Hearing Examiner's Decision On Fortson 2c6u3p

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OFFICE OF THE HEARING EXAMINER

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CITY OF TACOMA 4 5

In the Matter of: 6

CONDUCT COMPLAINT #08-05-374 CHINA FORTSON,

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

Appellant,

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vs.

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CITY OF TACOMA,

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Respondent.

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THIS MATTER came on for hearing before RODNEY M. KERSLAKE, the Hearing Examiner for the City of Tacoma, Washington, on July 12, 13, and 14, 2010, in Tacoma.1

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Appellant China Fortson2 was represented by Steve Downing, Attorney at Law. Respondent City of Tacoma, was represented by Deputy City Attorney Jean Homan.

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The captioned appeal was filed with the Office of the Hearing Examiner in March 2009. However, after being advised that the Pierce County Prosecutor’s Office had commenced a criminal investigation into the conduct of China Fortson in regard to the activities associated with her position with the City of Tacoma as a Domestic Violence (DV) Advocate, the parties agreed to hold the istrative appeal in abeyance pending the outcome of the criminal investigation and any charges which might result from that investigation. The Office of the Hearing Examiner was advised in about January of 2010, that the criminal investigation had been con cluded and that no criminal charges were filed against Ms. Fortson as the result of that investigation. This matter proceeded. China Fortson’s full is Gloria China Fortson but has, throughout these proceedings, been re ferred-to by the parties and witnesses as China Fortson.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-1City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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Witnesses were placed under oath and testified. Exhibits were itted and reviewed. Pre-hearing briefs were filed by the parties and oral argument was given by counsel at the

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conclusion of the proceedings. Counsels’ arguments were considered. 4

From the evidence in the hearing record, the Hearing Examiner enters the following:

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FINDINGS OF FACT:

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1.

This matter involves an appeal filed by China Fortson (Fortson) of the

determination made by Tacoma City Manager Eric Anderson (Anderson) that Fortson violated

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Tacoma’s City Code of Ethics, Tacoma Municipal Code 1.46, for misusing her official City 10 11

position and City funds to procure special privileges for Keisha Jackson. Exhibit R8. Ms.

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Fortson is the DV Advocate in the City’s Human Rights & Human Services (HRHS)

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Department.

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2.

In May of 2008, the City received a complaint from Deputy Pierce County

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Prosecutor Grant Blinn (Blinn) concerning the conduct of Fortson in regard to providing DV

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services to a Keisha Jackson.3 Exhibit R1. Blinn alleged that Fortson had used her position as a

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DV Advocate for the City to improperly benefit Keisha Jackson. Id.

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3.

Upon receipt of Blinn’s complaint, Anderson appointed an investigator, Tracy

Storwick (Storwick) to investigate Blinn’s complaint.

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Keisha Jackson, now Hines, was formerly married to Kelvin Jackson. Since Keisha Hines’ name was Keisha Jackson during the time leading up to and during the investigation of Fortson, the Hearing E xaminer, to avoid confusion, will refer to Ms. Hines as Keisha Jackson herein. No disrespect is intended. Further, since both Keisha Jackson and Kelvin Jackson are frequently identified herein, both their first and last names will be used for the purpose of clarity.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-2City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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4.

Storwick, during her investigation, interviewed Blinn, Kelvin Jackson, John Briehl,

Director of HRHS, Jacqueline Strong-Moss, Manager of the Human Rights Division of HRHS,

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and Fortson. Exhibit R2. December 22, 2008, Investigative Report at 2. Also, Storwick 4 5

reviewed numerous documents as a part of her investigation. Id at 2 and 3. Storwick concluded,

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as the result of her investigation, in spite of Storwick’s concerns regarding Fortson’s credibility,

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that a finding of reasonable cause could not be made that Fortson violated the City’s Code of

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Ethics due to the “vague scope of the duties for the position of domestic violence advocate and

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the nature and extent of supervisory approval in this case.” Id at 16. 10 11

5.

On January 13, 2009, then Acting City Manager Rey Arellano, remanded the

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investigation to the City Attorney’s Office for further investigation to address inconclusive

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findings entered by Storwick in her December 22, 2008, Investigative Report. Exhibit R2,

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February 12, 2009, Supplemental Investigation into Conduct Complaint #08-05-374.

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(Supplemental Report.) 6.

