July 28, 2000


The Executive Ethics Board convened in Regular Session at 11:00 a.m. the LeeAnn Miller AGO Conference Center at 4224 Sixth Ave SE Bldg 1, Lacey, Washington 98503





                        Cheryl Rohret, Chair

                        Janet Lim, Board Member

                        James Vache, Board Member


Also Present:


                        William B. Collins, Counsel

                        Jerri Thomas,  AAG to Executive Director

                        Richard McCartan, AAG to the EEB

                        Debbie O'Dell, EEB's Human Resource Consultant





            a:  ROLL CALL


                        James Vache, Janet Lim, Cheryl Rohret


            b:  APPROVAL OF AGENDA


                        Bill Collins added the following:

                        - issue regarding public records request on Stevenson case


                        - under #4a - .180 instead of .160


                        - on 2nd page after e - SHS opinion request re post-state                                                           employment, some urgency, but due to the date received, no memo in                                     packet…Bill can explain, but due to full agenda will leave up to Board to                      determine if time or not to review - will add if have time (new "f")


                        Agenda approved - Vache moved, Lim seconded          




                        Jim Vache would like on page 2 to change the word "desire" to                                                "willingness".

                        Minutes approved with change.  Lim moved, Vache seconded

Public Records Request regarding Jim Steveson case


 Bill Collins stated that on Wednesday (July 26, 2000), the AGO received a public records request (PRR) on the proposed stipulation and order regarding EEB Case #00-13 on item #2 of Agenda.  Uncertain if Board's rules would or would not permit the AG to give out - is that rule valid?  Board can't create exceptions to the public records law but can work within those exceptions.  The law in question is

WAC 292-100-070 which provides:


            (1) It is the policy of the board during the course of any investigation that all records   generated or collected as a result of that investigation are exempt from public inspection    and copying under RCW 42.17.310 (1)(d). The investigation is not considered complete             until a case is resolved either by a stipulation and settlement that is signed by all parties;     or, when the board enters a final order after a public hearing. If a public records request is         made following a signed stipulation and settlement, or a final order for any such record   which implicates the privacy of an individual, written notice of the records request will             be provided to the individual in order that such individual may request a protective order      from a court under RCW 42.17.330.


Investigation isn't complete until the case is resolved until either the board accepts a proposed stipulation or have hearing and stipulation entered as final order.  There is an issue whether an S & O falls within the guidelines of investigative record as opposed to other kinds of investigative records that might be generated. There is also an issue on whether this kind of a stipulation would fall under other exceptions such as a work product exception or preliminary draft exception.  At this point, since we received the request on Wednesday, I am not prepared to advise the Board about that. In response to the Olympian's request, I have suggested to them that I would ask the Board to essentially waive its ability to keep that document confidential, even if the rule does require it.  Since it's going to be presented as item #2 on your agenda anyway, doesn't seem there would be damage to that.  But I do think it fits the issue about how the public records law applies to the Board and this kind of document that something that we would need to take a careful look at to make sure the Boards needs and the spirit of the law is being observed.  I would suggest that the Board authorize us to distribute the stipulation and move on to item #2 and that we take this issue up again.


Members discussed and agreed to waive confidentiality rule and made clear special circumstance.  Also made clear that waiving confidentiality rule is not policy.  Copies of the stipulation passed out to audience.



#2 - Stipulation and Order in 00-13


            McCartan, introduced himself, Stevenson nor his attorney planned to be present.

            McCartan presented initial complaint and then the stipulation and order.  By this settlement, Mr. Stevenson acknowledges that the Board could find a violation of RCW 42.52.180(1) if the matter went to hearing.  First of all, he concedes that the rebuttal letter had a political purpose and 2), he concedes that the facilities of the agency were used and that he solicited signatures during work hours on the office premises.  By this agreement, he agrees to pay a $1500 penalty over a period of six months as well as take an ethics course.  Staff believes that this amount $1500 is both substantial and justified for three reasons:


            1) The letter had a clear political purpose in supporting Ms. Senn's                               canadacy

            2) The number of employees contacted about the letter, we                               believe 18 and

            3) the fact Mr. Stevenson has a supervisory position within the Insurance         Commissioners Office.


