STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
REGULAR BOARD MEETING
November 9, 2001
The Executive Ethics Board convened in regular session at 9:30 a.m. at the AGO LeeAnn Miller Conference Center located at 4224 6th Ave SE Bldg 1 in Lacey, WA.
James M. Vaché, Chair
Sutapa Basu, Board Member
Cheryl Rohret, Board Member
Laquita Fields, Vice-Chair
Brian Malarky, Executive Director
Linda Dalton, Counsel to the Executive Director
Jean Wilkinson, Counsel to the Board
1. Preliminary Business
a. Roll Call
b. The Board approved the Agenda - Item 5 and 6, were switched.
c. The Board approved the October 12, 2001 Meeting Minutes with minor changes.
2. Staff Report
d. Executive Director Dismissals
3. Elections of Chair and Vice Chair for 2002 - Member Fields was elected as Chair for 2002 and Member Scarbrough was elected as Vice-Chair for 2002.
Member Rohret moved to begin Executive Session immediately since ahead of schedule and recipients of presentations were not yet present. Member Basu seconded and the motion was accepted.
Executive Session began at 10:06 a.m.
Executive Session ended at 10:17 a.m.
Break from 10:17 a.m. through 10:30 a.m.
Back in regular session at 10:30 a.m.
4. 10:30 a.m. Presentations
Chair Vaché presented service awards to departing Board Counsel, Bill Collins; Counsel to the Executive Director, Jerri Thomas, and Member Rohret.
6. 11:45 a.m. Public Rules Hearing - Proposed amendments to WAC 292-110-010 – "Safe Harbor" Rule (Actual start time - 10:47 a.m.)
Executive Director Malarky provided background information regarding the rule and Chair Vaché opened the hearing to the public.
No public comment. Member Rohret commented that the revised rule would make the Board responsible to carefully review policies. Chair Vaché closed hearing. The Board approved a motion to adopt the rule as proposed and for staff to file the appropriate CR 103.
5. 10:45 a.m. Public Rules Hearing - Proposed amendments to WAC 292-110-010 – "De minimis" use of state resources (Actual start time - 10:54 a.m.)
Executive Director Malarky provided history and Chair Vaché opened the hearing to the public.
Summarized Public Comments (Please note the following is not a full transcript):
Eugene St. John – Executive Director Washington Public Employee Association.
Addressed example 10 of the proposed FAQ’s regarding use of state resources to access the Deferred Compensation site, same as fair on health benefits, but now going to a split plan and employees will have control on their plan. Employees are encouraged to access the Internet to manage their accounts. Fear – unless an allowance in rules that employees will be precluded in accessing their deferred comp. Not advocating employees using hours to access deferred comp accounts.
Member Rohret – how do manage those who want to check their accounts several times a day?
Mr. St. John – don’t know, after enrollment, the need will diminish for employees to access their deferred comp accounts.
Kathy Cunningham – Union rep for Local 17
Has heartburn about not being properly notified, despite comments presented to Board that they are not incorporated into the proposed rule. Very concerned that the rule is going thru the back door. Expressions thru attorney opinion and asks the Board to be very cautious.
Everett Billingslea – Gov. Locke’s counsel, has concerns about example 10 of the FAQ’s.
In essence the example states that employees can’t go onto the Internet to access their deferred comp, health care insurance, etc (employee benefits). DRS will also address the issue. Should be viewed as an employee benefit. Those who use the benefit too much should be properly corrected. Our state has been given awards for our technology and digital government and has great savings that would be lost.
Chair Vaché – to confirm, the issue is the example and not the rule. Governor’s office does recognize that the rule could be abused.
Jean Wilkinson – frequency can make adjustments to deferred comp and that’s different from health care benefits. Concern is unique to deferred comp and ability to take care of some of the business in off time.
Chair Vaché – not all state employees have access to a state a PC.
Ceil Buddke – appeals office with DRS. Ann Holdren – Program Manager for deferred comp.
