Executive Ethics Board Meeting Minutes
February 13, 2004
 
A.      Preliminary Business
            1.            Roll Call - The meeting was called to order at 9:30 a.m. Present were Chair, Marilee Scarbrough; Vice-Chair,Paul Zellinsky; and Member,James Vaché. Mr. Zellinsky appeared by telephone.  Also in attendance: Executive Director, Brian Malarky; Board Counsel, Kent Nakamura; Investigator, Sue Jones; Board Staff, Debbie O’Dell. Mr. Malarky introduced new volunteer intern,Mechele Linehan.  Chair Scarbrough indicated that Member Akana is excused due to a death in the family and that the Board sends her and the family their condolences.
            2.         Approval of Agenda –Motion was made, seconded and passed to approve the agenda as written. 
            3.            Approval of January 12, 2004
Regular Meeting Minutes – Mr.Malarky asked the Board to amend the minutes to reflect that the January meeting was a regular rather than special meeting and to note that the Board accepted two stipulations and orders with minor modifications.  Motion made, seconded and passed to approve the
January 12, 2004 minutes with the recommended changes.

B.      Proposed Stipulations and Orders

            1.         EEB Case No. 01-009 (Fitzgerald)  The proposed stipulation and order resolves allegation that Brian Fitzgerald, a former Clinical Pharmacist at Fircrest School, violated the Ethics in Public Service Act when he received $2,750 in compensation for five speaking presentations from a pharmaceutical company that engages in business with Fircrest School.  Under the proposed agreement Mr.
 Fitzgerald
agrees to pay a civil penalty in the amount of seven hundred fifty dollars ($750) and reimburse the Board for investigative costs in the amount of five hundred dollars ($500).  The Board agrees to suspend two hundred fifty dollars ($250) of the civil penalty on the condition that Mr. Fitzgerald complies with all terms and conditions of the agreement and commits no further violations of the Ethics Act. Member Vaché asked if agency records indicated that Mr. Fitzgerald received ethics training from Board Staff. 
Mr. Malarky responded that he had not.  Member Vaché asked whether that individual was the supervisor at the time of allegations.  Mr. Malarky responded, "Yes".  Member Vaché then asked about prior supervisors.  Mr. Malarky noted that the investigation did not include the conduct of other supervisors. 

 

Results: After considering the matter in closed session, the Board accepted the proposed stipulation and order. 

 
            2.         EEB Case No. 02-003 (Willhite)  The proposed stipulation and order resolves an allegation that Ron Willhite, a former employee of the Department of Corrections (DOC), used his state position to secure special privileges and exemptions by using inmates and facilities to perform work in support of a non-profit entity of which he was the director.  Under the proposed agreement Ron Willhite will pay $1,640.25 to the DOC for inmate wages and investigative costs in the amount of $250 to the Board. 
Mr. Willhite will also pay a civil penalty in the amount of five hundred dollars ($500).  The Board agrees to suspend the entire civil penalty on the condition that Ron Willhite complies with all terms and conditions of this Stipulation and Order and commits no further violations of the Ethics Act. Chair Scarbrough inquired about which inmate labor rates were appropriate.  Member Vaché asked if there would be a way to determine the correct rates based on the auditor's report and Board staff's analysis. Mr. Malarky
responded that the exact rate couldn't be calculated because the inmate's work did not relate to institutional support.  Chair Scarbrough asked whether the balance of $1640 was labor before or after 1997.  Mr. Malarky replied "after".  Mr. Malarky commented that the investigation was unable to determine a starting point for inmate wages.

Results: After considering the matter in closed session, the Board modified the proposed stipulation by eliminating the requirement that Mr. Willhite pay the $1640.25.  The Board imposed a civil penalty of $750 with $250 suspended.  The unsuspended civil penalty of $500 included investigative costs of $250.

