Ethics in Public Service Law (42.52 RCW) & Use of Resources Code(WAC 292.110.010) - Summary of Highlights
(NOTICE: This is a summary of Washington State’s laws which establishes minimum standards for ethical conduct while performing public duties at state agencies. This ethics law summary is intended to provide information about some of the more popular & relevant ethics topics at Western and does not include all possible ethics topics. If you have questions about a specific ethics situation, it is recommended that you read the applicable Revised Code of Washington (RCW) or Washington Administrative Code (WAC) sections which are referenced in this document for your convenience. There are also contact names and numbers at the end of this document if you would like to talk with someone about an ethics situation.)
|The university has adopted policy POL U5400.05 – Using University Resources in keeping with Washington State’s ethics rules. Employees should read this policy for information about appropriate use of university resources.|
Core Ethical Principles
“State officials and employees of government hold a public trust that obligates them, in a special way, to honesty and integrity in fulfilling 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.” ( RCW 42.52.900)
The Ethics in Public Service law & related regulations applies to all state employees and state officers.
If an employee wants to make personal use of a university resource, they must follow the de minimis rules *(WAC 292-110-010(2)(d)) and they can not use the resource for prohibited uses **(WAC 292-110-010(5)). The use does not have to meet any organizational effectiveness requirements. ***(WAC 292.110-010 (2)(c))
Employees may not make more than de minimis personal use of university resources and reimburse the university so that there is no actual cost to the university. Allowing systematic reimbursement for this type of use serves to rationalize the personal use. Any system of reimbursement must be established by the university in advance and approved by the Executive Ethics Board to be valid. (WAC 292-110-010(6)) The university does not currently have an approved system of reimbursement for these types of personal uses.
* State De Minimis Rules : (WAC 292-110-010 (2)(d))
“a state officer or employee may make an occasional but limited personal use of state resources only if each of the following conditions are met:
(i) There is little or no cost to the state;
(ii) Any use is brief;
(iii) Any use occurs infrequently;
(iv) The use does not interfere with the performance of the officer's or employee's official duties; and
(v) The use does not compromise the security or integrity of state property, information, or software.”
In general, to be able to make more than de minimis use of a resource, there must be:
**State Prohibited Uses (WAC 292-110-010 (5)):
The following uses of university resources are prohibited by state law even if there is no cost to the university and the use does not interfere with the performance of official duties:
-Any use for conducting an outside business or private employment, whether for profit or not; (See #3. below for more information.)
-Any use for supporting, promoting or soliciting for an outside for-profit organization or group. Any use for supporting promotions or soliciting for an outside non-profit organization; (See #2. below for more information.)
-Any use for assisting a campaign for election of a person or opposition or promotion of a ballot proposition;
-Any use for assisting in lobbying the state legislature or a state agency head;
-Any use prohibited by federal or state law or state agency policy; and
-Any private use of university property that has been removed from a university facility.
*** Promoting Organizational Effectiveness (WAC 292-110-010 (2)(c))
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.”
In order to use resources to support an outside non-profit organization, the following must take place:
- It must be specifically allowed by law, or the President or designee must approve the use of resources and acknowledge that #2 and #3 below will be met.
- Each state employee's use of resources must meet the de minimis rules *, and
- The activity must support or promote organizational effectiveness.
Examples of rules to following when supporting outside organizations:
- It is allowable to use resources to put together a university team to participate and raise money to support a non-profit charity, as long as each state employee involved only uses a de minimis * amount of resources, the activity supports organizational effectiveness and the university's participation is approved by the President or designee.
- It is allowable for an employee to bring in Girl Scout cookies, put the cookies on a table with an envelope for the money, have people come by and take the cookies and pay their money. No resources were used. The personal de minimis rules * apply. The focus of this example is for university employees to avoid direct personal solicitations of co-workers and colleagues and opt for voluntary participation. This is especially important if you are a supervisor or manager so that others do not feel pressured to buy something or make a donation.
- Any use of university resources that results in an expenditure of funds should be avoided when conducting charity work on state time.
