January 14, 2005

Regular Meeting Minutes




2425 Bristol Court SW – 1st Floor Conference Room 148 in Olympia




A.        Preliminary Business


            1.         Roll Call


Meeting commenced at 9:05 am with roll call.  Present were Vice Chair Trish Akana, Member Marilee Scarbrough, Member Evelyn Yenson, and Member Judy Golberg.  Chair Paul Zellinsky appeared by telephone.  Also in attendance were: Interim Executive Director Kent Nakamura, Assistant Attorney General Linda Moran, Investigator Linda Stark, and Compliance Analyst Mechele Linehan.  Vice Chair Akana welcomed Member Golberg to her first regular meeting of the Board.  Member Golberg provided the Board with a brief background on herself.


            2.         Approval of Agenda


Vice Chair Akana asked for approval of the meeting agenda.  MOTION by Member Scarbrough to approve the agenda.  Seconded by Member Yenson.  Unanimous approval.


            3.         Approval of October 8, 2004 Meeting Minutes


Member Yenson proposed an amendment on page 2, Item B., second paragraph, third sentence to include “previous” to “…Member Yenson explained her previous experience….”   MOTION made by Member Scarbrough to approve the minutes as amended.  Seconded by Member Yenson.  Unanimous approval.


Approval of December 10, 2004 Meeting Minutes


Vice Chair Akana asked for a Motion to approve the minutes as proposed.  MOTION by Member Yenson.  Seconded by Member Scarbrough.  Unanimous approval.


B.        Strategic Plan Update/Board Policies


Vice Chair Akana provided a brief summary of the Board’s December 10, 2004, modifications and refinements to the Board’s 2005 Strategic Plan as follows:

·        The vision, mission, and goals were unchanged:  the value were modified to reflect how the Board would like to be viewed as respectful, competent, trustworthy, fair, possessing integrity, and stewards of the Ethics in Public Service Act. 

·        Consensus was reached on the 14 objectives formerly developed by the Board with the addition of a new objective: educate and inform private stakeholders under Goal No. 2, Fulfill Legislative-Mandated Responsibilities.

·        The 15 objectives were agreed upon and prioritized with 9 objectives being designated as the highest priority.  The other 6 objectives were grouped into a lower priority.

·        The 9 highest priority objectives were further narrowed to the 4 top most – first tier priorities to focus the Board’s resources with the other 5 objectives grouped into a second tier.  The 6 lower priority objectives were placed in a third tier.

·        From the 4 top most, first tier priorities, the Board scoped a number of activities that could be undertaken to achieve each of the priority objectives.


            Member Yenson commented that the Plan would require increased resources to accomplish the Board’s vision.  Member Scarbrough said that a lot of work lies in front of the Board indicating that the Board will need to further narrow down the list of activities.  There was agreement that the Board would revisit the Plan at its regular meetings.  Chair Zellinsky indicated that staff vacancies needed to be filled if implementation of the Plan is to begin soon.  MOTION by Member Yenson to adopt the Board’s 2005 Strategic Plan.  Member Scarbrough seconded the motion.  Unanimous approval.


Vice Chair Akana indicated that the December 10, 2004, Draft Board Member’s Policies needed to have “charter” replaced with “policy” under the section titled “Board Review of Policies”, on page 1.  Ms. Akana noted that on page 3, under Policy 4.3(a), last sentence, the Board Secretary needs to be corrected.  Member Scarbrough suggested deleting the word “Secretary”.  Ms. Akana explained that the citations on page 2 needed to be in parenthesis as was recommended by Member Scarbrough in the drafting of this version.


Member Yenson suggested that a clean copy of the text would clarify what is being proposed.  Member Golberg noted that the red-line document allowed her to see what changes had been made since she was unable to participate throughout the Board’s discussion on December 10, 2004.  There was agreement that the next iteration of the document would omit the notations in the margin explaining what was deleted.


