WSR 01-13-033

PERMANENT RULES

EXECUTIVE ETHICS BOARD


[ Filed June 13, 2001, 11:26 a.m. ]

Date of Adoption: June 8, 2001.

Purpose: To add new sections and amend the existing rules in chapters 292-100 and 292-130 WAC. The additions and changes establish procedures to allow the board staff to dismiss certain complaints and for complainants to request a review of the board staff's dismissal. To provide guidance to state officials and state employees regarding the function and organization of the office, operations and procedures, and public records information.

Citation of Existing Rules Affected by this Order: Amending chapters 292-100 and 292-130 WAC.

Statutory Authority for Adoption: RCW 42.52.360 (2)(b) and 42.52.425.

Adopted under notice filed as WSR 01-08-080 on April 3, 2001.

Changes Other than Editing from Proposed to Adopted Version: At the time of its public hearing held on May 11, 2001, the Executive Ethics Board received no written comments relating to the proposed amendments of chapters 292-100, 292-110 and 292-130 WAC. The following public comments were received at the hearing:

(1) Gail Swanson, ESD employee, stated that the word "served" in line 5 of WAC 292-100-210 should be changed to "filed." Board Counsel Collins proposed a revised sentence - See amendment (2) below.

(2) Jerri Thomas, Counsel to the Executive Director, stated that the title "Index" in WAC 292-130-060 should be changed to reflect old and new indexes. Executive Director Malarky suggested inserting the word "prior" to 2000 index and the word "after" to indicate which index is old and which one is new.

(3) Ms. Swanson stated that WAC 292-130-020 versus 292-130-080 should reference office hours and hours of operation. She recommended that in WAC 292-130-020 insert "...the public office hours are 9:00 a.m....." Ms. Swanson also noted that in WAC 292-130-130(3) "...would be" should not have been deleted. Ms. Swanson also stated that the Governor's executive order directs that executive branch agency office hours are 8:00 a.m. to 5:00 p.m. Board Member Scarbrough proposed general office hours from 8:00 a.m. to 5:00 p.m. and office hours for public record requests (from "walk-in" individuals) from 9:00 a.m. to 4:00 p.m.

Following the public hearing, the board members voted to adopt the following amendments to the proposed rules:

(1) Add "(See RCW 42.52.425)" to WAC 292-100-045.

(2) Delete paragraphs (2), (3) and (4) of WAC 292-100-210 and add - "(2) Any party may make a motion for reconsideration of a final order of the Board as provided in RCW 34.05.470. The request for reconsideration shall be filed at the office of the board and served on the parties no later than ten days after service of the final order. A request for reconsideration shall specify the grounds therefor."

(3) Add "Prior to January 1, 2001." to the title of WAC 292-130-060 and "After December 31, 2000" to the title of WAC 292-130-065.

(4) Amend the afternoon office hours in WAC 292-130-020 to 1:00 p.m. to 5:00 p.m. and amend the administrative office location to "2425 Bristol Court SW, 1st Floor, P.O. Box 40149, Olympia, WA 98504-0149."

(5) Add a new section "WAC 292-100-220 Effective date. When WAC 292-100-007 through 292-100-210 go into effect, they will apply to all pending cases."

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 2, 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 2, Amended 27, Repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 27, Repealed 1.

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.

June 12, 2001

Brian R. Malarky

Executive Director

OTS-4729.4


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-007   Definitions.   Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Board staff" shall include the executive ((secretary)) director, the investigator, attorneys who bring cases before the board, and the ((board clerk)) training and information specialist.

(2) "Complainant" means a person who has filed a complaint with the board.

(3) "Employing agency" means the former or current state agency of the respondent during the time the alleged violation occurred.

(4) "Party" includes the board staff and the respondent. The respondent may be represented in any matter filed under chapter 42.52 RCW by an attorney or an exclusive bargaining representative. If the respondent is represented by a person who is not an attorney, the representation shall conform to the standards of ethical conduct required of attorneys before the courts of the state of Washington.

(5) "Preliminary investigation" refers to the confidential fact-finding investigation that occurs before the board's determination of reasonable cause.

(6) "Presiding officer" refers to the board chair, vice chair, a board member designated as presiding officer by the chair or vice chair, or an administrative law judge.

(7) "Respondent" means a current or former state officer or state employee alleged to have violated chapter 42.52 RCW by a complainant.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-007, filed 3/2/99, effective 4/2/99.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-010   Initiation of complaint.   (1) A complaint alleging a violation of chapter 42.52 RCW may be filed by:

(a) Any person; or

(b) The board((;)).

(2) If a member of the board or the board's staff files a complaint in his or her individual capacity, the board member or staff member shall be disqualified from acting in his or her official capacity with regard to the disposition of that complaint.

