IEC Journal

POGO On Organizational Conflicts of Interest

POGO has a discussion of organizational conflicts of interest. It's supplemented by a subsequent audio recording of two POGO staffers, distributed as a "podcast."

Given the popularity of portable music players, especially iPods and cell phones that can play audio recordings, as well as the fact that most office PCs can probably replay voice recordings, podcasts have a lot of potential as a tool for ethics education. The Federal Law Enforcement Training Center's Legal Division uses them extensively. Let us know of your results in this area.

IG Report Finds Weaknesses in CDC's Ethics Program for SGEs serving on Advisory Committees

NY Times article discussing the unresolved conflicts of interest of the CDC advisory board members who made recommendations on flu and cervical cancer vaccines.  See  http://www.nytimes.com/2009/12/18/health/policy/18cdc.html?_r=2&sq=vaccines&st=cse&scp=2&pagewanted=print 

UPDATED December 22: Changed headline to avoid oversimplification, at the suggestion of an IEC member who provided this additional explanation:

The report simply does not say that advisors on vaccines often have conflicts.  The OIG report did not focus on vaccines, but instead dealt with all 24 advisory committees generally at CDC.  

FURTHER EDITS to above paragraph on January 10, at joint request of HHS OIG and OGC staff.

The IG report in question is available for those who would prefer to get their information from the source.

Federal Judge Impeachment Hearing

Federal News Radio

Witnesses in the congressional impeachment case against U.S. District Court Judge G. Thomas Porteous Jr. paint a jarring portrait of the former Louisiana state judge who was appointed to the federal bench in 1994 by President Bill Clinton.

January 7, 2010 Meeting

Our January 7th meeting will feature Jodi Cramer and John Shea of DHS (FEMA) who will discuss “Social Media.”  Social Media or Web 2.0 are new innovative tools that, when used properly, can provide an additional communication stream for government agencies. To date, social media tools have enabled any member of the public with a cell phone to act as a “citizen journalist” and report to the world what they see and hear 24/7. However, the government is not always like the private sector, and its laws, regulations, and processes have to be adhered to even in a Web 2.0 world.

 

FEMA has been able to engage citizens using this new platform while remaining compliant with its laws and regulations. This session will focus on how other government entities can likewise engage in Web 2.0 while remaining legally compliant. It will focus on creating a structure that allows for solutions to obstacles faced by the government, and will show how building a team of in-house experts can lead to solutions for any Web 2.0 tool, addressing in particular the ethics, appropriations, contracts, records, privacy and other compliance issues that face a government agency in this Web 2.0 world.  Our presenters will also look at how ethics officials can use Web 2.0 technology to better reach their audience at their agencies.

 

As usual, we will meet from 12:15-1:30 in the OTS auditorium, 1700 G Street, and, as always, individuals who are on the IEC roster need not pre-register for this meeting. 

Agency ethics officials who are not on our roster but who wish to attend can pre-register by contacting Patrick.Carney@fcc.gov not later than Monday, January 4th.  Those who are neither on the IEC roster nor pre-registered can still be admitted by showing a Government ID to OTS Security personnel.

 

For planning purposes, our February meeting will be on Thursday, February 4th, and will address the Ethics Pledge.  We are pleased to have as our speakers for that meeting, Norm Eisen, Special Counsel to the President for Ethics and Government Reform, Don Fox, OGE General Counsel, and Rick Thomas, OGE Associate General Counsel.

 

We’d also like to take a moment to thank Jerry Lawson, of USAID’s OIG, for his untiring efforts on behalf of this, our website!  Without all of Jerry’s work, we would never be able to share information on the Federal ethics program among our members.  Thanks, Jerry!

 

Finally, we wish all our members the very best of the Holiday Season.  We look forward to continuing to work with you in 2010. 

Norman Eisen Bio

The Washington Post's WhoRunsGovernment.com project includes a profile of the Special Counsel to the President for Ethics and Government Reform:

Norm Eisen is described as “Mr. No.” The career D.C. lawyer who went to Harvard Law School with Barack Obama is now the president’s ethics guru, which usually means he’s telling top-level officials that they can’t get an exception to hire someone they want or can’t take a gift from a former colleague.

Posting and Distributing Material in Federal Buildings

While not part of OGE's Standards of Conduct, a GSA regulation could be relevant to some ethics issues. Here's how one agency handled an announcement on the topic.

In accordance with 41 CFR, Part 102-74.415, Subpart C, the posting of handbills, flyers, pamphlets, and the like in Federal Buildings is prohibited except on authorized bulletin boards designated for such purpose. Agency employees must refrain from posting or tacking flyers, pamphlets, and handbills on corridor walls and in elevator lobbies in agency property. Not only is the activity illegal, it damages wall surfaces by causing unsightly discoloration from tape adhesives and deterioration of surface coverings.

 

Eight Questions for Government Pro Bono Lawyers

Cheryl Zalenski, an ABA-employed pro bono coordinator, has an essay entitled Eight Questions a Government Lawyer Should Ask Before Taking a Pro Bono Case. Ms. Zalenski also has a Twitter feed.