Member Scarbrough referred the Board to page 2 under Policy 1.3 suggesting that the term “philosophy” be replaced with “strategic plan” in the sentence.  Member Scarbrough proposed that the first sentence under Policy 1.7 read: “The Board shall deliberate on…” rather than “review” and proposed moving “without the presence of the Executive Director” in the second sentence to the end of the first sentence.  On page 3, Policy 2.2(c), Member Scarbrough suggested adding a sentence at the beginning of that paragraph to read: “The Executive Director, in consultation with the Board Chair, shall handle or respond to media inquiries.”  Chair Zellinsky said there were some media questions that the Executive Director could handle without consultation, such as requests for public records.  Board Counsel Linda Moran suggested that the Board develop written guidance for the Executive Director identifying matters where consultation with the Board Chair would not be necessary.  Chair Zellinsky indicated he would assist Ms. Moran in developing guidance.


Member Scarbrough proposed that on page 4, Policy 6.1, the sentence read “The Board will participate…” rather than “cooperate”.  Counsel Moran suggested deleting Policy 6.5 on page 4 and changing the title to “Complaints Filed Against Employees in Attorney General’s Office.”


The proposed changes will be made and a revised version of the Policies document will be available for the Board’s review, comment, and approval at next month’s regular meeting.


C.        Staff Report


1.                  Scheduling of Hearings –

a.      EEB Case No. 01-099 (Tjemsland); Reschedule

b.      EEB Case No. 03-020 (Meeks); March 14-15, 2005


Legislative Ethics Board (LEB), Mike O’Connell contacted the Board to indicate that the LEB is proposing legislation to allow the LEB to address the ethical issue of using state resources for campaign purposes.  The proposed legislation would be comparable to the EEB’s authority to address the issue in the executive branch of government.


2.         Frequently Asked Questions -

Mr. Nakamura reported that the Frequently Asked Question on the issue of political buttons was re-written addressing the concerns expressed by the Board at its October 8, 2004 meeting.  With respect to questions regarding political buttons, EEB Advisory Opinion 02-02A aligns the answer with the response in Senior Assistant Attorney General Jim Pharris’ 1996 and 2004 opinions. 


3.         Volume of Inquiries -

Mr. Nakamura distributed a copy of documentation illustrating the volume of e-mail traffic that is received at the Board’s office.  The Board discussed the number of post-employment issues that are raised by DSHS providers and inquired if DSHS has an internal method of disseminating information.  Mr. Nakamura indicated that given the number of employees in DSHS that knowledge of the agency and EEB approval process is not widely known or recognized with only 2 ethics advisors for the entire agency.  Vice Chair Akana acknowledged that most ethics advisors have a number of duties with ethics being added to their workload.


4.         Agency Ethics Advisor Roles -

Ethics Advisor Harvey Gertson, Department of Transportation spoke that as an internal auditor the audit office had 78 questions last year that had been given assignment numbers.  Kent Nakamura indicated that the Board staff created a file for written requests received from state officials and employees.  The Board assigned numbers to requests for the review of grants and contracts.  Member Yenson inquired whether telephone calls where staff provided oral advice or answers to questions were being memorialized.  Mr. Nakamura indicated that telephone callers were asked to put their request in an e-mail message to Board staff so that a written reply could be provided.  Member Yenson said that any verbal answers to ethics questions needed to be logged by Board staff with a record of the advice that was provided.  Member Yenson asked whether the agency ethics advisor was sent a carbon copy of the Board staff’s written e-mail reply.  Mr. Nakamura responded that not all agencies have an ethics advisor.  Ethics Advisor Laura Lowe, Department of Ecology, added that sometimes an employee wants to be anonymous to ensure confidentiality and so the agency would not be notified. 


