February 8, 2002

The Executive Ethics Board convened in special session at 9:32 p.m. at 4224 6th Ave Bldg 1 in the Attorney General's Conference Center in Lacey. Please note the following is a summary of the minutes. This session was audio recorded.


Laquita Fields, Chair

Marilee Scarbrough, Vice-Chair

James M. Vaché, Member

Also Present:

Brian Malarky, Executive Director

Linda Dalton, Counsel to the Executive Director

Jean Wilkinson, Counsel to the Board

Robert McGuire, Investigator

Debbie O'Dell, Information & Training Specialist


1. Preliminary Business

a. Roll Call

b. Approval of Agenda The agenda was approved with deletion of agenda item number three.

c. Approval of January 11, 2002 Meeting Minutes - Vice Chair Scarbrough asked if Board staff had followed up on item 4(c). Board Counsel, Jean Wilkinson responded her question will be addressed in regular session. Member Vaché moved to accept and Vice Chair Scarbrough seconded the motion. The minutes were approved.

2. Staff Report

a. Budget Update, Case Report, Legislative Update - Vice Chair Scarbrough asked for an explanation of the three 1999 cases and wanted to know if Board staff making an effort to clear up old cases first. Member Vaché inquired whether or not the Board should ask for additional funds from the Attorney General directly. Linda Dalton, Counsel to the Executive Director, indicated that she was working with Fred Olson, Director of Administration, on ways to conserve legal fees on her end. Member Vaché indicated that the Board has not participated in the budget process in the past and wants to be involved. Vice Chair Scarbrough seconds this concern. Mr. Malarky next updated the Board on legislative issues. Ms. Wilkinson mentioned that the legislative website provides bills in a PDF format that are easier to read than what provided to the Board. Ms. Wilkinson suggested that the Board direct Mr. Malarky to provide feedback to the legislature on bill issues.

b. Washington State Ethics Conference, Northwest Ethics Network - State Ethics Conference is scheduled for December 3, 2002. Mr. Malarky would like to discuss with Member Vaché siting on a panel at that conference. The NW Ethics Network (NWEN) is sponsored by a Seattle University Professor (John Dienhart). They meet on a quarterly basis and Mr. Malarky participates as well. Mr. Malarky summarized a recent Boeing presentation where they discussed the training of ethics advisors. Mr. Malarky offered to add the Board members to the email list for NWEN if they so desired.

c. Filings with the Code Reviser

d. Non-Binding staff analysis - Mr. Malarky briefed, Member Vaché mentioned that there is a sentence fragment on page three of one of the letters.

e. Executive Director Dismissals - Board members expressed concerns regarding the word "cured". They felt it didn't fit in the Gacke case. Ms. Wilkinson brought this to Mr. Malarky's attention and that the Board could be mislead by the word "cured".

f. Misc. - Mr. Malarky indicated to the Board that he would be on military leave through February 24th. Chair Fields indicated that she would be on active duty in March and would not be able to attend the March 15th Board meeting.

3. Executive Session - deleted from agenda


4. Public Hearing regarding WAC 292-110-010 the "De Minimis" Use Rule

PUBLIC HEARING (The comments are summarized The Board maintains an audio tape of the Public Hearing at its office.):

Mr. Malarky gave a brief history. Ms. Wilkinson provided an update regarding the issue of January 11th agenda item 4(c) regarding an incorrect box checked for the CR102 filing. That error did not and does not cause any problems with the rule.

Eugene St. John WPEA - How does this interact with the draft union opinion? Incidental emails regarding union and connecting with legislative issues? If union newsletter mentions legislative activities and is posted in a break room or sent via email, is this a violation? The de minimis use rule and union advisory opinion need to intertwine.

