WASHINGTON STATE

EXECUTIVE ETHICS BOARD

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

March 12, 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 9:00 a.m. In attendance were Members Neil Gorrell, Martin Biegelman and Matthew Williams III. Board staff in attendance included: Executive Director Melanie de Leon, Senior Counsel Jerry Anderson, and Investigators Nancy Lewin and Sue Jones.

2. Approval of Agenda

Melanie de Leon noted that a revised Closed Session agenda was included in the additional meeting materials folder.

Motion 10-006 Moved by Member Gorrell, seconded by Member Williams:

The Board approves the March 12, 2010 agenda as amended.

The motion passed unanimously.

3. Approval of the January 8, 2010 Meeting Minutes

Motion 10-007 Moved by Member Gorrell, seconded by Member Williams:

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

The motion passed unanimously.

B. Enforcement Matters

Approval of Stipulated Facts, Conclusion and Order

EEB Case No. 2008-119 (Hansell)

Sue Jones briefed the Board on the proposed stipulation and order in the matter of Bevin Hansell. Ms. Hansell agreed that she violated RCW 42.52.080 when she pursued and accepted employment with an entity conducting business with her agency. She added that the stipulation proposes a penalty of $500.

EEB Case No. 2008-134 (Armstrong)

Ms. Jones also briefed the Board on the proposed stipulation and order in the matter of Henrietta Armstrong. Ms. Armstrong agreed that she violated RCW 42.52.160, when she used the facilities of the Department of Social and Health Services to pursue personal interests. The stipulation proposes a penalty of $750 with $250 suspended.

EEB Case No. 2008-132 (Boyle)

Nancy Lewin briefed the Board on the proposed stipulation and order in the matter of Patrick Boyle. Mr. Boyle agreed that he violated RCW 42.52.160, when he used the facilities of Seattle Central Community College to benefit an outside business. The stipulation proposes a penalty of $250.

The Board deferred action until after closed session.

Executive Director Dismissals – EEB Case #08-030 (Brenman), EEB Case #08-120 (Randall) and EEB Case #09-003 (Clifford)

Melanie de Leon briefly summarized three Executive Director dismissals.

C. Discussion Item

Melanie de Leon introduced Steve McKerney, Marie Steffen and AAG Bryce Brown and summarized two questions posed by The Washington State Department of Transportation (WSDOT) regarding a former WSDOT employee:

1. Whether a former employee may assist a non-state employer on a state contract in which the former employee participated, to perform the same duties s/he performed as a state employee; and

2. Whether a former state employee may assist a non-state employer on a state contract in which the former employee participated, to perform new duties, even if those duties were in the contract’s scope of work without violating the Ethics in Public Service Act (“the Act”), RCW 42.52.

She reported that the only section of RCW 42.52 that applies to former state employees is .080. Whether this section applies to former employees is a factual question and depends on what the former employee did while working for the state, and what they will be doing post-state employment. Since the former employee in this case wanted to work as a subcontractor (Account Executive) to fulfill the provisions of a concession contract between a current vendor and WSDOT, RCW 42.52.080(1) could apply because the former employee would be “fulfilling or implementing, in whole or in part, the provisions of such a contract or contracts or include the supervision or control of actions taken to fulfill or implement, in whole or in part, the provisions of such a contract or contracts.” However, the former employee left state employment in July 2008 and the 1-year waiting period had passed, so RCW 42.52.080(1) would not apply to this situation.

Since RCW 42.52.080(1) does not apply to the former employee, the only other section of the Act that could apply is RCW 42.52.080(5). The Board needed to determine if the former employee “participated” in a “transaction” with the vendor as a state employee, and if so, would the former employee be participating in that same transaction as an employee for that vendor?

During the employee’s tenure with WSDOT:

· The former employee was part of an evaluation panel (one of six) that evaluated responses to a Request for Proposal for a concession contract with the Ferries Division.

