STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
REGULAR BOARD MEETING
October 12, 2001
The Executive Ethics Board convened in regular session at 10:30 a.m. at the Office of the Attorney General, 120 S. Third St. Suite 100, Yakima WA
James M. Vaché, Chair
Sutapa Basu, Board Member
Cheryl Rohret, Board Member
Marilee Scarbrough, Board Member
Laquita Fields, Board Member
Brian Malarky, Executive Director
Linda Dalton, Counsel to the Executive Director (by phone)
Jean Wilkinson, Counsel to the Board
1. Preliminary Business
a. Roll call - Chair James Vaché, Board members Cheryl Rohret, Sutapa Basu, Laquita Fields, and Marilee Scarbrough were present.
b. Approval of Agenda – The agenda was approved without change.
c. Approval of Minutes from September 14, 2001, Regular Meeting
Chair James Vaché made motion to accept the minutes with a minor change, Member Rohret moved, and Member Scarbrough seconded.
2. Draft Advisory Opinion Request # 01-2-0611-129 (01-06), Post Employment
Executive Director, Brian Malarky, presented the opinion with the latest changes. Ron Skinnerland, Department Manager for Ecology, commented that the opinion is accurate and is very helpful. Mr. Malarky and AAG Joe Shorin for Ecology traveled to Leavenworth and presented training regarding the Ethics Laws and the draft opinion to Hanford staff. Mr. Skinnerland appreciates the work and effort of Mr. Malarky and the Board. Chair James Vaché made motion to accept advisory opinion 01-06 as written. Member Rohret moved and Member Basu seconded.
3. Draft Advisory Opinion Request # 01-2-0228-54 (01-XX), Use of State Facilities to Conduct Union Business
The Executive Director, Brian Malarky, presented the opinion. Joanne McCaughen, WPEA representative, was also present. Board counsel, Jean Wilkinson, provided background regarding concerns raised by Ed Younglove about requiring a "written agreement".
- Member Scarbrough noted that she would like the opinion to specifically state that when a use of state resources by a Union is not authorized in writing "The Board will make a determination based on facts" versus "would likely be prohibited".
- Chair Vaché suggested separating the two paragraphs at the bottom of page two because the current paragraph contains two distinct ideas.
- Member Rohret asked for clarification of "union" versus "bargaining unit".
- Ms. McCaughen suggested that the language regarding union use resources that is not specifically authorized in writing is negative language. She asked that the language be in the affirmative. Linda Dalton, counsel to the Executive Director, expressed concern that the affirmative language may lead individuals to believe that it is OK to violate Ethics laws.
- Chair Vaché and Member Scarbrough suggested the paragraph related to public records law be eliminated or inserted as a footnote instead. Ms. Wilkinson stated the public record language does fit and perhaps may become a Board issue. Ms. Dalton agreed. Chair Vaché and Member Scarbrough asked if the Board should provide advice regarding confidential records. Ms. Wilkinson stated that the language tracks with the de minimus use rule. The Board decided to move this section to a footnote with qualifiers that address the public record aspect and stage agency rights to monitor.
- Chair Vaché stated that the language regarding prohibited uses of state resources is too broad and should include a clear example, perhaps as a footnote with past Advisory Opinion references.
- Mr. Malarky noted that Ed Younglove, on behalf of the WFSE, had a specific objection to the section addressing conflicts between labor law and the Ethics in Public Service Act. So there is a policy point being made here. Mr. Malarky noted that the opinion then gives some examples of what kind of activities would clearly be prohibited. In response to Mr. Younglove's letter, staff recommends a change to the section regarding "conduct of union members", specifically, a use of state resources "to support union organizing, internal union business, or to advocate for a union in a certification election." Ms. Wilkinson would like to add "except as authorized under WAC 356-42, 251-14, an another WAC cite we'll need get that covers the Marine Employee's Commission and applies to Ferry system employees.
