STATE OF WASHINGTON

EXECUTIVE ETHICS BOARD

RULES HEARING & REGULAR BOARD MEETING MINUTES

February 12, 1999

The Executive Ethics Board convened in Regular Session at 10:24 a.m. at the Office of the Attorney General, Highways Licenses Building, 1125 Washington Street SE, 7^th Floor, Conference Room 742, Olympia, Washington 98504.

Present: Janet Lim, Chair

Cheryl Rohret, Vice Chair

Gwendolyn Foyd, Board Member

Paul Gillie, Board Member

Also Present: Meg Grimaldi, Executive Secretary

William Collins, Legal Counsel

Patti Hurn, EEB Clerk

1. PRELIMINARY BUSINESS

a. ROLL CALL

Chair Lim, Vice Chair Rohret, Board Members Gillie and Foyd were present. Board Member Basu was excused due to illness. Also present were Executive Secretary Meg Grimaldi; Counsel Bill Collins, and Board Clerk Patti Hurn.

b. APPROVAL OF AGENDA

Board Member Foyd moved to approve the agenda with the State Auditor’s request legislation to be added under the staff briefing section. Vice Chair Rohret seconded the motion and the Board unanimously approved the agenda as revised.

c. APPROVAL OF MINUTES FROM RULES HEARING AND REGULAR MEETING ON JANUARY 8, 1999

Vice Chair Rohret moved to approve the January 8, 1999 meeting minutes with one minor correction on page 2, last line. This should read “ complainants” not “complaints.” Board Member Foyd seconded the motion and the Board unanimously approved.

2. RULES HEARING

Public Hearing - WAC 292-100 - Amended Procedural Rules.

The rules hearing was continued from the January 8, 1999 meeting, to discuss the Washington Federation of State Employees’ concerns that a union representative should be allowed to represent the respondent in proceedings before the Board. Ms. Grimaldi indicated that she had reached agreement with Bev Hermanson, Director of Legislative and Political Action with the Federation,
on the following language: “Party” includes the board staff and the respondent. The respondent may be represented by his or her counsel or exclusive bargaining representative. Ms. Grimaldi explained that this language would ensure that members of a collective bargaining unit would be represented by a person who is recognized by the union to perform representational functions, e.g., shop steward or an area representative.

Ms. Hermanson and Ms. Jerri Thomas, Senior Counsel, were available to address the Board.

Ms. Thomas expressed investigative concerns about the presence of an exclusive bargaining representative, namely: (1) the integrity of the investigation could be compromised because a union representatives is not bound by the privilege that is recognized for attorneys who represent clients; (2) a respondent may be less candid in the presence of a union representative, especially if the respondent has knowledge of other ethical violations; and, (3) that the extension of representational functions to ethics proceedings creates the appearance that the Board is operating as an arm of management when in fact the Board is separate and distinct from management, and that there is no collective bargaining agreement with the Board.

Ms. Hermanson responded that the Union representatives are under a confidentiality policy.

Board Member Gillie had concerns about complaint procedures. 1) The legal assumption underlying the complaint. 2) The level of evidence to overcome presumption of innocence. 3) If the person is an elected official, assume that they have all of the rights under the constitution, just like everyone else. Mr. Collins responded to Board Member Gillie’s questions, and explained burden of proof and presumption of innocence. Discussion continued. There were no further public comments.

Following discussion, Mr. Collins read the following proposed language for WAC 292-100-007(4): “Party” includes the board staff, and the respondent. The respondent may be represented in any matter filed under RCW 42.52, by an attorney or an exclusive bargaining representative. If the respondent is represented by a person who is not an attorney, the representation shall conform to the standards of ethical conduct required of attorneys before the Courts of the State of Washington.” Ms. Hermanson indicated agreement with the proposed language.

Board Member Foyd moved to amend the rules as read into the record by Mr. Collins. Vice Chair Rohret seconded the motion and the Board unanimously agreed..

Chair Lim reiterated that the Board was allowing representation by an exclusive bargaining

representative solely at its own discretion and that the Board expected that all representatives would conduct themselves in accordance with WAC 292-100 or representational functions could be withdrawn by the Board. Ms. Lim also noted the absence of an employer relationship between the Board and respondents in ethics complaints.

Vice Chair Rohret moved to adopt the rules as amended. Board Member Foyd seconded the motion. The Board unanimously agreed.

3. REQUESTS FOR ADVISORY OPINIONS

a. Executive Ethics Board/Receipt of Door Prizes. Mr. Collins stated the revised draft would be available for the next meeting. The Board consented to table discussion until March.

b. Washington State School Directors’ Association - Political Activities. Based on comments and concerns raised by the WSSDA at the January Board meeting, Ms. Grimaldi reviewed a revised draft opinion. These revisions interpreted “normal and regular conduct” under RCW 42.52.180(2)(c) to allow the WSSDA Board to take a position on a ballot proposition when the measure clearly relates to education policy or the management of the state’s school districts, provided there is no expenditure of public funds to promote or oppose such a proposition. The WSSDA Board could also provide general and factual information to its members on the possible impact of education related ballot propositions. Discussion followed. Ms. Lorraine Wilson expressed WSSDA’s agreement with the revised draft opinion.

Board Member Gillie moved to approve the advisory opinion as drafted. Board Member Foyd seconded the motion. The Board unanimously approved.

