State senator Doug Ericksen’s EPA employment: An ethical and potential legal dilemma / Noisy Waters Northwest, Sandy Robson

Ericksen Emergency exit

Senator Ericksen positioned by the Emergency Exit.  Screenshot from October 10, 2014, YouTube video, Doug Ericksen – Seth Fleetwood Debate at the Northwest Business Club

April 4, 2017  Sandy Robson

After Washington state Senator Doug Ericksen (R-Ferndale) has professed to news media multiple times that he did not know what his Environmental Protection Agency (EPA) compensation/salary amount would be for his appointment to the agency in January, by the Trump Administration, it appears that he is either not telling the truth about that, or that he never looked at his employment letter from the EPA. Either case does not bode well for Senator Ericksen. 

According to Senator Ericksen’s EPA employment letter dated January, 19, 2017, obtained through Freedom Of Information Act (FOIA) public records, it is stated on page 1 that his “annual salary will be $161,900.”

The letter confirms that Senator Ericksen was made aware of his EPA compensation amount before his appointment/employment officially started on January 21, 2017.

In a January 31, 2017, article published in The Bellingham Herald, Senator Ericksen was questioned about his EPA position salary. The article reported:

“As a senator, Ericksen is paid $45,474 for the year, and can collect a $120 per diem.

“Ericksen said Tuesday that he will continue to collect his full salary while doing both jobs, but would not take his per diem when he is not in Olympia.

“When asked whether he also was taking a salary as communications director [with the EPA] , Ericksen joked that he thought so, but wasn’t sure since he hadn’t been paid yet.”

According to the January 31 article, during the month of January, Senator Ericksen had missed 75% of legislative committee meetings he was scheduled to attend.

After receiving a good deal of flak from his constituents about his dual role as a state lawmaker and an appointee to the EPA, Senator Ericksen scheduled a press conference in Olympia, Washington, for February 1, 2017. His February 1 press conference appeared to be in response to the rash of news coverage about the growing number of disgruntled constituents in his legislative district in Whatcom County, Washington, who felt (and still feel) that his EPA job is causing him to shirk a significant portion of his legislative duties.  He tried to reassure his constituents, via his press conference, that he could successfully juggle his state senate job and his EPA job.

seattle times ericksen juggle trump job

Ironically, the February 1 press conference had to be rescheduled for the next day, February 2, because Senator Ericksen could not get a flight out from Washington, D.C., where he had been working at his EPA job. According to a February 2, 2017, article published by The Bellingham Herald, during the press conference, the senator told reporters that he is “taking his full legislative salary,” but he was “forgoing his $120-per-day per diem while not in Olympia,” and again, he professed that he still did not know how much he’s being paid by the federal government for his EPA position.

A February 7, 2017, article published in The Washington Post reported that Senator Ericksen “said he doesn’t know what the EPA is paying him.”

OPB/EarthFix reported in a March 16, 2017, article that according to EPA records showing Ericksen’s earnings statements obtained through a FOIA request, he is receiving an annual salary of $161,900. The OPB article reported:

“When reached for comment by phone on Thursday, Ericksen said he still did not know how much the EPA was paying him.

“‘I’m still not really aware, to be honest with you. I would do the job for free,’ he said.”

When asked by OPB how it was possible that a news organization could obtain copies of his earnings statements before he ever became aware of the earnings, appallingly, Ericksen dug-in deeper with his denial, giving an evasive response, saying he saw salary ranges and filled out paperwork for direct deposit but never looked at the amount.

Is the public really expected to believe that Senator Ericksen never read his January 19 EPA employment letter in which his annual salary was clearly stated? And, once the senator knew his constituents and the press wanted to know his EPA salary, why would he continue to refuse to access that information for them?  At the very least he could have given them a reasonable explanation for why he would not share that information.

