ADVISORY OPINION 02-02A
Use of State Resources – Revised Frequently Asked Questions and Examples
On July 12, 2002, the Board reviewed a staff memorandum regarding the Board’s opinions and rules related to the "de minimis" use of state resources rule to support charitable activities. Based on that review, the Board asked staff to draft several revisions to Frequently Asked Questions (FAQ’s) s that would: (1) clarify the authority given to state agency heads under the "de minimis" use rule; and (2) clarify the Board’s rules regarding solicitation of private businesses on behalf of charitable organizations. The Board believes that revising the current FAQ’s (See EEB AOP 02-02) will provide appropriate guidance to state officers and employees and establish reasonable safeguards against an inappropriate use of state resources.
At the September 13, 2002 and October 11, 2002 regular meetings, the Board considered draft FAQ revisions along with written and verbal responses to the drafts from state agencies and individual state officers and employees. Based those discussions the Board hereby adopts the following revisions to EEB Advisory Opinion 02-02. The Board encourages state agencies to broadly distribute the revised FAQ’s to all state employees.
Change 1: Preamble Revised
These frequently asked questions are intended to provide examples of how the Board would interpret and apply RCW 42.52.160, RCW 42.52.180 and WAC 292-110-010 to common occurrences in the state workplace. The Board encourages state agencies to adopt policies applying these principles to their unique circumstances. In some instances state agencies have adopted policies that are more restrictive than the Board’s rules. In addition to reviewing the Board’s rules, state officers and employees should consult applicable agency policies.
Change 2 – New Question 5 Regarding Organizational Effectiveness Inserted
Question 5: What does "promoting organizational effectiveness" really mean?
Answer: Organizational effectiveness relates to an agency’s mission and encompasses activities that enhance or augment the agency’s ability to perform its mission. The Board recognizes that state agencies may allow employees to participate in activities that are not official state duties but promote organizational effectiveness by supporting a collegial work environment. The Board believes that so long as the employees who participate in the activity limit their use of state resources, then these activities would not undermine public confidence in state government. In addition, the Ethics Act normally prohibits the use of state resources to support outside organizations or groups, including charities, unless the support is part of the agency’s official duties. The Board’s rule allows agency heads to nevertheless approve a de minimis use of state resources for activity that promotes organizational effectiveness even if that activity may incidentally support a private organization. Agency heads are cautioned, however, that activity allowed under this rule may not involve a state agency’s endorsement or promotion of a commercial activity such as advertising or selling products. The following examples address "promoting organizational effectiveness." (See WAC 292-110-010(3) and (6))
Example A: An agency determines that an agency wide retirement lunch will enhance organizational effectiveness. The retirement lunch will last a half hour longer than the normal one hour lunch break. An employee uses his or her office computer to compose a flyer about the lunch, send a few reminder e-mails, and collect for a retirement present. This is not an ethical violation. The use supports organizational effectiveness and was approved by the agency. Since most of the activity takes place outside of normal working hours, it will not interfere with the performance of each employee's official duties. In addition, the employees use of the office computer and printer will result in little or no cost to the state.
Example B: An agency decides that attending a specific sporting event or going to a local amusement park as a group will promote organizational effectiveness. In order to organize the event the agency uses a very limited amount of state paid time and agency resources to send one email notifying employees of the event and to post flyers and discount coupons in a break room so that employees who attend can take advantage of the discounts available. The flyers and coupons promote a commercial organization, such as a local amusement park, or promote a specific event, such as a state employee appreciation day at a sporting event. This is not an ethical violation. Attending the sporting event or going to an amusement park may improve employee morale, which supports organizational effectiveness. The agency approved this very limited use of resources and the activity falls within the de minimis use guidelines.
Example C: An agency decides that attending a specific sporting event or going to a local amusement park as a group will promote organizational effectiveness. The agency uses state paid time and agency resources to distribute multiple flyers or multiple discount coupons to all agency employees. The flyers and coupons promote a commercial organization, such as a local amusement park, or promote a specific event, such as a state employee appreciation day at a sporting event. This is an ethical violation. While attending the sporting event or going to the amusement park may improve employee morale, the use of state resources exceeds the de minimis use guidelines. When there is no statutory authority for the use of state resources to support a private commercial product or organization, the extensive use of state resources for that activity undermines public confidence in state government.
