IEC Journal

POGO Recommendations on IG Reform

The Project on Government Oversight has released a lengthy report with suggestions for reforming Inspector General operations. The recommendations include the following:

Combine the PCIE and ECIE into one Council of all IGs.

Remove the Deputy Director of OMB as the Chair of the combined Council of IGs.

Create a resource pool of professional employees for smaller IG offices.

Extend the language for PCIE IG qualifications to DFE IGs.

Revive the IG candidate selection committee.

Set fixed terms of office for PCIE IGs.

Make clear that an Inspector General may only be removed prior to the end of his or her term for cause.

Establish separate budget authority and transparent public budgets for all IGs.

Clarify the law so that once an IG’s budget has been approved, expenditures can be made without further approval.

Forbid IGs to receive cash awards or bonuses, but raise their pay.

Require IG offices either to have their own counsel or to use another IG’s counsel.

Make clear that IGs should rely on their own in-house counsel for advice about how FOIA applies to IG reports.

Ensure direct and clear links to the IG’s web page, and provide IGs autonomy over the content on the web page.

Expand IGs’ subpoena power.

Amend the Program Fraud Civil Remedies Act to apply to DFE IGs.

Refrain for now from consolidating any of the smaller IG offices.

Bill Would Cover Govt. Employees Under False Claims Act

Government Executive and the Washington Post report on a bill that would state expressly that government employee whistleblowers may be plaintiffs under the False Claims Act. Federal employees could act as qui tam whistleblowers if they have reported fraud up the chain of command and no action occurred for one year. The Post indicates that the bill has bipartisan support in Congress but is opposed by the Department of Justice that "some of the proposed changes would interfere with law enforcement investigations and give employees an improper incentive to hide fraud from colleagues, then sue to recover a share of the proceeds."

New DOD SOCO Advisory

The newest SOCO advisory covers the following topics:

1. Model Post-Government Service Employment Advice Log. (Includes a nifty Excel spreadsheet).
2. Reserve Officer Post-Government Employment Matrix.
3. FY 2007 DoD Contractor List.
4. Foreign Gifts and Decorations Act "minimum value" confirmed at $335.

OSC Response to EPA Hatch Act Allegations

The Office of Special Counsel has concluded that the appearance of Environmental Protection Agency (EPA) Administrator Stephen L. Johnson at a 2006 fundraising event for a candidate for U.S. Congress did not violate the Hatch Act.

OSC decided that Mr. Johnson was not personally responsible for the use of his official title in the e-mail used to distribute the invitation. Further, the EPA staff had not reviewed the list of the attendees, nor informed him of who would be attending the fundraiser, or where they were employed.

While there was no personal liability on the part of the EPA Administrator, OSC determined that there were deficiencies in EPA staff review processes, and recommended that EPA staff be aware of all parties and their roles in political events, including the attendees, and consider this information when advising on participation.

OGE Update

OGE has issued a number of helpful items recently, including:

• A guide on drafting ethics agreements for Presidential nominees for positions requiring Senate confirmation, and an explanation of when to seek additional information from PAS filers. (Bottom line: "Accordingly, please err on the side of seeking clarification or additional information from a PAS filer if you have any doubts about the adequacy of a form submitted for review."
• "Commitment and action by agency leadership is the keystone for ensuring the integrity of an agency's ethical culture and for fostering public confidence in the decision-making processes of government." It's hard to argue with that. In support of this idea, OGE has promulgated a "Leadership Initiative" document outlining lots of good ideas about ways in which agency management should support ethics programs.
• A call for suggested topics and speakers for the September 16-19, 2008 National Government Ethics Conference, complete with online submission form. The deadline for suggestions is March 17, 2008.
• A statement of policy concerning NARA's liberalization of electronic records practices (i.e., don't destroy paper copies of financial reporting documents, as they may be needed to support disciplinary action).
• Ordering information for a new pamphlet “Working With Government Contractors:  What You Need to Know as a Federal Employee Who Works With Government Contractors.”  The booklet provides a general introduction to some of the most common ethics issues that arise for Government employees who work with Government contractors.
• Ordering information for a booklet entitled, "The Qualified Trust Program."  The booklet provides information on addressing conflicts of interest by establishing a qualified trust.
• Information on OGE's plans to implement GSA’s Raising of Foreign Gifts “Minimal Value” through a future OGE rulemaking.

Note: We publish reminders of OGE issuances here as a convenience to our members, but strongly recommend that everyone subscribe to the OGE mailing list as well.

Updated: Feb. 25 to correct URL to information on Foreign Gifts minimal value rule.

Survey on Public Trust in Govt. Spending

Government Executive reports on a new survey that supports the need for a key function of ethics programs: Increasing public confidence in government:

Taxpayers overwhelmingly believe the federal government has failed to explain how it collects and spends money, creating a growing expectations gap that is eroding the public's trust in its leaders, according to a survey released Wednesday.

With the Association of Government Accountants sponsoring the survey, there's little surprise that the results document a desire for more financial information, but at the same time, the public perception of government ethics is probably a contributing factor.

