PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 99-21-017.
Title of Rule: Ethics in public service, chapter 399-50 WAC.
Purpose: To establish standards for conduct of the board's business under chapter 42.52 RCW.
Statutory Authority for Adoption: RCW 43.155.040(4).
Statute Being Implemented: Chapter 42.52 RCW.
Summary: The board proposes to adopt rules for conducting business under the state laws dealing with ethics in public service. The proposed rule(s) will constitute a new chapter in Title 399 WAC.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Pete Butkus, P.O. Box 48319, Olympia, WA 98504, (360) 586-7186.
Name of Proponent: Washington State Public Works Board, governmental.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The proposed chapter 399-50 WAC has already been reviewed by the Washington State Executive Ethics Board.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The rule will set forth specific standards for board member actions under chapter 42.52 RCW, provide examples of how to meet the ethical standards, and implement chapter 42.52 RCW as it pertains to the board.
Proposal does not change existing rules.
No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no small business impact.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.
Hearing Location: Wyndham Garden Hotel, 18118 Pacific Highway South, International Boulevard, SeaTac, WA, on February 1, 2000, at 8:30 a.m.
Assistance for Persons with Disabilities: Contact Receptionist, by noon, Wednesday, January 26, 2000, TDD (360) 586-4224.
Submit Written Comments to: Pete Butkus, Executive Director, Public Works Board, P.O. Box 48319, Olympia, WA 98504-8319.
Comment period closes at noon on Wednesday, January 26, 2000.
Date of Intended Adoption: February 1, 2000.
December 15, 1999
Pete A. Butkus
Executive Director/Rules Coordinator
OTS-3679.1
NEW SECTION
WAC 399-50-010
Definitions.
(1) Unless another definition is given, words used in this chapter have the same meaning as in chapter 42.52 RCW, Ethics in public service.
(2) "Annual construction roster" means the prioritized list of projects recommended for funding, which is developed and submitted to the legislature before November 1 of each year under RCW 43.155.070(4).
(3) "Beneficial interest" means the right to enjoy profit, benefit, or advantage from a contract or other property and also has the meaning given to it in Washington case law. Ownership interest in a mutual fund or similar investment pooling fund in which the owner has no management powers does not constitute a beneficial interest in the entities in which the fund or pool invests.
(4) "Project" means public works project as defined in RCW 43.155.020(5).
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(1) When a member of the public works board is beneficially interested, directly or indirectly, in a contract, project, or loan that may be made by, through, or under the supervision of the board, in whole or in part, or when the member accepts, directly or indirectly, any compensation, gratuity, or reward from any other person beneficially interested in such contract, project, or loan, the member shall:
(a) Recuse him or herself from board discussion regarding the specific contract, project, or loan;
(b) Recuse him or herself from the board vote on the specific contract, project, or loan; and
(c) Refrain from attempting to influence the remaining board members in their discussion and vote regarding the specific contract, project, or loan.
(2) The prohibition against discussion set forth in subsection (1)(a) and (c) of this section shall not prohibit the member of the board from using his or her general expertise to educate and provide general information on the subject area to the other members.
(3) Under subsection (1) of this section, "any other person" has a beneficial interest in a contract, project, or loan when the other person bids, applies for, or otherwise seeks to be awarded the contract, project, or loan.
(4) Nothing in this section prohibits a board member from voting on or discussing the annual construction roster or other aggregated list of ten or more contracts, projects, or loans, or from discussing methods of prioritizing such rosters or lists. However, a board member must disclose to the public any interest he or she otherwise has in contracts, projects, or loans on such a roster or list at the time it is considered by the board.
Example 1
Board member Sam Jones is an engineering consultant. Jones
performs consulting work on a regular basis for the Evergreen
County public works department. The board is asked to approve an
emergency public works loan for Evergreen County. Jones should
recuse himself from voting on or discussing this action because
he receives compensation from a "person" (Evergreen County)
beneficially interested in the proposed loan.
