Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-13-032.

     Title of Rule and Other Identifying Information: WAC 390-28-100 Reporting modifications -- Possible qualifications. The rule provides guidance on possible qualifications to persons seeking reporting modifications of information required to be on statements of personal financial affairs.

     Hearing Location(s): Commission Hearing Room, 711 Capitol Way, Room 206, Olympia, WA 98504, on September 24, 2009, at 9:30 a.m.

     Date of Intended Adoption: September 24, 2009.

     Submit Written Comments to: Doug Ellis, Public Disclosure Commission, P.O. Box 40908, Olympia, WA 98504-0908, e-mail dellis@pdc.wa.gov, fax (360) 753-1112, by September 22, 2009.

     Assistance for Persons with Disabilities: Contact Nicole Stauffer by phone (360) 753-1111 or (360) 586-0544.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The reporting modification rule needs to be amended to modernize the rule language, reference statutory standards for modifications, describe real property disclosures, define bona fide separate property agreements and bona fide separate status and refer filers to modification examples.

     Reasons Supporting Proposal: To provide guidance and clarification in public disclosure reporting by out-of-state political committees.

     Statutory Authority for Adoption: RCW 42.17.370(1).

     Statute Being Implemented: RCW 42.17.241 and 42.17.370(10).

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The amended rule clarifies and provides guidance to persons seeking reporting modifications to personal financial affairs statements.

     Name of Proponent: [Public disclosure commission (PDC)], governmental.

     Name of Agency Personnel Responsible for Drafting and Implementation: Doug Ellis, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-2735; and Enforcement: Phil Stutzman, 711 Capitol Way, Room 206, Olympia, WA 98504, (360) 664-8853.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The implementation of the rule amendment has minimal impact on small businesses.

     A cost-benefit analysis is not required under RCW 34.05.328. The PDC is not an agency listed in subsection (5)(a)(i) of section 201. Further, the PDC does not voluntarily make section 201 applicable to the adoption of these rules pursuant to subsection (5)(a)(i) of section 201, and, to date, JARRC has not made section 201 application [applicable] to the adoption of these rules.

August 7, 2009

Douglas J. Ellis

Assistant Director

OTS-2529.2

AMENDATORY SECTION(Amending Order 85-04, filed 10/31/85)

WAC 390-28-100   Reporting modifications -- Possible qualifications -- Statement of financial affairs.   (1) One or more of the following((, or any of them,)) may be considered by the commission as possible qualifications for a reporting modification with respect to the statement of financial affairs, when it is in the public interest:

     (a) Banks, savings accounts, insurance policies - Financial interests. A candidate or official may be exempted from reporting any financial interest, otherwise required to be reported by RCW 42.17.241 (1)(b) ((of said act,)) if:

     (i) The financial institution or other entity in which the candidate or official ((having such)) held an interest does not engage in business in the state of Washington, or is not regulated in whole or in part by the office sought or held by such candidate or ((elected)) official((, and provided that));

     (ii) Such reporting would present ((actual difficulties)) a manifestly unreasonable hardship to the candidate or official; and

     (iii) The interest ((in question)) would present no actual or potential conflict with the proper performance of the duties of the office sought or held((, in the public interest)).

     (b) Income and ownership interests. A candidate or official may be exempted from reporting ((any of)) the information otherwise required by RCW 42.17.241 (1)(f) and (g), if:

     (i) Public disclosure would violate any legally ((recognizable)) recognized confidential relationship((: Provided,));

     (ii) The information ((in question)) does not relate to a business entity which would be subject to the regulatory authority of the office sought or held by ((such)) the candidate or ((elected)) official in whole or in part((: And provided further, That));

     (iii) Such reporting would present ((actual difficulties)) a manifestly unreasonable hardship to the candidate or official including but not limited to adversely affecting the competitive position of an entity in which the filer had an interest of ten percent or more as described in RCW 42.17.370(10); and

     (iv) The interest in question would present no actual or potential conflict with the performance of the duties of the office sought or held((, in the public interest)).

     (c) Immediate family members' interests. A candidate or official may be exempted from reporting ((any of)) the information otherwise required by RCW 42.17.241 for members of the immediate family of a candidate or ((elected)) official, if:

     (i) Such information relates to a financial interest held by such member under a bona fide separate property agreement, or other bona fide separate status; and, such financial interest does not constitute a present or prospective source of income to such candidate or ((elected)) official or to any other person who is dependent upon such candidate or ((elected)) official for support in whole or in part; or

     (ii) Reporting the name of an entity in which the immediate family holds an interest of ten percent or more would be likely to adversely affect the competitive position of the entity, under RCW 42.17.370(10).

     (d) Personal residence - Real property. Regarding reporting the information otherwise required by RCW 42.17.241 (1)(h) through (k):

     (i) Under WAC 390-24-200, the filer shall list the street address of each parcel, the assessor's parcel number, the abbreviated legal description appearing on property tax statements, or the complete legal description. Each property description shall be followed by the name of the county in which the property is located.

     (ii) No modification will be necessary if the filer describes the real property using one of the alternatives in WAC 390-24-200, plus the name of the county.

     (iii) A modification will be required if the filer seeks some other means to describe reportable real property including the personal residence of the filer. The commission may consider a modification, for example, when the filer or his or her immediate family member has received a threat, has a no contact order, or presents a similar personal safety situation.

     (e) Other. A candidate or official may be exempted from reporting ((any other matter)) information otherwise required under RCW 42.17.241 which would constitute ((an)) manifestly unreasonable hardship in a ((given)) particular case, when the ((matter reported)) circumstances presented would not indicate any actual or potential conflict with the proper performance of the duties of the office sought or held ((in the public interest)). Examples of members of professions often seeking modifications, and examples of other frequent situations that may result in modification requests, are described in commission interpretive statements.

     (2) "Bona fide separate property agreement" means an agreement or court order describing separate property in a valid:

     (a) Prenuptial agreement;

     (b) Separate property contract under chapter 26.09 RCW;

     (c) Separate property court decree under chapter 26.09 RCW;

     (d) Domestic partnership agreement under chapter 26.60 RCW;

     (e) Domestic partnership agreement as part of a notice of termination under chapter 26.60 RCW; or

     (f) Postnuptial agreement.

     (3) "Other bona fide separate status" means a valid written agreement or court decree recognizing the separate status of the parties under state law, including their individual property that is separate under state law.

[Statutory Authority: RCW 42.17.370(1). 85-22-029 (Order 85-04), § 390-28-100, filed 10/31/85; 80-02-106 (Order 80-02), § 390-28-100, filed 1/24/80; Order 64, § 390-28-100, filed 11/25/75; Order 62, § 390-28-100, filed 8/26/75; Order 24, § 390-28-100, filed 2/21/74.]

© Washington State Code Reviser's Office