one year Mr. Estes worked on the Nissan case without being offered any other Pierce County cases. Eventually, however, he was offered other cases and from those cases generated fees for his firm in excess of $500,000. Both Mr. Hamilton and Mr. Estes are adamant that when Mr. Estes agreed to the pro bono representation of Mr. Lindquist there was no tacit understanding for a later quid pro quo in the form of future cases. 11. The issue presented is whether the pro bono representation to Mr. Lindquist is a gift of services prohibited by the Ethics Code (see Conclusions of Law). 12. Some of the facts that help determine whether or not the code has been violated are as follows: (it should be noted that some of these facts point to a violation and some suggest no violation. Facts suggesting the texts served a public purpose support the argument that the use of a pro bono attorney is not an ethics violation. Facts supporting a private purpose have the opposite effect.) The two attorneys who negotiated the pro bono representation state that there was no promise of future business made to Mr. Estes. The fact that future cases and significant fees were later obtained by Mr. Estes are 'circumstantial evidence that perhaps there was a "wink and a nod" exchanged between Mr. Hamilton and Mr. Estes in regards to future employment and thus a tacit understanding that Mr. Este would receive future business. The county and Mr. Lindquist argue that the text messages are private and not subject to public disclosure. If this is true, Mr. Lindquist is arguably not allowed to accept the free services of an attorney. Ms. Nissen's side argues the messages are public and thus subject to disclosure. If so, Mr. Lindquist is arguably allowed to accept the free services of an attorney. Mr. Lindquist intervened in the case, he was not forced to become a party. if) Mr. Lindquist intervened only after considerable pressure from Mr. Hamilton and allegedly to better protect not only his own rights but also the rights of public employees generally. Arguably, an elected prosecutor is almost always on duly. Thus, a prosecutor may still be acting in a public role even when talking about political features of the criminal justice system. It has even been suggested that ?extrajudicial prosecutor statements may also support the familiar principle that speech promotes the discovery of truth? Fordham Law Review vol..58, Issue 5, pg.880. if this proposition is accurate it tends to weaken Mr. Lindquist?s position in the litigation but strengthen his position with regard to the ethics violation because it supports a finding that the text messages were public. The services were not related to any pending county action in which Mr. Estes had an interest. The services were of benefit to other county employees not just to Mr. Lindquist and were in relation to a particularly controversial legal question. Estes Invoices 13. A further concern with regard to Mr. Estes representation of Mr. Lindquist is a claim that contrary to the agreement to represent Mr. Lindquist pro bono, Mr. Estes was paid for two invoices he submitted for work done during the time he was to have been acting pro bono. 14. The invoices in question are dated May 19, 2014 and January 7. 2015. They were approved for payment by deputy prosecutor Denise Greer. 15. It is claimed that the invoices are for work performed in Ms. Nissen's Public Records Act case against Pierce County wherein Mr. Estes represented Mr. Lindquist pro bono. 16. Ms. Greer avows that the invoices relate to possible future litigation and not the Public Records Act case. Amicus Brief 17. Directing deputy prosecutors to work on an amicus brief and hiring an attorney to help with the brief is an additional allegation that must also be evaluated. 18. An amicus brief is a brief filed not by a party to a lawsuit but by someone with an interest in the issues and as the latin name suggests, who is acting as a "friend of the court.? 19. The concern is that if work on an amicus brief is not within the official business of the person working on it the work becomes a misuse of county resources. (See Conclusions of Law). 20. There is no dispute that deputy prosecutors worked on an amicus brief and that Mr. Phil Talmadge was hired to assist. 21. No authority has been found by the Hearing Of?cer and none has been provided for the proposition that it is an improper use of county resources for a deputy prosecutor to assist with an amicus brief or to hire an attorney to assist with the brief. To the contrary, a United States Supreme Court Rule anticipates and has reference to such cooperation. (See Conclusions of Law). Logic also dictates that there should be no violation where, as here, the work performed on the amicus brief augments the briefing done by the deputy prosecutors. Misc. 22. The Busto report examines numerous other areas of concern. Some of the allegations involve: Vengeful use of impeachment or "Brady" evidence; maintaining an enemies list and unjust treatment of the attorneys and others