October 8, 2004
Regular Meeting Minutes
A. Preliminary Business
1. Roll Call
Meeting commenced at 9:05 am with roll call. All members were present. The following is the role call: Chair Marilee Scarbrough, Vice-Chair Paul Zellinsky, Member James Vaché, Member Trish Akana, and Member Evelyn Yenson. Also in attendance were: Interim Executive Director Kent Nakamura, Assistant Attorney General Sharon Eckholm, Investigators Linda Stark and Sue Jones, Education and Outreach Coordinator Debbie O’Dell, and Compliance Analyst Mechele Linehan.
2. Approval of Agenda
Chair Marilee Scarbrough asked for approval of the meeting agenda. Chair Scarbrough suggested modifying the agenda moving “Item C. Strategic Plan Update/Board Policies” to after “Item G. Executive or Closed Session” and before the “Staff Report”. Chair Scarbrough also suggested adding the topic “recruitment” as item 5 under “H. Staff Report”. Member Akana inquired whether “Item A.2.” of the Executive Session Agenda was omitted. Mr. Nakamura indicated that “Item A.2.” was moved up in the Agenda to a Stipulation and Order, “Item B.2.” MOTION made by Vice Chair Zellinsky to adopt the Agenda with the modifications. Seconded by Member Vaché with unanimous approval.
3. Approval of July 9, 2004 Meeting Minutes
Member Vaché proposed amending the minutes with the following three changes: (1) correct Member Vaché’s title as he is not the “Vice Chair”; (2) replacing any text indicating Member Vaché “directed” to read “Member Vaché suggested” or “the Board directed” whenever staff were asked to take some action; and (3) include the surname of the Executive Director as “Mr. Malarky”. MOTION made by Member Yenson to approve the minutes as amended. Seconded by Vice Chair Zellinsky. Unanimous approval.
4. Approval of September 10, 2004 Meeting Minutes
Member Akana noted that these Minutes had a signature line for Chair Scarbrough to sign. Chair Scarbrough said that as Chair she normally signed the minutes. She stated that the procedure for the Chair’s signature on the Board minutes needed to be included in the Board’s Policies. MOTION made by Member Vaché to approve the minutes. Seconded by Member Yenson. Unanimous approval.
B. Stipulations and Orders
1. EEB Case No. 33-144 (Gerald Nevin)
The Board received a staff briefing on the proposed stipulation and order. Michael Rosenberger, attorney representing respondent Gerald Nevin, attended the Board’s meeting. Chair Scarbrough asked Mr. Rosenberger whether the facts were correctly summarized. Mr. Rosenberger indicated that he wanted to share three points with the Board: (1) Mr. Gittinger was providing guidance, counsel, advice, and governance to the University prior to Mr. Gittinger’s relationship with Mr. Nevin; (2) the Nevins and Gittingers are still close personal friends while the Neuheisels had a falling out with the Gittingers; (3) Mr. Nevin fills an administrative position at the University and has no policy-making authority nor direct influence over the football program.
Member Yenson asked whether Mr. Nevin was still in his position as the Director of Football Operations. Mr. Rosenberger said Mr. Nevin is currently in the same position. Member Yenson inquired whether Mr. Neuheisel brought Mr. Nevin to the University of Washington. Mr. Rosenberger said he did not know the answer to that question. Member Yenson explained her previous experience as a state employee who was covered under state insurance whenever she flew on state business. Member Yenson asked whether the University or the corporation provided Mr. Nevin with insurance coverage when he flew on the private jet. Mr. Rosenberger indicated that he did not know the answer to that question. Member Akana inquired into how many hours of flight time occurred for each of the seven trips. Staff indicated they did not know the number of hours for each flight nor in total for the seven trips. Member Akana asked staff why Mr. Nevin’s lack of awareness that the JBW jet was owned by a corporation was a mitigating factor in 3.10 of the Stipulation and Order. Mr. Nakamura indicated that no other meaning was intended.
2. EEB Case No. 04-032 (Mary Corso)
The Board received a staff briefing on the proposed stipulation and order. Member Vaché asked Board staff for clarification regarding the discount Ms. Corso received and indicated that on Page 9, paragraph 3.13 of the proposal that the sentence needed re-writing. Chair Scarbrough indicated she had the same comment and that it appears the invoices show a significant discount. Mr. Nakamura pointed out that paragraph 2.11 contains more details. Vice-Chair Zellinsky asked Board staff how the figure for wages paid to Ms. Corso's subordinate staff were determined. Ms. Jones indicated the figures are based on standard median incomes for plumbers, pipe fitters, etc.
D. Advisory Opinions
EEB Advisory Opinion 02-02A (The FAQ’s), Questions Regarding Political Buttons
Member Vaché and Chair Scarbrough agreed that the draft question and answer on political buttons in the workplace offered guidance in the right direction. Member Akana said the question “Isn’t political campaigning in the work place prohibited?” was obviously “yes” and, therefore; the proper question was “whether wearing political buttons and displaying political signs in the work place are considered as supporting or opposing a political campaign”. Chair Scarbrough noted the standard of “disruptive to the work place” would prohibit the wearing or displaying of political messages similar to an academic environment. The Board asked Ms. Eckholm to re-draft the question and answer aligning the response with Senior Assistant Attorney General Jim Pharris’ 1996 and 2004 opinions. Chair Scarbrough asked Ms. Eckholm to include in the answer the fact that agency policy can be more stringent than that under the Public Ethics law.
