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AGENCY PROCEDURAL RULES
WAC
292-09-010 Purpose of this chapter. The purpose of this chapter
is to provide rules implementing the Ethics in Public Service Act (chapter
42.52 RCW) according to procedures prescribed in Article IV, Section
31, of the Constitution of the state of Washington and chapter 2.64
RCW for the commission on judicial conduct.
All proceedings involving state
employees of the judicial branch of state government, except "judges"
as defined in Commission on Judicial Conduct Rules of Procedure(CJCRP),
shall proceed under the rules set forth in this chapter. All proceedings
involving "judges" as defined in RCW 2.64.010 and the Code of Judicial
Conduct shall proceed exclusively under the rules set forth in the CJCRP.
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WAC
292-09-020 Role of the commission on judicial conduct. The commission
on judicial conduct is constitutionally created to investigate and consider
complaints concerning judges. The commission also has jurisdiction to
investigate and consider complaints of violations of the Ethics in Public
Service Act (chapter 42.52 RCW) or rules adopted under it, concerning
state employees of the judicial branch.
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WAC
292-09 030 Organization of the commission on judicial conduct. Six
members of the commission must be present to take action at a commission
business meeting. The adoption of or amendment to the rules of the commission
shall require the affirmative vote of six members of the commission.
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WAC
292-09-040 Definitions. In these rules:
"Adjudicative proceeding" means
a proceeding before the commission in which the person involved is given
notice and an opportunity to be heard after a determination of reasonable
cause that a violation of chapter 42.52 RCW or rules adopted under it
has been or is being committed.
"Administrative law judge" means
a person assigned by the office of administrative hearings in accordance
with chapter 34.12 RCW and appointed by the commission to hear and take
evidence with respect to charges against a state employee of the judicial
branch.
"Commission" means the commission
on judicial conduct.
"Complainant" means the organization,
association, or person who makes a complaint alleging violation of chapter
42.52 RCW or rules adopted under it.
"Complaint" means a written statement
on a form provided by the commission alleging facts which may upon investigation
lead to a finding of a violation of chapter 42.52 RCW or rules adopted
under it.
"Determination" means a written
statement finding that there is or that there is not reasonable cause
to believe that a violation of chapter 42.52 RCW or rules adopted under
it has been or is being committed.
"Employee" means a state employee
or state officer (as defined in RCW 42.52.010) of the judicial branch
of state government, except "judges" (as defined in RCW 2.64.010 and
the Code of Judicial Conduct), or the employee's attorney, as the context
suggests.
"Enforcement action" means the imposition
of sanctions, which may include one or more of the following:
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A reprimand;
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A recommendation
that the employing agency commence disciplinary action against an
employee; and/or
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An order for payment
of any damages, civil penalties, and/or costs as permitted by chapter
42.52 RCW.
Any order for payment
shall also include a reprimand.
"Fact-finder" means the commission
or an administrative law judge appointed by the commission.
"Hearing" means a public hearing
conducted in an adjudicative proceeding.
"Meeting" means a business meeting
of the commission for any purpose other than a public hearing or executive
session involving the investigation or consideration of a complaint.
"Member" means a member of the
commission and includes alternates acting as members.
"Public member" means a member of
the commission who is neither a lawyer nor a judge.
"Reprimand" means an enforcement
action of the commission that finds that the conduct of the respondent
violates chapter 42.52 RCW or rules adopted under it. A reprimand may
include a requirement that the respondent follow a specified corrective
course of action. The commission shall issue a written reprimand and
may require the respondent to appear personally before the commission
for a public reading of the reprimand. The commission shall provide
a copy of the reprimand to the respondent's employing agency.
"Respondent" means a state employee
of the judicial branch who is the subject of a complaint, or the employee's
attorney, as the context suggests.
"Staff" means the employees, or
others under personal service contract or agreement, engaged to perform
commission duties and to exercise commission powers.
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WAC
292-09-050 Complaints and investigations.
(1) Any organization, association,
or person, including a member of the commission, may make a complaint
to the commission alleging violation of chapter 42.52 RCW or rules
adopted under it. A complaint shall be made in writing on a form provided
by the commission. A complaint may be made personally or by the complainant's
attorney.
