Dianne Post
1826 E Willetta St
Phoenix, AZ 85006-3047
602 271 9019
[email protected]
10 October 2016
Governor Doug Ducey
1700 W Washington St
Phoenix, AZ 85007
Attorney General Mark Brnovich
1275 W Washington St
Phoenix, AZ 85007
RE: Director Jeffries violation of state law
Dear Governor Ducey,
The news media has been replete with reports of Director Jeffries of the
Department of Economic Security (DES) sending an email through the State email server
to all DES employees in opposition to the ballot measure Proposition 205. The
information was not a neutral or journalistic presentation of opposing arguments but a
screed in opposition to Proposition 205 an individual working against Proposition 205
who specifically said that his goal was to undermine the arguments for Proposition 205.
Allegedly you have stated that electioneering using state resources “is completely
unacceptable” (Arizona Capital Times, p. 15, Sept 30, 2016) We agree. Such behavior is
in violation of Arizona law and policy and we ask that immediate action be taken.
State law has made it clear that no public agency or departments shall use public
resources to influence an election including the use of equipment, telecommunications,
and computer hardware and software. (A.R.S. §16-192) Further, A.R.S. §41-752
specifically prohibits a state employee from engaging in prohibited activities while on
duty or at public expense. Prohibited activities include influencing the vote (A)(2). Said
employee is subject to at least 30 days suspension or dismissal (G). The policy is to
ensure that all employees are free from any express or implied pressure. (K) By sending
the email opposing Proposition 205, that is precisely what Jeffries did – put pressure on
employees to vote in a particular way on a political issue. The state legislature has
repeatedly made clear that this prohibition on political activity applies broadly and is to
be taken seriously. (A.R.S. §17-213 (game and fish department); A.R.S. §11-410 (county
resources), A.R.S. §9-500.14 (cities)).
Arizona case law also has made it clear that limits can be placed on partisan
activities by state employees so that the state operates without bias or favoritism. State
employees must not only be impartial but must appear to be impartial and therefore the
act is construed strictly. Fernandez v. State Personnel Board, 175 Ariz. 39, 852 P.2d
1223 (1993)
The reason for the limitation on political activity serves four interests: (1) It
enables government employees to enforce the law and execute government programs
without bias or favoritism for or against any political party or group; (2) It instills public
confidence in government by avoidance of even the appearance of "political justice"; (3)
It prevents the government work force from being employed to build a political machine;
and (4) It prevents political performance from being a factor in the employment and
advancement of government employees and frees public employees from pressure to vote
in a certain way or perform political chores to curry favor. Patterson v. Maricopa County
Sheriff’s Office, 177 Ariz 153, 865 P.2d 814 (1993) The Arizona Legislature in A.R.S.
§41-772 has made state employees subject to the same rules as federal employees under
the Hatch Act.
The use of public funds by state employees to influence elections is outlined
extensively in the attorney general opinion “Use of public funds to influence the
outcomes of elections, Opinion No: 115-002 Amended (R-15-002), Attorney General
Opinion, by Mark Brnovich, July 30, 2015.” Both prongs of the Brnovich two-part test
are met in this case: public resources were used for the purpose of influencing the
outcome of an election. While Jeffries may speak out individually regarding the ballot
measure Proposition 205 and indeed has donated money opposing the measure, he may
not, as he has done here, use public resources to seek to influence the outcome. There is
no doubt from the content of the email that Jeffries was urging those who read it to vote
in a particular manner. As Brnovich outlined in the attorney general opinion, the
legislature has provided a statutory definition of what influencing the outcome means and
that is supporting or opposing a ballot measure. There is no doubt that the email in
question opposed the ballot measure, Proposition 205.
As Brnovich highlights in the opinion, the state statutory prohibitions are very
broad and include the use of telecommunications, computer hardware and software or
any other thing of value. By sending the email through the state computer system, there
is no doubt Jeffries used telecommunications, computer hardware and software. Any use
of employee time during normal working hours has also been found to be a public
resource of value. As stated in the AG opinion, “If the use of public resources
unambiguously urges voters to vote for or against a ballot measure, it will violate the
statutory prohibitions …”
According to DES policy, use of email undoubtedly constitutes a public resource
of value. See Exhibit A in which DCSS sent out a message to all employees highlighting
the importance of violations of the DES email policy. See Exhibit B regarding the DES
E-Mail Usage Policy that outlines that all network and information system activity is the
property of DES and the State of Arizona. See Exhibit C that is language from Form 129
stating that any violation, including use of computer programs, equipment and data may
result in prosecution. The use of the intra-office email program, equipment, and data (list
of employees) certainly violates that policy and calls for an investigation.
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The reference booklet for Form 129 (Exhibit D) outlines that State systems and
information may be used only for the business of the state and shall reflect the image of
the State. Such systems and information may not be used to attempt to influence a ballot
measure.
For all the above reasons, we request that the Attorney General’s office
immediately begin an investigation into the use of state resources to attempt to influence
an election, suspend Director Jeffries pending the outcome of the investigation, and
pursue criminal charges and/or dismissal if warranted.
