IEC Journal

Reminder: May 2 IEC Meeting: Outside Activities

Ever have trouble tracking who has received outside activity approval? Ever wonder what criteria to use for such approval? Gretchen Weaver of NIH and Elizabeth Fischmann, HHS/OGC, will discuss their outside activity approval process and related issues at our May meeting.

The meeting will be held at the U.S. Access Board, 1331 F Street, NW, 8th Floor, from 12:15-1:15.

Handouts for the presentation may be found here:  Download May 2013 IEC (slides only)

Poker Found a Game of Skill Not Covered by U.S. Gambling Act

Poker is a game of skill that is not covered under the federal Illegal Gambling Business Act, Eastern District Judge Jack Weinstein ruled yesterday.

In a 120-page opinion, Weinstein reversed the jury conviction of Lawrence Dicristina and found that, as a matter of law, Congress did not clearly intend to criminalize poker when it passed the act. Part of the judge's reasoning was that poker games, in this case Texas Hold'em, are not purely games of chance.

Controversy Over Ouside Organization's Cash Payment to Whistleblower

Thanks to an IEC member for  alerting us to a Fedsmith.com story about legal wrangling over a $383,600 cash payment from POGO to a Department of Interior economist who helped POGO win a false claim action. After the Department of Justice intervened, the defendan oil companies settled the case  for about $440 million.

The Department of Interior attempted to fire the economist, citing 18 U.S.C. 209(a) (prohibiting supplementation of salary).

P.S. We were a little late following up on this tip due to the holidays and medical issues of one IEC reporter. If you submitted a tip, but did not see it published, please send us a reminder. We get a lot of excellent tips from readers, and don't want to inadvertently fail to follow up.

DHS proposes additional restrictions on their employees

DHS' proposed supplemental ethics rules for its employees.  They include restrictions on the
purchase of certain Government-owned property, requiring employees to report allegations of waste, fraud, and abuse, requiring employees to seek prior approval for certain outside employment and activities, prohibiting employees in some DHS components from engaging in certain types of outside employment and activities, requiring designated components to develop instructions regarding the procedures for obtaining prior approval for outside employment and activities, and designating components within DHS as a separate agency for purposes of determining whether the donor of a gift is a "prohibited source" and of identifying an employee's agency for the regulations governing teaching, speaking, and writing.

See Fed. Reg. at http://www.gpo.gov/fdsys/pkg/FR-2011-10-12/html/2011-26160.htm

See articles discussion same: http://www.federalnewsradio.com/?nid=85&sid=2591216 and http://www.govexec.com/story_page.cfm?articleid=49068&dcn=e_gvet

Constitutional Limits on Power to Control Employee Outside Activities?

Fedsmith.com reports on Davis v. Billington, a District of Columbia District Court case that could affect the way rules on employee outside activities are applied. The plaintiff is a former U.S. Air Force Colonel whose last assignment had been as the Chief Prosecutor for the Office of Military Commissions for the Department of Defense. His new supervisor at the Library of Congress objected to his publishing articles critical of military commissions and took various adverse personnel actions. The District Court for the District of Columbia refused to dismiss a “Bivens” tort claim against his supervisor and the Library of Congress.

Possible Limits on Alternate Work During Government Shutdown

Guidance from OMB Q & A The Potential Impact of a Lapse in Appropriations on Federal Employees:

Q: May employees take other jobs while on furlough?

A: While on furlough, an individual remains an employee of the Federal Government. Therefore, executive branch-wide standards of ethical conduct and rules regarding outside employment continue to apply when an individual is furloughed (specifically, the executive branch-wide standards of ethical conduct (the standards), at 5 CFR part 2635). In addition, there are specific statutes which prohibit certain outside activities, and agency-specific supplemental rules that require prior approval of, and sometimes prohibit, outside employment.  Therefore, before engaging in outside employment, employees should review these regulations and then consult their agency ethics official to learn if there are any agency-specific supplemental rules governing the employee.