who are on the list (the so called "confederacy of dunces?); Public Records Act violations; labor relations violations; abuse of authority; vindictive prosecution; rewards and the withholding of rewards based on perceived loyalty to the Prosecuting Attorney; and prosecutorial misconduct. County Property 23. Three final areas of concern raised by Ms. Mall and discussed at great length in the Busto report are that Mr. Lindquist is obsessed with generating positive publicity for himself and exerting control over the local political scene. The allegation is that these concerns occupy great amounts of employee and prosecutor time and amount to a waste of public resources. Similarly, it is claimed that Mr. Lindquist?s vindictive actions designed to punish perceived enemies and reward allies also causes a waste of public resources. Conclusions of Law 24. The Pierce County Code of Ethics is found in Chapter 3.12 of the Pierce County Code. The Ethics Code deals with a narrow field of conduct. Many forms of conduct which the public might generally consider "unethical" or "improper" are addressed elsewhere under federal, state, or county law, but are not covered by the Code of Ethics. 25. The Hearing Officer for the Pierce County Ethics Commission makes an initial determination whether probable cause exists to believe that a violation of the Ethics Code has occurred. Sec. 3.12.080.C. The Hearing Of?cer and the Commission have jurisdiction only over violations of the Ethics Code itself. Free Attorney 26. The Ethics Code states: "No County officer or County employee may accept anything of value for a matter connected with or related to the officer's or employee's services as such officer or employee unless otherwise provided for by law." Sec. 3.12.030.G. 27. The Ethics Code defines "anything of value" as the voluntary rendition of services of any kind.? Sec. 3.12.020.A. 28. Mr. Estes rendition of pro bono legal representation to Mr. Lindquist in the Nissen case was something of value related to Mr. Lindquist's employment as Prosecutor. The remaining question is whether or not Mr. Lindquist was allowed to accept those services. 29. In general, an individual public employee does not have a right to legal representation at government expense. However, the Pierce County Code provides: "Pierce County agrees, as a condition of employment or acceptance of services to defend upon proper request, all civil claims or civil actions for damages brought or maintained against its of?cers, employees and/or volunteers arising out of the acts, errors or omissions in the performance or good faith attempt to perform, the official duties of said of?cer, employee or volunteer." PCC 2.120.010. 30. The county's willingness to defend is meant to be a shield not a sword and a free attorney would not ordinarily be available to an employee who voluntarily intervened in a legal action. However, the prosecutor is generally understood to have the authority to establish trial strategy and tactics when defending the county. RCW 36.27.020. Thus, the county may choose to arrange for legal representation of an intervening employee if the presence of that employee advances the county's interests. Here, the county did perceive that it had an interest in preserving the privacy rights of its employees as long as those rights could be reconciled with the pubiic's right to transparent government conduct. The county determined that its strongest position would be with Mr. Lindquist as a litigant. Since Mr. Lindquist was, in effect, a draftee rather than a volunteer the county determined that his intervention would advance a county objective and secured a pro bono attorney to represent him. 31. The representation by Mr. Estes of Mr. Lindq'uist clearly bene?ted both Mr. Lindquist and the county. No case law and no provision of the Ethics Code suggest how to determine the dominant benefit when the service provided benefits the public interest of the county and the private interest of the individual employee simultaneously. A 2001 advisory opinion from the State Executive Ethics Board provides some guidance. That Opinion suggests some of the following be considered: Did the employee solicit the gift? Did the provider of the gift have any county action pending against them at the time of the gift? Is there the appearance of an intent to influence a pending county matter? Does the gift when broadly viewed appear tailored to primarily benefit the public or the individual employee? 32. Finding of Fact #12 illustrates some of the factors used to determine whether the primary benefit from the pro bono representation of Mr. Lindquist was private or public. 33. The factors set out in Finding of Fact #12 and the totality of the circumstances clearly support and I, therefore, conclude that the dominant benefit of the pro bono representation of Mr. Lindquist was public rather than private. Estes Invoices 34. The next question concerning Mr. Estes' representation of Mr. Lindquist is whether the invoices submitted bv Mr. Estes and approved for payment by Ms. Greer were for work on Ms. Nissen's Public Records Act case or on a separate matter. 