James M. Vaché, Chair (by phone)

Sutapa Basu, Board Member

Cheryl Rohret, Board Member (acting Chair on behalf of Professor Vaché)

Marilee Scarbrough, Board Member

Brian Malarky, Executive Director

Linda Dalton, Counsel to the Executive Director

Jean Wilkinson, Counsel to the Board

a. Roll call - Board members Cheryl Rohret, Sutapa Basu, and Marilee Scarbrough were present. Chair James Vaché attended by telephone. Member Rohret acted as chair for this meeting. Member Rohret thanked everyone for being here, considering the circumstances.

b. Approval of Agenda – Member Scarbrough moved approval of the agenda as drafted and Member Basu seconded. The Agenda was approved unanimously.

c. Approval of Minutes from July 13, 2001, Regular Meeting - Member Basu moved approval of the July 13, 2001 minutes with minor corrections and Member Scarbrough seconded. The Minutes were approved unanimously. For future reference, Board staff will provide a summary of public comments.

Executive Director, Brian Malarky, presented the Stipulation and Order in EEB Case No. 99-17 (Barbara Hedges). Member Scarbrough asked for clarification regarding Coach Lambright’s indemnification. The Board elected to deliberate in Executive Session.

Executive Director, Brian Malarky, presented the Stipulation and Order in EEB Case No. 00-09 (Christopher Miller). Mr. Malarky noted that the amount suspended on page 4 of the agreement should read $100. Member Scarbrough asked if Mr. Miller used the car while it was stored. Mr. Malarky stated that he did, but it was not his primary vehicle.

The Executive Director presented this draft opinion. Member Scarbrough asked the Board and Board Counsel if this opinion could create any dangerous precedent. Board Counsel, Jean Wilkinson, does not anticipate any issues. Counsel to the Executive Director, Linda Dalton, noted that the opinion is written narrowly based on "consideration". Chair Vaché stated that he likes the opinion. Member Scarbrough moved to approve the draft opinion as written. Member Basu seconded the motion. EEB Advisory Opinion 01-05 was approved unanimously.

The Executive Director presented this draft opinion. Ron Skinnerland, representing the Department of Ecology, commented that he is responsible for the permitting process. He appreciates the efforts of the Board and staff on this opinion. Mr. Skinnerland suggested some wording changes to clarify the permit (length) and recommended that the word "substantive" be changed to "standard" review. Joan Bartz, a former Ecology employee, added that the permit expiration date is published right on the permit and there really isn’t a "roll over." Ms. Bartz added that the 2004 permit date is not a renewal, but rather a re-issue with public comment. Ms. Bartz commented that the short answer isn’t clear, but the analysis is. Ms. Bartz provided additional information regarding the permitting process and the issue of a transaction and her personal experience.

Chair Vaché noted some typo’s and suggested the addition of a disclaimer in the "Background" section. In addition, Chair Vaché requested a citation to authority of the waiver of the attorney client privilege. The opinion will be re-drafted and brought back to the October 12, 2001 meeting. At the Executive Director’s request, the Board confirmed the draft opinion analysis, except that which related to when a transaction ends.

The Executive Director presented this policy review. Member Scarbrough asked whether an instructor could bring their car in for another class other than their own. Mr. Malarky responded in the affirmative. Chair Vaché moved that the policy be approved as written and Member Basu seconded the motion. The policy was approved unanimously.

The Board unanimously agreed that any proposed rule would not address the use of state resources by a Union. In addition, the Board agreed to ask Board staff to draft an advisory opinion regarding this matter. The draft opinion will be crafted to provide broad advice to state agencies regarding this matter.

The Executive Director presented a draft revision to the "de minimis" use rule and explained the new language. Chair Vache asked if it would be a violation under the proposed rule for a person to jot down a note regarding groceries on state paper. Member's Scarbrough and Rohret expressed a similar concern with the rule. The Board and staff discussed distinguishing between a single sheet of paper and a "spare part". In response to Chair Vaché, the Executive Director noted that use of state computers to listen to an Internet radio takes up a large amount of bandwidth. A member asked if the rule allowed a state employee to play solitaire on your PC at lunch? Gail Swanson, Employment Security, noted that the Governor has stated it’s not acceptable to play games on state PC's.

After some discussion the Board added the words "little or" to paragraph (3)(a) of the proposed rule. Member Rohret noted that the emphasis should be on the word little. In addition, the Board removed the prohibition in paragraph (6)(g). The effect of these changes would be to allow a limited and occasional personal use of state consumables.

Don Briscoe, representing Local 17, noted that the policy statement (paragraph 1) includes new language regarding "stewardship". Mr. Briscoe stated that this could be confusing to employees. Mr. Briscoe asked if stewardship is an expectation/condition for state employment.

Mr. Oliveri, Local 17, also has concerns that the proposed draft rule does affect union issues and will be an issue in the future. Member Scarbrough commented that the de miminis use problem is a long-standing concern and not just directed toward union use specifically.

Member Basu moved that Board staff submit a CR 102 using the proposed rule as amended. Member Scarbrough seconded the motion which passed unanimously. Chair Vaché asked the Board staff to make sure that state agencies are aware of the proposed rule.

Member Basu excused herself for a prior commitment.

The Executive Director presented a new safe harbor provision in the penalties rule.

Member Scarbrough suggested some language changes. Chair Vaché commented that if statute changes, then the safe harbor obligates the Board to review all the changes.

Member Scarbrough moved that Board staff submit a CR102 using the proposed safe harbor rule as amended. Chair Vaché seconded the motion which passed unanimously.

9. Staff Report

1. The Board retreat was postponed, tentative new date is November 8, 2001.
2. COGEL Conference - Marilee Scarbrough, Board Member and Executive Director, Brian Malarky, will attend this year's conference. Chair Vaché working with Gonzaga in hopes he will be able to attend as well. Would like to have Board Counsel, Jean Wilkinson attend, however, probably not feasible due to budget constraints.

c. Case Status Report

d. Case Dismissals

Member Rohret asked Board staff to send out materials in the week prior to the next meeting. The Board members asked that the packets be mailed the Friday before scheduled meeting even if resolution of a case will be delayed.

The Executive Session began at 2:10 p.m. Member Rohret anticipated returning to at 2:55 p.m. The Executive Session ended at 3:14 p.m. The Board announced they have approved the Stipulation and Orders in EEB Case No. 99-17 (Barbara Hedges) and EEB Case No. 00-09 (Christopher Miller).

Adjourned at 3:15 p.m.

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Chair, James M. Vaché Dated: October 12, 2001