September 10, 2004

Regular Meeting Minutes

A. Preliminary Business

1. Roll Call

Meeting commenced at 8:30 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, Assistant Attorney General Linda Moran, Investigator Linda Stark, Education and Outreach Coordinator Debbie O’Dell, and Compliance Analyst Mechele Linehan.

2. Approval of Agenda

Chair Marilee Scarbrough asked for approval of the meeting agenda. Malarky indicated that the Public Hospital District Review Board had orally asked to withdraw their request for a formal advisory opinion under agenda item H.1. EEB Advisory Opinion No. 04-04, Conflicts of Interest Involving Public Hospital District Review Board Members. Member Zellinsky asked if the opinion could be withdrawn on the basis that the Review Board did not agree with the answer that was drafted. Members agreed that the request for a formal advisory opinion could be withdrawn at the Review Board’s request however, doing so does not change the answer. Member Akana asked Malarky if the Review Board had submitted in writing its request to withdraw from the formal advisory opinion process. Member Zellinsky recommended that Board policy be adopted to require that requests to withdraw from the formal advisory opinion process be submitted in writing to the Board. Member Yenson and Member Zellinsky asked Malarky to contact the Review Board at a break in the meeting and request that a letter be faxed so that the Ethics Board could take action.

Malarky indicated that the University of Washington requested that agenda item J.1. Policy Review 04-6-0701-014, University of Washington’s “Travel on Private Aircraft” be postponed for submittal at a later date. MOTION: Chair Scarbrough moved to accept the UoW’s request. Member Zellinsky seconded. Unanimous approval.

Member Akana asked that item A.3. Approval of the July 9, 2004 Meeting Minutes be moved for discussion after item B. Executive Session. Member Akana also asked that the Stipulation and Order EEB No. 03-083 (Garrett) be added as item number 6 under agenda C. For clarification, Member Akana inquired whether documents not included in the Member’s packet would be provided to Members at today’s meeting for the Open Session agenda item J.1. Policy Review 04-06-0611-009, Everett Community College “Ethics in Public Service”; and the Executive Session Agenda items C. 1., Malarky indicated that the documents were not available in time for today’s meeting and may be put on next month’s calendar. Malarky indicated that Executive Session Agenda item A.5 was removed.

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

At 8:50 a.m. the Board moved into Executive Session to discuss the performance of a public employee. Only Board Members were in Executive Session, with Linda Moran invited to answer questions from 10:05 to 10:20 a.m. At 10:20 a.m. the Board moved into Open Session.

A.3 Approval of July 9, 2004 Meeting Minutes

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)

6. EEB Case No. 03-083 (Garrett)

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 Sharon Eckholm to clarify and report back to the Board on the current website that is used by the Ethics Advisors. The questions to be addressed are whether or not that website is creating a public document and whether or not the site should be accessible by the public.

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 University of Washington welcoming him to the community and offering ethics training.

5. Budget and Staff Workload Reports

A budget document showed the actual Board expenditures through the 14^th 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 December 5-8, 2004 in San Francisco, California. Member Akana expressed an interest in attending the conference.

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 (Laquita Fields)

Former Member Fields was unable to make the Board meeting.

G. Lunch

The Board commenced the meeting at 12:15 p.m. for lunch. The meeting reconvened at 1:15 p.m.

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 University of Washington

Member Akana recused herself. After discussion the Board concluded that Ms. Carruthers participated and assisted in the RFP process. The Board also concluded that she worked on the details of a potential sub-contract between Ecology and the University. This participation prohibits her involvement in the resulting contract. The Board did not approve the contract.

2. 04-3-0722-031 (Horn), Contracting with employing agency, University of Washington Medical Center’s Department of Pharmacy Services

Dr. John Horn presented the Board with the events leading up to his request that the Board approve a contract between his private company, H&H Publications and the University of Washington. Member Vaché identified the issue as whether the contract would conflict with Dr. Horn’s official duties as part of his Pharmacy Services position. Dr. Horn explained that the University purchased commercial software; that Dr. Horn was asked to conduct a sample test to determine the accuracy of the output before the software system was implemented by the University; that he discussed the results of his sample test with Pharmacy Services staff; that Pharmacy Services developed a Request for Proposal to modify the drug-drug interaction database found in the commercial software that had been purchased by the University; that the contract was competitively bid and that H&H provided the only bid.

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 apparent. Dr. Horn indicated that he did not recommend and provide advice on revising the drug-drug interaction database, only that the results or output had the potential for a high-degree of error in alerting the health care professional to likely drug interaction.

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, John Austin III spoke on the Review Board’s role in the sentencing system and duties of the Board. Ms. Costa asked for the Ethics Board’s approval of her private employment with the Puyallup Tribe for policy development on workplace violence and her outside training work for professionals and non-profit agencies involved in crime victim support. Mr. Austin indicated that there are approximately 500 cases remaining on crimes committed prior to July 1, 1984, with about 400 cases a year expected from the September 2001 expanded duties of the Review Board under the Sex Offender Management Act. Member Vaché asked Mr. Austin whether the judicial canons applied to the members of the Board. Mr. Austin replied that canons 1-5 applied to Board members. Since recusal would be required under the canons, Member Vaché was satisfied that assurances were in place to manage conflicts.

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

1. 04-6-0611-009, Everett Community College “Ethics in Public Service”

This matter was withdrawn from the Board’s agenda.

2. 04-6-0701-014, University of Washington’s “Travel on Private Aircraft”

Request from University to postpone their request was accepted by motion of the Board. See item A.2., above.

3. 04-6-0811-015, Horse Racing Commission’s Special Directive 2004-01 and 2004-02

Robert Leichner, Executive Director of the Horse Racing Commission appeared before the Board. He explained that the “ethical conduct” and “political activity” directives had been established with the assistance of the Commission, Commission employees, union representatives, and Malarky.

MOTION: Member Zellinsky moved to approve the Directives as written with the qualifications noted in Malarky’s September 10, 2004 Memorandum to the Board. Member Akana seconded. Unanimous approval.

K. Executive or Closed Session

At 4:30 p.m. the Board moved into executive session to consider complaints against public officials with Eckholm in attendance with the Board members. At 4:40 p.m. 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 4:55 p.m. the Board announced that it found no reasonable cause in EEB Case No. 02-051 (Locke) and EEB Case No. 03-029 (Owen); that EEB Case No. 03-021 (Bergeson) was tabled; that reasonable cause was found in EEB Case No. 03-020 (Meeks).

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)

Modified the stipulation for a civil penalty of $750 with $250 suspended and payment due by December 30, 2004.

3. EEB Case No. 03-121(deLeon)

Accepted.

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.

6. EEB Case No. 03-083 (Garrett)

Accepted.

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 Marilee Scarbrough