Member Yenson asked the other ethics advisors attending the meeting to share what role they performed with respect to ethics.  Ron Keys with Liquor Control Board said that the agency’s Human Resource Director served in the capacity of ethics advisor.  He indicated that most of the ethics questions were on the subject of outside employment.  Ms. Laura Lowe, Department of Ecology, said that the agency has a two-tier ethics process with the agency’s Human Resource Director of Employee Services who was a resource for ethics advice and herself as a point of contact who also provides ethics training.  Ms. Lowe emphasized that her role as an ethics advisor was just one of her many responsibilities as she is also the agency’s contracts and grants manager.  Brian Jensen, Department of Information Services, said that his role of ethics advisor was a small part of his job as well since he is also the agency’s contracts and grants manager.


Vice Chair Akana asked the ethics advisors if they were seeing a recurring category (such as gifts, or computer use on state time) of ethics questions presented to them or a pattern of commonly-asked questions.  Outside employment contracts was one area identified by some of the ethics advisors as a general area where they frequently were contacted about.  Ethics Advisor Laura Lowe, Department of Ecology said that the agency’s Employee Services is planning a new approach to communicating ethics.  The agency would be sharing with employees a “sterilized” version of an ethics situation with identifying employee information being redacted.  Member Yenson asked if the scenario might have broader application outside the agency and could be shared.  Ms. Lowe said the “sterilized” document would be broad, and she was willing to share these with any agency that would like to have them.  


5.         Ethics Training -

Member Yenson stressed that with the incoming administration, the Board needed to write a letter to directors of agencies offering information and training to executive level managers on the state’s ethics law.  Member Golberg pointed out that the Board needed to move quickly and that making direct contact with the head of agencies was a top priority in the Board’s strategic plan.  Member Golberg commented that the time is now, to start at the top of an organization, in hopes that the message would filter down into the workplace.


6.         King County Ethics Board Meeting -

Vice Chair Akana indicated that she would be attending the King County Board of Ethics’ Annual Retreat tomorrow, Saturday, January 15, 2005.  Also attending the retreat will be the Chair of the Seattle Ethics and Elections Commission.  The purpose of the meeting is to develop collaborative relationships across the three jurisdictions.  Ms. Akana said she was looking forward to presenting the EEB’s adopted Strategic Plan at tomorrow’s meeting and seeing the other jurisdictions’ plans.


E.         Contract and Private Employment Reviews


There were no contract and private employment reviews for the Board’s consideration.


F.         Policy Reviews


1.                  Liquor Control Board

Ron Keys attended the meeting on behalf of the Liquor Control Board to answer questions about the agency’s Information Technology proposal.  Member Scarbrough asked whether the agency had considered what would be deminimis use of the internet before setting no limit.  Ron Keys said that the Liquor Control Board did consider the question and determined that internet use during a 15-minute break or on the lunch period would be acceptable.  Member Yenson asked why the standard of 15 minute break and lunch period was not put in the policy.  Mr. Keys replied that given the number of variables that have to be considered, the Liquor Control Board felt it was best to leave the decision to management discretion.


Chair Zellinsky cautioned for the careful crafting of policies.  Counsel Linda Moran said that the language in the Liquor Control Board’s policy was exported from the text that the Attorney General’s Office provided its client agencies.  While being guidance, Ms. Moran said that the policy provides for flexibility until case law provides a more specific bright line that can be driven down in a more direct way.  Member Yenson described how the policy is consistent with the information she received in a recent ethics class taught by the Board’s trainer Debbie O’Dell for the Department of Revenue. 


Harvey Gertson said that the Department of Transportation, which has 6,500 employees, relied upon the Board’s January 2003 meeting minutes where the Board rejected a policy on internet use.  Mr. Gertson said that the Board sent a policy back to an agency because 15 minutes a day for personal internet use on a state computer was considered by the Board as exceeding the deminimis standard.   Mr. Gertson said that the Board viewed five to ten (5 to 10) minutes personal use of the internet from a state computer on an infrequent basis would be deminimis.


Vice Chair Akana asked whether the Liquor Control Board had a written formal policy on cell phones as the proposed policy contained a reference to such a policy.  Mr. Keys replied that the Liquor Control Board has an oral policy for cell phone use.  Ms. Akana noted that the Liquor Control Board’s policy on information technology did not address state-issued cell phones, laptop computers or PDAs.  Mr. Keyes said that these tools were not presently being made available to employees at the Liquor Control Board. 