OSC found Bush Administration Officials violated the Hatch Act

OSC's report found the Office of Political Affairs acted more like a campaign office than an advisory office for the President, when it conducted political briefings for agency political appointees during work hours and in the Federal workplace.  OSC's investigation expanded to review other Hatch Act violations including improper classification of political travel as "official" and failure to seek reimbursement from political appointees for this political travel.  See OSC report http://www.osc.gov/documents/hatchact/STF%20Report%20Final.pdf

See also GovExec article http://blogs.govexec.com/fedblog/ and Politico article http://dyn.politico.com/printstory.cfm?uuid=601ACD52-7F25-4233-9CEB-78676900A53E.

FBI Agent Busted for Hiring Illegal Aliens

A Texas FBI agent has been sentenced to an $18,000 fine and two years probation for knowingly hiring illegal aliens to work at a deli she owned. The FBI Special Agent in Charge stated in the press release:

While it is disappointing that an FBI Special  Agent chose to break the law, it is important for citizens to understand that the FBI has an  unwavering commitment to take appropriate action when transgressions are committed by its  employees, the overwhelming majority of whom are above reproach in their professional and  personal conduct.

CPSC Lawyer Accused of Conflicts of Interest

A Consumer Products Safety Commission lawyer has been charged with criminal conflicts of interest:

In addition to his full-time jobs at the CPSC, Williams was the managing partner at the Williams Law Firm — a job he never disclosed in federal finance forms, according to information the United States Attorney's Office for the District of Maryland released Tuesday. ...

While working with his outside law firm, a foreign corporation paid Williams more than $48,000 for his work to help the corporation supply the U.S. Army with batteries for armored personnel carriers, according to the release.

However, Williams did not report his law firm as a source of income on his financial disclosure reports for calendar years 2005 and 2006. Also, Williams never mentioned he had an outside position with the firm — a piece of information that he is required to disclose. The information was also vital to ethics officials, especially since Williams' interactions involved federal government agencies, according to the release.

Stone: 40 Rules on Off-Duty Employment

The newest edition of Mark Stone's e-mail newsletter contains a 12-page document entitled “40 Rules on Off-Duty Employment by Executive Branch Employees.” 

Mark Stone's e-mail newsletter is a great source of ethics information. Since beginning an Internet ethics mailing list June 25, 1996, Mr. Stone, an ethics attorney at Wright-Patterson Air Force Base OH, has published well over 1,300 ethics updates.  

Contact Mr. Stone to be added to the mailing list (address modified to reduce spam):

Mark --DOT-- Stone --AT-- wpafb -- DOT af --DOT-- mil

Mr. Stone's tips, and more 

ethics information are available on the Air Force Materiel Command (AFMC) ethics website. The required registration is a painless process.

CORRECTED link to Mark Stone information Nov. 23.

FDA Restrictions on Farmer/Employees Are Controversial

A Food and Drug Administration decision to tighten up ethics enforcement has sparked controversy. Here's an excerpt from a longer Gazette.com article:

Because farms sell food and the FDA regulates it, the agency has decided employees whose positions require them to file financial disclosures are not allowed to work for the agency and "have a financial interest in a farming operation."

"There's no way I can parlay my work into a conflict of interest," said Luther, a special assistant to director of the FDA's Office of New Animal Drug Evaluation, who with his wife, Mina, raises beef cattle, corn, soybeans, hay and "fancy" show chickens for breeding.

FDA officials recently decided to reconsider a ban in the wake of shock and outrage from Luther and other farmers who work at the FDA, many of whom have reported their farming to the agency through financial disclosures for years.

Enforcement of the ruling will be held in abeyance, FDA officials said late last month.

OGE 2009 Prosecution Survey

The Office of Government Ethics issued DAEOgram DO-10-017 on November 9, 2010 announcing the publication of the 2009 Conflict of Interest Prosecution Survey.   The survey contains summaries of cases involving conflict of interest violations.  The Department of Justice prosecuted the cases. See http://www.usoge.gov/ethics_guidance/daeograms/dgr_files/2010/do10017.pdf

Following Up on Rick Joyce Tech Privacy Presentation

The article mentioned by Rick Joyce, the April IEC speaker, "Liability for All, Privacy for None: The Conundrum of Protecting Privacy Rights in a Pervasively Electronic World," 41 Val. U. L. Rev. 1481 (Summer 2007) is not yet available at the Valapriso Law Review web site. Because the article is copyrighted, we won't reproduce it here, but note for those interested that it is available through Westlaw using the search term 41 VALULR 1481.

