July 9, 2004

Regular Meeting Minutes


A.        Preliminary Business


            1.         Roll Call


Meeting commenced at 9 am with roll call.  All members were present.  The following is the role call:  Chair Marilee Scarbrough, Vice-Chair Paul Zellinsky, Member James Vaché, Member Trish Akana, and Member Evelyn Yenson.  Also in attendance were: Executive Director Brian Malarky, Assistant Attorney General Sharon Eckholm, Investigator Sue Jones, Investigator Linda Stark, Education and Outreach Coordinator Debbie O’Dell, and Compliance Analyst Mechele Linehan.


            2.         Approval of Agenda


Chair Marilee Scarbrough proposed that the Board agenda be amended to move the rule hearing to the 9 am start time.  Chair Scarbrough proposed moving the Board’s discussion on advisory opinions to precede item C. “Strategic Plan and Retreat Follow up”.  Mr. Malarky requested the addition of a new item 3, under D. Advisory Opinions:  “Agency Policy Review Request 04-6-0706-013 DNR, Use of State Electronic Communications Systems when Performing Emergency Wildland Fire Suppression Duties”.  MOTION made by Paul Zellinsky to approve the amended agenda.  Seconded by James Vaché with unanimous approval. 


            Rule Hearing


(begin audio tape)

Mr. Malarky briefed the Board on the amendments to WAC 292-110-060.  The purpose of the proposed rule amendments is to align the rule with the statute requiring that sole source or one-bid research contracts have Board approval before the contract is entered into.  The amendment provides the Board’s pre-approval of contracts so long as alternative conflict of interest procedures are followed.  The amended rule also includes expert witness contracts as pre-approved by the Board.  The rule was reorganized to improve navigation and clarify the statutory criteria considered by the Board under this chapter.


Public Comment


Malcolm Parks, Associate Vice Provost of Research in Seattle, University of Washington testified in support of the rule changes.  Parks indicated the amendments would allow the University to move forward with research grants when the window opening is narrow and time is of the essence.  Member Yenson asked about the system the University currently has in place to ensure internal process is followed.  Parks replied that there are six employees at the University who touch a research project’s review for compliance with the alternative conflict of interest procedures.  Yenson expressed that the Board relies on the University to manage itself according to the law.  Parks indicated the responsibility for ensuring compliance is shared by the University, the Board, and regular audits by the General Accounting Office and National Institute of Health.  Yenson asked if the University actually issues sole source contracts.  The reply was “yes”.  Yenson asked how frequently sole source contracts occur.  Parks said that out of 100-200 contracts each year, about 25% look like sole source.


Member Zellinsky asked what happened in the past with the 200 research contracts.  Parks said they were handled according to the federal process specified under RCW 42.52.  Parks said a particular sole source case showed the University was out of line with the rule.


At 9:20 am the hearing closed for public comment.

(end audio tape)


Board Comment


Member Vaché inquired about the expert witness contracts being pre-approved.  Mr. Malarky stated that only certain contracts where Board approval is required are dealt with in this rule.  RCW 42.52.120 addresses other types of contracts.  Spousal contracts still need Board approval.


Member Zellinsky asked how the amendments will affect other universities and colleges outside the University of Washington.  Mr. Malarky indicated that the impact is statewide for all institutions and that research departments must have in place an alternate COI and system of review in place.


Motion:  Member Vaché moved to adopt the rules as proposed if no other comments were received by the close of business on this day.  Member Akana seconded.  Unanimous approval.


            3.         Approval of June 10, 2004 Special Meeting Minutes (Retreat)


Member Akana proposed amending the minutes to reflect the direction that the Board provided to  staff on the need for rule changes regarding (1) Board review of referrals from the State Auditor’s Office and other agencies or educational institutions; and (2) board reviewing officer.  Motion:  Vice Chair Zellinsky moved to adopt the minutes as amended.  Chair Scarbrough seconded.  Unanimous approval.


            4.         Approval of June 11, 2004 Regular Meeting Minutes:  Version A by       Member Akana and Version B by Brian Malarky


The Board discussed Version A and B of the minutes and decided that fuller detail on what transpired at Board meetings was desired.  Member Vaché said that some years ago the Board’s minutes were verbatim.  Then the Board decided to make the minutes briefer.  Member Zellinsky asked why meetings are not taped.  Member Vaché asked for clarification on the reason for not taping the Board’s meetings.  Mr. Malarky said initially the Board clerk was assigned the duty of taking the minutes.  Eventually staff resources became an issue.  About four year’s ago the minutes were assigned to administrative support staff that was then reallocated to a human resource consultant.  Counsel Eckholm indicated that tapes and recordings of Board meetings would create a public record requiring that the digital or electronic recordings be archived.


