1 / 33

Federal Workplace Restrictions on Promoting Outside Personal Interests

Detailed overview of restrictions on promoting outside personal interests in federal workplaces, including rules on charitable solicitation, fundraising, political activities, and personal business endorsements. Various legal limits and statutes are discussed to ensure compliance with ethical guidelines and prevent conflicts of interest. Specific regulations and policies from different agencies are highlighted to guide employees in navigating permissible actions regarding personal interests.

nocedal
Download Presentation

Federal Workplace Restrictions on Promoting Outside Personal Interests

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. RESTRICTIONS ON THE PROMOTION OF OUTSIDE PERSONAL INTERESTS IN FEDERAL WORKPLACES Sean Croston Deputy Ethics Official Federal Reserve Board Jeremy Suttenberg Deputy Ethics Official U.S. Nuclear Regulatory Commission

  2. 2 • The views that we express are our own and do not necessarily represent those of the Federal Reserve Board or the Nuclear Regulatory Commission.

  3. 3 Agency ethics officials occasionally face staff questions about the permissibility of promoting various outside personal interests at work, like: • Soliciting donations for favored charities • Supporting political ideas/groups/candidates • Endorsing professional organizations • Advertising for personal business, nearby commercial vendors or entertainment sites • Selling items in federal buildings

  4. 4 There’s got to be some legal limits on this… • OPM rule on charitable solicitation (EO 12353 / 5 CFR Part 950) • OGE rule on fundraising (5 CFR 2635.808) • OGE rule on soliciting/accepting gifts (5 CFR 2635.302) • Hatch Act restrictions on political activities/solicitations (5 USC 7321-7326) • Anti-lobbying statutes (18 USC 1913; riders in annual appropriation acts)

  5. 5 But wait –there’s more! • GSA rules on gambling, solicitation, vending, and advertising (41 CFR Part 102-74) • Appropriations rules re: commercial advertising (GAO) • Congressional rules on using gov’t $ to print advertisements (Gov’t Printing & Binding Regulations) • Fair Housing Act restrictions on personal housing advertisements (42 USC 3604(c)) • OGE rules on misuse of office (5 CFR 2635.701-705) • Agency-specific rules and policies

  6. 6 What about the criminal conflict of interest laws? 18 USC 205 prohibits employees from acting as the attorney or “agent” for someone else in any claim or other “covered matter” before the executive branch or any court if the U.S. is a party or has a direct/substantial interest • O’Neill v. HUD, 220 F.3d 1354 (Fed. Cir. 2000) interpreted “agent” to include only representations made with actual/apparent authority on behalf of the other entity; not independent acts taken on the employee’s own initiative. Van Ee v. EPA, 202 F.3d 296 (D.C. Cir. 2000) interpreted “covered matters” more narrowly than all particular matters • The scenarios we’re considering today generally concern an employee’s independent actions in non-covered matters. 18 USC 208 prohibits employees from participating personally and substantially “as a Government officer or employee” in particular matters in which they—or those whose interests are imputed to them—have a financial interest • Agencies must determine whether activities are official or personal. OGE Advisory Op. 01 x 6. This involves fact-specific analyses of whether the activities are connected to the employee’s official duties or the agency’s mission, whether they mainly benefit an outside entity rather than the government, and similar considerations. OGE Advisory Ops. 07 x 8, 98 x 8. • The scenarios we’re discussing today generally involve personal, non-official actions.

  7. 7 Rules on Charitable Solicitation at Work E.O. 12353 / 5 CFR Part 950 : Combined Federal Campaign • CFC is the only generally-acceptable vehicle for charitable solicitations from federal employees in the federal workplace • Charitable solicitation = any action requesting money for a private (subj. to change), non-profit, philanthropic, human health and welfare organization • Charitable solicitations under the CFC must be voluntary, non-coercive, and during the authorized CFC period (except for special OPM-authorized disaster solicitations, which are technically outside of the CFC and its rules) • CFC policies and restrictions do not apply to: – Collections of gifts-in-kind (e.g., Toys-for-Tots, canned food drives, used eyeglasses, etc.) under GSA rules (later slide) – Monetary collections for organizations that aren’t charities – “Solicitations conducted by organizations composed of civilian employees or members of the uniformed services among their own members for organizational support or for the benefit of welfare funds for their members.” Agency heads can issue policies governing these solicitations.

