At its May 20, 2016, meeting, the Oregon Government Ethics Commission (Commission) adopted the following advisory opinion:

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1 -Oregon Kate Brown, Governor Government Ethics Commission 3218 Pringle Rd SE Ste 220 Salem, OR Telephone: Fax: Web Site: ogec Dexter A. Johnson, Legislative Counsel Oregon Legislative Assembly 900 Court St NE S101 Salem, Oregon Dear Mr. Johnson: At its, meeting, the Oregon Government Ethics Commission (Commission) adopted the following advisory opinion: OREGON GOVERNMENT ETHICS COMMISSION ADVISORY OPINION NO. 16A-1002 STATED FACTS: [The following facts represent a combination of those provided in the original request for a Commission Advisory Opinion and information gathered via telephone with a Microsoft Representative on May 5, 2016.] Individuals who wish to use Microsoft Office for personal use have traditionally purchased individual licenses to install and use on their personal computer devices. Microsoft licenses its Microsoft Office software for this purpose through its "Office for home" plans. Microsoft's website sells these plans at retail prices ranging from $69.99 to $229.99, depending on the plan. In addition to the plans Microsoft offers to individuals for home personal use, Microsoft also has plans for business and organizational customers. Microsoft Volume Licensing customers with active Software Assurance coverage receive a number of benefits, including maintenance and access to new versions of Office applications, technology support and training, and personnel access to the Home Use Program ("HUP") and Microsoft Office 365 ("Office 365"). The HUP enables the personnel of Volume Licensing customers with Software Assurance to individually license Microsoft Office-comparable to the "Office for home" plan available for retail at $ on their own personal devices for $9.95. The purpose of this offer is to enable individuals to use at home the same Microsoft products they use in the workplace. As such, Microsoft provides the HUP benefit based on the number of computer devices a Volume Licensing customer has. For example, if a Volume Licensing customer with active Software Assurance maintains Microsoft licensing on 700 computers, 700 HUPs are available for that customer's personnel to individually license and install on their personal devices for the discount rate of $9.95. Persons who license

2 Page 2 Microsoft Office through the HUP own, control, maintain responsibility for it. However, these HUP licenses are temporary. To that end, Microsoft requires individuals to sign an agreement promising to cancel their HUP whenever they cease to work for the Volume Licensing customer or when Software Assurance coverage ends. Another benefit of Volume Licensing with Software Assurance is access to Office 365. Office 365 is similar to the HUP in that it also permits the personnel of Microsoft's Volume Licensing customers to access Microsoft applications on their personal devices, as a result of the Volume Licensing agreement with Microsoft. However, unlike the HUP, Office 365 is licensed according to the number of users under a Volume Licensing agreement (rather than the number of computers). Furthermore, Office 365 does not function to allow personnel to access Microsoft applications on their personal devices under a separate (albeit limited) license, as with the HUP. Rather, Office 365 permits any qualifying user to install and remotely access (usually via internet connection) an already licensed Microsoft application on up to five devices. For Volume Licensing customers, this means that the personnel who they license as users have the ability to access their Microsoft applications on up to five different computer devices. Similar to the HUP, when an individual who uses Office 365 (as a result of being a user under a qualifying Volume Licensing agreement) ceases to be a user under that agreement, the person loses access to Office 365. As use of Microsoft Office applications have become ubiquitous for use in today's office place, Microsoft acknowledges that it currently maintains these Volume Licensing agreements, offering the same benefits, under the same terms, with thousands of public and private entities in Oregon and worldwide. However, Microsoft is unable to provide an approximation of the exact number of private entities in Oregon. As one such entity whose Microsoft licensing grants access to these benefits, the Legislative Assembly wishes to know the extent to which Oregon Government Ethics law permits legislative public officials to make personal, professional, and campaign use of the HUP and Office 365 benefits discussed above. QUESTION 1: Does Oregon Government Ethics law prohibit legislative public officials from accepting a Microsoft discount on purchasing software (the Home Use Program ("HUP")) for personal use on personal devices, ifthe discount is only available as a result of the Legislative Assembly's contract with Microsoft? ANSWER 1: No. If the HUP is extended to others who are not public officials on the same terms and conditions, acceptance of this discount offer does not appear to violate Oregon Government Ethics law. When a public official is offered something of economic value at no cost or for a discounted cost, from a source other than the public official's own public body, the answer to whether acceptance is permissible requires an analysis of the

