STATE OF WASHINGTON
EXECUTIVE ETHICS BOARD
April 12, 2002
The Executive Ethics Board convened in regular session at 10:35 p.m. at 12806 Gateway Dr (L/I Field Service Location) in Tukwila, WA.
Laquita Fields, Chair
Marilee Scarbrough, Vice-Chair
James M. Vaché, Member
Brian Malarky, Executive Director
Linda Dalton, Counsel to Board staff
Jean Wilkinson, Counsel to the Board
Debbie O'Dell, Information & Training Specialist
1. Preliminary Business
a. Roll Call
b. Approval of Agenda Ė The agenda was approved
c. Approval of March 15, 2002 Meeting Minutes Ė The agenda was approved as drafted.
2. Staff Report Ė Budget
The Executive Director presented an updated budget for FY 02-03. Expenditures for FY 02 are about $20,000 below budget. The reduced expenditures are related to highly reduced AGO attorney costs. This amount reflects the shift in investigator supervision to the Executive Director and the fact that we have held no hearings in FY-02. In the long term we can maintain this budget if we do not hold many hearings. However, the increased caseload in FY-01 and FY-02 may result in several hearings next year. Vice Chair Scarbrough commented that holding a hearing should not be driven by the budget and should be driven by the need. Member Vaché agrees.
The Board expressed concerns about reducing the number of meetings per year. Member Scarbrough commented on the reduction of meetings is important and asked Board staff to put the suggestion on hold for now. The Board would like to explore soliciting the Governor for additional appropriations. Member Vaché volunteered to work with the Attorney Generalís office and Board staff. Given that FY-04/05 budgets are currently being drafted he believes that the Board should be very involved in the budget process.
Mr. Malarky has talked with the Governorís office and they have promised a new member by the May 10th meeting. There are currently two excellent candidates for the position. Mr. Malarky suggested scheduling a retreat and proposed May and June.
Mr. Malarky announced that EEB Investigator, Robert McGuire accepted a position with Torts effective May 1, 2002. Member Vaché would like to see a Board member involved in the hiring process of the new investigator. Vice Chair Scarbrough volunteered.
Member Vaché asked for Linda Dalton to bring up what the PDC did for their commissioners (Laptops for all board members and post documents to the web). Member Vaché likes the idea, Vice Chair Scarbrough likes it as well, but is there a budget issue? Member Vaché volunteered to bring a laptop next meeting.
Informal Staff Analysis
Member Vaché agrees with the analysis on SIB document, but believes that from a policy viewpoint this would cause a significant problem if it involved a competitive bidding process. Vice Chair Scarbrough was uncomfortable with initial read. She suggests issuing a formal, broader opinion if the subject is broached again.
3. Proposed Stipulation and Order in EEB Case 99-27
The proposed stipulation and order was presented by Mr. Malarky. Board Chair Fields asked if the $250 is for attorney fees. Mr. Malarky stated that it was for investigative costs. Member Vaché stated that we couldnít continue to give folks a break for not knowing about the Ethics law. Vice Chair Scarbrough asked about the amount of money that went to Mr. Smithís employer and whether or not they would have received the money if Mr. Smith hadnít been involved. Mr. Malarky replied thatís not definite. Mr. Smith did not become involved with Ballard Brass until after leaving the state and working for his new employer.
4. Proposed Stipulation and Order in EEB Case 01-82
The proposed stipulation and order was presented by Mr. Malarky. Member Vaché wanted clarification on a fact. Vice Chair Scarbrough asked about penalty rules and the last sentence that reads that the amount the civil penalty is reduced by the costs. Does that mean that the reimbursement is actually zero? Vice Chair Scarbrough wants to know how the public could differentiate between a Stipulation and Order and the requirements of the WAC. Member Vaché suggested that the boilerplate language needs to be clear about the penalties, costs, reimbursements, etc.
5. Draft Advisory Opinion - WAC 292-110-010 Examples and FAQ's
Mr. Malarky presented the draft advisory opinion. The Board received audience comment from Lynn McKennon with WFSE who reminded Board about PERS3 and noted that the union is encouraging employees and DRS to access the web for the PERS3 information to help make a decision and if the opinion is too narrow, employees may not have adequate access. Member Vaché responded that the Board does not want to address that issue at this time, but we are not denying anyone anything. Vice Chair Scarbrough agrees that we need to have a discussion about this issue and NOT include language as Member Vaché suggested. The Board decided to keep example and address the access of DRS investments as a day trader versus brief and occasional later. Laura Lowe from Ecology noted that some agencies have already dealt with and not an issue with them.
