Peter J.

Eglick
eglick@ewlaw.net

September 12, 2019

Via Email

Greg Overstreet Heidi Greenwood

Security Services Northwest, Inc. City Attorney
250 Center Park Way City of Port Townsend
Sequim, WA 98382 250 Madison Street, Suite 2
greg@ssnwhq.com Port Townsend, WA 98368
hgreenwood@cityofptus.com

Mr. David Faber

Faber & Feinson
210 Polk St., Suite 1
Port Townsend WA 98368
david@faberfeinson.com

Re: Joseph D’Amico Complaint vs. David Faber

Dear Counsel:

Thank you for your patience. As noted previously, I had a long-planned summer
vacation when this matter arose and when I returned found myself unexpectedly beset with
litigation matters, as can happen. Now that I have had an opportunity to review and reflect on
the materials as a whole, this letter will constitute my decision. That decision is to dismiss the
D’Amico Complaint for the reasons explained below.

1. The Complaint is Dismissed Because it Does Not Satisfy the PTMC Prerequisite
That it Set Forth Specific Facts With Precision and Detail .

As noted in my in my July 31, 2019 letter, incorporated here by reference, PTMC Code
2.80.050.A requires “precision and detail” in an ethics complaint. The letter gave
examples of how the D’Amico Complaint allegations did not appear to meet this
standard. However, rather than dismissing the Complaint at that time, the letter offered
Complainant the opportunity to provide the missing “precision and detail.”

Complainant’s July 31, 2019 response took issue with this approach, arguing that the
PTMC 2.80.050(B) reference to “assuming all facts alleged are true…” means that the

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truth of D’Amico Complaint allegations that did not meet the “specific facts with
precision and detail” requirement nonetheless had to be assumed as true.

However, the argument that all complaint allegations must be assumed to be cognizable,
true facts is unreasonable when a complaint does not meet threshold PTMC requirements
for facts set forth with precision and detail. Dismissal of an ethics complaint under the
PTMC should not be judged using a Civil Rule 12(b)(6) standard. Complaints under the
Civil Rules are commonly understood to be held to a lenient “notice pleading” standard.
In contrast, the PTMC sets a more rigorous bar: “specific facts with precision and detail.”
The suggestion that it is the obligation of the City’s Ethics Hearing Officer to conduct an
investigation at City expense even when allegations do not meet the PTMC standard for
ethics complaints could turn this process into a tool for harassment underwritten by
taxpayers.

Therefore, the D’Amico Complaint is dismissed in its entirety because it does not satisfy
the PTMC prerequisite that it set forth relevant specific facts with the required “precision
and detail” and it was not supplemented to do so even when requested by the Ethics
Hearing Officer.

2. The Complaint is Also Dismissed Pursuant to PTMC 2.80.050.B Because There Was
No Violation of the Ethics Code and if There Was A Violation It Was Minor.

The D’Amico Complaint alleges there is some “political animus” between the
Complainant and/or his family and/or the Short Estate and Councilmember Faber. But it
also acknowledges that this is not a violation of the Ethics Code. As the D’Amico
Complaint states, violations depend on provisions in RCW Ch. 42.23 which have been
adopted into the City’s Code of Ethics. The Complaint alleges three particular violations
of the RCW/PTMC standards. Each of the three alleged violations relates to the
following background.

The D’Amico Complaint alleges that Councilmember Faber represented Holm “in
litigation over the boundary between the two properties [Holm and William Short
Estate].” It alleges that “Faber essentially lost the case” and “was angry.”

In his response to the D’Amico Complaint, Councilmember Faber’s August 4, 2019

description of the boundary litigation relies (except for Mr. Holm’s final payment of his
attorney’s fees, which is presumably not part of the Court record) on the superior court
cause number file:

I represented Silas Holm in the defense of a quiet title/adverse possession

action brought by the Estate of William Short (the “Short Estate”) under
Jefferson County, Washington State Superior Court Cause Number 16-2-
00202-1 (the “Quiet Title”). I appeared on behalf of Mr. Holm on 21

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November 2016 and final action was taken in that matter on 6 December
2017, the date on which the Short Estate made payment in satisfaction of a
monetary judgment awarded to Mr. Holm. On or about that same date —6
December 2017— Mr. Holm paid his final invoice to my law firm and my
representation of him concluded.