During her supplemental investigation, Storwick reviewed additional documents

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(Supplemental Report at 2 and 3) and re-interviewed Fortson. Id at 2 and 3 through 9. At

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Storwick’s re-interview of Fortson, the City’s Equal Employment Opportunity Officer (EEO)

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Jerry Lee, was present for the purpose of taking notes. After conducting her supplemental

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investigation, Storwick found and concluded that “…substantial evidence s a finding that

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Ms. Forston either: a) assisted Ms. Jackson in relocating to the state of Florida, knowing that the

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court had authorized only a visit to Florida of a specified duration and further knowing that the

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-3City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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Court had ordered that the children be returned to Washington by a specific date or b) knowingly misrepresented the purpose for the expenditure for the rental car in order to obtain funds and/or

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reimbursement that Ms. Fortson knew would not be authorized under the circumstance of this 4 5

situation.” Ms. Storwick found that Fortson had violated the City’s Code of Ethics.4 7.

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Based on Ms. Storwick’s Supplemental Report, Anderson found Fortson to be in

violation of the City’s Code of Ethics and so notified her by letter dated February 17, 2009. Exhibit R8. It is from this decision that Fortson now appeals.

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8.

The City’s Domestic Violence Program is operated by the HRHS Department.

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Currently one DV Advocate, Fortson, is employed in the Program and provides assistance to

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persons who are victims of domestic violence. Some of the essential functions of the City’s DV

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Advocate position are to provide crisis intervention and assistance to DV victims, assess their

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safety needs, refer victims to appropriate agencies, and maintain with victims

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through related criminal case proceedings. Exhibit R2.14.F. The primary focus of the City’s DV

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Program is victim safety, but also is intended to provide victim and to achieve

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sustainability of a violence-free living environment for the victim. Testimony of John Briehl,

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HRHS Director. Due to the City’s limited financial resources, which consists of several grants

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and some City General Fund allocation, HRHS must seek from other governmental and

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At hearing, the parties discussed, at some length, the reimbursement by the City for traffic/parking infractions submitted by Fortson. However, such matters were not the subject of findings and conclusions entered by Storwick in either her December 22, 2008, Investigative Report or her February 12, 2009, Supplementary Report upon which Anderson subsequently made his determination of Fortson’s Code of Ethics violation. Thus, such matters are not properly before the Hearing Examiner in these proceedings and will not further be addressed herein.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-4City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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community agencies that are also engaged in some aspect of DV services and further generally limits its own expenditures to between $250 and $300 per client. Testimony of Briehl.

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Fortson has worked in the City’s DV Program for a number of years and has been

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its only DV Advocate over the last several years. As a DV Advocate, Fortson has become

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knowledgeable regarding legal processes and proceedings related to domestic violence, including

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obtaining protective orders, reviewing parenting plans associated with dissolutionment

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proceedings, and commonly accompanies victims to court proceedings concerning domestic

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violence matters. Testimony of Fortson. Fortson also works collaboratively with law 10 11

enforcement to address victim safety. Id. Arranging for shelter housing or other alternative

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housing for DV victims, providing transportation and other services, are routine parts of

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Fortson’s job duties as a DV Advocate. Id.

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10.

The appropriate expenditure of City funds for DV services has not been defined

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with any degree of particularity and has developed as a matter of practice over the years.

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Testimony of Jacqueline Strong-Moss, Human Rights Manager. This lack of clear guidance as to

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what expenditures are proper and what level of expenditure is allowable, has resulted in some

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uncertainty at times regarding what constitutes a proper expenditure of City funds for assisting

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DV victims. Currently, HRHS is in the process in tightening its expenditure controls for the DV

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Program and implementing guidelines regarding the proper expenditure of funds for DV

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assistance as recommended in a performance audit of the City of Tacoma DV Advocacy

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Program. Exhibit R11 and testimony of Strong-Moss.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-5City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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11.

Keisha Jackson self-reported to the Crystal Judson Family Justice Center in August

of 2006, that her husband Kelvin Jackson was abusing her. Exhibit R2.7A. Fortson assisted the

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Center staff with the intake process and immediately started providing DV services to Keisha 4 5

Jackson. Testimony of Fortson. Fortson, thereafter, continued to provide DV services to Keisha

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Jackson, including being present during the exchange of the Jackson children on numerous

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occasions.5 Testimony of Fortson and Keisha Jackson.

