Electronic Devices Frequently Asked Questions (FAQs)
01. May a State employee use a state-issued cell phone or smartphone 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 smartphone'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, smartphone'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.
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 smartphone'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.
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.
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 smartphone 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)
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 the State.
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 smartphone 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 smartphone (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.