Purpose: To adopt WAC 232-12-002, Fish and Wildlife Commission members' recusal requirements for commissioners with beneficial interests in certain commission decisions and transactions.

Statutory Authority for Adoption: RCW 42.52.200 and 77.04.055.

Adopted under notice filed as WSR 98-10-098 on May 6, 1998.

Changes Other than Editing from Proposed to Adopted Version: The adopted version of WAC 232-12-002 Fish and Wildlife Commission members' recusal requirements for commissioners with beneficial interests in certain commission decisions and transactions, differs from the proposed version filed with the code reviser. The following changes were made for grammatical reasons:

(3) Definitions

(b) "Transaction involving the Commission" ... lawsuit. Rule making is not a transaction involving the Commission.

(5) The prohibitions contained in subsection (2) do not prohibit the member from using his or her general expertise to educate and provide general information on the subject area to other Commission members.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 1, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.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.

June 18, 1998

Lisa Pelly, Chair

Fish and Wildlife Commission

WAC 232-12-002  Fish and Wildlife Commission members' recusal requirements for commissioners with beneficial interests in certain commission decisions and transactions. (1) Commission members must comply with subsection (2) of this section when the following circumstances apply or it is reasonably foreseeable that they will apply:

(a) The member is beneficially interested, directly or indirectly, in a contract, sale, lease, purchase, or grant that may be made by, through, or under the supervision of the Commission, in whole or in part; or

(b) The member accepts, directly or indirectly, any compensation, gratuity or reward from any other person beneficially interested in a contract, sale, lease, purchase, or grant that may be made by, through, or under the supervision of the Commission, in whole or in part; or

(c) The member either owns a beneficial interest in, or is an officer, agent, employee or member of, an entity which is engaged in a transaction involving the Commission.

(2) If required by subsection (1) of this section, the member must:

(a) Recuse himself or herself from discussions by the Commission, regarding the specific contract, sale, lease, purchase, grant, or transaction; and

(b) Recuse himself or herself from any vote by the Commission on the specific contract, sale, lease, purchase, grant, or transaction; and

(c) Refrain from attempting to influence any other member or employee in any discussion or vote regarding the specific contract, sale, lease, purchase, grant, or transaction.

(3) Definitions. The following definitions apply to this section:

(a) "Transaction involving the Commission" means a proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other similar matter that the Commission member in question believes, or has reason to believe:

(i) Is, or will be, the subject of Commission action; or

(ii) Is one to which the Commission is or will be a party; or

(iii) Is one in which the Commission has a direct and substantial proprietary interest.

(b) "Transaction involving the Commission" 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 a Commission member; or a claim, case, lawsuit, or similar matter if the Commission member did not participate in the underlying transaction involving the Commission that is the basis for the claim, case, or lawsuit. Rule making is not a transaction involving the Commission.

(c) "Commission action" means any action on the part of the Commission, including, but not limited to:

(i) A decision, determination, finding, ruling, or order; and

(ii) 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.

(4) Under subsection (1)(b), "any other person" has a beneficial interest in a contract, sale, lease, purchase, or grant when the other person bids or otherwise seeks to be awarded the contract, sale, lease, purchase, or grant.

(5) The prohibitions contained in subsection (2) do not prohibit the member from using his or her general expertise to educate and provide general information on the subject area to other Commission members.

(6) If recusal occurs pursuant to the State Ethics law, chapter 42.52 RCW, or rules adopted pursuant to the State Ethics law, the Commission member must disclose to the public the reasons for his or her recusal from any Commission action whenever recusal occurs. The Commission staff must record each such recusal and basis for the recusal.

examples:

example one: The Commission is composed of individuals who often are employed in the private sector. The governor appoints members of the Commission. In making these appointments, the governor is required to seek to maintain a balance reflecting all aspects of fish and wildlife. Commission members are appointed because they have general knowledge of the habit and distribution of fish and wildlife and are often recommended by interest groups, such as sport fishers, commercial fishers, hunters, private landowners, and environmentalists. A Commission member is employed by a company that provides contract facilitation services. The Commission is in the process of selecting a contractor to conduct a series of public meetings on fishing in Washington. The company which employs the member of the Commission has bid for the contract. The Commission member may use his or her general expertise to educate Commissioners about desirable public meeting design elements for a successful public involvement project like the one the Commission wants to conduct. The Commission member is prohibited from participating in the Commission discussion and analysis establishing criteria for selecting a contractor and is prohibited from participating in the Commission vote to select a contractor (see WAC 232-12-002-1(c)). The Commission member would publicly announce his or her recusal and the reasons for it, and the Commission staff would record this information as part of the public record.

example two: The Commission contracts with King Software (hypothetical company) to provide computer systems for tracking recreational license purchases. King Software's contract with the Commission is almost expired, and the Commission must seek bids from software companies for the next contract period. The Commission issues a request for bids to various software companies who offer suitable software, including Fishsoft, Inc. (hypothetical company). Approximately nine months ago, one Commission member worked for Fishsoft, Inc. and received compensation from that company. The Commission member subsequently left Fishsoft, Inc. The Commission member is not required to recuse himself or herself from selecting a contractor for the Commission's computer license system. Fishsoft, Inc. did not have a beneficial interest in the Commission's contract until it bid on the contract. Therefore, Fishsoft, Inc. was not a person beneficially interested in the contract when the Commission member received the compensation (see WAC 232-12-002(4)). However, if the Commission member received compensation from Fishsoft, Inc. after it bid on the contract, the Commission member would be required to disclose the fact that he or she received the compensation from a bidder and recuse himself or herself from the Commission's specific discussion and the vote awarding the contract (see WAC 232-12-002(1(b))). The Commission staff would record this information into the public record. Again, the Commission member could participate in discussions using his or her general expertise to educate and provide general information on the subject area to the other Commission members.

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Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.