IEC Journal

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.

 

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.

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.

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.

Most recent USDA Ethics Newsletter - including CFC discussion.

Thanks to Mike Edwards for the most recent USDA Ethics Newsletter. These newsletters are designed to be interesting and entertaining. For example, in this issue "The Great Zamboni" answers a question about an out-of-control Combined Federal Campaign worker (Imagine that)!  The newsletters are distributed online to all USDA employees and result in many positive comments from readers.

See http://www.usda-ethics.net/newsletters/newsletter_2009_02.pdf

Another View of Honest Services Prosecutions

A Huffington Post article has a negative view of the state of the "honest services" theory of prosecution. Here's the lead:

Jack Abramoff--the imprisoned Washington ex-lobbyist--must be kicking himself. On Thursday, October 15, a judge in Washington, D.C. reluctantly declared a mistrial for defendant Kevin Ring, one of Abramoff's most trusted lieutenants. The jury had found itself hopelessly deadlocked on all eight counts, most of them "private honest-services fraud." And Ring accomplished this amazing derring-do without calling a single witness in his own defense. It may be a sign that the reign of honest-services-fraud terror by federal prosecutors is finally coming to an end.

States Moving to Tighten Up Ethics Rules?

The Center for Public Integrity reports that at least five states have had some ethics reform activity since the Center released its States of Disclosure rankings back in late June: "Most legislatures aren’t in session, but there are nevertheless new developments regarding ethics legislation and financial disclosure rules in New Jersey, Utah, West Virginia, Wisconsin, and Mississippi."

D.C. Council Passes Ethics Code

The Federal Government's Standards of Conduct rules do not apply to the District of Columbia. The Center for Public Integrity reports:

Earlier this week the District of Columbia Council unanimously approved emergency legislation to establish the city’s first ‘Code of Official Conduct.’ Chairman Vincent C. Gray proposed the measure to set ‘unusually high standards of honesty, integrity, impartiality’ and ultimately prevent conflicts of interest. Council member — and former mayor — Marion Barry, who recently came under fire for allegedly awarding a city contract to his girlfriend, thanked Gray for introducing the measure even though ‘all of us have followed [the rules] anyway.’

British MP's Behaving Badly

From the Executive Coach column at Government Executive magazine comes good advice concerning British legislators caught up a scandal over dodgy expense reimbursement claims:

What's amazing to me is that many of the MP's are putting a few hundred or a few thousand pounds ahead of their long term credibility, reputation and effectiveness. They are becoming a laughing stock while they argue over expenses that seem hugely inappropriate to the average citizen. And that is what leaders really have to watch out for. It's easy to get into a bubble when you're a leader and pretty soon the abnormal begins to seem normal. One of the executive speakers in the session I spoke to yesterday summed it up really well. There are, he said, rules and there are appearances. There are times when the appearances matter more than the rules. True leaders understand the difference. When the rules you're following wouldn't stand up to a smell test with the average person, it's time to take a step back and upgrade the rules. When it's all said and done, the most valuable currency a leader has is integrity and credibility.  Maintaining that currency requires an understanding that it's more valuable in the long run than currency of the paper sort.

via blogs.govexec.com

India Moves Toward U.S. Attitudes on Govt. Ethics

A Washington Post article entitled India Loses Patience With the Super-Rich shows that nation is moving toward U.S.-style attitudes toward self-aggrandizing government officials. Here's an excerpt:

In this developing nation, government officials have long enjoyed first-class air tickets, overnight stays at five-star hotels, and vast entourages of servants and security, in what is known here as "V-VIPism."

But with the global economy in peril and India in the middle of its worst drought in years, such displays of wealth have begun to anger the public, especially after the Indian media reported that Foreign Minister S.M. Krishna and his deputy, Shashi Tharoor, had been holed up for more than three months in two of the capital's most opulent five-star hotels while their pricey bungalows were being built.

