ADVISORY OPINION 02-05
Use Of State Facilities To Gamble
References: RCW 42.52.160, Use of State Resources; WAC 292-110-010, EEB Advisory Opinions 02-02.
ISSUES
1. May a state officer or employee use state facilities or resources to gamble?
2. If a specific gambling activity, such as a sports pool, was legal, could a state officer or employee use state facilities on a de minimis basis to conduct that activity?
OPINION
1. Generally no – The Ethics in Public Service Act and the Board’s rules strictly prohibit the use of state facilities and resources to support illegal activity. Professional gambling activity is prohibited in the State of Washington unless specifically authorized by law. Therefore, unless an agency is authorized to conduct gambling activity, any use of state resources to conduct gambling would violate the Ethics in Public Service Act.
2. Generally no – Gambling activity, including conducting a sports pool, is a private activity that is incompatible with official state duties. Allowing even an occasional or limited use of state facilities to facilitate such activities undermines public confidence in state government
ANALYSIS
The Executive Director to the Washington State Gambling Commission has asked the Board to provide a formal statement regarding the use of state facilities for gambling activities, including informal office sports pools. The Board notes that under chapter 9.46 RCW, gambling is illegal in the State of Washington unless specifically authorized by law. Chapter 9.46 RCW provides several exemptions to the general prohibition, which are specifically limited to those persons who are authorized to conduct gambling activity by the statute. The majority of these permitted activities are limited to bona fide charitable or nonprofit organizations that must meet specific and extensive qualifications. An exception to the gambling prohibition that may apply to state officers and employees is sports pools.
1. Using State Resources to Gamble Generally Violates the Ethics in Public Service Act.
The Ethics in Public Service Act prohibits the use of state resources for private benefit or gain, except in the course of official duties. RCW 42.52.160 provides, in relevant part:
(1) No state officer or state employee may employ or use any person, money, or property under the officer’s or employee’s official control or direction, or in his or her official custody, for the private benefit or gain of the officer, employee, or another. …
(2) This section does not prohibit the use of public resources to benefit others as part of a state officer’s or state employee’s official duties.
(3) The appropriate ethics boards may adopt rules providing exceptions to this section for occasional use of the state officer or state employee, of de minimis cost and value, if the activity does not result in interference with the proper performance of public duties.
Under RCW 42.52.160(3) the Board has adopted de minimis use rules, which permit an occasional personal use of state resources but generally prohibit the use of state facilities or resources to conduct illegal activity. WAC 292-110-010 provides, in relevant part:
(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.
Therefore, unless an agency is specifically authorized to conduct gambling activity by law, any use of state resources to conduct gambling would violate the Ethics in Public Service Act.
2. The Occasional and Limited Use State Resources to Gamble is Incompatible with State Duties
The question before the Board, however, concerns the use of state resources to support gambling activity that is not prohibited by state law. Under RCW 42.52.160(3) the Board has adopted de minimis use rules, which permit an occasional personal use of state resources. WAC 292-110-010(3) provides, in relevant part:
(3) Permitted Uses – Under Limited Circumstances Extensive or repeated personal misuse of state resources, including state time, significantly undermines public trust in state government. … Notwithstanding and in addition to, the prohibition in RCW 42.52.160(1), but subject to WAC 292-110-010(6), a state officer or employee may make an occasional but limited use of state resources only if each of the following conditions are met….
While WAC 292-110-010(3) may be broadly interpreted to allow any de minimis use of state resources that is not specifically prohibited under WAC 292-110-010(6), the Board has advised that some otherwise clearly legal activities are still prohibited because allowing such a use of state resources would undermine public confidence in state government.
While some gambling activity may not violate state law, the Board notes that the Ethics in Public Service Act prohibits private activities that are incompatible with public duties. RCW 42.52.020. The Board believes that gambling activity is a private activity that is incompatible with official state duties, therefore, allowing even an occasional or limited use of state facilities to facilitate such activities undermines public confidence in state government.
In EEB Advisory Opinion 02-02, the Board advised that the guidelines on use of state resources apply to all resources under an employee’s control including, but not limited to, facilities of an agency, including office space, state employees, computers, equipment, vehicles, and consumable resources. State resources also includes state information, e.g., databases, employee lists, etc.
The Board’s advisory opinion is based on the general facts as stated above. The Board does not investigate the facts. Please be aware that modification of the facts, or knowledge of more specific facts or circumstances, might cause the Board to reach a different conclusion. In addition, Board advisory opinions are narrowly drawn to interpret the Ethics in Public Service Act. They do not address whether the proposed action is prudent, good public policy or effective management practice.
Approved by the Executive Ethics Board, this 8th day of November 2002.
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Brian R. Malarky
Executive Director