Regular Meeting Minutes
September 13, 2002 at 9:00 A. M.
Department of Labor & Industries
Field Service Location
12806 Gateway Dr
B. Stipulation and Orders
2. Stipulation and Order in EEB Case 01-01 (Berrell) Board staff presented a proposed stipulation and order in this matter which involved a former Employment Security Department (ESD) employee who had accepted a Christmas bonus from private a non-profit
coalition. Prior to his employment by the state, the employee was the coalition’s Executive Director.
Vice-Chair Scarbrough asked about the coalition’s function and if staff had reviewed the contract. Board staff indicated that the coalition provides employment assistance and that as part of the investigation the staff had reviewed the coalition contract with ESD. Vice-Chair Scarbrough noted that it’s not clear if Mr. Berrell is a state employee or not. Member Zellinsky asked for a clarification regarding the penalty.
Results - After considering the matter in closed session, the Board accepted the stipulation and order with modification and entered an order to that effect.
2. Stipulation and Order in EEB Case 01-02 (Stumbo) The Board initially delayed consideration of this issue until a scheduled conference call with AAG Bob Hargreaves, who is representing Board staff in this matter. Mr. Hargreaves presented a proposed stipulation and order in this matter regarding Stanley C. Stumbo, the former Chief Naval Architect for the Washington State Ferries (WSF), who was involved in a private business relationship with a WSF contractor. On January 11, 2002, upon receiving the Board staff's investigative report and recommendation, the Board made the determination that there was reasonable cause to believe that had committed one or more violations of chapter 42.52 RCW.
The proposed stipulation and order provided that the respondent, Stanley Stumbo, without admitting to any of the allegations upon which the reasonable cause determinations were made, nevertheless recognizes that there exists a likelihood that the Board staff has evidence from which the Board may conclude that Mr. Stumbo violated RCW 42.52.020, even if only unintentionally or unknowingly. In addition, Mr. Stumbo will pay a civil penalty in the amount of one thousand five hundred dollars ($1,500.00), together with investigation costs in the amount of one thousand dollars ($1,000.00), payment of which shall not reduce the penalty amount owed.
Member Vaché inquired about the absence of specific facts regarding Mr. Stumbo’s business relationship with the WSF contractor. Mr. Hargreaves indicated that the proposed stipulation did not provide details regarding that relationship because it was not necessary to show a violation of the statute. Member Vaché then asked whether or not is was unusual for Mr. Stumbo to be a task manager on a contract but not directly involved in the oversight of the work. Mr. Hargreaves stated that it was unusual. Vice-Chair Scarbrough asked about the periods of time that Mr. Stumbo was the contract task manager. Mr. Hargreaves responded that Mr. Stumbo acted as task manager regarding the WSF contractor’s work between October of 1996 and January of 1997.
Results - After considering the matter in closed session, the Board accepted the proposed stipulation and order without modification and entered an order to that effect.
3. Stipulation and Order in EEB Case 01-90 (Luttrell) Board staff presented a proposed stipulation and order in this matter which involved Linda Luttrell, a Western Washington University employee, who used state resources to support the campaign of another University employee for elected office as Commissioner for the Port of Bellingham. In the agreement Ms. Luttrell admitted that her conduct violated RCW 42.52.180. Recognizing that she is personally responsible for her conduct, Ms. Luttrell agreed to pay a civil penalty in the amount of one thousand dollars ($1000.00). If accepted, the Board would agree to suspend five hundred dollars of this amount on the condition that Ms. Luttrell complies with all the terms and conditions of this Stipulation and Order and commits no further violations of chapter 42.52 RCW for a period of three years.
Results - After considering the matter in closed session, the Board accepted the proposed stipulation and order with modifications. The civil penalty was reduced from one thousand ($1,000.00) to seven hundred and fifty dollars ($750.00). The suspended amount remained five hundred dollars ($500.00) and the payment plan was modified accordingly. Under the Board’s rules, Ms. Luttrel may accept or reject the Board’s modification of the stipulation and order.
4. Stipulation and Order in EEB Case 02-09 (Sorrells) Board staff presented a proposed stipulation and order in this matter which involved Dr. Robert Sorrells, a Central Washington University professor, who used University resources to lobby the federal government regarding the forgiveness of certain student loans. In the agreement, Dr. Sorrells admitted that his conduct violated RCW 42.52.160 and WAC 292-110-010. Recognizing that he is personally responsible for his conduct, Dr. Sorrells agreed to pay a civil penalty in the amount of one thousand five hundred dollars ($1,500.00). If accepted, the Board would agree to suspend one thousand dollars ($1,000.00) of this amount on the condition that Dr. Sorrells complies with all the terms and conditions of this Stipulation and Order and commits no further violations of Chapter 42.52 RCW while he is employed by the State of Washington.