The Department of Justice Cybercrime.gov site has additional information available for understanding tech privacy issues, including the Electronic Search and Seizure and Prosecuting Computer Crimes manuals.

Admiral Investigated for False Statements

USA Today reports on the firing of a Navy admiral. As is often the case, the consequences of the coverup proved worse than the underlying offense:

[The Admiral's superior] "emphasized" to CNN that Stufflebeem, a former commander of the 6th Fleet, was being punished for the "false and misleading" information he gave to investigators, and not the underlying allegations about an "inappropriate relationship."

Reporting Payments from Non-Federal Sources: OGE Guidance & News Reports

OGE has issued additional guidance concerning required semiannual reports of payments for travel, subsistence and related expenses received from non-Federal sources in connection with the attendance of employees at certain meetings or similar functions (31 U.S.C. § 1353). The guidance clarifies the OGE role:

OGE is responsible for making the information provided by the agencies available to the public. It is each agency’s responsibility to file the accurate and complete reports and to make the appropriate conflict of interest analysis. (See 68 Federal Register 12602-12610 published March 17, 2003.)

Such payments to federal employees has been a hot topic in the Washington Post, which published feature stories about problems at the Consumer Products Safety Commission on  November 2, November 3 and November 6, as well as a November 3 editorial. The November 2 article attracted 338 public comments, a large number, before the Post editors closed it to additional comments.

IEC Training Modules

The IEC's Training Task Force is pleased to provide the following materials for 2007:

• Ethics--Your Key To An Improved Work Environment. This is intended for use as online training. It is distributed in MS Word format, with the intention that it be customized for each agency. The online DoD version will be available is a few weeks at their usual location.
• 14 Ethics Principles, General. MS PowerPoint slide show, with speaker notes.
• Representation Restrictions. MS PowerPoint slide show, with speaker notes.
• Outside Activities, Fundraising and Hatch Act. MS PowerPoint slide show, with speaker notes.

UPDATED July 9 to better explain the Ethics--Your Key To An Improved Work Environment training module.

Federal Employees As Volunteers

An article in the Wright-Patterson Air Force Base newsletter discusses what Air Force (and DoD) employees may and may not do when participating in a non-Federal entity as a volunteer. The article is on page 4 of 44 of this PDF document. Thanks to co-author Mark Stone for the link, via his excellent e-mail newsletter.

OPM Announces New CFC Regulations

  OPM released new Combined Federal Campaign (CFC) regulations that become effective November 20, 2006.  They may be found at:  http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-19628.pdf  (Also in November 20, Federal Register at 67276.

  Of particular note for agency ethics officials are the modifications of regulations at 5 CFR 950.602 (Solicitation methods).  The new regulation makes clear that special fundraising events, such as lotteries, may be approved by appropriate agency heads consistent with agency ethics regulations.  Prizes for such events must be disassociated from the amount of contribution, if any, and be modest in nature and value.

OPM Proposes Changes to CFC

In the June 29, 2006, Federal Register, OPM proposed changes to the Combined Federal Campaign (CFC).  Please note the proposed change to section 5 CFR 950.602, methods of solicitation.  The notice is at: 

http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5795.pdf

OPM Creates Website for CFC

The Office of Personnel Management announced that it established a website for the Combined Federal Campaign (CFC) at www.opm.gov/cfc/.  This website includes CFC regulations and guidance, FAQ's, and other materials that should assist ethics counselors in answering questions regarding the CFC.

OPM Authorizes Workplace Solicitation for Victims of Asian Tsunami

On December 30, 2004, the Director of the Office of Personnel Management (OPM) authorized agency heads to allow a special solicitation of federal employees at the workplace for victims of the Asian earthquake and tsunami.  With this authorization and the establishment of special solicitations by agency heads, federal employees may make a one-time cash or check donation outside the CFC, which otherwise is the only fundraising permitted in the federal workplace.  www.opm.gov