3 Page 3 gift provisions (7)(a). In this case, the analysis focuses on the definition of gift in ORS A "gift" means something of economic value given to a public official, a candidate or a relative or member of the household of the public official or candidate: (A) Without valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, which is not extended to others who are not public officials or candidates or the relatives or members of the household of public officials or candidates on the same terms and conditions. As appears to be the case here, a discount offer on goods or services for personal use meets the meaning of a "gift", unless it is also "extended to others who are not public officials... on the same terms and conditions." 2 Analysis of the "terms and conditions" by which "others" who are not public officials are extended an offer is pivotal in determining whether the financial benefit offered meets the definition of "gift". The Government Ethics Commission ("Commission") has interpreted "others" to indicate a significant portion of the general public, in Oregon, who are not public officials (Guide for Public Officials 26 (October 2010)). It is only as a result of the Legislative Assembly's Volume Licensing agreement with Microsoft that individual legislative public officials may license Microsoft Office products through the HUP at a significantly discounted rate. However, the HUP is a benefit that Microsoft offers, under the same terms, to the personnel of all of its customers who hold the same type of Volume Licensing agreement. Furthermore, although the actual number of private industry and public entity customers in Oregon is unknown, the facts provided seem to assume that the totals likely do include a significant portion of the general public. Thus, if the Legislative Assembly is only one of thousands of entities, both private and public in Oregon, whose licensing agreement grants individuals access to the same discount, the offer does appear to be extended to others who are not public officials on the same terms and conditions, and as such would not appear to be gift for the purposes of Oregon Government Ethics law. 1 Since the 2008 reform of ORS 244's provisions governing gifts and financial gains (SB 1 O (2007) (eff. Jan. 1, 2008)), the Commission has read the amended provisions as consistently as possible. Shortly after these amendments took effect, the Commission had occasion to determine a similar issue in Adv. Op. 09A (July 9, 2009) (whether State employees can accept provider offered discounts on personal cell phones), and did so using a "three conditions" analysis in review of ORS (1). However, the Commission has since determined that as a result of amendments to ORS adding express exception for items not violating gift provisions (ORS (2)(e)- (g)), the "three conditions" analysis is no longer necessary (see Guide for Public Officials (October 2010)). 2 This Commission Advisory Opinion supersedes any previous OGEC guidance issued on the question of public officials accepting Microsoft HUP or Office 365 (see Adv. Op. 1 OS-003 (November 5, 201 O); Adv. Op. 15S-001 (January 5, 2015)).

4 Page 4 The result is that this is the kind of benefit that is not considered a gift within the Government Ethics Commission's jurisdiction, and legislative public officials may accept Microsoft's offer to participate in the HUP without reference to the ORS Chapter 244's gift limits. QUESTION 2: Does Oregon Government Ethics law prohibit legislative public officials from installing and accessing State licensed software (through Microsoft "Office 365") for personal use, on their personal devices, if free access to the software is only available as a result of the Legislative Assembly's contract with Microsoft? ANSWER 2: Yes. Absent an official compensation policy stating otherwise, accessing State owned software for any personal use through Office 365 would violate ORS (1) if it allowed the public official to avoid a personal expense. Answering this Question calls for an analysis different from the one in Question 1, because unlike the HUP, Office 365 is not a free or discounted good or service offered to legislative public officials from Microsoft. Rather, Microsoft Office 365 merely works to provide legislative public officials with remote access to State licensed Microsoft applications through their personal devices. Thus, in this Question, the source of the financial benefit is the Legislative Assembly (rather than Microsoft), and when the source of a financial benefit is the public official's own public body, the Commission considers it a benefit of employment reviewable under ORS (Guide for Public Officials (October 2010)). ORS (1) prohibits public officials from using or attempting to use a public position to obtain any financial benefit or avoid any cost, if the benefit or avoidance of cost would not otherwise be available "but for" the public official holding the position. 3 However, despite the general prohibition in ORS (1 ), public officials are still permitted to accept benefits of employment from their public bodies, so long as the benefit is part of the public official's official compensation package (ORS (2)(c)). An "official compensation package" means the wages and other benefits provided to the public official. To be part of the public official's "official compensation package", the wages and benefits must have been specifically approved by the public body in a formal manner, such as through a union contract, an employment contract, or other adopted personnel policies that apply generally to employees or other public officials... (OAR (3)). 3 The "three conditions" analysis (as outlined in Adv. Op. 09A-1004 (July 9, 2009)) is also not relevant here. That analysis was limited to determining permissibility of accepting certain items of value that might be considered gifts, and this offer is a benefit available through the public official's public body.