Ericksen’s January 19 employment letter stated that his, “appointment will be effective January 21, 2017 not to exceed May, 20, 2017,” and that his immediate supervisor at that time would be then-Acting Administrator Catherine McCabe (Scott Pruitt was later confirmed as EPA Administrator on February 17, 2017). The letter also informed Ericksen that in his EPA position he will work a full-time schedule. I don’t understand how Ericksen can work full-time at the EPA and still work as a State Senator during the legislative session which would require his presence each day during the work week to conduct the legislative duties he was elected to perform.

On page 1 of Senator Ericksen’s EPA employment letter it stated that he was, “selected for an appointment with the U.S. Environmental Protection Agency,” and his position of “Senior Advisor” will be located in the Office of the Administrator, Washington, D.C. The letter goes on to say that his position is a Temporary Transitional Schedule C position, and explained that individual appointments to Temporary Transitional Schedule C positions may be made for a period of up to 120 days, and may be extended once for an additional 120 days without prior approval from the Office of Personnel Management.

Relating to the issue of Senator Ericksen’s EPA appointment/employment, is a question that warrants an official answer from the EPA. If Ericksen’s present position with the EPA is considered to be a, “Temporary Transitional Schedule C position,” as was stated in his employment letter, then how has he been able to seemingly be making contributions to FEGLI (Federal Employees Group Life Insurance), and to TSP (Thrift Savings Plan), a retirement savings investment plan for federal employees?  According to his January 19 employment letter, Ericksen is not entitled to elect and receive federal life insurance coverage, nor is he entitled to participate in the Thrift Savings Plan.

The letter states very clearly that serving on a temporary appointment, Ericksen is entitled to receive the following:

“–You will earn four (4) hours of annual leave per pay period;

–You will earn four (4) hours of sick leave per pay period;

–You are not entitled to elect and receive federal health care coverage;

–You are not entitled to elect and receive federal life insurance coverage;

–You are not entitled to participate in the Thrift Savings Plan [TSP].”

ericksen earnings and leave

It appears that Ericksen has been making contributions to FEGLI and TSP, according to his EPA Earnings and Leave Statements for pay period ending February 4, 2017, and pay period ending February 18, 2017. Although those contributions were redacted, some of those redactions were done not-so-thoroughly, so while I cannot see the exact number figure, nor am I seeking to find out exact amounts of his contributions, I can see what appear to be dollar amount figures other than zero. To my best assessment of those two Earnings and Leave Statements of Ericksen’s, there are dollar amount figures listed correlating to FEGLI and TSP, indicating that he is making contributions to those two items, which according to his January 19th EPA employment letter, he is not entitled to do.

So, possibly either Senator Ericksen’s appointment position is no longer considered a temporary appointment by the EPA as it was first stated in his January 19th employment letter; or the statements in the letter about what benefits he was/is entitled to elect and receive and participate in were incorrectly stated; or he has been allowed to participate in FEGLI and TSP contrary to what is stated as is allowable by the federal government in his employment letter.

If the first possibility I stated above is the case, wherein Senator Ericksen’s appointment position is no longer considered a temporary 120-day appointment by the EPA as was first stated in his January 19th employment letter, and it is now continuous and permanent, then according to Washington State’s Constitution (Article 2, Section 14), the senator would have to vacate his state Senate seat.

I recently reviewed a March 9, 2017, internal EPA email record sent by EPA Region 8 Director, Office of Communication and Public Involvement, Andrew Mutter, to Region 8 SLT (Senior Leadership Team) members, with the subject “Official List of new EPA Political Appointees.” In the email there was a list of the current EPA political appointees which included ten names with corresponding position titles, which it is my understanding are considered to be permanent positions.

03092017 andrew mutter email

In that same March 9 email, below the list of ten political appointees, it says, “NOTE: The below four (4) personnel do not have direct assignments at this time.” Doug Ericksen’s name was on that list of four personnel names and across from his name is the phrase “working with OPA.” The OPA is the Office of Public Affairs, the primary office for all EPA communications. It is also my understanding that the EPA does not typically advise its employees of temporary hires, however, there is nothing in the email that specifically indicates that the positions are permanent. Thus, it is still unclear if Doug Ericksen’s appointment is currently considered to be temporary as he claims.