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Keisha and Kelvin Jackson obtained a Decree of Legal Separation in 2005 and a

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proposed parenting plan was incorporated into the Decree. R2.4H.6 The parenting plan 10 11

approved by the court gave residential custody to Keisha Jackson with liberal scheduled

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visitation rights to Kelvin Jackson. Exhibit R2.6C. A final parenting plan was approved by the

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court on June 22, 2007, which again afforded substantial visitation rights to Kelvin Jackson and

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provided residential custody of Quiymani Jackson to him during certain times. Exhibit A5.

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Fortson was aware of, and reviewed the Jacksons’ parenting plan. 13.

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In August of 2007, Keisha Jackson ed Fortson and advised that her father,

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who resided in Florida, was suffering from prostate cancer and that she wished to go to Florida

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with the Jackson children to visit her father. Testimony of Fortson and Keisha Jackson. Keisha

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Jackson sought Fortson’s advice concerning the legal process that would be required for Keisha

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For employee safety reasons, HRHS no longer permits the DV Advocate to be present at DV clients’ children exchange. The court held that since Keisha Jackson’s divorce from her first husband was not finalized until after Keisha and Kelvin Jackson’s presumptive marriage, the Jacksons’ marriage was void abinite, but further held that it had jurisdiction over the Jacksons’ minor children. Exhibit R-12 at Paragraph 2.6.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-6City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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Jackson to take the children out of state. Id. There is some dispute in these proceedings regarding the extent of assistance Fortson provided Keisha Jackson in obtaining court approval

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allowing Keisha Jackson to leave the state with the Jackson children to visit her father in Florida. 4 5

During her second interview with Investigator Storwick (Exhibit R2) Fortson indicated that she

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had talked to a court facilitator regarding Keisha Jackson’s inquiry but that the facilitator was

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unable to schedule an appointment with Keisha Jackson and suggested that Fortson assist getting

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the necessary forms which were identified by the court facilitator. Exhibit R2 at 5, February 12,

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2009, Supplemental Report. Fortson additionally told the investigator that she assisted Keisha 10 11

Jackson in retrieving the necessary forms from the courts and she assisted Keisha Jackson in

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filling out the forms. Id. At hearing Fortson testified similarly that she assisted Keisha Jackson

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in filling out the court forms, but only to the extent of inserting a heading on one or more of the

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forms as she was instructed by the court facilitator and also provided a means for Keisha Jackson

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to type out her declaration. Testimony of Fortson. Keisha Jackson testified that she obtained the

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forms necessary to seek the court’s approval of her taking the Jackson children to Florida to visit

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her ailing father; she filled out the forms herself; and typed her declaration on a computer

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provided by Fortson in the HRHS offices. The Hearing Examiner finds there was no nexus

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between domestic violence and Keisha Jackson’s trip to Florida with the Jackson children to visit

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her father but also finds that Fortson’s involvement in assisting Keisha Jackson in obtaining the forms necessary to take the children with her and in filling out the forms was de minimis.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-7City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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14.

At Keisha Jackson’s requests, Fortson on August 7, 2007, accompanied her to her

first scheduled court appearance on Keisha Jackson’s motion to suspend Kelvin Jackson’s

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visitation rights. At that court hearing, Judge Susan K. Serko inquired whether Kelvin Jackson 4 5

had been served with notice of the hearing and when advised that he had not, Judge Serko

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instructed Keisha Jackson to give proper notice to Kelvin Jackson and continued the matter until

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August 13, 2007, when Judge Serko indicated that she would grant Keisha Jackson’s motion to

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suspend Kelvin Jackson’s visitation rights for a limited time in order to allow Keisha Jackson to

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travel to Florida with the Jackson children so that she could visit her ailing father. It is not 10 11 12 13 14

disputed that Fortson did not attend the August 13, 2007, hearing before Judge Serko. 15.

Substantial evidence s a finding that Fortson knew that Keisha Jackson’s

motion to temporarily suspend Kelvin Jackson’s visitation rights was granted by the court to allow Keisha Jackson and the Jackson children to travel to Florida to visit her ailing father and

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not for relocation of Keisha Jackson and the two children to Florida. Further, the Hearing

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Examiner finds that Keisha Jackson’s trip to Florida had no nexus to domestic violence.

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However, the evidence does not a finding that Fortson had knowledge of the dates during

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which Kelvin Jackson’s visitation rights were suspended and the date which Keisha Jackson had

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to return to Washington with the Jackson children.

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16.