Member Vaché moved to adopt the FAQís as written. Vice Chair Scarbrough seconded and all voted in favor.
Lunch break at 12:04 p.m.
Back at 12:39 p.m.
6. Draft Advisory Opinion # 01-2-0228-54 (02-0X), Union Use of State Resources (includes line-out version)
Mr. Malarky presented the draft advisory opinion. Vice Chair Scarbrough stated that all issues have been addressed. Kathy Cunningham from Local 17 stated that her Union appreciates that editorial changes are in a positive note. However, the backdoor language "reasonably related" negates the positive. She asked why has staff not been directed to follow Karl Nagleís suggestions that address the specific issues. She feels that handling union issues on a case by case basis will result in folks coming to the Board again and again. She also feels the Board should not be involved in the unionís right to come into agencies and state employees have the right to meet and wants to go on record that they object the latest draft.
Member Vaché stated that the Board has listened for over year and it does not help to threaten a lawsuit (see Mr. St. Johnís letter). Ms. McKennon with WPEA stated that they agree with Ms. Cunningham and that going to the court may be the only resolution. Ms. Wilkinson noted that the Board has added language in the opinion to address the Unionís concern. Vice Chair Scarbrough noted that the Board has not been hasty and that we have jurisdiction over ethics issues only and canít speculate on what will come before the Board. She noted that this is why the opinion states "case by case basis". Ms. Cunningham notes the Local 17ís biggest concern is what internal union business is and what it isnít.
Member Vaché noted that this sentence has been rewritten at least five times and feels that the concerns are overstated. Member Vaché moved to adopt the opinion as written. Vice Chair Scarbrough seconded, all voted in favor.
7. Draft Advisory Opinion # 01-2-1030-251 (02-0X), Use of State Resources to Distribute Newspaper Articles and Editorials
Mr. Malarky presented a decision memo regarding this proposed advisory opinion. Steve Reinmuth (AAG for WSDOT) and Linda Mullen (Communications Manager for WSDOT) noted that the agency has a progressive communication philosophy regarding providing information to staff and customers. Keystone is WSDOTís employees are their ambassadors and the agency relies on them to provide accurate information to the public and be ambassadors to their community. The media doesnít always get it right and WSDOT follows up and provides corrections. This is easier with all WSDOTís employees reviewing the info. Mr. Reinmuth noted that currently the on-Line News Clips is strictly an internal group distribution list.
Member Vaché asked WSDOT representatives why it is important to distribute info to public. Ms. Mullen responded that she deals with policy quite a bit and PIOís need to know what is going on with WSDOT issues and the media and outsiders need to know what is being reported and perceived. Mr. Reinmuth noted that the Transportation Commission establishes policy and budget. The Commissionís enabling laws allow the Commission to coordinate and provide for public involvement on Transportation issues.
Vice Chair Scarbrough asked the WSDOT representatives to clarify the agencyís position on employee's sending/forwarding info to third parties. Ms. Mullen and Mr. Reinmuth noted that only designated staff can do that and more than likely itís the legislative liaison. WSDOT employees are asked not to forward to third parties. Member Vaché feels that the memoís analysis is too narrow and he doesnít see why the information canít be distributed to all WSDOT staff.
Vice Chair Scarbrough wants any opinion to be cautious that info is strictly WSDOT related and not political. She noted that the opinion should be written to clearly separate the issues. She asked the WSDOT representatives if they could do that. Ms. Mullen stated that her staff has normally put everything into the list serve and they attempt to make sure it is not a means for anyone to be a platform. Mr. Reinmuth notes that the bright line for WSDOT is clearly non-transportation issues. Where they struggle is when organizations like the Evergreen Freedom Foundation ask to post an article on a WSDOT site.
