AN ACT
Relating to ethics, technology, and federal standards for conflicts in public
service; and amending RCW 42.52.010, 42.52.020, 42.52.030, 42.52.050,
42.52.110, 42.52.120, and 42.52.160.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
Sec.
1. RCW
42.52.010 and 1994 c 154 s 101 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Agency" means any state board, commission, bureau, committee,
department, institution, division, or tribunal in the legislative, executive, or
judicial branch of state government. "Agency" includes all elective
offices, the state legislature, those institutions of higher education created
and supported by the state government, and those courts that are parts of state
government.
(2)
"Head of agency" means the chief executive officer of an agency. In
the case of an agency headed by a commission, board, committee, or other body
consisting of more than one natural person, agency head means the person or
board authorized to appoint agency employees and regulate their conduct.
(3)
"Assist" means to act, or offer or agree to act, in such a way as to
help, aid, advise, furnish information to, or otherwise provide assistance to
another person, believing that the action is of help, aid, advice, or assistance
to the person and with intent so to assist such person.
(4)
"Beneficial interest" has the meaning ascribed to it under the
Washington case law. However, an ownership interest in a mutual fund or
similar investment pooling fund in which the owner has no management powers
does not constitute a beneficial interest in the entities in which the fund or
pool invests.
(5)
"Compensation" means anything of economic value, however designated,
that is paid, loaned, granted, or transferred, or to be paid, loaned, granted,
or transferred for, or in consideration of, personal services to any person.
(6)
"Confidential information" means (a) specific information, rather
than generalized knowledge, that is not available to the general public on
request or (b) information made confidential by law.
(7) "Contract"
or "grant" means an agreement between two or more persons that
creates an obligation to do or not to do a particular thing.
"Contract" or "grant" includes, but is not limited to, an
employment contract, a lease, a license, a purchase agreement, or a sales
agreement.
(8)
"Ethics boards" means the commission on judicial conduct, the
legislative ethics board, and the executive ethics board.
(((8)))
(9) "Family" has the same meaning as "immediate
family" in RCW 42.17.020.
(((9)))
(10) "Gift" means anything of economic value for which no
consideration is given. "Gift" does not include:
(a)
Items from family members or friends where it is clear beyond a reasonable
doubt that the gift was not made as part of any design to gain or maintain
influence in the agency of which the recipient is an officer or employee;
(b)
Items related to the outside business of the recipient that are customary and
not related to the recipient's performance of official duties;
(c)
Items exchanged among officials and employees or a social event hosted or
sponsored by a state officer or state employee for coworkers;
(d)
Payments by a governmental or nongovernmental entity of reasonable expenses
incurred in connection with a speech, presentation, appearance, or trade
mission made in an official capacity. As used in this subsection,
"reasonable expenses" are limited to travel, lodging, and subsistence
expenses incurred the day before through the day after the event;
(e)
Items a state officer or state employee is authorized by law to accept;
(f)
Payment of enrollment and course fees and reasonable travel expenses
attributable to attending seminars and educational programs sponsored by a bona
fide nonprofit professional, educational, or trade association, or charitable
institution. As used in this subsection, "reasonable expenses" are
limited to travel, lodging, and subsistence expenses incurred the day before
through the day after the event;
(g)
Items returned by the recipient to the donor within thirty days of receipt or
donated to a charitable organization within thirty days of receipt;
(h)
Campaign contributions reported under chapter 42.17 RCW; ((and))
(i)
Discounts available to an individual as a member of an employee group,
occupation, or similar broad-based group; and
(j)
Awards, prizes, scholarships, or other items provided in recognition of
academic or scientific achievement.
(((10)))
(11) "Honorarium" means money or thing of value offered to a
state officer or state employee for a speech, appearance, article, or similar
item or activity in connection with the state officer's or state employee's
official role.
(((11)))
(12) "Official duty" means those duties within the specific scope
of employment of the state officer or state employee as defined by the
officer's or employee's agency or by statute or the state Constitution.
(13)
"Participate" means to participate in state action or a proceeding
personally and substantially as a state officer or state employee, through
approval, disapproval, decision, recommendation, the rendering of advice,
investigation, or otherwise but does not include preparation, consideration, or
enactment of legislation or the performance of legislative duties.
(((12)))
(14) "Person" means any individual, partnership, association,
corporation, firm, institution, or other entity, whether or not operated for
profit.
(((13)))
(15) "Regulatory agency" means any state board, commission,
department, or officer, except those in the legislative or judicial branches,
authorized by law to conduct adjudicative proceedings, issue permits or
licenses, or to control or affect interests of identified persons.