  8. 8 OGE Rule on Personal Fundraising 5 CFR 2635.808(c): • Employees may fundraise in their personal capacity, but: • can’t personally solicit funds or support (doesn’t cover non-targeted mass- mailings or remarks to a large group) from subordinates or from entities known to be prohibited sources (regulated parties, contractors) • can’t use or allow use of official title/authority/resources for fundraising • “Fundraising” = raising funds for a nonprofit organization by soliciting donations, selling items, or hosting events for which part of entrance fee can be considered tax-exempt donation • Nonprofits may be broader than charities covered under 5 CFR Part 950 • Doesn’t cover political fundraising (see Hatch Act) • Doesn’t cover raising funds for other-than-nonprofit organizations (personal endeavors or for-profit entities)

  9. 9 OGE Rules on Soliciting/Accepting Gifts 5 CFR 2635.302: • When fundraising or soliciting in his/her personal capacity, an employee can’t directly or indirectly accept gifts (including money or items of value for another person or organization recommended by the employee) from other employees receiving less pay • Exception allows accepting gifts from non-subordinates with whom the employee has a personal relationship • Exception for perishable items shared with the entire office • Limited “Special/infrequent occasions” exception for soliciting • This covers solicitations for personal or for-profit concerns as well as charitable/nonprofit solicitations • But this doesn’t cover personal or for-profit solicitations to other employees at the same or higher pay levels

  10. 10 GSA Rules: Gambling, Solicitation, Vending, and Advertising in GSA Buildings (Part 1) 41 CFR 102-74.410: • Can’t solicit alms ($ or non-monetary items for the needy) or commercial or political donations, or sell items, or display commercial advertisements in GSA buildings EXCEPT FOR: • Activities conducted as part of the CFC campaign • Union membership or dues-collection drives • Collections of non-monetary items sponsored or approved by the agency • Lessees’ activities in space leased from the government for commercial, cultural, educational, or recreational uses • Commercial activities sponsored by recognized Federal employee associations or on-site child-care centers • Employee classified ads on bulletin boards authorized by the agency • (NRC has internal bulletin boards but prohibits notices/flyers in main lobby areas)

  11. 11 GSA Rules: Gambling, Solicitation, Vending, and Advertising in GSA Buildings (Part 2) • 41 CFR 102-74.395: can’t host/participate in gambling (risking something of value in game of chance) on GSA property • So employees and others can’t organize competitive raffles, dice games, card games, or sports pools (e.g., March Madness) in GSA buildings • 5 CFR 735.201 (OPM rule) also prohibits same conduct while “on duty for the Government” (e.g., teleworking) • 41 CFR 102-74.415: can’t distribute free tobacco products on GSA property, post materials on bulletin boards or elsewhere on GSA property except under sec. 102-74.410 (prior slide), or distribute materials without permits from the building manager • 41 CFR 102-74.475: only religious groups or tax-exempt groups can solicit funds in public areas of federal buildings, and they must display ID badges with their name/org. name/contact info

  12. 12 Hatch Act Limits on Political Activities 5 USC 7321-7326: • Employees can’t use official authority or influence to interfere with or affect the result of any election, or solicit or discourage political activities by regulated entities/contractors/grantees/etc. • Employees cannot knowingly solicit or accept political contributions (including money, services, or anything of value) • Doesn’t matter if done at home, using personal device, or anonymously • Employees can’t participate in partisan political activity while on duty, at work, wearing official uniform/insignia or driving a government vehicle • Limits on partisan stickers/clothes/bumper stickers/emails/social media *IRS employees accused of donning pro-Obama gear, urging callers to vote for him (4/9/2014) *Federal employee violates Hatch Act through Twitter; posted dozens of Tweets about partisan elections while on-duty (2/4/2014)