Expressed concerns about example 10 of the FAQ and asks that the Board to reconsider this example. Provided information that when an employee accesses their account it is a benefit they’re entitled to. Benefits include investigating options, selections, making changes, etc. And it is an activity directly related to employment with the state. Before website available, these actions done anyway, but by slower methods and more costly to DRS and employers. What we know of how the participants use the site is that it’s used infrequently and appropriate. Of the 30% who have established an Internet account for deferred comp, only 10% access their accounts on a regular basis. Employees have the responsibility to use their accounts wisely, but have the right to access and manage their accounts.
Jean Wilkinson – Can you make changes now over the phone? Digital divide is different if you can access your account over the phone.
Ms. Holdren – Yes, before implementing new website, employees had to call DRS and request forms, which were not available any other way. Statistics show that less than 1% are actually accessing their accounts and minimal time is spent on accessing their accounts.
Glenn Blackman - Assistant Director of Telecommunications at UTC. Our job as an agency is to regulate utilities, telephone companies, gas companies, etc. I am here as a supervisor of state employees, but also as someone who is very close to the technological issues that have to do with communication. I wanted to highlight some of the comments already presented. I like to start by noting something you propose to do here with these rules. And that is to put a crucial part of your policy in ethics on the web. You are proposing to do something that two or three years ago would not have seemed acceptable at all to do. But you are now recognizing that, in fact, the web has a more efficient and more cost effective way to communicate with people you need to communicate with. And I believe you are correct in concluding that those examples will be more easily accessible to the people that need to see them because you have chosen to do that. Under your proposed rules, an employee, as I understand it, will be free to still use the web to go look at those resources on state time. So I'm not suggesting that you've done anything that creates any sort of conflict within your rule. What I would suggest that what you've done is the same sort of thing that many, many, other actors within our state have done. There are many dentists that have set-up websites that allow their patients to schedule appointments over the web, where before you had to call between set hours. Now you can schedule that appointment within two minutes over the web. We would encourage you to take that technological development, acknowledge it and incorporate it into the rules. You have heard several examples already of instances where a communication, as long as it's limited and occasional and legal, is considered ethical or unethical depending on the instrument that's on the employee's desk. There appears to be a conflict in the proposed rule. The idea that employees need to make the choice that's the most efficient use of state resources is a very good policy to incorporate. However, if the Internet is to be considered absolutely off limits, then you run into examples where you are requiring an employee to do something in a more expensive way in order to avoid the use of the Internet. Beyond that and individual Board decisions, I would ask that you recognize the role of state managers and directors in establishing appropriate polices that might include the use of the Internet where it does promote organizational effectiveness. We, as an agency, have encountered examples where we would like to do something that would cost the least to the state and found we can't do it because we are not allowed to permit Internet use, even if it would promote organizational effectiveness. So we encourage you to make a rule more consistent with more types of technology.
Chair Vaché – Sympathetic with concern that PC not different from phone or real bulletin board.
Member Rohret - Commented that the concern with employees surfing the net too much. Ironic that if abuse occurs over phone that it probably wouldn’t be noticed, but if done over web, is traceable.
Chair Vaché stated that UTC’s letter contains a comment that there isn’t any ethical standard and his response is that employees' not abusing state resources is the ethical standard.
Claudia Beyer – Expressed confusion on HCA employee’s part. Fear of accessing the web and some refuse to access. Concerned about the message.
The Public Hearing closed hearing at noon.
Back at 12:16 p.m.
Board comments in response to public comments
Chair Vaché asked Jean Wilkinson to explain the proposed rule.
Ms. Wilkinson - noted that the proposed rule is not very different from existing rule.
Chair Vaché – explain what does the new language "urgent personal necessity" mean. What you can’t get done after work hours.
Executive Director, Brian Malarky recommends striking example 10 and address issue via an advisory opinion.
Chair Vaché - this is important enough that I would like to make motion.
The Board passed a motion to strike example 10 of the FAQ and address via an advisory opinion. Make sure broader than just deferred comp and that opinion addresses benefits.
Chair Vaché – doesn't care for the use of the word trustee vs state employee.
Member Rohret - stated that the word stewardship is not clear. Misperception may exist between rules and principles.
Mr. Malarky suggests moving "personal urgent necessity" to the stewardship/definition area and make clear not a rule.
