WSR 98-04-001
PERMANENT RULES
EXECUTIVE ETHICS BOARD
[Filed January 21, 1998, 1:47 p.m.]
Date of Adoption: January 9, 1998.
Purpose: The purpose of this new section, WAC 292-110-060 Compensation for outside activities and contracting with state agencies, is to explain procedures used by state officers, state employees, when contracting with state agencies.
Statutory Authority for Adoption: RCW 42.52.360 (2)(b).
Adopted under notice filed as WSR 97-20-099 on September 29, 1997.
Changes Other than Editing from Proposed to Adopted Version: The Executive Ethics Board received one written comment relating to the adoption of WAC 292-110-060 at the time of its public hearing on November 14, 1997. The comment, submitted by the Washington State Department of Transportation expressed concern that the proposed rule omitted a provision under RCW 42.52.120 and would therefore be unclear for state employees. Public comment at the meeting indicated agreement with the Washington State Department of Transportation's concern, and added a concern about employees whose spouses contract with the employing state agency.
Based on these comments, and the concerns of the board members, the following amendments were made to the proposed rule:
Board members voted on the following amendments to the proposed rule:
Subsection (1), create a separate subsection for the policy statement for ease of reference.
Subsection (2)(b), line 1, insert the words "is not" before "under"; line 2, insert the words "is not" before "created"; and line 3, insert the words "is not" before "within." Changes were made to achieve parallel construction and clarity.
Subsection (4)(b), line 2, insert the word "has" before "advised."
Subsection (5), add a single subsection to deal with contracts formerly contained in two subsections. Add reference to contracts where spouses have a beneficial interest, but do not participate in the contract.
Subsection (6)(b), change the word "or" to "and."
Subsections (7) and (9), deleted from original proposed rule.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 1, amended 0, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, amended 0, repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Thirty-one days after filing.
January 20, 1998
Margaret A. Grimaldi
Executive Secretary
NEW SECTION
WAC 292-110-060 Compensation for outside activities and contracting with state agencies. (1) The primary purpose of the Ethics in Public Service Act is to prevent conflicts of interest that impair the impartial and independent judgment of state officers and employees. A conflict of interest may occur when a state officer or state employee accepts compensation for outside activities, and acceptance conflicts with the performance of official duties on behalf of the state and the citizens of Washington. Conflicts of interest occur whenever a state officer or state employee has a beneficial interest in a transaction with the state; accepts outside compensation for the performance or non-performance of an official duty; or, accepts or seeks outside compensation relating to a matter in which the officer or employee participated in an official capacity. A conflict of interest extends to those matters in which a state officer or employee exercises responsibility. Potential conflicts of interest relating to the receipt of compensation for outside activities may be resolved by seeking the review and prior approval of the Executive Ethics Board.
2) A state officer or employee may not receive anything of economic value under a contract or grant outside his or her official duties unless each of the following conditions is met:
(a) the contract or grant is legitimate and actually performed;
(b) the contract or grant is not within the state officer's or employee's official duties, is not under his or her supervision; is not created or authorized by the state officer or employee in an official capacity, and is not within an area of his or her official responsibility;
(c) The contract or grant is not performed for nor compensated by a person from whom the state officer or employee would not be able to accept a gift; and,
(d) the contract or grant would not require the disclosure of confidential or non-public information.
(3) A state officer or employee may not engage in a business or transaction or professional activity, or incur an obligation of any nature if such activities may conflict with the proper discharge of official duties.
(4) A state officer or employee may not enter into a contract or receive a grant, or have a beneficial interest in a contract or grant with a state agency unless all conditions in section two are met, and one of the following conditions are satisfied:
(a) the contract bid or grant application is awarded through an open and competitive bidding process and more than one bid or grant application is received; or
(b) if only one bid or application is received, or the process for awarding the contract or grant was not open and competitive, and the executive ethics board has advised that the employee's interest in the contract or grant is not in conflict with the proper discharge of the employee's official duties.
(5) Provided that the conditions in sections two and three are met, the following contracts are approved by the Executive Ethics Board:
(a) a contract or grant whereby the state officer or state employee receives assistance through state programs or federal programs administered by the state when they are entitled to receive such assistance by law and on the same basis as similarly situated citizens, and when the officer or employee does not exercise discretionary judgement with regard to an assistance program for which he or she is otherwise eligible;
(b) A contract to perform teaching duties at a bona fide community college, vocational-technical school, or institution of higher learning, provided no state resources are used to perform the duties; there is no conflict with the performance of official duties; and the state officer or state employee did not use his or her official position to influence the contract of employment; and,
(c) A contract held by a spouse, in which the officer or employee has a beneficial interest, with a state agency, provided that the officer or employee did not participate in the contract.
(d) An employee who has a contract or grant or a beneficial interest therein which is approved by the board under section (5)(a)-(c) of this rule is not required to file a separate application for approval of the contract under section (6). However, the employee is responsible for determining that the criteria in sections (2) and (3) are satisfied.
(e) An employee who is awarded a contract or grant under section (5)(a)-(c) of this rule shall file a copy of the contract with the board. However, if the employee's only interest is a beneficial interest, the contract need not be filed with the board.
(6) State officers and employees seeking the approval of the board for a contract, grant application, or outside employment shall provide the following information to the board secretary no later than thirty days prior to the commencement of the contract:
(a) a description of current official duties and responsibilities;
(b) a statement of the work to be performed and, a copy of the contract;
(c) the duration and dollar value of the contract, if applicable;
(d) a statement that no state resources will be used to perform the outside employment or to fulfill the contract or grant; and,
(e) a description of how the work will be performed without the use of state resources.
(7) The board secretary shall review the contract or grant application terms and related documents and may determine whether there could be a potential conflict. If the board secretary determines:
(a) there would be no potential conflict under sections two and three of this rule, the board secretary shall approve the contract or grant application.
(b) there could be a potential conflict under sections two and three of this rule, the board secretary shall refer the contract or grant application to the board for approval or disapproval.
(8) If a contract has been amended or the scope of work altered, and the effect of the amendment or alteration may create a potential conflict of interest under sections two and three of this rule, the employee must resubmit the contract to the board at least fifteen days prior to commencement of work under the amended or altered contract.
(9) If a series of substantially identical contracts or grants with a state agency is anticipated, the state officer or employee may request that the board pre-approve such contracts or grants. Pre-approval shall be effective for the period of one calendar year, after which the state officer or employee shall resubmit the request.
(10) The board secretary shall provide written notice of any action on a contract bid, grant application or request for outside employment within fifteen (15) working days of the board's action.
(11) Final contracts reviewed under this rule shall be filed with
the board secretary within thirty (30) days of execution.
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Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.