4. POLICY REVIEW

a. Department of Financial Institutions Ethics Policies. Ms. Grimaldi reviewed Policy 101,

Agency Ethical Standards, and expressed concerns in three areas: 1) identifying potential conflict of interest; 2) purchasing or selling securities; and , 3) reporting of violations. At the conclusion of her review, Ms. Grimaldi recommended the Board consider whether a department head may waive potential ethics violations, and whether there is any circumstance under which a state officer or state employee should benefit from non-public information. Discussion followed. Chair Lim noted the policy was ambiguous in areas, and that employees should be reminded that a waiver of a conflict of interest could still result in a violation of the ethics law.

Board Member Gillie moved to approve this policy. This motion died for lack of a second.

Ms. Grimaldi reviewed the Department of Financial Institutions policy authorizing cellular phones. Specific concerns were raised in subsections 6 and 7, which allowed employees to pre-pay the department for the personal use of office-owned equipment, including personal cellular phone use. Ms. Grimaldi briefed that such provisions may violate WAC 292-110-010(3)(a) which allows the occasional but limited use of state resources only if there is “no cost to the state;” and, WAC 292-110-010(6) which prohibits state officers and state employees from making private use of state resources and then reimbursing the agency so there is no actual cost to the state. Ms. Grimaldi recommended that the Board consider pre-payment for the personal use of state equipment as inconsistent with RCW 42.52.160(1) and the intent of WAC 292-110-010. Discussion followed.

The consensus of the Board was to agree with staff recommendations on both policies. The

Board directed staff to forward a letter citing concerns with conflict of interest waivers and recommending that prepayment for personal use of cellular phones and other state resources be deleted from the proposed policy. Board Member Gillie commended individual agency efforts to craft meaningful ethics policies, and requested this be mentioned in the letter.

b. Shoreline Community College Ethics Policy. Ms. Grimaldi reviewed the proposed policy

on standards of ethical conduct for its officers and employees, and recommended approval. Discussion followed.

The consensus of the Board was to approve this policy as proposed.

STAFF BRIEFING

HB 1001/SB 5025: Ms. Grimaldi reported concerns raised by witnesses before the Senate State and Local Government Committee on SB 5025. Among these were: 1) Why change “alleged facts” to “allegations” under 42.52.420? 2) The imposition of time limits on the conduct of investigations, with specific reference to the Executive Ethics Board. 3) Concern about granting staff the power to dismiss complaints. 4) The PDC should retain jurisdiction over allegations that state officers or state employees misuse of state resources to oppose or promote an initiative to the legislature; and, 5) What would be the Board’s standard for review of staff dismissals? Discussion followed.

Ms. Grimaldi reviewed criteria on complaint dismissal by staff. Staff’s dismissal of complaint would be for the following reasons: non-jurisdiction, no evidence found to substantiate complaint, or that a violation was inadvertent and minor or had been cured. The Board discussed different options for ensuring oversight for staff dismissals.

SAO Request Legislation: Ms Grimaldi reviewed State Auditor request legislation to amend RCW 42.40 and establish a review panel to include a member of the EEB for the purposes of reviewing preliminary investigations of anonymous complaints and determining whether further investigation should occur. Discussion followed. Mr. Collins reviewed potential problems posed by the legislation, including the possibility that participation on the SAO review panel could result in the recusal of a participating board member if an EEB investigation were to arise from the same allegations.

The consensus of the Board was for staff to draft a letter for the Chair’s signature regarding opposition to this legislation. This letter would be sent to the State Auditor, and the Legislative

Committee. The Board also requested copies of the letter be sent to them.

Budget: Ms. Grimaldi report that she met with the Attorney General’s Office on funding for the Board and two significant problems were identified: 1) current funding levels are insufficient to cover on-going program needs during this fiscal year; and 2) there has been little support for increased funding for the EEB. Ms. Grimaldi provided copies of a one-page status sheet of Board activities and a memorandum sent to the Attorney General’s Office in support of additional funding. Ms. Grimaldi also discussed factors impacting the EEB budget. Discussion followed.

The consensus of the Board was for staff to draft a letter for the Chair’s signature regarding this issue. This letter would be sent to the House and Senate Ways & Means Committees and the Governor. The Board also requested that a copy of the status sheet and memorandum to the Attorney General’s Office be included.

BOARD COMMENTS/PUBLIC COMMENTS

Mr. Dan Skinner, with the WA Federation of State Employees commented on his organization’s concern about more ethics training for Federation Members, and increased training was also likely to have a budget impact for the Board.

Chair Lim called for a short recess at 12:05 p.m., at which time Board Member Gillie left the meeting.

EXECUTIVE SESSION

At 12:33 p.m., Chair Lim announced that the Executive Ethics Board would go into Executive Session for the purpose of receiving and evaluating complaints against public officers or employees. Ms. Lim estimated that the session would last until approximately 1:15 p.m. Mr. Collins entered the hallway at 1:10 p.m. to announce the close of the Executive Session and found no one waiting. The Executive Session ended at 1:10 p.m.

REGULAR MEETING, resumed

The regular meeting resumed at 1:10 p.m. No further items were discussed.

ADJOURNMENT

The public meeting adjourned at 1:11 p.m.

Approved by the Executive Ethics Board

______________________________________

PATTI HURN, Executive Ethics Board Clerk

Date: _________________________________