Ethics advisors were asked whether the wearing or displaying of political buttons or signs was an issue in the agencies that they represented. Harvey Gertson with the Department of Transportation said his agency relies on the 1996 and 2004 opinions written by Jim Pharris to resolve any issues when they come up. Mr. Gertson indicated that further guidance was not necessary. Chip Kormas with Employment Security Department reported that in the 45-50 classes he taught last year on ethics, the issue of political buttons and campaigning is raised with responses provided to specific scenarios where advice is sought by employees. Mr. Kormas indicated that “whether wearing political buttons was considered campaigning” was not an issue at Employment Security. Brian Jensen with Department of Information Services said that campaign buttons were not worn by employees. He said that a political button could be worn by those who do not deal with the public and having political signs in one’s cubicle would be permitted to the same extent that other personal items are allowed. Mr. Jensen stated that the Pharris memo is distributed once each year throughout the agency.
The Board asked Ms. Eckholm to re-draft the question and answer aligning the response with Senior Assistant Attorney General Jim Pharris’ 1996 and 2004 opinions. Chair Scarbrough asked Ms. Eckholm to include in the answer the fact that agency policy can be more stringent than that under the Public Ethics law.
E. Contract and Private Employment Reviews
There were no contract and private employment reviews for the Board’s consideration.
F. Policy Reviews
04-6-0701-014 University of Washington’s “Travel on Private Aircraft”
Members all had questions about the second policy in the U of W’s proposed travel policy as it was unclear whether a spouse, family member or guest were “agents” of the University or whether they would be performing “state” work as non-state employees. Member Yenson asked Board staff to request more information from the University on how many times in the past the “spouse, family member or guest” policy came up and who would be or which programs in the University were affected by this policy. Member Vaché asked staff to seek clarification from the University as to the issue of “guest versus representative of the state”. Member Vaché pointed out that the use of passive voice in the paragraph made it difficult to know who decides that a gift to the University is to be given to a spouse, family member or guest of a University employee or officer.
G. Executive or Closed Session
At 11:10 the Board moved into executive session to consider complaints against public officials with staff and Counsel Eckholm in attendance with the Board members. At 11:40 the Board moved into closed session to consider proposed stipulations and orders in several quasi-judicial matters with Counsel Eckholm present. Member Vaché recused himself during the Board’s deliberation on the Nevin Stipulation and Order.
At 12:50, the Board reconvened the public meeting. Chair Scarbrough reported the following actions taken by the Board:
1. EEB Case No. 33-144 (Gerald Nevin)
Modified the stipulation and order for a civil penalty of $5,000 including $1,500 in investigative costs.
2. EEB Case No. 04-032 (Mary Corso)
Modified the stipulation and order for a civil penalty of $2,000.
3. The Board affirmed Executive Director dismissals in the Thorne and Montgomery cases, EEB Case No. 03-125 and EEB Case No. 01-093, respectively.
C. Strategic Plan Update/Board Policies
Agenda item was moved to this point in the meeting. Member Akana reported on the references she relied on to complete the revisions to the Board’s calendar year 2005 strategic plan and Board member policies. Chair Scarbrough proposed that the Board schedule a retreat to discuss and decide on the final products for Board adoption. A special meeting will be scheduled for Friday, December 10, 2004, for the Board to collaborate on the plan and policies.
H. Staff Report
1. Transition Report
Mr. Nakamura provided the Board with a copy of the transition briefing document that was provided to the Governor’s office. He also provided the Board with a copy of the draft transition briefing for the Attorney General. Member Akana explained that the text in the Attorney General’s transition document needed to be updated to reflect information that was included in the Governor’s transition briefing document. Mr. Nakamura agreed that he would check into the due date for submitting changes. Member Akana volunteered to produce a final version of the transition paper in the next day and submit it to Judy Gaul in the Attorney General’s office.
2. Non-binding staff analysis/Board correspondence/AG Announcement
Mr. Nakamura briefed the Board on a letter from the Legislative Ethics Board Counsel Mike O’Connell requesting comments on rules governing congratulatory letters sent by legislators at public expense. Chair Scarbrough asked Ms. Eckholm to write a letter for her signature with respect to a state employee using public resources in their position tracking along the line of RCW 42.52 and the reasonable person standard.
3. Budget and staff workload reports
Mr. Nakamura provided the Board with a report on complaint status and budget expenditures.
4. ALJ Hearing Dates
The Board agreed on tentative dates of Thursday, January 13, 2005, for the Meeks hearing; Monday and Tuesday, March 14 and 15, 2005, for the Tjemsland hearing; and April 25, 26, and 27, 2005, for the Neuheisel hearing.
The Board reviewed the recruitment announcement for the Executive Director position for the Board. The Board asked Mr. Nakamura to include 5 years management experience in a small office, department or agency under “Desired Qualifications” and indicate that the employee in the position serves at the will of the Attorney General. Mr. Nakamura said the announcement would be published in mid-October by Department of Personnel according to regular recruitment practices. Interviews would be scheduled in December with a candidate recommendation to the incoming Attorney General in January.
I. Nominations of Board Members
Chair Scarbrough offered the nominations of Paul Zellinsky as Chair and Trish Akana as Vice Chair based on their tenure on the Board. Chair Scarbrough indicated that nominations based on tenure is common Board practice for nominating its Chair and Vice Chair. Votes will be taken at the next (November 12) Board meeting.
J. Public Comment/Board Member Comments
Member Akana indicated that she would be able to attend the COGEL conference on behalf of the Board. Chair Scarbrough said it has been sometime since a Board member has attended a COGEL conference.
K. Miscellaneous Matters/Adjournment
Meeting adjourned at 2:10 p.m.