Member Vaché asked where does the on-line "Ethics Challenge" training fall under in de minimis use. Mr. Malarky indicated under section 2 as part of official duties. Organizational effectiveness is not under section 2 because an agency head could deem anything as organizational effectiveness. Member Vaché indicated that "3" is the heart of the de minimis use rule and that only allows use under these two circumstances. Mr. Malarky indicated that he didn't read "3" that way. Ms. Wilkinson stated that we had moved this section out and that Member Vaché picked up on that there could be another misunderstanding. Does the final sentence in this section help clarify? " Ms. Wilkinson suggested adding "In addition, and notwithstanding" Ms. Dalton suggested deleting "accordingly" in the second to the last sentence in paragraph

3. Chair Fields invited any remaining members of the public to make comments.

Gladys Burbank WFSE - Accessing resources via the internet for things like the Merit System rules, DOP rules, etc. is that ok for state employees to access via the Internet? Mr. Malarky indicated that activity is not prohibited either under de minimis use or under an advisory opinion that be discussed later. Ms. Burkank then asked about state applications, CQ's, etc. Some folks deem time spent is not de minimis use.

Mr. Malarky briefed the Board on recent and past written comments.

Chair Fields closed hearing and public comments at 11:12 a.m.

Member Vaché moved to adopt the proposed rule with minor changes. Vice Chair Scarbrough seconded. WAC 292-110-010 was adopted.

Mr. Malarky reminded everyone that the old rule in effect until the new rule is filed in March and finally adopted in April.

5. Draft Advisory Opinion - WAC 292-110-010 Examples and FAQ's.
Mr. Malarky briefed the Board on this issue. The Board discussed questions 20 and 21 regarding solicitation and asked for clarification of the term "pre-loaded" games to indicate "manufacturer pre-loaded" games. Ms. Dalton suggested that we include language that an agency could have a more restrictive policy. Re-draft and bring back to March meeting.

6. Draft Advisory Opinion # 01-2-0228-54 (02-01), Union Use of State Resources

Mr. Malarky briefed the Board on this latest draft. The Board allowed public comment:

Gladys Burbank WFSE - At last meeting that this draft opinion presented, it appeared the Board going in a different direction and that hasn't happened. Labor laws are very complex. Disappointed that the exchange of information with stakeholders didn't happen as the Board directed. Mr. Malarky indicated that the issues raised by Ms. Burbank were addressed in the first drafts of the advisory opinion. Member Vaché wanted to know if Ms. Burbank is questioning the process relating to the stakeholders not being included. She said "yes". Member Vaché asked that Mr. Malarky comment. Mr. Malarky indicated that he was directed to re-draft. Board members indicated that the opinion is very narrow and that the issues WFSE raise are not something they want to address and perhaps not something that WFSE would even want the Board to address.

Eugene St. John WPEA - Also disagrees with the focus of the opinion. He cannot see how an agency can interpret this opinion other than "no, you can't use state resources for union activities". He also understood that there was going to be additional contact with stakeholders. He sees no reason why the Board can't address union use in a broader sense. Concerned that the opinion will trump the unions bargaining agreements. Vice Chair Scarbrough asked if he has any suggestions on how to address this issue, which he indicated that it was addressed in the materials just handed out. Member Vaché indicated that the proposal in paragraph three cannot be done - Mr. St. John stated "OK, no to the lobbying".

Chair Fields closed public comments at 12:21 p.m.

Discussion continued with Board members and Mr. Malarky. He is to do a re-draft with disclaimers.

LUNCH BREAK at 12:30 p.m. - BACK IN SESSION at 1:05 p.m.

7. Advisory Opinion Request # 01-2-1221-248, Use of State Facilities, including the Internet, to Access State Benefits

Discussion with Board Members, Counsel, Mr. Malarky, and Sharon Arenson with the Department of Retirement Systems. Determined that with the rollout of PERS III that this is not the appropriate time to deal with this issue and the opinion tabled until a later date.

8. Public Comment/Board Member Comments

Board members discussed concerns that there may not be a quorum for the March 15th meeting.

9. Executive Session at 1:49 p.m. Expect to conclude by 2:15 p.m. Executive Session ended at 2:16 p.m.

10. Miscellaneous Matters/Adjournment

Board members have requested a review of Executive Director dismissals of case numbers 01-41 and 01-42. The Board found reasonable cause in EEB Case # 00-36 (Powell) with penalties over $500.

Adjourned at 2:23 p.m.