Regular Meeting Minutes
A. Preliminary Business
1. Roll Call
Meeting commenced at 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:
2. Approval of Agenda
Malarky indicated that the
Member Akana asked that item A.3.
Approval of the
Chair Scarbrough proposed that the Board amend the Agenda to move the approval of the July 9, 2004 Meeting Minutes to after the Executive Session; to add the Garrett case to the Stipulations and Order section; recognize the request to withdraw from the formal advisory opinion process subject to a faxed written request from the Public Hospital District Review Board; and remove from the agenda item in Open Session J1., and items in Executive Session items A.5, C1., D10., and D.18. MOTION: Member Vaché moved to adopt the agenda as amended. Vice Chair Zellinsky seconded. Unanimous approval.
B. Executive Session
Board moved into Executive Session to discuss the performance of a public
employee. Only Board Members were in
Executive Session, with
A.3 Approval of
Member Akana provided Board Members and meeting attendees with a copy of the July 9 Meeting Minutes that she proposed for consideration and adoption. Chair Scarbrough proposed that the July 9, 2004 Meeting Minutes be tabled for a subsequent meeting. MOTION: Vice Chair Zellinsky moved to table a decision. Unanimous approval.
C. Stipulations and Orders
The Board received a staff briefing on the following proposed stipulations and orders.
1. EEB Case No. 03-034 (Bayless)
2. EEB Case No. 03-120 (Whitehurst)
3. EEB Case No. 03-121 (deLeon)
4. EEB Case No. 03-145 (Neuheisel)
5. EEB Case No. 04-006 (Whelahan)
EEB Case No. 03-083 (
D. Strategic Plan Update
Board Members Yenson and Akana reviewed a data table which presented the Board’s statistical background for the five fiscal years 2000 through 2004. The purpose of the table was to provide the context for prioritizing the Board’s work relative to the Board’s legislatively-mandated responsibilities. There was unanimous agreement amongst Members that this information be relied on to establish the Board’s direction toward a long-range strategy and plan of action. Member Akana explained how the September 10 Strategic Plan document was organized to illustrate the existing strategic plan, the outcome of discussion at the June 9 Board retreat, and the subsequent planning by Board staff and Linda Moran at the July 7 meeting with facilitator Faith Tremble.
Chair Scarbrough asked that the Board be briefed on the three goals presented in the September 10 document with significant areas of activity being highlighted. Member Akana reported on the goals and objectives indicating those activities where they recommended that the Board pursue as part of an action plan and those activities where the Board’s capacity would be exceeded or resources expended would be greater than the value or contribution to the Board’s mission.
Member Vaché indicated his support that Objective C under Goal One, Improve awareness and communication with agency directors and employees throughout the state, indicate the Board’s mandate is to develop educational materials and training, with the implementation of these tools to state agencies and institutions of higher education. Member Yenson asked that any ethics advisors identify themselves and comment on the Board’s reliance on ethics advisors to be the conduit on ethics for an agency and to act as in-house experts on the agency’s ethics issues. In the audience, the Board was introduced to the following ethics advisors: Stephen Smith, Labor and Industries; Chip Kormas and Vicki DeBoer, Employment Security Department; Tom Hoffer, Department of Natural Resources; and Brian Jensen, Department of Information Services. The ethics advisors described their responsibilities related to ethics in their organization. There was a range of responsibilities from investigator, to human resource consultant who provided ethics training and answered ethics questions; to coordination of ethics compliance in the personnel and audit operations. Member Yenson asked the advisor what educational materials and tools they found most useful in their roles. The response included the Board’s “Ethics Challenge” and “Frequently Asked Questions”.
Member Vaché asked about the message board indicating his agreement that a forum on the internet exclusive to ethics advisors would exceed the Board’s capacity and resources to provide answers to ethics questions. However, Member Vaché supported the concept of a “list serve” with access to the public as a vehicle for the Board to deliver guidance. There was a consensus among all the Members that the on-line message board forum is generally not a good idea.