(((14)))
(16) "Responsibility" in connection with a transaction
involving the state, means the direct administrative or operating authority,
whether intermediate or final, and either exercisable alone or through
subordinates, effectively to approve, disapprove, or otherwise direct state
action in respect of such transaction.
(((15)))
(17) "State action" means any action on the part of an agency,
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.
(((16)))
(18) "State officer" means every person holding a position of
public trust in or under an executive, legislative, or judicial office of the
state. "State officer" includes judges of the superior court, judges
of the court of appeals, justices of the supreme court, members of the
legislature together with the secretary of the senate and the chief clerk of
the house of representatives, holders of elective offices in the executive
branch of state government, chief executive officers of state agencies, members
of boards, commissions, or committees with authority over one or more state
agencies or institutions, and employees of the state who are engaged in
supervisory, policy-making, or policy-enforcing work. For the purposes of this
chapter, "state officer" also includes any person exercising or
undertaking to exercise the powers or functions of a state officer.
(((17)))
(19) "State employee" means an individual who is employed by
an agency in any branch of state government. For purposes of this chapter,
employees of the superior courts are not state officers or state employees.
(((18)))
(20) "Thing of economic value," in addition to its ordinary
meaning, includes:
(a) A
loan, property interest, interest in a contract or other chose in action, and
employment or another arrangement involving a right to compensation;
(b) An
option, irrespective of the conditions to the exercise of the option; and
(c) A
promise or undertaking for the present or future delivery or procurement.
(((19)))
(21)(a) "Transaction involving the state" means a proceeding,
application, submission, request for a ruling or other determination, contract,
claim, case, or other similar matter that the state officer, state employee, or
former state officer or state employee in question believes, or has reason to
believe:
(i)
Is, or will be, the subject of state action; or
(ii) Is
one to which the state is or will be a party; or
(iii)
Is one in which the state has a direct and substantial proprietary interest.
(b)
"Transaction involving the state" 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 an officer or employee; or a claim, case, lawsuit, or similar matter if the
officer or employee did not participate in the underlying transaction involving
the state that is the basis for the claim, case, or lawsuit.
Sec.
2. RCW
42.52.020 and 1994 c 154 s 102 are each amended to read as follows:
No
state officer or state employee may have an interest, financial or otherwise,
direct or indirect, or engage in a business or transaction or professional
activity, or incur an obligation of any nature, that is in conflict with the
proper discharge of the state officer's or state employee's official
duties.
Sec.
3. RCW
42.52.030 and 1994 c 154 s 103 are each amended to read as follows:
(1) No
state officer or state employee, except as provided in subsections (2) and
(3) of this section, may be 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 officer or employee, in whole or in
part, or accept, directly or indirectly, any compensation, gratuity, or reward
from any other person beneficially interested in the contract, sale, lease,
purchase, or grant.
(2) No
officer or employee of an institution of higher education or of the Spokane
intercollegiate research and technology institute, except as provided in
subsection (3) of this section, may be beneficially interested, directly or
indirectly, in a contract or grant that may be made by, through, or is under
the supervision of the officer or employee, in whole or in part, or accept,
directly or indirectly, any compensation, gratuity, or reward from any other
person beneficially interested in the contract or grant, unless the institution
of higher education or the Spokane intercollegiate research and technology
institute has in effect a written administrative process to identify and
manage, reduce, or eliminate conflicting interests with respect to such
transactions as adopted pursuant to the national science investigator financial
disclosure (GPM 510) 1995 and the public health service regulations, 42 C.F.R.
Part 50 and 45 C.F.R. Subtitle A as each of those regulations existed on the
effective date of this section, and the state employee or state officer has
complied with such policy.
(3)
No state officer or state employee may participate in a transaction involving
the state in his or her official capacity with a person of which the officer or
employee is an officer, agent, employee, or member, or in which the officer or
employee owns a beneficial interest, except that an officer or employee of
an institution of higher education or the Spokane intercollegiate research and
technology institute may serve as an officer, agent, employee, or member, or on
the board of directors, board of trustees, advisory board, or committee or
review panel for any nonprofit institute, foundation, or fundraising entity;
and may serve as a member of an advisory board, committee, or review panel for
a governmental or other nonprofit entity.
Sec.
4. RCW
42.52.050 and 1994 c 154 s 105 are each amended to read as follows:
(([(1)]))
(1) No state officer or state employee may accept employment or engage
in any business or professional activity that the officer or employee might
reasonably expect would require or induce him or her to ((disclose)) make
an unauthorized disclosure of confidential information acquired by the
official or employee by reason of the official's or employee's official
position.
(2) No
state officer or state employee may ((disclose)) make a disclosure of
confidential information gained by reason of the officer's or employee's
official position or otherwise use the information for his or her personal gain
or benefit or the gain or benefit of another, unless the disclosure has been
authorized by statute or by the terms of a contract involving (a) the state
officer's or state employee's agency and (b) the person or persons who have
authority to waive the confidentiality of the information.