- State agencies should avoid direct involvement in commercial activities even if the event's proceeds may benefit a charity. Examples of improper direct involvement include distributing commercial product sales brochures and order forms to university employees, collecting product order forms in the workplace or on state paid time, and distributing products in the workplace or on state time.
According to the Ethics In Public Service law, “outside business or private employment” is any activity performed by a state employee that is paid for by an individual, organization or group other than Western Washington University (WWU), WWU Foundation or WWU Alumni Association. (RCW 42.52.110) Using any university resources to perform any work for your outside business or private employment is prohibited. (WAC 292-110-010 (5)(a))
EXCEPTION: According to the Assistant Attorney General's (AAG) Office, a university may create policies and procedures stating that university resources may be used to produce copyrightable materials which are owned by the faculty or staff member who produced the materials, and include the right to obtain royalties on the materials. For more information, employees should refer to the University’s Patent and Copyright Policy and Procedure (POLU4520.03 and PROU4520.03A) approved by the President’s Council on 10-25-99.
The Ethics in Public Service Act permits Western employees to perform compensated outside activities outside of their official university duties if all of the following are true: (RCW 42.52.120(1))
- the outside consulting is bona fide and work under the engagement is actually performed;
- the outside consulting is neither within official University duties nor under one's supervision;
- the outside consulting does not involve assisting others in transactions with the University in which the employee has participated;
- the outside consulting is not for an organization or person from whom the law prohibits receipt of gifts;
- the outside consulting is not under a grant or contract created by the University employee; and
- the outside consulting does not result in the unauthorized disclosure of confidential information or unapproved transfer of University intellectual property.
Is participating on an outside board or committee considered conducting outside business or supporting an outside organization?
- If you are a volunteer (uncompensated) member of an outside organization, the ethics law does not consider you to be participating in outside business or private employment because you are not receiving compensation from the outside organization. Your participation is considered personal and you are allowed to use university resources subject to the de minimis rules *. (RCW 42.52.110 (2)(d))
- If only one university employee is involved in supporting an outside organization through volunteer efforts and he or she is not trying to get campus wide participation in the support of the outside organization, the individual employee’s participation is considered “personal” and subject to the de minimis rules *.
- If the employee tries to get more participation or support from other Western employees, then the participation would be considered supporting outside organizations or groups which must be allowed by law or approved by the President or designee. Each participate must follow the de minimis rules * and the activity must support organizational effectiveness.
For most university employees, reimbursement of travel expenses is not considered a gift if received for performing a speech, presentation, appearance or trade mission made in an official capacity, therefore they are not subject to the gift limitations. Reimbursement of travel expenses is not considered an “honorarium.” (RCW 42.52.010 (10)(d), 42.52.140 & 42.52.150)
The Ethics Act defines “reasonable expenses” to include “travel, lodging, and subsistence expenses incurred the day before through the day after the event.” RCW 42.52.010 (10)(d))
However, if the employee is a “Section 4” employee, RCW 42.52.150 (4)(g)(i) states that the employee can not accept travel expense reimbursements from a person or agency that is regulated by the state employee or who seeks to provided goods or services to the agency (i.e. vendors.)
|The “Section 4” restriction applies to any employee whose duties include regulating certain members of an industry and they receive a gift from any entity potentially subject to being regulated, not just those currently being regulated. Likewise if the employee's duties include decisions about contracting or purchasing, the Section 4 gift restrictions would apply to gifts from any potential current or future contractor or vendor. (RCW 42.52.150 (4))
At Western, all “Budget Authorities” (BA) and “Financial Managers” (FM) would be considered Section 4 employees if they receive a gift or travel expense reimbursement from an outside person or organization that the BA or FM employee might potentially purchase goods or services from.
If an employee’s conference fees are waived for participating in a conference, the rules would be the same as those noted above for reimbursing travel expenses. That is, the waiver is not a gift for most employees and is not considered an honorarium for any university employee. If you are a Section 4 employee, you should review the Section 4 Gift rules as there are additional limitations to the types of gifts that you can accept. (See 5. Reimbursement of Travel Expenses section for the definition of a Section 4 employee.)
