EXECUTIVE ETHICS BOARD

(1) ((RCW 42.52.180(1) provides that no state officer or state employee may use or authorize the use of facilities of an agency, directly or indirectly, for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition. Facilities of an agency includes use of state officers or state employees during working hours. The purpose of the rule is to define the term "working hours" for officers and employees of the executive branch of state government. The prohibition in RCW 42.52.180(1) only applies during working hours.)) Nothing in RCW 42.52.180(1) or this rule prohibits a state officer or state employee from assisting in a campaign during nonworking hours((. An)), provided that the state officer or state employee who ((assists in a campaign)) engages in activity that would fall under RCW 42.52.180(1) during nonworking hours ((may)) does not use any facilities of an agency.

(2) Some state officers and state employees occupy positions that have fixed schedules with the same beginning and ending times. For state officers and state employees with fixed schedules, working hours are the hours between the starting and ending times of their ((positions.)) scheduled working hours. State officers and state employees with fixed schedules may not ((assist in a campaign)) engage in activity that would fall under RCW 42.52.180(1) during these fixed working hours, unless they are on a lunch break under ((section four)) subsection (5) of this rule or on ((annual)) leave under ((section five)) subsection (6) of this rule.

(3) Some state officers and state employees occupy positions that do not have fixed schedules with the same starting and ending times. For state officers and state employees who do not have fixed schedules, working hours are defined as ((either)):

(a) The hours set forth in any policy on working hours adopted by ((an agency. Agencies have flexibility in determining working hours for the officers and employees to meet their unique needs so long as the time considered to be working hours is clearly established. If an agency does not adopt a working hours policy, working hours shall be 8:00 a.m. to 5:00 p.m. Monday through Friday when state agencies are generally open to the public)) their agency; or

(b) If the agency has not adopted a working hours policy, 8:00 a.m. to 5:00 p.m. Monday through Friday; or

(c) The work schedule for ((an)) the state officer or state employee approved by ((the)) their agency((, if it is different from the agency policy or, if the agency has not adopted a policy, 8:00 a.m. to 5:00 p.m. Monday through Friday.

Example 5: An employee works for an agency that is open to the public 8:00 a.m. to 5:00 p.m. Monday through Friday. Although the agency is open to the public at these times, the work of the agency goes on twenty-four hours a day. The agency has adopted a working hours policy that divides working hours into three shifts: The day shift (8:00 a.m. to 5:00 p.m.); swing shift (3:00 p.m. to 12:00 a.m.) and midnight shift (12:00 a.m. to 9:00 a.m.). An employee without a fixed schedule is assigned to the day shift (8:00 a.m. to 5:00 p.m.) Monday through Friday. However, the agency has approved a different work schedule for this employee. Instead of the usual day shift of 8:00 a.m. to 5:00 p.m., the employee works 7:00 a.m. to 4:00 p.m. Since the employee does not have a fixed schedule the employee, sometimes comes to work before 7:00 a.m. and sometimes after 7:00 a.m. Similarly, the employee may leave work before or after 4:00 p.m. This employee's working hours are 7:00 a.m. to 4:00 p.m. Monday through Friday. The employee may not assist in a campaign during these hours unless the employee is on a lunch break or on annual leave. The employee may assist in a campaign before 7:00 a.m. or after 4:00 p.m. Monday through Friday, or on Saturday or Sunday)).

(4) Working hours do not include state legal holidays unless the state officer's or state employee's work schedule requires the state officer or state employee to work on a state legal holiday.

(5) Working hours do not include the time ((approved and)) designated for ((an)) a state officer's or state employee's lunch break. A lunch break is between 12:00 p.m. and 1:00 p.m., unless the agency has designated a different time in a working hours policy or has approved a different lunch break as part of ((an)) the state officer's or state employee's work schedule. If ((an)) a state officer or state employee engages in ((campaign)) activity that would fall under RCW 42.52.180(1) during the lunch break, the state officer or state employee may not make use of any of the facilities of the agency.

(6) Working hours do not include the time in official leave status ((if the leave has received advance documented or written authorization. An officer or employee on leave may assist in a campaign.

Example 8: An employee works for an agency that is open to the public 8:00 a.m. to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on working hours. An employee without a fixed schedule usually works 8:00 a.m. to 5:00 p.m. Since the employee does not have a fixed schedule the employee sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m. Similarly, the employee may leave work before or after 5:00 p.m. Since the agency has not adopted a policy on working hours, this employee's working hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. In this agency employees without fixed schedules take leave during a month and then get written authorization for the leave at the end of the month. An employee takes leave Monday through Friday and assists in a campaign. At the end of the month the employee obtains written authorization for the leave. The employee has assisted in a campaign during working hours since the employee did not obtain written authorization prior to taking leave to assist in a campaign. To assist in a campaign while on leave, the employee must obtain written authorization prior to going on leave)). If a state officer or state employee engages in activity that would fall under RCW 42.52.180(1) while on leave, the state officer or state employee may not make use of any of the facilities of the agency.