· The former employee did not approve the contract award, nor negotiate any of the contract’s terms and conditions.

· The former employee did not approve the vendor’s advertising media.

· The former employee did work with the vendor to coordinate the installation of advertising media to insure all security and logistical requirements were met and that the daily operations of the ferry system were not adversely impacted.

Based upon the Board’s analysis in AO 98-02, there are multiple “transactions” between this vendor and WSDOT. These transactions included:

1. Selection of the vendor as the Concession contractor. The former employee was part of a panel of six individuals who scored responses, but this person carried no more weight than any of the other panelists. The former employee did not make the final selection; the Executive Director of the Ferries Division made the final decision to award the contract to the vendor.

2. Negotiation of the contract terms. The former employee did not participate in negotiating the terms or conditions of the contract.

3. Administration of the contract. The former employee coordinated the logistical and security needs of the contractor with WSDOT to insure that the daily operations of the ferry system was not compromised or adversely impacted.

The Board concluded that based on the facts of the actual situation, the former state employee would not violate the Act if they worked for a current state vendor as an Account Executive.

D. 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 provided legal analysis and Melanie de Leon noted that there was no relevant legislative history available on the issue.

Following discussion, the Board revised Advisory Opinion 00-08 regarding the use of a non-elected state employee’s title to promote or support the election of a person in an election or a ballot initiative under RCW 42.52.180. In the original opinion, the Board found that a person’s title was not a facility of the state, and that state employees could use their title to promote or support a person for election or a ballot initiative as long as they used a disclaimer to indicate that they were not speaking for their agency. However, the Board reversed its original opinion and determined that a state title for a non-elected employee or officer was a nontangible facility of the state, therefore subject to regulation by the Ethics Board, and could not be used to promote or support the election of a person or a ballot initiative under RCW 42.52.180. Should a state employee do so, they must accompany their actions with a disclaimer that their actions/views were personal and did not represent the views of their agency.

Ms. Lewin also discussed Advisory Opinions 96-07, Outside employment, and Advisory Opinion 99-06, Outside Compensation/Expert Testimony. She requested that the Board consolidate the analysis and considerations since they are very similar and reach essentially the same conclusions.

E. Staff Reports

1. Executive Director’s Report

Melanie de Leon briefly reported on the budget and current Legislative discussions regarding the Board, which may include a report with performance measurements to be provided to the Legislature. Member Gorrell requested that discussion on performance measures be placed on the July retreat agenda.

2. AAG Report

No AAG reports were given.

3. Other Staff Reports

No staff reports were given.

F. Public Comment/Board Member Comment

Charles San Juan, Department of Ecology, provided background information regarding issues raised in a complaint he filed against a member of the Geologist Licensing Board, expressed concern with a dismissal by the Executive Director and requested that the Board reconsider the dismissal.

Laura Lowe, ethics officer and contracts manager for the Department of Ecology, briefly clarified the separation of programs within the Department of Ecology and noted that the agency runs itself very cleanly in terms of procurement.

G. Closed Session

At 10:45 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 11:35 a.m. the Board returned to regular session. Melanie de Leon noted that Mr. Walter Jorgensen submitted a letter to the Board requesting a reconsideration of her January 2010 decision not to initiate a complaint regarding Paula Hammond and provided the Board with all correspondence between herself and Mr. Jorgensen on the issue. The Board took no action on the reconsideration request.

The Board also reported the following:

Motion 10-008 Moved by Member Gorrell, seconded by Member Biegelman:

The Board approves the Stipulated Facts, Conclusions and Orders in EEB Case #08-119, Bevin Hansell, EEB Case #08-134, Henrietta Armstrong and EEB Case #08-132, Patrick Boyle, as presented.

The motion passed unanimously.

H. Miscellaneous Matters/Adjournment

There being no miscellaneous matters, the meeting was adjourned at 11:40 a.m.

Approved by the Board 5/14/10