At hearing, Fortson provided the following testimony concerning events that

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occurred between the court’s granting of Keisha Jackson’s motion to suspend visitation rights on

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August 13, 2007, and/or when she left for Florida on September 6, 2007:

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-8City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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A. Shortly after the court’s entry of the Order on August 7, 2007, Keisha Jackson called Fortson to report that Kelvin Jackson was harassing her and making threats in regard to her taking the Jackson children to Florida. B. Keisha Jackson later called Fortson to report that her van had been sabotaged and that she would be unable to leave for Florida as planned.

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C. In another subsequent call by Keisha Jackson to Fortson, Jackson indicated that Kelvin Jackson had come to the home at which she was staying in Puyallup and was yelling threats outside the home which frightened Keisha Jackson, her roommate, and her children. D. After Keisha Jackson indicated her reluctance to call the police, Fortson called Puyallup Police to make a report of domestic violence perpetrated by Kelvin Jackson. The Puyallup Police Department advised Fortson that they were unable to provide assistance until the perpetrator actually did something.

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E. Fortson determined that it was necessary to relocate Keisha Jackson and the Jackson children until she and the children could leave for Florida. F. Fortson was unable to find short-term temporary housing for Keisha Jackson and the Jackson children at the facilities normally used by Fortson for relocating DV clients; so, she arranged to have them stay at the Ramada Inn Suites in SeaTac for three days until other housing arrangements could be made. G. Also, because SeaTac was distant from the Tacoma area and one of the Jackson children was disabled, Fortson, using her own credit card, rented a vehicle from Budget Rent A Car at SeaTac Airport for a three day period commencing on September 6, 2007. H. At the time she rented the vehicle for Keisha Jackson’s use, Keisha Jackson was not present.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-9City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

I. Later Fortson discovered that Keisha Jackson, without Fortson’s approval or knowledge, changed the car rental agreement to allow her to drive the rented vehicle to Florida.

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17.

While Fortson’s testimony summarized in Finding 16 above is generally ed

by the testimony of Keisha Jackson, it is substantially inconsistent with statements made by

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Fortson to the City’s investigator during interviews pursuant to the City’s investigation of 7 8

allegations made against Fortson, a subsequent declaration signed by Fortson dated March 16,

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2009 (Exhibit A-4), and the Budget Rent A Car receipt. (Exhibit R-2.21L)

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18.

As earlier found, Jerry Lee, the City’s EEO Officer, was asked by the City’s

investigator, Storwick, assigned to the Fortson investigation, to take notes during a second

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interview of Fortson on February 4, 2009. Lee was provided no briefing on the purpose of the 13 14

interview, but was asked by Storwick to take notes so that Storwick could have a more accurate

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record of the interview. Relying on his notes taken during the February 4, 2009 interview

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(Exhibit R5), Lee testified, among other things, that Fortson in response to questions posed by

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Storwick, indicated that she did not know who paid for the hotel room Keisha Jackson and the

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Jackson children stayed in at SeaTac after moving from Joy Mack’s home in Puyallup7; that the

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City, Associated Ministries, and DSHS8 paid for a rental van for Keisha Jackson’s use; that

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Fortson secured the rental van using her own credit card; that Fortson was getting Keisha Jackson

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

Keisha Jackson and the Jackson children were temporarily residing in Puyallup at the home of Joy Mack and her family prior to Keisha Jackson leaving Washington for Florida. Washington State Department of Social and Health Services.

-10City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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out of Joy Mack’s home in Puyallup due to on-going threats from Kelvin Jackson; and finally, that Fortson went to SeaTac Airport without Keisha Jackson to make arrangements for the rental

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vehicle but Fortson had no recollection of whether the rental was for the purpose of allowing 4 5

Keisha Jackson and the Jackson children to travel to Florida. The Hearing Examiner finds Lee’s

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testimony to be credible. Lee had no involvement with the investigation and was only present at

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the Fortson interview for the purpose of taking notes. No reason for any bias was shown in

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regard to Lee’s testimony.

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19.

Storwick testified that Fortson, during the February 4, 2009 interview, in responding

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to questions posed by Storwick, indicated that the van rental was for the purpose of providing a

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means of transportation to allow Keisha Jackson and the Jackson children to visit Jackson’s ill

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father in Florida but that it was indicated in documentation ing the car rental submitted to

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the City it was being rented for domestic violence relocation in order to receive a reduced car

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rental rate and to receive reimbursement from the City and other DV agencies. Storwick further

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testified that there had been no discussion of a DV basis for the van rental until the latter stages

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of the investigation at which time Fortson indicated to Storwick that Fortson had reached a

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conclusion that it had become necessary to get Keisha Jackson and the Jackson children out of

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state in order to protect them from harassment and threats made by Kelvin Jackson. Storwick

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also testified that Fortson claimed during her interview that other agencies paid for or reimbursed

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the City for the van rental, but no corroborating documentation was found by Storwick or

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provided by Fortson during the investigation and the only City record showed that Fortson was

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-11City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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reimbursed by the City in the amount of $267.48. Testimony of Storwick and Exhibit R5 at 20.

