PERMANENT RULES
Date of Adoption: April 4, 2000.
Purpose: To clarify how chapter 42.52 RCW will be applied by the Public Works Board.
Statutory Authority for Adoption: Chapter 42.52 RCW.
Other Authority: RCW 43.155.040(4).
Adopted under notice filed as WSR 00-01-089 on December 15, 1999.
Changes Other than Editing from Proposed to Adopted Version: Reference to project lists of ten or more were deleted from the regulatory and the example language.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 4, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 4, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 4, Amended 0, Repealed 0. Effective Date of Rule: Thirty-one days after filing.
May 9, 2000
Pete A. Butkus
Executive Director
OTS-3679.2
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.
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 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.
Example 3
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 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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