ADVISORY OPINION 98-12-1161

ITS/Personal Use of Cellular Phones

ISSUE: WHETHER COUNTY EMPLOYEES MAY MAKE PERSONAL USE OF COUNTY CELLULAR PHONES UNDER CERTAIN JOB RELATED CIRCUMSTANCES WITHOUT REIMBURSING THE COUNTY FOR THE ASSOCIATED COSTS?

OPINION: Employees on 24-hour call, who use county-issued cellular phones to notify family members or dependent care providers of sudden changes in work schedule, may not be required to reimburse the County for the costs associated with such use. Under specific circumstances, certain limited use by employees may be considered as the conduct of official business, since the use would not be necessary except for the unique demands of their job responsibilities. As with the use of all county property, management must establish and maintain clear policies and procedures to ensure accountable and responsible use of county-issued cellular phones.

STATEMENT OF CIRCUMSTANCES: King County Information and Telecommunications Services (ITS) is developing new policies regarding the use of cellular telephones by division employees. ITS, under the Department of Information and Administrative Services, is responsible for recommending standards and providing services for county-wide information technology, including computer hardware, software, and communications.

Certain mid-level ITS staff are employed on an "on-call" basis, which means they may be contacted 24 hours a day and required to return to work to resolve problems with the County’s computer systems and networks. These employees support "mission critical" systems, those which are key to essential business functions, and represent significant financial or legal liability to King County. They include, but are not limited to, systems supporting public safety, finance, and transit operation, and the networks on which those systems rely.

ITS management issues cellular phones to these on-call employees so they may be accessible at all times. Since employees may be contacted any time during a 24 hour period, situations may arise in which the employees are contacted and required to return to work while they are on their way home or at a remote location. Often, such a request necessitates the employee to contact family members or dependent care providers to advise them of the change in work schedule. ITS management asks the Board of Ethics to issue an advisory opinion on whether employees may make such personal use of their county-issued cellular phones under these job-related circumstances without being required to reimburse the county for the associated costs.

ANALYSIS: In September, 1993, the Board of Ethics issued Advisory Opinion 1078 addressing whether the incidental and personal use of county cellular phones violated the Code of Ethics. In its deliberations, the Board relied in part on K.C.C. 3.04.020(A) Use of Public Property:

In that opinion, the Board found that "the Code of Ethics contains a strong presumption against any type of personal use of County property." In addition, they directed that "where incidental and personal use of cellular phones must occur, employees should maintain detailed records of such use and reimburse the County at its cost." Three years later, in Advisory Opinion 1146, the Board issued general guidelines for the use of County property, equipment and funds under the Code of Ethics. The Board advised that the use of telephones would not violate the Code of Ethics if the calls did ". . . not impose an additional cost to the county and are for the purposes of accommodating minimal personal tasks, e.g., coordinating transportation, making medical and dental appointments, notifying family members of work schedule changes, or responding to emergencies." The Board continued to differentiate between the uses of telephones and cellular phones in stating that employees should reimburse the county for incidental personal calls made using cellular phones.

In its request for an advisory opinion, management has asked if it would be permissible under the Code of Ethics not to require an employee to reimburse the County for the use of the cellular phone under the following circumstances:

• The employee is on-call 24 hours a day;

• The employee is directed by management to return to her or his work site;

• The employee is in a remote location or en route home (i.e., the employee does not have readily available to her or him non-county telephones or other means of communicating with others);

• The employee has a cellular phone issued to her or him by the County for conducting official business; and

• The employee needs to communicate with family members or dependent care providers about her or his change in work schedule.

In the specific circumstances identified above, the limited uses of cellular phones would directly result from the employee being directed by management to return to work at an other than usual time. Such limited uses could be considered the conduct of official business since the uses would not be necessary except to meet the needs of the County. In these circumstances the Code of Ethics would not require that employees reimburse the County for such uses. Uses of cellular phones in other circumstances would continue to come within the reimbursement opinion previously issued by the Board. In offering this opinion, the Board expects that ITS management will develop and maintain policies and procedures which provide safeguards and accountability in all cellular phone use by its employees.

References: King County Code of Ethics, sections 3.04.020(A); Advisory Opinions 1078 and 1146.

ISSUED THIS ___________ DAY OF _____________, 1999.

Signed for the Board: _____________________________

Dr. Lois Price Spratlen, Chair

Members:

Mr. Roland H. Carlson
Judge Paul M. Feinsod
Lembhard G. Howell, Esq.
Rev. Paul F. Pruitt

cc:

Ron Sims, King County Executive
King County Councilmembers
Duncan Fowler, Director--Ombudsman, Office of Citizen Complaints
Carl A. Johansen, Senior Deputy Prosecuting Attorney
Linda Greenough, Planning, Finance and Administration Manager, ITS, DIAS