The men said they were paying for the hotel stays out of their own pockets. But television pundits wondered how public servants could afford suites that can cost anywhere from $250 to more than $2,000 a night.

Allegations of Wasteful Conference Spending

A Phoenix television news report on a Social Security Administration conference illustrates a danger that the current economic recession may highlight: Reporters may attack government expenditures. We have no idea whether this particular conference was an appropriate expense, but in so far as we can judge from the report, there were no activities at this conference dissimilar to those at retreats held by large non-governmental organizations.

A comment from the report illustrated how easy it is to take things out of context. There is nothing wrong with conference attendees letting family members stay in their hotel rooms if at no extra cost to the government, visiting casinos or even dancing after work hours. However, this did not stop the TV station from commenting: "[T]he information provided by the SSA did not mention an after-hours casino trip, family members staying at the hotel, or the 20-minute dance party ABC15 observed."

Insider Trading Bill

The "Stop Trading on Congressional Knowledge Act," H.R. 682, would prohibit members and employees of Congress, as well as other Federal employees from trading based upon material nonpublic information.

Improper Disclosure of Information

Mark Stone drew our attention to President Obama's 27 May 09 six page memo entitled “Classified Information and Controlled Unclassified Information.” 

As Mark noted, this is significant because releasing government information contrary to law or regulation raises standard of conduct issues.  See 41 USC 423(a), 18 USC 1905, 5 CFR 2635.703, and 5 CFR 2635.902(z).

"Social Web" Implicates Ethical Issues

A NextGov article discusses GSA's move to enable agencies to use modern social media tools and concludes:

The Federal Web Managers Council is working with agencies to craft policies for using social media tools, but the rules aren't likely to be much different from existing guidelines on releasing information publicly, according to Campbell. "I think the same rules and ethics apply," she said. "If you're on Twitter, you shouldn't be posting confidential information, just as you wouldn't if speaking at a conference."

GSA general counsel Seth Greenfield said any new social media policies would only complement existing ethical standards and regular use policies being applied to the use of IT.

Ethics Link from Agency Home Page?

The Inspector General Reform Act of 2008 mandates favorable treatment of Inspector General websites:

§ 8L. Information on websites of offices of Inspectors General

(a) Direct links to Inspectors General offices.--

(1) In general.--Each agency shall establish and maintain on the homepage of the website of that agency, a direct link to the website of the Office of the Inspector General of that agency.

(2) Accessibility.--The direct link under paragraph (1) shall be obvious and facilitate accessibility to the website of the Office of the Inspector General.

Does your agency give the same prominence to your ethics program, as does the Department of Transportation?

Sixth Circuit Interprets Bribery Statue

 The May issue of The Informer, the publication of the Federal Law Enforcement Training Center's Legal Division, highlights a recent bribery case, U.S. v. Abbey, 560 F.3d 513 (6th Cir. 2009). The Sixth Circuit summarized its holding as follows:

Abbey’s appeal boils down to a single assertion: that the government, to sustain a conviction under 18 U.S.C. § 666 or the Hobbs Act, 18 U.S.C. § 1951, must prove a direct link between a specific gift given to a public official and an explicit promise by that official to perform a specific, identifiable official act in return. Though Abbey is correct that the government did not prove such a link at trial and that the jury instructions did not so instruct, we nevertheless reject his argument because neither statute contains such a heightened requirement. We thus affirm Abbey’s convictions and sentence.

Failure to Pay Taxes

Federal employee failure to pay taxes is a standards of conduct violation with major public relations implications. This report from Washington-area radio station WTOP is typical:

The Internal Revenue Service is trying to collect billions of dollars in unpaid taxes from nearly half a million federal employees. According to IRS records, 171,549 current federal workers did not voluntarily pay their federal income taxes in 2007. The same is true for 37,752 active duty military and nearly 200,000 retired civilian and military personnel.

Documents obtained by WTOP through the Freedom of Information Act show 449,531 federal employees and retirees did not pay their taxes for a total of $3,586,784,725 in taxes owed last year.