The FOIA website shows that there are approximately twenty-eight FOIA requests that have been submitted by individuals and news media agencies since January through March of this year, seeking records relating to Senator Ericksen’s EPA employment. In utilizing the FOIA website’s online search function, out of those approximate twenty-eight requests, there have been records released for only three of those requests. Meanwhile, because our federal government can move at a snail’s pace, each day that ticks by is another day that the Washington state legislative session continues, affording Senator Doug Ericksen, the luxury of time to impact Washington state’s laws, before anyone can get to the truth as to whether his EPA appointment/employment is in violation of the state Constitution.

Washington State residents and the Washington State Senate deserve to know the current, exact status regarding Senator Ericksen’s appointment/employment with the EPA, and any relevant details about that arrangement. It seems unlikely that will be ascertained anytime soon through FOIA records requests.

Possibly, the Washington State Office of the Attorney General could cut through the federal government’s red tape, going state government to federal government, directly to the horse’s mouth, the EPA, to obtain written confirmation of the exact present status of Senator Ericksen’s appointment/employment with the agency.  A potential violation of the Washington State Constitution by a current member of the state senate, is a matter of great public interest, and warrants scrutiny by our state’s Attorney General’s Office. After all, the AGO’s stated mission is that it “will provide excellent, independent, and ethical legal services to the State of Washington and protect the rights of its people.”

Because the AGO serves the people of the state of Washington, it seems reasonable to request that the AGO investigate and confirm the exact duration of Senator Ericksen’s appointment/employment with the EPA. However, the AGO’s duty to protect the rights of the people appears to potentially be in conflict with one of its stated roles which is “to defend in court state officers or employees ethically acting in their official capacities.”

One question that needs to be addressed is whether Senator Ericksen, a state officer, has been/is acting ethically and legally in his official capacity as a state senator, while simultaneously working in his appointed civil office position with the EPA.

For the AGO to address that question could be problematic, though, when it is possible that public officials such as Senator Ericksen could have sought, or could still seek, advice from the AGO as one of its roles is to advise members of the Legislature on legal issues, and he could seek an official attorney general’s opinion regarding constitutional or legal questions, relating to his EPA appointment/employment as to whether that is in legal and/or ethical conflict with his state senate role.

In this oddball case of a sitting state senator who chooses to work in an appointed civil office role, working full-time hours for a federal agency, while also continuing to remain a state senator, it is unclear whose rights the Attorney General’s Office would serve to protect — the people of Washington state, or a member of the legislature.

It could now be a situation where the most effective option available to citizens who feel underrepresented by Senator Ericksen, is to once again, launch a recall effort against the senator.

recall petition that had been filed by a group of Whatcom County citizens on February 9, 2017, was dismissed on March 2, by Whatcom County Superior Court Judge Raquel Montoya-Lewis, due to what she said were insufficient grounds for the recall to continue.

Since that time, however, more information has been revealed relating to Senator Ericksen’s spotty performance of his senatorial duties during the ongoing legislative session, resulting from his position with the EPA in which, according to his EPA employment letter, he is expected to work a full-time schedule.

When Doug Ericksen assumed the office of Washington State Senator, he took an oath of office.  Below, is the oath that newly elected members of the senate take before assuming office:

“I, (name), do solemnly swear that I will uphold the Constitution and laws of the United States of America, the Constitution and laws of the state of Washington, and the rules of the Washington state senate. And, that I will faithfully perform the duties of state senator to the best of my ability, so help me God.”

Is Senator Ericksen faithfully performing the duties of the office of state senator to the best of his ability?

Two things are certain, there are federal taxpayers who believe they are not getting their money’s worth from a highly paid federal employee, and there are Washington state taxpayers who believe they are not getting their money’s worth from their state senator.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s