WSR 14-10-072
PROPOSED RULES
PUBLIC DISCLOSURE COMMISSION
[Filed May 6, 2014, 12:40 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 14-06-058.
Title of Rule and Other Identifying Information: WAC 390-28-100 Reporting modificationsPossible qualificationsStatement of financial affairs, the rule describes specific circumstances under which the public disclosure commission (PDC) may justify a reporting modification, when in the public interest, requested by an individual subject to the personal financial disclosure requirements of RCW 42.17.700 [42.17A.700] through 42.17A.710.
Hearing Location(s): PDC, Evergreen Plaza Building, Room 206, 711 Capitol Way, Olympia, WA, on June 26, 2014, at 9:30 a.m.
Date of Intended Adoption: June 26, 2014.
Submit Written Comments to: Lori Anderson, P.O. Box 40908, Olympia, WA 98504-0908 (mail), 711 Capitol Way, Room 206, Olympia, WA (physical), e-mail lori.anderson@pdc.wa.gov, fax (360) 753-1112, by June 17, 2014.
Assistance for Persons with Disabilities: Contact Nancy Coverdell by phone (360) 753-1980.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The PDC is charged with ensuring that certain candidates and elected officials disclose personal financial information at regular intervals. The PDC may modify or suspend the disclosure requirement if it finds that "literal application" of the chapter "works a manifestly unreasonable hardship" and that the suspension or modification of the reporting requirement will not frustrate the purposes of chapter 42.17A RCW. In 2002, the PDC adopted interpretive statements that established protocols to be followed for common requests it received, namely:
Motor vehicle dealers who seek exemption from disclosing business or governmental customers (Interpretation 02-05),
Attorneys who seek exemption from disclosing business or governmental customers who are clients of the applicant or the applicant's law firm (Interpretation 02-03),
Candidates or elected officials who seek exemption from disclosing business or governmental customers of a spouse/registered domestic partner (Interpretation 02-06), and
Judges and judicial candidates who seek exemption from disclosing a home address and/or exemption from disclosing business or governmental customers who are clients of a judge's former law firm (Interpretation 02-04).
The proposed amendment inserts PDC Interpretations 02-03 through 02-06 in WAC 390-28-100. No substantive changes are proposed to the language lifted from the interpretative statements.
Reasons Supporting Proposal: Converting long-standing interpretive statements to rule is encouraged by the Administrative Procedure Act. Converting these long-standing interpretations to rule will assist the PDC in rendering consistent decisions for similar requests for personal financial affairs reporting modifications and better advise the public of the PDC's opinions, approaches, and likely courses of action.
Statutory Authority for Adoption: RCW 42.17A.110 and 42.17A.120.
Statute Being Implemented: RCW 42.17A.120.
Rule is not necessitated by federal law, federal or state court decision.
Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: No increased costs to the agency are expected.
Name of Proponent: PDC, governmental.
Name of Agency Personnel Responsible for Drafting and Implementation: Lori Anderson, 711 Capitol Way, Room 206, Olympia, WA, (360) 664-2737; and Enforcement: Andrea Doyle, 711 Capitol Way, Room 206, Olympia, WA, (360) 664-2735.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of these rule amendments has minimal impact on small business. The PDC is not subject to the requirement to prepare a school district fiscal impact statement, per RCW 28A.305.135 and 34.05.320.
A cost-benefit analysis is not required under RCW 34.05.328. The PDC is not an agency listed in subsection (5)(a)(i) of RCW 34.05.328. Further, the PDC does not voluntarily make that section applicable to the adoption of these rules pursuant to subsection (5)(a)(ii) and to date, the joint administrative rules review committee has not made the section applicable to the adoption of these rules.
May 6, 2014
Lori Anderson
Communications and
Training Office
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
WAC 390-28-100 Reporting modificationsPossible qualificationsStandardsStatement of financial affairs.
(1) One or more of the following may be considered by the commission as possible qualifications for a reporting modification with respect to the statement of financial affairs, when it is in the public interest:
(a) Banks, savings accounts, insurance policies - Financial interests. ((A candidate or official)) An applicant may be exempted from reporting any financial interest, otherwise required to be reported by RCW 42.17A.710 (1)(b) if:
(i) The financial institution or other entity in which the ((candidate or official)) applicant held an interest does not engage in business in the state of Washington, or is not regulated in whole or in part by the office sought or held by ((such candidate or official)) the applicant;
(ii) Such reporting would present a manifestly unreasonable hardship to the ((candidate or official)) applicant; and
(iii) The interest would present no actual or potential conflict with the proper performance of the duties of the office sought or held.
(b) Income and ownership interests. ((A candidate or official)) An applicant may be exempted from reporting the information otherwise required by RCW 42.17A.710 (1)(f) and (g), if:
(i) Public disclosure would violate any legally recognized confidential relationship;
(ii) The information does not relate to a business entity which would be subject to the regulatory authority of the office sought or held by the ((candidate or official)) applicant in whole or in part;
(iii) Such reporting would present a manifestly unreasonable hardship to the ((candidate or official)) applicant including but not limited to adversely affecting the competitive position of an entity in which the ((filer)) applicant had an interest of ten percent or more as described in RCW 42.17A.120; and
(iv) The interest in question would present no actual or potential conflict with the performance of the duties of the office sought or held.