(3) Other agencies may refer information about possible violations of chapter 42.52 RCW to the board for consideration. The board may file a complaint if appropriate.

(4) Complaints initiated by the board will be signed on behalf of the board by the executive ((secretary)) director.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-010, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-010, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-020   Complaint procedures -- Status of complainant and others.   (1) When a complaint has been filed with the board, neither the complainant, if other than board, nor any other person shall have special standing to participate or intervene in the investigation or consideration of the complaint by the board. The complainant is not a party to an ethics case for any purpose; however, the board staff will give notice to the complainant and the employing agency of any open board hearings on the matter.

(2) This section does affect the right to request a review of a board staff decision to dismiss complaint, pursuant to RCW 42.52.425 and WAC 292-100-045.

(3) The person or persons alleged in a complaint to have violated chapter 42.52 RCW, are respondents as to that complaint.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-020, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-020, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-030   Procedures for filing complaints.   (1) A complaint filed with the board shall be in writing on a form provided by the board, or in an appropriate written form that includes the information in subsection (2) of this section, and signed by the complainant((. A complaint signed by the complainant may also be filed)) or by the complainant's ((attorney)) counsel.

(2) A complaint shall include:

(a) The complainant's name; except that the board may choose to issue a complaint based upon information provided by a person who refuses to be identified;

(b) A statement of the nature of the alleged violation(s) ((or violations, date, time and place of each occurrence)) and the name of person(s) ((or persons)) responsible and the complaint should also include the date, time, and place of each alleged violation; and

(c) All available documentation and other evidence including any witnesses to the violation which the complainant is able to supply to demonstrate a reason for believing that a violation of chapter 42.52 RCW, or the rules adopted under it has occurred.

(3) A complaint which is incomplete, or does not contain enough information to allege a violation of chapter 42.52 RCW, will not be accepted for filing.

(4) The board will not consider allegations in a properly filed complaint that fall outside the jurisdiction of the board. The board or its staff may refer such allegations to an appropriate agency with jurisdiction.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-030, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-030, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-040   ((Investigation)) Acceptance and preliminary review of complaints.   (1) Upon ((acceptance of)) receiving a complaint, the board staff shall ((conduct an investigation.

(2) If board staff determine that a complaint alleges conduct which may violate a criminal statute, the staff may refer the complaint to the appropriate prosecuting attorney or the Washington State Patrol and if referred, will suspend their investigation until the prosecuting attorney or the Washington State Patrol responds as to whether criminal charges will be filed. If the prosecuting attorney elects to file criminal charges, no further action will be taken while the criminal case is pending. If the prosecuting attorney elects not to file criminal charges, board staff shall complete their investigation and follow the procedures set forth in these rules.

(3) During the course of the preliminary investigation, the board staff will give the respondent(s) a copy of the complaint and an opportunity to present such information as the respondent may desire, provided that if a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information will be deleted from the complaint.

(4) It is the intent of the board that board staff who are investigating a complaint will work with the respondent's employing agency, unless in the judgment of the investigator it will impede the investigation. During the course of the investigation, the board staff will provide the employing agency with a copy of the complaint. If a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information will be deleted from the complaint.

(5) The board staff may refer a complaint to the employing agency for investigation and recommendation of resolution. The referral will include a copy of the complaint and all supporting documentation and shall include a date for submission of the report and recommendation allowing at least 30 days. The agency receiving the referral may request additional time, if needed. During the course of the agency's investigation, the agency shall contact the respondent and provide the respondent with a copy of the complaint. If a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information will be deleted from the complaint. The agency will provide the respondent with an opportunity to present such information as the respondent may desire)) review the complaint for completeness. If a complaint is complete, it will be accepted for filing. If a complaint is incomplete, the complaint shall be returned to the complainant with a statement of the reasons the complaint has not been accepted.

(2) Once a complaint has been accepted, board staff will review the complaint, determine the extent of investigation required and determine whether the complaint may be dismissed pursuant to RCW 42.52.425 and WAC 292-100-045.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-040, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-040, filed 10/30/96, effective 11/30/96.]


NEW SECTION
WAC 292-100-041   Investigation of complaints.   (1) If board staff determines that a complaint should not be dismissed pursuant to RCW 42.52.425 and WAC 292-100-045, the board staff shall conduct a preliminary investigation.

(2) During the course of the preliminary investigation, the board staff will give the respondent(s) a copy of the complaint or a summary thereof, and an opportunity to present such information as the respondent may desire, provided that if a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information shall be deleted from the complaint.

