IEC Journal

Early Holiday Dismissals

With Thanksgiving approaching, it may be worth reviewing a GAO decision that discusses the propriety of allowing employees to leave work early. A 2006 Army Lawyer article discussed the issue in depth.

Presidential Executive Order: PROMOTING EFFICIENT SPENDING

On Nov. 9, 2011, the President signed an executive order to promote efficient spending in the Executive Branch.  See EO at http://www.whitehouse.gov/the-press-office/2011/11/09/executive-order-promoting-efficient-spending.  The EO is part of the Campaign to Cut Waste, and coincided with the announcement of the 2011 SAVE Award finalist.  See WH press release: http://www.whitehouse.gov/the-press-office/2011/11/09/we-cant-wait-president-obama-sign-executive-order-cut-waste-and-promote-.

Within 45 days, agencies must develop plans to reduce combined costs in the following areas to 20 percent below Fiscal Year 2010 levels by Fiscal Year 2013.

1. Reduce Spending on Travel and Conferences.
2. Cut Duplicative and Unnecessary Employee Information Technology Devices
3. End Unnecessary Printing and Put It Online
4. Limit Motor Vehicles
5. Stop Swag – or Government Promotional Handouts

DOJ IG revises Conference "muffin" report

As a result of the responses and clarifications to the September IG report suggesting that DOJ approved and paid for $16.80 muffins at a 2009 conferences, the DOJ IG revised and reissued the report, superceding its prior report.  While the clarifications corrected the factual misstatements that the muffins at the given conference were $16.80 each, it still concludes that attention must be given to reducing excessing conference costs.  See DOJ revised report: http://www.justice.gov/oig/reports/plus/a1143.pdf; and GovExec article: http://www.govexec.com/story_page.cfm?articleid=49168&dcn=e_gvet.

Allegation: SEC Paid Improper Commuting Expenses

Reuters reports:

In an unusual move, first reported by Reuters in May, the SEC decided to offer [Henry Hu, a law professor at the University of Texas in Austin] a compensation package that designated his hometown of Austin, Texas as his "duty station."

In doing so, it made him eligible to receive thousands of dollars a month in per diem payments toward his meals and long-term stays in a Marriott-owned apartment in Chevy Chase, Maryland, as well as flights back to Austin. 

The package drew criticism from many staffers within the SEC, in part because many other employees who live in other cities often pay their own way. 

Kotz's report found that the SEC spent about $120,000 to cover Hu's housing, meals and airfare through his tenure, in addition to $314,198.26 for his salary. 

Hu was hired on a temporary basis through a special arrangement with the University of Texas known as an Intergovernmental Personnel Act assignment, or IPA. 

IPAs are often used by the government, particularly in recruiting academics. Generally, the employee will work for the government for a limited time. In exchange, the government will often pay for a portion of the person's salary and benefits. 

The Office of Personnel Management's guidelines do allow federal agencies to give employees a per diem allowance, but those allowances should only be for short-term assignments.

Washington Post Ombudsman's Take on Bogus $16 Muffin Story

Belatedly, this morning the Washington Post 's ombudsman looks into the Post's poor reporting on the Department of Justice conference spending story. He notes that DOJ spent $14.74 per person per day on all refreshments, a whole two cents above the limit of $14.76 per day. Since no one except green eyeshade types is going to get too excited about a two cents overage, rather than report the facts, the Post apparently decided to sex it up by going with a transparently inaccurate story about $16 muffins.

He includes this quote:

“Yes, we should have called Hilton,” said Barbara Vobejda, Markon’s editor. “While it does not excuse our failure to call, I can say that we did not realize until late that night on deadline which hotel hosted which conference; we did not necessarily feel the hotels had done anything wrong; and none of several editors who were involved in the story thought to suggest that we get comment from each of the hotels mentioned. That, in hindsight, was a mistake.”

Calling the Hilton would have been sound journalism, but it should not have been necessary. The numbers the Post went with were dubious on their face to anyone with even minimal experience dealing with hotels. It's well known that hotels don't necessarily break out cost categories precisely. Did none of the "several editors" who worked on the Post story have common sense or good judgment?

The ombudsman hinted at the real cause of this fiasco by noting early in his story that: "[A]s a journalist, my instinct tells me that the muffin story was just a bit too good to be true." He further notes, " All of us scribes love nothing more than to do a front-page story with national impact."

What the ombudsman is saying is that people at the Post wanted to write a story bashing government employees, and they did not let the facts get in the way. It's exactly what happened in the Post's coverage of the OGE conference. Reliable sources advise me the Post was given detailed information about actual OGE conference costs, but instead chose to go with snarky insinuations.

We strongly agree with the ombudsman's stated ideal, "But our first duty is to get as close to the truth as possible, even if that’s a bit less sensational."

Let's hope the Post tries to live up to this more often. A correction of their probably even worse reporting on the OGE conference would be a good place to start.

More on the Mythical $16 Muffin

A colleague pointed out yesterday that the sensational headlines concerning the Department of Justice allegedly paying $16 for muffins at a 2009 Washington legal conference were apparently misleading. The Associated Press, Talking Points Memo and others have reached a similar conclusion. Writing for Mother Jones, Kevin Drum has a good explanation.