5 Page 5 As discussed in preceding paragraphs, Microsoft Office 365 is only a tool permitting legislative public officials access to Microsoft Office applications via remote access to Software licensed by the Legislative Assembly. If a legislative public official does not already have equivalent Microsoft applications installed on his/her own personal device, permitting free access for personal use via Office 365 would be considered a financial benefit to the public official in the form of avoidance of a cost. In this sense, Microsoft Office 365 appears to be a financial benefit of employment with the Legislative Assembly that would not be available but for holding a position as a legislative public official. As a result, Office 365 would need to be part of a legislative public official's official compensation package in order for the personal use to be permissible. However, because none of the information submitted indicates this to be the case, personal use of Office 365 would appear to violate Oregon Government Ethics law. QUESTION 3: Would the analyses provided in Answers 1 and 2 differ, depending on whether a legislative public official's intended personal use of the HUP or Office 365 was of a professional, private income-seeking, or campaign related nature? ANSWER 3: No. Oregon Government Ethics laws do not govern the manner in which a public body may distribute resources among its public officials for the purposes of carrying out the functions of their public positions or conducting business of the public body. Consequently, any question of whether legislative public officials may access any Microsoft application or benefit in the conduct of their public positions is a decision for the Legislative Assembly and is beyond this commission's jurisdiction. However, public officials' receipt of any financial benefit they may take personal possession of and use for any kind of purpose inconsistent with or beyond the scope of their official positions is considered to be a personal use. Oregon Government Ethics laws do not distinguish between any type of personal use, whether it be of a private income-seeking and professional nature, campaigning for public office, or otherwise. Moreover, Oregon Government Ethics laws to do not determine compliance based purely on the question of personal use. Rather, Oregon Government Ethics laws generally relate more directly to questions of public officials receiving personal economic benefits. ORS (7)(a) is based on whether an item of economic value was given to a public official "without valuable consideration of equivalent value." ORS (1) is based on whether a public official could obtain a financial benefit not otherwise available but for holding the public position. In fact, as stated in Answer 2, any personal use of Office 365 would be a prohibited use (only) if it permits a public official to avoid the personal expense of otherwise being required to pay to utilize those Microsoft application(s). This opinion is offered and based on the limited and specific facts in this opinion and should not be applied to other discount offers that might be made to public officials. The statutes relevant to the issues addressed in this opinion are provided as an addendum to this Commission Advisory Opinion.

6 Page 6 THIS OPINION IS ISSUED BY THE OREGON GOVERNMENT ETHICS COMMISSION PURSUANT TO ORS A PUBLIC OFFICIAL OR BUSINESS WITH WHICH A PUBLIC OFFICIAL IS ASSOCIATED SHALL NOT BE LIABLE UNDER ORS CHAPTER 244 FOR ANY ACTION OR TRANSACTION CARRIED OUT IN ACCORDANCE WITH THIS OPINION. THIS OPINION IS LIMITED TO THE FACTS SET FORTH HEREIN. OTHER LAWS OR REGULATIONS NOT WITHIN THE JURISDICTION OF THE COMMISSION MAY ALSO APPLY. Issued by Order of the Oregon Government Ethics Commission at Salem, Oregon on the 20th day of May Cliarles S. Tauman, Chairperson ~ri~ ynroslk, Assistant Attorney General 16A-1002/hw

7 Page 7 ADDENDUM RELEVANT STATUTES AND RULES: The following Oregon Revised Statutes (ORS) are applicable to the issues that are addressed in this opinion: ORS Definitions. As used in this chapter, unless the context requires otherwise: (7)(a) "Gift" means something of economic value given to a public official, a candidate or a relative or member of the household of the public official or candidate: (A) Without valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, which is not extended to others who are not public officials or candidates or the relatives or members of the household of public officials or candidates on the same terms and conditions; or (15) "Public official" means the First Partner and any person who, when an alleged violation of this chapter occurs, is serving the State of Oregon or any of its political subdivisions or any other public body as defined in ORS as an elected official, appointed official, employee or agent, irrespective of whether the person is compensated for the services. ORS Prohibited use of official position or office; exceptions; other prohibited actions. (1) Except as provided in subsection (2) of this section, a public official may not use or attempt to use official position or office to obtain financial gain or avoidance of financial detriment for the public official, a relative or member of the household of the public official, or any business with which the public official or a relative or member of the household of the public official is associated, if the financial gain or avoidance of financial detriment would not otherwise be available but for the public official's holding of the official position or office. (2) Subsection (1) of this section does not apply to: (a) Any part of an official compensation package as determined by the public body that the public official serves. (b) The receipt by a public official or a relative or member of the household of the public official of an honorarium or any other item allowed under ORS

8 Page 8 (c) Reimbursement of expenses. (d) An unsolicited award for professional achievement. (e) Gifts that do not exceed the limits specified in ORS received by a public official or a relative or member of the household of the public official from a source that could reasonably be known to have a legislative or administrative interest. (f) Gifts received by a public official or a relative or member of the household of the public official from a source that could not reasonably be known to have a legislative or administrative interest. (g) The receipt by a public official or a relative or member of the household of the public official of any item, regardless of value, that is expressly excluded from the definition of "gift" in ORS (h) Contributions made to a legal expense trust fund established under ORS for the benefit of the public official. OAR Guidelines for compliance with ORS (6), , , and (3) An "official compensation package" means the wages and other benefits provided to the public official. To be part of the public official's "official compensation package", the wages and benefits must have been specifically approved by the public body in a formal manner, such as through a union contract, an employment contract, or other adopted personnel policies that apply generally to employees or other public officials. "Official compensation package" also includes the direct payment of a public official's expenses by the public body, in accordance with the public body's policies.