(c) Immediate family members' interests. ((A candidate or official)) An applicant may be exempted from reporting the information otherwise required by RCW 42.17A.710 for members of the applicant's immediate family ((of a candidate or official)), if:
(i) Such information relates to a financial interest held by such member under a bona fide separate property agreement, or other bona fide separate status; and, such financial interest ((does)) is not ((constitute)) a present or prospective source of income to ((such candidate or official)) the applicant or to any other person who is dependent upon ((such candidate or official)) the applicant for support in whole or in part; or
(ii) Reporting the name of an entity in which the immediate family holds an interest of ten percent or more would be likely to adversely affect the competitive position of the entity, under RCW 42.17A.120.
(d) Personal residence - Real property. Regarding reporting the information otherwise required by RCW 42.17A.710 (1)(h) through (k):
(i) Under WAC 390-24-200, the filer shall list the street address of each parcel, the assessor's parcel number, the abbreviated legal description appearing on property tax statements, or the complete legal description. Each property description shall be followed by the name of the county in which the property is located.
(ii) No modification will be necessary if the filer describes the real property using one of the alternatives in WAC 390-24-200, plus the name of the county.
(iii) A modification will be required if the filer seeks some other means to describe reportable real property including the personal residence of the filer. The commission may consider a modification, for example, when the filer or his or her immediate family member has received a threat, has a no contact order, or presents a similar personal safety ((situation)) concern.
A prospective modification to allow nondisclosure of a residential address may be granted when the applicant or an immediate family member has received a threat, been issued a no contact order or presents a similar personal safety concern.
(e) Other. ((A candidate or official)) An applicant may be exempted from reporting information otherwise required under RCW 42.17A.710 which would constitute a manifestly unreasonable hardship in a particular case, when the circumstances presented would not indicate any actual or potential conflict with the proper performance of the duties of the office sought or held. Examples of ((members of professions often seeking modifications, and examples of other frequent situations that may result in modification requests, are described in commission interpretive statements.)) other common requests will be considered as follows:
(i) Lawyers and law firms (when applicant is an incumbent or candidate and acts alone or as part of a governing body, board, or commission). An applicant may be allowed to satisfy the reporting requirements of RCW 42.17A.710 (1)(g)(ii) and WAC 390-24-020 by disclosing reportable clients from whom compensation has been paid in excess of the reporting threshold as follows:
(A) The names of the business clients for whom the applicant has done legal work;
(B) Other clients of the law firm whose interests are significantly affected by the applicant's actions as an elected or appointed official or whose actions will be affected by the applicant's action should the applicant be elected whose identities become known to the applicant through any means;
(C) The names of the clients of the law firm who are listed in Martindale Hubbell, the firm's resume, web site, or similar promotional materials; and
(D) Governmental clients that have done business with the law firm.
An applicant may also be required to disclose all business customers from whom compensation in excess of the reporting threshold has been received whose identities are publicized or referenced in documents open for public inspection at the courts, in administrative hearings, at proceedings conducted by public agencies, or are a matter of public knowledge in other similar public forums. Alternatively, the commission may require an applicant to report only those publicly identifiable customers of which the applicant is aware.
(ii) Judges and former law firms. An applicant may be allowed to satisfy the reporting requirements of RCW 42.17A.710 (1)(g)(ii) and WAC 390-24-020 by disclosing any required information of which the applicant is aware, when the applicant certifies he or she is no longer able to access or has been denied access to the former law firm's client information.
The commission may apply (e)(i) of this subsection when the applicant is a nonincumbent judicial candidate who practiced law during the reporting period and who seeks a modification regarding reportable business clients of the law firm.
(iii) Motor vehicle dealers. An applicant may satisfy the reporting requirements of RCW 42.17A.710 (1)(g) and WAC 390-24-020 by disclosing:
(A) All purchases and leases of vehicles, and purchases of parts and services from the dealership, by the agency or jurisdiction in which the applicant seeks or holds office;
(B) Other business and governmental entities that purchased or leased ten or more vehicles from the dealership;
(C) Business customers who paid in excess of twenty thousand dollars for the purchase of parts and/or service from the dealership; and
(D) Any other governmental entity that paid the dealership in excess of the disclosure threshold established under RCW 42.17A.710 (1)(g)(ii) for the purchase of parts and/or service.
(iv) Applicants whose spouse or registered domestic partner creates a reporting obligation for the applicant. When an applicant is required to report the activities of an entity solely because the applicant's spouse or registered domestic partner held an office, directorship, general partnership or ownership interest in the entity and the applicant does not have direct knowledge of the information that must be reported, the applicant may be allowed to satisfy the disclosure requirements of RCW 42.17A.710 (1)(g)(ii) and WAC 390-24-020 by disclosing reportable customers from whom compensation in excess of the disclosure threshold established under RCW 42.17A.710 (1)(g)(ii) has been received as follows:
(A) All payments made by the agency or jurisdiction in which the applicant seeks or holds office to the entity;
(B) The business and other governmental customers or clients of the applicant's spouse/domestic partner and of the entity of which the applicant is aware; and
(C) Any other business and other governmental customers or clients of the entity whose identities are known to the applicant and whose interests are significantly affected by the agency or jurisdiction in which the applicant seeks or holds office. The commission may apply (e)(i) through (iii) of this subsection when the applicant's spouse/domestic partner is a lawyer, judge, or motor vehicle dealer.
(2) "Bona fide separate property agreement" means an agreement or court order describing separate property in a valid:
(a) Prenuptial agreement;
(b) Separate property contract under chapter 26.09 RCW;
(c) Separate property court decree under chapter 26.09 RCW;
(d) Domestic partnership agreement under chapter 26.60 RCW;
(e) Domestic partnership agreement as part of a notice of termination under chapter 26.60 RCW; or
(f) Postnuptial agreement.
(3) "Other bona fide separate status" means a valid written agreement or court decree recognizing the separate status of the parties under state law, including their individual property that is separate under state law.