The initial erroneous reporting on this matter is reminiscent of the drive-by journalism attack on the Office of Government Ethics 2011 conference in Orlando. Bashing government is a time-honored journalistic tradition, and we would be the last to discourage it. However, it's a good idea to make sure you get the facts right.

New Turn in $16 Muffin Story

Government Executive reports that Hilton Worldwide, the company that apparently charged DOJ conference attendees $16 per muffin at a 2009 event, stated that the DOJ IG auditors misinterpreted the invoices for that conference.  The quoted price, Hilton says, included not only baked goods, but juice, coffee, soft drinks, tax and tips. 

FEMA's "Ice Cream Social": Fiscal Law Aspect

POGO disagrees with a FEMA decision to hold an “ice cream social” (i.e., to serve refreshments at a ceremony recognizing employees for superior work): 

Such ceremonies allow for food to be served and food gifts to be provided to a distinguished employee, and therefore someone at FEMA thinks that it’s okay to use the on-the-spot award to throw an ice cream social for the office. I can only hope that someone in the financial or audit offices get the scoop on this story and terminates it before taxpayers are left holding the bill and a melted ice cream cone. 

We don’t know the details of FEMA’s plans, but for what it’s worth, we note that the type of practice described appears to be in accordance with the Government Employees Incentive Awards Act, 5 U.S.C. 4501 - 4506, as interpreted by the Government Accountability Office in opinions including 65 Comp. Gen. 738 (1986). GAO’s treatise Principles of Federal Appropriations Law, 3^rd Edition explains the rule at pages 4-116 through 4-118, including the observation that “[T]he agency would be within its legitimate discretion to determine that refreshments would materially enhance the effectiveness of a ceremonial function, specifically in this case an awards ceremony which is a valid component of the agency’s statutorily authorized awards program.”

In other words, it appears to be perfectly legal. The response from some critics who are determined to bash the government would be that “just because something is legal does not make it right.” No doubt that general proposition is true, but its applicability here is in doubt. Private businesses routinely engage in similar practices. They are making a business judgment that this is good for their bottom line. As GAO has concluded, there’s no reason federal government managers should not have the same discretion. 

GAO Greenlights CFTC Whistleblower Incentive Fund

GAO has ruled in favor of a Commodity Futures Trading Commission plan to use its Customer Protection Fund to pay incentives to whistleblowers:

B-321788, U.S. Commodity Futures Trading Commission--Availability of the Customer Protection Fund, August 8, 2011.

The Mythical 59 Minute Rule?

A 2006 Army Lawyer article examines the fiscal law implications of allowing employees to leave work early before a holiday:

The true gray area, therefore, is not what authority there is for a fifty-nine-minute rule, or who has the authority to grant or receive it. The true gray area lies in the purpose and frequency of the rule's invocation. While regularly recurring excusals that have the effect of a federal workweek reduction in duty hours are outside the parameters of management discretion, the occasional and infrequent use of the fifty-nine-minute rule as a good will gesture, especially in association with a recognized federal holiday is clearly within them. So, while federal employees need not feel too guilty about getting an occasional hour off, between these examples lays an icy slope that could lead to time and attendance audits and raise issues of proper judgment with the potential for discipline. After all, DOD employees are responsible for the sound stewardship of government resources--every one of them.

McCaskill to Examine Use of "Publicity Experts"

The Washington Post reports on Senator McCaskill's plans to probe federal agency use of public relations firms.  Such practices could violate fiscal law restrictions against the use of "publicity experts" or engaging in "publicity and propaganda."

Army Fiscal Law Materials

The Army 2009 Fiscal Law Deskbook is available at the TJAGCNET website.

OGE Guide on Conferences (May 2010)

The Office of Government Ethics (OGE) recently compiled the first edition of a reference guide on conferences.  The guide includes information on not only Government ethics implications, but also fiscal, procurement, and other legal issues that often arise when Federal personnel are involved in conferences.  OGE collaborated with several other entities in creating this guide, they include but are not limited to GAO, GSA, DoD, EPA, and HHS.

Please note this is ONLY meant as a reference guide to help you begin to understand the legal aspects of conferences.  It should not be referenced as an authoritative document, but rather users should cite the the primary sources of the information cited in the guide.

See: Download Guide--Conferences 1 0 (May 2010)

Remember this is a working document.  If you have comments, or suggestions, or wish to add your agency's perspective, please do so at www.contactoge.gov. 

The Army Lawyer Archives

The Army Lawyer magazine covers not just military law, but ethics, fiscal law and administrative law topics likely to be of interest to civilian as well as military lawyers. Free searchable archives are available through:

1. The Army's JAGCNet site and
2. The Library of Congress

OMB Guidance on Federal Agencies Conducting Prize Competitions

OMB M-10-11, Guidance on the Use of Challenges and Prizes to Promote Open Government (March 8, 2010) has fiscal law implications. Thanks to John Higley & Mark Stone for the link.

Use of Appropriated Funds to Pay for Refreshments?

The issue of when agencies can use appropriated funds to pay for refreshments comes up frequently. The archives of GAO's 2005 Appropriations Law Forum contain guidance on the subject.

GAO Appropriations Law Forum

GAO's Appropriations Law Forums, conducted annually since 2005, are a valuable source of guidance on tricky and topical issues. For example, the 2009 archives contain an explanation of f

actors to be considered in determining propriety of using appropriated funds to pay fees for airport "registered traveler" programs.

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.