Special Meeting Minutes

June 6, 2003 at 9:30 A. M.

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MEETING LOCATION

2425 Bristol Ct SW

First Floor Conference Room 148

Olympia

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A. Preliminary Business

1. Roll Call - The meeting was called to order at 9:36 a.m. Present were Chair Jim Vaché, Vice-Chair Marilee Scarbrough, Member Paul Zellinsky, and Member Laquita Fields. Also in attendance: Executive Director, Brian Malarky; Board Counsel, Jean Wilkinson; Board Staff, Debbie O’Dell.

2. Approval of Agenda - Motion was made, seconded and passed to approve the agenda as presented.

3. Approval of May 9, 2003 Regular Meeting Minutes - Motion was made, seconded and passed to approve the May 9, 2003 minutes as presented.

B. Proposed Stipulations and Orders

1. EEB Case No. 01-49 (Parr) – Mr. Malarky briefed the Board members regarding this matter. The Executive Ethics Board received a complaint that Washington State Historical Society curator Melissa Parr used her state position when she encountered difficulty receiving payment for her outside consulting work. In the proposed stipulation and order Ms. Parr admits that she violated RCW 42.52.070 by using her state job title when sending a letter to a private entity that she was doing business with in her private capacity.

Recognizing that she is personally responsible for her conduct, Ms. Parr will accept a letter of reprimand from the Executive Ethics Board, comply with all terms and conditions of this Stipulation and Order, and commit no further violations of Chapter 42.52 RCW.

Results: After considering the matter in closed session, the Board accepted the proposed stipulation and order without modification.

C. Board Discussion of the Content of Proposed Stipulations and Orders

Chair Vaché provided background information from district court judge conference and from the Judicial Conduct Commission. Member Scarbrough asked if there is anyway we could structure stipulations so that readers will have a full picture and would like to see a clear connection between facts and the law.

Mr. Malarky suggested the format used in a prior stipulation and order that includes an analysis section.

Member Zellinsky commented that he feels the stipulations need to remain simple and we need to have a stronger disclaimer. Chair Vaché indicated that the Board may consider redacting information from stipulations and orders.

Board Counsel, Ms. Wilkinson, commented that crucial facts may not be included in a stipulation due to agreement to parties involved. Adding back facts that parties stipulated to not include in summaries is not a good practice and not a good teaching tool.

Member Zellinsky suggested that if we can't provide the needed the information in stipulation, then perhaps we should go to hearing instead.

Mr. Malarky indicated that the Board does have the option to refuse a narrowly written stipulation.

Member Scarbrough commented that while she is not too concerned with interpretation of Ethics Act, the ethics advisors and the public may need clarifying stipulations. She indicated that the Executive Director should clarify with ethics advisors. Mr. Malarky will get with the Ethics Advisors and provide additional information to the Board at a future meeting.

D. Advisory Opinions

1. Advice Request 01-2-1221-247 Sale of Evaluation Textbooks - In response to the Board's solicitation for comments to key stakeholders, several agencies provided written comments regarding their opinions regarding the sale of evaluation textbooks. In addition, stakeholders were invited to attend today's meeting and provide verbal comments. The following is a summation of the verbal comments and Board discussion.

Sandra Schrader appeared on behalf of the Washington Federation of Teachers (WFT) – Ms. Schrader noted that this was a complex issue. She indicated that the WFT had received literally hundreds of emails when they solicited their stakeholders. Ms. Schrader noted that if the Board decided that selling textbooks was inappropriate, it would require a tracking system of the textbooks and that cost would far outweigh the concern. In addition, tracking of the books would be way too cumbersome. Nevertheless, the books are often shared with the needy and the libraries.

Member Zellinsky noted that prohibiting the sale of textbooks wouldn’t ban the teacher from donating books, this opinion deals with the specific issue of taking books and selling them.

Ms. Schrader noted that she was struggling with where the Board coming from. Does the Board believe that the books the property of the state?

Chair Vaché noted for the record that he is a tenured professor who has served for 27 years and has never sold a textbook. He asked Ms. Schrader if any of the stakeholders she solicited agree with the idea of banning the sell of textbooks.

Ms. Schrader stated none that she is aware of. Ms. Schrader asked how the sale of books will be regulated. She noted that different subject areas result in significant differences in textbook value.

Mr. Malarky asked Ms. Schrader if it was her belief that if the Board issued an opinion then the Board would need to institute enforcement. Ms. Schrader responded in the affirmative.

Ms. Wilkinson noticed that textbook vendors were using email and campus resources to sell their products or announced their availability for the purchase of textbooks. Ms. Schrader indicated that she is not aware of any email and campus resources use but would not consider that a faculty issue.