- The Board staff and the Board discussed the impact of Union certification elections. Ms. McCaughen clarified the matter stating that certification elections are conducted by the Department of Personnel and definitely involve the use of state resources to provide ballots for the state employee and to conduct the election. Mr. Malarky noted that with the recommended language change Union members, non-bargaining members of the Union would still not be allowed to use state resources to advocate a certain position during a certification election. Permitted activity, however, would be captured in the WAC. Ms. Wilkinson noted that the rules have a method in place for working through all these issues and so the Board is not going to meddle in that. Chair Vaché stated that he understands that this was the thrust of Mr. Younglove's criticism and that by accepting the Board staff’s language the Board will step out of certification issues. Mr. Malarky affirmed that this was the intent of the change.
- Ms. McCaughen noted that the situation that originally started this discussion was a bargaining unit meeting that the employee attended. After some discussion of this point, Member Scarbrough noted that this advisory opinion should be clear about the effect of a written agreement. She is concerned that the opinion will cause state employees to conclude that if they just write out an agreement with management then there is no a violation. Chair Vaché noted his concern that we don't always have to focus on the likely abuse because management could also abuse their workers by saying we're not going to let you do a bunch of stuff and we're going to discipline you for that. He noted that if such an issue ended up before the Board we could still say the employer is wrong here, it's not a violation of the Ethics law. Member Scarbrough agreed noting that "we're not saying just because management and union agree to write it down that we will guarantee you that will never be an ethics violation." Ms. Wilkinson suggested including a statement that the Board would have to make a determination on a case by case basis as to whether or not there was a violation of the Ethics Act. Member Scarbrough agreed "now we're saying even if it is a written agreement that it doesn't automatically guarantee that you didn't violate the Ethics law." Member Rohret expressed a concern adding this language to the advisory opinion would not add clarification to the matter. Mr. Malarky noted that this issue was also addressed where we've added the "subject to analysis in two below", which basically sets out prohibited conduct.
- Member Scarbrough: asked about the Board issuing this opinion on it's own motion. Mr. Malarky noted that the Secretary of State made the initial request regarding Union use of a state vehicle, but the opinion really addresses more issues than just the specific question. Chair Vaché suggested adding a sentence regarding the procedural history. Member Scarbrough agreed.
- Chair Vaché thanked all for a very educational experience and directed Board staff to re-draft the opinion and come back in November.
4. Staff Report
- CR 102 Filing - CR 102 filed in a timely manner so hearing can occur at the November 9 meeting. If no substantive changes, next step is to file a CR 103. Adoption occurs in thirty days, if substantive changes, adoption occurs in sixty days. EXAMPLES for use rule. Mr. Malarky asked the Board to please review and get back to him with any suggestions. He already had recommendations regarding the language "solely for personal convenience" and what does that mean. The Board discussed the example referencing using the Internet to check on your deferred comp. Mr. Malarky will include an example that shows what you can and can't do regarding using the state Internet access to amend your deferred compensation allocations.
Retreat - Due to current general freeze on unnecessary travel or overnight travel, need to review budget and determine when is the best time to reschedule retreat. Check back in a couple of months.
OFM Travel Guidelines - Mr. Malarky presented background information regarding OFM Travel Guidelines and a recent memo that advises agency's to develop internal policy and procedures when they receive dollars from an outside person or entity for the purpose of reimbursing official travel by state employees. OFM further advised that if the agency's have ethical issues when developing their internal policies and procedures and for additional information, to contact the Executive Ethics Board. Mr. Malarky has received a few inquires related to this matter and asks the Board what advice should he give. After some discussion, the Board stated that they want to be clear that individuals cannot use a state agency exception to launder funds that if given to a person directly would be in violation of the Ethics Act. The Board also discussed spousal travel and stated that there should be qualifications regarding when it's reasonable to take a spouse. The Board asked staff to define "official role" using IRS guidelines. The advisory opinion is not intended to be an exhaustive resolution of all issues under the Ethics Act.
5. Public/ Board Comments
A member of the public raised a concern regarding cultural issues when sending women/spouses/escorts to foreign countries.
Nominations for Board Chair and Vice-Chair were made. Member Rohret moved that Member Fields be nominated Board Chair and Member Scarbourgh be nominated Vice-Chair. Member Basu seconded and the motion carried. Elections will be held at the November 9, 2001 meeting.
Chair, James M. Vaché Dated: November 9, 2001
F:\Ethics\Board Meeting\2001 Minutes\091401 Minutes.doc