The Board can approve or reject or propose a modification to what have we worked out on the proposed settlement and I would be happy to answer any questions you might have.


Board to deliberate in Executive session before announcing decision


#3 - Report on search for a new executive secretary


Title changed from executive secretary to executive director and salary has been increased to $52,800 - $64,800.  24 applications - narrowed down to 7.  Interviews around the week of the 21st and will take about two days


#4 - Requests for Advisory Opinions


a) Use of State Resources in a Political Campaign


Bill Collins presented a summary regarding whether a state employee or officer's use of official title in a political campaign an ethical violation.  This request comes from the Secretary of Transportation who says that he's considering being active in the initiative campaigns that have to do with Transportation, but will do so on his own time, not using state resources, and all that is perfectly appropriate under the ethics law.  It's the facility of an agency that can't be used for campaigns.  The question is what about his title - Secretary of Transportation?  Is that title a facility of the agency?


Bill indicated that facilities of an agency is defined as stationary, postage,  equipment, machines, use of state employee's of the agency during working hours, vehicles, office space, publications of the agency, client service list served by the agency, but the language is "including, but not limited to".  So, the person's title doesn't necessarily fall within these kinds of things, but the Board can certainly as a policy matter can decide that a title is a facility of the agency.  The request really has two components to it, one is could the person essentially use their title?  For example, could you on your own computer, at night, not using state paper or facilities, write a letter to the editor and sign it "Sid Morrison, Secretary of Transportation".  In that sense they would be using their title, so the issue is whether that is using a facility of the agency.

The second issue arises if you were at home and wrote a letter to the editor and just said "Sid Morrison", didn't say "Secretary of Transportation".  But the Times knows that Sid Morrison is the Secretary of the Department of Transportation and so puts their own header or footer identifying who the author of the letter is.  The Board has not directly confronted this issue.  You'll recall in the case that we settled with the Lt. Governor in a letter of instruction that we sent to the Lt. Governor, the Board concluded that the title of "Lt. Governor" is not a facility of the agency, but rather the identity of an individual elected to office.  I don't think that reasoning necessarily could apply to non-elected officials, but I don't know that it necessarily does.  First of all, when you're elected that's really your identity and furthermore, under the ethics law an elected official has some limited ability to use facilities of an agency to comment on certain kinds of ballot measures.  To say that the Lt. Governor could use his title doesn't necessarily mean because he can make some diminimus use of facility of an agency to comment on certain kinds of ballot propositions, does not necessarily resolve the issue for non-elected officials.  As for the second component and the other time you confronted this, the Board found no reasonable cause in a case where the allegation was where the state commission member had used their title.  The Board found no reasonable cause because the Board concluded that the commission member and not tried to use the title and taken reasonable steps to see that the title wasn't used, but had been used by someone else.  The Board found in that case there was no reasonable cause.  It seems to me that point's to the answer to the second part of the question, but it doesn't resolve the first part of the question.  The Board has in previous meetings, in the context of these two other things, discussed this issue. To my recollection the Board has not come to a conclusion.  My memory of the discussion is that some members were at least concerned that if you used your title to put the weight of the state on one side of the equation in a ballot measure.  Others expressed the opinion that really cost anything and perhaps people would want to know what does the Secretary of Transportation or an Ethics board member think about some ballot measure that affects Ethics and that might be useful information to the public.  That seems to me that the statute itself does not compel an answer one way or the other.  That's really a policy judgment the Board can make.


Members discussed thoroughly and Sid Morrison presented additional comments.  Bill Collins suggested to the members that they allow the use of a title with a disclaimer.


Jim Vache moved to direct counsel to write opinion to that effect.  Janet Lim seconded the motion and Cheryl agreed.


Bill Collins clarified that the opinion would be for non-elected individuals only.



#4 b)  Private Use of State Resources - Combined Fund Drive


Bill Collins presented a summary of a request for an opinion on whether it is a violation of RCW 42.52.160 if an employee is using state resources including their time, computer, paper, and other kind of facilities to do the work of the combined fund drive in that particular agency.  Bill indicated that there are two ways this can be viewed.  One, since the combined fund drive is an official function and that working on the combined fund drive to the extent you are the person designated for your agency and the agency director says it's ok for you to the designee.  But it's part of your job as a state employee just as it's the same for Laquita and Sutpa serving on this Ethics Board is part of their job as a state employee.  To the extent that you're doing something as part of your job as a state employee, then certainly RCW 42.52.160 doesn't apply.  If you're doing your state functions that's not private use of state resources.