(3) It is the intent of the board that board staff who are investigating a complaint will work with the respondent's employing agency, unless in the judgment of the investigator it will impede the investigation. During the course of the investigation, the board staff shall provide the employing agency with a copy of the complaint or a summary thereof. If a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information shall be deleted from the complaint.

(4) The board staff shall reduce the results of a preliminary review or investigation to writing.

[]


NEW SECTION
WAC 292-100-042   Board staff referral of allegations.   (1) The board staff may refer a complaint or a summary thereof to the employing agency for investigation and recommendation of resolution. The referral will include a copy of the complaint and all supporting documentation and shall include a date for submission of the report and recommendation allowing at least thirty days. If a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information shall be deleted from the complaint. The agency receiving the referral may request additional time, if needed. During the course of the agency's investigation, the agency shall contact the respondent and provide the respondent with a copy of the complaint. The agency will provide the respondent with an opportunity to present such information as the respondent may desire.

(2) If board staff determine that a complaint alleges conduct which may violate a criminal statute, the staff may refer the complaint to the appropriate law enforcement authority and if referred, will suspend their investigation until the law enforcement authority responds as to whether criminal charges will be filed. If the law enforcement authority elects to file criminal charges, no further action will be taken while the criminal case is pending. If the law enforcement authority elects not to file criminal charges, board staff shall complete their investigation and follow the procedures set forth in these rules.

[]


NEW SECTION
WAC 292-100-045   Executive director's dismissal of complaints.   (1) If after a preliminary review or investigation the board staff determines that:

(a) Any alleged violation that may have occurred is not within the jurisdiction of the board;

(b) The complaint is obviously unfounded or frivolous; or

(c) The complaint presents a violation of chapter 42.52 RCW, but any violation that may have occurred does not constitute a material violation because it was inadvertent and minor, or has been cured, and, after consideration of all of the circumstances, further proceedings would not serve the purposes of this chapter, the executive director may dismiss the complaint by issuing an order of dismissal.

(2) The preliminary review or investigation report and a written notice of the executive director's order of dismissal shall be provided to the complainant, respondent, and the board. (See RCW 42.52.425.)

[]


NEW SECTION
WAC 292-100-046   Complainant's request for review of executive director's dismissal order.   (1) Upon the written request of the complainant, the executive director's order of dismissal will be reviewed by the board.

(2) A request for review must be received at the board's administrative office no later than twenty days after the date the order of dismissal is mailed to the complainant.

(3) A request for review shall state the grounds therefor.

(4) When a request for review is received, the board staff shall prepare a record for the board's review and serve notice upon the respondent that a review has been requested. The record will consist of:

(a) The complaint;

(b) The preliminary review or investigation report, as applicable;

(c) The order of dismissal;

(d) The complainant's request for review;

(e) The executive director's response to the request for review; and

(f) Any additional material requested by the chair.

(5) The board shall review the record and deliberate in closed session, without oral argument, and act on the request at the next meeting at which it may be practicable by:

(a) Affirming the dismissal;

(b) Directing board staff to conduct further investigation; or

(c) Issuing a determination that there is reasonable cause to believe that a violation has been or is being committed.

(6) In reviewing the executive director's order of dismissal, the board shall base its review on whether the executive director had a rational basis for the decision. The board only shall reverse a decision to the extent that a rational basis is lacking.

(7) The board's decision shall be reduced to writing and provided to the complainant and the respondent.

[]


NEW SECTION
WAC 292-100-047   Board member's request for review of executive director's dismissal order.   (1) Upon the written request of a board member, the executive director's order of dismissal will be reviewed by the board.

(2) The preliminary review or investigation report and a written notice of the executive director's order of dismissal shall be provided to the board at the next regular meeting.

(3) A request for review by a board member must be received by the executive director no later than twenty days after the date the order of dismissal is provided to the board.

(4) When a request for review is received, the board staff shall prepare a record for the board's review and serve notice upon the respondent that a review has been requested. The record will consist of:

(a) The complaint;

(b) The preliminary review or investigation report, as applicable;

(c) The order of dismissal;

(d) Any additional material requested by the chair or the board member who requested the review.

(5) The board shall review the record, consider the request in executive session, and act on the request at the next meeting at which it may be practicable by:

(a) Affirming the dismissal;

(b) Directing board staff to conduct further investigation; or

(c) Issuing a determination that there is reasonable cause to believe that a violation has been or is being committed.

(6) The board's decision shall be reduced to writing and provided to the complainant and the respondent.

[]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-050   Determination on reasonable cause.   (1) Following the preliminary investigation, the board staff shall prepare a written investigation report and make a recommendation to the board on whether to find reasonable cause, including a recommendation as to whether the penalty may be greater than $500.