Multiple Employees Convicted for Accessing Passport Files

A Department of Justice press release reports on the conviction of one State Department employee for illegally accessing passport files, and briefly describes the situations of seven others convicted previously.

TSA Employees on Admin Leave Over Leak

The furor over TSA employees inadvertently placing sensitive material online illustrates why the "metadata" sessions at an OGE conference were popular. Inadvertent release of metadata, either through publication, as in this case, or less formal distribution, as when sharing documents in negotiations or electronic discovery, is a real threat. Previous IEC posts provide:

1. Tips and links to materials from that session and
2. Similar materials from Jim Calloway, a legal tech advisor to the Oklahoma state bar.

Animated Holiday Ethics Slide Show

Jennifer Dickey, of the Department of Treasury's Financial Management Service, was kind enough to share a whimsically charming animated slide show used in her office:

Download HolidayGift09

The slide show is in the form of a Microsoft PowerPoint script that will run automatically if users select the file. Important: You can customize the slide show for use in your own office if desired. To avoid having the show run automatically, open PowerPoint first, then select the file. You can edit it in this manner.

Ethics Training DVDs at Naval Academy

The training techniques used by Navy midshipmen in some interactive DVDs described in this Washington Post story might be adapted to standards of conduct training:

Generations of midshipmen have judged case studies about personal conduct and wartime decisions through the prisms of those wise men of old. Now they're also testing their fitness to be leaders with a series of interactive DVDs that demand snap decisions in 21st-century dilemmas.

Each video presents a scenario with several critical forks. There's no time to philosophize: Click one of the buttons, then deal with the consequences as the rest of the story unfolds.

Your buddy is drunk and argumentative in a bar, and tomorrow is a big day for your unit. Wait to get him home safely, or grab some precious sleep yourself?

Morning comes, and he's drunk on the couch. Persuade him to stay home and face the consequences, or let him report for duty and risk getting caught?

DOJ Supports Immunity for Advice on Interrogation

The Department of Justice supports immunity for John Woo and other lawyers who drafted memos supporting controversial interrogation techniques. Not everyone agrees.

Supreme Court Hears "Honest Services" Cases

The Christian Science Monitor analyzes three "honest services" cases being heard by the Supreme Court.

Note that it is easy to set up Google Alerts so that it will automatically send you e-mail updates on any topic you choose. This feature works best when you have a search term that filters well, such as "honest services."

Army mentoring deals bypass ethics laws

USAToday reports - The Army used a loophole in federal ethics law to award lucrative contracts to two recently retired generals, departing from its standard practice for hiring senior advisers, according to public records and interviews.

See full article at http://www.usatoday.com/news/military/2009-12-07-mcneill_N.htm.

DoD IG found former official abused travel polices

Former deputy Pentagon policy chief Christopher Ryan Henry routinely violated Defense Department travel policies to reap personal gain — including ski resort getaways and limousine rentals — and eventually repaid the government nearly $17,500, according to the Pentagon's inspector general.

See full article at http://www.federaltimes.com/article/20091204/TRAVEL02/912040302/-1/RSS.

Other ethics news

These news items are related but not specifically Executive Branch Government Ethics:

• Joseph L. Bruno, the former top Republican in New York State, found guilt of two counts of corruption and is facing up to 20 years and a $250,000 fine on each count. http://s.nyt.com/u/ig2

• Senator Max Bacus admits to recommending girlfriend for US Attorney slot.  The article discusses the political nature of appointment of US Attorneys.  http://www.nytimes.com/2009/12/06/us/politics/06baucus.html?scp=1&sq=US%20attorney&st=cse

HHS management analyst vacancy (GS 11-13)

The Office of the General Counsel, Ethics Division, at the Department of Health and Human Services (HHS) is seeking qualified candidates for a Management Analyst position (GS 343 11/12/13) in its Ethics Education and Program Review Branch.  The successful applicant will perform the following duties in evaluating the ethics program compliance of the operating and staff divisions within HHS:  

1.  Plan and organize ethics program reviews/audits

2.  Examine financial disclosure, outside activity, and other ethics reporting systems

3.  Draft ethics program administration procedures

4.  Prepare working papers, executive summaries and reports for ethics program reviews/audits

5.  Monitor compliance with program review/audit recommendations

The job announcement is located on the USAJOBS section of the OPM website at the following URL:

http://jobview.usajobs.gov/GetJob.aspx?JobID=84992589&JobTitle=MANAGEMENT+ANALYST&vw=d&brd=3876&ss=0&FedEmp=N&FedPub=Y&q=ethics&pg=1&re=12&cnme=Washington&rad=20&rad_units=miles&rfn=1&sort=dtex&AVSDM=2009-12-07+11%3a56%3a00

The vacancy announcement closes on January 8, 2010.

DoD Standards of Conduct Office Holiday Guidance 2009

In November, the DoD Standards of Conduct Office presented an updated version of their Holiday Guidance.