Western employees should never accept a gift, gratuity or any thing of value if the gift, gratuity or thing of value could be reasonably expected to influence your vote, judgment or action. (RCW 42.52.140)
In general, Western employees should not accept gifts, with an aggregate value in excess of $50 from a single source in a calendar year. Gifts given to an employee’s family members or guests are considered to have been received by the employee when calculating the $50 limit unless there is an independent relationship between the donor and the family member or guest. (RCW 42.52.150)
If you are considering accepting a gift with an aggregate value in excess of $50, you should read sections RCW 42.52.140 and 42.52.150. There are many exceptions to the $50 rule. Also, if you are a Section 4 employee, you should review these rules as there are additional limitations to the types of gifts that you can accept. (See 5. Reimbursement of Travel Expenses section for the definition of a Section 4 employee.)
An honorarium is any money or thing of value offered for a speech, appearance, article or similar items in connection with your official role at Western. An honorarium can only be accepted if specifically approved by the university and it is not on the prohibited list below. Western has an honorarium form to document the university’s approval.
Honorariums are prohibited in the following circumstances:
- The person offering the honorarium is seeking or is reasonably expected to seek contractual relations or a grant from the agency and you are in a position to participate in the terms or the award of the contract or grant;
- The person offering the honorarium is regulated by the agency and you are in a position to participate in the regulation; or
- The person offering the honorarium (i) is seeking or opposing or is reasonably likely to seek or oppose enactment of legislation or adoption of administrative rules or actions, or policy changes by the state officer’s or state employee's agency; and (ii) you may participate in the enactment or adoption.
You may use state time and resources to prepare materials for a speech or resentation for which an honorarium will be paid because the activity is related to your official role at Western. If Western does not allow you to use state time and resources, any payment you receive is not an honorarium subject to Western’s approval but is instead considered outside compensation and subject to RCW 42.52.120. (See section 3. Conducting Outside Business or Private Employment for more information.)
The Ethics Act states that faculty members may not have a beneficial interest in a textbook they have assigned to their own students. (RCW 42.52.030)
This does not mean that faculty members are precluded from using their own textbooks in their classes. This restriction means that faculty can not financially benefit from their decision to use their textbook in classes at Western. However, if a chair or committee, that does not include the faculty author, selects/designates the textbook then the faculty author can use the textbook and legally receive royalties from the textbook. This also applies if the faculty author is a decision maker in the choice of textbooks for other classes if his or her textbook is used in classes taught by other faculty. (RCW 42.52.020 & 42.52.110)
In September 2003, the Executive Ethics Board published Advisory Opinion 03-04 titled “Selling Textbooks Sent to Faculty for Evaluation or Review.” This opinion relates to those textbooks which are provided to higher education faculty members by publishers for the purpose of review where the faculty member retains the textbook. It also covers situations where faculty members receive “courtesy copies” or “desk copies” of textbooks that the faculty members are using to teach their classes.
In summary, this opinion provides for the following:
- State employees may accept gifts of informational material, publications or subscriptions such as textbooks which are related to the recipient’s performance of official university duties.
- Once these items have been received, state employees may:
a. Use or retain them to perform official duties; or
b. Dispose of them by either giving them to the university or to a charitable organization, as provided in RCW 42.52.010(10)(g); or dispose of them in accordance with agency adopted surplus property procedures.
RCW 42.52.010(10)(g) states that the recipient may return the textbook to the publisher or donate it to a charitable organization within 30 days of receipt. In cases where faculty members have accepted review textbooks and used them for official purposes for a period of time, the faculty member can subsequently decide that they no longer need the textbook for official purposes. At the point where the faculty member decides that the textbooks are no longer needed, the faculty member has 30 days to donate the textbook to a charitable organization.
- Faculty members are not allowed to sell review textbooks and then donate the proceeds to a charitable organization.
- Faculty members that participate in deciding which textbooks will be used in classes are allowed to receive and retain review or “desk copy” textbooks from the publisher.
Faculty members must use a limited amount of resources to facilitate the donation of their review textbooks.
