HOUSE BILL REPORT
HB 2316
As Reported By House Committee On:
State Government
Title: An act relating to ethics in public service.
Brief Description: Changing ethics provisions for state officers and state employees.
Sponsors: Representatives Peery, Horn, Ebersole, Ballard, Van Luven, Pruitt, Johanson, Patterson, Flemming, Bray, Dunshee, Jones, Valle, King, Cothern, Campbell, Brough, Karahalios, Basich, Quall, Springer, J. Kohl, H. Myers and Anderson; by request of Commission on Ethics in Government & Campaign Financing, Governor Lowry and Attorney General.
Brief History:
Reported by House Committee on:
State Government, February 2, 1994, DPS.
HOUSE COMMITTEE ON STATE GOVERNMENT
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass. Signed by 9 members: Representatives Anderson, Chair; Veloria, Vice Chair; Reams, Ranking Minority Member; L. Thomas, Assistant Ranking Minority Member; Campbell; Conway; Dyer; King and Pruitt.
Staff: Tim Burke (786-7103).
Background: In 1993, the Legislature created the Commission on Ethics in Government and Campaign Practices. The commission has issued a detailed report in which it recommends the enactment of new ethics rules governing state officials and state employees, as well as numerous changes to the Public Disclosure Act and to other laws dealing with political campaigns. Its major recommendations in the ethics area are: that new or revised ethics rules should be adopted; the new rules, and provisions for enforcing them, should be consolidated into a single code of ethics; the new code should apply to all state officials and employees of the executive, legislative and judicial branches of state government; and each branch should have its own ethics commission which would hear and determine complaints, impose sanctions, recommend disciplinary action, and issue advisory opinions.
While neither the executive nor judicial branches have an ethics board with jurisdiction over all officials and employees of these branches, the legislative branch has vested ethics jurisdiction over legislators and legislative staff in the House Board of Legislative Ethics, the Senate Board of Legislative Ethics and the Joint Board of Legislative Ethics. The boards are composed of equal numbers of legislators and non-legislators, and their powers generally are limited to providing advice and recommendations on conflict of interest matters. Since their establishment in 1967, the legislative ethics boards have issued many advisory opinions providing guidance to legislators and staff. While these advisory opinions deal with a wide array of ethics questions, a large number answer members' questions concerning the propriety of hypothetical private business and employment activities.
Summary of Substitute Bill: This measure is designed to implement the recommendations for ethics law reform of the Commission of Ethics in Government and Campaign Practices.
The measure would establish new or revised ethics rules; consolidate the rules in a single RCW chapter; and apply the new chapter to all state officials and employees of the executive, legislative and judicial branches of state government. To enforce the new rules, the measure would create new ethics boards in the executive and legislative branches and would expand the authority of the judicial branch's Commission on Judicial Conduct. Each of these entities, as well as the Attorney General, would have broad powers to enforce the new ethics chapter.
(1) RULES OF CONDUCT
Most of this measure's rules of conduct can be found in one form or another in existing statutes or rules. These existing laws or rules typically only apply to certain classes of public servants, for example the Executive Conflict of Interest Act only applies to executive branch employees who are not agency heads, and the Legislative Ethics Act only applies to legislators and legislative staff. A major result of this measure would be the application of the same statutory rules of conduct to all officials and employees of the three branches of state government.
Generally, and subject to numerous exceptions, this measure's rules of conduct would prohibit elected state officials and state employees from:
--having any private interest or business which is in conflict with their state duties;
--transacting business on behalf of the state with an entity in which they have a financial interest;
--assisting another person in a transaction with the state in which they have been substantially involved as part of their official duties but where the assistance is not within their official duties;
--releasing confidential information to persons not authorized to receive it;
--using their state positions to obtain special privileges or exemptions;
--within one year after leaving state service, accepting employment with a business with which, during a two-year period before leaving state service, they had negotiated a contract having a value of at least $10,000 and where their employment with the business would involve implementing the contract;
--within two years after leaving state service, having a financial interest in a state contract or grant that, before leaving state service, they played an important role in authorizing or funding;
--at any time after leaving state service, accepting employment under circumstances where it would be reasonable to believe that the employment offer was intended to influence their official conduct while in state service;
--at any time after leaving state service, assisting another person in any transaction involving the state in which they had played an important role while in state service. ("Transaction involving the state" is generally limited to legal and administrative matters and does not include proposed legislation or legislation);
--accepting any compensation or benefit beyond their state compensation for carrying out official duties;
--when not part of their official duties, entering into a contract with or accepting a grant from a state agency;
--accepting honoraria that do not meet specified requirements;
--accepting gifts under circumstances where it could be reasonably expected that the gifts would influence their votes, actions or official judgment or, during any calendar year, accepting gifts with an aggregate value or more than $50 from any single source;
--using state property under their official control for their private benefit or gain;
--using, or knowingly acquiescing in the use of, state facilities for campaign purposes; and
--if responsible for the investment of state funds, having any personal investments that are not authorized.
2. ETHICS BOARDS
Legislative Ethics Board: The board would be composed of nine members. It would include:
(a)two senators, one from each Senate caucus and appointed by the President of the Senate;
(b) two representatives, one from each House caucus and appointed by the Speaker;
(c)four citizen members, each appointed by the Governor, rom a list of three persons selected separately by each legislative caucus; and
(d)one citizen member appointed by at least three of the four citizen members.
Legislative members would serve two-year terms and citizen members five-year terms. No more than three citizen members could be identified with the same political party. The chair would be a citizen member selected by the citizen members.
Generally, citizen members could not hold or campaign for elective office, could not be an officer of a political party or political committee, could not make campaign contributions in state elections, and could not engage in lobbying activities.
