PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 07-16-117.
Title of Rule and Other Identifying Information: Prohibiting sexual contact between inmates and employees (new rule).
Hearing Location(s): Department of Corrections, 7345 Linderson Way S.W., Rainier Conference Room, #3023, Tumwater, WA 98504, on October 23, 2007, at 10:30 a.m.
Date of Intended Adoption: October 24, 2007.
Submit Written Comments to: John R. Nispel, P.O. Box 41114, Olympia, WA 98504-1114, e-mail JRNISPEL@DOC1.WA.GOV, fax (360) 664-2009, by October 22, 2007.
Assistance for Persons with Disabilities: Contact Kim French by October 19, 2007, (360) 725-8367.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Adopt rules implementing RCW 72.09.225, prohibiting sexual contact between employees or contractors of the department and offenders under the jurisdiction of the department.
Reasons Supporting Proposal: RCW 72.09.225 directs the department to adopt rules to implement its provisions.
Statutory Authority for Adoption: RCW 72.01.090, 72.09.225.
Statute Being Implemented: RCW 72.09.225.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of corrections, administrative services division, governmental.
Name of Agency Personnel Responsible for Drafting: John R. Nispel, P.O. Box 41114, Olympia, WA 98504-1114, (360) 725-8365; Implementation and Enforcement: Ruben Cedeno, Deputy Secretary, P.O. Box 41118, Olympia, WA 98504-1118, (360) 725-8792.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This WAC has no impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. Rules are applicable only to department employees and contractors with no general economic impact.
September 14, 2007
H. W. Clarke
Secretary
OTS-1039.1
SEXUAL MISCONDUCT BY STATE EMPLOYEES, CONTRACTORS
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(1) "Secretary" shall mean the secretary of the department of corrections.
(2) "Department" shall mean the department of corrections.
(3) "Inmate" shall mean a person committed to the custody or under the supervision of the department, including but not limited to persons residing in a correctional institution or facility and persons released on furlough, work release, or community custody, and persons received from another state, state agency, county, or federal jurisdiction.
(4) "Sexual intercourse":
(a) Has its ordinary meaning and occurs upon any penetration, however slight; and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes; and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
(5) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.
(6) "Contractor" includes all subcontractors of a contractor.
(7) "Suspend" shall mean placing the employee on home assignment with pay.
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(2) The secretary shall immediately institute proceedings to terminate the employment of any person:
(a) Who is found by the department, based on a preponderance of the evidence, to have had sexual intercourse or sexual contact with the inmate; or
(b) Upon a guilty plea or conviction for any crime specified in chapter 9A.44 RCW when the victim was an inmate.
(3) When the secretary has reasonable cause to believe that sexual intercourse or sexual contact between the employee of a contractor and an inmate has occurred, the secretary shall require the employee of a contractor to be immediately removed from any employment position which would permit the employee to have any access to any inmate.
(4) The secretary shall disqualify for employment with a contractor in any position with access to an inmate, any person:
(a) Who is found by the department, based on a preponderance of the evidence, to have had sexual intercourse or sexual contact with the inmate; or
(b) Upon a guilty plea or conviction for any crime specified in chapter 9A.44 RCW when the victim was an inmate.
(5) The secretary, when considering the renewal of a contract with a contractor with whom the secretary has taken action under subsection (3) or (4) of this section, shall require the contractor to demonstrate that there has been significant progress made in reducing the likelihood that any of its employees will have sexual intercourse or sexual contact with an inmate. The secretary shall examine whether the contractor has taken steps to improve hiring, training, and monitoring practices and whether the employee remains with the contractor. The secretary shall not renew a contract unless he or she determines that significant progress has been made.
(6) For the purposes of RCW 50.20.060, a person terminated under this section shall be considered discharged for misconduct.
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(2) An appointed or elected public official, public employee, or public agency as defined in RCW 4.24.470 is immune from civil liability for damages for any discretionary release of relevant and necessary information, unless it is shown that the official, employee, or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant and necessary information to other public officials, public employees, or public agencies, and to the public.
(3) Except as provided in chapter 42.56 RCW, or elsewhere, nothing in this section shall impose any liability upon a public official, public employee, or public agency for failing to release information authorized under this section. Nothing in this section implies that information regarding persons designated in subsection (2) of this section is confidential except as may otherwise be provided by law.
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