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Government Code section 19990 prohibits state officers and employees from engaging in activities that are incompatible with their positions as state officials. State agencies are required to adopt incompatible activities statements in order to implement this provision. Because you are required to obey your agency’s Incompatible Activities Statement, you should examine it to determine those activities that are prohibited.
This morning, in a meeting, Jessica heard reference to her agency’s Incompatible Activities Statement. She asks Jose for more information.
Jessica: “Jose, do you know what is covered in our agency’s Incompatible Activities Statement?”
Jose: “Every Incompatible Activities Statement must cover activities specifically identified by the law. However, agencies may include additional activities in the statement as well.”
Jessica: “What types of activities should appear in an Incompatible Activities Statement?”
Jose: “The activities covered by an Incompatible Activities Statement may vary widely. They may point to behavior on the job or they may focus on private behavior that takes place outside the work place or in off-hours. It should clearly inform the agency officials of those activities that are incompatible with the official’s state service.”
Jessica: “If an agency determines that a civil service employee is engaging in an incompatible activity, is there an appeal process?”
Jose: “Yes, there is. A civil service employee must be afforded the same notice and appeal rights for a suspected violation of an Incompatible Activities Statement as the employee would have for any other personnel action. In addition, the provisions of an Incompatible Activities Statement may be superseded by a memorandum of understanding between the state agency and an employee union.”
Jessica: “What advice can you offer me regarding incompatible activities?”
Jose: “Well, perhaps this is stating the obvious, but examine your agency’s Incompatible Activities Statement to gain a clear understanding of the activities prohibited by it.”
Jessica: “What would you say is the single most important thing for officials to know, in general, about incompatible activities?”
Jose: “Use of state time, resources and prestige for private gain is prohibited.”
Jessica: “Now what about gifts? Are there any prohibitions in the Incompatible Activities Statement?”
Jose: “Actually, there is. Acceptance of a gift is prohibited if it is intended to influence or reward the official, and it is from a person doing business with the official’s agency or one who is regulated by it.”
Jessica: “Okay Jose. Last question. What are the penalties for violating the Incompatible Activities Statement?”
Jose: “Violations may result in personnel, civil and criminal sanctions.”
Jessica: “Thanks for clueing me in.”
The law specifically requires that certain activities be prohibited in each agency’s Incompatible Activities Statement. Let’s take a look at some examples of these provisions.
Using the Prestige or Influence of the State for Private Gain
Use of official title or stationery for private gain is prohibited.
Using State Facilities, Time, Equipment or Supplies for Private Gain
Using state telephones, computers, fax machines, mail, paper, vehicles, office space, or compensated employee time for private gain is prohibited.
Using Confidential Information for Private Gain
Information that is not a matter of public record is not to be used for private gain.
Receiving Compensation from other than the State for the Performance of State Duties is Prohibited
An official’s state salary fully compensates the official for the performance of official duties. Acceptance of private funds for these purposes is improper.
Performing Private Activities that Later may be Subject to the Control, Review, Inspection, Audit, or Enforcement by the Officer or Employee is Prohibited
A person may not act in an official capacity to regulate his or her private activity. For example, an employee who reviews license applications may not review his or her own license application.
Receiving Anything of Value from a Person Who is Seeking to do Business with the Official’s Agency where the Item of Value could be Reasonably Interpreted as Having Been Intended to Influence the Official is Prohibited.
Persons who wish to influence government often seek to do so by bestowing gifts of food, drink, entertainment and similar favors on officials. Unlike the Political Reform Act, which limits the amount of gifts, this provision focuses on the circumstances surrounding the gift and whether it reasonably appears that the purpose of the gift was to influence the official.
Where a gift is from a person doing business with the agency or regulated by it, and it is intended to influence an official, acceptance of the gift is an incompatible activity even though it is not prohibited under the Political Reform Act.
Section 19990 does not establish any particular penalty for violating an Incompatible Activities Statement. However, civil service laws specifically provide that violation of an Incompatible Activities Statement can result in disciplinary action against civil service employees. Violation of an Incompatible Activities Statement also may constitute a violation of other laws as well. For example, using state resources for private gain may violate other provisions of the Government Code and Penal Code provisions.
Examine your agency’s Incompatible Activities Statement to be sure you are not in violation of any of the provisions. Following is a list of important points.
You have completed the "Incompatible Activities of State Officers and Employees" module. The next module is Doctrine of Incompatible Offices.
The California Attorney General's Office and the Fair Political Practices Commission