WSR 08-20-100



[ Filed September 30, 2008, 8:15 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR [07-13-001] 06-06-07 on June 6, 2007.

Hearing Location(s): 2425 Bristol Court, Conference Room 148, Olympia, WA 98504, on November 14, 2008, at 9:00 a.m.

Date of Intended Adoption: November 14, 2008.

Submit Written Comments to: Melanie de Leon, P.O. Box 40149, Olympia, WA 98504-0149, e-mail, fax (360) 586-3955, by October 31, 2008.

Assistance for Persons with Disabilities: Contact Ruthann Bryant by November 7, 2008, (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, 2425 Bristol Court S.W., 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.

September 25, 2008

Melanie de Leon

Executive Director

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)) nor obligate another employee to make personal use of state resources. In addition, state employees have an affirmative duty to ensure that any personal use of state resources is the most efficient in terms of overall time and resources.

(2) Permitted uses. Use of state resources that is reasonably related to the conduct of official state duties, or otherwise allowed by statute, does not violate RCW 42.52.160. In addition, 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's official duty((, for)). An example((,)) of such use would be conducting an agency combined fund drive campaign. ((Such uses shall be specifically authorized in writing and any use shall strictly conform to specific agency guidance.)) Agencies are strongly encouraged to use caution when authorizing these types of activities.

(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. An agency may authorize a specific use that promotes organizational effectiveness or enhances the job-related skills of a state officer or state employee. In addition, and notwithstanding the prohibition in RCW 42.52.160(1), but subject to subsection (6) of this section, 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) There is little or no cost to the state;

(b) Any use is brief in duration, occurs infrequently,((,)) and is the most effective use of time or resources and cannot reasonably be handled during non-work hours.

(c) The use does not interfere with the performance of the any 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;

(ed) The use does not disrupt other state employees and does not obligate them to make a personal use of state resources; and

(fe) The use does not compromise the security or integrity of state property, information, or software.

(4) 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) of this section, and the use is not otherwise prohibited under subsection (6) 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) 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, or may be disclosed for audit or legitimate state operational or management purposes.

(6) 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 business or private employment;

(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 ((()). Supporting or promoting the interests of a nonprofit organization is also prohibited, 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) 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, the board must approve any reimbursement system implemented by an agency.

(8) 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 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 policy.

(9) Frequently asked questions and examples. The board maintains a list of frequently asked questions and examples that provide additional guidance regarding this rule. State officers and employees are encouraged to review this document at the board's web site 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:

[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.]

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

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.

Washington State Code Reviser's Office