STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
SPECIAL TELEPHONIC MEETING
December 14, 2001
The Executive Ethics Board convened in special telephonic session at 10:55 a.m. at 2425 Bristol Ct SW, Olympia WA.
James M. Vaché, via telephone from Spokane
Cheryl Rohret, via telephone from Yakima
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 with one change - Member packets agenda had an item 2 c, which was moved to Executive Session. Public agenda did not have an item 2 c.
2. Staff Report
b. Executive Director Dismissals
3. Draft Advisory Opinion Request #01-2-1001-220 (01-07), Travel Guidelines
Executive Director, Brian Malarky, presented this opinion and the changes made at the request of the Board from the last meeting. Member Rohret moved to adopt as written and Member Scarbrough seconded. The opinion was adopted as presented.
4. Proposed CR102 regarding amendments to WAC 292-110-010 - "De Minimis" use of state resources
Executive Director, Brian Malarky, presented this proposal. Provided a brief history of previous actions. Member Scarbrough asked about minor changes versus substantial changes and whether or not one or the other initiates another hearing (only substantial changes initiate another hearing). Mr. Malarky then went through each proposal change to the rule. Mr. Malarky mentioned that the Board might want to consider moving some language about standards to the principal section. Biggest change is in section four regarding the use of the Internet. Mr. Malarky then noted that state agencies would now be required to adopt policies consistent with 292-110-010(3). Consequently, agencies would come back to the EEB on what the standards would be. Mr. Malarky stated the standards would be ten minutes at one time and no more than on hour per month, which totals twelve hours a year.
Member Rohret commented that the proposal looks a lot cleaner.
Chair Vaché asked that for clarification, are we sure there is no connection to job related duties.
Member Scarbrough stated that moving the standard language is ok with her. In Section 3(c) it is not clear that it's ok to call and check on their children or make a doctor appointment, etc. In addition, section 3(h)'s regarding agency allowing a use that enhances organizational effectiveness does not fit.
Mr. Malarky suggested it could be moved to another section.
Member Rohret commented that she thought it was covered.
Ms. Wilkinson commented that the agency has to authorize a use that promotes organization effectiveness.
Member Scarbrough expressed concern that the ten minute standard and the "shall adopt policies" is too narrow. Was the concept of "shall adopt policies" discussed previously? She stated this idea is legitimate, but should be addressed another way.
Chair Vaché asked whether or not the Board has the authority to direct agencies to make policies and expressed concerns about the ten minute standard, but has no suggestions for new language at the moment. Chair Vaché also asked whether the language is saying that if an agency doesn't have a policy in place, no personal use allowed at all?
Mr. Malarky agreed that no personal use will be allowed until an agency has a policy in place.
Brian Jensen (DIS) - What is the difference between using a PC versus making a call? Mr. Malarky replied that the difference is if the use is solely to avoid a personal expense.
Claudia Beyer (HCA) - If sections (2)(b) and (c) were removed, what would the state lose and why do we need the sections, it's already covered. Mr. Malarky disagrees, the use should be brief and short, otherwise, could end up not being de minimis use. Ms. Beyer asked, why would we care, use of the Internet doesn't cost the state anything extra.
LouAnn Dunlap (DNR) - What does (2)(b) mean? Doesn't think state employees would be able to make a judgement call on that. Mr. Malarky stated that state employees should not be making decisions to use state resources lightly. Ms. Dunlap doesn't see that the proposed rule gets us there.
Stacey Sitko (GA) - The terms "efficient and effective" are subjective - who's perspective would the Board make a determination on? Member Rohret commented that it's not all bad to think about it.
Gail Swanson (ESD) - Would public disclosure be a factor and does it attach easily to readers that if allowable, is also disclosable? Mr. Malarky replied that question would fall under the public disclosure regulations, which the EEB doesn't enforce.
Vince Oliveri (Local 17) - Stated that he appreciates being given the opportunity to comment in February. Regarding the use of state resources relating to labor relation issues, is it the intention of the rule to impede or permit? Mr. Malarky stated no, the draft advisory opinion regarding labor relations and use of state resources would address the specifics on that issue. Nothing in this rule would hinder that advisory opinion.
Glenn Blackman (UTC) - On behalf of UTC, they support the changes regarding the different types of communication. He suggests using specific statements to address the differences. There is concern regarding 3(c), why can't you make the telephone call to check on your kids? The test for the Internet use doesn't cover that.
The Board further discussed section 3(b) and 3(c) and decided to remove 3(c). Don Briscoe with Local 17 mentioned that paragraph four is very confusing. The Board asked for new language.
Acting Chair, Laquita Fields, made a motion to go forward with the filing of a CR102 with the changes discussed. Member Scarbrough moved and Member Rohret seconded. A clean copy will be provided to the public. In addition, any changes to the FAQ's will be discussed in January and public welcome to comment.
5. EEB Case No. 01-07, Presentation of Proposed Stipulation and Order
Chair Vaché read the following statement:
"Madame Chairman, - During a recent briefing by staff, it came to my attention that a representative of the University of Washington expressed a preference for members of the board rather than myself being present in Olympia for this hearing. This might have been a casual remark, but it might reveal concerns about my probity and fairness. I believe that I could hear and decide on this matter with fairness and integrity. However, to avoid even the appearance of impropriety or fairness, I am going to recuse myself from these matters. I regret that this issue has to be addressed but it must. The integrity of the Board's decisions as a quasi judicial body are at stake."
Ms. Dalton responded that, for the record, she suggested that a Board member be physically present at today's meeting. Ms. Dalton further stated that she made no suggestion what so ever about who should or should not participate in EEB Case No.'s 01-07 and 01-08
AAG Karin Nyrop, representing the University of Washington, and Mr. Jim Frush, attorney for Barbara Hedges and Richard McCormick, stated, for the record, that they made no such request.
Executive Director, Brian Malarky, commented that board staff might have miscommunicated information to Chair Vaché. He further stated that he was not part of the original discussion.
Chair Vaché responded that it was expressly communicated to him that the University of Washington requested his non-participation and while he appreciates the additional information, he is still recusing himself.
Counsel, Linda Dalton, presented this proposed stipulation and order. Board members and Counsel to the Board asked several questions regarding the source of funds for the Bowl games and the effect of this stipulation and order regarding the Legislative Ethics Board. The Board will discuss in Executive Session.
6. EEB Case 01-08, Presentation of Proposed Stipulation and Order
Counsel, Linda Dalton, presented this proposed stipulation and order. The Board to discuss in Executive Session.
7. Public Comment/Board Member Comments
8. Executive Session
Began at 12:45 p.m.
Ended at 1:50 p.m.
Board accepted the stipulation and orders in EEB Case No.'s 01-07 and 01-08 but required a modification to attachment A regarding the attendance of legislators at Bowl Games.
The Board reviewed a dismissal review request 01-7-0619-133. The Board affirmed the Director's dismissal and directed Board staff to draft an Order to that effect.
Laquita Fields, Acting Chair