Jim Huckabay appeared from Central Washington University - Most of the responses they have received are that it’s a minor issue. Mr. Huckabay commented that the textbooks are used. For example, books he receives become part of his library. The comment in one email about $1000 a year is clearly not a math major. In order to make that much money it takes the sale of over 50 books per year. Reality is that it’s not a big issue. The bigger issue for him is who owns the book? Mr. Huckabay recommended that the Board not issue an opinion or take alternative C (leave it up to the institution on who owns the books).

Vice Chair Scarbrough asked for clarification on the alternate suggested and noted that under this alternative each college would have a different policy. Mr. Huckabay agreed. Ms. Scarbrough noted that the ethics law applies to all employees statewide. She did not think the Board can allow inconsistent ethics standards across the state

The Board took a brief break from 10:55 a.m. until 11:00 a.m.

After additional discussion, the Board asked Mr. Malarky to bring a draft to the table at the July meeting. The draft should focus on the types of transactions that would violate the Ethics Act.

2. Advice Request 03-019, Modification to the Union Use of Facilities Opinion - In response to the Board's solicitation for comments to key stakeholders, it received three separate letters with written comments regarding union use of state resources. In addition, stakeholders were invited to attend today's meeting and provide verbal comments. The following is a summation of the verbal comments and Board discussion.

Ed Younglove appeared representing the Washington Federation of State Employees: Mr. Younglove asked the Board to note new bargaining provisions and staggered effective dates. This Board’s approach to the concern is that there is an assumption that a union is a private business. Feels it’s a fundamental flaw. If you pull that out, the opinion would fall apart.

Mr. Younglove stated that a more accurate reality is that the union is nothing more than a group of employees. A union is not a private a business when dues are used to employ staff and pay for supplies. The draft opinion will make the issue more problematic. Mr. Younglove notes that under the opinion it is OK for an employee to talk about childcare, medical needs, etc. but not permitted to talk to co-workers about union and conditions of employment. He doesn’t believe that the draft advisory opinion adequately addresses these concerns.

In closing, Mr. Younglove noted a first amendment issue and asserted that the Board flirts with danger when they restrict what you can and can’t say. He raised a PDC case in the state supreme court that will be heard in June.

Member Zellinsky asked at what point do taxpayers ethically allow employees to personally pursue interests in the union?

Mr. Younglove stated that the Board allows a de minimis use in general, why not de minimis for the union?

Member Scarbrough noted that the inference from your comments is that co-workers couldn’t have a conversation about union. Our advisory opinion addresses advocacy.

Ms. Wilkinson suggested that the Board focus the discussion on the de minimis versus prohibited use.

Mr. Younglove restated that he cannot comprehend why it’s ok to send an email about baseball scores and it’s not ok to talk about union.

Ms. Wilkinson provided specific examples of Union advocacy that have caused the Board some concern.

Mr. Younglove closed by stating that he feels that PERC should be answering union use questions and not the Board.

After some additional discussion, the Board instructed the Executive Director to bring a draft amended opinion to the July meeting with language that allows de minimis use by union employee's on the same basis as other permitted uses.

E. Policy Reviews and Contract Approval Requests

1. Policy Review Request 03-007, Office of the Attorney General, “Use of State Resources” and “Internet Services Use” - Motion was made, seconded and passed to approve the policy as presented.

2. Policy Review Request 03-12, Department of Natural Resources, “Use of State Electronic Communications Systems” - Motion was made, seconded and passed to approve the policy as presented. The Board thanked DNR management for providing a method to reimburse the state for emergency use of a state cell phone.

3. Policy Review Request 03-10, Health Care Authority, “Using Information Technology Assets” and “Using Cellular Phones” Policies - Motion was made, seconded and passed to approve the policy as presented.

4. Contract Approval Request 03-008, (Field), Department of Health – The Board asked for additional information and tabled this matter until the next Board meeting.

F. Executive or Closed Session (and working lunch)

At 12:31 p.m., the Board moved into closed and executive session to consider complaints against public officials and to discuss pending litigation with counsel. The Board, Board Counsel, and Board Staff attended the executive session. The Board then moved into closed session to deliberate on quasi-judicial matters. The Board and Board Counsel attended the closed session.

After reconvening the public session at 1:00 p.m., the Board accepted the proposed stipulation and order in EEB Case 01-49 and signed the appropriate documents.

G. Staff Report – The Board tabled the staff report until next meeting.

H. Public Comment/Board Member Comments – There were no public comments.

I. Miscellaneous Matters/Adjournment - The meeting was adjourned at 1:01 p.m.