Chair Vaché concerned that the definitions would scare folks away from doing something that’s ok.
Mr. Malarky – Should we strike this language under permitted use?
Ms. Wilkinson – notes that this is not a substantive change
Chair Vaché, we need to better address the use of the Internet. All should be the same (email, phone, Internet). Recommends take out subsection (4)(g) and then go back to 4 and add the Internet plus language that outlines the standard limited use.
Ms. Wilkinson commented that now over the line and would have to have another hearing.
Mr. Malarky offers to adopt as proposed and hold a hearing in January.
Chair Vaché – Board expresses the opinion that the whole rule should go through a public review.
Ms. Wilkinson – for clarification, the advisory opinion will address the deferred comp and that it will be what’s allowed by law, is that what the Board wants to see in a draft?
Chair Vaché – yes
Chair Vaché – clear that we’re shifting responsibility to agencies to provide very clear direction on accessing the Internet. (Beef-up section 8)
Mr. Malarky commented on section 6(b) – outside business solicitation. Changed to "AND", and go back to "or" which would allow de minimis use to allow organizational effectiveness.
The Board did not adopt the rule – a revised draft will go to another public hearing in January or later.
Mr. Malarky – would like to bring to the Board proposed changes at special meeting in December. The Board agreed.
Break at 12:54
Back at 1:03 p.m.
7. Draft Advisory Opinion Request # 01-2-0228-54 (01-XX), Use of State Facilities to Conduct Union Business
Chair Vaché asks Mr. Malarky to give a quick history and then open to audience for comments. Mr. Malarky presented history and included the original letter from the Secretary of State's Office. In addition, Mr. Malarky indicated that he and the former Executive Director had also discussed this issue with state agencies. Mr. Malarky indicated that he has additional information that needs to be incorporated into the opinion and would not ask for acceptance of the opinion today. Ms. Wilkinson indicated that they are looking for general guidance and she and Mr. Malarky would then wordsmith. Chair Vaché offered for those wanting to comment to please come up to do so.
Eugene St. John – WPEA
This started out to be just a simple issue and it’s ballooned to "Use of State of Facilities by Union"….everything else creates more questions rather than answers. The advisory opinion addresses union organizing and that it’s prohibited. Opposed to the opinion, doesn’t provide clear guidance. At a loss on what to do. Suggested to Mr. Malarky that he needs to get folks together and work out the issues. Process will take another year. Not comfortable with what’s presented.
Ms. Wilkinson – clarify bullets in letter submitted at beginning of meeting.
Mr. Malarky referenced inquiries regarding this issue exceed the use of state vehicles for union activity.
Ms. Wilkinson hears from Mr. St. John that he feels the broad advice in the opinion hits on other aspects and that we need to state in the opinion that it does not address those other aspects. Mr. St. John stated that the way the opinion reads could offer an excuse for state agencies not to allow union to use certain facilities. Attempt to cover the whole world is not acceptable.
Chair Vaché – we can agree that there is a considerable amount of discretion and that in of itself is part of bargaining. Too complicated for Board to try and address. Ms. Wilkinson agrees – there is a whole set of issues about state working with unions and that we can’t put in the opinion.
Chair Vaché feels like EEB coming out on the side of management and limits the scope of what can be bargained/written agreement.
Ms. Wilkinson – we need to do a better job of conveying the intent of the advisory opinion, which is evident by the comments and number of comments received.
Ed Younglove (WFSE Attorney) – agrees that advisory opinion is limiting. Principal concern that more than one way for agreements to come to light. Will wait and see and new draft. Karl Nagle made some very good points in his letter.
Mr. Malarky has recommended changes based on Mr. Schurke’s letter. Since we need to do a re-draft anyway, will wait. What’s your direction?
Member Rohret would like to start with the positive vs a negative and keep it simple.
Ms. Wilkinson, don’t know how successful will keep simple based on the many RCW’s involved.
Linda Dalton commented what is purely union business vs what impacts the employer.
Ms. Wilkinson – maybe we need to focus on section 2, then we wouldn’t have section 1 address collective bargaining issues, and tell you what it is off limits.
