S-3914.1  _______________________________________________

                         SENATE BILL 6831

          _______________________________________________

State of Washington      56th Legislature     2000 Regular Session

By Senators Morton, McCaslin, Horn, Finkbeiner, Winsley, Hochstatter, Swecker, Stevens, Johnson, Honeyford, Zarelli, Hale and Deccio

Read first time 02/04/2000.  Referred to Committee on State & Local Government.

Changing provisions relating to ethics in public service.

    AN ACT Relating to ethics in public service; and amending RCW 42.52.010, 42.52.180, and 42.52.185.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

    Sec. 1.  RCW 42.52.010 and 1998 c 7 s 1 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) "Ballot proposition" means any measure as defined by RCW 29.01.110, or any initiative, recall, or referendum proposition proposed to be submitted to the voters of the state or any municipal corporation, political subdivision, or other voting constituency from and after the time when the proposition has been certified by the appropriate election officer of that constituency as sufficient.

(5) "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))) (6) "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))) (7) "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))) (8) "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))) (9) "Ethics boards" means the commission on judicial conduct, the legislative ethics board, and the executive ethics board.

    (((9))) (10) "Family" has the same meaning as "immediate family" in RCW 42.17.020.

    (((10))) (11) "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 governmental or nonprofit professional, educational, trade, or charitable association or 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;

    (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.

    (((11))) (12) "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.

    (((12))) (13) "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))) (14) "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.

    (((14))) (15) "Person" means any individual, partnership, association, corporation, firm, institution, or other entity, whether or not operated for profit.

    (((15))) (16) "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.

    (((16))) (17) "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.

    (((17))) (18) "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.

    (((18))) (19) "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.

    (((19))) (20) "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.

    (((20))) (21) "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.

    (((21))) (22)(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 42.52.180 and 1995 c 397 s 30 are each amended to read as follows:

    (1) No state officer or state employee may use or authorize the use of facilities of an agency, directly or indirectly, for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition.  Knowing acquiescence by a person with authority to direct, control, or influence the actions of the state officer or state employee using public resources in violation of this section constitutes a violation of this section.  Facilities of an agency include, but are not limited to, use of stationery, postage, machines, and equipment, use of state employees of the agency during working hours, vehicles, office space, publications of the agency, and clientele lists of persons served by the agency.

    (2) This section shall not apply to the following activities:

    (a) Action taken at an open public meeting by members of an elected legislative body to express a collective decision, or to actually vote upon a motion, proposal, resolution, order, or ordinance, or to support or oppose a ballot proposition as long as (i) required notice of the meeting includes the title and number of the ballot proposition, and (ii) members of the legislative body or members of the public are afforded an approximately equal opportunity for the expression of an opposing view;

    (b) A statement by an elected official in support of or in opposition to any ballot proposition at an open press conference or in response to a specific inquiry.  For the purposes of this subsection, it is not a violation of this section for an elected official to respond to an inquiry regarding a ballot proposition, to make incidental remarks concerning a ballot proposition in an official communication, or otherwise comment on a ballot proposition without an actual, measurable expenditure of public funds.  The ethics boards shall adopt by rule a definition of measurable expenditure;

    (c) Activities that are part of the normal and regular conduct of the office or agency; and

    (d) ((De minimis use of public facilities by state-wide elected officials and legislators incidental to the preparation or delivery of permissible communications, including)) Initiation of written and verbal communications initiated by ((them)) state-wide elected officials and legislators of their views on ballot propositions that foreseeably may affect a matter that falls within their constitutional or statutory responsibilities.

    (3) As to state officers and employees, this section operates to the exclusion of RCW 42.17.130.

    Sec. 3.  RCW 42.52.185 and 1997 c 320 s 1 are each amended to read as follows:

    (1) During the twelve-month period beginning on December 1st of the year before a general election for a state legislator's election to office and continuing through November 30th immediately after the general election, the legislator may not mail, either by regular mail or electronic mail, to ((a)) more than one hundred constituents in a single mailing at public expense a letter, newsletter, brochure, or other piece of literature, except as follows:

    (a) The legislator may mail two mailings of newsletters to constituents.  All newsletters within each mailing of newsletters must be identical as to their content but not as to the constituent name or address.  One such mailing may be mailed no later than thirty days after the start of a regular legislative session, except that a legislator appointed during a regular legislative session to fill a vacant seat may have up to thirty days from the date of appointment to send out the first mailing.  The other mailing may be mailed no later than sixty days after the end of a regular legislative session.

    (b) The legislator may mail an individual letter to (i) an individual constituent who has contacted the legislator regarding the subject matter of the letter during the legislator's current term of office; (ii) an individual constituent who holds a governmental office with jurisdiction over the subject matter of the letter; or (iii) an individual constituent who has received an award or honor of extraordinary distinction of a type that is sufficiently infrequent to be noteworthy to a reasonable person, including, but not limited to:  (A) An international or national award such as the Nobel prize or the Pulitzer prize; (B) a state award such as Washington scholar; (C) an Eagle Scout award; and (D) a Medal of Honor.

    (2) For purposes of subsection (1) of this section, "legislator" means a legislator who is a "candidate," as defined by RCW 42.17.020, for any public office.

    (3) A violation of this section constitutes use of the facilities of a public office for the purpose of assisting a campaign under RCW 42.52.180.

    (4) The house of representatives and senate shall specifically limit expenditures per member for the total cost of mailings.  Those costs include, but are not limited to, production costs, printing costs, and postage costs.  The limits imposed under this subsection apply only to the total expenditures on mailings per member and not to any categorical cost within the total.

    (5) For purposes of this section, persons residing outside the legislative district represented by the legislator are not considered to be constituents, but students, military personnel, or others temporarily employed outside of the district who normally reside in the district are considered to be constituents.

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