(2) Upon receipt of a complaint,
the commission staff shall investigate and evaluate the allegations.
The investigation shall be limited to the facts alleged in the complaint.
On every complaint received, the commission staff shall make a written
recommendation that there is or that there is not reasonable cause
to believe that a violation of chapter 42.52 RCW or rules adopted
under it has been or is being committed. The commission shall make
a written determination whether there is reasonable cause based
upon the complaint and the recommendation. A copy of the determination
shall be provided to the complainant and to the respondent. If the
determination concludes that there is no reasonable cause, a copy
shall also be provided to the attorney general.
(3) Complaints pursuant to RCW
42.52.450 shall be investigated by the attorney general. As appropriate,
pursuant to RCW 42.52.470, the commission may refer a complaint
to the employing agency, the attorney general, or the prosecutor.
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WAC
292-09-060 Determination of reasonable cause. If the commission
determines that reasonable cause exists that the respondent has violated
chapter 42.52 RCW or rules adopted under it, the commission shall
schedule a public hearing on the merits of the complaint.
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WAC
292-09-070 Respondent's answer to complaint. The respondent shall
file a written answer to the complaint not later than thirty days after
receipt of the determination that there is reasonable cause. Failure
to file a written answer shall be deemed an admission to the facts alleged
in the complaint and the determination.
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292-09-080 Stipulated dispositions. Any matter before the commission
may be disposed of by a stipulation at any stage of the proceeding.
The respondent and a member of the commission staff shall sign the stipulation
before presentation to the commission. The commission may impose any
terms and conditions deemed appropriate. If the stipulation is rejected
by the commission, the stipulation shall be withdrawn and cannot be
used by or against the respondent in any proceeding. When a stipulation
which disposes of a complaint is accepted by the commission, the commission
shall provide a copy of the stipulation to the attorney general and
the complainant.
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WAC
292-09-090 Adoption of model rules of procedure. Part IV--Adjudicative
Proceedings--of chapter 34.05 RCW and the model rules of procedure,
chapter 10-08 WAC, adopted by the chief administrative law judge pursuant
to RCW 34.05.250, as now or hereafter amended, are hereby adopted for
use by the commission. In the case of conflict between chapter 34.05
RCW or the model rules of procedure and procedural rules adopted in
this chapter, the procedural rules adopted by the commission shall take
precedence.
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WAC
292-09-100 Presiding officer.
(1) In matters involving an adjudicative
proceeding, the commission may designate as presiding officer a member
of the commission, or an administrative law judge assigned by the
office of administrative hearings under the authority of chapter 34.12
RCW.
(2) A person who
has served as an investigator, prosecutor, or advocate in any stage
of an adjudicative proceeding, or someone who is subject to the authority
or direction of such a person, may not serve as a presiding officer
in the same proceeding.
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WAC
292-09-110 Discovery. The statutes and court rules regarding pretrial
procedures in civil cases in superior courts of the state of Washington
shall be used where applicable unless in conflict with this chapter.
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WAC
292-09-120 Discovery -- Authority of presiding officer. The presiding
officer may permit discovery in an adjudicative proceeding. The presiding
officer shall have the power to control the frequency and nature of
discovery permitted and to order conferences to discuss discovery issues.
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292-09-130 Fact-finding hearing.
(1) Upon filing of a determination
of reasonable cause, a public fact-finding hearing will be scheduled
at a location and time selected by the commission. The respondent
shall have at least twenty days notice of the hearing and shall appear
at the hearing in person, with or without counsel.
(2) Where there is a possibility
that the respondent may be liable for a total amount of penalty and
costs of more than five hundred dollars, the respondent may choose
to have an administrative law judge conduct the hearing. The respondent
shall indicate such choice in writing within thirty days after receipt
of the determination. Notwithstanding the respondent's choice, the
commission may, on its own initiative, retain an administrative law
judge.
(3) Testimony taken at the hearing
shall be under oath and recorded.
(4) The case in support of the
complaint shall be presented at the hearing by commission staff. After
the staff's case in chief, the respondent shall have the opportunity
to present evidence. Both parties shall have the opportunity to cross-examine
witnesses.
