PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-11-121.
Title of Rule: Executive Ethics Board - Penalty rules.
Purpose: To establish criteria for imposing sanctions and monetary penalties when the Executive Ethics Board finds that a state officer or employee has violated chapter 42.52 RCW.
Statutory Authority for Adoption: RCW 42.52.360 (2)(b).
Statute Being Implemented: Chapter 42.52 RCW.
Summary: The amendments will provide 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.
Reasons Supporting Proposal: To invite and encourage state agencies to adopt policies that prevent agency employees from violating the Ethics in Public Service Act.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brian R. Malarky, 2425 Bristol Court S.W., 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: The penalty rule establishes criteria for imposing sanctions and monetary penalties when the Executive Ethics Board finds that a state officer or employee has violated chapter 42.52 RCW. The amendments will provide 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. The rule change will encourage state agencies to adoption policies that prevent agency employees from violating the Ethics in Public Service Act.
Proposal does not change existing rules. The amendments will provide 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.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact statement was prepared because this rule is limited to the Executive Ethics Board.
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: AGO Conference Center, 4224 6th Avenue, Building 1, Lacey, WA 98504, on November 9, 2001, 10:30 a.m.
Assistance for Persons with Disabilities: Contact Debbie O'Dell, (360) 586-3265.
Submit Written Comments to: Executive Ethics Board, P.O. Box 40149, Olympia, WA 98504-0149, fax (360) 586-3955, by October 31, 2001.
Date of Intended Adoption: December 15, 2001.
October 1, 2001
Brian R. Malarky
Executive Director
OTS-5210.2
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.]
(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.
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