Preproposal statement of inquiry was filed as WSR 07-13-001.
Title of Rule and Other Identifying Information: WAC 292-110-010 Use of state resources.
Hearing Location(s): 1110 Capitol Way, Video Conference Room, 4th Floor, Olympia, WA 98504, on July 10, 2009, at 9:00 a.m.
Date of Intended Adoption: July 10, 2009.
Submit Written Comments to: Melanie de Leon, P.O. Box 40149, Olympia, WA 98504-0149, e-mail firstname.lastname@example.org, fax (360) 586-3955, by July 3, 2009.
Assistance for Persons with Disabilities: Contact Ruthann Bryant by July 3, 2009, (360) 586-3265.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Further clarifies RCW 42.52.160. Allows that all forms of technology (computers, e-mail, internet and telephones) are treated alike. This amendment also reinforces the fact that all communications made on a state-owned device may be subject to the Public Records Act.
The amendment also clarifies that public resources may not be used to support an outside business or group, including a private business or political party. However, public resources may be used to support a nonprofit organization if provided for by law or authorized by an agency director.
Reasons Supporting Proposal: The board receives many questions regarding the use of state resources. By amending the rule, we believe that agency employees will gain a better understanding of the rules and regulations of the Ethics in Public Service Act.
Statutory Authority for Adoption: RCW 42.52.360 (2)(b).
Statute Being Implemented: Chapter 42.52 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: [Executive ethics board], governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Melanie de Leon, 1110 Capitol Way, Suite 403, Olympia, WA 98504, (360) 586-6759.
No small business economic impact statement has been prepared under chapter 19.85 RCW. There is no impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. There is no fiscal impact on the state.
May 15, 2009
Melanie de Leon
AMENDATORY SECTION(Amending WSR 02-07-074, filed 3/18/02, effective 4/18/02)
WAC 292-110-010 Use of state resources. (1) Statement of principles - stewardship. The proper stewardship of state resources, including funds, facilities, tools, property, and employees and their time, is a responsibility that all state officers and employees share. Accordingly, state employees may not use state resources for personal benefit or gain or for the benefit or gain of other individuals or outside organizations. ((
Personal benefit or gain may include a use
solely for personal convenience, or a use to avoid personal
expense.)) Responsibility and accountability for the
appropriate use of state resources ultimately rests with the
individual state officer (( and)) or state employee, or with
the state officer or state employee who authorizes such use. (( Employees and officials are cautioned that their own
personal use of state resources should never interfere with
another state official or employee, or obligate another
employee to make personal use of state resources. In
addition,)) State officers and employees (( have an affirmative
duty to)) should ensure that any personal use of state
resources permitted by this section is the most efficient in
terms of overall time and resources.
(2) The following are permitted uses((
(a) Use of state resources that is reasonably related to
the conduct of official state duties ((
does not violate RCW 42.52.160. In addition)), or which is otherwise allowed by
(b) An agency head or designee may authorize a use of
state resources that is related to an official state purpose,
but not directly related to an individual employee((
official duty(( , for example, conducting an agency combined
fund campaign. Such uses shall be specifically authorized in
writing and any use shall strictly conform to specific agency
(3) Permitted uses - under limited circumstances. Extensive or repeated personal misuse of state resources, including state time, significantly undermines public trust in state government. Nevertheless, a very limited personal use of state resources that supports organizational effectiveness would not undermine public trust and confidence)).
(c) An agency may authorize a specific use that promotes
organizational effectiveness or enhances the job-related
skills of a state officer or state employee. ((
and notwithstanding the prohibition in RCW 42.52.160(1), but
subject to subsection (6) of this section,))
(d) A state officer or employee may make an occasional but limited use of state resources only if each of the following conditions are met:
(a))) (i) There is little or no cost to the state;
(b))) (ii) Any use is brief (( in duration, occurs
infrequently, and is the most effective use of time or
(c) The use does not interfere with the performance of the officer's or employee's official duties;
(d) The use does not disrupt or distract from the conduct of state business due to volume or frequency;
(iii) Any use occurs infrequently;
(iv) The use does not ((
disrupt other state employees and
does not obligate them to make a personal use of state
resources)) interfere with the performance of any officer's or
employee's official duties; and
(f))) (v) The use does not compromise the security or
integrity of state property, information, or software.
