STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
REGULAR BOARD MEETING
March 9, 2001
The Executive Ethics Board convened in regular session at 9:45 a.m. at 12806 Gateway Drive, L&I Field Service Facility, Tukwila, Washington.
James M. Vaché, Chair
Laquita Fields, Vice Chair
Cheryl Rohret, Board Member
Sutapa Basu, Board Member
Brian Malarky, Executive Director
William Collins, Counsel to the Board
Jerri Thomas, Counsel to Executive Director
1. PRELIMINARY BUSINESS
a) ROLL CALL
Board members James Vaché, Cheryl Rohret, Laquita Fields, and Sutapa Basu were present.
b) APPROVAL OF AGENDA
The Agenda was approved.
c) APPROVAL OF MINUTES FROM JANUARY 11, 2001, REGULAR MEETING
The minutes from the January 11, 2001 regular meeting were approved with minor grammatical changes. Member Rohret moved and Member Basu seconded a motion to approve minutes with changes. Motion passed.
d) APPROVAL OF MINUTES FROM FEBRUARY 9, 2001, SPECIAL MEETING
The minutes from the February 9, 2001 special telephonic meeting were approved with removal of Laquita Fields being present at the meeting. Member Basu moved and Vice Chair Fields seconded a motion to approve minutes with changes. Motion passed.
Jerri Thomas introduced new investigator, Robert McGuire and he addressed the Board.
3. PUBLIC DISCLOSURE OF PROPOSED STIPULATIONS AND ORDERS OF SETTLEMENT
Bill Collins presented information regarding the public disclosure law as it relates to the Board's proposed stipulations and orders of settlement. It is Bill's opinion that the Pubic Records Act does require release of stipulations and orders prior to Board members retiring to Executive Session.
Board members discussed and agreed with Bill's analysis. Board members indicated that policy and rules relating to public records need to be clear and articulate and that they reserve the right to deliberate proposed stipulations and orders of settlement in Executive Session.
4. REVIEW OF PROPOSED CHANGES TO BOARD RULES
Executive Director, Brian Malarky, presented proposed changes to board rules. Following is a brief summary of discussion outcomes:
WAC 292-100-007 - Member Rohret would like to see the addition of counsel as board staff.
WAC 292-100-040 - add WAC cite 292-100-045 to last sentence.
WAC 292-100-041(2)(3) - add "…or summary thereof…" after the first "complaint".
WAC 292-100-042(1)(2) - change "prosecuting attorney" to "law enforcement authority.
WAC 292-100-045 (1)(a) - add the word "alleged" after the word "any".
WAC 292-100-046 - add language allowing Board members to request a review of dismissal decisions. Provide 20 days for board members to request a dismissal review. Notice from board member needs to be in writing via post mark rule or email; material to be provided to board members includes complaint and any other material member requests.
On page 9 in definition of Amended Section - add "of" after "requirement".
WAC 292-100-070 - add language regarding documents to be made public, i.e.,
Complaint, reasonable cause, investigative report, proposed settlement.
WAC 292-100-170 - time frame for petitions for review are different for parties than for board members. The new rules should allow time for Board members to request a review of an initial order at the next Board meeting.
On page 20, the Board asked what "Insert model rule or adapt it" means at the end of WAC 292-100-1(5).
All other changes were accepted.
5. DRAFT Advisory Opinion 01-02
The Executive Director briefed this opinion which was introduced at the February Board meeting. The final draft included the issues raised by the Board after its first review. The opinion reflects the Board guidance regarding three basic issues.
First the meaning of "member under RCW 42.52.0303(3) is defined as a state officer or employee who holds a membership interest in an organization that is clearly distinguishable from non-members.
Next, the opinion finds that organizations that apply for a permit, or who hold an existing and competing right which must be considered by the agency when making a permit decision, are considered persons who participate in the "transaction with the state" under RCW 42.52.030(3).
Finally, the opinion finds that the group of organizations listed above does not necessarily include organizations that may have legal standing to later contest agency permit decisions in court.
Member Rohret moved to approve the opinion as drafted with minor grammatical and style changes Member Basu seconded motion. The Board unanimously approved Advisory Opinion 01-02.
6. Draft Advisory Opinion 01-03, Conflict of Interest - Current State Employee Who May Receive Royalties from an Agency Vendor
The Executive Director briefed this opinion. The request involved a Washington State Lottery ("Lottery") District Sales Representative ("Sales Representative") who formed an outside business or professional relationship with a Lottery vendor ("Lottery Vendor") when the Sales Representative's duties include making discretionary decisions regarding distribution of the Lottery Vendor's products. After reviewing the draft opinion the Board expressed concern about the relationship. The Board requested a redrafted opinion, which broadly prohibits the conduct under RCW 42.52.020.
7. Draft Advisory Opinion Request # 01-2-0205-15, Conflict of Interest - Issuing Personal Service Contracts To Officers Of A State Agency.
The agenda item was withdrawn at the request of WSSDA, the agency who submitted the initial request.
8. Draft Advisory Opinion Request # 01-2-0208-23, Use of State Resources - State Employee's Use A State Owned E-Mail System To Forward Political Messages.
The Executive Director briefed this opinion. The request involved a question from the Washington State University auditor who asked if a state employee can use a state owned electronic mail system to forward an electronic message or "chain letter" that is not related to official state business. The requester also asked if a state employee could send an e-mail related to the confirmation of a federal cabinet appointee.
The Board reviewed a draft opinion, which broadly prohibits the conduct at issue. After discussion, the Board asked that the opinion be re-drafted to clearly separate the chain letter issue from political message issue and to include the issues for open discussion at next meeting.
9. Advisory Opinion Request Number 01-0220-30, Scope of the Ethics in Public Service Act - Is The Washington State Redistricting Commission Subject To The Jurisdiction Of The Executive Ethics Board?
Chair Vaché recused himself from this discussion. The Executive Director asked the Board to request an Attorney General opinion in this matter. The Executive Director believes that the issue is a mater of law rather than an interpretation of chapter 42.52 RCW. Member Rohret moved to request an Attorney General opinion and Member Basu seconded the motion. The motion passed.
10. Policy Review Number 01-6-0117-08, Health Care Authority Policy Regarding "Hiring of Relatives" (No. 3-44) and "Outside Employment" (No. 3-45).
Member Rohret moved to approve policy as written and Member Basu seconded the motion. The motion passed.
11. Staff Report
a. Informal Staff Analysis - deferred
b. Proposed Reorganization of Attorney General's Office - Bill Collins announced that effective July 1, 2001, new counsel would be assigned to the Board as well as new counsel and prosecutors for the Executive Director. Chair Vaché noted that he had expressed his concerns regarding the reorganization to the Solicitor General.
c. Budget Update - very briefly discussed
12. Public Comment/Board Member Comments
The Board indicated that they wanted to participate in a hearing involving three Edmonds Community College cases. The Board further indicated that they wanted an ALJ alone to conduct a hearing in case # 00-05.
Agenda item #14 regarding a proposed Employee Service Department ethics policy was deferred to the next meeting
Began at 2:47 p.m. and ended at 3:34 p.m.
James M. Vache, Chair