Each year the IRS tracks the voluntary compliance rate of all federal workers and retirees. The percentage of employees and retirees who are delinquent has gone up and down over the past five years, but the amount unpaid has increased each year topping $3.5 billion for the first time in 2007.

March Madness Soon Upon Us

Under the ounce of prevention theory, a timely reminder of the rules against gambling in federal offices could be in order.

The Federal Register provision on gambling provides:

"What is the policy concerning gambling?"

(a) Except for the vending or exchange of chances by licensed blind operators of vending facilities for any lottery set forth in a State law and authorized by section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107 et seq. ), all persons entering in or on Federal property are prohibited from—

(1) Participating in games for money or other personal property;
(2) Operating gambling devices;
(3) Conducting a lottery or pool; or
(4) Selling or purchasing numbers tickets.

(b) This provision is not intended to prohibit prize drawings for personal property at otherwise permitted functions on Federal property, provided that the game or drawing does not constitute gambling per se. Gambling per se means a game of chance where the participant risks something of value for the chance to gain or win a prize.

Edited March 5 to correct typos.

IEC 2009 Survey

IEC would like to gauge how well it is responding to the Government Ethics community in terms of providing timely and relevant presentations as well as useful resources.  To accomplish this goal, we would appreciate your help.  Please complete the attached survey and returning it to iec.jobs@yahoo.com.  The survey will be available for approximately a month.  We appreciate your participation.

Download 2009 Survey (Word) or Download 2009 Survey (PDF)

(If you completed a survey at the February IEC meeting please disregard this message)

Race-Motivated Threats Punished

A former American career diplomat has been sentenced for a civil rights violation for sending threatening voice messages and e-mails, in violation of 18 U.S.C. § 245(b)(2)(C) (using threats to intimidate and interfere with employment based on race and religion) and 18 U.S.C. § 875(c) (transmitting threats in interstate commerce).  He received two concurrent sentences of 12 months of imprisonment followed by 3 years of post-release supervision, 100 hours of community service and was ordered to pay a $10,000 fine.

UCLA Professor Eugene Volokh analyzed the constitutionality of criminalizing such communications at the time of the indictment, emphasizing the fact that these communications were directed toward inidividuals, not general expressions of hatred for members of a certain class.Thanks to Shaw, Bransford, Veilleux & Roth, P.C. for alerting us to the recent sentencing.

Prompt Reporting of PAS Official Departures

OGE recently implemented a new policy for prompt reporting of Presidentially Appointed, Senate Confirmed appointee departures:

As of July 7, 2008, agencies are required to notify OGE of a PAS official’s termination date via email at 278tracking@oge.gov. The notification should be made as soon as possible but no later than the day before the PAS official’s termination date.

The DAEOGRAM announcing OGE's reporting policy is available.

Limits Placed on Outsourcing

Thanks to John Szabo for drawing our attention to the moratorium on new competitive sourcing initiatives.

New DoD SOCO Advisory

SOCO Advisory 08-04 is now available. It includes several items on political activity, a couple on implementation of the post government employment provision in Section 847 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, and a discussion of In CNA Corp. v. United States (April 30, 2008), a case reported here previously, in which the United States Court of Federal Claims interpreted the phrase "particular matters involving specific parties" in 18 U.S.C. § 207(a)(1) and the phrase "personally and substantially" in 18 U.S.C. § 207(a)(1)(B).

New Research Tool: LOUIS

LOUIS--the Library Of Unified Information Sources--is an ambitious effort by the Sunlight Foundation to facilitate researching executive and legislative branch documents. Still in the early stages of development, it contains, in fully searchable format, seven sets of federal documents:

• Congressional Reports
• Congressional Record
• Congressional Hearings
• Federal Register
• Presidential Documents
• GAO Reports
• Congressional Bills & Resolutions

Fedsmith Article: Love in the Federal Workplace

Fedsmith has an article that could serve as a follow-up to Greg Weinman's January presentation on workplace romances.