Member Vaché said the problem with Version B was that there was no context unless the documents referred to were attached and became part of the minutes as well. 


MOTION:  Member Vaché moved to adopt Version A as proposed.  Member Akana seconded.  Unanimous approval.


MOTION:  Board directed staff to come prepared to tape all subsequent meetings of the Board subject to Counsel’s and Board review of public records requirements.  Member Akana seconded.  Unanimous approval.


D.        Advisory Opinions


1.         Advisory Opinion 04-03, Potential Conflicts of Interest Involving Public Health District Review Board Members


Mr. Malarky briefed the Board on changes to the second draft.  Vice Chair Zellinsky commented that having industry folks participate in contracts decisions brought before the Health District Review Board who might also want to bid on those same projects was bad ethics and required a member’s recusal.  Member Vaché directed staff and counsel to rewrite the opinion focusing exclusively on the general statute RCW 42.52.020 concerning conflicting interest.  Member Vaché explained that Board Opinion 98-02 was a very narrow opinion.  Staff was directed to omit any discussion on actual, potential, and apparent conflicts of interest leaving the subject to future Board guidelines, as appropriate.


2.         Advice Request 04-2-0623-22, Conflicts of Interest Involving Groups Funded by the Department of Natural Resources


Mr. Malarky briefed the Board on the scope and intent of DNR’s request.  DRN employee David Steele indicated that the analysis was complete.  Member Yenson asked the value of the contract and was told that it is estimated at $441,000 with about $10 million over 5 years.  Member Vaché asked why the group was set up as a non—profit rather than a governmental entity.  Steele indicated that as a non-profit the organization has the ability to draw from other fund sources in the event that a governmental agency did not have funds.  Member Vaché asked whether DNR could give grant money to other entities besides the SPRCW.  Steele indicated that the agreement commits money to the SPRCW from DNR as the sponsoring agency.  Member Vaché directed Mr. Malarky and Eckholm to rewrite the content of opinion in the last 2 paragraphs, directing Mr. Malarky  to just use the term “conflict of interest” rather than “appearance, potential, or actual” to modify the term “conflict of interest”.  Mr. Malarky and Eckholm will redraft the opinion and submit the changes to the Chair.

MOTION:  Member Yenson moved to support the directions given to staff.  Member Vaché seconded.  Unanimous agreement.


3.         Agency Policy Review Request 04-6-0706-013 DNR, Use of State Electronic Communications Systems when Performing Emergency Wildland Fire Suppression Duties


DNR employee Tom Hoffa presented the request thanking the Board on behalf of Commissioner Sutherland for accepting the review on such short notice.  Hoffa indicated the agency policy only applied to employees in the Instant Command System.  Chair Scarbrough and Member Yenson commended DNR for bringing this matter to the Board.  MOTION:  Member Vaché moved to adopt the policy as proposed.  Vice Chair Zellinsky seconded.  Unanimous agreement.


C.        Strategic Plan and Retreat Follow Up


At the meeting, Board members were provided with a copy of a DRAFT strategic plan that had been developed by Board staff and Linda Moran meeting with the facilitator Faith Tremble on July 7. None of the members had been briefed on the DRAFT and so were surprised, even without fully reading the DRAFT, by the language in the document.  Member Vaché said he found the document denigrating to the Board with the language contained and included in the DRAFT.  Given the inadequate time to review and comment on the DRAFT, the Board agreed that Members Yenson and Akana would represent the Board’s interests in a subsequent version of the plan for the September 10 Board meeting.


E.         Executive or Closed Session


At 12:00 p.m. the Board moved into executive session to consider complaints against public officials with Eckholm and Mr. Malarky in attendance with the Board members.  At 12:45 p.m. the Board met in closed session to consider proposed stipulations and orders in several quasi-judicial matters with Eckholm in attendance.  At 1:30 p.m. the Board deliberated to discuss personnel matters.


After reconvening the public session at 2:30 p.m. the Board announced that no reasonable cause was found in EEB Case No. 01-096 (Fisher).


F.         Staff Report


            1.         Non-bind staff analysis


Members received a copy of recent documents on post state employment and the solicitation of donations for a public office fund.


Members received a spreadsheet on the current budget status. 


2.         Board correspondence


Members were provided with a copy of a June 14, 2004 letter from Assistant Attorney General Paul Silver on behalf of Director Joe Dear of the Washington State Investment Board.  Members were provided with a copy of a June 28, 2004 letter from Chair Scarbrough to Director Dear.


G.        Public Comment/Board Member Comments


There were no comments.


H.        Miscellaneous Matters/Adjournment


The July 9, 2004, Executive Ethics Board meeting adjourned at 2:45 p.m.