Executive Ethics Board Regular Meeting Minutes

July 11, 2003 at 8:30 A. M.
2425 Bristol Ct SW
First Floor Conference Room 148

A. Preliminary Business

1. Roll Call - The meeting was called to order at 8:37 a.m. Present were Chair Jim Vaché, Vice-Chair Marilee Scarbrough, and Member Paul Zellinsky. Also in attendance: Executive Director, Brian Malarky; Board Counsel, Jean Wilkinson; Investigator, Sue Jones; Board Staff, Debbie O'Dell. Mr. Malarky announced the addition of Linda Stark to Board Staff. Ms. Stark is on rotational assignment from the TPC division of the Attorney General's office and will be working for the Board one day a week.

2. Approval of Agenda - Motion was made, seconded and passed to approve the agenda with the following changes:

" Item D 1 moved to just after Agenda item A 3
" Executive Session moved to last item on the Agenda.

3. Approval of June 6, 2003 Regular Meeting Minutes - Motion was made, seconded and passed to approve the June 6, 2003 minutes with minor changes.

D. Policy Reviews and Contract Approval Requests
Contract Approval Request 03-008, (Field), Department of Health - This matter was tabled at the June 6, 2003 Board meeting in an effort to gather clarifying information. Ms. Field provided additional information and attended the meeting. Motion was made, seconded and passed to approve the proposed contract.

B. Proposed Stipulations and Orders

1. EEB Case No. 02-53 (Nickerson) - This case was referred to the Board by the State Auditor. In a proposed stipulation and order resolving the matter the respondent, James Nickerson, admitted that he violated RCW 42.52.160(1) by using his state computer to access 63 Internet websites, including some containing adult oriented material, and send personal e-mails containing inappropriate content to co-workers, friends, family and outside agencies. Mr. Nickerson's use of state resources violated WAC 292-110-010(3) and (6), and a Board approved DSHS administrative policy. Mr. Nickerson received a letter of reprimand from DSHS for conduct revealed in the State Auditor's investigation. Recognizing that he is personally responsible for his conduct, Mr. Nickerson will pay civil penalty of $1,500.00 ($500 suspended) and attend Board approved Ethics training.

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

C. Advisory Opinions
1. Advice Request 01-2-1221-247, Sale of Evaluation Textbooks - Mr. Malarky briefed the Board and presented a discussion draft opinion with various options.
Sandra Schroeder with the Washington Federation of Teachers provided the Board with a letter dated July 11, 2003 and copies of e-mails she received from faculty prior to the June 6, 2003 meeting.
After extensive discussion, the Board asked that Board staff and the Board Counsel draft an opinion with three basic options that allow the sale of textbooks, limit the sale of textbooks, and prohibit the sale of textbooks. The Board wants the draft opinion to be simple and provide clear advice. Chair Vaché asked the Executive Director to provide a final draft of the textbook opinion to Vice-Chair Scarbrough for her review prior to the September meeting.

2. Advisory Opinion 02-01A, Modification to the Union Use of Facilities Opinion - Mr. Malarky presented a draft advisory opinion based on extensive discussion from the previous Board meeting on June 6, 2003. The Board took comments from the audience regarding the opinion.

Gladys Burbank with the Washington Federation of State Employees commented that the Board is ill-advised to enter in this area of the law with a generalized opinion and adds another level of confusion to stakeholders. Ms. Burbank provided a copy of a letter from the Office of Financial Management sent to agency directors stating that issues for unions should not be treated any differently than any other non-business type activities.

Vivian Miller and Marian Gonzales with the Washington Public Employees Association asked that the Board not go forward with the advisory opinion, especially in light of the changes to the collective bargaining agreement laws.

Vice-Chair Scarbrough thanked everyone for their comments and recommended that the Board delete the first sentence of the first paragraph on page four of the draft opinion. Chair Vaché agreed. Motion was made, seconded and passed to approve the draft with the deleted sentence.

BREAK 10:41 a.m. - 11:00 a.m.

D. Staff Report
Mr. Malarky updated the Board members regarding legislative issues, the budget, current case statistics, status of member vacancy, and training conducted. The Board also reviewed two informal staff analysis. Vice-Chair Scarbrough commented that when a non-binding staff analysis addresses issues that are outside of the Board's jurisdiction they should state that the Board "has no opinion" rather than "…the Ethics Act does not prohibit…".
Mr. Malarky noted that a service award plaque for Sutapa Basu arrived and he would invite her to a meeting this fall for presentation.
E. Executive or Closed Session
At 11:23 a.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 12:14 p.m., the Board accepted the proposed stipulation and order in EEB Case 02-53 and signed the appropriate documents.

Vice-Chair Scarbrough announced her recusal from EEB Case No. 01-17 and noted that she left the executive/closed session during the discussion of this case. Chair Vaché announced his recusal from EEB Case No. 03-044.

F. Public Comment/Board Member Comments - There were no public comments.
G. Miscellaneous Matters/Adjournment - The meeting adjourned at 12:15 p.m.