GIFTS TO STATE EMPLOYEES UNDER EXECUTIVE CONFLICT OF INTEREST ACT

CONFLICT OF INTEREST ‑- EMPLOYEES ‑- STATE ‑- GIFTS TO STATE EMPLOYEES UNDER EXECUTIVE CONFLICT OF INTEREST ACT

Unless modified by regulations promulgated by the governor under RCW 42.18.270, a "thing of economic value" as defined in RCW 42.18.140, prohibiting certain gifts to state employees, includes even those items of tangible personal property which are of minimal monetary value.

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                                                                 February 5, 1976

Honorable R. Ted Bottiger
State Senator, Second District
Legislative Building
Olympia, Washington 98504                                                                                                                 Cite as:  AGLO 1976 No. 9

Dear Sir:

            By letter dated January 30, 1976, you have directed our attention to RCW 42.18.140, a part of the executive conflict of interest act, which defines the term "a thing of economic value" as follows:

            "(1) Any loan, property interest, interest in a contract or other chose in action, and any employment or other arrangement involving a right to compensation;

            "(2) Any option, irrespective of the conditions to the exercise of such option; and

            "(3) Any promise or undertaking for the present or future delivery or procurement.

            "In the case of an option, promise, or undertaking, the time of receipt of the thing of economic value shall be deemed to be, respectively, the time the option becomes fixed, regardless of the conditions of its exercise, and the time the promise of undertaking is made, regardless of the condition to its performance."

            You have then asked whether, under this definition, it is possible to exclude an item of tangible personal property on the basis of the minimal monetary value thereof.

                                                                     ANALYSIS

            In order to respond to this question we must first make note of the substantive section of chapter 42.18 RCW under which the above defined term is legally significant.  RCW 42.18.200 provides that:

             [[Orig. Op. Page 2]]

            "(1) No state employee shall received [[receive]], accept, take, seek, or solicit, directly or indirectly, any thing of economic value as a gift, gratuity, or favor from any person if such state employee has reason to believe the donor would not give the gift, gratuity, or favor but for such employee's office or position with the state.

            "(2) No regular state employee shall receive, accept, take, seek, or solicit, directly or indirectly, any thing of economic value as a gift, gratuity, or favor from any person, or from any officer or director of such person, if such state employee has reason to believe such person:

            "(a) Has or is seeking to obtain contractual or other business or financial relationships with such employee's agency; or

            "(b) Conducts operations or activities which are regulated by such employee's agency; or

            "(c) Has interests which may be substantially affected by such employee's performance or nonperformance of official duty.

            "(3) Exceptions to the provisions of this section may be made by regulations issued pursuant to RCW 42.18.240 in situations where the circumstances do not lead to the inference that the official judgment or action of the state employee receiving, directly or indirectly, the gift, gratuity, or favor was intended to be influenced thereby."

            Note, particularly, subsection (3) of RCW 42.18.200.  Although this statute, like RCW 42.18.140, supra, draws no distinction between those things of significant economic value and those of slight or nominal economic value, it would be possible for the receipt of things of  [[Orig. Op. Page 3]] relatively small economic value to be excepted from the prohibition of RCW 42.18.200, under designated circumstances, if such were provided for by administrative regulations ". . . issued pursuant to RCW 42.18.240 . . ."  RCW 42.18.240, in turn, reads as follows:

            "(1) Subject to the provisions of applicable laws, the governor shall be responsible for the establishment of appropriate standards to protect against actual or potential conflicts of interest on the part of state employees and for the administration and enforcement of this chapter and the regulations and orders issued hereunder.

            "(2) The governor may, and shall when required by this chapter, issue regulations carrying out the policies and purposes thereof.  Such regulations shall take precedence over any regulations issued by agency heads pursuant to RCW 42.18.250.

            "(3) The governor shall have particular responsibility for the enforcement of this chapter as applied to employees of the office of the governor and to agency heads, and for this purpose the governor shall have all the powers of an agency head.

            "(4) The governor may conduct investigations of facts, condition or conditions, practices, or other matters in carrying out his responsibilities and powers under this section.  In connection with any such investigation the governor shall have all the powers with respect to oaths, affirmations, subpoenas, and witnesses as are provided in RCW 42.18.270(2).  The governor may delegate any or all of his powers under this subsection (4) to any officer designated by him, either generally or in particular instances."

            We are not, however, aware of any regulations dealing with this subject which have yet been adopted by, or under the direction of, the governor in the manner contemplated by this last quoted statute.

             [[Orig. Op. Page 4]]

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

PHILIP H. AUSTIN
Deputy Attorney General