July 6, 2006 By Paul W. Taylor
The expression de minimis is derived from the Latin phrase, "de minimis non curat lex," which was perhaps the only Latin most of us learned in the late 1990s as policymakers struggled with how to treat public employees' use of the Internet.
The result was myriad compromises that were often internally inconsistent but good enough to get by. Many agencies got by through allowing de minimis use of e-mail and the Web -- that is, use "of insufficient significance" that would not interfere with official state business or use public property for personal gain.
It was an imprecise definition but appealed to the better angels of public employees to use common sense, and to the agencies for which they worked to not set traps for employees that were not liked.
Even at that, many policies on Internet use differentiated among media, insisting that a short phone call home to inform your family you would be home late was allowable but that same message sent by e-mail was a violation.
Anachronistic then; anachronistic now.
In April 2006, John B. Spooner, administrative law judge at the New York City Office of Administrative Trials and Hearings, ruled that visiting Web sites is equivalent to talking on the phone or reading a newspaper -- activities that have long been allowed in public workplaces providing they do not hinder work productivity.
The decision was rendered after Spooner presided over a case brought by the New York City Department of Education against Toquir Choudhri, a 14-year veteran worker in its human resources office, who was charged with -- among other things -- "disobeying an order to cease using the Internet for personal business."
Spooner's written decision detailed how Choudhri crossed his supervisors, and how matters escalated to direct exchanges between Choudhri and the department's deputy executive director, Gary Barton.
In a memo based on the department's monitoring of the Web sites visited by Choudhri -- which included cbsnews.com, cnn.com, google.com, humanesociety.com, escapeartist.com, renewnyc.com and other travel-related sites including aircanada.com -- Barton asked Choudhri what he was doing on the Internet.
Choudhri responded to the memo with a one-word reply written at the bottom: "Reading." Spooner found the reply "insubordinate," "impertinent" and "intended to be sarcastic" -- all suggesting that the "respondent had no innocent explanation for writing the reply."
If Spooner had issues with the sometimes-snippy Choudhri, he was even more direct with agency management, stating, "There were only the most minor of adverse consequences to respondent's use of the Internet."
Spooner added, "It was apparent that the insubordination charges were largely the result of Mr. Barton's [and others'] anger at their perceptions of respondent's arrogance rather than a general concern about office morale."
Importantly there is no record that Choudhri visited objectionable sites -- such as pornography, hate speech, or politics -- while at work. Equally important, Spooner's decision declared the Internet essential to doing the public's work while cautioning employers not single out individuals for unequal treatment, whether you like them or not:
It should be observed that the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work. For this reason, city agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance. Many agencies apply the same standard to the use of the Internet for personal issues. This widespread recognition that Internet use is essential to living in the technological world does not excuse respondent's disobedience to Mr. Barton's order. However, it does suggest that the order that only respondent was prohibited from using the Internet for any personal reasons was unusually harsh and arbitrary, motivated by anger rather than a concern for office productivity.
Even with a conclusion worthy of framing, Spooner's ruling is only advisory, not binding. Alas, it appears as difficult to adjudicate common sense as it is to legislate it.
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