WSR 98-08-054
PERMANENT RULES
EXECUTIVE ETHICS BOARD
[Filed March 27, 1998, 3:15 p.m.]
Date of Adoption: March 13, 1998
Purpose: To amend WAC 292-110-010
Citation of Existing Rules Affected by this Order: Amending WAC 292-110-010
Statutory Authority for Adoption: RCW 42.52.360 (2)(b), 42.52.160(3)
Adopted under notice filed as WSR 97-21-076 on October 17, 1997
Changes Other than Editing from Proposed to Adopted Version: 1. Adopted version of WAC 292-110-010 combines subsections (3) and (5) to consolidate substantially similar provisions.
2. Adopted WAC 292-110-010 (4)(b) allows a use to support, promote, or solicit for an outside organization or group only in those circumstances when the use is provided for by law or is approved by the agency head or designee.
3. Adopted WAC 292-110-010(3), (4) and (5), incorporates revised examples to clarify the principles that apply under this section
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, amended 1, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 1, repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.
Effective Date of Rule: Thirty-one days after filing.
March 26, 1998
Margaret A. Grimaldi
Executive Secretary
OTS-2110.1
AMENDATORY SECTION (Amending WSR 96-01-036, filed 12/13/95, effective 1/13/96)
WAC 292-110-010 Use of state resources. (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 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.)) State officers and state employees are obligated to
conserve and protect state resources for the benefit of the
public interest, rather than their private interests. When use
of state resources supports organizational effectiveness, is
reasonable and of negligible cost, and does not violate an ethics
law or this rule, such use would not undermine public trust and
confidence. 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 such use.
(2) State officers or state employees may not 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. 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.
(3) Notwithstanding the prohibition in ((section one of this
rule)) subsection (2) of this section, a state officer or
employee may make occasional but limited use of state resources
((for his or her private benefit,)) 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;
(c) The use is brief in duration and does not disrupt or distract from the conduct of state business due to volume or frequency; and
(d) The use does not compromise the security or integrity of state information or software;
(e) An agency may authorize a use that promotes organizational effectiveness or enhances the job-related skills of a state officer or state employee.
Example 1: An employee makes a local telephone call or
sends an e-mail communication to his home ((every
afternoon 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, and
((since the call takes place on the employee's break))
because either the call or the e-mail is brief in
duration, it ((will)) does not interfere with the
performance of ((the employee's)) official 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)) 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
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.)) The personal message is de minimis and
improves organizational effectiveness by allowing
informal communication among employees.
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 his official
duties since those who want to inquire about the car
can call the employee at home.
Example 4: Once a year, during a two week period, an
employee sells candy bars to support a youth soccer
team. She leaves the candy bars in the break room and
employees may buy the bars on their breaks. This is
not an ethical violation. There is no cost to the
state and since the transactions are conducted during
breaks the activity does not interfere with the
performance of her official duties.
Example 5: Every spring a group of employees meet at
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.
(4) 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 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 or activities that
improve the work related job skills of an officer or employee.
Example 6: An employee is taking a night school class
and after working hours uses her computer to do her
homework. 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. However, the cost is negligible and the
employee is using her own paper. Since the class will
enhance the employee's job skills there is a public
benefit and, since the activity takes place after
working hours it will not interfere with the
performance of the employee's official duties.
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.)) Every spring a group
of employees meets during lunch 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 the meeting does not
interfere with the performance of official duties
because it is during a lunch hour.
Example 4: An agency determines that an evening class will enhance the job skills of an employee, and allows the employee to use her office computer to do homework. The employee prints her homework using the office printer and her own paper. 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, the effectiveness of the organization is improved. Since the activity takes place after working hours, it will not interfere with the performance of the employee's official duties.
(4) Occasional and limited use of state resources does not include the following private uses of state resources:
(a) Any 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 or authorized by an agency head or designee;
(c) Any campaign or political use;
(d) Commercial uses such as advertising or selling; or
(e) An illegal activity.
Example 5: 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. The employee is conducting a private business on state time, which is a cost to the state.
Example 6: After working hours, an employee uses the office computer and printer to prepare client billings for a private business using his own paper. This is an ethical violation. Although use of the office computer and printer may result in a negligible cost to the state, conducting a private business is an inappropriate use of state resources.
Example 7: An employee is active in a local PTA organization that holds fund-raising events to send children to the nation's capital. Although a parental contribution is expected, the more a parent raises, the less his or her contribution. An employee uses agency e-mail to solicit contributions for her child. This is an ethical violation. The employee is using state resources to further a private interest and to promote an outside organization.
(5) Use of state resources pursuant to ((sections three and
four of this rule)) subsections (3) and (4) of this section 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 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.
(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 use computers and electronic mail provided such use conforms to ethical standards under section three 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 other equipment to access computer networks or other data bases including, but not limited to, electronic mail and electronic bulletin boards for personal use unrelated to an official business purpose.
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 or her usual duty
station. To perform ((his)) official duties the
employee takes an ((office)) agency laptop computer
((which he has checked out for this purpose from the
agency. The agency has previously approved the
employee's use of the computer to do homework for a
class that will enhance his job skills after working
hours)). While away, the employee ((is on this
temporary duty assignment he)) uses the ((laptop))
computer to do ((his homework after working hours)) tax
work for a private client. This is ((not)) an ethical
violation. ((The use of the computer for homework in
this situation is not an ethical violation (Example
7).)) Although ((the)) it is permissible for an
employee ((has removed his)) to use the laptop
((computer from the state facility its use is
permissible because he is using it)) at a temporary
((official)) duty station((.
(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 not make private use of
state computers or other equipment to access computer networks or
other databases including, but not limited to, electronic mail
and electronic bulletin boards for personal 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.
Example 11: Two employees use their agency computers
to play a game of chess via electronic mail. This is
an ethical violation because this use of electronic
mail to play chess is not an official business
purpose)), it is not permissible for the employee to
perform work related to his or her outside business on
the laptop.
Example 10: An employee routinely uses the Internet to manage her personal investment portfolio and communicate information to her broker. This is an ethical violation. Use of the Internet is limited to official state business, and there is a cost to the state for the employee's time while he or she conducts personal business.
(((e))) (6) 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.
(((6) 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, violation of
a more restrictive agency policy will not constitute a violation
of RCW 42.52.160 but would constitute a violation of agency
policy.)) (7) Electronic mail, facsimile transmissions, 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 electronic record is
reproducible and is therefore not private. Such records may be
subject to disclosure under the public disclosure law, or may be
disclosed for audit or legitimate state operational or management
purposes.
(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, violation of a more restrictive agency policy by itself will not constitute a violation of RCW 42.52.160, 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.]