WSR 06-22-032

PERMANENT RULES

DEPARTMENT OF LICENSING


[ Filed October 25, 2006, 2:46 p.m. , effective November 25, 2006 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: To clarify ethical issues for board members when working as private consultants.

Citation of Existing Rules Affected by this Order: Amending chapter 196-09 WAC.

Statutory Authority for Adoption: RCW 18.43.035.

Adopted under notice filed as WSR 06-18-070 on September 5, 2006.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 3, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: October 11, 2006.

George A. Twiss

Executive Director

Chapter 196-09 WAC

BOARD PRACTICES AND PROCEDURES

(Formerly chapter 196-08 WAC)


NEW SECTION
WAC 196-09-130   Board member limitations -- Contract selection   (1) When a member of the Board of Registration for Professional Engineers and Land Surveyors (Board) is beneficially interested, directly or indirectly, in a contract, sale, lease, purchase or grant that may be made by, through, or is 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, sale, lease, purchase or grant, the member must:

(a) Exclude him or herself from the Board discussion regarding the specific contract, sale, lease, purchase or grant;

(b) Exclude him or herself from the Board vote on the specific contract, sale, lease, purchase or grant; and

(c) Refrain from attempting to influence the remaining Board members in their discussion and vote regarding the specific contract, sale, lease, purchase or grant.

(2) The prohibition against discussion set forth in sections (a) and (c) may 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), "any other person" has a beneficial interest in a contract, sale, lease, purchase or grant when the other person bids or otherwise seeks to be awarded the contract, sale, lease, purchase or grant.


EXAMPLE:

The Board is composed of licensed professional engineers (PE) and professional land surveyors (PLS). A licensed PE member of the Board is employed by a company, which conducts forensic evaluations for the purpose of determining whether an engineering design was properly performed. The Board is in the process of selecting a contractor to conduct an evaluation of said engineering design for the Board's use during disciplinary activities. The company that employs the PE member of the Board has responded to the Board's RFP.

The PE member of the Board may use his general expertise regarding the performance of forensic evaluations to educate the Board as to the general elements of such review. The member is prohibited from participating in the Board's discussion, decision and vote for selecting a contractor.

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NEW SECTION
WAC 196-09-131   Board member limitations -- Transactions   (1) When a member of the Board of Registration for Professional Engineers and Land Surveyors (Board) either owns a beneficial interest in or is an officer, agent, employee or member of an entity or individual, which is engaged in a transaction involving the Board, the member must:

(a) Exclude him or herself from the Board discussion regarding the specific transaction;

(b) Exclude 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 sections (a) and (c) may 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, 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" as described in this subsection.

(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:

The Board may discipline engineers or land surveyors for incompetence in their practice in Washington. The Board is conducting an investigation involving questionable surveying services provided by a county engineer's office. One of the members of the Board sits on that county's planning commission. The member must exclude him or herself from any Board investigation, discussion, deliberation and vote with respect to disciplinary actions arising from the investigation.

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NEW SECTION
WAC 196-09-135   Reporting of board member recusal   (1) If exclusion occurs pursuant to WAC 196-09-130 or WAC 196-09-131, the member of the Board should disclose to the public the reasons for his or her recusal from any Board action whenever recusal occurs. The Board staff should record each exclusion and the basis for the exclusion in the minutes of the Board meetings.

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Washington State Code Reviser's Office