(5) If, based upon a preponderance
of the evidence, the fact-finder finds that the respondent has violated
chapter 42.52 RCW or rules adopted under it, the fact-finder shall
file an order stating findings of fact, conclusions, and an enforcement
action.
(6) If, based upon all the evidence,
the fact-finder finds that the respondent has not engaged in an alleged
violation of chapter 42.52 RCW or rules adopted under it, the fact-finder
shall file an order stating findings of fact, conclusions, and an
order dismissing the complaint.
(7) Civil penalties included within
an enforcement action shall be established based upon the following
nonexclusive aggravating and mitigating factors:
(a) Whether the violation is
an isolated instance or evidences a pattern of conduct;
(b) The nature, extent, and
frequency of occurrence of the violation;
(c) Whether the employee acknowledged
or recognized that the violation occurred;
(d) Whether the employee has
evidenced an effort to change or modify the conduct that resulted
in a violation;
(e) The length of service of
the employee;
(f) Whether there have been
prior violations of ethics rules by the employee;
(g) The effect the violation
has upon the integrity and respect for the judiciary; and
(h) The extent to which the
employee exploited the position to satisfy personal desires.
(8) If the fact-finder is not
the commission, the decision shall be entered as an initial order.
Unless the respondent or the commission's staff files a petition for
review of an initial order within twenty days of service of the initial
order, the commission may adopt the initial order as its final order
without further notice to the respondent. If the commission, upon
its own motion, determines that the initial order should be reviewed,
notice shall be given to the respondent.
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WAC
292-09-140 Documents--Filing. Any document filed with the commission
under the provisions of the Administrative Procedure Act, chapter 34.05
RCW; model rules of procedure, chapter 10-08 WAC; and this chapter shall
be filed with the Commission on Judicial Conduct, 210 11th Avenue SW,
Suite 400, Olympia, WA 98504 or P.O. Box 1817, Olympia, WA 98507. Unless
otherwise required by law, filing of a document with the commission
shall be made personally, by first class mail, by certified or registered
mail, by commercial parcel delivery company, or by facsimile and same-day
mailing or original showing same-day postmark. Filing shall occur within
the period of time specified for filing by statute, rule, or order.
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WAC
292-09-150 Witness fees. All witnesses shall receive fees and expenses
in the amount allowed by law for witnesses in the superior court. The
person calling the witness shall be responsible for paying the witness's
fees and expenses.
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292-09-160 Subpoenas.
(1) Investigative. The commission
may subpoena witnesses, compel their attendance, administer oaths,
take testimony of a person under oath, or require production for examination
of any books, accounts, records, certificates, or papers relating
to any matter under investigation or in question before the commission.
Subpoenas may be issued by any member of the commission.
(2) Adjudicative. Subpoenas shall
be issued and enforced as provided by chapter 10-08 WAC,
chapter 34.05 RCW, and chapter 42.52 RCW, as appropriate.
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WAC
292-09-170 Judicial review. Except as otherwise provided by law,
judicial review of a commission order that a violation of chapter 42.52
RCW or rules adopted under it has occurred is governed by the provisions
of chapter 34.05 RCW applicable to review of adjudicative proceedings.
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WASHINGTON ADMINISTRATIVE
CODE
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CHAPTER 292-11
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ETHICS IN PUBLIC SERVICE
AGENCY SUBSTANTIVE RULES
WAC
292-11-010 Purpose of this chapter. The purpose of this chapter
is to provide substantive rules implementing the Ethics in Public Service
Act (chapter 42.52 RCW). The substantive rules in this chapter are intended
to apply to all state employees of the judicial branch of state government,
including "judges" as defined in the Commission
on Judicial Conduct Rules of Procedure (CJCRP).
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WAC
292-11-020 Definitions.
(1) The term "measurable expenditure"
as used in RCW 42.52.180(2)(b) shall mean an expenditure or consumption
of public resources having more than a de minimis cost and value.
(2) As used herein, the term "de
minimis cost and value" shall refer to a cost and/or value of the
actual use of public resources that is sufficiently small to be reasonably
disregarded as negligible or trifling.
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