Hearing officer spikes ethics complaint

Saying an ethics complaint filed by a Homer recall supporter “borders on the frivolous,” an Anchorage administrative law judge last Friday dismissed a complaint filed by Larry Zuccaro against former Homer City Council members David Lewis and Catriona Reynolds and current council member Donna Aderhold. Zuccaro was one of the sponsors of a petition to recall Aderhold, Lewis and Reynolds that ultimately failed at the ballot box.

“Mr. Zuccaro’s complaint is without merit in all respects,” wrote Andrew Lebo, the hearing officer who heard the complaint. “Respondents committed no ethical violations when they fulfilled their duty as council members and voted to certify the recall election.”

Zuccaro alleged that because the three were subject to the recall they should have declared a conflict of interest, and thus they violated Homer’s ethics code when at a June 19 meeting they voted to certify the recall election. He also claimed Lewis violated the ethics code when he seconded a motion to certify the election. In a special election held June 13, all three council members easily defeated an attempt to remove them from office. Lewis and Reynolds chose not to run for re-election and served out their terms in October.

Lebo, the hearing officer hired by the city to hear the ethics complaint, delivered his dismissal in an 11-page decision released on Dec. 1. Zuccaro filed his complaint on July 31, and the three council members chose to make the complaint public at a case planning conference in September. The parties filed their briefs in late October.

“I feel very, very relieved that I’m exonerated and vindicated. That’s closure,” said Reynolds in a phone interview from New Orleans, where she attended a conference for her job as executive director of Kachemak Bay Family Planning Clinic.

“What this says to me is the city’s process, and municipalities across the state, have been upheld,” Aderhold said. “The process we follow, all of us being able to vote on certifying results of the canvass board, is appropriate. We will continue to do that.”

Contacted through his Anchorage lawyer, Molly Magestro of the law firm Holmes, Weddle &Barcott, Zuccaro did not return several phone and email requests for comment. Zuccaro also did not answer the contact phone number listed in his complaint.

Lewis cited a paragraph in Lebo’s decision in which the hearing officer criticized Zuccaro’s brief for focusing on underlying political issues rather than on the requirements of the ethics code. Lebo called that “wholly improper” and said it leaves the impression that the code was being used as “a political weapon.”

“It was being used as a political weapon rather than its intended purposes,” Lewis said. “And we kicked their butts again. It’s just another one down, another one to go.”

Lewis referred not just to the recall defeat, but to a July 3 ethics complaint filed by Heartbeat of Homer, the political group that organized to recall the council members. After Sarah Vance, a Heartbeat of Homer spokesperson, made the complaint public by releasing it to KBBI Public Radio News Director Aaron Bolton, Lebo dismissed that complaint because it violated confidentiality. Under city code, ethics complaints remain secret unless the respondents choose to waive privacy. Aderhold, Lewis and Reynolds waived confidentiality for the July 3 complaint after it was dismissed and later for Zuccaro’s complaint. Zuccaro’s complaint was almost word-for-word the same as the original complaint written for Heartbeat of Homer by attorney Stacey Stone, also of Holmes, Weddle &Barcott.

Heartbeat of Homer also challenged a city decision not to seek attorney’s fees for an unsuccessful lawsuit Aderhold, Lewis and Reynolds filed against the city seeking to have the recall petition overturned. They claimed the grounds cited in the recall violated their First Amendment rights to freely express themselves as public officials. Anchorage Judge Erin Marston rejected that claim, saying the city and state’s recall statutes gave broad discretion to voters on determining if the grounds for a recall were sufficient. The American Civil Liberties Union Alaska assisted the council members in their suit.

Zuccaro and recall petition co-sponsors Lari Fancher and Michael Fell alleged Aderhold, Lewis and Reynolds were unfit for office because they sponsored Resolution 17-019, what they called an “inclusivity” resolution and recall proponents said was a “sanctuary city” resolution. That resolution failed 5-1, with Reynolds voting yes. In his complaint, Zuccaro alleges that by voting on Resolution 17-064, “acknowledging the results of the city of Homer Special Election held June 13, 2017,” the three council members violated Homer City Code 1.18.030(b)(1), which says “no city official or the City Manager shall participate in any official action in which: 1) the person is the applicant, a party or has a substantial financial interest in the subject of the official action.”

Aderhold noted that she, Lewis and Reynolds also voted on a special resolution to hold the recall election against them. No one raised an issue of conflict of interest in that vote.

In his decision, Lebo considered if by voting to certify the results of the election, the council members were parties to the action. “At first blush the answer appears to be ‘yes,’” he wrote, but then noted that the official action they voted on wasn’t the recall election itself, but certification of the election, with the official parties being the Canvass Board and the City Clerk. The council members didn’t play any role in verifying the election results.

“Because Respondents were not ‘parties in the subject of the official action,’ as contemplated by the code of ethics, their action in certifying the election did not constitute an ethics violation,” Lebo wrote.

For the sake of argument, Lebo also considered that if the council members had been parties to an official action, they still had no discretion to do anything but certify the election results. City code says “The council shall certify the results of the election,” Lebo noted. He said their action was ministerial, meaning an action they had to do as required by law, rather than discretionary, an action they had an option to make.

Andy Haas, the lawyer for Aderhold, Lewis and Reynolds who represented them in the ethics complaint, noted that the city council has certified numerous elections in which a council member was a party, either running for re-election or for mayor. For example, former council member and now Mayor Bryan Zak and Lewis both voted to certify the mayoral election in which Zak won and Lewis lost.

“To put it in historical context, whenever there is an election and one council member stands for re-election, they would theoretically have a conflict of interest,” Haas said.

Haas looked at city elections going back to 1986 and found no record of anyone claiming a conflict of interest in such cases.

“They’ve been doing the same thing that has been going on for all that time,” he said. “The language said ‘they shall certify it.’ They thought it was nondiscretionary, that if they didn’t do so would be a problem.”

In his brief, Zuccaro argued that by not abstaining the council members created “an appearance of impropriety” that in itself is an ethical violation. In a supplemental brief, Zuccaro claimed the council members violated the ethics code by failing to disclose an alleged conflict at the June 19 meeting. Lebo said this disclosure was obvious: each council member was identified by name in a roll call at the meeting and the three were listed by name in the election certification resolution.

“All of the relevant facts were fully, publicly disclosed on the record prior to the vote,” Lebo wrote.

By couching his complaint in the political context of the recall election, Zuccaro used the ethics code for political purposes, Lebo wrote.

“Either a conflict exists or it doesn’t; politics has no place in that analysis,” Lebo wrote. “If there is any ‘appearance of impropriety’ in these events, it is in the apparent misuse of the ethics code to further political pursuits.”

Aderhold said she plans to review with Homer City Manager Katie Koester and Homer City Clerk Melissa Jacobsen an issue raised by Lebo: the lack of a definition in city code of what are ministerial duties.

“That is something I do plan to look at … Is it appropriate we make that distinction here?” Aderhold said. “Even without that, this decision clearly states this was a ministerial vote and we were in the clear doing what we did.”

Koester said that when the council passed Ordinance 17-06 allowing ethics complaints to be decided by a hearing officer, the city estimated a hearing would cost between $4,000 and $5,000. Haas represented the council members pro bono, or without charge.

Reach Michael Armstrong at michael.armstrong@homernews.com.