WSR 97-21-076

PROPOSED RULES

EXECUTIVE ETHICS BOARD

[Filed October 17, 1997, 11:55 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-13-006.

Title of Rule: Use of state resources.

Purpose: To amend WAC 292-110-010.

Statutory Authority for Adoption: RCW 42.52.360 (2)(b), 42.52.160(3).

Statute Being Implemented: Chapter 42.52 RCW.

Summary: Establishes a policy statement on the use of state resources. Allows de minimis use when related to organizational effectiveness or job-related skills. Contains guidelines for transmission of electronic mail messages.

Reasons Supporting Proposal: Current WAC contains broad language not supported by provisions in chapter 42.52 RCW.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Margaret A. Grimaldi, P.O. Box 40100, Olympia, (360) 664-0871.

Name of Proponent: Washington State Executive Ethics Board, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Clarifies ethics standards relating to appropriate and inappropriate uses of state resources and incorporates examples to describe acceptable and unacceptable uses. By providing clear guidance to state officers and employees, violations of RCW 42.52.160 may be prevented.

Proposal Changes the Following Existing Rules: Rule would establish clear policy guidance for use of state resources. Further clarifies the term de minimis. Allows use for purposes relating to organizational effectiveness or improvement of job-related skills of a state officer or employee; provides guidance for the content of electronic mail messages.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Proposed rule is applicable to state officers and state employees and does not affect small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Meets the conditions for exemption specified under section 201, chapter 403, Laws of 1995, subsection (5)(b)(iii), (iv), and (v).

Hearing Location: Attorney General's Conference Center, 4224 6th Avenue S.E., Building 1, Olympia, WA 98504-0100, on February 13, 1998, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Patti Hurn, Clerk, TTY (360) 586-3265, or (360) 753-6200.

Submit Written Comments to: Margaret A. Grimaldi, Board Secretary, Executive Ethics Board, P.O. Box 40100, Olympia, WA 98504-0100, FAX (360) 664-0229, by December 31, 1997.

Date of Intended Adoption: At the meeting following the public hearing on February 13, 1998.

October 16, 1997

Margaret A. Grimaldi

Board Secretary

REVISED SECTION [AMENDATORY SECTION (Amending WSR 96-01-036, filed 12/13/95, effective 1/13/96)]

WAC 292-110-010 Use of state resources. State officers and employees are obligated to conserve and protect state resources for the benefit of the public interest, and to ensure that state resources are used to support and enhance the performance of official duties and responsibilities on behalf of the public. When use of state resources supports organizational effectiveness, is reasonable and of negligible cost, and does not violate an established ethics law, such use would not undermine public trust and confidence. However, responsibility and accountability for the appropriate use of state resources ultimately rests with the individual state officer and state employee, or with the state officer or state employee who authorizes use.

(1) No state officer or state employee may use state resources including any person, money, or property under the officer's or employee's official control or direction or in his or her custody for private benefit or gain of the officer or employee or any other person; PROVIDED, that this prohibition does not apply to the use of public resources to benefit another person as part of the officer's or employee's official duties.

(2) Under circumstances described in sections three and four of this rule, a state officer or employee may make occasional but limited use of state resources for his or her private benefit for other than official state purposes if there is no actual cost to the state or the cost to the state is de minimis. The cost to the state is de minimis if the actual expenditure of state funds is so small as to be insignificant or negligible.

(3) Notwithstanding the prohibition in section one of this rule, a state officer or employee may make occasional but limited use of state resources for his or her private benefit for other than official state purposes only, if:

(a) there is no cost to the state; and

(b) the use of state resources does not interfere with the performance of the officer's or employee's official duties; and,

(c) the use is brief in duration and accumulation; and,

(d) the use does not compromise the security or integrity of state information or software.

(4) Occasional and limited use of state resources use does not include the following private uses of state resources:

(a) a use for the purpose of conducting an outside business;

(b) a use for the purpose of supporting, promoting, or soliciting for an outside organization or group unless provided for by law;

(c) a campaign or political use;

(d) commercial uses such as advertising or selling; or,

(e) an illegal activity.

Example 1: An employee makes a local telephone call or sends an e-mail communication to his home on his break to make sure his children have arrived home safely from school. This is not an ethical violation. There is no cost to the state, the call or e-mail is brief in duration, and since the call communication takes place on the employee's break it will not interfere with the performance of the employee's duties.

Example 2: An employee operates an outside business. Everyday she makes or receives five to ten business calls on her state telephone. All of the calls are local calls. This is an ethical violation. Although there is no cost to the state, making and receiving private calls throughout the day interferes with the performance of the employee's official duties because she is conducting private business during working hours.

Example 2: An employee is active in a local PTA organization. Every year, this organization sponsors a series of fundraising events to send a group of children to the nation's capital. Although a parental contribution is expected, the more a member raises, the less the parental contribution. An employee uses agency e-mail to solicit contributions for her child. This is an ethical violation. The employee is using state resources for her private benefit, and is promoting fundraising events for an outside organization.

Example 3: An employee posts a notice to sell a used car on the office bulletin board. The notice gives his home telephone number for those interested in inquiring about the car. This is not an ethical violation. There is no cost to the state and posting the notice will not interfere with the performance of official duties since those who want to inquire about the car can call the employee at home.

