July 9, 2004
Regular Meeting
Minutes
A. Preliminary Business
1. Roll
Call
Meeting commenced at 9 am with roll call. All members were present. The following is the role call: Chair Marilee Scarbrough, Vice-Chair Paul
Zellinsky, Member James Vaché, Member Trish Akana, and Member Evelyn
Yenson. Also in attendance were: Executive
Director Brian Malarky,
Assistant Attorney General Sharon
Eckholm, Investigator Sue Jones,
Investigator Linda Stark, Education and Outreach Coordinator Debbie O’Dell, and
Compliance Analyst Mechele Linehan.
2. Approval
of Agenda
Chair Marilee
Scarbrough proposed that the Board agenda be
amended to move the rule hearing to the 9 am
start time. Chair Scarbrough proposed
moving the Board’s discussion on advisory opinions to precede item C.
“Strategic Plan and Retreat Follow up”. Mr.
Malarky requested the addition of a new item
3, under D. Advisory Opinions: “Agency
Policy Review Request 04-6-0706-013 DNR, Use of State Electronic Communications
Systems when Performing Emergency Wildland Fire Suppression Duties”. MOTION made by Paul
Zellinsky to approve the amended
agenda. Seconded by James
Vaché with unanimous approval.
Rule Hearing
(begin
audio tape)
Mr.
Malarky briefed the Board on the amendments
to WAC 292-110-060. The purpose of the
proposed rule amendments is to align the rule with the statute requiring that
sole source or one-bid research contracts have Board approval before the
contract is entered into. The amendment
provides the Board’s pre-approval of contracts so long as alternative conflict
of interest procedures are followed. The
amended rule also includes expert witness contracts as pre-approved by the
Board. The rule was reorganized to
improve navigation and clarify the statutory criteria considered by the Board
under this chapter.
Public Comment
Malcolm
Parks, Associate Vice
Provost of Research in Seattle, University of Washington
testified in support of the rule changes.
Parks indicated the amendments would allow the
University to move forward with research grants when the window opening is
narrow and time is of the essence.
Member Yenson asked about the system the University currently has in
place to ensure internal process is followed.
Parks replied that there are six employees at the
University who touch a research project’s review for compliance with the
alternative conflict of interest procedures.
Yenson expressed that the Board relies on the University to manage
itself according to the law. Parks
indicated the responsibility for ensuring compliance is shared by the
University, the Board, and regular audits by the General Accounting Office and
National Institute of Health. Yenson
asked if the University actually issues sole source contracts. The reply was “yes”. Yenson asked how frequently sole source
contracts occur. Parks
said that out of 100-200 contracts each year, about 25% look like sole source.
Member Zellinsky asked what
happened in the past with the 200 research contracts. Parks said they were handled
according to the federal process specified under RCW 42.52. Parks said a particular sole
source case showed the University was out of line with the rule.
At 9:20
am the hearing closed for public comment.
(end audio
tape)
Board Comment
Member Vaché inquired about the
expert witness contracts being pre-approved.
Mr. Malarky
stated that only certain contracts where Board approval is required are dealt
with in this rule. RCW 42.52.120
addresses other types of contracts.
Spousal contracts still need Board approval.
Member Zellinsky asked how the
amendments will affect other universities and colleges outside the University
of Washington. Mr. Malarky
indicated that the impact is statewide for all institutions and that research
departments must have in place an alternate COI and system of review in place.
Motion: Member Vaché moved to adopt the rules as
proposed if no other comments were received by the close of business on this
day. Member Akana seconded. Unanimous approval.
3. Approval
of June 10, 2004
Special Meeting Minutes (Retreat)
Member Akana proposed amending the
minutes to reflect the direction that the Board provided to staff on the need for rule changes regarding
(1) Board review of referrals from the State Auditor’s Office and other agencies
or educational institutions; and (2) board reviewing officer. Motion: Vice Chair Zellinsky moved to adopt the
minutes as amended. Chair Scarbrough
seconded. Unanimous
approval.
4. Approval
of June 11, 2004
Regular Meeting Minutes: Version A by Member Akana and Version B by Brian Malarky
The Board discussed Version A and B
of the minutes and decided that fuller detail on what transpired at Board
meetings was desired. Member Vaché said
that some years ago the Board’s minutes were verbatim. Then the Board decided to make the minutes
briefer. Member Zellinsky asked why
meetings are not taped. Member Vaché
asked for clarification on the reason for not taping the Board’s meetings. Mr. Malarky
said initially the Board clerk was assigned the duty of taking the
minutes. Eventually staff resources
became an issue. About four year’s ago
the minutes were assigned to administrative support staff that was then
reallocated to a human resource consultant.
Counsel Eckholm
indicated that tapes and recordings of Board meetings would create a public
record requiring that the digital or electronic recordings be archived.