Fedsmith: Corruption Starts With The Small Things

Ralph Smith at the Fedsmith web site has some thoughts over the MSBP's failure to support an agency that fired an employee for credit card abuse:

A government that operates in an atmosphere of "situational ethics" will be an interesting experience. If an employee takes sick leave in violation of regulatory requirements, many do not see a problem. There is little difference between using sick leave when not authorized or charging unauthorized travel expenses to a government credit card.

Rule-Based Regulation vs. Principle-Based

The Financial Page column in New Yorker magazine has a thought-provoking discussion about rule-based regulation vs. principle-based financial institution regulation that has some relevance to federal ethics regulation philosophies.

Here's an excerpt:

As the press has noted, the plan would consolidate our myriad and overlapping regulators into fewer, bigger ones. But the most interesting thing about it is something subtler: a push to move from our current system of regulation—often known as “rules-based”—toward a “principles-based” approach. In a rules-based system, lawmakers and regulators try to prescribe in great detail exactly what companies must and must not do to meet their obligations to shareholders and clients. In principles-based systems, which are more common in the U.K. and elsewhere in Europe, regulators worry less about dotted “i”s and crossed “t”s, and instead evaluate companies’ behavior according to broad principles; the U.K.’s Financial Services Authority has eleven such principles, which are often deliberately vague (“A firm must observe proper standards of market conduct”). This approach gives companies more leeway in dealing with investors and customers—not every company needs to follow the same rules on, say, financial reporting—but it also gives regulators more leeway in judging whether a company is really acting in the best interests of shareholders and consumers.

Which ethics areas are best suited to principles-based approaches and which require rules-based approaches?

Federal Employee Tax Delinquencies

The Washington Post's Federal Diary column examines an IRS report on federal income tax deliquency rates of federal workers. The good news is that the IRS believes the compliance rate for the government is generally better than that of the population at large. The bad news is that the federal employee tax delinquency rate (have unresolved tax liability or have not filed a return) is an estimated 3.79 percent as of October 2007.

Principles of Ethical Conduct,  Principle # 12:  "Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those - such as Federal, State, or local taxes - that are imposed by law."

Legal Ethics for Criminal Investigators

Though it deals more with what lawyers call criminal procedure than standards of conduct law, the Department of Justice memo on Legal Ethics for Criminal Investigators available through the Federal Law Enforcement Training Center could be useful to some ethics trainers.

The Measurable Gets Managed

Thanks to Tom Shoop at Government Executive's Fedblog for the pointer to a thought-provoking paper by Eric Biber, an acting law professor at U.S. Berkeley. Biber's thesis is that "Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other more measurable goals. The lack of information about these hard-to-measure goals means that there will be fewer rewards to agencies for any success on those goals." This is not exactly a new idea. "What gets measured gets managed" is a cliche in leadership training. However, the idea could help us better understand ethics program objectives.

It's easy to count how many employees file financial disclosure forms, so OGE, and implementing agencies, tend to emphasize those. Similarly, it's easy to measure how many employees receive mandatory ethics training (in fact, the ease of counting is one of the attractions of the more sophisticated forms of online training).

What are the more difficult to measure parts of our jobs that deserve more emphasis?

Putting A Damper On March Madness?

Updated March 6 to improve formatting of quoted section and add updated citation to GSA regulation:

It's no fun to be a spoilsport, but that didn't stop one agency from recently advising its workforce why NCAA pools violate government regulations, as follows:

First, regulations promulgated by the General Services Administration (GSA) bar anyone from participating in games for money or personal property, the operating of gambling devices or the conduct of a lottery or pool, while in or on property controlled by GSA. 41 C.F.R. § 101-20.306 [Nancy Baumgartner advises us a better citation is 41 C.F.R. § 102-74.395]. This regulation applies not only to Federal employees, but also to members of the public while they are visiting GSA-controlled property.

