By Scott Schaefer

The City of Des Moines is embroiled in a legal dispute involving Councilmember Gene Achziger, who currently holds two separately-elected positions, igniting concerns over potential violations of state laws, as well as his claims that he is being targeted and harassed by the city.

The issue at hand is whether an elected Councilmember can simultaneously serve for another public agency; in Achziger’s case as a Des Moines Pool Metropolitan Park District Commissioner, where he has served since 2017. He was elected to the Des Moines City Council in 2022.

Vic Pennington, Rob Back May Have Set Precedents

As possible precedents for similar instances of “dual roles” in Des Moines, during his first term on the council starting in 2013, former and current Councilmember Vic Pennington – appointed back to the dais to replace Anthony Martinelli after he resigned in 2022 – also served for King County Water District #54 (from 2011-2015). Former Councilmember and current candidate Rob Back also served on the Board of Directors for SCORE Jail for three years while he was on the council – something he even highlighted during his opening statement at a Candidate Forum held at Wesley Homes on Monday night, Oct. 16.

Despite instigating this lawsuit with a Jan. 23, 2023 letter to King County Prosecuting Attorney Leesa Manion, neither Mahoney nor the City of Des Moines have alleged that Achziger has caused any harm. Yet despite that, on Monday, Oct. 16 Mayor Mahoney released a statement on Facebook, strongly asserting that the City of Des Moines is not the entity suing Achziger.

The lawsuit – which is now in the hands of the King County Prosecuting Attorney’s Office – claims that Achziger should resign from one of his two positions, and “whether it was appropriate for a single individual to hold these two specific elected positions that at times may be in conflict with one another,” according to Mayor Mahoney’s statement (see full text below).

Yet no evidence or claims of conflict or harm appear to have been cited by the City.

The saga began in December 2022, when Mayor Mahoney sought a formal legal opinion from Des Moines City Attorney Tim George to determine the propriety of an individual concurrently holding two elected positions, which he asserts may sometimes conflict with each other. Despite previous instances, George concluded that such dual occupancy was in violation of Washington State laws, citing the common law doctrine of incompatible offices. This legal opinion was communicated to Councilmember Achziger, who, despite the legal advice (and precendents set by Councilmembers Pennington and Back), chose not to relinquish either of his current elected positions.

The matter was subsequently forwarded by Mahoney to the King County Prosecuting Attorney’s Office, which is responsible for handling election-related issues. In agreement with the Des Moines City Attorney’s assessment, the Prosecuting Attorney urged Councilmember Achziger in April, 2023 to resign from one of his elected posts, a request that was declined by the Councilmember.

Achziger disagrees that his holding two elected offices is illegal, and he (and his supporters) believe he may just be the target of political bullying by Mayor Mahoney and the city. He is usually one of two “outliers” on the council, often challenging the 5-2 majority along with Councilmember JC Harris.

“Unfortunately, this matter is indicative of the petty politics practiced here in Des Moines…”

“Unfortunately, this matter is indicative of the petty politics practiced here in Des Moines,” Achziger told The Waterland Blog. “Because I question what the council majority does and how it operates, I am subject to this type of harassment.”

Achziger cites the Municipal Research Services Center regarding the issue:

“There are also a number of state statutes that directly address dual office holding. Some prohibit certain government officials from holding multiple offices, while others specifically allow multiple offices to be held at the same time.”

Consequently, after being urged to by the City, the King County Prosecuting Attorney’s Office initiated legal action against Achziger, alleging violations of the common law doctrine of incompatible offices. The lawsuit is currently pending in King County Superior Court.

The council has thus far refrained from discussing the matter publicly and is not expected to do so until there is a resolution to the ongoing lawsuit. In a bid to ensure transparency and access to information, all records pertaining to this issue within the city’s possession can be obtained through a public records request at the City of Des Moines WA – Citizen Engagement website. The Waterland Blog has filed such a request, and will be doing an updated story when we receive the records.

“In December of 2022, I requested a formal legal opinion from the Des Moines City Attorney as to whether it was appropriate for a single individual to hold these two specific elected positions that at times may be in conflict with one another,” Mahoney said in the statement. “It appeared that this was in violation of Washington State laws. After researching the issue, the City Attorney issued an opinion that holding the two specific elected positions violated the common law doctrine of incompatible offices. Councilmember Achziger was advised of this legal opinion, and declined to resign from either one of his offices.”