The D’Amico Complaint also alleges that the City filed an abatement lawsuit concerning
the Short Estate property. The City has provided pleadings from that lawsuit reflecting a
superior court complaint dated March 9, 2017 in Jefferson County Superior Court Cause
No. 18-2-00013-16. The City legal file also shows that it filed two liens dated November
29, 2017 concerning the Short Estate property. A City Motion for Summary Judgment
and supporting materials filed in January 2018, show the abatement lawsuit was preceded
by a long history of nuisance (as defined in the law) problems on the Short Estate
property extending back to 1997 including violation of a 2016 Voluntary Compliance
Agreement. No mention of Holm or Councilmember Faber could be found in the City’s
abatement lawsuit’s filings.

City Council Minutes reflect that on June 3, 2019 the City Attorney brought before the
City Council a proposed Resolution concerning the Short Estate enforcement matter:

Resolution 19-042 Authorizing and Directing the City Manager to

Sign a Settlement Agreement with the Estate of William Short

City Attorney Heidi Greenwood explained Council involvement in this

particular code enforcement action as detailed in the agenda bill. She
fielded questions around the potential sale of property and options of
recovering the costs associated with completing a clean up.

Public comment:
Attorney for the estate, Chuck Henry, spoke about the nuisance properties
and the family's efforts to do their best to clean up the properties.
During Council deliberation, Mr. Timmons explained Council's role to
accept or reject but not to negotiate the settlement terms. Ms. Greenwood
addressed additional questions about the lifting of liens once the clean up
has been accomplished, associated clean up costs, and code enforcement.

Motion: Deborah Stinson moved to approve Resolution 19-042

Authorizing and Directing the City Manager to Sign a Settlement
Agreement with the Estate of William Short. Robert Gray seconded.

Vote: motion failed, 1-5 by voice vote, with Pamela Adams, David Faber,
Amy Howard, Michelle Sandoval, Deborah Stinson opposed.

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The video recording of City Council consideration of the proposed resolution shows an
engaged and knowledgeable discussion by Councilmembers including various policy
perspectives on whether the proposed settlement’s financial forbearance was appropriate.
Councilmember Faber’s participation in the discussion was unremarkable and
comparable with that of his colleagues. Per the public record the City Council ultimately
overwhelmingly voted against a motion to authorize the settlement.

Complaint Violation 1: The D’Amico Complaint alleges a violation of the standard

incorporated by the PTMC from RCW 42.23.070(1) in that Faber obtained special
privileges for Holm. However, the broad-brush allegation does not explain what “special
privilege” to Holm was afforded, for example, by the City Council’s decision against the
proposed settlement Resolution or for that matter from the City’s prior enforcement
efforts. Even assuming Holm was in favor of the Council action and even assuming that
Councilmember Faber represented Holm at any significant juncture, the D’Amico
Complaint simply does not explain what “special privilege” for Holm was involved and
none can be discerned.

The D’Amico Complaint Violation 1 is therefore also dismissed because there was no
violation and/or any violation was minor.

Complaint Violation No. 2: The D’Amico Complaint alleges a violation of the standard
incorporated by the PTMC from RCW 42.23.070(3) concerning acceptance of
employment which the official might “reasonably expect” could entail disclosure of
confidential information. The argument is apparently that Councilmember Faber served
in a “dual role as attorney for Holm” and as a Councilmember was involved in “deciding
how much to fine the Estate and whether to reject the City Attorney’s proposed
settlement on the abatement action…” The allegations again are speculative and broad-
brush. It is unexplained how or why the Councilmember’s representation of Holm in a
2016 boundary dispute would end up in inducement to disclose or disclosure of
confidential information about the City’s “litigation and negotiation strategy” with
reference to the 2019 Council decision about the City’s settlement of the Short Estate
enforcement matter.

