WSR 14-15-013 PERMANENT RULES PUBLIC DISCLOSURE COMMISSION [Filed July 3, 2014, 3:31 p.m., effective August 3, 2014] Effective Date of Rule: Thirty-one days after filing.
Purpose: Amendment converts to rule interpretive statements adopted in 2002. The interpretative statements established protocols for the commission to follow when considering repetitive applications for modification of the personal financial disclosure requirements. Converting these long-standing interpretive statements to rule assists the commission in rendering consistent decisions for similar applications for modification and better advises the public of the commission's opinions, approaches, and likely courses of action.
Citation of Existing Rules Affected by this Order: Amending WAC 390-28-100.
Statutory Authority for Adoption: RCW 42.17A.110 and 42.17A.120.
Adopted under notice filed as WSR 14-10-072 on May 6, 2014.
Changes Other than Editing from Proposed to Adopted Version: The word "when" was replaced with "if" in the new paragraph following WAC 390-28-100 (1)(d)(iii).
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: June 26, 2014.
Lori Anderson
Communications and
Training Officer
AMENDATORY SECTION (Amending WSR 12-03-002, filed 1/4/12, effective 2/4/12)
WAC 390-28-100 Reporting modifications—Possible qualifications—Standards—Statement 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 if 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.
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