State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 02/01/12.
AN ACT Relating to ethics in public service; amending RCW 42.52.120 and 42.52.420; reenacting and amending RCW 42.52.010; adding a new section to chapter 42.52 RCW; and creating a new section.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 The legislature finds that ensuring public
trust in government is among its paramount duties. The public expects
its elected officials and state employees to adhere to the highest
ethical standards during their service, and this includes a commitment
to full and independent investigations, with proper penalties, in cases
where the ethics in public service act is violated.
Sec. 2 RCW 42.52.010 and 2011 c 60 s 28 are each reenacted and
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) "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.
(3) "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.
(4) "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.
(5) "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.
(6) "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.
(7) "Ethics" means adherence to the standards as set forth in this
chapter.
(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 42.17A.005.
(((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 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 42.17A 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.
(((10))) (11) "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.
(((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 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.
(((19))) (20) "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.
(((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.
(((22))) (23) "University" includes "state universities" and
"regional universities" as defined in RCW 28B.10.016 and also includes
any research or technology institute affiliated with a university,
including ((without limitation, the Spokane Intercollegiate Research
and Technology Institute and the Washington Technology Center))
innovate Washington.
(((23))) (24) "University research employee" means a state officer
or state employee employed by a university, but only to the extent the
state officer or state employee is engaged in research, technology
transfer, approved consulting activities related to research and
technology transfer, or other incidental activities.
Sec. 3 RCW 42.52.120 and 1997 c 318 s 1 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;
(f) The contract or grant would not require unauthorized disclosure
of confidential information; and
(g) The state officer or state employee has attended an ethics
training approved by the appropriate ethics board within the past
twenty-four months.
(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 or a series of substantially identical
contracts or grants 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. 4 RCW 42.52.420 and 2000 c 211 s 1 are each amended to read
as follows:
(1) After the filing of any complaint, except as provided in RCW
42.52.450, the staff of the appropriate ethics board shall investigate
the complaint as provided in this subsection (1).
(a) The investigation shall ((be limited to)) investigate the
allegations contained in the complaint but may also, in the discretion
of the investigating ethics board, investigate other potential ethics
violations discovered during the course of its investigation when the
employee is not subject to the civil service laws as set forth in
chapter 41.06 or 41.56 RCW.
(b) Agency staff may assist ethics board staff in carrying out the
investigation, but in all cases ethics board staff must oversee the
investigation. Agency staff with actual or apparent conflicts of
interest because of a relationship with the persons under investigation
must disclose this relationship. Should the ethics board determine
that there is a conflict of interest that may affect the investigation,
the agency shall designate an independent employee with no conflict of
interest to assist the ethics board with its investigation.
(c) When the investigation involves an employee exempt under
chapter 41.06 or 41.56 RCW, and in the discretion of the ethics board,
the ethics board may request the assistance of the office of the
attorney general, which may be used to conduct or assist with an
investigation. If the office of the attorney general approves the
request, a contracted investigator may be used to assist or conduct an
investigation at the office's discretion. In cases where a contractor
is authorized, the investigation shall be limited to ninety days in
duration. The investigation may be extended for an additional ninety
days but only upon the approval of the office of the attorney general
when good cause to do so is shown.
(2) The results of the investigation shall be reduced to writing
and the staff shall either make a determination that the complaint
should be dismissed pursuant to RCW 42.52.425, or recommend to the
board that there is or that there is not reasonable cause to believe
that a violation of this chapter or rules adopted under it has been or
is being committed.
(3) The board's determination on reasonable cause shall be provided
to the complainant and to the person named in such complaint.
NEW SECTION. Sec. 5 A new section is added to chapter 42.52 RCW
to read as follows:
(1) Each agency shall designate an ethics advisor or advisors to
provide informal ethics advice to state officers and employees and to
ensure uniformity in the agency's operations with respect to the ethics
in public service law. Agencies shall inform the appropriate ethics
board of their designated advisors, and the advisors shall receive
regular training from the appropriate ethics board on a schedule to be
determined by the appropriate ethics board. Ethics advisors may
solicit informal and formal advice from the appropriate ethics board
and may also serve as a point of contact within an agency to assist
with ethics investigations or to coordinate ethics trainings and
updates.
(2) Every state officer and employee shall attend an ethics
training approved by the appropriate ethics board within sixty days of
taking office or employment. Beginning January 1, 2013, every state
officer and state employee shall attend an ethics training approved by
the appropriate ethics board in coordination with other agency-provided
training, including sexual harassment training, but no less than every
three years. Every state officer and state employee subject to RCW
42.52.150(4) must be provided specialized or enhanced ethics training
approved by the appropriate ethics board every three years thereafter.