Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule: Definitions, complaints and investigations, determination of reasonable cause.

     Purpose: To amend investigation procedures.

     Other Identifying Information: Agency procedural rules.

     Statutory Authority for Adoption: Article IV, Section 31, Washington State Constitution.

     Statute Being Implemented: RCW 42.52.370 and Article IV, Section 31, State Constitution.

     Summary: The proposed amendments would substitute "commission" for the functions of the "investigative panel" in the rules.

     Reasons Supporting Proposal: The commission is directed to establish rules of procedure. These amendments would conform the rules to AGO 1999 No. 4.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: David Akana, P.O. Box 1817, Olympia, WA 98507, (360) 753-4585.

     Name of Proponent: Washington State Commission on Judicial Conduct, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: The amendments to the existing rules would replace the "investigative panel" and direct its functions to the entire commission.

     Proposal Changes the Following Existing Rules: The amendments to the existing rule would substitute the "commission" for the "investigative panel" in matters relating to the determination of reasonable cause.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules are procedural in nature.

     RCW 34.05.328 does not apply to this rule adoption. The action would amend procedural rules.

     Hearing Location: Hawthorn Suites, Evergreen Room, 19621 International Boulevard, SeaTac, WA, on December 7, 2001, at 11:00 a.m.

     Assistance for Persons with Disabilities: Contact Kathy Sullivan by November 29, 2001, TDD (360) 753-4585.

     Submit Written Comments to: Commission on Judicial Conduct, P.O. Box 1817, Olympia, WA 98507, fax (360) 586-2918, by November 8, 2001.

     Date of Intended Adoption: December 7, 2001.

June 28, 2001

David Akana

Executive Director

OTS-4957.1

AMENDATORY SECTION(Amending Order 95-01, filed 2/8/95, effective 3/11/95)

WAC 292-09-040   Definitions.   In these rules:

     "Adjudicative proceeding" means a proceeding before the commission in which the person involved is given notice and an opportunity to be heard after a determination of reasonable cause that a violation of chapter 42.52 RCW or rules adopted under it has been or is being committed.

     "Administrative law judge" means a person assigned by the office of administrative hearings in accordance with chapter 34.12 RCW and appointed by the commission to hear and take evidence with respect to charges against a state employee of the judicial branch.

     "Commission" means the commission on judicial conduct.

     "Complainant" means the organization, association, or person who makes a complaint alleging violation of chapter 42.52 RCW or rules adopted under it.

     "Complaint" means a written statement on a form provided by the commission alleging facts which may upon investigation lead to a finding of a violation of chapter 42.52 RCW or rules adopted under it.    

     "Determination" means a written statement finding that there is or that there is not reasonable cause to believe that a violation of chapter 42.52 RCW or rules adopted under it has been or is being committed.

     "Employee" means a state employee or state officer (as defined in RCW 42.52.010) of the judicial branch of state government, except "judges" (as defined in RCW 2.64.010 and the Code of Judicial Conduct), or the employee's attorney, as the context suggests.

     "Enforcement action" means the imposition of sanctions, which may include one or more of the following:

     • A reprimand;

     • A recommendation that the employing agency commence disciplinary action against an employee; and/or

     • An order for payment of any damages, civil penalties, and/or costs as permitted by chapter 42.52 RCW.

     Any order for payment shall also include a reprimand.

     "Fact-finder" means the commission or an administrative law judge appointed by the commission.

     "Hearing" means a public hearing conducted in an adjudicative proceeding.

     (("Investigative panel" means a four-member subcommittee of the commission consisting of two public members, a judge, and a lawyer. The investigative panel shall make all determinations concerning reasonable cause. The panel shall perform oversight functions for commission investigative and prosecutorial functions. Members who serve on the investigative panel shall not serve as the presiding officer at any hearing in the same proceeding.))

     "Meeting" means a business meeting of the commission for any purpose other than a public hearing or executive session involving the investigation or consideration of a complaint.

     "Member" means a member of the commission and includes alternates acting as members.

     "Public member" means a member of the commission who is neither a lawyer nor a judge.

     "Reprimand" means an enforcement action of the commission that finds that the conduct of the respondent violates chapter 42.52 RCW or rules adopted under it. A reprimand may include a requirement that the respondent follow a specified corrective course of action. The commission shall issue a written reprimand and may require the respondent to appear personally before the commission for a public reading of the reprimand. The commission shall provide a copy of the reprimand to the respondent's employing agency.

     "Respondent" means a state employee of the judicial branch who is the subject of a complaint, or the employee's attorney, as the context suggests.

     "Staff" means the employees, or others under personal service contract or agreement, engaged to perform commission duties and to exercise commission powers.

[Statutory Authority: RCW 42.52.370 and Article IV, section 31 of the state Constitution. 95-05-031 (Order 95-01), § 292-09-040, filed 2/8/95, effective 3/11/95.]

     (2) Upon receipt of a complaint, the commission staff shall investigate and evaluate the allegations. The investigation shall be limited to the facts alleged in the complaint. On every complaint received, the commission staff shall make a written recommendation that there is or that there is not reasonable cause to believe that a violation of chapter 42.52 RCW or rules adopted under it has been or is being committed. The ((investigative panel)) commission shall make a written determination whether there is reasonable cause based upon the complaint and the recommendation. A copy of the determination shall be provided to the complainant and to the respondent. If the determination concludes that there is no reasonable cause, a copy shall also be provided to the attorney general.

     (3) Complaints pursuant to RCW 42.52.450 shall be investigated by the attorney general. As appropriate, pursuant to RCW 42.52.470, the ((investigative panel or the)) commission may refer a complaint to the employing agency, the attorney general, or the prosecutor.

[Statutory Authority: RCW 42.52.370 and Article IV, section 31 of the state Constitution. 95-05-031 (Order 95-01), § 292-09-050, filed 2/8/95, effective 3/11/95.]

[Statutory Authority: RCW 42.52.370 and Article IV, section 31 of the state Constitution. 95-05-031 (Order 95-01), § 292-09-060, filed 2/8/95, effective 3/11/95.]

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