Example 2
If Ima does vote to approve the list or participates in
discussing it, she will be prohibited by RCW 42.52.030 from
receiving a direct or indirect beneficial interest in the loan
contract to Destiny, or from accepting compensation from another
person beneficially interested in the contract. Thus, neither
she nor her firm may bid on the project.
Board member Ima Kozy is the President and CEO of a firm
that constructs roads and utilities. The board is asked to
approve a list of loans for nine construction projects in various
locations around the state. One of the projects is in the City
of Destiny, where Ima's firm frequently responds to solicitation
for bids. If Ima wants her firm to be able to bid on the Destiny
project, she should recuse herself from voting on this list or
discussing this action.
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(1) When a member of the public works board either owns a beneficial interest in or is an officer, agent, employee or member of an entity or individual engaged in a transaction involving the board, the member shall:
(a) Recuse him or herself from board discussion regarding the specific transaction;
(b) Recuse him or herself from the board vote on the specific transaction; and
(c) Refrain from attempting to influence the remaining board members in their discussion and vote regarding the specific transaction.
(2) The prohibition against discussion and voting set forth in subsection (1)(a) and (c) of this section shall not prohibit the member of the board from using his or her general expertise to educate and provide general information on the subject area to the other members.
(3)(a) "Transaction involving the board" means a proceeding, application, submission, request for a ruling or other determination, contract, project or proposed project, loan, claim, case, or other similar matter that the member in question believes, or has reason to believe:
(i) Is, or will be, the subject of board action; or
(ii) Is one to which the board is or will be a party; or
(iii) Is one in which the board has a direct and substantial proprietary interest.
(b) "Transaction involving the board" does not include the following: Preparation, consideration, or enactment of legislation, including appropriation of moneys in a budget, or the performance of legislative duties by a member; or a claim, case, lawsuit, or similar matter if the member did not participate in the underlying transaction involving the board that is the basis for the claim, case, or lawsuit. Rulemaking is not a "transaction involving the board."
(4) "Board action" means any action on the part of the board, including, but not limited to:
(a) A decision, determination, finding, ruling, or order; and
(b) A grant, payment, award, license, contract, transaction, sanction, or approval, or the denial thereof, or failure to act with respect to a decision, determination, finding, ruling, or order.
(5) Nothing in this section prohibits a board member from voting on the annual construction roster or other aggregated list of ten or more contracts, projects, or loans, or from discussing methods of prioritizing such rosters or lists. However, a board member must disclose to the public any beneficial interest in or affiliation with a person interested in contracts, projects, or loans on such a roster or list at the time it is considered by the board.
Example 3
Board member Joan Smith is the mayor of Pine City. A Pine
City street improvement project is included in the annual
construction roster. Although Smith is an officer of an entity
engaged in a transaction before the board, she need not recuse
herself from voting on the annual construction roster.
Similarly, Smith may participate in general discussion of
projects on the roster or methods of prioritizing projects on the
roster. However, Smith must disclose her affiliation with Pine
City at the time the roster is considered by the board.
Example 4
Board member Alice Lester is a director of the Starburst
Sewer District. During presentation of the annual construction
roster, the board is asked to consider adding eight projects to
the roster based on various criteria developed by staff. The
board's choice of criteria will determine which additional
projects will be funded. A sewer improvement project for the
Starburst Sewer District is among those that may be added to the
roster, depending on which criteria are selected. Lester should
disclose her affiliation with Starburst and recuse herself from
discussing on or voting on the criteria for funding additional
projects, because she is an officer of an entity interested in a
transaction before the board, specifically determination of
funding criteria that will affect Starburst Sewer District.
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A board member shall disclose to the public the reasons for his or her recusal from any board action at the time of the recusal. A board member shall disclose to the public the nature of any interest the member has in a project on the annual construction roster or other aggregated list or roster of ten or more contracts, projects, or loans at the time the roster or list is considered by the board. Board staff shall record each such recusal or disclosure and the basis therefor.
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