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Olympia Council members act in behalf of their Hearing Examiner

[The “Appearance of Fairness Doctrine” is crucial to preserving trust in decisions made by judicial officers. Dan Leahy recently filed a complaint showing that Olympia’s Hearing Examiner had violated the fairness requirement by failing to disclose his relationship with businesses near a proposed development. The letter below addresses Council members considering whether to act on the complaint. While the Hearing Examiner acknowledged his failure to disclose the relationship, the Council voted to reject the complaint, as recommended by staff.]

Council members:

I am writing to comment on your [Sept 14] agenda item #21-0871 titled: “Action on Complaint Against Public Officer—Hearing Examiner.”

The issue before you is not whether a majority of the Council has the authority to remove the Hearing Examiner. Your authority to do this is clear. Your staff cites OMC 18.82.60 in their report to you.

The issue before you is whether Attorney Mark Scheibmeir, the City’s Hearing Examiner, violated the Appearance of Fairness Doctrine in his Wellington Heights decision. My July 13, 2021 letter to you contends that he did because he failed to disclose his business relationships with the owners of two nearby parcels and car dealerships.

Therefore, the pertinent OMC is 18.82.080 (B). The staff did not cite this in their report to you. This OMC reads in part, “The Hearing Examiner shall conduct all proceedings in a manner to avoid conflicts of interest or other misconduct and to avoid violation of the Appearance of Fairness Doctrine.” (My italics). Under long-standing commonly accepted judicial precedents, Hearing Examiner Scheibmeir had a duty to disclose business relationships that could make a reasonable person wonder if Mr. Scheibmeir might have a conflict of interest. He breached his duty when he conducted the Wellington Heights hearing without disclosing these business relationships.

Your staff does not counter my argument that Mr. Scheibmeir violated the Appearance of Fairness Doctrine. They simply say I should have raised the issue at the time of or before the Hearing Examiner’s decision because “the information cited by Mr. Leahy is contained in public records available for inspection in 2018 and 2019.” The issue before you is whether Hearing Examiner Scheibmeir had a duty to disclose, not whether the information he should have disclosed is in the public record. Your staff’s approach flips the Appearance of Fairness Doctrine on its head. The staff would relieve the examiner of the burden of disclosure and place the burden on citizens to scour every public record.

It is the case that in June of 2021 while researching another project I discovered the relationship of Mr. Scheibmier with landowners and automobile dealers in close proximity to the Wellington Heights project he had approved. Approximately one month later, in a timely manner, I informed the City Council of my discovery.

Had Mr. Scheibmeir disclosed these relationships at the time he opened the hearing in 2018 then I would have known and could have made an argument on the merits as to why he should not have continued to preside. His failure to disclose these business relationships denied me and other parties of record the opportunity to argue on the merits.

Mr. Scheibmeir, in his letter to you, claims “uncertainty as to the nature of Mr. Leahy’s complaint” even though my letter clearly states my complaint is his failure to “to meet the appearance of fairness standard.” Surprisingly, in his three-page response to you, Mr. Scheibmeir does not mention the appearance of fairness doctrine once. This should be of great concern to you. You should expect a Hearing Examiner, before he ever convenes a hearing, to review the property owners in the vicinity to identify friends or business relations in order to protect the integrity and credibility of his decision-making.

I appreciate Mr. Scheibmeir’s respectful response to my letter, belatedly acknowledging his relationship with owners of nearby automobile dealerships. Mr. Scheibmeir states he did not see any connection between his decision and the owners of these properties, but the appearance of fairness doctrine is intended to notify third parties when the Hearing Examiner might appear to others to be in a situation where his fairness could be questioned. The appearance of fairness doctrine demands his disclosure of his business relationships with nearby property owners.

For the reasons stated above, I respectfully request the City Council to remove Mr. Scheibmeir as the City’s Hearing Examiner.

Dan Leahy

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