We would appreciate a response as soon as possible. Thank you.
Sincerely,
Dianne Post, Attorney
EXHIBIT A
From: Bright, Todd, A
Sent: Friday, March 27, 2015 4:51 PM
To: *DCSS ALL
Subject: Important Message to all DCSS Employees: Security Reminder
Importance: High
Please be aware that any and all allegations of DES email, Internet, and/or DES system
violations will result in a full investigation and the appropriate disciplinary action will
follow, up to and including dismissal. If you have any questions, please contact your
immediate supervisor for guidance.
Thank you for your attention to this very important matter!
Todd Bright
Division of Child Support Services
Assistant Director
SUMMARY OF POLICY 1-38-0029 Information Technology and Office Equipment and
Resources Acceptable Use This policy defines acceptable use of Information Technology
(IT) and office equipment and resources by DES employees and all others with access to
DES facilities, equipment and/or systems. The policy applies to all DES administrative
entities, councils, divisions, administrations, programs and external partners. Each DES
user will read and sign a J- 129 “User Affirmation Statement” form and complete the
initial Basic Data Security class (via classroom or CBT). Annually, each DES user will
complete the J-129 Recertification process. DES policy for the acceptable use of DES IT
and office equipment and resources is: Acceptable use of IT and office equipment and
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resources is limited to: Work related activities as defined by DES management.
Department training activities that are considered “career enhancing” or are directly work
related. Any personal use that does not: Consume more than an insignificant amount of
time or resources, Fall outside of reasonable duration and frequency, Interfere with staff
productivity, Adversely affect the performance of official duties by the employee,
Preempt any business activity.
EXHIBIT B
The first paragraph on page two of the document, titled ELECTRONIC MAIL
AFFIRMATION (E-Mail Usage Policy #1-38-0035) states; I have read and understand
the DES E-Mail Usage Policy (# 1-38-0035) or summary and I agree to comply with all
the terms and conditions of this policy. I understand and agree that all network and
information systems activity, conducted with, state/agency resources, is the property of
DES and the State of Arizona. I understand that DES reserves the right to monitor and
log all network activity, including electronic mail with or without notice. I have no
expectation of privacy in the use of these resources.
EXHIBIT C
“A violation of these requirements or any misuse of DES property including computer
programs, equipment, and data, may result in withdrawal of individual access privileges
and prosecution in accordance with any applicable provision of the law including ARS
13-2316.”
“I understand and agree that all network and information systems activity, conducted
with state/agency resources, is the property of DES and the State of Arizona.”
EXHIBIT D
J-129 Reference Booklet 072908 –
Policy - Under this policy, systems and information may be used only for the business of
the State, as defined by the State, and shall reflect the image of the State.
SUMMARY OF POLICY 1-38-0029
Information Technology and Office Equipment and Resources Acceptable Use
This policy defines acceptable use of Information Technology (IT) and office equipment
and resources by DES employees and all others with access to DES facilities, equipment
and/or systems. The policy applies to all DES administrative entities, councils, divisions,
administrations, programs and external partners.
SUMMARY OF POLICY 1-38-0035
DES E-MAIL USAGE
POLICY
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This document addresses policy concerning the use, preservation, disclosure and
disposition of electronic mail within DES, with special emphasis on records related
issues. This policy applies to all electronic mail systems in use within DES. These mail
systems reside in many environments including mainframe computers, mid-range
computers, LANs, WANs, intranets, and the Internet.
Formal Email (Record) - Email of any kind that is transmitted or received pertaining to
public business, which must be preserved as a record of an official act or policy (i.e.,
evidence of the organization, functions, policies, decisions, procedures, operations, or
other activities of the government). A.R.S. 41-1350.
Email User - As used in this policy, Email User refers to a DES employee, contract
employee or other DES-authorized person who accesses Email through the use of
state/DES owned/controlled computer equipment.
Transitory record - Transitory Records are those records that are required only for a
limited time to ensure the completion of a routine action or the preparation of a
subsequent record.
General - The purpose of Email is to provide expeditious communication among agency
employees, state employees, and others outside state government, generally similar to
conversation or voice mail. Email may be used to facilitate routine matters such as
scheduling meetings and conference calls, notification of legal and policy issues to be
resolved in more formal communication, requests for information, directives to complete
tasks, and notification of employees’ schedules and whereabouts
Privileged documents (e.g., confidential information, executive privileged
communication, privileged work product attorney-client privileged communications) may
only be created or transmitted in compliance with all relevant DES policies regarding
privileged and confidential communication.
Security - Email is not secure. Email transmitted inside DES is more secure than Email
transmitted to state agencies on the Multiple Agency Network (MAGNET), and far more
secure than Email transmitted via the Internet. Email intended for an email address
outside of DES containing confidential data must be sent via encrypted email. See 1-380079 Secure Email policy.
No Privacy in Email: Employees using Email shall have no expectation of privacy related
to the use of this technology. DES reserves the right to monitor Email use by any user at
any time.
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