The Board directed the Executive
Director to work with the Board’s counsel
Member Vaché inquired about the “reviewing officer” role in the strategic plan. He wondered if the practice would no longer be used. Member Vaché suggested that the Board consider the liaison role of a Board member as he believed that rules would not be necessary. Member Vaché pointed out the integration of legislative (rule making), enforcement, and quasi-judicial actions under the Board which allowed for Board member advising the prosecution and then recusing from Board action. The Board agreed to further discussion on the pros and cons of a Board member advising the prosecution rather than sitting on Board action. The Board expressed particular interest in hearing what lessons Member Vaché has learned from the experience and the benefit this practice has to the Board.
Member Vaché conveyed confidence in the work completed by Members Yenson and Akana. Chair Scarbrough asked Members Yenson and Akana to develop a subsequent proposal with recommendations focusing on priorities and based on the data for presentation at the October Board meeting.
E. Staff Report
1. Transition Briefings
Malarky provided copies at the meeting of two briefing documents: (1) Governor’s Small Agency Transition Briefing; and (2) Attorney General Transition Briefing. Malarky indicated that comments were due on September 17 for the Governor’s briefing document and September 10 for the Attorney General document. As to the Attorney General’s briefing document, Malarky told the Board that the date of September 10 was for submittal of a first draft with subsequent changes being accepted until the final cutoff date in October. Member Akana asked that the Board members be identified in both documents with the Chair, Vice-Chair, and members in order of their position on the Board. Member Yenson asked Malarky to include the ending date of appointment for each member. Member Vaché suggested, and the members agreed, that pressing issues or challenges for the Board be included in the briefings. Vaché identified two hot topics to mention: (1) the continuing overlap in investigations between the State Auditor’s Office and the Executive Ethics Board; and (2) the efficient use of time spent deliberating about Stipulations and Orders on reoccurring violations, such as internet use.
Chair Scarbrough directed Malarky to confer with Member Akana on Monday, September 13 to complete revisions to the Governor’s briefing document. Chair Scarbrough asked that the three goals from the revised Strategic Plan be included in both briefing documents. Chair Scarbrough directed Malarky to confer with Member Akana to complete revisions to the Attorney General’s briefing document before the end of September.
2. FY 2005-07 Budget Decision Package
Malarky provided the Board with the additional 1.5 full time equivalent fiscal detail document that will be submitted as part of the biennium 05-07 budget process. Included was a document detailing the Board’s current operating level for the 05-07 bienniums with and without the 1.5 additional staffing request. The Board discussed possible challenges obtaining a budget increase because of the projected statewide revenue deficits. Vice-Chair Zellinsky agreed to monitor the budget through the Legislative process and work with the appropriate legislators.
3. Tri-Jurisdiction Statement of Principles
Member Vaché commented that, while an interesting exercise, the proposal would provide such general interpretations on what the jurisdictions had in common that very little guidance would be provided to clients. Member Scarbrough expressed concern that developing an effective document would be difficult. Member Zellinsky reminded the Board that there are plenty of ethics issues to resolve with clients under our own jurisdiction. Malarky will contact the executive directors of King County Board of Ethics and Seattle Ethics and Elections Commission to convey that the Executive Ethics Board identified several concerns with issuing a tri-jurisdictional statement. Because of those challenges the Board is not inclined to spend staff time and resources developing a document.
4. Non-binding Staff Analysis/Board Correspondence
For informational purposes, the following documents were included in the Board’s packets: (1) Advice Request No. 04-2-0603-017 potential contract between the Board of Tax Appeals and Richard Virant (letter dated August 17, 2004); (2) July 1, 2004 letter from State Auditor Brian Sonntag to Mark Emmert, President, University of Washington, declining invitation to Husky game; and (3) ICSEW letter dated July 16, 2004, from Vicki Rummig to Malarky thanking him for his presentation on ethics.
Chair Scarbrough directed Malarky
to write a letter for her signature to the President of the
5. Budget and Staff Workload Reports
A budget document showed the actual Board expenditures through the 14th month of the current 03-05 biennium and the budget allotments for the same period. Member Vaché asked that allotments in the 05-07 biennium factor in the travel costs for a Board member from Eastern Washington as well as the travel expenses for investigators and training staff, as this would more accurately reflect the expenditures to be incurred.
