The following letter was sent to the Port of Olympia Commissioners by the signer below and is published verbatim.
Port of Olympia Commissioners
606 Columbia Street NW, Ste. 300
Olympia, WA 98501
Date: May 2, 2022
RE: Unsupported Assertions and Missing Analysis in the March 11, 2022 Memorandum: Potential Conflict of Interest – Investigation, Research, and Recommendations
Port of Olympia Commissioners,
Background: In January 2022, I filed a Conflict of Interest complaint with the Port of Olympia regarding Commissioner Amy Evans. Evans admitted a conflict of interest in 2021, due to her role as a Kidder Mathews real estate agent brokering the Panattoni deal with the Port. WA State law prohibits conflicts of interest by elected officials, and requires the port to fully investigate the matter. If Evans or the port violates RCW 42.23.070, they could be liable for financial, civil, and/or criminal penalties – and any port contract made in violation may be void.
Over three months later, the Port released a memorandum from Chmelik, Sitkin, and Davis, which investigated the conflict of interest complaint (hereafter referred to as “Memo”).
The memorandum acknowledges Evans has a conflict of interest, in the absence of a waiver.
However, the memorandum is deficient in the most important respect because it does not provide the commission with evidence, let alone proof, that Evan’s self-declared conflict of interest does not exist and does not continue. The memorandum can be best reduced to: Based on an asserted waiver of financial interests, the terms of which we do not show to the Port, let alone show to the citizens of Thurston County, and for which waiver we supply no information about its implementation, if any, by Kidder Mathews, this memorandum concludes there is now no conflict of interest.
First, there is no evidence that Evans has no conflict of interest. No documents describing the relationship between Evans and Kidder Mathews are produced.
Second, even if Evans declined payment for the port deal she brokered with Kidder Mathews, Commissioner Evans’ ongoing gift to the agency is a conflict of interest, as explained below.
The Memo does not meet the requirements of RCW 42.23, including a full investigation.
Brief conclusion: As the Memo suggests, the only way the Port can protect the citizens of Thurston County is to ask Evans to leave the Commission or to sever all ties with Kidder Mathews. “The no risk option going forward would be to utilize the services of a different real estate broker.” (Memo p.15.)
Finally, the Port must recall that any real estate contracts made in connection with Evans’ conflict of interest may be found void. To protect Thurston County taxpayers, Evans should be immediately recused from all real estate matters at the port, and likely removed from office.
Is There a Waiver?
The March 11, 2022 memorandum (Memo) asserts without any support that “Commissioner Evans waived her financial interest in the contracts prior to assuming office.” (Memo, p.5.) However, the Memo also states, “The waiver should be memorialized to make clear that Commissioner Evans will receive no compensation as a broker for Kidder Mathews under contracts with the Port for the duration of her term of office.” (Memo, p.6.) In other words, the Memo states the asserted waiver is not written (not “memorialized”), and if the Memo’s authors (the Chmelik law firm) know the terms of the asserted waiver they are not sharing the terms.
On the other side of Evans’ circumstances, the authors of the Memo do not know the terms of the contract that bind Kidder Mathews and Evans. Also, the Memo is completely silent on any description of Kidder Mathews’ understanding and implementation of the asserted waiver. The most the Memo musters on this topic is an “understanding” unsupported with evidence, “Based on our understanding, Commissioner Evans has not received any payment in connection with the Option Agreement or the Brokerage Agreement.” (Memo, p.3.) Apparently, no inquiry was made to Kidder Mathews. The investigation, as presented in the Memo, is fundamentally incomplete.
The essential basis on which the Memo relies to support its most important conclusion, that Evans now has no financial interest in the Port’s agreement with Kidder Mathews, exists only in an un-memorialized waiver, the terms of which are not provided. Furthermore, without any indication that the Memo’s authors have examined Evans’ contract with Kidder Mathews’’ response to Evans’ asserted waiver, the Memo asserts that Evans now has no financial interest in the agreement. There appears to be no evidence to support this assertion.
Is There a Violation of RCW 42.23.070(2)?
The January 2022 complaint raised the possibility of a violation of RCW 42.23.070. The Memo addressed only one of the four subsections of RCW 42.32.070; the Memo did not examine whether Evans gave a gift prohibited by subsection 2. The asserted waiver, if effective, would appear to have the effect of giving money earned by Evans to Kidder Matthews—contrary to RCW 42.23.070(2).
As the Memo explains the application of RCW 42.23.070, subsection two prohibits “giving or receiving any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law. (Memo p.4, italics added.) Evans, the Memo concludes, has given a waiver of her financial interests to Kidder Mathews, accordingly, it is reasonable to state that Evans thereby gifted her financial interest in the agreement to Kidder Mathews and that gift is from a source other than the Port.
The first gift of the asserted waiver may have been given by Evans before she began service on the Commission (the Memo provides no date for the waiver), by declining money she had already earned for the Panattoni deal prior to being sworn in. However, there is no analysis of whether the gift of Evans’ financial interests to Kidder Mathews is ongoing, that is, will occur during Evans’ service on the commission every time the Port takes an action that results in additional payment to Kidder Mathews.
The alleged waiver is likely an ongoing gift if it relieves Kidder Mathews of any obligation to compensate Evans over the period Evans is on the Commission during the effectiveness of the Option agreement. If the gift is ongoing then Evans has a conflict even if she gifted her commission earned before swearing in.
The Memo is silent on the issues raised by subsection 2 of RCW 42.23.070. The lack of any analysis whatsoever means the Port cannot know if there is a violation of a statute for which there are no exceptions.
The basic assumption on which all of the Memo’s conclusions sit is that there is an effective waiver - but the Memo does not produce the waiver, its terms, or an analysis of the terms or analysis of the implementation of the terms, if any, by Kidder Mathews.
The lack of an examination of effect of RCW 42.23.070(2) on Evans’ ongoing service leaves the reasonable conclusion that the subsection is likely violated by Evans’ gift of her financial interest to Kidder Mathews (if indeed she has in all respects effectively eliminated her financial interests in the brokerage agreement).
The extensive legal analysis is useless because the analysis assumes things which the Memo does not provide (an effective waiver, its terms, and the existence and details of the implementation), and avoids altogether a legal analysis of RCW 24.23.070(2).
All of the above means the Memo does nothing to meet the Port’s obligation to determine if there is an ongoing conflict of interest now that Evans is serving. Any use of the Memo by the Port will be nothing more than a fig leaf to cover its failure to obtain an actual investigation of the basic issues posed by Evans’ service.
Carla Wulfsberg, Tumwater
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