35. Review of the documents themselves does not resolve the issue. 36. Simply put, Ms. Greer is in the best position to know the purpose of the Invoices. I conclude that the invoices were for an unrelated matter. In any event, this issue has little bearing on the ethics issues. Amicus Brief 37. The Pierce County Ethics Code provides: "No person and no County personnel shall use, request, or permit the use of County employee services during County time except in the conduct of of?cial business.? Section 312030.12. 38. The critical question is whether or not a deputy prosecutor's work on an amicus brief is part of his or her "official business." The same question is posed when an attorney is hired by the deputy prosecutor to work on the amicus brief. 39. United States Supreme Court Rule 37.6 says in part: a brief ?led under this Rule shall indicate whether counsel for a party authored the brief in whoie or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief While the Rule does not answer the question posed in these Findings and Conclusions it does acknowledge that work on an amicus brief by a party and a corresponding amicus is cooperative in nature. 40. In the absence of further authority, the Hearing Officer concludes that work on an amicus brief or the hiring of an attorney to work on an amicus brief is "of?cial business." Misc. 41. The concerns set out in Finding of Fact #22 are not covered by the Ethics Code. 42. The concerns set out in Finding of Fact #23 of politicizing the office and self?promoting and vindictive behaviors are hard to fit into the Ethics Code. While the Code does deal with misuse of county resources under limited circumstances it does not deal with waste of resources per se. Even if waste of resources was addressed there is no practical way to quantify the lost resources or otherwise measure the impact of the claimed behaviors. Finally, while Mr. Busto says in his report: "Lindquist spends a substantial amount of lime focused on attempting to shape the media?s coverage of himself and the PCPAO and, the amount of time and effort Lindquist expends ?to secure favorable media coverage? is greater than previous Pierce County Prosecutors and more than any other elected official the TNT deals with." He also says 'In sum, i do not find that Lindquist has exercised ?undue influence over media coverage." With neither a proper legal basis under the Ethics Code nor suf?cient factual support these alleged acts fail as Ethics violations. 43. One allegation deserves special comment, The Busto report states; find that the allegations in the Merrival Complaint are true and undisputed: the PCPAO encouraged DPA's to become more active in the Bar. Farina emailed DPA's to encourage them to vote in TPCBA elections and identi?ed who from the office was running, senior leaders offered to take ballots to the Bar of?ce, and, the names of DPA's who voted in the SAU were listed on a white board to pressure them publicly to vote.? Ethics Code Section 3.12.030.1.1 states: ?No person and no County personnel shall: 1. Use, request or permit the use of County motor vehicles, equipment, materials, or property, except in the conduct of of?cial business." 44. The Ethics Commission has previously found that an individual using county property while on county time to formulate election strategy is a violation of the Ethics Code. Here, the Prosecutor?s message encouraging his employees to involve themselves in Bar Association of?ces and activities was itseif laudable. The overly enthusiastic and heavy?handed methods employed, such as listing on a white board those who had not voted in the Bar election, were not appropriate. However. Mr. Lindquist maintains, and there is no factual basis to assume otherwise, that Mr. Lindquist did not direct or knowingly permit the activity. While a Prosecutor is generally responsible for the activities of his deputies, there needs to be some scienter on the part of the Prosecutor to support an ethical violation. The Ethics Code is designed to promote proper conduct by county employees not to trap the unwary or uninformed. I do not find that Mr. Lindquist requested or knowingly permitted the activity. 45. The job of the Hearing Officer is to determine whether or not probable cause exists to believe a violation of the Ethics Code has taken place. Sec. 3.12.060A 46. Probable cause is de?ned as a reasonable belief in the existence of facts on which a claim is based. The test is objective. Black's Law Dictionary [10th ed. 2014). Probable Cause 47. The Busto report is replete with concerns that would trouble any citizen. There are a variety of avenues to address those concerns. it is, however, my conclusion based on the findings set out herein that probable cause does not exist to believe that Mark Lindquist has violated the Ethics Code. In Dated this day of February, 2016. FEW gins?wegg?f Tom Felnagle Hearing Officer Pierce County Ethics Commission