(7) The definition of working hours also includes any time ((an)) a state officer or state employee is actually working((. For an officer or employee with a fixed schedule, working hours includes overtime when the officer or employee is working additional hours other than those in the fixed schedule. For an officer or employee without a fixed schedule, working hours include any time the officer or employee is working.

Example 9: An employee works for an agency that is open to the public 8:00 a.m. to 5:00 p.m. Monday through Friday. The agency has not adopted a policy on working hours. An employee without a fixed schedule usually works 8:00 a.m. to 5:00 p.m. Since the employee does not have a fixed schedule, the employee sometimes comes to work before 8:00 a.m. and sometimes after 8:00 a.m. Similarly, the employee may leave work before or after 5:00 p.m. Since the agency has not adopted a policy on working hours, this employee's working hours are 8:00 a.m. to 5:00 p.m. Monday through Friday. On a Monday the employee works from 8:00 a.m. to 9:00 p.m. Even though the employees working hours are 8:00 to 5:00 the time spent working between 5:00 p.m. and 9:00 p.m. are working hours because the employee is working for the agency during this time)); for example overtime.

(8) The governor, lieutenant governor, secretary of state, treasurer, auditor, attorney general, superintendent of public instruction, commissioner of public lands, and the insurance commissioner are ((state officers in the executive branch subject to RCW 42.52.180. These officers are)) elected to office and hold office for a term of four years and until their successors are elected and qualified. Since these officers are elected to a term of office, they do not have working hours and may ((assist in a campaign)) engage in activity that would fall under RCW 42.52.180(1) at any time. However, if these officers do ((assist in a campaign)) engage in activity that would fall under RCW 42.52.180(1), they may not make use of any facilities of an agency except as provided in RCW 42.52.180(2).

(3) Elected officials regularly expend public funds to respond to inquiries from the media, constituents and other persons on matters unrelated to ballot propositions. RCW 42.52.180 (2)(b) permits elected officials to respond to such inquiries regarding ballot propositions without an actual measurable expenditure of public funds.)) For purposes of RCW 42.52.180 (2)(b) "measurable expenditure" means ((an expenditure or)) any separately identifiable cost or specific portion of a cost ((incurred by the agency)) that is beyond the normal and regular ((expenditures or)) costs incurred by the agency in responding directly to ((inquiries from the media, constituents and other persons on matters unrelated to ballot propositions.

Example 4: A statewide elected official writes a letter to the editor of a newspaper stating the official's position on a ballot proposition. The subject of the ballot proposition does not fall within the normal and regular conduct of the official's agency nor within the official's constitutional or statutory responsibilities. In the course of preparing the letter the official has the assistance of staff and uses office space, equipment, stationery and postage. This is an ethical violation. The official has used the facilities of the agency and the exception in RCW 42.52.180 (2)(b) does not apply because the official is not responding to an inquiry)) a specific inquiry from the media, a constituent, or any other person.

State officers and state employees are encouraged to seek an advisory opinion whenever they have questions concerning ((ethical standards or potential conflicts of interest)) situations which implicate the Ethics in Public Service Act and corresponding rules. 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)) must be written ((and signed,)) and addressed to either the chair of the board or the executive director. ((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 executive director ((shall,)) will acknowledge a request for an advisory opinion within fifteen calendar days of receipt((, acknowledge the request)). Persons requesting advisory opinions ((shall)) will be notified of the status of the request at thirty day intervals until final action is taken.

(3) The board ((shall)) will 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 executive director)).

(5) A person requesting an advisory opinion may, ((upon)) after receiving the board approved opinion, petition the board for reconsideration within thirty days of the approval date of the advisory opinion ((is issued)) if the person believes that the advisory opinion is erroneous in factual detail. A petition for reconsideration ((shall)) must be written and ((signed, and shall)) must 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)) will 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 executive director to provide ethics advice to any state officer, state employee, or other person; however, a state officer, state employee, or other person may only rely on written ethics advice. In providing such advice, the executive director may issue a written nonbinding staff analysis. A nonbinding 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 executive director ((shall)) will provide a disclaimer to the person requesting the nonbinding staff analysis that the advice is solely the opinion of the executive director 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 written advice from the executive director.

(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)).

(1) ((Purpose - The primary purposes of the Ethics in Public Service Act are to prevent conflicts of interest that impair the impartial and independent judgment of state officers and employees and the misuse of state position for private gain. Conflicts of interest occur whenever a state officer or state employee:

(3))) Approval required - Under RCW 42.52.120(2), a state officer or state employee must receive board approval before entering into, or obtaining a beneficial interest in, a contract or grant with a state agency only if the process for awarding the contract or grant was not open and competitive, or, whenever only one bid or application was received. The review of the contract or grant is to determine whether performance under the contract or grant by the state employee or state officer is in accordance with the Ethics in Public Service Act.

