RES 2011-22 ADOPTING A PROCESS TO HANDLE A PETITION SEEKING THE REMOVAL OF A COMMISSIONERRESOLUTION NO. 2011-22
A RESOLUTION of the City Council of Bainbridge Island,
Washington, adopting a process to handle a petition seeking the
removal of a commissioner from one of the City's independent
commissions.
WHEREAS, the City has, in BIMC Chapter 2.28, adopted a civil service system based
on RCW Chapter 41.12;
WHEREAS, under state law, members of the, Civil Service Commission may be
removed from office only for incompetency, incompatibility or dereliction of duty, or
malfeasance in office, or other good cause; and
WHEREAS, state law also provides that no member of the commission shall be removed
until charges have been preferred, in writing, and due notice and a full hearing had; and
WHEREAS, the City has two other independent commissions, the Salary Commission
and the Planning Commission, whose members also may only be removed for good cause; and
WHEREAS, state law does not specify, and the City has not adopted, a process to handle
a petition seeking the removal of the member of an independent City commission; and
WHEREAS, the City Council intends to adopt a process to handle a petition seeking the
removal of a commissioner from any of its three independent commissions that meets the
requirements of state law and is both efficient and fair; now, therefore,
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND DOES RESOLVE AS
FOLLOWS:
Section 1. Form of Petition
a. A petition seeking the removal of a commissioner from an independent City
commission must be typewritten and include the name of the commissioner it
seeks to remove and the specific facts and grounds alleged to warrant the
commissioner's removal from office under the law applicable to that
commissioner.
b. The petition shall state the act or acts complained of in concise language and give
a detailed description, including the approximate date, location, and nature of
each act complained of.
c. The petition must be signed under penalty of perjury by the person making the
charge and include the petitioner's post office address. The petitioner must verify
under oath that the person believes the charges or charges to be true and has
knowledge of the alleged facts upon which the stated grounds for removal are
based.
Section 2. Definitions
a. "Malfeasance" means any wrongful conduct that affects, interrupts or interferes
with the performance of official duty. Malfeasance also means the commission of
an unlawful act.
b. "Dereliction of duty" means the neglect or knowing failure by a commissioner to
perform faithfully a duty imposed by law.
c. "Incompatibility" means that the commissioner holds two offices or positions the
nature and duties of which are such as to render it improper, as a matter of public
policy, for one person to retain both.
Section 3. Procedure
a. The petition shall be filed with the City Clerk who shall promptly serve a copy of
the petition upon the commissioner whose removal is demanded.
b. The City Council will review the petition to determine whether there appears to
be a sufficient factual basis to establish, by clear and convincing evidence,
grounds for removal of the commissioner.
1) If the City Council determines there is not a sufficient basis for removal of
the commissioner, the Council shall dismiss the petition.
2) If the City Council determines that there may be a sufficient basis for
removal of the commissioner, the respondent shall be so informed and the
matter shall be referred to the Hearing Examiner for a hearing.
3) The City Council's determination shall define and determine the scope of
issues to be considered by the Hearing Examiner. The City Council shall
prepare a charging document that will be forwarded to the Hearing
Examiner. The charging document will state the specific allegations that
the Hearing Examiner will address with findings of fact and conclusions
of law.
c. The City Council may, on its own motion, initiate, or add charges to, a petition for
removal of any commissioner.
d. The commissioner named in the petition may ask the City Council to provide him
or her with legal representation in the hearing. The City Council will, in its sole
discretion, determine whether and the extent to which it is in the city's interest to
provide such legal representation.
e. Within 30 days of the City Council's referral of the matter, the City's Hearing
Examiner shall conduct a hearing to determine whether, within the scope of the
Council's initial determination, there are grounds for removal of the
commissioner.
1) At the hearing, both petitioner and the named commissioner may appear
with counsel.
2) The petitioner and the named commissioner may present and cross
examine witnesses and give evidence before the Hearing Examiner. The
Hearing Examiner may also call witnesses and compel the production of
books, records, papers, or other evidence needed. To that end, the Hearing
Examiner may issue subpoenas and subpoenas duces tecum at the request
of the petitioner, named commissioner, or on his or her own initiative. All
testimony shall be under oath administered by the Hearing Examiner. The
Hearing Examiner may adjourn the hearing from time to time in order to
allow for the orderly presentation of evidence.
3) The Hearing Examiner or designee shall prepare an official record of the
hearing, including all testimony, which shall be recorded by mechanical
device, and exhibits; provided that the Hearing Examiner or designee shall
not be required to transcribe such records unless presented with a request
accompanied by payment of the cost of transcription.
4) In determining the factual sufficiency of a charge, the petitioner has the
burden of proving the facts by clear and convincing evidence.
5) Where a charge alleges the commissioner violated the law, the facts must
show the commissioner intended to violate the law. Where the
commissioner acted on advice of the City's legal counsel, intent to commit
an unlawful act cannot be shown.
6) The petitioner shall bear the burden of establishing legal sufficiency. A
charge is legally sufficient if the charge defines substantial conduct clearly
amounting to incompetency, incompatibility, dereliction of duty,
malfeasance in office, . or other good cause and there is no legal
justification for the challenged conduct.
7) Lawful, discretionary acts cannot serve as a basis for removal.
8) When a charge is premised on a vote taken by a commissioner, a petition
is legally insufficient if it merely attacks the judgment of the
commissioner.
f. The Hearing Examiner shall prepare findings of fact and conclusions of law.
1) If the Hearing Examiner determines that the charges in the petition are
both factually and legally sufficient, the Hearing Examiner shall forward
its findings and conclusions to the City Council for consideration.
2) If the Hearing Examiner determines that the charges are either factually
insufficient or legally insufficient then the petition will be dismissed and
no further action will be taken. A decision of the Hearing Examiner
dismissing a petition is a final order and may not be appealed.
g. If the Hearing Examiner has determined that the charges in the petition are both
factually and legally sufficient, the City Council shall, within 15 days, schedule a
public hearing to discuss the charges contained in the petition and vote on
whether to remove or retain the named commissioner.
PASSED by the City Council this 5th day of October, 2011.
APPROVED by the Mayor this J Z day of October, 2011.
By: --
irs en Hytopoulos, Mayor
ATTEST/AUTHENTICATE:
By: rP a eiL�. \[. 5"
Rosalind D. Lassoff, Cit Jerk
FILED WITH THE CITY CLERK: September 30, 2011
PASSED BY THE CITY COUNCIL: October 5, 2011
RESOLUTION NO. 2011-22