Example 3: An employee operates an outside business. Everyday she makes or receives five to ten business calls on her state telephone. All of the calls are local calls. This is an ethical violation. Although there is no cost to the state, the employee is conducting a private business on state time, and the calls are not brief in duration and accumulation.

Example 4: Every spring a group of employees meets at during lunch time to organize an agency softball team. The meeting is held in a conference room that is not needed for agency business during the lunch hour. This is not an ethical violation. There is no cost to the state and since the meeting takes place during the lunch hour it does not interfere with the performance of the employees' official duties.

(5) Notwithstanding the prohibition in section one of this rule, a state officer or employee may make occasional use of state resources for his or her private benefit, if:

(a) the cost to the state is de minimis;

(b) the use of state resources does not interfere with the performance of the officer's or employee's official duties; and

(c) the use is brief in duration and accumulation; and,

(d) the agency finds that there is some benefit to the public in addition to the private benefit to the officer or employee; a public benefit under this rule may be direct or indirect, such as improving employee morale the use promotes organizational effectiveness or activities that improve the work related job skills of an officer or employee; and,

(e) the use does not compromise the security or integrity of state information or software.

Example 5: An employee is taking a night school class and uses her computer to do her homework after working hours. She prints her homework using the office printer and her own paper. The agency has determined that the class will enhance the employee's job skills. This is not an ethical violation. The use of the office computer and printer will result in some cost to the state but the cost is negligible and the employee is using her own paper. Because the class will enhance the employee's job skills there is a public benefit, the effectiveness of the organization is improved. and, sSince the activity takes place after working hours, it will not interfere with the performance of the employee's official duties.

Example 6: A state agency installs a network to provide its employees with access to the Internet for official business purposes. The agency sends its employees to an Internet training class, and sets up an in-house training room equipped with computers. The agency encourages employees to "surf the net" using the in-house training room during the lunch hour to familiarize themselves with Internet use. This is not an ethical violation. Having employees well trained in Internet resources improves organizational effectiveness; "surfing the net" during the lunch hour does not interfere with the performance of official duties, and there is a negligible cost to the state.

Example 7: After working hours an employee uses the office computer and printer to compose and print reports for his private business using his own paper. This is an ethical violation. The use of the office computer and printer will result in some cost to the state. Although the cost is negligible, there is no public benefit to the state from the employee's conducting his private business. Although use of the office computer and printer results in a negligible cost to the state, conducting a private business is an inappropriate use of state resources.

(6) Use of state resources pursuant to sections three and four five of this rule is subject to the following qualifications and limitations:

(a) A state officer or employee may not use state resources 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 not authorized by this rule and is specifically prohibited by RCW 42.52.180, subject to the exceptions in RCW 42.52.180(2).

(b) A state officer or employee may not make private or personal use of any state property which has been removed from state facilities or other official duty stations, even if there is no cost to the state.

Example 8: Agency equipment includes a video tape player. One night an employee takes the machine home to watch videos of her family vacation. This is an ethical violation. Although there is no cost to the state an employee may not make private use of state equipment removed from state facilities or other official duty station.

Example 9: An employee is assigned to do temporary work in another city away from his usual duty station. To perform his official duties the employee takes an office laptop computer which he has checked out for this purpose from the agency. While away, the employee attends a lecture at a local university during his non-working hours, and takes notes on the laptop. This is an ethical violation. Although it is permissible for the employee to use the laptop at a temporary duty station, it is not permissible for him to use it to take lecture notes.

(c) A state officer or employee may not make private use of any state property which is consumable such as paper, envelopes or spare parts, even if the actual cost to the state is de minimis.

(d) A state officer or employee may make private use of state computers and electronic mail provided such use conforms to ethical standards under section three five of this rule, and the prohibitions contained in section four.

(e) A state officer or employee may not make private use of state computers or and other equipment to access no-cost computer networks or other databases including, but not limited to, electronic mail and electronic bulletin boards for personal a use unrelated to an official business purpose.

Example 10: An employee uses her agency computer to send electronic mail to another employee regarding the agenda for an agency meeting that both will attend. She also wishes the other employee a happy birthday. This is not an ethical violation. Although there is personal communication in the message, the message was sent for an official business purpose. The personal message is de minimis and improves organizational effectiveness by allowing informal communication among employees.

Example 11: An employee routinely uses the Internet to manage her investment portfolio and communicate information to her broker. This is an ethical violation. Although there is no cost to the state, the employee is conducting her private business using state resources.

(f) In general, a state officer or employee may not make private use of state resources and then reimburse the agency so there is no actual cost to the state. 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 no cost to the state. To be valid under this rule a reimbursement system must be approved by the board.

(7) Electronic mail is not analogous to telephone use. Electronic mail is not private; its source is clearly identifiable; and, it is subject to public disclosure requirements. Consequently, electronic mail communications may remain part of the state's records long after the employee "deletes" the communication. If a state officer or employee represents an opinion or viewpoint that does not reflect the official position of the agency, such communications should carry an appropriate disclaimer.

(8) State agencies are encouraged to adopt policies applying these principles to their unique circumstances. Nothing in this rule is intended to limit the ability of an agency to adopt policies that are more restrictive. However Although violation of a more restrictive agency policy by itself will not constitute a violation of RCW 42.52.160, but it would constitute a violation of agency policy.

[Statutory Authority: RCW 42.52.160(3). 96-01-036, 292-110-010, filed 12/13/95, effective 1/13/96.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.