STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
REGULAR BOARD MEETING MINUTES
September 8, 2000
The Executive Ethics Board convened in Regular Session at 10:35 a.m. in the Highline Community College Library Board meeting room at 2400 S 240th Street, Des Moines, Washington 98198.
Cheryl Rohret, Chair
Laquita Fields, Board Member
James Vache, Board Member
Sutapa Basu, Board Member
William B. Collins, Counsel
Jerri Thomas, AAG to Executive Director
Debbie O’Dell, EEB’s Human Resource Consultant
1. PRELIMINARY BUSINESS
a) ROLL CALL
James Vache, Cheryl Rohret, Laquita Fields (Sutapa Basu arrived at approximately 11:10 am)
b) APPROVAL OF AGENDA
c) APPROVAL OF MINUTES FROM JULY 28, 2000, REGULAR MEETING
Approved. Vache moved, Fields seconded.
2. PRESENTATION OF STIPULATION & ORDER IN EEB CASE NO. 99-16, RICHARD WHITE
AAG Jerri Thomas presented the background information on the case and a proposed Stipulation and Order to resolve the matter. Respondent Richard White is a DSHS Social Worker who was involved in a dispute with the complainant, a DSHS client, over the release of public records. On February 18, 2000, the Board found reasonable cause to believe a violation of RCW 42.52.050(4), involving the intentional concealment of public records, may have occurred. Following the reasonable cause determination, DSHS released over 700 pages of records to the complainant.
In the Stipulation, Mr. White denies any attempt to intentionally conceal records, but concedes that, if the case went to hearing, the Board could find that the long delay in releasing records could amount to a violation of the statute.
To settle the case, Mr. White agreed to take instruction in the requirements of the public records law, RCW 42.17; to refrain from violating RCW 42.52.050(4); and agreed that if he violates RCW 42.17.050(4) in the future, this Stipulation and Order may be taken into account in setting the amount of the appropriate penalty in a future case.
The Board decided to deliberate in Executive Session regarding the proposed Stipulation and Order.
3. PRESENTATION OF STIPULATION & ORDER IN EEB CASE NO. 99-25, BRYAN BAILEY
AAG Jerri Thomas presented background information on the case and a proposed Stipulation and Order to resolve the matter. Respondent Bryan Bailey, a Signal Maintenance Assistant Superintendent for WSDOT, is alleged to have used his WSDOT position and WSDOT personnel and equipment to perform electrical work at a private school that his step-daughter attends. On July 28, 2000, the Board found reasonable cause to believe a violation of RCW 42.52.160(1) may have occurred.
In the Stipulation, Mr. Bailey admitted to a violation of the ethics law, but maintains that he did not know his actions violated the ethics law at the time. He agreed to pay a civil penalty of $1,500 and attend an ethics training class to resolve the matter.
The Board decided to deliberate in Executive Session regarding the Proposed Stipulation and Order.
However, during the Public Comment portion of the meeting, and prior to Executive Session, Mr. Bailey asked to address the Board to refute certain factual information in the Investigative Report and to explain his side of the matter. Mr. Collins advised Mr. Bailey that such a factual presentation to the Board was not appropriate if he was resolving the matter by way of Stipulation. Ms. Thomas also explained that Mr. Bailey’s written response to the allegations and the investigative report had been included in the EEB case file and the information in his response was taken into account during the negotiation of the Stipulation and Order.
After discussion, Mr. Bailey decided to withdraw the proposed Stipulation and Order and instead requested a public hearing. The Board staff indicated it would proceed with the arrangements for a public hearing. Audience members asked that the notice for the public hearing be posted on the EEB Website.
4. DRAFT ADVISORY OPINIONS
a) Use of State Resources in a Political Campaign
Bill Collins presented a draft of Opinion 00-08. The draft reflects the decision the Board made on this opinion at the July Meeting. The opinion concerns RCW 42.52.180(1), which prohibits state officers and employees from using the facilities of their agency to support or oppose a candidate for office or a ballot proposition. Under the draft opinion, it is not a violation of RCW 42.52.180(1) for the officers or employees to use their titles when supporting or opposing a candidate or ballot proposition. This is because the title is not a facility of the agency so long as use of the title is accompanied by a disclaimer that the officers or employees are speaking only for themselves and not their agencies. Board members accepted the draft opinion with Jim Vache making the motion to approve and Laquita Fields seconded.
b) Private Use of State Resources - Combined Fund Drive
Bill Collins presented a draft of Opinion 00-09. The draft reflects the decisions the Board made on this opinion at the July Meeting. The draft opinion concludes that use of state resources in the combined fund drive does not violate the prohibition in RCW 42.52.160 against using state resource for private purpose. This is because the Combined Fund Drive is part of state business, so RCW 42.52.160 does not apply. Board members accepted the draft opinion with Laquita Fields making the motion to approve and Jim Vache seconded.