Navy Ethics Compass

We have added the Navy Ethics Compass to our list of federal agency ethics web sites in the right column of this page. We welcome suggestions of other resources.

Fourth Birthday for IEC Journal

The month of February marks the fourth anniversary of the IEC Journal. We are gratified with the positive reception we have received, and have projects in mind which should increase our usefulness to the federal ethics community.

Practical Tips on Metadata Cleaning

As Joe Edgell explained in his excellent presentation on metadata at the last OGE conference, it's easy to inadvertently disclose privileged information in the form of not-readily-visible "metadata" when you release electronic documents. Two facts make removing metadata more difficult than frequently assumed:

1. Converting a file to PDF does not always clean all metadata, and
2. The free metadata cleaner available from Microsoft is not considered completely effective.

Some state bar associations have opined it is unethical for lawyers to use metadata against their opponents, but these opinions have limited practical significance for those trying to avoid problems, because none of them is binding on nonlawyers.

An updated version of Mr. Edgell's materials is available at his web site. (Use the down arrow icon at the far right of Joe's file list to download a file; clicking on the file name won't work). He anticipates releasing another update in April.

Here's an IEC member's short summary of practical advice about avoiding metadata problems:

A low-tech way of cleaning metadata is to print out a paper copy, scan it and convert to PDF format. This is guaranteed to avoid releasing metadata, but has the major drawback that your file sizes may become unreasonably large.

Using OCR on the scanned file will also avoid metadata release, but cleaning up OCR errors can be labor intensive.

Here are some alternate ways of cleaning metadata:

A. Follow the National Security Agency metadata guidance for federal agencies.

B. Buy a commercial product intended to take less time than NSA's manual cleaning methods. The September 27, 2007 version of Joe Edgell's outline lists multiple alternatives on p. 27. I have the impression that lawyers who know more about this than I do frequently recommend Metadata Assistant.

HUD Deputy AGC Ethics (GS 15)

HUD has re-advertised for an experienced ethics attorney to serve as Deputy Assistant General Counsel (GS-15). This individual will serve as the deputy office director of HUD’s 10-person Ethics Law Division.  This position is being re-advertised to reflect changes of knowledge, skills and abilities from the earlier announcement, as well as that relocation allowances may be authorized. . The application period closes on Monday, February 18, 2008.

Full details are available on USAJobs, Job Announcement Number: RE-MSH-2008-0056A. http://jobsearch.usajobs.gov/getjob.asp?JobID=66321919&AVSDM=2008%2D02%2D05+17%3A56%3A14&Logo=0&brd=3876&q=RE-MSH-2008-0056A&FedEmp=N&sort=rv&vw=d&brd=3876&ss=0&FedPub=Y&caller=/advanced_search.asp&SUBMIT1.x=0&SUBMIT1.y=0

FDR Conference

Registration is now open for the Federal Dispute Resolution Conference, to be held this year in Orlando on August 3 - 7. The organizers describe the program as follows:

The Annual Federal Dispute Resolution Conference provides training for all professionals working in the human resources, labor and employee relations, EEO/Diversity and employment law fields, including supervisors and executives. FDR crosses disciplines and provides all the awareness, knowledge and skills necessary for every facet of federal employee management. The conference consists of high level keynotes, innovative breakout sessions, and numerous networking opportunities. Become a part of the FDR family so that you too can discuss best practices and achieve success through innovative solutions.

Ethics: Rules vs. Common Sense?

An interesting article from last fall's Federal Computer Week discussed differing perceptions of the ethics environment of the federal workforce. One VA employee stated "“Any [ethics] issue you bring to two general counsel members will come back with six opinions."  Fortunately, the same employee also provided advice to fellow employees: “The main point is, if you don’t know [about an ethics issue], ask questions instead of just assuming you’re right.”

The article quoted President Bush's signing statement for the Honest Leadership and Open Government Act, which called for more consistent ethical standards and raised the possibility that the new rules could hamper recruitment and retention of federal employees.

Here's a key quote from the article:

Industry executives and industry association officials say they sense a heightened awareness of ethics. “Ethics is a pendulum,” said Ken Allen, executive director of the American Council for Technology and Industry Advisory Council (ACT/IAC). The pendulum is swinging toward greater concern, as inspectors general, the Government Accountability Office and the new Congress emphasize agency oversight, he said.

High-profile cases of misconduct, such as the one involving David Safavian, former procurement policy administrator who was convicted of corruption charges in 2006, caught employees’ attention. They want to avoid getting involved in scandal, Allen said, adding that exceptional cases, such as Safavian’s, are the ones oversight officials use to set the rules for everyone else.

The change in attitudes among government employees since the Safavian case is noticeable, industry representatives say. If there’s a hint of controversy about attending an event, federal employees simply opt out.

An "Understanding" Enough for Bribery Conviction

The most recent issue of the Federal Law Enforcement Training Center's newsletter, The Informer, summarizes U.S. v. Ganim, a case interpreting the quid pro quo element of the bribery statute:

The specific intent element (quid pro quo / this for that) for bribery, extortion, and honest services mail fraud crimes may be satisfied by showing that a government official received a benefit in exchange for his promise to perform specific official acts or to perform such acts as the opportunities arise. It is sufficient if the defendant understood he was expected as a result of the payment to exercise particular kinds of influence on behalf of the payor as specific opportunities arose.

