ADVISORY OPINION
03-04
Selling Textbooks Sent to Faculty for
Evaluation or Review
References: RCW 42.52.070, Special Privileges; RCW
42.52.140, Gifts; RCW 42.52.150, Limitations on Gifts; RCW 42.52.160, Use of
Resources; RCW 42.52.900 Legislative Declaration; RCW 42.52.901, Construction;
EEB Advisory Opinions 96-05, 97-03 and 97-07.
ISSUE
May state higher education faculty sell complimentary textbooks, which were received under an exemption to the gift prohibitions?
SUMMARY OF OPINION
The
Ethics in Public Service Act allows state officers and employees, including
state higher education faculty, to accept gifts of informational material,
publications, or subscriptions. Once
received, state officers and employees may use or retain such items in a manner
consistent with the purpose for which they were provided, use or retain them to
perform official duties, or dispose of them as provided under RCW
42.52.010(10)(g).
The issue before the Board is whether higher education faculty may sell publications, such as textbooks, for personal benefit or profit. The Ethics Act prohibits higher education faculty from selling textbooks. The answer is no because the Ethics Act prohibits the use of official position and the use of any resource or property under official control for private benefit or gain.
BACKGROUND
Higher education faculty members often participate in the selection of textbooks for use by students. Once selected, use of the textbooks is normally mandatory and college bookstores, which may be operated by the institution, stock books based on the faculty members’ selection. In some instances, groups of faculty and staff select the textbooks for use by instructors. In other cases, the instructor working alone selects the textbooks.
In order to select an appropriate textbook, instructors may solicit evaluation textbooks from publishers. On occasion, a publisher may send unsolicited textbooks. At other times, textbook publishers may send evaluation textbooks to faculty for the purpose of review and allow the faculty member to keep the textbook as compensation for submitting a professional evaluation. In addition, instructors who use textbooks that were mandated by an institution may request or receive courtesy copies or “desk copies” directly from the publisher.
The textbook publishing industry consists of a very limited group of publishers. Due to the high retail cost of textbooks in higher education, there is a secondary used textbook market consisting of book buyers that sell books to college bookstores. The companies that operate in this market are largely independent of the publishers. These independent textbook buyers, and also institutional bookstores, may solicit faculty to purchase textbooks. Used textbook buyers normally purchase books at a fraction of the original retail price, often less than 50% and usually less than 25%.
A summary of comments provided to the Board included:
LEGISLATIVE HISTORY
In 1993 the
Legislature created the Commission on Ethics in Government and Campaign Practices
(Commission), which broadly represented constituencies throughout
In recommending
the current gift provisions, the Commission identified four factors that shaped
its consideration of the issue. The
first two factors are relevant to this opinion:
(1) there is a public perception that gifts imply special or
inappropriate access to state officials or create an obligation for state
officers and employees; and (2) there are some circumstances in which the state
may benefit by receiving items that are normally considered gifts or instances
in which the “gift” may assist state officers and employees in performing
official duties. Commission on Ethics in
Government and Campaign Practices Report and Recommendations,
A Board staff review of Commission documents, public meeting minutes, and discussion with former Commission members indicates that the possibility that state officers or state employees would sell or otherwise profit from the receipt of gifts, or that gifts were intended as a form of compensation, were issues never considered or addressed by the Commission.
ANALYSIS
1. State
Officers and Employees May Accept Publications Related to the Conduct of
Official Duties.
The
Ethics Act defines gifts as “anything of economic value for which no
consideration is given.” RCW
42.52.010(10).
The Ethics Act prohibits the receipt of any gift if it could be reasonably expected that the gift would influence the action or judgment a state officer or employees in the performance of official duties. RCW 42.52.140. [1]
Moreover, the law prohibits receipt of any item with a value greater than $50, even if the gift could not reasonably be expected to influence state officers and employees, except for certain specified items. RCW 42.52.150(1) and (2). There are additional restrictions for state officers and employees who participate in regulatory matters or conduct state business, who may only receive a gift if it is specifically enumerated in RCW 42.52.150(4). In EEB Advisory Opinion 98-02, the Board advised that state officers and employees who participate in decisions relating to the use or purchase of medications by clients of a state agency are subject to the gift prohibitions under RCW 42.52.150(4). Similarly, higher education faculty members who participate in selecting textbooks for use by an institution or by students, including those who serve on a textbook selection committee, are subject to the gift prohibitions under RCW 42.52.150(4).
However,
both subsections (2) and (4) of RCW 42.52.150 provide an exemption which is pertinent here. RCW 42.52.150(4) provides in relevant part:
Notwithstanding
subsections (2) and (5) of this section, a state officer or state employee of a
regulatory agency or of an agency that seeks to acquire goods or services who
participates in those regulatory or contractual matters may receive, accept,
take, or seek, directly or indirectly, only the following items from a person regulated
by the agency or from a person who seeks to provide goods or services to the
agency:
…
(d)
Informational material, publications, or subscriptions related to the
recipient's performance of official duties….
This exemption
for publications related to the conduct of official duties is consistent with
the Commission’s second factor regarding the receipt of gifts by public
officials noted at page 2 above.
Therefore, the Board concludes that the Legislature determined that the
items set forth in exemption (d) should not be presumed to influence a state
officer or employee. Therefore,
state officers and employees may accept informational publications, such as
textbooks.