Updated Dec. 8 to improve formatting.

Honest Services Fraud

The most recent edition of the Federal Law Enforcement Training Center's Legal Division's newsletter discusses U.S. v. Inzunza (copy of decision via the new Google Scholar's legal research feature):

The quid pro quo required for bribery is a payment made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. Similarly, when the government seeks to prove honest services fraud in the form of bribery, it must prove a quid pro quo. The quid pro quo must be clear and unambiguous, leaving no uncertainty about the terms of the bargain.

Private gain is not an "implied" or "necessary" element of honest services fraud. The intent to defraud does not depend on the intent to gain, but rather the intent to deprive.

The 10th Circuit agrees (cite omitted).

The 3rd Circuit agrees because requiring private gain would merely substitute one ambiguous standard for another (cite omitted).

The 5th Circuit agrees because it has adopted a state-law-violation requirement instead (cite omitted).

The 7th Circuit disagrees, requiring proof of private gain (cite omitted).

POGO Survey on Service Contracts

The Project on Government Oversight (POGO) has extended the deadline for completion of its online survey of federal service contracts to January 15, 2009. Here's their description of the survey:

POGO is investigating the federal government's outsourcing of services to the private sector, which will be referred to in this survey as federal service contracts (or FSCs for short). POGO is trying to determine whether these contracts conform to regulatory standards and are achieving the stated purpose(s) of using private sector contractors instead of government employees to perform services (i.e. to acquire hard-to-find skills, to save money, to augment federal workforce capacity on an emergency basis, to reduce the size of the government).

To aid in this investigation, this survey is being distributed to federal government and contractor employees. POGO will analyze the responses to this survey in conjunction with other data obtained through Freedom of Information Act (FOIA) requests and publish its findings and recommendations in a written report that will be accessible online.

CRS Fires Outspoken Analyst

From this morning's Washington Post:

The former chief military prosecutor at Guantanamo Bay has been dismissed from his current position as an assistant director at the Congressional Research Service for penning an op-ed in the Wall Street Journal and a letter to The Washington Post that offered strong opinions on the prosecution of detainees held at the military prison in Cuba.  ...

A spokesman at the CRS, which provides neutral policy and legal analysis to Congress, declined to comment on a "personnel-related matter." But in a Nov. 20 letter to Davis, the director of CRS, Daniel P. Mulhollan, said Davis had not shown "awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS."

The White House Blog: Ethics

The White House Blog: Ethics facilitates keeping up with new White House ethics policy announcements. It is a subsection of the overall White House blog. The site has an RSS feed, another reason to pick up an RSS reader, if you don't have one already.

DoD SOCO on Holiday Parties

Thanks to Mark Stone for reminding us of the excellent 2008 DoD Standards of Conduct Office memo on holiday party issues.

December 8 Update: The 2009 DoD guidance is also available.

NASA scientists avoids jail

NASA scientist avoids jail in procurement case. 

A prominent NASA scientist, who has admitted directing thousands of dollars in sole-source agency contracts to his wife's company and failing to report the income on a financial disclosure form, has been spared a prison sentence.

See full article at 

http://www.govexec.com/dailyfed/1209/120109rb1.htm

Limited Public Access to Revolving Door Database

Scott Amey at POGO Blog strongly disagrees with a DOD decision to restrict public access to a database of former federal employees who have gone through the revolving door .

Maybe Obama's lofty goals haven't trickled down to all parts of the government, but what's the harm in seeing a list of former government officials who are now working for defense contractors? We have campaign finance and lobbying disclosure -- why not expose those circulating between the public and private sectors who might be a driving force behind government decisions and policies? Wait, I just answered my own question.

Seasonal Greeting Cards

Mark Stone's Nov. 30 e-mail newsletter included a discussion of fiscal prohibitions against paying for seasonal greeting cards with appropriated funds. We have uploaded a copy of the key opinion cited by Mr. Stone, B-157883.4. Here is a link to the opinion at the GAO website. Here is the key language:

Christmas greetings

During the period covered by the IG's review, the Medical Center used its appropriation to purchase Christmas cards and stamps. According to the Medical Center Director, VA sent Christmas cards to service organizations, other VA medical centers, state medical facilities, and others for the purpose of enhancing the relationship between the Medical Center and these organizations. We have long held that the cost of holiday greeting cards is a personal expense of the officer who authorizes their use, even where the agency's name rather than the officer's name appears on the card. See, e.g., 64 Comp. Gen. 382 (1985); 37 Comp. Gen. 360 (1957). Both cases specifically rejected the argument that objectives such as engendering goodwill or ensuring the recipients' cooperation justified using appropriated funds for this purpose. Therefore, the cost of Christmas cards and stamps was not properly charged to VA's medical care appropriation.

Mr. Stone's invaluable e-mail newsletter is archived at the Air Force Materiel Command website. Authentication is required. Fill out the form that appears after the log-in page to obtain a password.