Among other things, the board would be empowered to: issue advisory opinions; investigate, hear, and determine complaints by any person or on its own motion; impose sanctions including reprimands and monetary penalties; adopt rules and policies; recommend suspension or removal to the appropriate legislative entity or recommend prosecution to the appropriate authority; and establish criteria regarding the levels of civil penalties appropriate for different types of violations.
The board's power to impose monetary penalties would include the greater of (a) civil penalties of up to $5000 per violation, or (b) three times the economic value of any thing received in violation of the ethics rules. The board would also be authorized to recover any damages sustained by the state as a result of the violations and its costs, including reasonable investigative costs.
Executive Ethics Board: This board would be composed of five members, each appointed by the Governor. The members would include: one classified civil service employee; one state officer or state employee in an exempt position; one citizen selected from a list of three persons submitted by the Attorney General; one citizen selected from a list of three persons submitted by the state auditor; and one citizen member selected by the Governor.
No more than three members could be identified with the same political party. Each member would serve a single five-year term. The members would elect a chair who could be any member of the board. The state auditor would provide staff to the board.
The Executive Ethics Board generally would have the same powers as would be vested in the Legislative Ethics Board.
The members of the board would be required to comply with the same restrictions on political activities and lobbying as are applicable to the citizen members of the Legislative Ethics Board.
The Commission on Judicial Conduct: The Commission on Judicial Conduct is an existing entity, established under Article lV, Section 31 of the Washington Constitution. This measure would vest in the commission the duty to enforce the ethics rules with respect to state officers and employees of the judicial branch. In addition to the sanctions which the commission is authorized to impose under the constitution, the commission generally would be authorized to impose the same sanctions as the Legislative Ethics Board and Executive Ethics Board could impose.
3. MISCELLANEOUS PROVISIONS
Non-reimbursed Office Expenses: State-wide elected officials and legislators would be authorized to use campaign funds, other than surplus campaign funds, for payment of non-reimbursed, office-related expenses.
Public Disclosure Commission: The Public Disclosure Act vests in the commission the authority to enforce the act's provisions prohibiting the use of public resources in election campaigns. With respect to state officers and state employees, this measure would transfer enforcement authority to the new ethics boards and the Commission on Judicial Conduct.
Administrative Law Judge: If a board finds that a civil penalty in a case might be more than $500, then at the request of the person charged or the board, an administrative law judge would be requested to conduct the hearing on the complaint and rule on evidentiary matters.
Attorney General: If the Attorney General determines that an ethics board is clearly wrong in not taking action against a violator, the Attorney General may bring a civil action for recovery of the amounts that generally the board could have recovered.
Citizen Actions: Generally, a citizen may file a civil action for enforcement if the citizen notifies the Attorney General and appropriate board that there is reason to believe a violation has occurred and if the Attorney General or board fails to take action with respect to the matter.
Judicial Review: Judicial review of a board's decision that a violation has occurred would be as prescribed under the Administrative Procedure Act, Chapter 34.05 RCW.
Statute of Limitations: Any action against an alleged violator of the ethics law must be commenced within five years from the date of the alleged violation. However, in cases where the violator has actively concealed the violation, the action could be commenced within two years from when the violation was discovered or reasonably could have been discovered.
Transition: The new rules of ethics would be effective on January 1, 1995. The members of the legislative and executive ethics boards must be appointed by October 1, 1994. The Legislative Ethics Act, which created the three boards of legislative ethics, would be repealed and all files and any pending matters before any of these boards would be transferred to the new Legislative Ethics Board.
Substitute Bill Compared to Original Bill: Most of the changes in the substitute correct drafting oversights. The original measure did not include an authorization for use of campaign funds for payment of non-reimbursed office-related expenses. Nor did it include rules restricting political and lobbying activities by citizen members of the ethics boards.
Fiscal Note: Requested January 14, 1994.
Effective Date of Substitute Bill: Ninety days after adjournment of session in which bill is passed, except for the following section which takes effect on January 1, 1995: Sections 101 through 122, 206 through 223, and 301 through 305.
Testimony For: The Commission on Ethics in Government and Campaign Practices is a diverse group, composed of persons with various backgrounds and perspectives on ethics law reform. The bill contains the commission's recommendations and is a balanced approach to ethics law reform. Enactment would help restore public trust in government. The state's ethics laws are a complicated jumble and are inadequate. The public interest would be served by improving the ethics laws and having them apply uniformly to all state officers and state employees. In order to have adequate enforcement, a separate ethics board is needed in each branch of state government.
Testimony Against: This bill would remove criminal penalties for unethical conduct and vest enforcement in a politically-controlled legislative ethics board. It would continue the current self-policing system in the Legislature which has done nothing to stop unethical conduct. The new legislative ethics board would be staffed by politically-appointed legislative attorneys who previously failed to stop the practice of using public resources for legislative campaigns. To reform the ethics laws, the Legislature should enact a measure similar to the initiative petition proposal promoted by the Citizens for Legislative Ethics and Accountability.
Witnesses: In Favor of the Recommendations of the Ethics Commission: Governor Lowry; Christine Gregoire, Attorney General; Delores Teutsch, Senator Kathleen Drew, Tsuguo Ikeda, Judge Herbert A. Swanson, Sarah Chandler, William Asberry, and Representative Kim W. Peery, Commission on Ethics in Government and Campaign Practices; Terry Vann, Washington Independent Telephone Association; and Chuck Sauvage, Common Cause. Commented: Ralph Munro, Secretary of State; and Irene Henigner and David Clark, Public Disclosure Commission. Opposed: Shawn Newman and Cheri Bockwinkle, LIMIT; and Jim Campton, Libertarian Party.