(4))) (3) Permitted use of computers (( and)),
electronic mail, (( and)) the internet, and other technologies.
A state officer or employee may use (( state computers and
other)) equipment (( to access computer networks or other data
bases, including)) such as the telephone, the internet, and
electronic mail provided such use conforms to ethical
standards under subsection (( (3))) (2) of this section, and
the use is not otherwise prohibited under subsection (( (6)))
(5) of this section. (( A state officer or employee may use
state computers and other equipment to access the internet
only if the officer's or employee's agency has adopted a
policy governing internet access that is consistent with
subsections (3) and (6) of this section.
(5))) (4) No expectation of privacy. Technologies such
as electronic mail, facsimile transmissions, the internet, and
voice mail ((
are technologies that)) may create an electronic
record. This is what separates these from other forms of
communication such as a telephone conversation. (( An)) The
ethics rules do not distinguish between the various forms of
communication. Electronic records (( is)) are reproducible and
(( is)) therefore (( not)) cannot be considered private. Such
records may be subject to disclosure under the Public
(( disclosure law)) Records Act, or may be disclosed for audit
or legitimate state operational or management purposes.
(6))) (5) Prohibited uses. (( The state Constitution,
state and federal laws, and the Ethics in Public Service Act
strictly prohibit certain private activity and certain uses of
state resources. Any use of state resources to support such
activity clearly undermines public confidence in state
government and reflects negatively on state employees
generally. This rule explicitly prohibits at all times the
following private uses of state resources.))
(a) Any use for the purpose of conducting an outside
or)), private employment, or other activities
conducted for private financial gain;
(b) Any use for the purpose of supporting, promoting the
interests of, or soliciting for an outside organization or
group, including, but not limited to((
:)), a private business,
(( a nonprofit organization,)) or a political party (( ()), or
supporting or promoting the interests of a nonprofit
organization, unless provided for by law or authorized by an
agency head or designee(( )));
(c) Any use for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition. Such a use of state resources is specifically prohibited by RCW 42.52.180, subject to the exceptions in RCW 42.52.180(2);
(d) Any use for the purpose of participating in or assisting in an effort to lobby the state legislature, or a state agency head. Such a use of state resources is specifically prohibited by RCW 42.17.190, subject to the exceptions in RCW 42.17.190(3);
(e) Any use related to conduct that is prohibited by a federal or state law or rule, or a state agency policy; and
(f) Any private use of any state property that has been removed from state facilities or other official duty stations, even if there is no cost to the state.
(7))) (6) Reimbursement for personal use. Establishing
a system for reimbursement for private or personal use of
state resources undermines the purpose of the Ethics in Public
Service Act and imposes significant administrative burdens on
state agencies. However, the board recognizes that in some
limited situations, such as officers or employees working at
remote locations, a system of reimbursement may be
appropriate. Any system of reimbursement must be established
by the agency in advance, and must result in little or no cost
to the state, including administrative costs. To be (( valid))
permitted under this (( rule)) section, the board must approve
any reimbursement system implemented by an agency.
(8))) (7) Agency policies encouraged. State agencies
are encouraged to adopt policies applying these principles to
their unique circumstances. Agency policies that are approved
by the board qualify for "safe harbor" under WAC 292-120-035. Nothing in this (( rule)) section is intended to limit the
ability of an agency to adopt policies that are more
restrictive. However, violation of a more restrictive agency
policy by itself will not constitute a violation of RCW 42.52.160, even if it would constitute a violation of agency
(9))) (8) Frequently asked questions and examples. The
board maintains a list of frequently asked questions and
examples that provide additional guidance regarding this
(( rule)) section. State officers and employees are encouraged
to review this document at the board's web site
(( www.wa.gov/ethics)) www.ethics.wa.gov or to request a copy
of the document through the board's office.
Washington State Executive Ethics Board
2425 Bristol Court SW))
P.O. Box 40149
Olympia, WA 98504-0149
Or by electronic mail at: email@example.com
[Statutory Authority: RCW 42.52.360 (2)(b), 42.52.160(3). 02-07-074, § 292-110-010, filed 3/18/02, effective 4/18/02; 98-08-054, § 292-110-010, filed 3/27/98, effective 4/27/98. Statutory Authority: RCW 42.52.160(3). 96-01-036, § 292-110-010, filed 12/13/95, effective 1/13/96.]