WSLCB - Board Caucus
(January 14, 2020) - Summary

[ Event Details ]

Board members received training from the Executive Ethics Board and discussed the addition of a second patient representative to the Cannabis Advisory Council.

Here are some observations from the Tuesday January 14th Washington State Liquor and Cannabis Board (WSLCB) Board Caucus.

My top 3 takeaways:

  • Board members received a training presentation from the State’s Executive Ethics Board.
    • Kate Reynolds, the Executive Director of the Washington State Executive Ethics Board (EEB) and a former Assistant Attorney General (AAG) representing WSLCB Enforcement, visited the Board as part of the EEB’s training programs.
      • Reynolds protested the recording of the training session by Cannabis Observer during the Board’s public meeting. Citizen Observer Gregory Foster asserted the Open Public Meetings Act (OPMA) clearly authorized recordings, which Reynolds did not contest. WSLCB Executive Assistant Dustin Dickson left the meeting context to seek resolution and returned shortly thereafter to confer privately with Board Chair Jane Rushford and Reynolds outside of the board room. All returned amiably and the public meeting proceeded.
    • The EEB was created as part of Washington’s Ethics in Public Service Act (EPSA). Reynolds offered a “condensed version” of her agency’s new Executive Level Training in accordance with RCW 42.52.365. She had delivered the training at numerous state agencies and noted with “ethics, if you have more support from the top it does really trickle down in agencies and help state employees know what’s required of them” (audio - 40m).
    • Reynolds gave a quick background on EPSA, saying it hadn’t been changed much since enactment in 1995. The law required accountability around:
      • Access to confidential information such as health and banking data
      • Improper “use of public equipment or use of technology”
      • The use of state employee time
        • Reynolds elaborated, saying “the public really does expect you to be doing your job when you’re at your job and you’re within your working hours.”
      • State employees using their “position or authority” for personal gain
    • The EEB’s Board was described as “comprised of five members appointed by the Governor for five-year terms. Two of the five members must be current state employees; one an exempt employee and one a classified employee. One of the remaining three members of the Board is selected from names provided by the State Auditor’s Office, one from names provided by the Attorney General’s Office and one is a citizen-at-large.” Reynolds identified the Board’s current members.
      • Shirley Battan, Chair (Attorney General nominee)
      • Gerri Davis, Vice Chair (classified state employee, Department of Financial Institutions)
      • Lisa Marsh (exempt state employee, Board of Tax Appeals)
      • Anna Dudek Ross, citizen-at-large
      • Jan Jutte (State Auditor’s Office nominee and the EEB’s newest member)
    • Reynolds told the board that the EEB “cannot take personnel actions. They can’t fire, demote, dock pay, or do any of those personnel-type things.” However, she said the EEB can “fine individuals up to $5,000 per violation” though the average fine was “about $3,000” for “about 56 cases” among the “75 to 100” cases a year the EEB investigated.
      • Reynolds followed up with Cannabis Observer to share exact numbers: As I suspected, I was off on the case numbers. According to the EEB’s 2018 annual report, in 2018, the Board opened 62 new cases and had 27 open cases going into 2019. The Board found Reasonable Cause in 26 cases and no Reasonable Cause in five cases, issued 22 Board Dismissals and issued four Orders of Default. In 2018, the Board reviewed 15 Executive Director Dismissals, settled 23 cases with agreed stipulations and held one enforcement hearing.
    • Reynolds outlined the EEB’s main statutory missions:
      • Interpretation of current law, including through enforcement actions.
      • Offering “advisory opinions” to state agencies/employees.
      • Leading ethics training “free-of-charge for any state employee.” Some training occurred out-of-state, particularly regarding Washington’s “gift laws” for officials who “work a lot with the state.”
      • State agencies could also have “policies approved” by EEB review to provide a “safe harbor for those employees at the agency, meaning that if the action occurred under an approved policy by the Executive Ethics Board there won’t be a violation.”
    • WSLCB, like all state institutions, had an “ethics advisor” on staff as an initial contact for employees with ethics questions or concerns. WSLCB’s current ethics advisor is Claris Nnanabu, the agency’s Director of Human Resources, who was also present for the training.
    • Complaints to the EEB arrive from the public directly, often based on information from public record requests, and from agencies or employees including the State Auditor’s whistleblower program. Reynolds noted the majority of complaints come “from co-workers. Co-workers are uniquely positioned because they know exactly what people are supposed to be doing within the agency, what their job requirements are, when they’re supposed to be at work, and so forth.”
    • EEB investigations start with an “initial review” by Reynolds, then the EEB assigns “one of two investigators” to look into the situation and advise on actions. Reynolds or the Board can choose to dismiss the complaint or “find reasonable cause to believe there was a violation.” She said most cases result in settlements while a few proceed to trial-like administrative hearings before the EEB’s Board whose rulings that can be appealed in Washington’s Superior Courts.
    • Reynolds said that many cases revolved around “conflicts of interest/special privilege” while others pertained to accepting gifts or using state resources. She elaborated that "your state hat follows you out the door" during off hours as private citizens, so the EEB often looked for “benefit and bias” in employee work actions in addition to "private business transactions."
      • Reynolds offered an example of a state employee hiring people they supervised to work for them in a private company, as a “private interest in hiring these people and sustaining your outside business is going to conflict with your duties as a supervisor of these individuals.”
      • Volunteer activities” were another source of potential conflicts of interest as state employees could be “very sought-after to sit on boards and commissions and often it’s within the space where they work.”
