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


April 10, 2009

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 Neil Gorrell at 9:00 a.m.  In attendance were Vice Chair Linnaea Jablonski, Members Golberg and Connelly. Member Biegelman was present via telephone.  Board staff in attendance included:  Executive Director Melanie de Leon, Senior Counsel Jerry Anderson, Assistant Attorney General Mickey Newberry, Administrative Officer Ruthann Bryant, and Investigators Nancy Lewin and Sue Jones. 


2.    Approval of Agenda


Motion 09-017 Moved by Member Golberg, seconded by Vice Chair Jablonski:


The Board approves the April 10, 2009 agenda as presented.


The motion passed unanimously.


3.    Approval of the March 13, 2009 Meeting Minutes


Motion 09-018 Moved by Member Connelly, seconded by Vice Chair Jablonski:


The Board approves the March 13, 2009 minutes as presented.


The motion passed unanimously.


B.   Enforcement Matters

EEB Case 2008-008 Tom Rockey

Administrative Law Judge Rebekah Ross presided over the Summary Judgment hearing of Tom Rockey, EEB Case No. 08-008, for alleged violations of RCW 42.52 when he removed copies of Windows XP software CDs from a dumpster at Central Washington University property and sold the software on eBay for personal profit.


Judge Ross introduced Board staff Assistant Attorney General Mickey Newberry and Attorney Janel Ostrem representing Mr. Rockey. She also introduced Board members and staff and briefly discussed the enforcement hearing process. Chair Gorrell noted that his office has a pending job application from Judge Ross, but it is not in any way related to the case at hand.  Member Biegelman stated that he is a Microsoft employee and recused himself from the hearing and all matters related to this case.


Mickey Newberry summarized the case against Mr. Rockey. And Ms. Ostrem also made an opening statement. Neither side called witnesses to testify.


Judge Ross concluded the hearing at 10:30 a.m.


            Approval of Stipulated Facts, Conclusion and Order

            EEB Case No. 08-124 (Zebley)

Nancy Lewin briefed the Board on the proposed stipulation and order. Ms. Zebley agreed that she violated RCW 42.52.160, when she used state resources for private gain.

The Board deferred action until after closed session.


            Executive Director Dismissal – EEB Case #08-129 (Schellberg)

            Melanie de Leon briefly summarized an Executive Director dismissal.


C.   Legislation

Ms. de Leon noted that session will end on April 26 and the focus has been on finalizing a budget.


D.   Advisory Opinion Review

Nancy Lewin briefly updated that the Ethics in Public Service Act, RCW 42.52, applies to individual state officers and employees, not to agencies. As a result, the Board has held the opinion that gifts given to the state or a state agency are not subject to the gift limitations found in RCW 42.52.140. However, a conflict has been created between the Advisory Opinions that staff is asking the Board to clarify. She added that the Board first heard this issue at the March 13th meeting and requested a legal analysis on the definition of jurisdiction for presentation this month.  Senior Counsel Jerry Anderson noted that he would prepare written comments for the May meeting.


Ms. Lewin also discussed AO 96-05, which defines a regulatory agency and adopts an analysis for determining which regulatory agency employees are subject to gift restrictions contained in RCW 42.52.150(4), commonly called “Section 4 employees.”  When the opinion was issued, it considered two analyses that could be used to identify Section 4 employees:  a transactional analysis and a functional analysis. Ms. Lewin requested that the Board either affirm the decision of the prior board that the functional analysis is the correct analysis to apply, or to retire that opinion in favor of adoption of a transactional analysis.


The Board directed staff to rewrite the opinion and further discussion will occur at a future meeting.


E.   Staff Reports

1.  Executive Director’s Report

Melanie de Leon reported that staff will be moving to the Capitol Court building in downtown Olympia on April 28.  She updated the Board on the budget and noted that the current half time office assistant position has been abolished.


2.  AAG Report

Senior Counsel Jerry Anderson noted that the Licensing and Administrative Law Division has a new Division Chief, Diane McDaniel.

AAG Mickey Newberry provided a brief update on current cases.


3.  Other Staff Reports

No other staff reports were given.


F.    Public Comment/Board Member Comment

Linda Hendrickson with the Board of Industrial Insurance Appeals, commented that a functional analysis regarding Advisory Opinion 96-05 is easier to apply from a management position.


G.   Closed Session

At 11:30 a.m. Chair Gorrell noted there were no executive session items and the Board moved into Closed Session to deliberate on quasi-judicial matters. 

      At 12:20 p.m. the Board returned to regular session and reported the following:


Motion 09-019 Moved by Member Connelly, seconded by Vice Chair Jablonski:


The Board accepts the Stipulated Facts, Conclusion and Order in EEB Case #08-124, Rachel Zebley, as presented.


The motion passed unanimously.


Motion 09-020 Moved by Member Connelly, seconded by Vice Chair Jablonski:


The Board finds Reasonable Cause in EEB Case #06-035, Paulette Nelson and 08-128, John Petruzzelli.


The motion passed unanimously.


Motion 09-021 Moved by Member Connelly, seconded by Vice Chair Jablonski


The Board dismissed EEB Case #08-131, Doug Sutherland.


The motion passed unanimously.


Motion 09-022 Moved by Member Connelly, seconded by Vice Chair Jablonski


The Board determined that it maintains jurisdiction and that a violation had occurred in EEB Case #08-008, Tom Rockey.


The motion passed unanimously.


In addition, a hearing on the penalty portion of EEB Case #08-008, Tom Rockey, will be scheduled for the May 8th meeting.


I.   Miscellaneous Matters/Adjournment

There being no miscellaneous matters, the meeting was adjourned at 12:25 p.m.


Approved by the Board 6/12/09