A chart on resolved and pending complaints was provided for calendar years 2001 through 2004. Member Vaché asked whether there was an explanation why complaints went from 88 to 151 in 2002 and 2003. There did not appear to be a clear reason for the large increase. A January through August 2004 Training Report and the next 5-month training schedule was included as part of the staff workload report.
6. Hot Topics
a. COGEL Conference
Chair Scarbrough asked Member Akana
to attend the conference on
b. 2005 Legislative Session
Malarky asked whether the Board would be pursing any legislation in the coming session. Chair Scarbrough indicated that no legislation was anticipated on behalf of the Board.
F. Service Award Presentation (
Former Member Fields was unable to make the Board meeting.
The Board commenced the meeting at for lunch. The meeting reconvened at
H. Advisory Opinions
1. EEB Advisory Opinion No. 04-04, Conflicts of Interest Involving Public Hospital District Review Board Members
The Board received a faxed letter from the Review Board requesting that the advisory opinion be withdrawn for Board action.
2. Revision to EEB Advisory Opinion 02-02A (The FAQ’s), Question Regarding Political Buttons
Malarky briefed the Board on four scenarios that are often raised in an election year where he recommends guidance from the Board. In order to provide a strict interpretation of the ethics law without encroaching on first amendment rights and free speech, the Board directed Malarky to draft a general question on state officials and employees wearing political buttons during their work hours. In answer to the question, the Board directed Malarky to provide a “reasonable person” standard for determining whether a reasonable person would interpret an employee wearing a political button during the employee’s work hours as promoting political activity with agency endorsement.
I. Contract and Private Employment Reviews
1. 04-03-0609-024 (Carruthers),
Outside Contract with the
Member Akana recused herself. After
discussion the Board concluded that
04-3-0722-031 (Horn), Contracting with employing agency,
From the facts provided, Members
Vaché and Akana noted that the issue of dual participation or participation in
the decision to modify the software and develop or create the contract was not
MOTION: Member Vaché moved to approve the contract. Seconded by Member Akana. Yeas: Chair Scarbrough and Member Zellinsky. Member Yenson abstained.
3. 04-3-0811-032 (Costa), Indeterminate Sentencing Review Board Outside Employment Approval
Jeralita Costa appeared before the
Board. The Chair of the Indeterminate
Sentencing Review Board,
MOTION: Member Vaché moved to approve the request for the private professional work identified in this matter. Member Zellinsky seconded. Unanimous approval.
J. Policy Reviews
This matter was withdrawn from the Board’s agenda.
Request from University to postpone
their request was accepted by motion of the Board. See item
3. 04-6-0811-015, Horse Racing Commission’s Special Directive 2004-01 and 2004-02
MOTION: Member Zellinsky moved to approve the
Directives as written with the qualifications noted in Malarky’s
K. Executive or Closed Session
At the Board moved into executive session to consider complaints against public officials with Eckholm in attendance with the Board members. At the Board moved into closed session to consider proposed stipulations and orders in several quasi-judicial matters with Eckholm in attendance.
After reconvening the public session
at the Board announced
that it found no reasonable cause in EEB Case No. 02-051 (
The Board announced its action on the following Stipulated Facts, Conclusions and Order:
1. EEB Case No. 03-034 (Bayless)
Modified the stipulation for a civil penalty of $750 and no suspension.
2. EEB Case No. 03-120 (Whitehurst)
stipulation for a civil penalty of $750 with $250 suspended and
payment due by
3. EEB Case No. 03-121(deLeon)
4. EEB Case NO. 03-145 (Neuheisel)
Modified the stipulation for a civil penalty of $5,000.
5. EEB Case No. 04-006 (Whelahan)
Modified the stipulation for a civil penalty of $500 and no suspension.
Case No. 03-083 (
L. Public Comment/Board Member Comments
There were no comments.
M. Miscellaneous Matters/Adjournment
The September 10, 2004, Executive Ethics Board meeting adjourned at 5:00 p.m.
Signature of Board Chair