Member Vaché noted that the public forum analysis only applies when the state controls the forum. It does not apply just because WSDOT provides a ton of info. Ms. Mullen addressed how under the current guidelines they do a pro and con (finds anti website and adds link). Member Vaché feels that the standard is nothing that supports or opposes a political issue and feels that it could result in a violation of .180. Vice Chair Scarbrough agrees that this is a key issue.
Mr. Reinmuth recapped the discussion for clarity. WSDOT's Secretary MacDonald and Mr. Reinmuth working very hard with employees telling them what they can and canít do regarding an upcoming referendum. Mr. Reinmuth shared a recent memo from the Secretary regarding this issue.
Ms. Wilkinson has concerns that the guidelines may be too restrictive perhaps the opinion can address the editorial opinion issue by identifying special times to pay attention. Mr. Reinmuth agrees that they should pay close attention to editorials and their content. Member Scarbrough agrees and with Ms. Wilkinsonís suggestion too.
Mr. Malarky will draft an opinion in light of the Boardís discussion. In the interim the current guidelines are modified so that it shouldnít be a problem going to all staff. Mr. Reinmuth noted that WSDOT wants to use a restrictive distribution list for things that may involve a vote and a more stripped to all staff. Vice Chair Scarbrough agreed that she is ok with distribution to all staff but has concerns about third parties.
Linda Dalton noted that there is a public records issue, and the records have to be available upon request. Ms. Wilkinson stated that the guideline is that the third party distribution is not done at the initiation of a DOT employee.
Member Vaché noted that he believes that the final opinion will not allow anyone to be in the position of providing editorial comments. Linda Mullen noted that they currently provide both sides. Member Vachéís personal opinion is that it probably wonít work.
Vice Chair Scarbrough recapped that the opinion has three questions that needs to address:
1. Deals with management of agency;
2. Only contains info of normal and regular WSDOT activities; and
3. Considers .180 to see if the distribution violates
Mr. Reinmuth noted that if Board and staff need additional assistance he is available and asked if WSDOT should work within guidelines Mr. Malarky provided until final opinion adopted. Vice Chair Scarbrough said yes, Member Vaché agrees. But WSDOT should note that until opinion adopted that there is no safe harbor for following guidelines. As an interim no editorials on referendum to executives or employees plus maintain the existing guidelines for WSDOT. One modification is that it is okay to distribute to employees and not to third parties. Also, WSDOT will draft a policy for final approval.
8. Draft Advisory Opinion # 01-2-1126-239 (02-0X), Conflict in Official Duties at the Department of Natural Resources
Mr. Malarky presented a decision memo regarding this proposed advisory opinion. Member Vaché commented that we have no jurisdiction and Ms. Wilkinson suggested that closest we come is .070, Special Privilege issue. She noted that the definition of "other person" is critical. Is a state agency the same as "other person"?
Vice Chair Scarbrough agrees with Member Vaché that this is not our jurisdiction. Mr. Malarky will write as a Board opinion, not an informal staff analysis. Member Vaché and Vice Chair Scarbrough agree.
9. Public Comment
Gail Swanson is concerned that the Board did not fully address WSDOTís concerns regarding safe harbor. Board staff disagreed. If WSDOT follows interim guidelines the likelihood of a reasonable cause finding is reduced.
Nancy Vernon addressed the BJ Wise settlement. Board staff has done a very good job. Suggests that a directive on where the $20K should go to children versus just to OSPI. Board Chair Fields asked Ms. Wilkinson if the Board could do that. She will check. The proposed dollar amount is commendable. Ms. Vernon stated that she would not be disappointed if the case was sent to AG and asked the Board to remember that it was children taken advantage of. Therefore, she would like to see a higher dollar amount.
10. Executive Session
Began at 2:23 p.m. and ended at 3:26 p.m.
The Board announced a No Reasonable Cause decision regarding EEB Case No. 01-53 (Hanson).
The Board announced a No Reasonable Cause decision regarding EEB Case No. 01-83 (Bergeson).
The Board accepted Stipulation & Order with a modification regarding EEB Case No. 99-27. Mr. Smith has until May 1, 2002 to accept or reject.
The Board accepted Stipulation & Order with a modification regarding EEB Case No. 01-82. Ms. Wise has until May 1, 2002 to accept or reject.
The meeting adjourned at 3:30 p.m.
Laquita Fields, Chair