Kathy Cunningham – Local 17
There are no substantive changes from the presentation of several months ago and results of today's proposal. Their union has a problem with that. They spent considerable time tracking down meetings of the EEB once they knew this issue was coming before the EEB. They had representation coming and speaking to the EEB and calling to your attention, well in advance of the final document. The current draft form contains particular heartburn issues for them. Ms. Cunningham stated, that despite the comments and despite their attorney's opinion that they provided to the Board's Executive Director on a timely basis, that none of that seems to have resulted in some changes in the draft before the Board. They are concerned about that. They are concerned about the Board looking at rules and regulations to impose upon working relationships in existence within state service. Specifically, the Union's obligation as the legal representative for the employees with employing agencies. We have contracts in these agencies. Those contracts, those working relationships, those working understandings governing working conditions of our members, the employees of these state agencies, are to be the ultimate viewpoint on how people are doing business for the State of Washington. They are very concerned that the regulations before the Board attempt to actually go through the backdoor and void out much of the original advisory opinion. Much of that language was very good and very well stated. And their attorney's letter to you identifies exactly which parts those are. There are also huge cautionary notes that are changed in the philosophy and the mission statement of these regulations. Where there is a profound change into the invocation of our members to now move from efficiencies and wise use of state resources into a fiduciary responsibility. They do not have that relationship defined and protected in their collective bargaining agreements and believe it would not be of service to anyone for the EEB to impose regulations, which assumes a new relationship in their collective bargaining agreements. I guess part of our problem here is that all of this process, despite the input that has gone before you, including that from Karl Nagle, who is the Personnel Board's Executive Director for labor relations, cautioning you about the imposition of new regulations and new forms of working together. And Mr. Nagle even cites specifics where PERC is only one governing body for certain parts of municipal types of employees. PERC governs some of their members. An example, the Health Department at the county level, but it certainly doesn't govern state service. That's the Personnel Resource Board and the Department of Personnel and that's not addressed here. The two systems are separate and apart and you cannot invoke one over the other. So there is a concern with the lack of consideration for the appropriate governmental bodies that are in existence right now that is not reflected in this draft proposal. Again, they feel that their expressions through their attorney's letter were very specific. Their cautions to the Board are based on their concern that the Board is voiding out the statutory regulations that govern the Board's work and Ms. Cunningham asks that the Board seriously consider not only those options, but in doing so that they table it and go back to the drawing board and see if the Board really needs to go in this direction. They have contracts that exist with prevailing language. It would probably behoove us to keep to the track that is working today for state employees.
Mr. Malarky commented that more discussion with PERC, PRB, and union representatives may be needed.
Chair Vaché – need to redraft and go back to management, PERC, PRB, Union, etc and bang out the details.
Tina Peterson – L/I Labor Management Representative
Section 2 confuses her regarding free speech rights in break rooms. Not addressed and it is a state facility. Is that what you intend, for employees not to discuss union stuff?
Mr. St. John – not everything covered under WAC’s, RCW’s and allows free speech.
Mr. Malarky commented that ethics law does limit speech.
Chair Vaché stated that Member Rohret asked the most appropriate question, what are we trying to accomplish? That should be the guideline for re-drafting the advisory opinion. We need a fresher focus for an outcome. The Board members agree.
Chair Vaché thanked everyone.
8. Draft Advisory Opinion Request # 01-2-1001-220 (01-XX), Travel Guidelines
Travel Advisory Opinion
Mr. Malarky presented this draft opinion. The draft included several changes from the last meeting.
Member Basu departed at 2:00 p.m.
Member Rohret stated that we need to be more clear about section 4 folks.
Linda Dalton, under first full paragraph in 3, "…non-state employee spouse", is that ok? This language creates a loophole. She recommended strike "non-state". To now read by a spouse or family member
The Board asked if we taking "partners" out?
Mr. Malarky recommended change to "invited guest" (in all instances)
The Board asked for a re-draft and bring back to December special meeting.
9. Public Comment/Board Member Comments
Harvey Gertson – DOT, appreciates Cheryl Rohret's involvement with the Board.