(2) Upon receipt of the board staff's investigation report and recommendation, the board shall determine whether or not there is reasonable cause to believe that a violation of chapter 42.52 RCW has occurred.

(3) The board's reasonable cause determination shall be done in closed session.

(4) If the board finds reasonable cause, the board shall consider whether the penalty and costs for the alleged violation may be greater than $500. If the board ((concludes that the potential)) may wish to impose penalty and costs ((may be)) greater than $500, the respondent shall be given the option to have an administrative law judge conduct the hearing and rule on procedural and evidentiary matters. If the respondent is not given that option, the board may not impose ((a)) penalty ((or)) and costs greater than $500. The board may, on its own initiative, choose to retain an administrative law judge to conduct any hearing.

(5) Upon receipt of an investigation report and recommendation on a complaint referred to the employing agency for investigation, the board shall either:

(a) Reject the report and recommendation and initiate its own investigation; or

(b) Concur with the report and recommendation and either initiate a hearing if the recommended penalty is a monetary fine or refer the matter to the employing agency for implementation of the recommendation if the recommendation is within the agency's authority to implement. The agency shall report implementation to the board and the board shall dismiss the complaint; or

(c) Concur with the report and recommendation, enter a finding of no reasonable cause and dismiss the complaint; or

(d) Concur with the report and recommendation, consider the report an investigative report, enter a finding of reasonable cause, and proceed under this section.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-050, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-050, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-060   ((Filing of answer -- )) Notice of hearing -- Filing of answer.   (1) Following the board's determination on reasonable cause, the board shall provide the complainant, the respondent and the employing agency with a copy of the written determination on reasonable cause((,)) and a copy of the board staff's written investigation report((, and a copy of the complaint. If a complainant has requested confidentiality under chapter 42.17 RCW, the complainant's name and identifying information will be deleted)). If reasonable cause is found, the determination of reasonable cause shall include a statement of the alleged violations. Prior to scheduling a public hearing, the board shall provide the respondent with an explanation of the option to request that the hearing be conducted by an administrative law judge if the penalty and costs for the alleged violation may be greater than $500.

(2) Within 30 days of service of the written determination on reasonable cause, the respondent shall file an answer to the written determination on reasonable cause which shall state his/her response to the alleged violations. The answer shall include either a request for or a waiver of the right to request an administrative law judge if the penalty and costs for the alleged violation may be greater than $500.

(3) Failure to file an answer to the written determination on reasonable cause within 30 days of service constitutes a default, and the board may proceed to resolve the case without further notice to, or hearing for the benefit of, the respondent.

(4) Within 10 days after service of a default order under subsection (3) of this section, the respondent may file a written motion requesting that the order be vacated, and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the board chair or a designated board member may adjourn further proceedings or conduct them without the participation of the respondent.

(5) Within 30 days of service of the written determination on reasonable cause, the respondent shall ((file a request for hearing. The request shall include either a request for or a waiver of)) have the right to request an administrative law judge if the penalty and costs for the alleged violation may be greater than $500. If the respondent fails to request an administrative law judge within 30 days, the right to have the matter presided over by an administrative law judge is waived. If the respondent does not request an administrative law judge within 30 days and has not defaulted pursuant to this section, the board staff may, at its option, commence an adjudicative proceeding to resolve the matter.

(6) The respondent shall be notified of the date of the hearing no later than ((30)) 20 days before the hearing date.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-060, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-060, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-080   Investigation procedures -- Subpoenas.   (1) During the course of an investigation, the board, ((or any)) a board member, or the executive director, may issue a subpoena directed to any person who is likely to possess information which is relevant and material to the investigation. The subpoena shall:

(a) Specifically describe the information which is sought, and

(b) Require the production of information at a reasonable place and time, but no later than ten days from the date it is served, and

(c) Notify the person that if the information is not produced, the board will apply to the superior court for an appropriate order or other remedy. The subpoena may be personally delivered or sent by certified mail, return receipt requested.

(2) The board may issue a subpoena under RCW 42.52.390 to compel persons to appear and give testimony and may require the production of any books, papers, correspondence, memorandums or other documents which the board deems relevant and material.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-080, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-080, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-100   Prehearing conference -- Rule.   (1) In any proceeding, the presiding officer upon his/her own motion or upon request by board staff or the respondent or their counsel, may direct the board staff or respondent to appear at a specified time and place for a conference to consider:

(a) Simplification of issues;

(b) The necessity of amendments to the hearing notice;

(c) The possibility of obtaining stipulations, admissions of facts and of documents;

(d) Limitation on the number of witnesses;

(e) Authorizing discovery by any party; ((and))

(f) Scheduling order; and

(g) Procedural and such other matters as may aid in the disposition of the proceeding.

