If the Seattle City Council attempts to change the City’s Ethics Code to allow council members to vote on bills for where they have a clear financial conflict of interest, don’t say I didn’t warn you. 

According to a recent email, the Seattle Ethics and Elections Commission (SEEC) Director Wayne Barnett is responding to questions from the City Council’s legal counsel Lauren Henry about potential legislation to lower ethical standards. This proposed change would allow council members to simply disclose their financial conflicts of interest before voting on related legislation—a departure from the current policy requiring recusal in such situations unless the conflict is shared by a substantial portion of constituents.

The suggestion comes weeks after a heated email exchange between Council President Sara Nelson and Barnett, with Henry carbon copied, in which Nelson seemed to dispute Barnett’s decision to ask former Council Member Tanya Woo to recuse herself from a vote on Nelson’s rollback of the recently established gig worker minimum wage, which ultimately killed the bill. Nelson denied directing Henry to ask Barnett about potential changes to the Ethics Code, but her office did not respond when I presented them with records and asked if she directed Henry to inquire with Barnett and if she would support such a change.

Nelson “Stymied” By Ethics

On September 6, Nelson emailed Barnett, CC’ing Henry and her Chief of Staff Jeremy Mohn, to “request formal clarification about the provision in the Ethics Code that requires recusal on matters where an official – or a covered person – has a financial interest.”

She explained that Barnett prompted her request in part by asking Woo to recuse herself from her legislation despite a split opinion from the Ethics Commission. But primarily, Nelson felt “motivated by the likelihood that the question of ‘financial interest’ will surface again within the context of potential future legislation,” including zoning changes in the Comprehensive Plan and landlord tenant law. I previously reported that a third of the council potentially had conflicts of interest when voting on renters’ issues.

Nelson wrote that she’s concerned that Barnett’s ruling did not “strike a balance between preventing personal interests from affecting a Councilmember’s official actions while at the same time not preventing a Councilmember from participating in a matter where an alleged financial interest is too remote or speculative to justify legitimate skepticism about the integrity of an official’s participation.” She worried he might issue future rulings with which she disagreed with. 

Nelson continued for another two pages about the flaws she saw in Barnett’s request for Woo to recuse herself, but Barnett doubled down on his argument. 

“The crucial factor in the advice I gave CM Woo was her statement to me—which she reiterated in her appearance before the Commission—that after the minimum wage bill for app-based workers went into effect, and the apps imposed a fee, her family restaurant had seen a significant decline in the number of small orders.  That is the link between the matter and CM Woo's financial interest,” Barnett wrote in a September 10 email.

Nelson, who addressed Barnett’s email point by point in a September 29 response, wrote that she’s “no expert” but she believes the “effect of the current law would seem immaterial to a determination that she must recuse herself.” However, that ignores the fact that financial loss or gain is relative, making the current law super material. 

Later in Barnett’s September 10 email, he stated the City Council should make changes to the code, not the commission. He chalked up Nelson’s concern to her “frustration with the fact that the Ethics Code has stymied a fair amount of legislation right now.” He assured her that for his past 20 years on SEEC, he believed the commission to be duty bound to “interpret the language of the law as written fairly and consistently, not to further or thwart anyone's agenda.” 

Nelson did not like that.  

“Projecting frustration as a motive for my request is unwarranted because I made clear I’m looking forward to potential future legislation when the need to determine its effect on a CM's (or other covered persons) financial interest might come up again,” Nelson wrote to Barnett on September 29. “I also said (see highlight) I was using CM Woo’s case as an example for why clarification would be helpful – basically because clarity aids code compliance and will minimize accusations of violations. I'm disappointed you don't see that, choosing instead to misconstrue, personalize, and frankly debase my intent.”

On October 4, Barnett responded to Nelson, stating that he strives for a “plain meaning” interpretation of the Ethics Code. He reiterated his reasoning regarding Woo and apologized for attributing her concerns  to “frustration.”

As of a record search for communications between Barnett and the City Council dated through November 14, it appears that Nelson and Barnett did not discuss the Ethics Code further over email.

A Work Around

On November 6, Barnett emailed Henry, to tell her that he thinks “there is room for potentially amending the Ethics Code,” so that elected officials only have to disclose their conflicts of interest in legislation, a change from the current requirement for elected officials to recuse themselves from votes wherein they have a conflict of interest. The email claims Henry asked him about it — “You’ve asked me to detail my thinking on the interaction between the Ethics Code and the legislative process,” Barnett wrote.