      • Professional conflicts,” traditionally meaning acts of nepotism, cronyism, or bias in hiring or official actions, was another issue commonly investigated by the EEB. 
    • Reynolds pointed to EEB advisory policies 96-09 and 96-09A which provided guidance in situations of potential conflict of interest, recommending abstention and disclosure “sooner rather than later.” She also called attention to “screening memos” as an “underutilized” tool for state agencies to address and deal with a specific kind of conflict of interest. Having a policy in place greatly reduced the odds of EEB investigators finding a violation.
    • Reynolds said that “special privilege” had been described by someone as the “Do you know who I am?" clause in the state’s ethics law often seen in hiring arrangements.
    • Reynolds then indicated that employment after state service was another avenue with ethics limits enumerated in RCW 42.52.080. She advised people who felt the law may apply to them to be proactive in reaching out to the EEB. Most concerns in this area broke down into three areas:
      • Contract restrictions, such as getting subsequently hired under a contract designed by that state employee
      • Beneficial interest restriction, such as appropriating government funds for later use
      • Continuing restriction, where a state employee was promised a job contingent upon exerting influence in an official capacity
        • Reynolds then pointed to subsection (5) where an employee “substantially involved with that transaction” with the state leaves to work privately under that transaction.
    • Regarding gifts to state employees, Reynolds noted that the EEB received more questions about the rules than cases. She indicated the key questions in those circumstances were the gift’s value and the employee’s relation to the gift giver. The typical value limit on gifts was $50, though there were several exceptions including gifts from family members and between co-workers; promotional items; tokens of appreciation like a trophy or plaque; or food “at a hosted reception.” Reynolds noted that state employees could face stricter restrictions under subsection (4) of EPSA depending on who was giving the gift.
      • In discussing what constituted a “hosted reception,” Board Chair Jane Rushford noted that under OPMA quorum rules two WSLCB board members could attend the same hosted reception, but could not attend a “sit down dinner” without the event constituting a public meeting.
    • Reynolds said the EEB had “jurisdiction over individual state employees,” with less authority over gifts given to an agency or agency division as a whole. Her example were cookies given to WSLCB’s staff generally versus individuals.
    • Considering proper use of state resources, “You can’t use state resources for private benefit or gain,” she said, calling it the “baseline of the act.”
      • Reyonlds continued, saying a "de minimis” rule had been updated in 2016 regarding minor uses of state resources of negligible value that are “infrequent”; of “brief use”; have “no interference with official duties”; didn’t “compromise the security or integrity” of the state’s “property, information, or software”; and did not support a private business or outside organization. All of those factors must be present “for it to be considered de minimis use.”
      • Reynolds reported that these cases were the most common the EEB investigated using "three forensic computers" which the agency used to take hardware images to ascertain details of state computer usage.
      • Reynolds also stressed that the law did not allow state resources to be used for “political campaigns,” to “support a candidate, or support or oppose a ballot initiative.” The EEB considered “one email supporting a candidate is enough to trigger a violation.”
    • Bringing her abbreviated training to a close, Reynolds reminded the Board that EEB materials were easily accessible online.
  • A second patient representative was added to the Cannabis Advisory Council (audio - 3m).
    • WSLCB’s Cannabis Advisory Council (CAC) recently welcomed Lukas Barfield as its first patient representative in time for the group’s December 17th meeting. Barfield responded to the agency’s request for applicants meeting specific criteria.
    • Board Member Ollie Garrett said she’d interviewed a “second person for the medical position” on CAC and determined “we’re going to add her to the council.” Garrett explained that the new member was a retired nurse from eastern Washington who was “very knowledgeable in the medical cannabis world” and would join the CAC at its next meeting.
      • The official minutes for the meeting indicate the second patient representative was Juno Atkings.
  • Board Member Russ Hauge provided an update on the agency’s outreach to tribal nations and again signaled interest in the WSLCB’s interagency agreement with the Washington State Department of Agriculture.
    • Hauge had discussed a “better vehicle” for tribal engagement with the agency last November following 2019’s brief reconstitution of the Tribal Advisory Council. 
      • Hauge explained that he and Tribal Liaison Brett Cain had a “really good meeting” with the new chairman of the Puyallup Tribal Council, David Z. Bean, and a “lobbyist” for the tribe. Hauge said that Bean was new in his executive role for the Puyallup Tribe, but “he knows everybody else whose been active” through “the industries that we regulate.”
      • The Puyallup representatives suggested the agency coordinate with an existing unnamed organization so that both WSLCB and tribal representatives can “set agendas, call meetings” to “support one another.”
      • Hauge said Cain was “already following up” but noted that he had “got some pushback on the name 'Advisory Council'" as the group’s function was not explicitly advisory in nature. Garrett felt the same could be said of the CAC’s role for the agency. The Board briefly considered possible “recharacterization” of the groups’ titles, with “collaboration” and “partnership” being alternatives mentioned (audio - 6m).
    • At the end of the meeting after an executive session, Hauge mentioned his interest in learning more about the “agriculture spot-check program” conducted at the discretion of the Washington State Department of Agriculture (WSDA). He asked if there were objections to his delving deeper into that aspect of the interagency agreement between WSLCB and WSDA which he’d asked Cannabis Examiner Manager Kendra Hodgson about a week earlier. Hauge received no pushback from Rushford or Garrett (audio - 1m).