(2) Prehearing conferences may be held by telephone conference call or at a time and place specified by the presiding officer.

(3) Following the prehearing conference, the presiding officer shall issue an order reciting the action taken and decisions made at the conference. If no objection to the order is filed with the presiding officer within seven days after the date the order is mailed, the order shall control the subsequent course of the proceeding unless modified for good cause by subsequent order.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-100, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-100, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-110   Hearings -- Discovery -- Subpoenas.   (1) The board, a board member, or the executive ((secretary)) director may issue subpoenas for discovery, subpoenas to persons to appear and give testimony, and may require the production of any books, papers, correspondence, memoranda, or other records deemed relevant or material and the board or presiding officer may issue protective orders as appropriate. Any party may issue subpoenas. All subpoenas for hearings must be filed with the ((board)) presiding officer, together with proof of proper service, at least five days prior to the date of the hearing for which they are issued. All subpoenas will be issued and may be enforced in the form and manner set forth in RCW 34.05.446 and WAC 10-08-120.

(2) The ((board)) presiding officer, upon motion and before the time specified in the subpoena for compliance therewith, may:

(a) Quash or modify the subpoena if it is unreasonable and oppressive; or

(b) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(3) The attendance of witnesses and such production of evidence may be required from any place within the state of Washington to any location where a hearing is being conducted.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-110, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-110, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-130   Hearings -- Discovery -- Depositions and interrogatories -- Notice.   A party desiring to take the deposition of any person upon oral examination shall give reasonable notice of not less than five ((business)) days in writing to the presiding officer and all parties. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined. On motion of a party to whom the notice is served, the presiding officer may for cause shown, enlarge or shorten the time. If the parties so stipulate in writing, depositions may be taken at any time or place, upon any notice, and in any manner and when so taken may be used as other depositions.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-130, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-130, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-140   Depositions and interrogatories in hearings -- Protection of parties and deponents.   After notice is served for taking a deposition, upon its own motion or upon motion reasonably made by any party or by the person to be examined and upon notice and for good cause shown, the presiding officer may order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or the ((board)) presiding officer may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.

At any time during the taking of the deposition, on motion of any party or the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the presiding officer may order the party conducting the examination to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as above provided. If the order made terminates the examination, it shall be resumed only upon the order of the ((board)) presiding officer. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-140, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-140, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-150   Discovery -- Production of documents and use at hearing.   (1) Upon request by either party, copies of all materials to be presented at the hearing shall be provided to the requester within seven days of the request but, for good cause shown, not less than three business days prior to the date of the hearing.

(2) When documents are to be offered into evidence at the hearing, the one offering the exhibit shall provide a minimum of ten copies((, for the opposing party, members of the board, the board's legal counsel, and board staff)).

(3) If documentary evidence has not been exchanged prior to the hearing, the parties shall arrive at the hearing location or make documents available in sufficient time before the time scheduled for the hearing for the purpose of exchanging and making copies of exhibits to be introduced.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-150, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-150, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-160   Conduct of hearings.   (1) A hearing shall be conducted pursuant to the Administrative Procedure Act (chapter 34.05 RCW) and its supporting regulations (chapter 10-08 WAC), shall be followed unless modified by chapter 292-100 WAC.

(2) A hearing shall be conducted either by the board or by an administrative law judge. If an administrative law judge participates, either by request of a respondent or by request of the board, the board may choose to sit with the administrative law judge to hear the matter and to enter a final order at the conclusions of the proceedings; or to have the administrative law judge hear the matter alone and prepare an initial order for review by the board. If an administrative law judge sits with the board, he or she shall rule on procedural and evidentiary matters.

(3) After the hearing the board may ((find)) conclude that:

(a) The respondent(s) did not violate the act, as alleged, and dismiss the case; or

(b) The respondent(s) has (have) violated chapter 42.52 RCW; or

(c) The respondent(s) is (are) in violation of chapter 42.52 RCW, the board's remedy would be inadequate and the matter should be referred to the appropriate law enforcement agency as provided in RCW 42.52.470.

(4) Following a hearing in which the board participates, the board:

(a) Shall set forth in writing its findings of fact, conclusions of law and decision on the merits of the case; and

(b) Shall serve each party, the complainant and the employing agency, a copy of the findings of fact, conclusions of law and decision.