Member Vaché said the problem with
Version B was that there was no context unless the documents referred to were
attached and became part of the minutes as well.
MOTION: Member Vaché moved to adopt Version A as
proposed. Member Akana seconded. Unanimous approval.
MOTION: Board directed staff to come prepared to tape
all subsequent meetings of the Board subject to Counsel’s and Board review of
public records requirements. Member
Akana seconded. Unanimous
approval.
D. Advisory Opinions
1. Advisory Opinion 04-03,
Potential Conflicts of Interest Involving Public Health District Review Board
Members
Mr.
Malarky briefed the Board on changes to the
second draft. Vice Chair Zellinsky
commented that having industry folks participate in contracts decisions brought
before the Health District Review Board who might also want to bid on those
same projects was bad ethics and required a member’s recusal. Member Vaché directed staff and counsel to
rewrite the opinion focusing exclusively on the general statute RCW 42.52.020
concerning conflicting interest. Member
Vaché explained that Board Opinion 98-02 was a very narrow opinion. Staff was directed to omit any discussion on
actual, potential, and apparent conflicts of interest leaving the subject to
future Board guidelines, as appropriate.
2. Advice Request
04-2-0623-22, Conflicts of Interest Involving Groups Funded by the Department
of Natural Resources
Mr.
Malarky briefed the Board on the scope and
intent of DNR’s request. DRN employee David
Steele indicated that the analysis was
complete. Member Yenson asked the value
of the contract and was told that it is estimated at $441,000 with about $10
million over 5 years. Member Vaché asked
why the group was set up as a non—profit rather than a
governmental entity. Steele
indicated that as a non-profit the organization has the ability to draw from
other fund sources in the event that a governmental agency did not have funds. Member Vaché asked whether DNR could give
grant money to other entities besides the SPRCW. Steele indicated that the
agreement commits money to the SPRCW from DNR as the sponsoring agency. Member Vaché directed Mr. Malarky and Eckholm
to rewrite the content of opinion in the last 2 paragraphs, directing Mr.
Malarky to just use the term “conflict
of interest” rather than “appearance, potential, or actual” to modify the term
“conflict of interest”. Mr.
Malarky and Eckholm will redraft the opinion
and submit the changes to the Chair.
MOTION: Member Yenson moved to support the directions
given to staff. Member Vaché
seconded. Unanimous
agreement.
3. Agency Policy Review
Request 04-6-0706-013 DNR, Use of State Electronic Communications Systems when
Performing Emergency Wildland Fire Suppression Duties
DNR employee Tom
Hoffa presented the request thanking the
Board on behalf of Commissioner Sutherland
for accepting the review on such short notice.
Hoffa indicated the agency policy only applied to employees
in the Instant Command System. Chair
Scarbrough and Member Yenson commended DNR for bringing this matter to the
Board. MOTION: Member Vaché moved to adopt the policy as
proposed. Vice Chair Zellinsky
seconded. Unanimous
agreement.
C. Strategic Plan and Retreat Follow Up
At the meeting, Board members were provided with a copy of a
DRAFT strategic plan that had been developed by Board staff and Linda
Moran meeting with the facilitator Faith
Tremble on July 7. None of the members had been briefed on the DRAFT and so
were surprised, even without fully reading the DRAFT, by the language in the
document. Member Vaché said he found the
document denigrating to the Board with the language contained and included in the
DRAFT. Given the inadequate time to
review and comment on the DRAFT, the Board agreed that Members Yenson and Akana
would represent the Board’s interests in a subsequent version of the plan for
the September 10 Board meeting.
E. Executive or Closed Session
At 12:00 p.m. the
Board moved into executive session to consider complaints against public
officials with Eckholm and Mr. Malarky
in attendance with the Board members. At
12:45 p.m. the Board met in closed
session to consider proposed stipulations and orders in several quasi-judicial
matters with Eckholm in attendance. At 1:30 p.m. the Board deliberated to discuss
personnel matters.
After reconvening the public session at 2:30 p.m. the Board announced that no reasonable cause
was found in EEB Case No. 01-096 (Fisher).
F. Staff Report
1. Non-bind
staff analysis
Members received a copy of recent
documents on post state employment and the solicitation of donations for a
public office fund.
Members received a spreadsheet on
the current budget status.
2. Board correspondence
Members were provided with a copy
of a June 14, 2004 letter
from Assistant Attorney General Paul
Silver on behalf of Director
Joe Dear of
the Washington State Investment Board.
Members were provided with a copy of a June 28, 2004 letter from Chair Scarbrough to Director
Dear.
G. Public Comment/Board Member Comments
There were no comments.
H. Miscellaneous Matters/Adjournment
The July 9, 2004, Executive Ethics
Board meeting adjourned at 2:45 p.m.