WSR 97-20-098

PROPOSED RULES

EXECUTIVE ETHICS BOARD

[Filed September 29, 1997, 4:10 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-15-041.

Title of Rule: Advisory opinions.

Purpose: To explain procedures used by state officers, state employees, or members of the general public when requesting advisory opinions.

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

Statute Being Implemented: Chapter 42.52 RCW.

Summary: Advisory opinions are used to provide prospective ethics guidance to state officers and employees.

Reasons Supporting Proposal: Intended to prevent violations of chapter 42.52 RCW, and subsequent investigation and enforcement action.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Margaret A. Grimaldi, P.O. Box 40100, Olympia, WA, (360) 664-0871.

Name of Proponent: Executive Ethics Board, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: To briefly explain the submission, review, and overall process used by the Executive Ethics Board to evaluate requests for advisory opinions. The purpose is to assist state officers and employees in understanding the application of chapter 42.52 RCW, and to prevent violations. By providing such guidance, the board anticipates that there will be fewer investigations and enforcement actions as a result of ethics complaints.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact statement was prepared because this issue is limited to the conduct of state officers and employees.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Pursuant to RCW 34.05.328(5) the Executive Ethics Board is not an agency subject to the provisions of RCW 34.05.328 (1)-(4). In addition, under RCW 34.05.328 (5)(b)(ii), these rules relate to internal governmental operations that are not subject to violation by a nongovernmental party.

Hearing Location: Office of the Attorney General, 1125 Washington Street S.E., 7th Floor, Room HLB 742, Olympia, WA, on November 14, 1997, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Patti Hurn, Board Clerk by October 31, 1997, (360) 586-3265.

Submit Written Comments to: Margaret A. Grimaldi, Board Secretary, FAX (360) 664-0229, by October 31, 1997.

Date of Intended Adoption: At the meeting following hearing November 14, 1997.

September 29, 1997

Margaret A. Grimaldi

Board Secretary

NEW SECTION

WAC 292-110-050 Advisory opinions. State officers and employees are encouraged to seek an advisory opinion whenever they have questions concerning ethical standards or potential conflicts of interest. Advisory opinions are intended to provide guidance to a state officer or state employee in advance of an action or decision and thereby prevent ethics violations.

(1) Whenever requested by a state officer, state employee, or other person, or whenever it deems it in the public interest, the board shall issue advisory opinions. Requests for advisory opinions, if not issued in response to a motion by the Board, shall be written and signed, and addressed to either the chair of the board or the board secretary. Requests may be made by Electronic mail. Each request should provide sufficient information and circumstances to enable the board to evaluate the request and issue the advisory opinion.

(2) Upon receiving a request for an advisory opinion, the board secretary shall, within fifteen (15) calendar days of receipt, acknowledge the request. All requests for advisory opinions shall be assigned a reference number consisting of a two-digit year reference and a two-digit opinion number. Persons requesting advisory opinions shall be notified of the status of the request at thirty (30) day intervals until final action is taken.

(3) The board shall either:

(a) deny the request and state the reason(s) for the denial; or,

(b) issue a written advisory opinion.

(4) An advisory opinion is final when it has been approved by the board and is signed by the board secretary.

(5) A person requesting an advisory opinion may, upon receiving the opinion, petition the board for reconsideration if the person believes that the opinion is erroneous in factual detail. A petition for reconsideration shall be written and signed, and shall briefly state the errors of fact. The board may deny the petition if it lacks merit, or if the person who submitted the request provided erroneous information to the board.

(6) If a state officer or state employee receives an advisory opinion and fails to make a good faith effort to follow its guidance, the board shall give this fact weight when considering a complaint alleging a violation based on the advice received.

(7) Informal Staff Analysis. It is the responsibility of the board secretary to provide ethics advice to any state officer, state employee, or other person. In providing such advice, the board secretary may issue a non-binding staff analysis. A non-binding staff analysis is intended to provide ethics guidance and advice in an expeditious manner, but does not substitute for a formal advisory opinion from the board. The board secretary shall provide a disclaimer to the person requesting the non-binding staff analysis that the advice is solely the opinion of the board secretary and not the opinion of the board or in any respect binding on the board. Only advisory opinions issued by the board and complaints decided by the board may be relied on for determining how the board will interpret a provision of the Ethics in Public Service Act.

(a) in considering a complaint alleging a violation, the board will give weight to the fact that the person charged in the complaint relied in good faith on advice from the board secretary.

(b) the board may review staff analyses provided under this subsection and may approve or disapprove of any advice so provided. However, any such approval or disapproval is limited to whether staff had reasonable grounds for the advice and should not be interpreted as indicating approval or disapproval of the advice provided.