In the email, Barnett argued that disclosing conflicts could sufficiently remedy conflicts since the legislative process is “very public” in nature. He suggested that voters, armed with this information, have the power to “act on what they learn,” meaning they can either recall council members or vote them out in the next election.

Barnett provided an example. He said he advised Nelson and Council Member Woo to recuse themselves from Council Member Joy Hollingsworth’s now-withdrawn bill to permanently enshrine the tip punishment system. 

“I did that with some discomfort, because the Ethics Code is in tension here with basic democratic principles,” Barnett wrote to Henry. “On a matter that concerns many people, we are excluding some people from the decision-making. And with our small City Council, we are potentially tilting the playing field to benefit one side of the debate.”

He continued, “Moreover, we are taking the review of the matter out of the hands of voters, who at regular intervals get to pass judgment on their elected leaders, and oust them from office if they believe they have prioritized their own interests over the public’s.”

He closed, “So long as an elected official’s interest in legislation has been disclosed, in writing, I believe it would be appropriate to leave it to their constituents to pass judgment on their participation.  I look forward to working with you and others to explore adding this to the Ethics Code.”

Council Members have previously advocated to lower their ethical standards. In 2016, the council first considered a bill to allow members to vote on bills for which they have conflicts of interest, so long as they disclose those conflicts. The bill was introduced at the recommendation of Barnett who advised former Council M Sally Bagshaw to recuse herself from a vote on the proposed waterfront Local Improvement District (LID). Bagshaw lived within the proposed LID area and had a financial interest in taxes levied in the area and how the potential increase in her property value due to the new infrastructure, SCCI wrote. 

At the time, Barnett told then-Council Member Bruce Harrell’s Education, Equity & Governance Committee that recusals undermined the representation intended by the council’s district system, as opposed to a body of at large positions. He worried that a council member’s financial conflict could silence their district's voice on a particular issue, even though every Seattleite technically has three representatives because of the two at-large positions. 

Proponents of the rule change also questioned whether strict recusal rules made sense for a body so small. With a third of the City Council potentially having conflicts of interest related to tenant law as landlords or immediate family of landlords. This could prevent action on an important issue, though, given this context, Barnett mentioned the “Rule of Necessity.” The rule is a legal doctrine that allows a decision maker to make a decision even if they would normally be disqualified due to bias or prejudice.  It’s based on the idea that it is better for a biased individual to make a decision than for no decision to be made at all.

According to Seattle City Council Insight (SCCI), the council had a contentious debate over the bill. You can potentially thank then-Council Member Tim Burgess for killing it. Before the scheduled final vote, Burgess circulated a memo arguing that “the disclosure standard does not meet the stated intent of the Council in SMC 4.16.020 that ‘public office not be used for personal gain.’” Burgess continued, writing that to disclose does not “cure” the public’s perception of a council member’s conflict of interest: “Quite the contrary, the proposed change allows a Councilmember with an actual conflict of interest to disclose that fact and then vote, a deeply troubling lowering of our ethical standards,” he wrote.

Burgess also directly addressed Barnett’s argument. He wrote, “It’s been suggested that this change in Seattle’s standard is necessary because of the voters’ decision to establish City Council districts, but I don’t believe the voters ever intended their actions to be interpreted as a desire to lower city government’s ethical standards. Nor do I believe that the argument addresses the potential for harm to the appearance of fairness in our decision making process.” 

According to SCCI, the council re-referred the bill back to committee where it lay dormant for two years. The council revisited the issue briefly in 2018 before the clerk retired it. 

If the council revisits the proposed change to the Ethics Code, the legislation would likely go through Nelson’s Governance, Accountability & Economic Development Committee. Again, she has not confirmed her support of changing to a disclosure standard. The change could benefit her   — without fear of losing votes to conflicts of interest, Nelson would be able to reintroduce her repeal to the gig worker minimum wage, the tip-punishment system Barnett wanted her to recuse herself from, and change tenant laws. 

But if she introduced the bill, I can’t say it would reflect well on her. She earned a reputation as somewhat of a tyrannical council president with a history of disregarding norms and even the will of the voters. An attempt to rewrite the Ethics Code to let her and the other financially conflicted council members pass her unpopular legislation could further damage her already fragile position in the upcoming election.