“The mayor states that the City has no part in the lawsuit, but who made the complaint?” Achziger added. “Who paid for the City Attorney’s opinion? Who has been harassing the King County Prosecuting Attorney to file this suit? Remember, it is your county taxes paying for this lawsuit, regardless of whether the City officially initiated it or was done by proxy.”

Achziger added that his attorney is currently negotiating with the Prosecutor’s Office, and if any action is taken it won’t be until after the start of the new year.

He said that – if needed – a trial would be held sometime around July, 2024.

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Achziger Cites Municipal Research Services Center

Below is a statement released by Achziger to The Waterland Blog on Monday afternoon, Oct. 16, 2023:

“Laws have to be read in their entirety. You can’t argue only the portions that agree with your motives.

“The Doctrine of Incompatible Offices is real and has been developed under case or common law. In other words, it comes from the judicial system, but does it apply in this case?

“The Legislature has the power to supersede the judicial system through statutory law.

“Here’s what the Municipal Research Services Center says about the matter:

“There are also a number of state statutes that directly address dual office holding. Some prohibit certain government officials from holding multiple offices, while others specifically allow multiple offices to be held at the same time.”

“The Legislature passed RCW 35.61.050, which clearly states that both City Councilmembers and County Commissioners can simultaneously serve on metropolitan park districts within their jurisdictions.

“The entire Normandy Park City Council serves on the Normandy Park Metropolitan Park District, so too does the Seattle City Council and councilmembers in Olympia, Shelton, Tumwater, Port Angeles, and Clark County (Vancouver).

“So what is different here?

“Unfortunately, this matter is indicative of the petty politics practiced here in Des Moines. Because I question what the council majority does and how it operates, I am subject to this type of harassment.

“Notably, simultaneously being a Water Commissioner and City Councilmember is illegal. When Councilmember Pennington served simultaneously as a City Councilmember and a Water District No. 54 Commissioner for two and a half years, the City Attorney and the Mayor were silent. CM Pennington only stepped down because the water commissioners objected.

“The mayor states that the City has no part in the lawsuit, but who made the complaint? Who paid for the City Attorney’s opinion? Who has been harassing the King County Prosecuting Attorney to file this suit?

“Remember, it is your county taxes paying for this lawsuit, regardless of whether the City officially initiated it or was done by proxy.”

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City’s Oct. 16 Statement

Here’s full text of Mahoney’s statement:

“This statement is being released in response to numerous social media posts as well as questions I have received from residents regarding a lawsuit involving Des Moines Councilmember Gene Achziger and whether the City is involved.

“To be clear, the City of Des Moines is not suing Councilmember Achziger.

“As you may know, Councilmember Achziger is an elected Des Moines City Councilmember and also an elected Des Moines Pool Metropolitan Park District Commissioner. Both of those elections were held separately.

“In December of 2022, I requested a formal legal opinion from the Des Moines City Attorney as to whether it was appropriate for a single individual to hold these two specific elected positions that at times may be in conflict with one another. It appeared that this was in violation of Washington State laws. After researching the issue, the City Attorney issued an opinion that holding the two specific elected positions violated the common law doctrine of incompatible offices. Councilmember Achziger was advised of this legal opinion, and declined to resign from either one of his offices.

“This information was forwarded to the King County Prosecuting Attorney’s Office who handles election related issues. The Prosecuting Attorney concurred with the Des Moines City Attorney’s legal opinion and requested Councilmember Achziger to resign from one of his positions. He again declined.

“As a result, the King County Prosecuting Attorney’s Office, on behalf of the State of Washington, filed a lawsuit against Councilmember Achziger for violating the common law doctrine of incompatible offices. That lawsuit is currently pending in King County Superior Court. The City of Des Moines is not a party to the lawsuit and is not involved in any way.

“Accordingly, the City Council has not publicly addressed the matter and will not likely do so until there is an outcome of the lawsuit.

“In an effort to promote transparency and correct information, all of the records in the City’s possession related to this matter can be obtained from the City via a public records request City of Des Moines WA – Citizen Engagement (civicweb.net).”

– Mayor Matt Mahoney

Scott Schaefer is Founder/Publisher/Editor of South King Media. He is a veteran TV Writer/Director/Producer with three National Emmy Awards for Writing on “Bill Nye the Science Guy” and bunch of other credits in media going way back to KING-TV’s “Almost Live!” in the 1980s.

The post ‘Dual roles’ trigger lawsuit against Des Moines Councilmember Gene Achziger, who claims ‘harassment’ first appeared on The Waterland Blog.