IEC Journal

GAO on Retired Military Officers as Media Analysts Controversy

The Government Accountability Office has issued an opinion on a fiscal law question related to the controversy over retired military officers acting as analysts for major news outlets. The opinion does not deal with standards of conduct issues, but it is of some interest to ethics officials. Here is the GAO summary:

The National Defense Authorization Act for Fiscal Year 2009 mandated that GAO provide its opinion to Congress on whether the Department of Defense (DOD) violated the appropriations prohibition on publicity or propaganda in its 2002 through 2008 outreach to retired military officers (RMO) who served as media analysts. GAO concluded that the outreach program did not violate the publicity or propaganda prohibition. Although there is no doubt that DOD attempted to favorably influence public opinion with respect to DOD's war policies in Iraq and Afghanistan through RMOs with conference calls, meetings, travel and access to senior DOD officials, GAO found no evidence that DOD attempted to conceal its outreach from the public nor was there evidence that DOD contracted with or paid RMOs for positive commentary or analysis.

The opinion does not address questions raised about the RMOs' commercial ties and potential competitive advantage or possible compromised DOD procurement processes because those questions, while legitimate, did not, in our view, implicate the publicity or propaganda prohibition and, thus, were outside the scope of the opinion. For similar reasons, this opinion does not examine whether the RMOS disclosed to the viewing public or the networks whether they had commercial ties to DOD contractors or other possible conflicts of interests.

B-316443, Department of Defense--Retired Military Officers as Media Analysts, July 21, 2009.

Fiscal Law Issues in Purchasing Clothing

It's not unusual for ethics officers to receive questions about appropriations law, such as the use of appropriated funds to buy clothing items. Mark Stone recently provided some tips on research sources in his newsletter:

1.  On the website of the Government Accountability Office (GAO), there is a January 2004, 640-page PDF document entitled "Principles of Federal Appropriations Law, Third Edition, Volume I."  On pages 495-501 of the PDF document there is a seven-page discussion of dozens of legal authorities on use of appropriated funds to purchase wearing apparel for U.S. government employees.  It is probably the most detailed treatment of the subject anywhere. GAO’s May 2009 update to the Third Edition does not contain any additional guidance on this issue.

2.  There is a 2008 Ethics Counselor's Deskbook on the website of the DoD Standards of Conduct Office (DoD/GC-SOCO). The Deskbook has a 69-page chapter entitled “Fiscal Law Overview.”  Use of appropriated funds to buy clothing is addressed on pages E-22 and E-23.

Mark's original included some Air Force-specific cites.  The complete posting is available at the Air Force Materiel Command ethics website.

Subisdizing Attendance At Awards Ceremonies

When can the government subsidize attendance at an awards ceremony? Air Force lawyer Mark Stone provides a number of Department of Defense and Air Force references in his e-mail newsletter, as well as the following other authorities:

• 70 Comp. Gen. 440, B-241987, April 25, 1991 (spouse travel to attend an award ceremony)

• 69 Comp. Gen. 38, B-233607, Oct. 26, 1989 (spouse travel to attend an award ceremony)

• 55 Comp. Gen. 1332 (1976) (travel to accept an award from a non-Federal organization)

• 5 USC 4503 (awards by Federal agencies to Federal employees)

• GAO guide, Principles of Federal Appropriations Law, Third Edition, Jan. 2004, Volume I, page 4-167. [The March 2009 update to the guide does not have guidance on this issue.]

Contact Mr. Stone to be added to his mailing list (address disguised to throw off automated address-gathering software used by spammers): mark_dot_ stone--AT--wpafb _dot_af_dot_mil.

The Air Force Materiel Command (AFMC) ethics website (registration required) has more ethics information:

http://afmcethics.wpafb.af.mil

Refreshments at Conferences

It's not unusual for ethics officers to be asked questions about fiscal law restrictions on the use of appropriated funds for various purposes, including the purchase of  refreshments for conference attendees. Managers accustomed to private sector practices sometimes don't understand that government rules are more restrictive. Fortunately, there has been some liberalization of the rules in recent years, as demonstrated by this 2005 GAO opinion, and cases cited in a related 2007 DOJ OLC opinion.

Edited April 19 to improve clarity.

GAO Greenlights "No Cost" Contracts

A GAO opinion allows federal agencies to use so-called "no-cost" contracts. Under a no-cost contract, a vendor provides services to the government, in exchange for fees collected from third parties. For example, a vendor might organize a conference that benefitted the government, but be compensated only by attendee registration, not payments from the government. A 2005 GAO opinion had cast doubt on the legality of such arrangements. The newer opinion allows them under some circumstances, but warns:

Agency officials ... should consider possible conflicts of interest before signing a no-cost contract, keeping in mind that control of the agenda, selection of speakers and other matters concerning content should serve the government's, not the contractor's, purpose. Ultimately, an agency must not lose sight of its objectives for a particular event and should ensure that in avoiding costs to the agency, it does not take actions that compromise the effectiveness of its conference, undermine the achievement of agency goals, or violate ethics rules.

Updated June 5 to improve clarity.

Army Fiscal Law Web Site

Ethics advisors that receive questions with fiscal law implications will find a welcome resource in the Army Fiscal Law web site. Among other things, their Fiscal Law Deskbook makes a nice supplement to the GAO Redbook.

Travel Reimbursement Controversy Continues

Today's Washington Post has still more on alleged violations of travel reimbursement rules at the Consumer Products Safety Commission. Thanks to the alert Cary Williams for tipping us off to this issue. We welcome suggestions from our readers. Use the "Contact Us" address at left (changed occasionally to evade spammers).

E-mail Alleged to Violate Lobbying Ban

Government Executive has a report on a controversy involving an e-mail that originated within the Farm Service Agency that encouraged agency employees to lobby Congress. The story links to a good USDA Ethics Office summary of the laws prohibiting such conduct.