(5) Following a hearing in which the board does not participate, the administrative law judge shall:

(a) Set forth written findings of fact, conclusions of law and decision on the merits of the case in an initial order;

(b) Shall serve each party and board staff a copy of the findings of fact, conclusions of law and decision, including a statement of the right to request review of the initial order by the board.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-160, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-160, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-170   Review of initial orders by an administrative law judge.   (1) An initial order by an administrative law judge shall become the final order of the board within ((twenty)) forty-five days of the initial order unless:

(a) ((The board, upon its own motion,)) A board member determines that the initial order should be reviewed as provided in WAC 292-100-175;

(b) A party files a petition for review of the initial order within ((twenty)) thirty days of the entry of the initial order.

(2) The petition for review will specify the portions of the initial order to which exception is taken and will refer to the evidence of record relied upon to support the petition.

(3) Petitions for review shall be filed with the executive ((secretary)) director and served on all other parties. The party not filing the petition for review shall have twenty days to reply to the petition for review. The reply shall be filed with the executive ((secretary)) director and copies of the reply shall be served on all other parties or their counsel at the time the reply is filed, and may cross-petition for review. If the reply contains a cross-petition, it shall specify portions of the initial order to which exception is taken by the replying party, and shall refer to the evidence of the record relied upon to support the reply.

(4) The board shall personally consider the whole record or such portions of it as may be cited by the parties.

(a) The board shall afford each party an opportunity to present written argument and may afford each party an opportunity to present oral argument.

(b) The board shall enter a final order disposing of the proceeding.

(c) The board shall serve copies of the final order on all parties, the complainant, and the employing agency.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-170, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-170, filed 10/30/96, effective 11/30/96.]


NEW SECTION
WAC 292-100-175   A board member's request for review of initial orders.   (1) Five days after receiving an initial order by an administrative law judge the executive director shall serve a copy of the initial order upon each board member.

(2) A board member who is requesting review of an initial order shall provide written notice to the executive director within thirty days of service on the board member.

(3) Upon receipt of a board member's notice of review the executive director shall serve the notice of review on all other parties.

(4) The board shall personally consider the whole record or such portions of it as may be required for its deliberation.

(a) The board may afford each party an opportunity to present written argument or afford each party an opportunity to present oral argument.

(b) The board shall enter a final order disposing of the proceeding.

(c) The board shall serve copies of the final order on all parties, the complainant, and the employing agency.

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AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-180   Brief ((enforcement hearing)) adjudicative proceeding -- Authority.   Pursuant to RCW 34.05.482 through 34.05.494, after a finding of reasonable cause and notwithstanding the provision of WAC 292-100-050 through 292-100-170, the board may provide a brief ((enforcement hearing for)) adjudicative proceeding as set forth in WAC 292-100-190 for alleged violations of provisions in chapter 42.52 RCW in which the facts are undisputed, the violations appear to be relatively minor in nature, and ((a)) the penalty and costs no greater than $500 will be assessed for the violations.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-180, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-180, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-190   Brief ((enforcement hearing)) adjudicative proceeding -- Procedure.   (1) A brief ((enforcement hearing)) adjudicative proceeding may be presided over by the chair, or a member of the board designated by the chair.

(2) When a violation is alleged, before taking action, the executive ((secretary)) director shall send the alleged violator notice, which shall include:

(a) ((Alleged violation;)) The determination of reasonable cause and the investigative report;

(b) The maximum amount of the penalty and costs which can be imposed at the hearing ((and the amount of any proposed fine)); and

(c) Person's right to respond, within ((ten)) twenty days, either in writing or in person to explain his/her view of the matter.

(3) At the time of the hearing if the presiding officer believes alleged violations ((are of such magnitude as to merit penalties and costs greater than $500)) no longer meet the criteria in WAC 292-100-180, the presiding officer shall immediately adjourn the ((hearing)) brief adjudicative proceeding and direct the matter to be scheduled for ((an enforcement)) a public hearing by the full board or an administrative law judge.

(4) At the time any unfavorable action is taken, the presiding officer shall serve upon each party a written statement describing the violation, the reasons for the decision, the penalty and costs imposed and their right to request review by the board ((at the next scheduled board meeting)).

(5) The written decision of the presiding officer is an initial order. If no review is taken of the initial order, the initial order shall be the final order.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-190, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-190, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-200   Brief ((enforcement hearing)) adjudicative proceeding -- Administrative review procedures.   (1) The board will conduct a review of the initial order upon the written or oral request of a party if the board receives the request within ((twenty-one)) twenty days after the service of the initial order.

(2) If the parties have not requested review, the board may conduct a review of the initial order upon its own motion and without notice to the parties, but it may not take any action on review less favorable to any party than the original order without giving that party notice and an opportunity to explain that party's view of the matter.

(3) The order on review shall be in writing stating the findings made, and the reasons for the decision, and notice that judicial review is available. The order on review shall be entered within twenty-one days after the date of the initial order or of the request for review, whichever is later.

