WSR 06-20-039

PROPOSED RULES

EXECUTIVE ETHICS BOARD


[ Filed September 26, 2006, 1:57 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR [06-16-129 on] August 1, 2006.

Title of Rule and Other Identifying Information: WAC 292-100-007 Definitions, 292-100-045 Executive director dismissals, 292-100-050 Determination on reasonable cause, 292-100-150 Discovery -- Production of documents and use at hearing, and 292-100-160 Conduct of hearings.

Hearing Location(s): 2425 Bristol Court, Conference Room 148, Olympia, WA 98504, on November 17, 2006, at 9:00.

Date of Intended Adoption: November 17, 2006.

Submit Written Comments to: Susan Harris, P.O. Box 40149, Olympia, WA 98504-0149, e-mail susanh4@atg.wa.gov, fax (360) 586-3955, by November 13, 2006.

Assistance for Persons with Disabilities: Contact Ruthann Bryant by November 13, 2006, (360) 586-3265.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: (1) Amending WAC 292-100-007 to provide guidance on the board's implementation of RCW 42.52.560 and to reflect current staffing; (2) amending WAC 292-100-045 to incorporate legislative changes allowing the board to dismiss complaints; (3) amending WAC 292-100-050 to provide clarity on the reasonable cause process; (4) amending WAC 292-100-150 to require production of documents to be used in the hearing ten days prior to the hearing; and (5) amending WAC 292-100-160 to clarify the process used when an administrative law judge acts as presiding officer during enforcement hearings.

Reasons Supporting Proposal: To provide affected parties with guidance on the board's implementation of new laws and to provide consistency with the Administrative Procedure Act and board practices in enforcement proceedings.

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

Statute Being Implemented: Chapter 42.52 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Executive ethics board, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Susan Harris, 2425 Bristol Court, Olympia, WA 98504, (360) 586-6759.

No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no impact on small business.

A cost-benefit analysis is not required under RCW 34.05.328. There is no fiscal impact on the state.

Susan Harris

Executive Director

OTS-9236.1


AMENDATORY SECTION(Amending WSR 05-19-142, filed 9/21/05, effective 10/22/05)

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 director, ((the)) administrative officer, investigators, office assistant and attorneys who bring cases before the board((, and the training and information specialist)).

(2) "Charitable organization" means any entity that solicits or collects contributions from the general public where the contribution is purported to be used to support a charitable activity, but does not include any commercial fund raiser or commercial fund-raising entity. "Charitable organization" includes, but is not limited to, the following entities:

Educational

Recreational

Social services

Defense of the poor

Benevolent

Health cause

(3) "Charitable organization" does not include religious or political entities or activities.

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

(((3))) (5) "Distribute," for the purpose of RCW 42.52.560, means to provide or disseminate information to a group of others. Nothing in this section permits the use of state resources for the purpose of composing, editing, copying or for any purpose other than distributing. Methods of distribution include, but are not limited to: Electronic mail, internal mail, facsimile, hand-to-hand exchange, placing information on desks or workstations, and posting on designated or approved bulletin boards.

(6) "Employee organization" is any organization, union, or association that has two or more members established for the purpose of collective bargaining with employers or for the purpose of opposing collective bargaining or certification of a union.

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

(((4))) (8) "Lobbying," for the purposes of RCW 42.52.380, does not include written communication by the board to members of the state legislature or to any other government official on matters pertaining directly to the Ethics in Public Service Act.

(((5))) (9) "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.

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

(((7))) (11) "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.

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

(13) "Support or oppose" means:

(a) Any communication that is made within sixty days of an election in which a candidate for public office or ballot proposition is placed before the voters and identifies, either directly or indirectly, that candidate or ballot proposition; or

(b) Any communication that is made sixty-one or more days before an election in which a candidate for public office or ballot proposition is placed before the voters and identifies, either directly or indirectly, that candidate or ballot proposition; and

(i) Attacks that candidate's character; or

(ii) Expressly advocates for that candidate or ballot proposition by including such words as "vote for," "elect," "support," "cast your ballot for," "cast your ballot against," "defeat," "vote against"; or

(iii) Is used for the purpose of appealing, directly or indirectly, for votes or for financial or other support or opposition of that candidate or ballot proposition.

[Statutory Authority: RCW 42.52.360 (2)(b). 05-19-142, 292-100-007, filed 9/21/05, effective 10/22/05. Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, 292-100-007, filed 6/13/01, effective 7/14/01. 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 01-13-033, filed 6/13/01, effective 7/14/01)

WAC 292-100-045   ((Executive director's)) Dismissal of complaints.   (1) If after a preliminary review or investigation the board or 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) If the executive director dismisses the complaint, 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 and shall include a statement of the complainant's right to appeal to the board. (See RCW 42.52.425.)

(3) If the board dismisses the complaint, written notice shall be provided to the complainant, respondent, and the board. (See RCW 42.52.425.)

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, 292-100-045, filed 6/13/01, effective 7/14/01.]


AMENDATORY SECTION(Amending WSR 01-13-033, filed 6/13/01, effective 7/14/01)

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 potential penalty ((may)) should 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 and whether any potential penalty should be greater than $500.

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

(4) If ((the board finds)) after determining reasonable cause, the board ((shall consider whether the penalty and costs for the alleged violation may be greater than $500. If the board may wish to impose)) further determines that the penalty and costs should 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 penalty 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) and 42.52.425. 01-13-033, 292-100-050, filed 6/13/01, effective 7/14/01. 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 01-13-033, filed 6/13/01, effective 7/14/01)

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.)) Any materials to be presented at the hearing shall be provided to the executive director and to the opposing party no less than ten days prior to 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.

(3) If)) Upon agreement by both parties, additional documentary evidence ((has not been exchanged prior to)) may be presented at 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. When documents are to be offered into evidence at the hearing, the one offering the exhibit shall provide a minimum of ten copies.

(3) If the parties do not reach an agreement on the submission of additional documentary evidence, at the commencement of the hearing the presiding officer shall, after hearing argument, rule on the admissibility of the documents. The proponent of the documents proposed for submission must show good cause why the documents could not be submitted ten days prior to the hearing.

(4) "Good cause" is a substantial reason or legal justification for failing to appear, to act, or respond to an action. To show good cause, the presiding officer must find that a party had a good reason for what they did or did not do, using the provisions of Superior Court Civil Rule 60 as a guideline.

[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.425. 01-13-033, 292-100-150, filed 6/13/01, effective 7/14/01. 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 01-13-033, filed 6/13/01, effective 7/14/01)

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. If an administrative law judge hears the matter at the request of the board, the board may choose to sit with the administrative law judge or the board may request that the administrative law judge hear the matter alone and prepare an initial order.

(3) ((After the)) Following a hearing in which the board participates, the board may 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) and 42.52.425. 01-13-033, 292-100-160, filed 6/13/01, effective 7/14/01. 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.]

Washington State Code Reviser's Office