  13. 13 Limits on Lobbying Using Appropriated $ • 18 U.S.C. 1913: can’t directly or indirectly use appropriated funds to lobby federal or local gov’t regarding law or policy by phone, any printed or written matter, or other device (.gov emails…) • Consolidated Appropriations Act, 2014: “No part of any appropriation contained in this Act shall be available for any activity or the publication or distribution of literature that in any way tends to promote public support or opposition to any legislative proposal on which Congressional action is not complete other than [as allowed] in 18 U.S.C. 1913.” • DOJ/OLC consistently interpret these provisions to prohibit employees (including unions) from using official time/resources in personal “substantial grassroots” lobbying appeals aimed at the public or participating in other events designed to influence or support/oppose legislative/policy proposals. But GAO has ok’d agency employees’ “strictly factual” statements that are “devoid of positive or negative sentiments about pending legislation” • Employees can lobby on their own time using their own resources

  14. 14 Restrictions on Commercial Advertising GAO Principles of Fed Appropriations Law (Vol. I, 4-229): “There is a long-standing policy against involving the government in commercial advertising” because it “would be unfair to competitors in that it would, regardless of intent, unavoidably create the impression of government endorsement. It would also be unfair to nongovernment publications that compete for advertising dollars and need those dollars to stay in business. Acceptance of advertising could also pose ethical, if not legal, problems. (Imagine, for example, lobbyists scrambling to purchase advertising space in the Congressional Record.)” • Applies to commercial advertising in any form or format • Agencies may still advertise government program, products, and services, within statutory restrictions (e.g. necessary expense appropriations doctrine, explicit promotional or informational authority, annual anti-propaganda appropriations riders)

  15. 15 Restrictions on Commercial Advertising Government Printing & Binding Regulations (S. Pub. 101-9 at § 13 (1990)): “No Government publication or other Government printed matter, prepared or produced with either appropriated or nonappropriated funds or identified with an activity of the Government, shall contain any advertisement inserted by or for any private individual, firm, or corporation; or contain material which implies in any manner that the Government endorses or favors any specific commercial product, commodity, or service.” • Applies to use of nonappropriated funds; but only to printed matter (not applicable to purely electronic materials – per Joint Committee counsel) • Rules issued by Congressional Joint Committee on Printing pursuant to 44 U.S.C. § 103 (yes, it’s strange, but it’s binding)

  16. 16 Restrictions on Personal Advertising Fair Housing Act, 42 U.S.C. § 3604(c): “It shall be unlawful to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.” • See, e.g., http://www.fhcsp.com/Laws/ads.html • FHA’s advertising rules do not apply to shared living units (ads for roommates) given constitutional concerns. See Fair Housing Council of San Fernando Valley v. Roommate.com, 666 F.3d 1216, 1220-22 (9th Cir. 2012). • (Also remember GSA rule on employee bulletin boards)

  17. 17 OGE Rules: Misuse of Public Office 5 CFR 2635.704: can’t allow unauthorized or wasteful use of public property, such as using agency resources to facilitate an unrelated non-governmental entity’s private meetings • OGE 93x6: can use gov’t resources in connection with prof. association or outside activity that’s related to agency mission and in the agency’s interest 5 CFR 2635.702: cannot use public office for private gain • Can’t use agency title/position to endorse contractor or outside entities • Can’t use agency resources to promote social outing at local venues or to advertise discounts offered by various local businesses • OGE 95x8: can announce private functions related to official agency activities, especially where agency explicitly disclaims any endorsement; 2635.702 doesn’t apply to promotion of authorized gov’t projects even if a private entity involved in the project may reap some benefits, as long as officials involved in promotion aren’t affiliated with the private entity