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-200, filed 3/2/99, effective 4/2/99. Statutory Authority: Chapter 42.52 RCW and RCW 42.52.360 (2)(b). 96-22-028, 292-100-200, filed 10/30/96, effective 11/30/96.]


AMENDATORY SECTION(Amending WSR 99-06-073, filed 3/2/99, effective 4/2/99)

WAC 292-100-210   Reconsideration ((and review of decisions)) of final orders.   (1) ((For purposes of this rule, "decision" means any findings, conclusions, order, or other action by the board which is reviewable by a court.

(2) A decision may be reconsidered only upon:

(a) The written request of a party; or

(b) The motion or written request of a board member who voted on the prevailing side when that decision was made.

(3) Such a request for reconsideration shall be served at the office of the board and on all parties, or motion made, no later than ten days after service of the decision of which reconsideration is sought.

(4))) Within ten days of the service of a final order, any party may file a petition for reconsideration as provided in RCW 34.05.470.

(2) Any party may make a motion for reconsideration of a final order of the board as provided in RCW 34.05.470. The request for reconsideration shall be filed at the office of the board and served on the parties no later than ten days after service of the final order. A request or motion for reconsideration shall specify the grounds therefor.

(((5) When a request for reconsideration is served, or motion made, enforcement of the decision of which reconsideration is sought shall be stayed and the decision shall not be final until the board has acted on the reconsideration.)) (3) Any party may respond to a request ((or motion)) for reconsideration. The response is due no later than ten days after the party is served with the request ((of motion)).

(((6) The board shall act on the reconsideration, at the next meeting at which it practicably may do so by:

(a) Deciding whether to reconsider its decision; and

(b) If it decides to do so, either affirming or amending its decision. A copy of the board's decision on reconsideration shall be served on all parties, the complainant, and the employing agency.

(7) Upon being served with a decision, the respondent may treat that decision as final for the purpose of petitioning for judicial review. The board may not reconsider any decision after being served with a petition for judicial review.))

[Statutory Authority: RCW 42.52.360 (2)(b). 99-06-073, 292-100-210, filed 3/2/99, effective 4/2/99.]


NEW SECTION
WAC 292-100-220   Effective date.   When WAC 292-100-007 through 292-100-210 go into effect, they will apply to all pending cases.

[]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 292-100-070 Investigation materials not disclosable during investigation.

OTS-4766.3


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-020   Function -- Organization -- Office.   The executive ethics board was created by chapter 42.52 RCW to enforce the state's ethics law and rules adopted under it with respect to statewide elected officers and all other officers and employees in the executive branch, boards and commissions, and institutions of higher education.

The executive ethics board consists of five members, appointed by the governor as follows: One member shall be a classified service employee; one member shall be a state officer or state employee in an exempt position; one member shall be a citizen selected from a list of three names submitted by the attorney general; one member shall be a citizen selected from a list of three names submitted by the state auditor; and, one member shall be a citizen at large selected by the governor.

The board's administrative office is located at ((1125 Washington Street SE, 6th Floor, P.O. Box 40100, Olympia, Washington, 98504-0100)) 2425 Bristol Court S.W. 1st Floor, P.O. Box 40149, Olympia, WA 98504-0149. The office hours are 8:00 a.m. to noon and 1:00 p.m. to 5:00 p.m., Monday through Friday except legal holidays and during regularly scheduled board meetings.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-020, filed 11/3/98, effective 12/4/98.]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-030   Operations and procedures.   ((Board members meet the second Friday of each month, except for the months of August and December, at such times and places as are deemed necessary for the conduct of agency business.)) The board holds regular scheduled meetings in accordance with a schedule filed with the code reviser's office and published in the Washington State Register. All meetings are conducted in accordance with the Open Public Meetings Act (chapter 42.30 RCW). Three members of the board constitute a quorum. Any matter coming before the board may be decided by a majority vote of those members present and voting. Minutes shall be taken at all meetings.

The board issues advisory opinions; develops education and training materials; investigates, hears, and determines complaints; reviews and approves agency ethics policies; and, reviews, approves, or denies contracts between state officers and employees and state agencies.