Vice Chair Akana asked that the proposed policy include text on page 2 as a lead in to the paragraph that reads “LCB employees may make occasional, limited personal use of the agency’s information technology resources….” to include “Except for those private uses that are explicitly prohibited above,”.  Ms Akana explained that an employee reading only page 2 of the policy as it is proposed could take it out of context without the express mention that there are prohibitions identified in the policy.  


Member Scarbrough moved to approve the Liquor Control Board’s policy with the modifications proposed by Member Akana including the policy review recommendations contained in the Board staff’s memorandum to the Board dated this day.  MOTION was seconded and approved as amended.


2.         Everett Community College

There was no one present from the Everett Community College (hereafter “College”) to explain its “Ethics in Public Service” Policy proposal.  Mr. Nakamura corrected the second sentence in the third paragraph under “Policy Analysis” of the January 14, 2005, memo to the Board to read: “In addition, the policy instructs employees to send gifts bearing a value greater than $50.00…”  Member Golberg had questions about employees of the college soliciting gifts on behalf of the College Foundation and whether the intent is that any college employee could receive approval.  Ms. Golberg asked if there was legal authority in statute that set up the Foundation and allowed a staff member who is an employee or all employees to solicit gifts.  Kent Nakamura said that he did not know the answer to those questions.


Member Scarbrough asked whether the College’s ethics policy had been reviewed by the assistant attorney general assigned to the College.  Mr. Nakamura did not know the answer.  Ms. Scarbrough had several questions about the answers in the “frequently asked questions” attached to the College’s proposal.  Ms. Scarbrough’s questions concerned the use of state cell phones and a system of reimbursement requested by an employee; the use of an employee’s title with respect to political campaigns; and the textbook review and acceptance of honarium.  Member Golberg noted that there is a distinction between an employee using his or her title when supporting or opposing a candidate for office and when supporting or opposing a political initiative.  Ms. Golberg pointed out the answer to loading Quicken on a state computer is simply “no” and would suffice as the answer.


The Board asked the Executive Director Kent Nakamura to let the College know that the proposed policy has been reviewed by the Board and that clarification is needed before the Board can provide its approval.  Member Scarbrough recommended that the Board’s concerns be listed and presented to the College for its response.  Member Scarbrough asked that Mr. Nakamura inquire of the College whether their assistant attorney general has reviewed the policy.  Members Scarbrough and Golberg asked that someone from the College participate in a Board’s meeting when the intent of the language of the Policy has been clarified and resubmitted for the Board’s review and approval. 


G.        Public Comment/Board Member Comments

The Board thanked the ethics advisors Brian Jensen, Harvey Gertson, Ron Keys, and Laura Lowe for contributing their insights on the kinds of ethics questions they come across in their agencies and their agency process for handling requests for ethics advice.  The Board encouraged the ethics advisors to continue their participation at subsequent Board meetings and thanked them for attending today’s meeting.


H.        Executive or Closed Session


At 11:25 the Board moved into executive session to receive and evaluate complaints against public employees or officers with staff and Board Counsel in attendance.  At 12:30 the Board moved into closed session to consider several quasi-judicial matters with Board Counsel Linda Moran. 


At 12:45, the Board reconvened the public meeting.  Vice Chair Akana reported the following actions taken by the Board:


1.      EEB Case No. 03-027 (Kim Wheeler)

Board determined that there is reasonable cause to believe a violation of the ethics law has been or is being committed. 


2.      EEB Case No. 03-082 (Raymond Newcomb)

Board determined that there is reasonable cause to believe a violation of the ethics law has been or is being committed. 


3.      The Board affirmed the Executive Director’s dismissal in the Victoria Munoz Richart case, EEB Case No. 03-018.


I.          Miscellaneous Matters/Adjournment


            Meeting adjourned at 12:50 p.m.