Fuller, Ken: Alleged violations of RCW 42.17A.635 for indirectly lobbying the legislature outside of authorized channels and .640 for failure to report a grass roots lobbying campaign (EY 19; Sep 19)

Case

#57847

Respondent

Ken Fuller

Complainant

Cody Hart

Description

A complaint was filed alleging that Ken Fuller, Executive Director of the Washington State Board of Registration for Professional Engineers and Land Surveyors (BORPELS), may have violated RCW 42.17A.635 by indirectly lobbying the legislature outside of authorized channels for public agency lobbying.   

BORPELS is and has been an independent state agency for years, which relied on the Department of Licensing  for certain administrative and other functions, including assistance with management of BORPELS's budget.  During the 2019 Legislative Session, legislation was proposed, House Bill 1176 and Senate Bill 5443, that if approved would make BORPELS an independent state agency responsible for its own budget and administrative functions.  

On December 12, 2019,  PDC staff held an Initial Hearing (Case status review) pursuant to RCW 42.17A.755, and WACs 390-37-060 and 390-37-071, and opened a formal investigation concerning this matter. 

Staff's investigation found that Mr. Fuller sent out emails using his BORPELS computer, state email address, and on state time that were either cc’d or emailed directly to individuals and organizations outside the permitted BORPELS communication channels in violation of RCW 42.17A.635.   While some of the emails were also sent or cc’d to BORPELS Board members, the emails contained “calls to action” and indirect lobbying appeals to contact legislators outside the agency’s normal communication email channel for lobbying as detailed in the Report of Investigation. 

In the responses to the allegations and staff's inquiries, Mr. Fuller estimated that “he spent 20 hours during the 2019 legislative session preparing and sending emails to non-BORPELS members requesting that they contact legislators or the Governor’s office to express support for pending legislation, SB 5443 and HB 1176.   The estimated time includes direct emails Mr. Fuller sent to non-BORPELS members, as well as cc’d copies to non-BORPELS members of emails that were primarily directed to BORPELS members, and also included the time spent Mr. Fuller developing those communications such as preparing sample communications to send to legislators and legislative member email address lists.  

Mr. Fuller estimated that he had an additional two hours of telephone conversations during the 2019 session requesting that non-BORPELS members contact legislators or the Governor’s office in support of the two bills.  He stated he believed this was the extent “for sake of argument, the PDC could consider indirect lobbying” and the emails provided "general information and answered others’ questions about the impact of the legislative proposals, but this was not connected with any request for legislative support and thus is not indirect lobbying.” 

The legislation was overwhelmingly approved during the 2019 Legislative Session, and BORPELS is an independent state agency with its own administrative, budget and management authority.

Mr. Fuller stated “I understand the complaint…also alleged that I acted improperly by directly lobbying legislators and the Governor's office in support of HB 1176 and SB 5443. All such direct lobbying was for official purposes and through official channels and was thus lawful. “The complaint filed also alleged that I engaged in a grass roots lobbying campaign… My conduct did not amount to such a violation, because no covered expenditures were made to present a program to the public within the meaning of the section.  Last, the complaint filed alleged that I personally benefited from the proposed legislation and abused my authority to negotiate with private organizations in exchange for their legislative support." 

“There is no merit to these allegations. I hereby enter this (SOU) with respect to indirect lobbying violations in consideration of and with the understanding that the PDC will close the complaint with no findings of violation with respect to the other complaint allegations. Concurrent herewith, I am also executing a Statement of Understanding as it relates to the failure of BORPELS to timely file lobbying reports for Q1/2019 and Q2/2019, which the PDC raised on its own initiative in the course of investigating the complaint.”

On April 24, 2020, PDC received a completed Statement Of Understanding (SOU) and a $150 civil penalty payment from Ken Fuller. The $150 civil penalty assessed against Mr. Fuller in this matter was done in accordance with WAC 390-37-143 (Brief Enforcement Penalty Schedule).  By completing the SOU, Mr. Fuller acknowledged violations of RCW 42.17A.635 by using BORPELS equipment, resources and staff time to engage in an indirect lobbying effort in support of legislation.

Based on this information and the facts, the PDC has dismissed the complaint in accordance with RCW 42.17A.755(1). 

Disposition

Resolved through Statement of Understanding

Date Opened

September 26, 2019

Areas of Law

RCW 42.17A.635, RCW 42.17A.640

Documents

• Ken Fuller and BORPELS ROI with Exhibits (Cody Hart) PDC Cases 57847 & 67383.pdf
• 57847 Fuller Ken Response.pdf
• Ken Fuller & BORPELS Complaint Return Letter with SOU's and Cover Ltr (Hart) PDC Cases 57847 & 67383.pdf
• 57847 Fuller Ken Complaint Supplement.pdf
• Statement of Understanding - PDC Case 57847 - Ken Fuller.pdf
• 57847 Fuller Ken Complaint.pdf

Penalties