Written communications intended for board consideration or action shall be filed with the administrative office.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-030, filed 11/3/98, effective 12/4/98.]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-040   Executive ((secretary)) director.   The executive ((secretary)) director shall perform the following duties under the general authority and supervision of the board:

(1) Make initial determinations, pursuant to RCW 42.52.425 and WAC 292-100-045, regarding complaints received by the board;

(2) Render informal nonbinding advice, pursuant to RCW 42.52.360 (2)(b) and (c) and WAC 292-110-050;

(3) Make initial determinations, pursuant to RCW 42.52.120 and WAC 292-110-060, regarding approval of certain contracts between state agencies and state officers or employees;

(4) Act as records officer and administrative arm of the board((.));

(((2))) (5) Coordinate the policies of the board and the activities of board staff((.)), supervise board staff as appropriate;

(((3))) (6) Act as a liaison between the board and other public agencies((.)); and

(((4))) (7) Conduct ethics training and information outreach.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-040, filed 11/3/98, effective 12/4/98.]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-060   Index prior to January 1, 2001.   Prior to January 1, 2001, the board ((has)) indexed by subject matter the advisory opinions of the board. The index is maintained in the administrative office and is accessible at the board's web site located at www.wa.gov/ethics.

The volume of correspondence managed by the office is such that it would be unduly burdensome to formulate and maintain an index of all correspondence. In lieu of an index, the following filing system is utilized at the board's administrative office:

(1) Complaints received by the board are indexed by year, number, and name of the respondent and agency.

(2) Whistleblower referrals from the state auditor are indexed by whistleblower case number.

(3) Contract approvals are filed by year and name of the state employee.

(4) Agency ethics policies are filed by agency name.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-060, filed 11/3/98, effective 12/4/98.]


NEW SECTION
WAC 292-130-065   Index after January 1, 2001.   The board has indexed by subject matter the advisory opinions of the board. The index is maintained in the administrative office and is accessible at the board's web site located at www.wa.gov/ethics.

The volume of correspondence managed by the office is such that it would be unduly burdensome to formulate and maintain an index of all correspondence. In lieu of an index, the following filing system is utilized at the board's administrative office:

(1) Complaints, including referrals from the state auditor, received by the board are indexed by year, month, day, and sequential number. Complaints that are referred for full investigation are indexed by year and sequential case number.

(2) Requests for advisory opinions, including informal staff analysis, are indexed by year, month, day, and sequential number. Advisory opinions issued by the board are indexed by year and sequential opinion number.

(3) Requests for contract approvals, under WAC 292-110-060 are indexed by year, month, day, sequential number and name of the state employee.

(4) Requests for board review of agency ethics policies, filed under RCW 42.52.360(4) are indexed by year, month, day, and sequential number. Agency ethics policies that are approved by the board are indexed by year, month, day, sequential policy number, and agency name.

[]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-070   Public records -- Officer.   The public records officer for the ((administrative office)) board shall be the executive ((secretary)) director to the board.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-070, filed 11/3/98, effective 12/4/98.]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-080   Hours for seeking public records.   Public records shall be available for inspection and copying from 9:00 a.m. to noon and from 1:00 p.m. to ((4:30)) 4:00 p.m., Monday through Friday, excluding legal holidays and during regularly scheduled board meetings.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-080, filed 11/3/98, effective 12/4/98.]


AMENDATORY SECTION(Amending WSR 98-22-072, filed 11/3/98, effective 12/4/98)

WAC 292-130-130   Exemptions.   (1) The ((administrative office)) board reserves the right to determine that a public record requested in accordance with the procedures outlined in WAC 292-130-060 is exempt under the provisions of RCW 42.17.310.

(2) It is the policy of the board during the course of any investigation that all records generated or collected as a result of that investigation are exempt from public inspection and copying under RCW 42.17.310 (1)(d). The investigation is not considered complete until a case is resolved either by a stipulation and settlement that is signed by all parties; or, when the board enters a final order after a public hearing. If a public records request is made following a signed stipulation and settlement or a final order for any such record which implicates the privacy of an individual, written notice of the records request will be provided to the individual in order that such individual may request a protective order from a court under RCW 42.17.330. The following records are not considered part of the investigation file and are releasable upon request:

(a) Complaints, upon receipt by the respondent;

(b) The board staff's preliminary review or investigation report;

(c) The board's findings of reasonable cause or no reasonable cause; and

(d) Proposed stipulations and settlements, upon receipt by the board.

(3) In addition, pursuant to RCW ((42.17.260(1))) 42.17.310, the ((office)) board reserves the right to ((delete identifying details)) withhold or delete information when it makes available or publishes any public record in any cases where there is reason to believe that disclosure of such details would be ((an invasion of personal privacy protected by)) otherwise exempt from disclosure under chapter 42.17 RCW. The public records officer will fully justify such deletion in writing.

(((3))) (4) Any denial of requests for public records must be accompanied by a written statement specifying the reason for the denial, including a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exemption applies to the records withheld.

[Statutory Authority: RCW 42.52.360 (2)(b). 98-22-072, 292-130-130, filed 11/3/98, effective 12/4/98.]

Washington State Code Reviser's Office