(((4))) (2) Application for approval - State officers and state employees seeking the approval of the board for a contract, grant application, or outside employment with a state agency ((shall)) must provide the following information to the executive director no later than thirty days prior to the commencement of the contract:

(a) A description of current official duties and responsibilities;

(b) A statement of the work to be performed and a copy of the contract;

(c) The duration and dollar value of the contract, if applicable;

(d) A statement that no state resources will be used to perform the outside employment or to fulfill the contract or grant;

(e) A description of how the work will be performed without the use of state resources; and

(f) A statement that the employing agency has reviewed or approved the outside contract under applicable rules or policies, except when requesting a conditional approval as provided in subsection (((5))) (3)(b) of this section.

(((5))) (3) Approval process - The executive director ((shall)) or designee will review the contract or grant application ((terms)) and related documents and ((may)) determine whether there could be a potential conflict with RCW 42.52.120(1) or other applicable provisions of the Ethics in Public Service Act ((as noted in subsection (2) of this section)). If the executive director or designee determines:

(a) There would be no potential conflict under RCW 42.52.120(1) or other applicable provisions of chapter 42.52 RCW, the executive director ((shall)) will approve the contract or grant application((.));

(b) There would be no potential conflict under RCW 42.52.120(1) or other applicable provisions of chapter 42.52 RCW but the contract or grant application has not been approved by the appointing authority ((pending a board review)), the executive director may conditionally approve the contract or grant application; or

(c) There could be a potential conflict under RCW 42.52.120(1) or other applicable provisions of chapter 42.52 RCW, the executive director ((shall)) will refer the ((contract or grant application)) matter to the board for approval or disapproval.

(((6))) (4) Contract or grant amendments(( - )). If a contract or grant has been amended or the scope of work altered, and the effect of the amendment or alteration may create a potential conflict of interest under RCW 42.52.120(1) or other applicable provisions of chapter 42.52 RCW, ((the)) a state officer or state employee must resubmit the contract or grant to the board at least fifteen days prior to commencement of work under the amended or altered contract or grant.

(((7))) (5) Series of similar contracts(( - )) or grants. If a state officer or state employee anticipates receiving a series of substantially identical contracts or grants with a state agency ((is anticipated, they)), the state officer or state employee may request that the board preapprove such contracts or grants. Preapproval ((shall)) will be effective for the period of one calendar year, after which the state officer or state employee ((shall)) must resubmit the request.

(((8))) (6) Exemptions, preapproved contracts or grants(( - An)). A state officer or state employee who has a contract or grant or a beneficial interest ((therein)) in a contract or grant which is preapproved by the board under this section is not required to file an application for approval of the contract. However, ((the)) a state officer or state employee is responsible for determining that the contract or grant would not conflict with RCW 42.52.120(1) or other applicable provisions of chapter 42.52 RCW. Provided that the applicable conditions in RCW 42.52.120(1) are met, the following contracts are ((approved)) preapproved by the ((executive ethics)) board:

(a) A contract or grant ((whereby the)) in which a state officer or state employee receives assistance through state programs or federal programs administered by the state when they are entitled to receive such assistance by law and on the same basis as similarly situated citizens, and when the state officer or state employee does not exercise discretionary judgment with regard to an assistance program for which he or she is otherwise eligible;

(b) A contract to perform teaching duties at a ((bona fide)) community college, vocational-technical school, or institution of higher learning, provided no state resources are used to perform the duties; there is no conflict with the performance of official duties; and the state officer or state employee did not use his or her official position to influence the contract of employment;

(c) A contract held by a spouse, in which the state officer or state employee has a beneficial interest, with a state agency, provided that the state officer or state employee did not participate in the contract;

(d) A contract that was received by ((an)) a state officer or state employee of an institution of higher education to provide expert witness services in state litigation provided no ((higher education)) state resources are used to perform the duties; there is no conflict with the performance of official duties; and the state officer or state employee did not use his or her official position to influence the contract((; and

(7) Filing required - Final contracts or grants reviewed under this rule ((shall)) must be filed with the ((executive director)) board within thirty days of execution. An employee who is awarded a contract or grant preapproved under subsection (((8)(a) through (c))) (6)(a) through (c) of this section ((shall)) must file a copy of the contract or grant with the board.

(((10))) (8) Filing exemptions - ((An)) A state officer or state employee of an institution of higher education ((or of the Spokane Intercollegiate Research and Technology Institute)) who is awarded ((a)) an expert witness contract ((or grant preapproved)) under subsection (((8)(d) or (e))) (6)(d) of this section is not required to file a copy of the contract ((or grant)) with the board. A copy of all expert witness contracts ((awarded)) under subsection (((8))) (6)(d) of this section ((shall)) must be maintained by the office of the attorney general subject to review by board staff. ((Those state institutions of higher education or the Spokane Intercollegiate Research and Technology Institute who award contracts or grants under RCW 42.52.030(2) shall maintain copies of all contracts or grants approved under subsection (8)(e) of this section. In lieu of filing the contracts with the board, these institutions shall provide the board by September 1 of each year a brief summary of all such contracts or grants awarded in the previous fiscal year.))