Hession won’t disclose opinion used in Flint case

Mayor Dennis Hession said Wednesday he will not release a legal opinion he used to conclude that the city’s new ethics code does not apply to a former public works and utilities director who recently took a job with one of the city’s largest public works contractors.

Hession on Wednesday said the opinion, which is still in draft form, is an attorney-client “work product,” and as such, is exempt from public disclosure under the state’s open records act. He said he was not inclined to release the opinion even after it is submitted in final form.

Earlier this month, the Neighborhood Alliance of Spokane County asked the city’s ethics committee to investigate the departure of former Director Roger Flint, who has become Spokane area manager and vice president for CH2M Hill, an international engineering firm with more than $4 million in contracts with the city.

The mayor last week responded to the complaint by saying, in part, that the city’s ethics policy – adopted by the City Council in January and signed by Hession – does not apply to Flint because Flint’s personal services employment contract with the city predated the adoption of the ethics ordinance.

That assessment apparently would also apply to as many as 19 other top non-union staffers, who had signed personal services contracts with the city several years ago.

Union employees were specifically exempted by the ethics ordinance unless their unions reach agreement with the city to bring them under the ordinance in any new labor contracts.

Hession said he will seek to include union employees when their contracts come up for renewal.

As a result, there are few – if any – employees who apparently can be held accountable to the new ethics policy. Only Hession, the City Council and volunteer members of boards and commissions are governed by the new law under the city attorney’s assessment.

Earlier this week, The Spokesman-Review filed a formal request for the legal opinion Hession used to interpret the ethics code and was told it was not yet available. Then, on Wednesday, city officials told newspaper staff that the document wouldn’t be released.

In a prepared statement, Editor Steven A. Smith of The Spokesman-Review said, “This is not about embarrassing Mayor Hession or making his life any more complicated than it is. To us the issue is simple. The City Council enacted an ethics ordinance at the urging of Spokane citizens.”

“The mayor has declared that the ordinance doesn’t apply to more than a dozen high-ranking city employees and cites a city attorney’s opinion as the basis for that conclusion. But then he refuses to release that opinion to the citizens of Spokane who rightly want to know why an ordinance enacted in good faith now is partially neutered. Frankly, refusing to release a city attorney opinion under such circumstances is absolutely mind boggling and uncharacteristic of a mayor who came into office promising a more open and ethical administration,” Smith said.

The newspaper now will pursue every legal means to obtain the opinion.

Breann Beggs, attorney for the Neighborhood Alliance, said that if Hession is relying on an opinion by the city attorney to make a policy decision, then that opinion probably has become a public document distinct from an attorney-client work product.

Beggs said that top staffers such as Flint are at-will employees, and they can be asked to sign updated contracts that include compliance with the ethics policy as a condition of employment.

The new law calls for formation of a seven-member ethics committee to enforce the new law, but in the three months that the law has been in effect, the mayor has not submitted any appointments to the City Council. Earlier this week, the city sent out a press release seeking volunteers for the committee.

Hession said he wants to bring all employees under the law but has taken no action to change contracts, in part because of a high work load in the office he assumed last December following the recall of former Mayor Jim West.

Beggs said, “Their contracts should already be updated.”

The city’s new ethics policy prohibits former city employees from engaging in business for one year in any matters or actions that they had been involved in while on the city payroll. The idea is to avoid even the appearance of impropriety, as well as prevent inflated bids or behind-the-scenes deals.

Flint and CH2M Hill said Flint will have no oversight role in CH2M Hill’s work with the city, including a large contract to upgrade the city’s wastewater plant. That contract is handled by another branch of the large CH2M Hill operation, Hession said last week.

Beggs, an attorney at Spokane’s Center for Justice, filed the complaint over Flint on behalf of the Neighborhood Alliance.

His complaint said that Flint, by applying for the CH2M Hill job, may have violated the ordinance’s general prohibition against engaging in activities that might be seen as a conflict with official duties.

In a response, Assistant City Attorney Milt Rowland said the complaint “strains credulity and the English language to suggest that merely asking for a job creates an interest in an existing contract.”

Beggs said the complaint seeks to have the still-nonexistent ethics committee review the case. “The reason we made a public complaint is because the city didn’t seem to get it,” he said.

But once a new ethics committee is in place, it might be able to review the Flint situation. Hession said the ethics committee will operate independently, and that “I don’t have a choice” whether the committee takes the case or not.