DISCLAIMER: The answers provided by the Executive Director of the Washington State Executive Ethics pursuant to WAC 292-110-050(7) are not binding on the Executive Ethics Board, which retains sole authority for issuing formal and binding advisory opinions. The answers are also based solely on the facts presented. If the facts are different than what is provided, the analysis may change.
Question: university employees are allowed to download software for home use. What are the restrictions on the use of that software? If faculty put it on their own computers, can they use the software for research, service, or personal use?
Answer: Although not indicated, I am assuming that the state employee is receiving a discount on the software because they are a state employee, similar to the Microsoft Home Use program. If this is incorrect, please let me know. Since the software is designated for home use and as long as the discount is broad based (i.e. all college employees), it does not appear to implicate the Ethics Act to use it for personal use. However, they would need to use the software on their own time and not using their state computer.
Question: Let’s say company X contacts me about a project that could definitely be used for my FAP (say, needing expertise on a patent, which I know I can count as a scholarly activity in my regular evaluation). Let’s assume my name will be in the patent and, thus, I will potentially get financial remuneration when someone uses our patent. Also, let’s assume I will be paid (by company X) for my services in generating the patent. Let’s also assume that I do get permission to perform outside employment as per 401-02. (1) Can I use my EWU email to communicate back and forth with company X? I would assume the answer is “yes”, since this activity helps me in fulfilling my FAP. (2) Can I use university equipment for this activity? I would assume the answer is “no”, since I will be financially remunerated. I am not sure about my guesses in either of the answers above, since there is an intersection between benefit for EWU (as it can count in my FAP) and financial benefit for myself.
Answer: In the scenario below, it appears this has been/will be approved as outside employment by the college. If that is the case, then state employees may engage in outside employment as long as it comports with their college’s policies, the outside employment does not conflict with official state duties and there is no use of state resources to accomplish any of the outside work. Be advised that state resources include scheduled work time, facilities and email, among other things. RCW 42.52.160 and WAC 292-110-010. Whether the outside employment could be used to meet performance requirements would be the college’s prerogative and not within the jurisdiction of the Executive Ethics Board.
Question: Under the collective bargaining agreement between EWU and the United Faculty of Eastern Washington University, one of the pieces of compensation owed to faculty is that they own traditional academic works. The specific language of the contract is:
The university does not claim ownership rights to ‘traditional academic works.’ They are created independently and at the creator’s initiative for traditional academic purposes. Examples include class notes, books, theses and dissertations, educational software (also known as courseware or lessonware), articles, non-fiction, fiction, poems, musical works, dramatic works including accompanying music, pantomimes and choreographic works, pictorial, graphic and sculptural works, scrips and screenplays or other works of artistic imagination that are not created as an institutional initiative.
As these items are considered a faculty member’s personal intellectual property, may the faculty sell or license these rights without violating the Washington State Executive Ethics Law? You can access the Intellectual Property provisions of the contract at https://inside.ewu.edu/hr/files/2017/06/EWU-UFE-Collective-Bargaining-Agreement-2016-2019-1.pdf. Refer specifically to Appendix B.
Answer: This question hinges on the resources used to create the product. Just to note, this is an issue that has generated discussions with a few colleges recently, more specifically using state resources and profiting off creation of such. Generally, this goes back to RCW 42.52.160(1), no state employee may use any person, money, or property under the employee's official control or direction, or in his or her official custody, for the private benefit or gain of the employee. (emphasis added) Based on this, Board staff has historically advised it would not be appropriate for the faculty (or any state employee) to use state resources to produce a product and then make a profit on that product, even if creation of the product was part of their official duties. Should the college and the faculty enter into an agreement about royalties, which we understand has been some colleges’ response to this issue, it may need to be treated as outside employment and/or as a contract with their own agency and need Ethics Board approval. Here is more information on that process.
While the Board has provided guidance on textbooks in the past, it has never issued an advisory opinion on the specific question of profiting on a product that state resources were used to produce. We have encouraged other colleges, and encourage EWU, to consider requesting an advisory opinion on this issue so there is official Board guidance.
(1) Question: can faculty members use university computers to apply for grants to support their research if they go through the grants office?
Answer: Whether this is an appropriate use of state resource depends on a few factors. The first thing to determine is whether the use is for an official state purpose. Under the use of state resources rule, WAC 292-110-010(2)(a), official state purpose is defined as, “use of state resources to conduct official duties, activities reasonably related to the conduct of official state duties, activities related to state employment, and activities otherwise allowed by statute.” Without more information, it is difficult to determine whether the use would fall under this section. It should be noted that “activities related to state employment” is not intended to expand the definition to encompass use without a strong nexus to an individual’s job duties as defined by their employing agency.
If the use does not fall under that definition, then it must be agency approved use in order to be appropriate use. However, agency approved use only allows for limited use of state resources “as long as that use is specifically authorized in an agency policy and conforms to that policy.” WAC 292-110-010(2)(b). Some examples of agency approved use are employee recognition and agency sponsored health fairs. WAC 292-110-010(2)(b)(ii) and (iv). Based on the information included, the use would not fall under this section.
Given that the use does not appear to fall under agency approved use, and if determined that the use is not for an official state purpose; it would be analyzed under the de minimis section of the rule. In order to be considered de minimis the use would have to meet all of the following conditions:
(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 any state officer's or employee's official duties;
(v) The use does not compromise the security or integrity of state property, information systems, or software;
(vi) The use is not for the purpose of conducting an outside business, in furtherance of private employment, or to realize a private financial gain; and
(vii) The use is not for supporting, promoting the interests of, or soliciting for an outside organization or group.
Again, if the use does not meet all of the criteria, it would not be considered de minimis and could result in a violation and fine. 02/13/19.
