01. May a State employee use a state-issued
cell phone or PDA for personal calls similar to using a desk
phone?
Yes. The Executive Branch Ethics Act prohibits the use of state
equipment for personal gain or to benefit a state officer's
private interests. The focus of the Ethics Act is preventing
substantial misuse. State employees may use desk telephones for
local personal calls so long as the calls are short or, if
lengthy, made during a break or lunch period. Employees may not
make personal long distance calls. The State issues cell phones
and PDA's to state employees to ensure out-of-office
accessibility during the day and in some cases during non-duty
hours. For employees on travel, PDA's permit access to state
email. The Ethics Act permits us to accommodate limited personal
use of these devices if the use may be characterized as
insignificant. That is, the use should be incidental to the
performance of state duties, should not impact state business and
should not result in additional cost to the state. State equipment
is not intended to be a substitute for an employee's personal
phone.
02. Is there any standard for determining
what level of personal use is considered insignificant?
The Ethics Act states general standards of conduct. When
addressing ethics matters, the designated ethics supervisors and
the attorney general usually review all the circumstances to
determine whether a conflict or problem is insignificant.
Insignificant use of a desk phone for local calls is usually
defined by the portion of duty hours spent. In contrast, cell
phones or PDA's issued under plans providing an allowance of
minutes for the monthly fee and used during both duty hours and
non-duty hours may have extra charges for overages. The Department
of Administration asked the attorney general to consider the issue
of insignificant use of these electronic devices and, if possible,
adopt a bright line standard to guide employees. With input from
DOA, the attorney general concluded that personal use could be
presumed insignificant if the personal use does not exceed the
greater of 30 minutes or 5 percent of the allowance of minutes
under the applicable plan per month and the employee reimburses
the state for any additional separate charge attributable to
personal use.
03. How is the threshold calculated for an
unlimited cell phone plan?
Personal use is never unlimited. Where a cell phone plan does not
have an allowance of minutes and permits unlimited use for a
monthly fee, the employee's personal use is presumed to be
insignificant use under the Ethics Act if it is limited to the
greater of 30 minutes or 5% of the total minutes used per
month.
04. Some State employees have a
minute-to-minute plan for their state-owned device. How is
personal use treated under this type of plan?
The presumption that no violation of the Ethics Act occurs for
insignificant personal use only applies when there is no charge to
the state. Therefore, charges incurred for personal use under a
minute-by-minute plan must be reimbursed. Phones issued under
plans charging a fee for each minute of use are issued when the
anticipated state use is limited and less than the monthly plan
with the smallest minute allowance.
05. How are the standards for determining
insignificant use applied to a shared state owned device?
The answer to this question will cover two types of shared device
situations.
First, a shared situation may arise when the device is rotated
amongst designated employees for the purposes of being
"on-call" for a period of time. In this particular case,
the allowable amount of personal use for the device may be
allocated to each individual employee based upon the time that
they are specifically assigned the device.
Second, a shared situation may arise when the device is located in
a remote camp in which multiple employees may be using the device
during the same timeframe. In this particular situation, each
employee may make insignificant use of the device. If the total
use in a month results in excess charges, the work supervisor will
review the billing to determine whether any employee's
excessive use is responsible for the charges.
06. Is a call home to inform family that an
employee will be working late a personal or business call?
Calls to family members, whether on a desk phone or cell phone,
are generally considered to be personal. A limited call of short
duration is an insignificant use of state equipment for personal
use under the Ethics Act. If an employee's personal use of a
cell phone exceeds the allowable insignificant use standard and
appears to result from these types of calls, the work supervisor
or designated ethics supervisor may review the circumstances to
consider whether repeated calls of this nature related to unusual
state business demands and should not be considered personal if
the number of necessary calls unfairly causes the employee to
exceed the standard.
07. May an employee's call home to
family members be considered a business call when there is a
factor of danger or safety issues involved in their work status?
These involve situations where the employee is in possible danger,
such as traveling to a remote area in inclement weather, or duties
where threatening interaction with the environment, wildlife or
individuals may occur. A "safety" call home to
communicate status and/or check in to assure the family they are
safe, is considered to have a business purpose. So long as such
call is short, no more than a few minutes, the call will not be
considered a personal call. Work supervisors are responsible for
determining whether such calls, or any portion of them, are
business or personal.