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While Fortson strenuously challenges Storwick’s investigation as being not sufficiently thorough

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and demonstrating a lack of understanding of the City’s DV Program and the role of the DV 4 5

Advocate in that program, Fortson failed to show the investigation leading up to the February 12,

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2009, Supplemental Report to the City Manager, was not fair and did not properly reflect the

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interviews by the investigator of Fortson and others or the correctness of the documents reviewed

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by the investigator. The Hearing Examiner finds Storwick’s testimony at hearing to be straight

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forward, consistent with the circumstances, and to be credible. 10 11 12 13 14 15 16 17 18 19 20 21 22

21.

In a declaration of Fortson signed by Fortson on March 16, 2009, under penalty of

perjury, Fortson states as follows: “…On the day before Ms. Jackson was scheduled to leave for Florida pursuant to the Court order, her van was damaged and she was not able to leave. It is at this time she also reported further stalking, harassment of her and the minor children and her roommate was now fearful of Ms. Jackson’s conduct. After attempts to several shelters and agencies to provide housing until she could leave for Florida, I authorized the second financial to Keisha Jackson from the City of Tacoma. It was for a rental car for the purpose of driving to Florida, I authorized the third financial expenditure on behalf of Keisha Jackson for the purpose of housing her for one night only. I did receive a telephone call from Keisha Jackson upon her arrival in Florida and was assured that the van had been properly turned in….” (Emphasis supplied.)

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-12City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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Exhibit A4 at 4 and 5. Fortson’s statements made in her declaration are at odds with the testimony presented at hearing and more closely track her statements made to investigator

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Storwick during her February 4, 2009, interview. 4 5

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The rental agreement or receipt (Exhibit R2.21L) indicates at the top of the

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document that the vehicle rented was rented on September 6, 2007, at SeaTac and was due in at

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Eglin, Air Force Base in Florida on September 13, 2007, Fortson’s signature is at the bottom of

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the document. Fortson attempts to explain the apparent contradiction between her testimony

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presented at hearing and the documentary exhibit by stating that she electronically signed the 10 11

document at the time she paid for the vehicle rental using her personal credit card and that the

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rental agreement or receipt was later altered or re-created when Keisha Jackson decided to use

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the van to travel to Florida. The Hearing Examiner finds, without more, Fortson’s explanation to

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be implausible and finds that the documentary exhibit speaks for itself.

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23.

Based on the weight of the evidence, the Hearing Examiner finds that more likely

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than not, Fortson knowingly used City funds to assist Keisha Jackson’s travel to Florida, travel

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Fortson knew had no nexus to domestic violence.

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24.

Keisha Jackson did not return from Florida with the Jackson children in accordance

with the court’s order suspending Kelvin Jackson’s visitation rights and she was subsequently

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arrested in Florida on a bench warrant issued by a Washington court for Custodial Interference in the First Degree. Exhibit R2.8.G - J.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-13City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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25.

Any Conclusion of Law hereinafter stated which may be deemed to be a Finding of

Fact herein is hereby adopted as such.

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From the foregoing Findings of Fact come the following: 4 5

CONCLUSIONS OF LAW:

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1.

The Hearing Examiner has jurisdiction in the matter. Tacoma Municipal Code

(TMC) 1.23.050.B.17 and 1.46.040.J.

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2.

The party seeking review has the burden to establish, by a preponderance of the

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evidence, that the decision being reviewed is inconsistent with applicable legal standards and

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should be reversed. TMC 1.23.070.C.

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3.

The Hearing Examiner’s review of an alleged violation of the City’s Code of Ethics

is de novo. TMC 1.23.060. Evidence that is material and relevant to the determination to be

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made by the Hearing Examiner shall be itted into the record whether or not such evidence had been submitted as a part of the istrative record below. TMC 1.23.070.C. 4.