Member Basu asked if Board staff had reviewed Dr. Sorrells’ job description and verified whether or not he was authorized to lobby. The Executive Director responded that the University confirmed that they did not authorize Dr. Sorrells’ lobbying activity. Member Vaché inquired about federal lobby prohibitions related to indirect lobbying and noted that Dr. Sorrells did not lobby state representatives. The Executive Director responded that federal rules prohibit the use of federal grant money to support indirect lobbying and that Dr. Sorrell’s conduct did not violate RCW 42.17.190, which generally prohibits the use of state resources to lobby the state legislature.
Results - After considering the matter in closed session, the Board accepted the proposed stipulation and order with modifications. The civil penalty remained one thousand five hundred dollars ($1,500.00). The suspended amount was increased from five hundred dollars ($500.00) to ($1,000.00) and the payment plan was modified accordingly. Under the Board’s rules, Dr. Sorrells may accept or reject the Board’s modification of the stipulation and order.
5. Proposed Stipulation and Orders in the Community Colleges of Spokane Cases EEB Case No. 01-59 (Coffman), 01-61 (Brunner), 01-62 (Hanson), 01-65 (Hyatt), 01-67 (Kary), 01-69 (Scherler), 01-73 (Seubert), and 01-74 (Miller) The Executive Director presented a memorandum to the Board regarding these cases. On September 14, 2001, the Board initiated this complaint which was based on a referral from the Public Disclosure Commission. The complaint alleges that some twenty-one members of the Community Colleges of Spokane faculty used state provided computers or state provided internet access to send an email message regarding community college faculty salaries and retirement plan funding to at least thirty state representatives. The subject of the email was also the subject of several bills under active consideration by the legislature at that time. In the eight cases referenced above, Board staff is proposing resolution by a stipulation and order that imposes civil penalties up to twenty-five dollars ($25.00).
Member Zellinsky inquired about the difference in the proposed civil penalties in these cases as they related to the difference in the length of emails. Member Zellinsky expressed his concern that a violation of the statue occurred no matter how much improper use of state resources was involved. Member Vaché inquired about the Board’s authority to issue a letter of reprimand. Board Counsel, Jean Wilkinson, provided a copy of the statute to Member Vaché regarding the Board’s authority in this matter.
Results - After considering the matter in closed session, the Board accepted the eight proposed stipulations without modification and entered orders to that effect.
C. Requests for Advice
1. Advisory Opinion Request # 02-2-0411-59, Use of State Facilities to Gamble – The Executive Director presented a draft advisory opinion addressing the use of state resources to gamble. The draft opinion noted gambling activity was considered illegal or is heavily regulated in Washington State. The draft opinion also generally prohibits the use of state resources to conduct gambling. A representative of the Gambling Commission addressed the Board. The Board members asked several questions and voiced concerns that conducting sports pools could violate the ethics act. The Board asked staff to re-draft the opinion, taking out those sections that discussed illegal gambling activity and indicating that gambling activity was incompatible with public duties.
The Board accepted public comments from Gail Swanson, an Employment Security Department employee who conducts ethics training, who has advised state officers and employees that using state facilities to gamble would violate the Ethics in Public Service Act. Ms. Swanson stated that sports pools usually involve more than limited use and are not conducted just during lunch and break periods. In addition, Ms. Swanson noted that the activity occurs through-out all levels of government. Member Vaché thanked Ms. Swanson for her work and for providing appropriate advice regarding this matter.
2. Advisory Opinion Request # 02-2-0624-98, Accepting Travel Reimbursements from Regulated Companies – The Executive Director presented a memo from the Washington Utilities and Transportation Commission (WUTC) regarding the agency’s authority to accept reimbursement of travel expenses incurred by WUTC employees to attend out-of-state, work related meetings. The request indicates that the WUTC is concerned that a provision in EEB Advisory Opinion 01-07 is inconsistent with an earlier Board opinion that placed no restrictions regarding the use of funds provided by regulated private companies. The specific provision prohibits state agencies from using funds provided by a regulated private company to pay for travel by state employees who are involved in regulating the company.
UTC Commissioner, Richard Hemstad addressed the Board. Board members asked several questions regarding the WUTC, its funding authority, and the vendors that WUTC regulates. Mr. Hemstad told the Board that the specific concern was that QWEST planned to host a six-state meeting with state regulators and offered to pay travel expenses in connection with resolving that issue. The Board instructed staff to re-draft the opinion to narrowly address the WUTC questions and unique circumstances.
3. Advisory Opinion Request # 02-2-0611-105, Use of State Facilities to Support Private Charities/FAQ Revisions – The Executive Director presented a draft of several proposed changes to AOP 02-02 the FAQ’s. On July 12, 2002, the Board reviewed a staff memorandum regarding the "de minimis" use of state resources to support charitable activities. Based on that review, the Board asked staff to draft several Frequently Asked Questions (FAQ’s) revisions that would: (1) clarify the authority given to state agency heads under the "de minimis" use rule; and (2) clarify the Board’s rules regarding solicitation of private businesses on behalf of charitable organizations.