c) Private use of State Resources - Hunter Education Program
Bill Collins presented a draft of Opinion 00-10. The draft reflects the decisions the Board made on this opinion at the July Meeting. The issue in the opinion is whether there is a violation of RCW 42.52.160(1) for an employee in one agency to use agency computers to send E-mail as part of the employee’s volunteer activities for another state agency. The draft opinion concludes that there is no violation, so long as the employing agency has no objection to the use of its computers for the volunteer program. The Board changed the first sentence of the last paragraph of the draft opinion to read: "A state employee has no right to use his or her state computer and e-mail system to do volunteer work for a private organization unrelated to carrying out a state function that is not part of his or her official duties". The Board then accepted the draft opinion with this change. Jim Vache made the motion to approve as modified and Sutapa Basu seconded.
d) Private Use of State Resources - Voluntary Benefits
This opinion request asks whether it is a violation of RCW 42.52.160(1) for a business providing voluntary insurance benefits to state employees to use state facilities to inform state employees about their products. At the July meeting, the Board asked how companies qualify to provide voluntary benefits to state employees. Bill Collins explained that a business qualified for voluntary deduction from employee’s pay checks if 25 employees in an agency bought the insurance or 100 employees state wide. After discussion, members indicated that Bill should draft an advisory opinion stating that the use of state facilities by such insurance businesses does not violate RCW 42.52.160(1). However, if insurance businesses were allowed to use state facilities, care must be taken not to favor one business over another which could violate RCW 42.52.170, which prohibits granting special privileges. The Board decided not to address the question of whether state employees could talk to the insurance businesses during working hours as opposed to break time or lunch time.
e) Clarification of Advisory Opinion 00-03
Bill Collins presented Supplemental Opinion 00-03A. The supplemental draft reflects the decisions the Board made on this opinion at the July Meeting. Opinion 00-03 concluded that an employee could not install a private line on a state issued cell phone. The original opinion stated that this practice was prohibited by the master contract between the Department of Information Systems (DIS) and the cell phone providers. However, at the July meeting, DIS stated that this was not accurate. The supplemental opinion clarifies that the basis for this conclusion is not the master contract. However, this fact does not change the result of Advisory Opinion 00-03. The Board accepted the draft supplemental opinion as written with Jim Vache making the motion and Sutapa Basu seconding.
5. CONTRACT REVIEW
Paul Dziedzic requested approval of a series of substantially identical contracts. After review, members asked for clarification regarding time and state resources used before determination.
6. STAFF REPORT
Bill Collins reported on the progress of the search for a new EEB Executive Director. Two candidates were selected for referral to AGO Director of Administration Fred Olson and the Attorney General for final interviews. Jerri Thomas is checking references on the top candidates.
Bill Collins indicated that a re-evaluation of Board rules regarding public records needed to be addressed and recommended a sub-committee be established to work with him on the issue. Jim Vache and Sutapa Basu volunteered to assist Bill with the review of the public record rules and report back to the Board.
Labor and Industries employee Stephen Smith volunteered the Labor & Industries building in Tukwila for the next EEB meeting. Debbie will work with Mr. Smith to make the meeting arrangements.
7. PUBLIC COMMENTS/BOARD MEMBER COMMENTS
Gail Swanson from ESD gave a report of the continuing ethics training she and Stephen Smith of L&I are providing on behalf of the EEB. She also indicated that the Ethics Advisory Group is still meeting and at some point in the future will request that the Board "recognize" their group.
Bryan Bailey asked to address the Board regarding EEB Case No. 99-25. See Discussion in 3. Presentation of Stipulation & Order in EEB Case No. 99-25, Bryan Bailey, above.
EXECUTIVE SESSION 12:40 pm began - ended at 1:20 pm
9. MISCELLANEOUS MATTERS/ADJOURNMENT
Public Session Resumed
Following Executive Session, the Board announced that it had modified the White Stipulation and Order to delete paragraph B.3., that required Mr. White to take instruction in the requirements of the public records law and allowed the consideration of the Stipulation and Order in setting the penalty if future violations of RCW 42.52.050(4) occurred. Instead, the Board substituted the following language in paragraph B.3.:
"To settle this case, without admitting a violation of RCW 42.52.050(4), Mr. White agrees to accept a letter of instruction directing him to comply with the public records law, RCW 42.17, and applicable agency regulations and policies dealing with any future public records requests."
Jerri Thomas will have the revised Stipulation and Order sent to Mr. White for his approval or rejection of the modification.
The public meeting adjourned at 1:30 PM.
Approved by the Executive Ethics Board on October 13, 2000.
CHERYL ROHRET, Chair