STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
REGULAR BOARD MEETING
January 11, 2001
The Executive Ethics Board convened in regular session at 2:30 p.m. at 12806 Gateway Drive, L&I Field Service Facility, Tukwila, Washington.
James M. Vaché, Chair
Laquita Fields, Vice Chair
Cheryl Rohret, Board Member
Sutapa Basu, Board Member
Brian Malarky, Executive Director
William Collins, Counsel to the Board
Jerri Thomas, Counsel to Executive Director
1. PRELIMINARY BUSINESS
a) ROLL CALL
Board members James Vaché, Cheryl Rohret, Laquita Fields, and Sutapa Basu were present.
b) APPROVAL OF AGENDA
The Agenda was approved. Items 2 and 7 were deleted.
c) APPROVAL OF MINUTES FROM November 17, 2000, REGULAR MEETING
The minutes from the November 17, 2000 regular meeting were approved. Chair Vaché moved that the agenda should reflect the election of officers.
d) APPROVAL OF MINUTES FROM November 30, 2000, SPECIAL MEETING
The minutes from the November 30, 2000 special telephonic meeting were approved.
The Executive Director presented background information on the case and a proposed Stipulation and Order to resolve the matter. On December 27, 1999, the Board received an ethics complaint which alleged the misuse of state resources by a camp manager assigned to the Department of Natural Resources ("DNR") Central Region. On December 5, 2000, the State Auditor transmitted to the Board a Report of Whistleblower Investigation regarding the same alleged misuse of state resources. The Report concluded that the assistant manager violated state law by using state resources for personal gain or for the benefit of a private non-profit organization and the owner of private land.
On December 27, 2000 the Board staff referred the matter to DNR for investigation, pursuant to WAC 292-100-040. On January 2, 2001, DNR completed its investigation and reported its findings to the Board. The DNR report noted that all the allegations contained in the initial ethics complaint were included in a February 8, 2000, DNR investigation, which had substantiated a number of allegations against the manager.
The DNR investigation concluded that: (a) the camp manager attended ethics training on January 31, 1995; (b) On at least five occasions between May 20, 1999 and June 9, 1999, the camp manager used, without authorization, a state vehicle to commute during the off-fire season; (c) On at least four occasions between June 28, 1999 and September 1, 1999, the camp manager, used a DNR work crew to load and a DNR vehicle to transport waste wood home for the benefit of several charities located near his home; and (d) In 1998the camp manager directed a Forest Crew Supervisor to have a ten person inmate work crew build a horse trail on private property for the benefit of the private property owner. The work crew performed at least two days of work building the private horse trail.
The stipulation and order included: (1) acceptance of DNR imposed discipline; (2) payment of $1,000.00 restitution; and (3) a $1,000 civil penalty of which $600.00 was suspended.
3. Presentation of Stipulation and Order EEB Case No. 00-32
The Executive Director presented background information on the case and a proposed Stipulation and Order to resolve the matter. The Board filed this complaint on October 13, 2000, against Michael J. Murphy, the Washington State Treasurer. The complaint was issued pursuant to a referral from the State Auditor.
On September 30, 2000, Michael Murphy sent an e-mail, which advocated his election as State Treasurer to a list of business e-mail addresses derived from the WFOA member address list. Of the 582 WFOA member business e-mail addresses listed on the WFOA member address list, 527 are associated with the work address of state or local government officers and employees. Mr. Murphy’s e-mail originated from email@example.com, which is the published e-mail address of the Mike Murphy for State Treasurer campaign. The Mike Murphy campaign site is maintained on a private computer using a private e-mail service. Nevertheless, the Stipulation and Order notes that Mr. Murphy’s September 30, 2000 e-mail was sent to the business address of at least seven state employees.
In the Stipulation and Order State Treasurer Murphy acknowledges that if this matter went to public hearing, the Board would conclude that he violated provisions of RCW 42.52.180 by knowingly sending an e-mail, which advocated the support of his campaign for election to a state-wide public office, to the work address of at least seven state employees. By sending the e-mail, Mr. Murphy was using the facilities of the agencies to advocate support for his campaign for election to a state-wide public office. State Treasurer Murphy, however, maintains that his sending of the e-mail message to those work addresses was unknowing and inadvertent.