(3) No
state officer or state employee may disclose confidential information to any
person not entitled or authorized to receive the information.
(4) No
state officer or state employee may intentionally conceal a record if the
officer or employee knew the record was required to be released under chapter
42.17 RCW, was under a personal obligation to release the record, and failed to
do so. This subsection does not apply where the decision to withhold the
record was made in good faith.
Sec.
5. RCW
42.52.110 and 1994 c 154 s 111 are each amended to read as follows:
No
state officer or state employee may, directly or indirectly, ask for or give or
receive or agree to receive any compensation, gift, reward, or gratuity from a
source for performing or omitting or deferring the performance of any
official duty, unless otherwise authorized by law except: (1) The
state of Washington ((for performing or omitting or deferring the
performance of any official duty, unless otherwise authorized by law));
or (2) in the case of officers or employees of institutions of higher education
or of the Spokane intercollegiate research and technology institute, a
governmental entity, an agency or instrumentality of a governmental entity, or
a nonprofit corporation organized for the benefit and support of the state
employee's agency or other state agencies pursuant to an agreement with the
state employee's agency.
Sec.
6. RCW
42.52.120 and 1994 c 154 s 112 are each amended to read as follows:
(1) No
state officer or state employee may receive any thing of economic value under
any contract or grant outside of his or her official duties. The prohibition
in this subsection does not apply where the state officer or state employee
has complied with RCW 42.52.030(2) or each of the following conditions are
met:
(a)
The contract or grant is bona fide and actually performed;
(b)
The performance or administration of the contract or grant is not within the
course of the officer's or employee's official duties, or is not under the
officer's or employee's official supervision;
(c)
The performance of the contract or grant is not prohibited by RCW 42.52.040 or
by applicable laws or rules governing outside employment for the officer or
employee;
(d)
The contract or grant is neither performed for nor compensated by any person
from whom such officer or employee would be prohibited by RCW 42.52.150(4) from
receiving a gift;
(e)
The contract or grant is not one expressly created or authorized by the officer
or employee in his or her official capacity or by his or her agency;
(f)
The contract or grant would not require unauthorized disclosure of confidential
information.
(2) In
addition to satisfying the requirements of subsection (1) of this section, a
state officer or state employee may have a beneficial interest in a grant or
contract with a state agency only if:
(a)
The contract or grant is awarded or issued as a result of an open and
competitive bidding process in which more than one bid or grant application was
received; or
(b)
The contract or grant is awarded or issued as a result of an open and
competitive bidding or selection process in which the officer's or employee's
bid or proposal was the only bid or proposal received and the officer or
employee has been advised by the appropriate ethics board, before execution of
the contract or grant, that the contract or grant would not be in conflict with
the proper discharge of the officer's or employee's official duties; or
(c)
The process for awarding the contract or issuing the grant is not open and
competitive, but the officer or employee has been advised by the appropriate
ethics board that the contract or grant would not be in conflict with the
proper discharge of the officer's or employee's official duties.
(3) A
state officer or state employee awarded a contract or issued a grant in
compliance with subsection (2) of this section shall file the contract or grant
with the appropriate ethics board within thirty days after the date of
execution; however, if proprietary formulae, designs, drawings, or research
are included in the contract or grant, the proprietary formulae, designs,
drawings, or research may be deleted from the contract or grant filed with the
appropriate ethics board.
(4)
This section does not prevent a state officer or state employee from receiving
compensation contributed from the treasury of the United States, another state,
county, or municipality if the compensation is received pursuant to
arrangements entered into between such state, county, municipality, or the
United States and the officer's or employee's agency. This section does not
prohibit a state officer or state employee from serving or performing any
duties under an employment contract with a governmental entity.
(5) As
used in this section, "officer" and "employee" do not
include officers and employees who, in accordance with the terms of their
employment or appointment, are serving without compensation from the state of
Washington or are receiving from the state only reimbursement of expenses
incurred or a predetermined allowance for such expenses.
Sec.
7. RCW
42.52.160 and 1994 c 154 s 116 are each amended to read as follows:
(1) No
state officer or state employee may employ or use any person, money, or
property under the officer's or employee's official control or direction, or in
his or her official custody, for the private benefit or gain of the officer,
employee, or another.
(2)
This section does not prohibit the use of public resources to benefit others as
part of a state officer's or state employee's ((public)) official
duties.
(3)
The appropriate ethics boards may adopt rules providing exceptions to this
section for occasional use of the state officer or state employee, of de
minimis cost and value, if the activity does not result in interference with
the proper performance of public duties.