Change 3 - New Section Added: Solicitations by State Employees on Behalf of Charitable Organizations
The solicitation of goods and services from private companies is addressed under several provisions of the Ethics in Public Service Act. In addition to interpreting and applying the use of state resources provisions, this section of the FAQ’s are intended to provide examples of how the Board would interpret and apply RCW 42.52.070, 42.52.140, and 42.52.150 to common occurrences in the state workplace.
Question 20: Can agency employees solicit donations for charitable events from outside businesses?
Answer: The state's ethics law contains a very strong presumption against solicitation by any state officer or state employee for any purpose, including charitable events. Solicitation by state employees can create the appearance that a donation might result in favorable treatment from the state, whereas a failure to donate might result in unfavorable treatment. A state officer or state employee whose official duties include regulation or the contracting for goods and services needs to be especially careful about solicitation. Accordingly, State officers and employees may not use their official state positions to solicit goods and services from private organizations and businesses. The following examples address solicitation on behalf of charitable organizations. (See RCW 42.52.070, RCW 42.52.140 and RCW 42.52.150(4))
Example A: The head of a state agency purchasing office sends a letter requesting gifts or donations for use at CFD kick off luncheon to several vendors who provide goods and services to the agency. This is an ethical violation. While the purchasing supervisor will not personally benefit from the gifts, the CFD charities and the gift recipients would benefit from them. In addition, it would be reasonably expected that vendors who respond favorably to the solicitation did so with the intent to influence the vote, action, or judgment of the purchasing supervisor. (See RCW 42.52.070 and RCW 42.52.140)
Example B: The head of a state agency sends a letter to local businesses, including several vendors who provide goods and services to the agency, requesting gifts or donations for a use that will benefit agency employees and a private charity. This is an ethical violation. While the agency head will not personally benefit from the gifts, the private charity would benefit from them. In addition, it would be reasonably expected that vendors who respond favorably to the solicitation did so with the intent to influence the vote, action, or judgment of the agency head. This expectation in the vendors would be true even if the agency head did not routinely participate in such decisions. (See RCW 42.52.070 and RCW 42.52.140)
Example C: On their lunch break a group of agency employees who work for an agency that regulates or administers benefits for private business, but who are not personally involved in regulating or administering benefits for their agency, solicit holiday gifts on behalf of a family sponsored by Adopt-a-Family. When soliciting the gifts they voluntarily inform the businesses that they are employed by their state agency but are soliciting on behalf of the sponsored family or Adopt-a-Family. This is an ethical violation. By stating that they are employed by an agency that regulates or administers benefits for the private businesses they are using their state positions to influence the private businesses and support the private charity. (See RCW 42.52.070)
Example D: On their lunch break or after work a group of agency employees who are involved in regulating or contracting on behalf of their agency solicit holiday gifts on behalf of a family sponsored by Adopt-a-Family. They do not solicit from agency vendors or other individuals with whom they conduct state business. When soliciting the gifts they tell the businesses that they are soliciting on behalf of the sponsored family or Adopt-a-Family. This is not an ethical violation. By soliciting on behalf of the private charity and not a state agency they are not using their state positions to influence the private businesses. In addition, the employees are not using state paid time or resources for the solicitation.
Example E: After work or on the weekend a group of state employees solicit holiday gifts on behalf of a family sponsored by Adopt-a-Family or their local private school. They solicit door to door in their neighborhood and do not solicit from agency vendors or other individuals with whom they conduct state business. When soliciting the gifts they indicate that they are soliciting on behalf of the private school, the sponsored family, or Adopt-a-Family. This is not an ethical violation. The employees are not using their state positions to influence the private businesses and are not using state resources to support the private charities.
Question 21: Are there any other considerations we should take into account when conducting charitable solicitations?
Answer: Yes, avoid direct personal solicitations of your co-workers and colleagues and opt for voluntary participation. Managers and supervisors should always avoid direct personal solicitations of employees who work under their supervision. In this way, employees avoid creating a situation in which others feel pressured to give or perceive the risk of an unfavorable job action if they fail to give. Please remember that our valuable dedication to helping others sometimes obscures the fact that those we ask to give may not be able to give or may chose to give to other charities.
Question 22: If we can’t solicit, then what should we do?
Answer: A state employee may purchase a gift certificate or other item for its fair market value and donate the item to an agency-sponsored charitable event.
Approved by the Executive Ethics Board, this 8th day of November 2002.
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Brian R. Malarky
Executive Director