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. Western’s regulation (WAC 516-24-110 Vendor solicitation) states that “door-to-door on-campus solicitation by vendors is prohibited. All unsolicited sales contacts shall be restricted to the purchasing office.”
Note: If a faculty member is paid to perform a review of a textbook, please refer to section 16. Faculty Accepting Compensation To Review A Textbook below for more information.
(Revised 5/18/04 - This section was formerly titled “10. PAYMENT IN KIND")
The Ethics Board has determined that the experience and knowledge that you gain during your employment at a State agency is not considered a “state resource.” Therefore, you can use your knowledge and experience to perform outside work, such as being an expert witness. (Advisory Opinion 96-07)
No university employee may have an interest (financial or otherwise, direct or indirect) or engage in a business or transaction or professional activity or incur an obligation that is in conflict with the proper discharge of the employee’s official duties. (RCW 42.52.020)
There are specific requirements if you participate in a university transaction while having a financial or beneficial interest in the transaction. Please read RCW 42.52.030 for specific prohibitions and limitations.
There are limits if you assist others in a transaction involving Western and you participate in the transaction. RCW 42.52.040 prohibits:
- A university employee from assisting another person, directly or indirectly, whether or not for compensation, in a transaction if:
- The employee has at any time participated in the transaction; or
- The transaction has been under the official responsibility of the employee within a period of two years preceding the assistance.
- A university employee from sharing in compensation received by another for assistance that the employee is prohibited from providing.
The state’s ethics law prohibits the use of facilities for political campaigns. Facilities include, but are not limited to, stationery, postage, machines, equipment, use of state employees during working hours, vehicles, office space, publications at Western and clientele lists.
Exceptions to this prohibition apply to elected officials and to activities that are the normal and regular conduct of Western. You should contact the Ethics office or Western’s Assistant Attorney General for guidance on whether an exception applies to you.
You should not disclose confidential information that you gained during your official duties, or otherwise use confidential information for personal gain or benefit. You can not intentionally conceal a record if you know that it should be released under RCW 42.17. (You should consult the public records officer, Dolapo Akinrinade at 360-650-2728 for assistance in handling public disclosure requests.)
WAC 292-110-010 (3) allows Western employees to use university computers and other equipment to access computer networks or other databases, including the Internet and e-mail as long the employee complies with the de minimis rules * and is not using the resources for prohibited uses **.
The WAC states that employees are only allowed to use university computers and other equipment to access the internet if the university has adopted a policy which allows this access. Western’s Using University Resources policy (POL-U5400.05) was adopted as an interim policy on December 2, 2002 and states that university employees are permitted to make occasional limited personal use of e-mail and the internet.
These rules apply to employees accessing the internet or e-mail from their university computers in their university work areas as well as remotely from home on the university’s provided dial up service.
The Executive Ethics Board’s Advisory Opinion 03-04 - Selling Textbooks Sent to Faculty for Evaluation or Review includes information relating to accepting compensation for reviewing textbooks. In the opinion, it reiterates that the basic premise of the gift rules state that university employees can not receive a gift if it could be reasonably expected that the gift would influence the action or judgment of state employees in the performance of their official duties.
The opinion states that a “ 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.” It also provides the following specific examples:
- 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.
- 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 these sets of facts, the faculty member would likely commit a violation of the Ethics Act.
(New - 5/18/04)
Contact and Resource Information
Director of Human Resources
Director of Internal Audit
Senior Counsel, Office of Attorney General
Executive Ethics Board Website
(This web site includes links to the RCW and WACs, frequently asked questions, Advisory Opinions, reasonable cause information and staff contacts.)
This document was created by Kim Herrenkohl , WWU’s Director of Internal Audit to provide information to WWU employees about the Ethics In Public Service RCW, related WACs and Ethics Board opinions and interpretations. This document is meant to be used as a guide to help WWU employees in their efforts to maintain compliance with the ethics rules and in so doing, uphold the trust placed in us by the citizens of Washington State. This summary of highlights is not intended to take the place of attending ethics training provided by the university, Ethics Board or other presentations.