The D’Amico Complaint Violation 2 is therefore also dismissed because there was no
violation and/or any violation was minor.

Complaint Violation 3: The D’Amico Complaint alleges a PTMC violation based on

RCW 42.23.070(4) :

By serving a dual role as the attorney for Holm, and a City Council
member deciding how much to fine the Estate and whether to reject the
City Attorney's proposed settlement on the abatement action, Faber used
confidential information about the City's bargaining position to benefit

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his client, Holm, and because Faber was paid to do so, Faber used such
information for his personal gain.

The recording and minutes of the June 3 Council session reflect that the Council was not
deciding how much to fine the Estate; it was deciding on an up or down basis whether to
authorize a particular settlement Resolution placed on its Agenda by City staff (“During
Council deliberation, Mr. Timmons explained Council's role to accept or reject but not to
negotiate the settlement terms.”). In any event, the alleged Violation 3 is again little more
than a bare stab. Even assuming that, although denied by Councilmember Faber, Holm was
Councilmember Faber’s client in May and June 2019, the nexus between the Council 5-1
decision to not authorize the settlement and use of confidential information for benefit to
Holm and gain to Faber is not apparent or explained, particularly in light of the City’s
longstanding history concerning the Short Estate property. The Council’s June 3, 2019
discussion reflects concern about the policy implications of the settlement in light of
community concerns, but again there is no indication of attention to Holm’s particular
interests in the public record. The bare Violation 3 accusation does not even begin to offer
supporting facts on how Holm inappropriately benefitted or Faber improperly gained by the
City Council’s decision.

The D’Amico Complaint Violation 3 is therefore also dismissed because there was no
violation and/or any violation was minor.

3. Additional Complaint Allegations and Innuendos Do Not Support the Alleged

Violations.

While not necessarily called out as specific bases for separate alleged violations, the
D’Amico Complaint includes several innuendos that will be addressed here for the sake of
completeness.

 The D’Amico Complaint complains that “Faber did not disclose his
representation of Holm before, during, or after the vote.” This assumes of
course that a disclosure of representation of Holms in 2016 litigation concerning
a private boundary dispute or otherwise was required on a vote concerning a
City abatement action settlement in 2019. Such a vote is not subject to the RCW
Ch. 42.36, the codification of Washington’s Appearance of Fairness Doctrine
applicable to quasi-judicial land use decisions. However, the RCW 42.36.080
time limitation is suggestive here where the public record reflects that the Short
Estate counsel who was opposite Councilmember Faber in the 2016 boundary
litigation appeared before and commented to the Council on June 3, 2019, but
did not raise any objection to Councilmember’s Faber’s participation.

 The D’Amico Complaint could be read as implying that the City’s abatement

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action, brought by the City Attorney after what were described as years of
concern about the nuisance state of the Short Estate property, had no merit and
was brought as a result of “influence” by Councilmember Faber. However, the
record of the abatement proceeding and the June 3, 2019 Council recording
reflect a longstanding City concern about the property.

 Per my July 31, 2019 letter, already incorporated by reference, the D’Amico
Complaint includes allegations such as “Faber has made it known…”, “Faber is
using his status on the City Council to leverage…”. These are potentially
serious allegations. And, presumably information must have been “made
known” in some reportable way. However, while the D’Amico Complaint’s
wind-up is tantalizing, the delivery fails. For example, if Councilmember Faber
has made something known, then the Complainant should be able to provide
specific information starting for example with known to whom? The refusal of
the Complainant to provide such information, while insisting that the ethics
hearing officer conduct an investigation, is troubling.

In summary, the D’Amico Complaint is dismissed for all of the reasons stated above. I am
assuming that per PTMC 2.80.050 the City Attorney will provide a copy of this letter decision,
which constitutes my report, to the City Council.

Sincerely,

Peter J. Eglick
City of Port Townsend
Ethics Hearing Officer
cc: Amber Long (along@ cityofpt.us)

1000 Second Avenue, Suite 3130 Seattle, Washington 98104

telephone 206.441.1069 • www.ewlaw.net • facsimile 206.441.1089