"Plain English" Matters

Brian Friel's newest Management Matters column in Government Executive discusses the importance of "plain English," something for those drafting ethics-related guidance to remember.

Get Comfy in Coach

Brian Friel of Government Executive offers his views on OMB's Jan. 8 memo restricting federal premium travel.  Our previous post has links to the memo and related documents. Friel's bottom line:

A year earlier, GAO noted that the State Department, as well as other agencies, treats first-class travel as a morale-boosting perk. "The tone set by top State Department executives indicate that it treats premium-class as an employee benefit regardless of cost and federal law and regulation," GAO reported in September 2006. GAO's latest report called that approach into question across government.

Now, the jig is up. Human resources officials could come up with lots of reasons that executives and managers benefit from traveling in the front of the plane. But it doesn't matter. In this case, Congress and the White House don't want government to be more like business.

Update on Foreign Gifts and Decorations Act

Today's Federal Register confirms GSA's change to the minimal value rule used for interpreting the Foreign Gifts and Decorations Act, first reported here last month.

Training on Negotiations

Do ethics officers ever have to engage in negotiations? You betcha, and most of us are not exactly comfortable with this task. While expensive by federal CLE standards, the Harvard Project on Negotiations negotiation courses come highly recommended, as does Cambridge in June.

Handouts on Touhey/Expert Witnesses

Here are the handouts for tomorrow's IEC meeting: 

Rick Thomas

• DAEOgrams DO-07-019 and DO-07-019a.
• U.S. v. Lecco, 495 F. Supp. 2d 581 (S.D. W.Va. 2007).

Terry Henry

• OGE Outline 2008.
• Another handout to be distributed at the meeting.

Another large crowd is expected for what looks like another good program.

Reminder: Meeting Thursday

Details in Pat Carney's previous post.

Lessons From Army Legal Trainers

The faculty at TJAG Legal Center & School (the Army's school for lawyers) maintains a high level of instruction that would be the envy of many civilian law schools. While attending a course there recently I observed a number of slide show presentation techniques that could enhance standards of conduct training:

• Showing the text of a statute or regulation on a slide as a screen capture from an original source. The slide is then modified to highlight the key section(s). This technique is a refreshing visual change of pace that subtly highlights the fact that the cited material is from an authoritative reference.
• Including the numbers of handout pages relevant to a slide in the lower right corner of the slide. Particularly useful if you have voluminous handouts.
• Use of "organic" graphics, i.e., pictures of real things that directly support the theme of the presentation, rather than using canned clip art as decoration.
• Frequent use of well-designed charts and graphs to summarize or convey a lot of information in a short time.
• Use of themes, gimmicks or other attention getters.  These are particularly useful if your presentation is part of all-day or multi-day training where there is a danger of audience burnout. For example:

One instructor had a running series of illustrations that amusingly illustrated her love of her alma mater's football team. Her best laugh line came after to the audience's reacted to a slide showing a lynched mascot of her favorite team's rival: She drolly stated "It's only a doll."

Other instructors made points by showing short television commercial clips,from other countries. Obtained via YouTube, clips like this can really grab an audience's attention. Avoid any uses not protected under the Fair Use exception to the copyright laws.

Updated February 5 with minor improvements.

A Proactive Approach to Transition

Tom Shoop's comments on the need for federal managers to take a proactive approach to the next Presidential transition fit neatly with Ric Cusick's advice on this subject at the December IEC meeting.

Leveraging IEC Presentations

Excellent presentations like those by Ric Cusick and Greg Weinman at recent IEC meetings suggest a question:

Is there some way these valuable materials could be presented live via the Internet and archived?

The IEC's monthly meetings produce a wealth of exceptional material, and it would be wonderful if it could be distributed more widely. Many organizations are already using these technologies. Here's an example of a recent "webinar" conducted by Government Executive on the new National Security Personnel System.

Premium Travel Policies

A lawyer with a small federal agency had a question about implementing OMB's new policy on premium travel:

We're in the process of evaluating our current practices.  I'm working to define "rest period," and advising on the development of clearer guidance for when agency mission criteria and intent call for premium class travel.  I'm curious to know how other agencies are handling this.  If you have any leads on how other agencies are approaching these issues, I'd appreciate learning about it.

If you have implemented a policy on this at your agency that you can share, send it to us via the Contact Us link on the left.  We'd love to distribute it. One of the reasons for this site is to increase the efficiency of ethics administration. It makes no sense for scores or hundreds of federal agency lawyers to duplicate each other's work.

OGE Calendar: February

Excerpts from the 2008 OGE Calendar:

February 1: The 2008 Agency Ethics Program Questionnaire is due to OGE today. (5 CFR § 2638.602(a))

February 15: DUE TO AGENCY ETHICS OFFICALS TODAY: All annual Confidential Financial Disclosure reports are due to agency ethics officials today unless the filer has been granted an extension. Remember to document the extension. (5 CFR § 2634.903(a) & 2634.903(d))