 
            3.         EEB Case No. 02-043 (Vukich) The proposed stipulation and order resolves an allegation that Edward Vukich, a former Sentencing Guidelines Commission (SGC) employee used his state computer to send or receive personal e-mail, compose personal documents and access Internet sites for personal reasons.  Under the proposed agreement Mr. Vukich agrees to pay a civil penalty in the amount of two hundred fifty dollars ($250).  The Board agrees to suspend the entire civil penalty on the condition that Mr. Vukich complies with all terms and conditions of this Stipulation and Order and commits no further violations of the Ethics Act. 
Mr. Vukich will pay $250 for investigative costs in this matter. Chair Scarbrough noted that the agency stated that "this" was not a misuse violation. Mr. Malarky

indicated that the violation was related to the extensive use of state resources for personal banking and to play trivia games.  Vice-Chair Zellinsky asked why the agency felt the activity was de minimis. 

Results: After considering the matter in closed session, the Board modified the proposed stipulation by deleting the suspended civil penalty so that the total amount payable shall be $500.

 C.      Advisory Opinions
            1.         Advisory Opinion 04-01, Links to a Private Organization Web Site Advice Opinion   Mr.
Malarky briefed the Board members regarding discussion held at the last meeting on whether or not a state agency may maintain a direct internet link to private non-governmental web sites or web pages that may advocate for or against a ballot initiative or a political candidate.  After extensive discussion, the Board asked the Executive Director to implement the changes recommended by General Administration regarding a disclaimer on the state agency websites and return the opinion to the Board for final approval. Chair Scarbrough then asked public comments. Mark Lyon, counsel for the Washington Public Employee Association (WPEA) encouraged the Board to maintain the direction the Board was taking regarding the disclaimer.  The WPEA understands and supports the direction that the Board is taking.  However, the WREA would not support an advisory opinion that limits what their organization may put on their website.

          

2.         Advisory Opinion 04-02, Use of State Facilities to Support Commercial Activity  Mr.Malarky provided a summary of previous discussion at the last Board meeting regarding the use of state facilities to participate in the creation of letters of recommendation or the review of articles in support of vendors to promote or sell products to other clients.  After discussion, the Board directed the Executive Director to strengthen the language prohibiting the use of state resources to support private commercial activity unless there is statutory authority to provide such references. 

D.      Staff Report

          1.         Legislative Update – No legislation regarding the Ethics in Public Service Act passed in the 2004 legislative session.

          2.         Agency Rule Making Update - Mr. Malarky shared a copy of the Board’s letter to General Administration regarding proposed rules relating to Employee Business Units. Mr. Malarky also shared a copy of the Forest Practice Board's proposed rule with strikeouts and additions and noted that one aspect of the proposed rule imposes standards that are more stringent than the Ethics Act.  Chair Scarbrough inquired on the status of the proposed rules. Mr. Malarky indicated that more than likely they have been adopted.  The Board discussed adding agency rules to Board’s "safe harbor" provisions for Board approved policies.  Motion made, seconded and passed to move the Public and Board Comment before Executive or Closed Session. 

E.      Public and Board Member Comments The public was invited to make comments.  No public comments were made.  Member Vaché inquired on the status of the revision to an informal staff analysis r related to the ability of state officers and employees to sell complimentary textbooks and then donate the proceeds or to give textbooks to charities or student organizations. Mr.Malarky indicated that he conveyed the Board’s comments via email and will provide a copy to the members.

F.      Executive or Closed Session At 12:01 p.m., the Board moved into executive session to consider complaints against public officials.  The Board, Board Counsel, and Board Staff attended the executive session.  At 12:15 p.m. the board met in closed session to consider proposed stipulations and orders in several quasi-judicial maters before them.
G.      Miscellaneous Matters/Adjournment After reconvening the public session at 12:30 p.m., the Board accepted the proposed stipulation and order in EEB Case No. 01-009.  The Board also accepted the proposed stipulations and order in EEB Cases No. 02-003, and No. 02-043 with modifications.  The Board announced that due to conflicts in schedules, the March Board meeting may need to be cancelled or rescheduled.  The meeting adjourned at 12:40 p.m.