PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-11-120.
Title of Rule: Use of state resources.
Purpose: To revise and clarify current agency rules regarding the de minimis use of state resources, WAC 292-110-010. To separate permitted uses, permitted uses under limited circumstances, and prohibited uses.
| WAC Section | Purpose |
| 292-110-010(1) | To reword the policy statement. |
| 292-110-010(2) | To restate permitted uses that are generally not subject to the de minimis rule, including the Combined Fund Drive. |
| 292-110-010(3) | (1) To restate permitted uses that are subject to the
de minimis rule. (2) To add several conditions or requirements that a permitted use is one that "accommodates an urgent personal necessity," place "no obligation of fellow employees," "... is the most efficient in terms of time and resources," "... is not solely related to personal convenience or avoiding a personal expense." (3) To allow a use of materials that incurs little or no cost to the state. |
| 292-110-010(4) | To restate the rule permitting a limited use of electronic mail. |
| 292-110-010(5) | To restate the rule warning that personal electronic mail may not be private. |
| 292-110-010(6) | (1) To consolidate prohibited uses. (2) To strengthen the prohibition language. (3) To prohibit unauthorized lobbying. (4) To delete the prohibition against any use of consumable materials. (5) To clarify and retain the prohibition against personal Internet use. |
| 292-110-010(7) | To restate the board's policy against adhoc reimbursement for personal use. |
| 292-110-010(8) | To restate the board's policy encouraging state agencies to adopt policies that account for specific uses. |
| 292-110-010(9) | To delete examples from the rule. Examples and a FAQ section will be revised and distributed with the new rule. |
Statutory Authority for Adoption: RCW 42.52.360 (2)(b), 42.52.160(3).
Statute Being Implemented: RCW 42.52.160.
Summary: The amendments will revise and clarify current agency rules regarding the de minimis use of state resources, WAC 292-110-010.
Reasons Supporting Proposal: Current WAC places prohibited uses in several locations and restricts some otherwise de minimis uses.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Brian R. Malarky, 2425 Bristol Court S.W., Olympia, WA, (360) 664-0871.
Name of Proponent: 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. By providing clear guidance to state officers and employees, violations of RCW 42.52.160 may be prevented.
Proposal does not change existing rules. Rule changes would establish clear policy guidance for use of state resources. Further clarifies the acceptable uses of state resources and consolidates the prohibited uses and uses allowed under limited circumstances. Allows uses that involve a little or no cost to the state.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impact statement was prepared because this rule is limited to the Executive Ethics Board.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Pursuant to RCW 34.05.328(5) the Executive Ethics Board is not an agency subject to the provisions of RCW 34.05.328 (1)-(4). In addition, under RCW 34.05.328 (5)(b)(ii), these rules relate to internal governmental operations that are not subject to violation by a nongovernmental party.
Hearing Location: AGO Conference Center, 4224 6th Avenue, Building 1, Lacey, WA 98504, on November 9, 2001, at 10:30 a.m.
Assistance for Persons with Disabilities: Contact Debbie O'Dell, (360) 586-3265.
Submit Written Comments to: Executive Ethics Board, P.O. Box 40149, Olympia, WA 98504-0149, fax (360) 586-3955, by October 31, 2001.
Date of Intended Adoption: December 15, 2001.
October 1, 2001
Brian R. Malarky
Executive Director
OTS-5207.3
AMENDATORY SECTION(Amending WSR 98-08-054, filed 3/27/98,
effective 4/27/98)
WAC 292-110-010
Use of state resources.
(((1) 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 subsection (2) of this section, a state officer or employee may make occasional but limited use of state resources 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 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 because either the call or the e-mail is brief in duration, it does not interfere with the performance of official duties.
Example 2: 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. The personal message is due minimis and improves organizational effectiveness by allowing informal communication among employees.
Example 3: 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 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 due 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 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.
(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.
(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.)) (1) 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 as trustees for the people of the state. 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 state employee, or with the state officer or state employee who authorizes such use.
(2) Permitted uses. Use of state resources that are reasonably related to the conduct of official state duties 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 employee's 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 guidance.
(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 accommodates an urgent personal necessity or supports organizational effectiveness would not undermine public trust and confidence. 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 a 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 time and resources. 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;
(c) The use is not solely related to personal convenience or avoiding a personal expense;
(d) The use does not interfere with the performance of the officer's or employee's official duties;
(e) The use does not disrupt or distract from the conduct of state business due to volume or frequency;
(f) The use does not disrupt other state employees and does not obligate them to make a personal use of state resources;
(g) The use does not compromise the security or integrity of state property, information, or software; and
(h) An agency may authorize a specific use that promotes organizational effectiveness or enhances the job-related skills of a state officer or state employee.
(4) Permitted use of computers and electronic mail. A state officer or employee may use state computers 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.
(5) No expectation of privacy. 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.
(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 (unless provided for by law and 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;
(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;
(g) Any private use of state computers or other equipment to access computer networks or other data bases (e.g., the Internet) including, but not limited to, using a state provided Internet connection to access electronic mail servers, electronic bulletin boards, Internet radio stations, or Internet video servers, for a personal use unrelated to an official business purpose.
(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 no cost to the state, including administrative costs. To be valid 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. 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.
(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 website www.wa.gov/ethics 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: ethics@atg.wa.gov
[Statutory Authority: RCW 42.52.360 (2)(b) and 42.52.160(3). 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.]