WASHINGTON STATE

 EXECUTIVE ETHICS BOARD

1110 Capitol Way S– 4th Floor Video Conference Room – Olympia, WA

 

January 8, 2010

Regular Meeting Minutes

 

 

A.   Preliminary Business

1.    Roll Call

The regular meeting of the Washington State Executive Ethics Board (EEB) was called to order by Chair Linnaea Jablonski at 9:10 a.m.  In attendance were Vice Chair Mike Connelly and Members Neil Gorrell and Matthew Williams III.  Member Martin Biegelman was present via telephone.  Board staff in attendance included:  Executive Director Melanie de Leon, Senior Counsel Jerry Anderson, AAG Mickey Newberry, Administrative Officer Ruthann Bryant and Investigators Nancy Lewin and Sue Jones. 

 

2.    Approval of Agenda

 

Motion 10-001 Moved by Member Gorrell, seconded by Vice Chair Connelly:

 

The Board approves the January 8, 2010 agenda as presented.

 

The motion passed unanimously.

 

3.    Approval of the November 13, 2009 Meeting Minutes

        

Motion 10-002 Moved by Vice Chair Connelly, seconded by Member Gorrell:

 

The Board approves the November 13, 2009 minutes as presented.

 

The motion passed unanimously.

 

B.   Enforcement Matters

         Hearing – John E. Petruzzelli, EEB Case 2008-128

Administrative Law Judge Cindy Burdue presided over preliminary matters in the matter of EEB Case 2008-128, John Petruzzelli.  The enforcement hearing was continued until the September 10, 2010 meeting.

 

 

C.   Advisory Opinion Review

Nancy Lewin provided a brief update regarding Advisory Opinion 00-08, Use of State Resources/Political Campaigns/Officer or Employee Title and provided board precedent, previously discussed at the Board’s November meeting.

 

Senior Counsel Jerry Anderson requested additional time to conduct research. The issue will be discussed at the March 12th meeting.

 

D.   Policy Reviews

Melanie de Leon summarized a draft Use of State Resources policy submitted by the Office of the Attorney General. She noted that the policy change incorporates the amendments in WAC 202-110-010 Use of Resources.

Motion 10-003 Moved by Member Gorrell, seconded by Vice Chair Connelly:

 

The Board approves the Office of the Attorney General’s Use of State Resources policy as presented.

 

The motion passed unanimously.

 

Melanie de Leon also introduced Christopher Parsons and summarized a draft Prohibiting Private Use of State Resources policy submitted by the Department of Ecology.

Motion 10-004 Moved by Member Gorrell, seconded by Vice Chair Connelly:

 

The Board approves the Department of Ecology’s Prohibiting Private Use of State Resources policy as presented.

 

The motion passed unanimously.

           

E.   Annual Report

Melanie de Leon reported on the 2009 Annual Report highlighting the Advisory Opinion project and training sessions held throughout the state.

 

F.    Public Comment/Board Member Comment

No public or board member comments were expressed.

G.   Closed Session

At 10:10 a.m. Chair Jablonski noted there were no executive session items and the Board moved into Closed Session to deliberate on quasi-judicial matters. 

      At 10:30 a.m. the Board returned to regular session and reported the following:

 

Motion 10-005 Moved by Vice Chair Connelly, seconded by Member Williams:

 

The Board finds Reasonable Cause in EEB Case #09-050, Jade Duffy.

 

The motion passed unanimously.

 

H.   Discussion Items

1.     Melanie de Leon discussed the question of whether Washington Horse Racing Commission (WHRC) employees and commissioners may bet on simulcast races without violating RCW 42.52.020.  The Board reviewed and discussed RCW 42.52.020 and provisions of RCW 67.16 prior to making their decision.  Based upon RCW 67.16 as it is currently written, the Board determined that: (1) simulcast races fell under the current definition of a race meet and (2) simulcast races are conducted “under the authority of the commission” because WHRC regulated the parimutuel wagering system and was the sole authority to approve or disapprove the transmission of a simulcast race to Washington state locations.  Based upon this determination the Board opined that WHRC Commissioners and employees would violate RCW 42.52.020 if they bet on simulcast races.     

 

2.    Ms. de Leon also discussed the question of whether a wellness program that would use a state agency’s parking lot as a delivery site for weekly pre-paid, pre-packaged local farm produce to be picked up by agency employees would violate RCW 42.52.160 or WAC 292-110-010. In Advisory Opinion 96-03, the Board opined that de minimis use of state resources to support recreational activities as part of a wellness program had already been addressed in WAC 292-110-010 because it allowed for de minimis use of state resources when (a) there is no cost to the state; and (b) such use does not interfere with the conduct of state business. The same rule permitted de minimis use of state resources when there is a public benefit, direct or indirect.

The current Board opined that WAC 292-110-010 still allows use of state resources for wellness activities under:

(2)(b).   An agency head or designee may authorize a use of state resources that is related to an official state purpose, but not directly related to an individual employee's official duty; and

(2)(d).   A state officer or employee may make an occasional but limited personal use of state resources only if each of the following conditions are met:

There is little or no cost to the state;

Any use is brief;

Any use occurs infrequently;

The use does not interfere with the performance of any officer’s or employee’s official duties; and

The use does not compromise the security or integrity of state property, information, or software.

The activity presented to the Board consisted of the use of an agency parking lot as the delivery site for local farmers to use to drop off boxes of fresh produce to agency employees on a weekly basis.  This service would be offered as a subscription only service that is managed via a competitively bid contract made by the agency with local farmers.  The farmers then package fresh, locally grown produce into boxes that are delivered to agency subscribers at their place of employment once per week at a designated time. 

The Board understood that the employee merely had to go out to the delivery site, take their box and store it until they left work for the day.  It would be up to the agency to determine how, or if, to store boxes for the employees and how to make this service available to all agency personnel so as not to violate RCW 42.52.070.

3.    Ms. de Leon also summarized whether off-duty Washington State Patrol (“WSP”) personnel could be permitted to participate in Special Olympics functions while in uniform without violating RCW 42.52.160 or WAC 292-110-010.  Under WAC 292-110-010(2), an agency head or designee may authorize the use of state resources for activities that promote organizational effectiveness.  Under Advisory Opinion (AO) 2002-02A, “organizational effectiveness” relates to an agency’s mission and encompasses activities that enhance or augment the agency’s ability to perform its mission.  The Board opined that state agencies may allow employees to participate in activities that are not official state duties but that promote organizational effectiveness by supporting a collegial work environment.  So long as the employees who participate in the activity limits their use of state resources, then these activities would not undermine public confidence in state government. 

 

The AO further stated that while the Ethics Act normally prohibits the use of state resources to support outside organizations or groups, including charities, unless the support is part of the agency’s official duties, WAC 292-110-010 allows agency heads to nevertheless approve a de minimis use of state resources for activity that promotes organizational effectiveness even if that activity may incidentally support a private organization. 

 

In this case, the agency head has specifically allowed uniformed personnel to wear the WSP uniform during specified off-duty functions under policy 16.00.030.  This designation by the agency head falls under the exception delineated in WAC 292-110-010(5)(b), therefore, the Board opined that WSP personnel may wear their uniforms when participating in Special Olympics functions without violating the Ethics Act.

 

I.      Miscellaneous Matters/Adjournment

There being no miscellaneous matters, the meeting was adjourned at 11:10 a.m.

 

Approved by the Board 3/12/10