Another approach to that is to say that it would be ok to the extent if agency management considers it to be something involved in the support of the organization like team or morale building.  The Board has written an advisory opinion that has approved agencies doing things like bake sales to raise money for an adopt-a-family during the holidays as management as allowed for the Attorney General's Office.   This arises out of concern from some agencies if they allow their employee's to do this that they would somehow be in violation of the ethics law.  Agencies would have some ability to say that "we're a little busy and so we don't have time for an employee to spend time on the combined fund drive."  That's not an ethics issue.  That's an agency management issue and certainly this Board is not in a position to tell somebody that they have to do combined fund stuff.  The question is if they do participate is that some kind of an ethics violation?  Given the basis written in the statute and the regulations it seems it isn't and you could reach that conclusion in a couple of different ways.


Members discussed, Randy Ryan provided background information and several audience members provided their views and concerns regarding the time spent on the combined fund drive.


Bill Collins indicated that the opinion would say this has been authorized by the Governor through an executive order and through regulations that have been adopted that this is essentially part of state business.  RCW 42.52.160 just simply doesn't apply to the conduct of state business.  It might also say how much time an agency puts into this is not an ethics issue but is a management issue for the executive branch to sort out.


Board accepted without objection


#4 c) Private use of State Resources - Hunter Education Program


Bill Collins provided background information regarding the Hunter Education Program.  The program is ran by F/W and the question is can another agency's state employee who volunteer's for the program use their agency's computer to do that work?  Meg had issued an informal staff analysis that this is not appropriate because it was fairly clear from the materials that she looked at that the use would not be infrequent and diminimus.  The legislature has required training to get a  license and that F/W adopted regulation to put the statute into effect.  Therefore, when someone is doing this volunteer work they are performing a state function. 


Members discussed and it is clear that a volunteer for the Program from another agency other than F/W that it's not part of their official duties.  Then this would be an ethics violation unless an employee has the consent of it's employing agency's management.


Board agreed without objection


#4 d) Private Use of State Resources - Voluntary Benefits


Collins: - Provided background information regarding state employee's benefits and the opportunity to purchase additional private insurance.

The question is whether or not it's appropriate to use state facilities to market their products.


After review and discussion, the Board asked that more information be provided on the process on how the vendor that wants to market their products becomes approved before rendering a decision.





#4 e) Outside Compensation for Performing Official Duties - Tips


Bill Collins presented a summary of the issue of receiving of tips by students at a university while working as a waitperson in a cafeteria ran by the university.  The literal interpretation of RCW 42.52.110 indicates they cannot.  However, it appears that is not the intent of the ethics law and probably doesn't apply.


Board agrees to have the opinion that it's ok to receive tips but to write the opinion narrowly.


# 4 f) DSHS issue (added at the beginning of meeting)


Board declined to review due to the shortness of time


#4 g) (f on the agenda) Request for clarification of Opinion #00-03


Collins: - Provided background information on the opinion.

Suggested that the Board issues an addendum to correct misinformation so not to misconstrue and make clear that not DIS' responsibility.


Board agreed


#5 Request for approval of Pierce College Cellular Phone Use Policy


Bill Collins and Alan Spence of Pierce College provided background information.


Board does not approve policy.  Bill to do a letter indicating that "Plan B" of the policy is not approved.


#6 Contract Review - Womeldorff and Murhpy Contract


Board approved


#7  Staff Report


EEB Case # 99-16  Richard White


Issue - Failure to disclose public records, pre-hearing conference on July 31st.  Board can review the ALJ order after it's issued or set in on the hearing?  Decided to review the order.


WAC 292-110-____


Contract approval rule.  Board delegated approval to Bill Collins since Executive Director position is vacant.  Board delegated the signing of administrative documents to Debbie O'Dell


EXECUTIVE SESSION  2:30pm began - ended at 4:10pm


Board announced that is accepted the Stevenson stipulation and order as presented.


Adjourned at 4:12pm