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


March 11, 2005

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 Vice Chair Trish Akana at 9:05 AM.  Present were Members Evelyn Yenson, and Judy Golberg, and Chair Paul Zellinsky, participating by telephone.   Member Marilee Scarbrough was excused.  Board staff in attendance included:  Interim Executive Director Kent Nakamura, Senior Assistant Attorney General Linda Moran, Investigator Linda Stark, and Investigator Sue Jones. 


Guest Susan Harris, the incoming Executive Director, also attended the morning session.  Ms. Harris’ employment starts on March 21, 2005.


2.      Approval of Agenda

Kent Nakamura asked to include on the agenda a March 9, 2005, request from a current state employee for the Board’s approval of an employment contract.  Members Yenson moved, Golberg seconded to approve the March 11, 2005 Agenda as amended.  MOTION carried.


3.      Approval of February 11,  2005 Minutes

Corrections to the minutes included typographical errors.  In addition, the last paragraph on page 2 should indicate that Member Scarbrough and not Yenson volunteered to serve on the rules-review ad hoc committee. 


On page 5, fifth paragraph, Vice Chair Akana proposed that the sentence read: “The Board expressed its interest in having its view on the impact of the legislation on the ethics law shared with the Governor.” 


Member Golberg moved, Chair Zellinsky seconded to approve the February 11, 2005 Regular Meeting Minutes as amended.  MOTION carried.  



B.                Proposed Stipulations and Orders


1.      EEB Case No. 03-020 (Meeks)

Mr. Nakamura briefed the Board on the proposed stipulation and order.  Vice Chair Akana asked whether the Attorney General’s Office has a policy on ethics training and whether Mr. Meeks had received ethics training.  Linda Moran indicated that every employee in the Attorney General’s Office receives ethics training upon employment and then every three years.  Vice Chair Akana asked whether Mr. Meeks was still an employee in the Attorney General’s Office.  Mr. Nakamura indicated that he was not.  The Board’s deliberation on the proposal was deferred until executive session.


2.      EEB Case No. 03-082 (Newcomb)

Mr. Nakamura briefed the Board on the proposed stipulation and order.  Board members asked that non-substantive changes be made to the document. The Board’s deliberation on the proposal was deferred until executive session.



C.                Advisory Opinions


Use of public resources for employee training and education.

Mr. Nakamura explained that he had been asked for informal advice on the use of state resources for employee training and education.  Mr. Nakamura posed the question to agency-designated ethics advisors to discern agency practices.  The responses from ethics advisors showed a range of variability.  As a result of the responses, Mr. Nakamura suggested that the Board provide guidance in a formal Advisory Opinion or in the format of a Frequently Asked Question. 


The Board discussed the scope of the issue and frequency of requests for guidance.  The Board asked Mr. Nakamura to develop a draft “frequently asked question” with the answer being framed around supervisory acknowledgement and documentation that an employee’s training and education is relevant to the employee’s current position or is job-related.  For non-job related training and education, the de minimis rule on brief and infrequent use of state resources for limited unofficial use would apply. 



D.                Policy Reviews


Everett Community College Proposed Ethics Policy.

Guest Elizabeth Olson attended on behalf of the College. Ms. Olson indicated that the Everett Community College crafted its ethics policy based on the Board-approved policy for the Highline Community College.  Vice Chair Akana expressed concern that the College’s policy omitted listing all the limitations for gifts, for example, under RCW 42.52.150 and it was unclear whether the College intended that their policy be stricter than the law.  Ms. Akana also noted that the exception to the prohibition on the “use of state resources for personal benefit” is really a five-part test. 


The Board discussed earlier comments and asked for clarification in the “Frequently Asked Questions” section on the following topics:  cell phone use and a system of reimbursement; political campaigns and use of an employee’s title to support a candidate or a ballot proposition; installation of software on a state computer; and honorarium.   


Ms. Olson indicated that she would ask the College’s Assistant Attorney General to review the College’s policy before it was finalized and brought back to the Board for approval.



E.                 Staff Report


1.      Legislative update

HB 1806/SB 5811 – encouraging the transfer of ethics to the Governor’s Office

Mr. Nakamura reported that HB 1806 was amended as a substitute bill to include the regional universities, Washington Technology Center, and any other affiliated research or technology institute.  

At the conclusion of the Board’s February meeting, Vice Chair Akana and Mr. Nakamura spoke with Mark Baldwin in the Governor’s Policy Office about HB 1806 and concerns the Board had with the legislation as proposed as it created from the Board’s perspective a two-tier system of ethics---one for research employees in universities and another for research employees in other state agencies.


Mr. Nakamura stated that he had Staff contact COGEL members asking how others treat university research employees under their ethics law. Staff found that there was no clear direction. Other states’ laws treated university employees the same as all other public employees--a few states’ laws had no jurisdiction over university employees, and two states’ laws providing exceptions for university research employees to enter into contracts between the University and employees.  California did not respond to staff’s requests for information.


