WSR 02-04-003



[ Filed January 23, 2002, 2:17 p.m. ]

Date of Adoption: December 14 [15], 2001.

Purpose: To establish a "safe harbor" provision for state employees who are found to have violated the Ethics in Public Service Act while following a board approved agency policy.

Citation of Existing Rules Affected by this Order: Amending chapter 292-120 WAC.

Statutory Authority for Adoption: RCW 42.52.360 (2)(b) and 42.52.425.

Adopted under notice filed as WSR 01-20-087 on October 2, 2001.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Thirty-one days after filing.

January 22, 2002

Brian R. Malarky

Executive Director


AMENDATORY SECTION(Amending WSR 97-07-058, filed 3/18/97, effective 4/18/97)

WAC 292-120-030   Criteria for determining sanctions.   In determining the appropriate sanction, including the amount of any civil penalty, the board may consider the nature of the violation and the extent or magnitude or severity of the violation, including:

(1) The monetary cost of the violation including:

(a) The cost of the violation to the state;

(b) The value of anything received or sought in the violation;

(c) The amount of any damages incurred by the state as a result of the violation;

(d) The costs incurred in enforcement, including reasonable investigative costs;

(2) The nature of the violation including whether the violation:

(a) Was continuing in nature;

(b) Was motivated by financial gain;

(c) Involved criminal conduct;

(d) Impaired a function of the agency;

(e) Tended to significantly reduce public respect for or confidence in state government or state government officers or employees;

(f) Involved personal gain or special privilege to the violator;

(3) Aggravating circumstances including whether the violator:

(a) Intentionally committed the violation with knowledge that the conduct constituted a violation;

(b) Attempted to conceal the violation prior to the filing of the complaint;

(c) Was untruthful or uncooperative in dealing with the board or the board's staff;

(d) Had significant official, management, or supervisory responsibility;

(e) Had committed prior violations found by the board;

(f) Incurred no other sanctions as a result of the violation;

(4) Mitigating factors including:

(a) Prior corrective action taken against the violator;

(b) Prior recovery of damages to the state;

(c) The unethical conduct was approved or required by the violator's supervisor ((or agency));

(d) The violation was unintentional;

(e) Other mitigating factors deemed relevant by the board.

(5) For purposes of this section, each act which violates one or more provisions of chapter 42.52 RCW, or rules adopted under it, may constitute a separate violation.

[Statutory Authority: RCW 42.52.360 (2)(e)-(g). 97-07-058, 292-120-030, filed 3/18/97, effective 4/18/97.]

WAC 292-120-035   Safe harbor provision.   The board invites and encourages agencies to adopt polices that prevent agency employees from violating the Ethics in Public Service Act. Pursuant to RCW 42.52.360(4), the board may review and approve agency policies. In determining appropriate sanctions, the board may consider agency policies in effect at the time of the conduct. In addition:

(1) The board will not impose sanctions for conduct that would violate the Ethics in Public Service Act, if the conduct at issue was permitted under a board-approved agency policy, as provided for in RCW 42.52.360(4), prior to the conduct occurring.

(2) The effect of the safe harbor from sanction, as provided in WAC 292-120-035(1), shall be limited to conduct that conforms to a board-approved agency policy.


Washington State Code Reviser's Office