  18. 18 Agency-Specific Restrictions Agencies may also issue supplemental rules regulating solicitation or other personal activities at work. See, e.g., • GSA regulation, 5 CFR 6701.102, prohibits agency employees from soliciting/selling to employees under their supervision, on- or off-duty • Exception for one-time sale of property, or off-duty retail sales • DOD regulation, 5 CFR 3601.106, prohibits agency employees from soliciting or making solicited sales to DOD personnel who are junior in rank, grade, or position, or to those junior employees’ family members • Exception for noncommercial sale of property, or off-duty retail sales • Posting personal ads allowed under GSA rules is ok under this rule • USPS regulation, 5 CFR 7001.102, prohibits agency employees from engaging in personal solicitations/sales while on-duty, in uniform, or at any postal facility (even if off-duty) • HHS regulation, 45 CFR 73.735-305, extends GSA soliciting/vending/ advertising limits to activity while on-duty (not just in gov’t buildings) • Other agencies may have internal policies not codified in the CFR

  19. 19 Example of Difficult Question: Child Care An agency employee who is affiliated with the Board of the agency’s on-site child care center (usually a private nonprofit) asks if the center can solicit funds for its tuition assistance program within the federal building, outside of the center itself.

  20. 20 Example of Difficult Question: Child Care •See E.O. 12353 / 5 CFR Part 950 exemption for “Solicitations conducted by organizations composed of civilian employees …among their own members for organizational support or for the benefit of welfare funds for their members.” •OPM/GSA concluded that nonprofit child-care fundraisers fall within these exceptions and agencies should not interfere “as long as the activities being engaged in do not reflect negatively on the agency” and are outside CFC periods. http://www.gsa.gov/graphics/pbs/property_managers_guide.pdf at apps. hh, ii (OPM/GSA legal opinions) •Remember GSA rules allow on-site child care centers to sponsor “commercial activities” within GSA buildings (bake sales are ok) and to solicit funds in their leased areas or in public areas of the building if they obtain a permit

  21. 21 Example of Difficult Question: Retirement A secretary is on terminal leave in anticipation of retiring after many years of service at the agency. In the office-wide email announcement for her retirement party, she wants to request donations to a 501(c)(3) Federal Secretaries Fund in lieu of flowers or other personal gifts. When you look up this Fund, you also notice that its website lists this secretary as a Board Member for the Fund.

  22. 22 Example of Difficult Question: Retirement • Does this violate 18 USC 208 / 5 CFR 2635.502 / 18 USC 205 ? • Would this retirement party email be “personal and substantial participation” (208) or “participation” (502) in her “official capacity” / “as a Government employee” (probably not) in a “particular matter” affecting the Fund ? • No 18 USC 205 violation b/c not authorized ‘agent’ of group in ‘covered matter’ in which US is a party; also exception for fed employee groups at 205(d)(1)(B) • Is this a use of public office for private gain? (5 CFR 2635.702) • Does this violate OPM or GSA solicitation rules? • If it’s a violation, who is committing it? • The secretary? • Anyone who forwards the email to the office? • Should this be considered a solicitation of a “gift” for the employee under 5 CFR 2635.203(f)(2) (gift which is solicited indirectly includes a gift given to a charitable organization on the basis of recommendation by the employee) that is permissible as a “special and infrequent occasion” (retirement) gift under the exception at 5 CFR 2635.304(b)?

  23. 23 Example of Difficult Question: Obituary What about an office-wide email forwarding an obituary for a distinguished former employee, which requests donations to the American Cancer Society? Or donations to the former staffer’s favorite politicians in lieu of flowers?

  24. 24 Example of Difficult Question: Obituary •Additional Hatch Act solicitation issues? (assuming there’s an ongoing partisan election) •Who is doing the soliciting? The family, or the employee who forwards the email on behalf of the family?

