STATE OF WASHINGTON

EXECUTIVE ETHICS BOARD

 

RULES HEARING & REGULAR BOARD MEETING MINUTES

 

January 8, 1999

 

The Executive Ethics Board convened in Regular Session at 10:15 a.m. at the Lee Ann Miller AGO Conference Center, 4224 6th Avenue SE, Building 1, Lacey, Washington  98504.

 

Present:               Janet Lim, Chair

Cheryl Rohret, Vice Chair

Paul Gillie, Board Member

Sutapa Basu, Board Member

 

Also Present:       Meg Grimaldi, Executive Secretary

William Collins, Legal Counsel

Patti Hurn, EEB Clerk

 

 

1.     PRELIMINARY BUSINESS

a.     INTRODUCTION OF NEW BOARD MEMBER

Chair Lim welcomed back Board Member Paul Gillie.  Ms. Grimaldi introduced the Board’s newest member, Ms. Sutapa Basu, who is the Director of the Women’s Center at the University of Washington.  Ms. Basu discussed her background and interests.

 

b.   ROLL CALL

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

 

c.  APPROVAL OF AGENDA

The Board unanimously approved the agenda as presented.

 

d.  APPROVAL OF MINUTES FROM REGULAR MEETING ON NOV. 13, 1998

Vice Chair Rohret moved to approve the November 13, 1998 meeting minutes as drafted.  Board Member Basu seconded the motion and the Board unanimously approved.

 

2.    RULES HEARING

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

Ms. Grimaldi reported on written and public comments relating to the proposed amendments.  The Department of Transportation expressed concern that the Board’s rules place state employees in “double jeopardy” for the same offense because a state employee may be both disciplined and fined a civil penalty for the same ethics violation.  Ms. Grimaldi recommended no change to the proposed rule, because both civil penalties and disciplinary action by an agency were authorized under RCW 42.52.480 and RCW 42.52.520 respectively.  Ms Grimaldi also noted that the notion of “double jeopardy” was applicable to criminal and not civil proceedings.

 

A second response from the Employment Security Department proposed that WAC 292-100-

040(3) and (4) be clarified to indicate that Board staff will contact a respondent as early as possible during the preliminary investigation; and, that the rule specify a particular individual within the department who will be notified when a complaint is pending against an agency employee.  Ms. Grimaldi proposed no changes be made to subsection (3), because respondents are generally notified within twenty (20) days of filing the complaint unless notification would impede the investigation.  Ms. Grimaldi also advised that complaints will in most instances be sent to the agency head unless the respondent is the agency head, and that changes to subsection (4) were not required.

 

Ms. Grimaldi also reported the concern of the Department of Labor and Industries’ ethics

representative, Maura Quiggle, that the term “party” under amended WAC 292-100-007(4) should include a union representative.  Ms. Grimaldi stated that the amended rule does not contemplate the presence of a union representative during investigative interviews or ethics proceedings because the Executive Ethics Board is not an employer and does not act on behalf of the employer. 

 

Mr. Collins reviewed a comment from the Attorney General’s Office that suggested an addition

to 292-100-090(1)(c), to include a subsection (iii) to read, “A stipulated order agreed to by the parties.”

 

Ms. Grimaldi requested the Board’s consideration of three housekeeping amendments:  (1) the

word “representative” under WAC 292-100-007(4) be changed to “counsel”; (2) under WAC 292-100-090(1)(c), the word “shall” in “negotiations shall be concluded” be changed to “may,” and include a sub “(iii) A stipulated order agreed to by the parties.”; (3) and, under WAC 292-100-090(2), the words “shall be recited” in “The stipulation shall be recited on the record at the hearing,” be changed to “may be recited.”

 

Board Member Gillie commented on the leaking of information and asked how confidential the Executive Ethics Board’s investigations were.  Ms. Grimaldi reviewed confidentiality protections under RCW 42.17.310(e), and procedures used to handle inquiries.  Ms. Grimaldi also emphasized that the EEB staff does not release any information during the pendency of an investigation, but that if information is released it is by someone else, either the complainant, the respondent, or a witness. 

 

       During the public hearing, Mr. Dan Skinner, a representative of the WA Federation of State Employees, opposed changing the word “representative” to “counsel” under WAC 292-100-007(4).  He also expressed concern that ethics training was not mandatory.  He also expressed concern about the lack of retaliation protections in the ethics law.

 

       Ms. Maura Quiggle, with Department of Labor & Industries also opposed changing “representative” to “counsel.”  Ms. Quiggle also noted that RCW 42.17 should be specified as RCW 42.17.310 in section 292-100-040, and questioned the extension of confidentiality protections under RCW 42.17.310(e) to complainants who filed complaints with the Executive Ethics Board.

 

       Discussion followed about potential legislative remedies regarding confidentiality and retaliation.

 

The consensus of the Board was to approve all amendments requested by staff with the exception of 292-100-007(4), changing the word “representative” to “counsel”  With further discussion on this question scheduled for the February 12th Board Meeting. 