In order to resolve this matter, State Treasurer Murphy will pay a civil penalty in the amount of one thousand two hundred dollars ($1,200.00).
4. DRAFT Advisory Opinion 01-01
The request concerns post-state employment by the Director of the Department of Personnel ("DOP"). The DOP Director asks three questions, can a former DOP Director: (1) apply for, compete for, and complete consulting work for state agencies under an ongoing Consultant Request for Proposal program ("Consultant RFP") that is administered by DOP, but was created and independently funded prior to the former Director's employment at DOP; (2) provide human resource consulting services to state agencies, i.e., perform work that was similar in nature to the service provided by DOP to those state agencies; and (3) apply for, participate in and, if selected, contract with state agencies under pre-qualified personnel investigator or human resources consultant lists that are maintained by the General Administration agency?
The Board approved an advisory opinion which states that: (1) the two year prohibition, under RCW 42.52.080(2), is not violated if the former Director did not participate in the executive action that authorized and funded the Consultant RFP program; (2) assuming that the post-state employment consulting services would not require or induce the disclosure of confidential information and the former Director did not participate in an agency's decision to contract for such services, the former Director may perform post-state employment consulting services that involve the services similar in nature to those provided by DOP; and (3) assuming that the post-state employment consulting services would not require or induce the disclosure of confidential information and the former Director did not participate in an agency's decision to contract for such services, the former Director may apply for, participate in, and contract under a list of pre-qualified consulting services providers that is administered by the General Administration agency. Chair Vaché asked that a footnote or other explanation of the confidential information issue be added to the opinion.
6. DRAFT Advisory Opinion 01-02
This request concerns conflicts of interest in State decisions and financial or beneficial interests in state decisions. RCW 42.52.020 and RCW 42.52.030(3) appear to be relevant as are EEB Advisory Opinions 97-06, 97-10, 98-05, 00-04, 00-14. The Department of Ecology ("DOE") has several officers or employees who are involved in various agency decisions and also hold memberships in outside organizations. Many of the DOE employees are ether members of groups that lobby or challenge DOE actions or attend fund-raisers sponsored by those organizations. For most of the DOE employees, membership in an organization is defined as paying dues and receiving a newsletter. None of the DOE employees involved in these questions are active on the boards of directors for the organizations.
The DOE request included five "real-life scenarios" regarding the DOE employees discussed above. The Executive Director asked for Board guidance regarding three basic issues. First the meaning of "member under RCW 42.52.0303(3). Next, which organizations are considered persons who are particpating in a transaction with the state. Finally, do organizations that can sue the agency once a decisoion is made "participate" in the initial agency decision.
The Board noted that the meaning of member in RCW 42.52.030(3) should be drafted in a manner that resembles officer, agent, or employee. And that the other provisions should be drafted in such a manner that DOE employees may hold limited memberships in environmental or community organizations without violating the Ethics Act.
7. STAFF REPORT
Staff Analysis- the Executive Director reviewed several staff analysis issued in December.
Staff Dismissals – the Executive Director reviewed several staff dismissals issued in December. The Executive Director would like to issue selective staff dismissals of cases referred by the state auditor. The Board approved of that policy.
Policy Reviews – The Executive Director has told agency ethics advisors that the Board would like to review and approve proposed agency ethics policies, i.e., policies that seek to protect the agency and its employees from violations of RCW 42.52. This is a reiteration of a 1998 policy decision. The Board would like not provide a "safe harbor" under which state employee who were following policies that were approved by the Board would not be penalized for conduct that was consistant with the approved policy.
Rules – The Executive Director briefed options regarding Board adoption of rules in April rather than March.
The Executive Director briefed possible changes to the March and April meeting minutes.
8. PUBLIC COMMENTS/BOARD MEMBER COMMENTS
9. EXECUTIVE SESSION began at 5:00 p.m. and ended at 5:30 p.m.
10. MISCELLANEOUS MATTERS/ADJOURNMENT
Summary of action taken during Executive Session:
The Stipulation and Order in EEB case No. 99-41 (Alves) was accepted without modification.
The Stipulation and Order in EEB case No. 00-32 (Murphy) was accepted without modifications.
The public meeting adjourned at 5:35 p.m.
Approved by the Executive Ethics Board on February 9, 2001.
James M. Vache, Chair