Vice Chair Akana inquired whether the Board wished to have its concerns put in writing and formally communicated to the bill’s sponsors.  Discussion ensued on how ethics became an issue in the technology bill.  Member Yenson indicated that the Board will carry out any legislative changes should the bill be signed into law.


Vice Chair Akana handed out an issue paper that framed the three unanswered questions raised by the Board and the impact of the legislation on the ethics law; (1)  what is the problem with the current ethics law, (2) why has the Board not been given the opportunity address any ethics issues concerning the transfer of technology, and (3) how can applying the ethics law to certain research employees result in a consequence while the same behavior by research employees of universities may not have the same consequences?  The Board reached consensus that Mr. Nakamura would prepare a letter to the Governor, with the position paper attached, for Chair Zellinsky’s signature with all Board members listed. The letter will indicate that if the legislation becomes law,  the Board  wants to be involved in reviewing administrative processes proposed by universities prior to the Governor’s approval.


Mr. Nakamura agreed to draft the letter and submit the draft to Chair Zellinsky, Vice Chair Akana, and Member Scarbrough for their review and comment.  The expectation was that the final letter be signed by Mr. Nakamura for Chair Zellinsky and sent to the Governor by the middle of next week.


HB 1944 – allowing raffles conducted by state employees

Mr. Nakamura indicated that the Board was asked whether HB 1944 would create a conflict with an advisory opinion as the Board determined that gambling, even if legal, could not be conducted by employees.  Vice Chair Akana said she had analyzed the issue and found no conflict.  The Board’s advisory opinion specifically addressed the personal profit or gain to an individual not being allowed.  However, the profit or gain on behalf of a charity as proposed by the legislation would comport with the opinion that there be no personal profit or gain from a legal activity to raise funds for charity.


HB 2089 – raise gift amount to $75.00 with $10 increase on even-numbered years

Mr. Nakamura indicated that the bill was amended to eliminate the $10 increase.   Ms. Moran indicated that it was her belief that the Legislative Ethics Board allowed legislators to pay the difference between the cost and the $50 allowed by law.  There is no similar interpretation by this board and the Board indicated it was not inclined to support such an interpretation.


HB 1051/SB 5046 – legislative ethics board bills on terms and discretion to have certain matters investigated

The bills continue to be heard in legislative committee.


SB 6026 – allowing members of the EEB to serve a second terms

The bill was moved to the rules committee.


2.      Ethics Challenge

Mr. Nakamura reported that Brian Jensen at the Department of Information Services had retrieved a copy of the agreement between the Attorney General’s Office and DIS for development of the “ethics challenge.”  The source document indicates that the Board holds the license and is authorized to sublicense the program.  Mr. Nakamura indicated he would get back to the Seattle Ethics and Election Commission on their request to utilize the “ethics challenge.”


3.      King County Ethics Board and joint statement

The Board reviewed the events that transpired prior to the King County Ethics Board’s recent request for an EEB member to participate in a luncheon in May.  Chair Zellinsky said he would attend the luncheon on behalf of the Board. 


4.      Contract Review

Mr. Nakamura provided members with a copy of e-mail messages from a current state employee who requested the Board’s approval of a contract for employment.  After discussion, the Board approved the contract subject to compliance with the conditions of RCW 42.52.080, employment after public service.  The Board’s assumption that there is no conflict of interest is based on reliance of documents as to accurate representation that employee did not negotiate or participate in the contract; there are documented qualifications; and the representation that a need for contract services exists.


5.      AAG Report

Linda Moran reported on her legal analysis of the steps to be taken by the Board should the Executive Director, a Board investigator, a Board prosecutor, the Board’s legal counsel, or a Board member recuse from a complaint filed with the Board.   



F.                 Public Comment/Board Member Comments

Brian Jensen asked for clarification on the Board’s earlier discussion about using state resources for training and education.  Mr. Jensen wanted to know what the Board meant by “job related” and whether the Board meant “official duties.”  The Board said the correct term was “official duties.”


Vice Chair Akana distributed a copy of a draft memorandum of agreement that she and Member Scarbrough provided to Chief of Staff Milt Doumit on the client services that the Board receives from the Attorney General’s Office.  Ms. Akana asked that comments on the agreement be provided to her before the next regular meeting of the Board.


Lunch 12:10 – 12:40



G.                Executive or Closed Session

At 12:40 pm the Board moved into Executive Session to receive and evaluate complaints against public employees or officers with staff and Board counsel in attendance.  At 1:40 pm the Board moved into closed session to discuss with legal counsel matters relating to litigation or potential litigation to which the Board is or is likely to become a party.


At 2:00 pm the Board reconvened the public meeting. 


The Board announced its action on the following Stipulated Facts, Conclusions and Order:


1.   EEB Case No.03-020 (Meeks)



1.   EEB Case No. 03-082 (Newcomb)



H.                Miscellaneous Matters/Adjournment


There being no miscellaneous matters, the meeting was adjourned at 2:03 pm.