  25. 25 Example of Difficult Question: Co-Worker An agency employee wants to solicit his co-workers for donations to cover the expenses of his daughter’s trip to a regional beauty pageant

  26. 26 Example of Difficult Question: Co-Worker •Not a charitable solicitation governed by 5 CFR part 950 •Not a nonprofit solicitation governed by 5 CFR 2635.808 •Is it “commercial donation” or “alms” (charity for the needy) covered by 41 CFR 102-74.410? •It could violate 5 CFR 2635.302 if he’s accepting gifts from employees receiving less pay (although that rule doesn’t restrict soliciting such gifts unsuccessfully) •Consider the catch-all “use of public office for private gain” rule at 5 CFR 2635.702 •Perhaps you have an agency-specific rule that’s more precise?

  27. 27 Example of Difficult Question: Prof. Org. An agency attorney who is an active member of the American Attorneys Association wants to distribute an announcement for the Association’s next section meeting, which will feature a “year in review” discussion of the agency’s recent activities. The attorney also wants to send recruiting emails to new agency employees, asking them to join the Association.

  28. 28 Example of Difficult Question: Prof. Org. An agency attorney who is an active member of the American Attorneys Association wants to distribute an announcement for the Association’s next section meeting, which will feature a “year in review” discussion of the agency’s recent activities • This may be okay under OGE 93x6/95x8--use of gov’t resources in connection with outside event that’s related to the agency’s mission and in the agency’s interest The attorney also wants to send recruiting emails to new agency employees, asking them to join the Association • This is not sufficiently/specifically related to the agency’s interests and activities under 5 CFR 2635.702 /704-- can’t use agency position/resources to endorse outside entities generally (as opposed to specific relevant functions)

  29. 29 Example of Difficult Question: Affinity Group A group of agency employees wants to put an ad in the agency newsletter regarding their efforts to start a new affinity group (Antarctican Agency Employees) The employees want to include an announcement for an AAE organizing event at a “great” restaurant across from HQ. Can the announcement also include a $5-off coupon for agency employees on behalf of the restaurant?

  30. 30 Example of Difficult Question: Affinity Group A group of agency employees wants to put an ad in the agency newsletter regarding their efforts to start a new affinity group (Antarctican Agency Employees) •EO 13583 and OPM’s interagency work group formed under it direct agencies to promote/retain a diverse workforce, for example by supporting affinity groups open to all The employees want to include an announcement for an AAE organizing event at a “great” restaurant across from HQ •This may be okay under OGE/GAO/GSA rules as part of a promotion of authorized gov’t project, but be careful; best to nix “great” and include an explicit non-endorsement disclaimer Can it include a $5-off coupon on behalf of the restaurant? •No – that crosses into prohibited commercial advertising with no benefit to the agency.

  31. 31 Examples of Difficult Question: Housing Ad An agency employee wants to post a personal ad on agency bulletin board for her apartment, which notes that she prefers “quiet, single, non-smoking, professional, Orthodox female” tenants

  32. 32 Examples of Difficult Question: Housing Ad •GSA rule gives agency authority to permit “concessions or personal notices posted by employees on authorized bulletin boards” • agency must affirmatively authorize such boards; can potentially avoid issue by not authorizing them? •Fair Housing Act allows non-smoking/professional/quiet ad limits but generally can’t advertise on “single”/gender/religious grounds (agency or advertising employee could be liable for violation) •But implied exception for renting out shared living space to a roommate based on safety, religious, etc. reasons (9thCircuit specifically ok’d Orthodox-only or women-only roommate ads) •May also want to consider state/local fair housing laws…

  33. 33 Thanks for listening! Sean Croston 202-452-2810 sean.d.croston@frb.gov Jeremy Suttenberg 301-415-2842 jeremy.suttenberg@nrc.gov

More Related