Question: May faculty employ EWU students to babysit faculty member’s children?
Answer: As long as the student is no longer a student of the particular faculty member and there is no indication they will be, all grades and evaluations are in on that student if they were a recent student, and the faculty does not supervise the student in any fashion; then the faculty can utilize the babysitting services. For reference, this situation may implicate RCW 42.52.070 (special privilege) and RCW 42.52.020 (conflict of interest).
Question: Do faculty need to stop incorporating service learning in their classes in order to protect themselves?
Answer: Not necessarily, unless the only non-profit that is given as an option is the faculty’s non-profit or one they are closely associated with. This question goes back to two ethical concerns under the Ethics Act; special privilege (RCW 42.52.070) and use of state resources for private benefit or gain. First, it is important there is not an appearance that a state employee endorses a particular non-profit, particularly if they are involved with the non-profit. Only recommending one non-profit over another could be seen as this and could be seen as a misuse of state resources under RCW 42.52.160 and WAC 292-110-010. Additionally, we usually advise that a list with multiple non-profits be provided to avoid the argument that a special privilege has been given the particular non-profit. If the list includes the faculty’s non-profit but also includes others in the area that are not, that would alleviate the ethical concerns.
Question: when can I use my university computer, faculty office, and work email address to do scholarly work and service? Examples: use of a university computer to do scholarly-related activities during a trip to a national conference, use of a university email address for professional communications with a local entity with whom I would like to develop different projects for EWU students and for community service to be included in a FAP. All activities are unpaid and would be included in my FAP for promotion.
Answer: Whether this is an appropriate use of state resource depends on a few factors. The first thing to determine is whether the use is for an official state purpose. Under the use of state resources rule, WAC 292-110-010(2)(a), official state purpose is defined as, “use of state resources to conduct official duties, activities reasonably related to the conduct of official state duties, activities related to state employment, and activities otherwise allowed by statute.” Without more information, it is difficult to determine whether the use would fall under this section. It should be noted that “activities related to state employment” is not intended to expand the definition to encompass use without a strong nexus to an individual’s job duties as defined by their employing agency.
If the use does not fall under that definition, then it must be agency approved use in order to be appropriate use. However, agency approved use only allows for limited use of state resources “as long as that use is specifically authorized in an agency policy and conforms to that policy.” WAC 292-110-010(2)(b). Some examples of agency approved use are employee recognition and agency sponsored health fairs. WAC 292-110-010(2)(b)(ii) and (iv). Based on the information included, the use would not fall under this section.
Given that the use does not appear to fall under agency approved use, and if determined that the use is not for an official state purpose; it would be analyzed under the de minimis section of the rule. In order to be considered de minimis the use would have to meet all of the following conditions:
(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 any state officer's or employee's official duties;
(v) The use does not compromise the security or integrity of state property, information systems, or software;
(vi) The use is not for the purpose of conducting an outside business, in furtherance of private employment, or to realize a private financial gain; and
(vii) The use is not for supporting, promoting the interests of, or soliciting for an outside organization or group.
Again, if the use does not meet all of the criteria, it would not be considered de minimis and could result in a violation and fine. There were a few examples included in the email, and depending on whether these activities are considered part of the faculty’s official duties, they may be appropriate use.
Question: Can faculty/employees use state resources (e.g. email) to communicate with professional organizations about regulations, state and federal policy matters, and/or legislation? Can they use state resources to communicate on any other matters? Is there any difference if the participation is part of a workload? If so, to what extent can they use their university resources for such purposes? Are there any limitations for employees to use their title in signing off on communications related to these matters that are issued by the professional organization?
Answer: Under the use of state resources rule, WAC 292-110-010, state resources can be used for official state purposes which includes “[m]embership or participation in professional associations that enhance job-related skills of the state officer or employee, so long as use of state resources for this purpose has been authorized in writing.” WAC 292-110-010(2)(a). If the use does not fall under this section, then it would be analyzed under the de minimis section of the rule. Use is not considered de minimis if it is for supporting, promoting the interests of, or soliciting for an outside organization or group. WAC 292-110-010(3)(vii).
Based on this, while it may be permissible to participate in professional organizations because it falls under the exception in WAC 292-110-010(2)(a), there would need to be analysis as to whether any communication (including sending information on regulations, state and federal policy matters, and/or legislation) is part of participation in that organization or not. As for use of title, the faculty may use their title in their communications.
* The above information is verbatim from our communication with Ms. Reynolds and we understand that her response did not answer all of the questions that were presented.
Question: EWU believes that it is important for student recruitment to be able to list faculty’s academic achievements e.g. publications. A number of individuals would like to be able to include the names of their publications, the names of the publishers, and links to websites where the publications could be purchased e.g. Amazon, Publisher, etc. Based on the state ethics rules, could you please advise what if any of this information would be appropriate to include on University websites, social media sites and other communications?
Answer: Based on the information included, the faculty could include the title of the publications and publisher; however, it would not be an appropriate use of state resources to include a link to purchase the publication. This would include, but would not be limited to, links to Amazon and links to the publisher’s website where the publication is offered for purchase.
Follow-Up Question: Would it be acceptable to use state resources to link to a faculty member’s private website, assuming you could not purchase directly from that website? If it is permissible to link to the private website, does it make a difference if the personal website includes live links to purchase the publication from third parties?
Follow-Up Answer: As long as linking to the faculty’s private website is in accordance with any applicable college policy, it does not appear this would have ethical implications. I would advise caution; however, if the link goes directly to a site imbedded in the faculty’s site to purchase the book as opposed to the general page on the site that lists all of the faculty’s books. As for the content of the private website, this would not be an issue that would fall under the Ethics in Public Service Act.