08. How will an agency determine if an
employee is exceeding the standard for insignificant use and how
will the matter be addressed?
It is presumed that state officers will comply with their
obligations and the established standards of conduct. Review of an
employee's monthly usage will typically occur if the billing
has a charge for use exceeding the monthly allowance or other
extra charge. It may occur if your agency does a routine audit of
your bill for IRS compliance purposes. It may also occur if a work
supervisor or the ethics supervisor suspects misuse or receives a
report of potential misuse. The reviewer may seek input from a
work supervisor or the employee to determine whether the extra
charges result from business or personal use and whether the
employee has exceeded the standard. The employee's work
supervisor will direct the employee to reduce his personal use, if
the standard was exceeded, and repay extra charges resulting from
personal use. Compliance will resolve the matter. An
employee's failure to reimburse the state for excess charges
will be reported to the agency ethics supervisor for action as a
violation of the Ethics Act.
09. What happens if an employee's
personal use of a State cell phone or PDA exceeds the allowable
insignificant use standard more than once?
If an employee's combined state and personal use results in
excess charges more than once in a several month time period, the
work supervisor will review the usage in conjunction with the
employee to determine whether the charges result from state
business or personal use. If the former, steps should be taken to
adjust the employee's monthly allowance to better accommodate
state business needs and the permitted personal use. If the
latter, the work supervisor should again direct the employee to
reduce personal use and pay extra charges. Although each instance
of an excess charge for personal use, if repaid, is presumed to be
an insignificant use and therefore curing the violation of the
Ethics Act, the circumstances of repeated extra charges for
personal use after instruction to reduce personal use or
significant use exceeding the standard will be referred to the
agency ethics supervisor to be addressed as an ethics violation.
It may result in disciplinary action, payment of the entire
personal usage received as a benefit, or other action under the
Ethics Act. (1/1/11)
10. Are satellite phones treated the same as
cell phones in terms of personal use?
Not exactly. When satellite phones are in use in the field, and
there is no cell phone service in that area for employees to
utilize their personal cell phones for their use, the employee may
be allowed to use the satellite phone to call home. However, this
is still considered personal use of a state device and the amount
of that personal phone call should be reimbursed by the employee.
Safety checks using a satellite phone will be handled as described
in #7 above.
11. Can the employee purchase the
state-issued phone and convert the device to a personal use
device?
No, state employees are not allowed to purchase the state device.
This is prohibited in the contract held by Enterprise Technology
Services (ETS).
12. Can the employee keep their state cell
phone number and transfer that number to their personal device?
Yes, the state cell phone number may be transferred to the
employee's personal cell phone device. The employee must
notify their departmental administrative office of this change.
13. If an employee uses a personal iPhone,
BlackBerry, or other similar device for state business purposes,
how is it classified for reimbursement?
The classification of the device should be based upon the function
of the device and the required business need for the employee as
determined by their work supervisor. If an employee has a business
need for both phone and data capability, the employee would be
reimbursed for these functions. However, if there is no business
need for the employee to access their state email in the field,
reimbursement should relate only to its function as a phone.
14. How can requiring State employees to be
accessible by phone or PDA affect their pay or leave status?
State contracts provide for some sort of recall or stand by pay,
therefore depending on whom the employee is the specific contract
should be consulted. Generally, if we are requiring a classified
employee to be available after work hours (such as requiring them
to answer their cell phone or respond to emails), we will have to
compensate them for their time. There are, of course, exceptions
to this. Some employees are already compensated (part of their
wages) for having to be on call or the employee may have a
Telework Agreement in place. In addition, many employees must
participate in Stand-by Rosters as part of their employment and
they too are compensated under the contract. Even if an employee
is overtime ineligible, there may still be restrictions on what we
can require them to do without compensation (such as flex time
agreements).
If an employee is on leave and we require them to be available
(thereby work), we would have to compensate them for their time
which would interrupt their leave. If we know an employee is
working for the State, we cannot also require them to take
personal leave. While many employees will answer their emails or
phone while on leave, please be careful before requiring them to
do so, since there will be implications to this.
Essentially, if a State employee is given a State cell phone or
PDA (or if they are given an allowance for the equipment), that
does not mean we can require them to be accessible after work
hours or during leave. If we do require them, then stand by,
recall, or overtime pay may result. Please consult with the
Division of Personnel and Labor Relations prior to requiring an
employee to be accessible after work hours.