Randy Ryan, Combined Fund Drive (CFD) Program Manager, addressed the Board. The Board members asked several questions regarding CFD and the use of state resources to promote an outside business. Mr. Ryan indicated that they are in the preliminary rule-making process regarding statutes that regulate the CFD. The Board told Mr. Ryan that they look forward to seeing the proposed rules and would not make a final determination regarding the use of CFD resources until those rules are adopted. Mr. Ryan indicated that he had already been contacted by Wild Waves for another promotion of a state employee CFD day and indicated that he would not pursue that opportunity until the Board’s concerns were resolved.
D. Executive and Closed Session
At 12:08 p.m., the Board convened in executive session to consider complaints against a public official(s). Vice-Chair Scarbrough; Members Basu, Vaché, and Zellinsky; Counsel to the Board Jean Wilkinson; Executive Director Brian Malarky; Ethics Investigator Sue Jones; Training and Information Specialist Debbie O’Dell; and Counsel to Board staff Linda Dalton were present.
At 1:08 p.m., the Board went convened in closed session to consider proposed stipulations and orders. Vice-Chair Scarbrough; Members Basu, Vaché, and Zellinsky; and Counsel to the Board Jean Wilkinson were present.
At 2:13 p.m. the Board reconvened into regular session. Vice-Chair Scarbrough announced that the Board had taken the following actions in closed session: (a) accepted the proposed modification regarding EEB Case No. 01-12 (Miller); (b) accepted with out modification the proposed stipulations and orders in EEB Case #s 01-01 (Berrell), Stumbo (01-02), EEB Case No. 01-59 (Coffman), 01-61 (Brunner), 01-62 (Hanson), 01-65 (Hyatt), 01-67 (Kary), 01-69 (Scherler), 01-73 (Seubert), and 01-74 (Miller); (c) accepted with modifications the proposed stipulation and order in EEB Case No. 01-90 (Luttrel) and EEB Case No. 02-09 (Sorrells).
C 3. Advisory Opinion Request # 02-2-0611-105, Use of State Facilities to Support Private Charities/FAQ Revisions The Board then discussed the FAQ portion of agenda item C 3. Vice-Chair Scarbrough asked if the public had any comments. There were none. Vice-Chair Scarbrough then noted that CFD was going to go through the rule-making process and that those rules would be important to any Board advice regarding the CFD’s use of state resources. The Board then discussed the need for clarification regarding the definition of "de minimis" and " organizational effectiveness". Asked that the FAQ’s first address "de minimis" and then "organizational effectiveness". Board did not adopt the proposed changes and asked staff to re-draft the opinion for review at the October meeting.
D. Strategic Plan FY2002-2004 Review/Approval
The Executive Director asked the to review the draft Strategic Plan FY2002-2004. The Board members asked Board staff to re-phrase item 3(a) from the Goals Section to ensure board packets arrive in a timely fashion. The Board also discussed electronic distribution of Board packages in the future. In addition, the Board asked Board staff to re-phrase item 3(b) from the Goals Section to state that packages will arrive in ample time for Board members to review. – Motion was made, seconded and passed to approve the Strategic Plan FY2002-2004 with the changes specified.
E. Policy Reviews
1. Policy Spreadsheet – The Executive Director presented a draft spreadsheet regarding policies approved by the Board. Mr. Malarky asked the members what additional items they would like to see in the spreadsheet. The Board members stated that they would like to see a cross-reference to Ethics statutes and regulations and asked for a "check" column if an agency’s policy is more restrictive than the Act. Mr. Malarky suggested a need to add language to policy approvals that "…if changes are made post-Board approval, approval will be void…".
Members would like to see the policies listed by statute.
2. Policy Review No. 02-6-0521-81, Department of Licensing "Ethics in Public Service" – Motion was made, seconded and passed to approve this policy as presented.
3. Policy Review No. 02-6-0718-111, Office of Administrative Hearings "Use of State Resources" Policy – Board asked that once the FAQ’s were finalized that OAH cross-reference them in this policy. Board also expressed concern about the meaning of limited use instead of "de minimis" use. Motion was made, seconded and passed to approve the agenda as distributed on the condition that OAH made the recommended changes.
4. Policy Review No. 02-6-0719-112, Department of Financial Institutions Policy – Motion was made, seconded and passed to approve this policy as presented.
5. Policy Review No. 02-6-726-118, Employment Security Department – Motion was made, seconded and passed to approve this policy as presented.
6. Policy Review No. 02-6-0731-122, General Administration "Internet and Electronic Message Systems" – Motion was made, seconded and passed to approve this policy as presented.
F. Staff Report
1. Case status update – The Board discussed potential dates for upcoming hearings. The Board also decided to schedule a special meeting for September 17, 2002 to consider several cases that were not currently ready for Board action but would be ready for Board action before Member Basu would become unavailable for a regular Board meeting due to her schedule.
G. Public Comment/Board Member Comments - Vice-Chair Scarbrough provided the opportunity for public comment, no one requested to speak.
H. Executive Session (held at 12:08 p.m.)