 

3.    REQUESTS FOR ADVISORY OPINIONS

Executive Ethics Board/Receipt of Door Prizes. Ms. Grimaldi reported on her query to the

Council on Governmental Ethics Laws (COGEL).  Three jurisdictions provided responses that appeared most relevant to the Board’s discussion:  The State of Delaware Public Integrity Commission; the Conflicts of Interest Board in New York City, and the New York State Ethics Commission.  Ms. Grimaldi reviewed the three responses. 

 

       Ms. Grimaldi reviewed the proposed draft opinion, which would apply the gift limitations under RCW 42.52.150 when (1) a state officer or state employee is attending an event in his or her official capacity; and, (2) when there is a reasonable indication that a drawing for a door prize is not random due to the limited number of attendees, or because attendance is not broad based or representative of a diverse audience.  Otherwise, state employees could accept a door prize, regardless of value, unless given by a “Section 4” donor or when official state position might make it imprudent to accept a prize.  The gift limitations would not apply if received by state officers and state employees in their individual capacities and if clearly unrelated to the performance of official duties.  Following Ms. Grimaldi’s review, Mr. Collins expressed concern that the $50 limitation in RCW 42.52.150(1) would argue against accepting the draft as written.  Mr. Collins also suggested the addition of examples.  Discussion followed.

 

       The Board asked Mr. Collins to prepare another draft for the next Board Meeting. 

 

b.     Washington State School Directors’ Association - Definition of Legislative Body/

Political Activities.  This request relates to whether the Association is an elective legislative body and therefore subject to the exceptions under RCW 42.52.180.  Ms. Grimaldi reviewed the draft opinion.  The draft opinion concluded that the WSSDA Board is not an elected legislative body, but rather a state agency that performs executive functions, and that that using state resources to promote or oppose ballot propositions does not constitute “normal and regular conduct” for the WSSDA.  Discussion followed. 

 

Mr. Dwayne Slate and Ms. Lorraine Wilson represented the WSSDA and argued for a reconsideration of the conclusions in the draft opinion.  Mr. Slate presented background and other information about the WSSDA to the Board.  He stated that his agency is not state funded, but did receive local school district money through dues.

 

There was a short recess called by Chair Lim at 12:15, at which time Board Member Gillie

left the meeting.  The meeting resumed at 12:35 p.m.

 

Ms. Wilson continued discussion on her concerns regarding this draft opinion.  She emphasized

that what constitutes “normal and regular conduct” for the WSSDA required further analysis.  Mr. Collins agreed to determine whether the Attorney General’s Office had provided any formal or informal advice on this question.  Ms. Grimaldi agreed to reanalyze the application of “normal and regular conduct” to the activities of the WSSDA.

 

       The Board agreed that staff should resubmit this draft advisory opinion at the next meeting.

 

4.     CONTRACT/OUTSIDE EMPLOYMENT

       Jensen/Contract with DSHS.  This request is for approval of a non-competitively bid contract between a state employee and his employing agency.

 

       Ms. Grimaldi reviewed the process used to award the contract citing her concerns about the informal and ad hoc nature of the award process. 

 

The Board approved the contract between Mr. Jensen and the Department of Social and Health Services, but requested that staff send a letter to the agency regarding their contract process and suggesting review for possible revisions.

 

STAFF BRIEFING

Departure of Peter Dykstra:  Ms. Grimaldi announced the departure of Peter Dykstra, an AAG who advises on ethics investigations, to join a private law firm in Seattle.

 

       Legislative Ethics Board:  Former Secretary of the Senate, Mike O’Connell, has replaced Tony Cook as Counsel to the Legislative Ethics Board.

 

       HB 1001:  Ms. Grimaldi reviewed HB 1001 which would allow the administrative dismissal for ethics complaints under specified circumstances.  Such dismissals would be appealable to the Board.  The bill would also amend RCW 42.52.180 to include a prohibition against using state resources to assist a campaign for the appointment of a person to a vacancy in elective office; and provides a new definition for “ballot proposition” to include an initiative to the legislature, except “during the period beginning the first day following the close of the time for signature gathering and ending on the date the legislature takes action.  Ms. Grimaldi informed the Board she would be monitoring this bill in the House, and its companion bill, SB 5025, in the Senate.

 

BOARD COMMENTS/PUBLIC COMMENTS

       Harvey Gertson with the Department of Transportation thanked the Board for allowing comments from the public during the different agenda issues before the public comment portion of the meeting.

 

EXECUTIVE SESSION

At 1:20 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.  The estimated time for the Executive Session to end will be 2:30.  Ms. Grimaldi entered the hallway at 2:30 p.m. to announce an extension of the time needed for the Executive Session and found no one waiting. The Executive Session ended at 2:48 p.m. 

 

REGULAR MEETING, resumed

The regular meeting resumed at 2:50 p.m.

 

       Chair Lim asked staff if there had been any response from the Attorney General’s Office regarding the Board’s request for support for an additional investigator.  Ms. Grimaldi stated there had been no response to date, but that she would follow up on the request.

 

ADJOURNMENT

       The public meeting adjourned at 2:55 p.m.

 

                                                                         Approved by the Executive Ethics Board

 

                                                                         ______________________________________

                                                                         PATTI HURN, Executive Ethics Board Clerk

 

                                                                         Date:  _________________________________