The City’s Code of Ethics describes conduct which constitutes violations of the

Code of Ethics. TMC 1.46.030.A through L. At issue in these proceedings are Subsections H and J which are set forth below:

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H. Improper Use of Position Prohibited. No City official shall knowingly use his or her office or position to secure personal benefit, gain or profit, or use his or her position to secure special privileges or exceptions for himself, herself, or for the benefit, gain, or profits of any other persons.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-14City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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J. Improper Use of City Property Prohibited. No City official shall use City-owned vehicles, equipment, materials, money, or property for personal or private convenience or profit. Use is restricted to such services as are available to the public generally, for the authorized conduct of official business, and for such purposes and under such conditions as are approved by istrative order of the City Manager or Director of Public Utilities; provided, the use of a City vehicle by a City official participating in a carpooling program established by the City, and for a purpose authorized under such program, shall not be considered a violation of this section or of any other provision of this chapter.

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5.

The specific issues presented in this appeal are:

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A. Does a preponderance of the evidence establish that China Fortson knowingly used her position and/or City funds to allow Keisha Jackson to flee the jurisdiction and violate a valid court order?

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B. Does a preponderance of the evidence establish that China Fortson knowingly misrepresented the purpose of an expenditure in order to obtain funds and/or reimbursement that would otherwise not be authorized?

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C. If either of the factual contentions are established by a preponderance of the evidence, did China Fortson violate the City’s Ethics Code by knowingly misusing her City position and/or City funds to secure special privileges for Keisha Jackson?

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6.

The Hearing Examiner found (see Finding of Fact 23) that Fortson knowingly used

City funds to assist Keisha Jackson’s travel to Florida, travel that had no nexus to domestic

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violence. Thus, without a nexus to domestic violence, the City funds expended to rent Keisha Jackson a van to travel to Florida with the Jackson children and the rental of a hotel for Keisha

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-15City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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Jackson to stay in SeaTac constitutes a knowing misuse of City funds by Fortson to secure special privileges for Keisha Jackson in violation of TMC 1.46.030.H.

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7.

Accordingly, on that basis, Anderson’s determination that Fortson violated the

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City’s Code of Ethics should be affirmed and the appeal denied. 8.

Any finding hereinbefore stated which may be deemed to be a conclusion herein is

hereby adopted as such. From these Conclusions of Law comes the following:

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DECISION: 10 11

The appeal brought before the Hearing Examiner by China Fortson is HEREBY denied

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and the determination made by Tacoma City Manager Eric Anderson that China Fortson violated

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Tacoma’s City Code of Ethics, TMC 1.46, for misusing her official City position and City funds

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to procure special privileges for Keisha Jackson, is HEREBY affirmed.

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DATED this 10th day of August, 2010.

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__ ___ RODNEY M. KERSLAKE, Hearing Examiner

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-16City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003

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NOTICE

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RECONSIDERATION/APPEAL OF EXAMINER’S DECISION

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RECONSIDERATION TO THE OFFICE OF THE HEARING EXAMINER:

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Any aggrieved person or entity having standing under the ordinance governing the matter, or as otherwise provided by law, may file a motion with the Office of the Hearing Examiner requesting reconsideration of a decision or recommendation entered by the Examiner. A motion for reconsideration must be in writing and must set forth the alleged errors of procedure, fact, or law and must be filed in the Office of the Hearing Examiner within l4 calendar days of the issuance of the Examiner's decision/recommendation, not counting the day of issuance of the decision/recommendation. If the last day for filing the motion for reconsideration falls on a weekend day or a holiday, the last day for filing shall be the next working day. The requirements set forth herein regarding the time limits for filing of motions for reconsideration and contents of such motions are jurisdictional. Accordingly, motions for reconsideration that are not timely filed with the Office of the Hearing Examiner or do not set forth the alleged errors shall be dismissed by the Examiner. It shall be within the sole discretion of the Examiner to determine whether an opportunity shall be given to other parties for response to a motion for reconsideration. The Examiner, after a review of the matter, shall take such further action as he/she deems appropriate, which may include the issuance of a revised decision/recommendation. (Tacoma Municipal Code 1.23.140)

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NOTICE APPEAL TO SUPERIOR COURT OF EXAMINER’S DECISION:

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Pursuant to the Official Code of the City of Tacoma, Section 1.23.160, the Hearing Examiner's decision is appealable to the Superior Court for the State of Washington. Any court action to set aside, en, review, or otherwise challenge the decision of the Hearing Examiner shall be commenced within 21 days of the entering of the decision by the Examiner, unless otherwise provided by statute.

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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

-17City of Tacoma Office of the Hearing Examiner Tacoma Municipal Building 747 Market Street, Room 720 Tacoma, WA 98402-3768 (253)591-5195 FAX (253)591-2003