This opinion does not address the situation where an agency has a policy regarding informational publications related to the conduct of official duties. For example, if an agency has a policy that complimentary textbooks are agency property because they are given to faculty members by virtue of their employment, then this opinion should not be construed as overriding that policy.
2. The Ethics Act Prohibits the
The next issue is whether a higher education faculty member may sell textbooks for personal benefit or profit, when textbooks were given to them as described above. The provisions allowing receipt of informational publications do not explicitly prohibit later sale of these items. In addition, the Commission recommendations and legislative history are silent regarding the sale for personal profit of items that may be accepted under the Ethics Act’s gift provisions.
When there is no specific language in the Ethics Act regarding a proposed action, the Board looks to the declared Legislative intent of the Ethics Act. RCW 42.52.900 provides in relevant part:
Government derives its powers from the people. Ethics in government are the foundation on
which the structure of government rests.
State officials and employees of government hold a public trust that obligates
them, in a special way, to honesty and integrity in fulfilling the
responsibilities to which they are elected and appointed. Paramount in that trust is the principle
that public office, whether elected or appointed, may not be used for personal gain
or private advantage.
Emphasis
added. In addition, RCW
42.52.901 provides that “(t)his chapter shall be construed
liberally to effectuate its purposes and policy and to supplement existing laws
as may relate to the same subject.”
Consistent with the legislative declaration, the Ethics Act prohibits the use of state position to secure special privileges. RCW 42.52.070 provides:
Except as required to perform duties
within the scope of employment, no state officer or state employee may use his
or her position to secure special privileges or exemptions for himself or
herself, or his or her spouse, child, parents, or other persons.
Exemption (d) was enacted in order
to allow state officers and employees to accept publications that could be used
to benefit the state or to assist state officers and employees in the
performance of official duties. In prior
advisory opinions related to RCW 42.52.150(4), the Board has very narrowly
defined the exemptions provided in the law and broadly interpreted the prohibition
on gifts to include any item of economic value which has not been specifically
exempted in the law. In finding that
state officers and employees may accept the publications such as textbooks, the
Board concludes that these items can only be accepted if they are used for the
specific purposes allowed in the Ethics Act.
Informational material, publications, or subscriptions provided by
agency vendors must be related to and used for the recipient's performance of
official duties. For example, a higher
education faculty member may accept a textbook from a publisher for the purpose
of evaluating that textbook for use in a bona fide teaching assignment, or for
the purpose of having reference materials available to assist the faculty
member in performing official duties.
Selling those items that were received on the basis of official position
for personal profit or gain, however, would constitute a use of state position
to secure special privileges in violation of RCW 42.52.070.
The Ethics Act prohibits the use of property under official control or custody for private benefit or gain, except to assist others 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.
Consistent with the intent of
exemption (d) as discussed above, a faculty member accepts official custody of
publications items so that they can be used to benefit the higher education
institution. While such publications may
be perceived as “gifts” by a state officer or employee, exemption (d) should be
narrowly construed because it conditions acceptance on the fact that the item
relates to official duties. Therefore,
when state officers and employees accept items under RCW 42.52.150(4)(d), they
are not accepting unconditional gifts and when selling such items for personal
profit or gain they are using property under their official control or official
custody for private gain, in violation of RCW 42.52.160(1).
For example, it would violate RCW
42.52.160 for a doctor at a state run hospital to sell drug samples or
evaluation medical equipment for personal gain, or a DIS computer programmer to
sell an evaluation copy of Microsoft Office to a friend. Similarly, higher education faculty may not
sell for personal gain textbooks that they received from publishers because the
textbooks are related to the performance of official duties.
While
this opinion prohibits selling textbooks for personal gain, several options for
disposing of textbooks exist in lieu of selling them. The faculty may retain publications for
official use. This seems most consistent
with what seems to have been the primary intent of exemption (d), that gifts of
publications should be permitted because such gifts would benefit the
state. In addition, higher education
faculty can dispose of publications by either giving them to the institution or
to charity, as provided in RCW 42.52.010(10)(g); or dispose of them in
accordance with agency adopted surplus property procedures.
This opinion should not be construed as providing a right for private parties, such as used textbook brokers, to enter public property or otherwise use public facilities to conduct a commercial business. The use and control of state workplaces is the responsibility of state agency heads, subject to the authority provided, and prohibitions contained, in the State Constitution and state laws, including the Ethics in Public Service Act.
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 12th day of September 2003.
___________________________________
Executive Director
[1] For example, a higher education faculty member who is offered compensation for providing a written review of a textbook can reasonably be expected to be influenced by the compensation under some circumstances. If the faculty member is required to select the textbook for use by students in order to receive the compensation, then the compensation can reasonably be expected to influence the faculty member’s performance of official duties. In addition, even if there is no explicit requirement that the faculty member select the textbook in order to receive the compensation, but the compensation offered is substantial, then the compensation can reasonably be expected to influence the faculty member’s performance of official duties. If a faculty member accepted the compensation or textbook under this set of facts, the faculty member would likely commit of violation of RCW 42.52.070, .110, .120, or .150(4)(c), as well as RCW 42.52.140. In addition, even if there is no explicit requirement that the faculty member select the textbook in order to receive the compensation, but the compensation offered is substantial, then the compensation can reasonably be expected to influence the faculty member’s performance of official duties. If a faculty member accepted the compensation or textbook under this set of facts, the faculty member could well commit of violation of RCW 42.52.110, .120, as well as RCW 42.52.140.