Amy Evans won election to the Port of Olympia Commission in 2021. Evans is a Vice-President at Kidder-Matthews (K-M), one of Thurston County’s most prominent commercial real estate firms, which has regular dealings with the Port of Olympia. Evans took the lead with K-M Senior V-P Evan Parker in negotiating one such deal in 2020, a lease between the Port of Olympia and Panattoni Development Company, an international real estate developer.
Since Evans would share in Kidder-Matthews’ $1.57 million commission, there were specific concerns about a conflict of interest. Evans proposed to allay those concerns by foregoing her commission. Now a resident has formally requested the Port investigate Evans’ relationship to the Panattoni lease and beyond that, whether Evans’ role as a real estate broker active in the Thurston County market would affect her ability to participate fully in the Port’s real-estate related decisions.
In a sector like real estate, where who you know is paramount and networking is everything, the likelihood of encountering conflicts would appear significant. As noted by a past Port Commissioner, the Port manages “hundreds of millions of dollars in public assets. Insiders and other friends of the Port can get better deals—especially in real estate and near the waterfront.”
Below are excerpts from a letter asking Port Commissioners to determine that Evans’ work on the Port will not be vulnerable to findings of conflict.
Port Commissioners:
Amy Evans was elected to the Port Commission in November 2021. In advance of election, Evans acknowledged she has an actual or perceived conflict of interest with respect to a Port Commission lease with the Panattoni corporation.
Evans wrote to The Olympian on October 24, 2021, stating: “I believed the perceived or actual conflict of interest was minimal[.]” Washington law does not permit self-identified “minimal” actual or perceived conflicts of interest; the existence of a conflict of interest is not judged by the size; and in this case there is evidence that Evans is due some or all of a real estate commission of approximately $1.57 million [associated with the transaction between the Port and Panattoni].
As a real estate agent or broker (who is also an attorney with ethical obligations) in the employ of Kidder Mathews, and as a port commissioner, Evans is not permitted to “be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his or her office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.”
In some circumstances a port district may let a commissioner keep the office and act as a commissioner when there is only a “remote” interest in conflict with a commissioner’s duties. …
The Port Commission has the responsibility to determine remoteness or the lack of remoteness, and thus also has the obligation to investigate and evaluate prior to reaching a conclusion on remoteness. A failure by the sitting Commissioners to investigate and evaluate fully the circumstances pertaining to a conclusion on remoteness would be both malfeasance and nonfeasance.
One indication of remoteness is compensation by fixed wage or salary. Agents and brokers traditionally are compensated through commissions. In the event Kidder Mathews now or in the future should switch Evans’s compensation (from commission to fixed wage, salary, bonus, or other compensation) it would be reasonable to conclude that it is the duty of the Commission to determine if the switch is for the purpose of evasion of the conflict-of-interest prohibitions of law, and it would be reasonable to place the burden on Evans to demonstrate that such a switch was not done to evade applicable prohibitions. …
If Kidder Mathews has an interest in present or future leases—including modifications or renegotiations during the 30-year length of the lease between the Port of Olympia and Panattoni—then Evans has an interest based on her relationship to Kidder Mathews.
Violations of chapter 42.23 RCW [Code of Ethics for Municipal Officers…] can have substantial consequences for the violator and for the Port [including voidance of contracts made, and forfeiture of office for the person with the conflict.] …there is a real risk that the Port (and therefore Thurston County residents), might suffer financially in the event that [Evans’] participation in any contract—not just a lease in which Kidder Matthews has an interest—is determined to be void under RCW 42.23.050 because she is in violation of any part of chapter 42.23 RCW.
In effect, the examination by the Port Commission of the conflict of interest to which Evans has admitted is also a test for the two sitting Commissioners. The sitting Commissioners have a duty to conduct a public investigation of Evans’ self-admitted conflict of interest and test her conflict and the duties she will assume as commissioner against all the requirements and prohibitions of chapter 42.30 RCW.
The first issue to be examined and decided by the sitting Commissioners is whether Evans should be permitted to participate in any Port business while her self-admitted conflict of interest might have implications for her ability to serve, and while the validity of contracts made with her participation before the application of chapter 42.23 RCW is determined, especially the application of RCW 42.23.050.
Carla Wulfsberg
January 7, 2021
As this issue was going to press, Works in Progress learned commissioners at the Port of Olympia voted 2-0 (Amy Evans excused herself from voting) to hire an independent investigator to determine whether a conflict of interest exists and if so, what steps should be taken to rectify the conflict both for the immediate issue of the Panattoni deal and Evans’ ongoing dual positions as a Kidder-Matthews employee and Port of Olympia commissioner.
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