Anthony Weiner, Sarah Palin, and State Property

All employees should be cautious about using their employers’ property for personal purposes. This is doubly true for government employees, who are guardians of the public’s property. They must be careful not to violate the public trust.

As a state employee myself, I evaluate these issues by asking whether I could justify the private use of state property to my boss or to a newspaper reporter. If an emergency came up, I would do whatever I needed to do, even if I later had to repay my employer. Otherwise, I try never to use state property for personal use. There is, however, one kind of state property that I have long used for personal purposes without even realizing it: my email account.

I correspond with my friends and family on the same email account that I use for my work, a university address with a “.edu” suffix. Using the state email account for private purposes meets my test: I have no problem letting my dean know that I use my university account for all my email, and I wouldn’t have any trouble explaining it to a reporter (a fact confirmed, I suppose, by my writing of this column). There is no additional cost to the state from this use, nor am I receiving an unjustified benefit.

I suppose if I were engaged in illegal activity or having an affair, I would be careful to segregate my email, using a special account to hide my nefarious activity. In general, however, most of my friends are also co-workers or colleagues, and trying to separate the threads of my work and personal life would be time-consuming and redundant. Yet two current news stories indicate that there is an important distinction between a government email account and a private one.

The first case is that of New York Congressman Anthony Weiner. After having first denied doing so, Weiner admitted to sending sexually explicit pictures of himself on Twitter. As the story unfolded, many people expected him to resign immediately, but he defiantly remained in office for more than two weeks before finally agreeing to step down and seek some kind of treatment.

The leaders of his own Democrat Party wanted him to leave earlier, but more than a few commentators felt that he should have fought harder to stay in office. If he had, he might have survived. It is very hard to remove someone from office unless you can prove a crime. Weiner claimed in one of his press conferences that he has not violated the Constitution or any laws, and he may have been correct. As tawdry as his conduct was, it might not have been illegal.

Ironically, the legality issue might boil down to whether Weiner used his government computer or email account to send out the images. Some commentators have speculated that if he did, that could constitute use of government equipment for personal purposes, and that might have been enough to remove him from office. Of course, this is silliness: No one is really concerned about which computer he used. The propriety of his conduct should be judged based on expectations about government leaders and not depend on which computer, server, or software he used.

 

The other case involves Sarah Palin. Twenty-four thousand pieces of email from her time in the Alaska governor’s office were recently released to the public as a result of a Freedom of Information Request filed by the media. Apparently, the former governor had an official government email account, a private Yahoo account, and perhaps a third email account. Emails that passed between only private accounts were not included in the release, but any email that passed through the state server — including those from her private Yahoo account — were released. Those messages were deemed subject to disclosure because state property had been involved. All such emails — even personal ones between Palin and her husband — were disclosed.

Disappointingly for her critics, the emails revealed a likeable executive who worked hard, focused on Alaska’s business, and loved her family. A Los Angeles Times columnist complained that the batch of Palin’s email was “annoyingly gaffe free.” Still, it was wrong that the release of personal email messages depended on whether they passed through a state server and nothing else. Governmental transparency is good, but even public officials should be entitled to some private moments.

The Wiener and Palin cases suggest the legal community is clinging to old terminology and ideas about property to decide important issues of governmental leadership and privacy. That is an outdated way of addressing our changing technological landscape, and it obscures the real questions about privacy and responsibility on which we should be focused.

Ronald J. Rychlak

By

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (Revised and Expanded) (2010) and Righteous Gentiles (2005).

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