Second, Office of Personnel Management (OPM) Government-wide Standards of Conduct regulations, contained at 5 C.F.R. Part 735, prohibit Federal employees from conducting or participating “in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, a game for money or property, or selling or purchasing a numbers slip or ticket” while on Government-owned or leased property or while on Government duty. 5 C.F.R. § 735.201.

When read together, these authorities clearly prohibit gambling (including lotteries, football or basketball pools and similar activities) undertaken by [agency] employees while on official duty, while on Government property, or while using Government property including Government computers and Government vehicles, unless the employee undertakes the activity as part of his or her official law enforcement duties.

Under Federal common law, gambling is defined as: (1) the furnishing of consideration (betting something of value – usually money), (2) in a game of chance, and (3) that offers a reward prize – money or otherwise. FCC v. American Broadcasting Co., 347 U.S. 284, 290-91 n.8 (1954), and U.S. v. Tansley, 986 F.2d 880, 886 (5th Cir. 1993). An event that does not include all three of these elements is not gambling.

Violations of these regulations may result in disciplinary action, including removal from the Federal service.

Although Federal agencies may conduct fundraising activities for approved charitable organizations during the Annual Combined Federal Campaign (CFC) (governed by criteria established by the Office of Personnel Management), it is important to note that the CFC does not authorize gambling and that “[t]he CFC is the only authorized charitable fund-raising drive in the Federal workplace…. No other fund-raising drive may be conducted in the Federal workplace without the express written permission of the Director [of OPM] ….” 5 C.F.R. § 950.102(a).

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.

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.

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.

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.

"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.

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.

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.

OGE International Assistance

Previous posts have discussed growing international interest in standards of conduct. OGE's Office of International Assistance and Governance Initiatives has related resources.

Independent House Ethics Watchdog?

The IEC focus is on Executive Branch ethics developments, but we note that the House of Representatives is considering establishment of an independent ethics watchdog.

OMB Sets COTR Ethics Training Standards

A new OMB memo establishes new training requirements for contracting officer technical representatives. The 40 hour of training minimum recommends a course on Ethics Training for Acquisition, as well as topics such as Market Research, Technology and Logistics. A Government Executive story has more information.

More Holiday Ethics Resources--Updated

Here are some additional resources to supplement our November 30 post on this topic:

Robert "Ric" Cusick's 2006 DAEOgram on holiday gifts is still relevant.

Thanks to the indefatigable Mark Stone for links to three other holiday party resources:

• Holiday Guidance for Federal Personnel Including Guidance on Receptions, Parties, and Gift Exchanges Involving Co-workers, Contractors, and Supervisors (Note that this 2006 version of the DOD SOCO memo provided by Mark and Walt Pupko supercedes the 2004 version we originally linked to in our Nov. 30 post).
• Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force (see para 4 in particular).
• Mark Stone notes that is addressed in GAO's “Principles of Federal Appropriations Law, Third Edition, Volume I” (2004) addresses the use of appropriated funds for holiday decorations. The relevant material is on page 4-263 of the document (page 493 of the 640-page PDF file).

Update: Corrected typos, Dec. 6 & 7. Added resources, Dec. 12.

Pro Bono and Government Lawyers

Do the Standards of Conduct prohibit government lawyers from engaging in pro bono activities? Not by a long shot. Here are the Department of Justice and U.S. Postal Service policies.

The Pro Bono section of the ABA's Government and Public Lawyers web site has many resources, including other sample policies and articles.

A possible topic for the next OGE conference?

Ethics Resources from the Air Force Materiel Command

Mark Stone and Walter Pupko of the Air Force Materiel Command continue to share useful information with the broader ethics community. In just the last few weeks, Mark's "AFMC Ethics Update" e-mails have included the following topics:

• Serving on the Board of a Non-Federal Organization
• Sources of Guidance on the OGE Optional Form 450-A
• Format for Opinion on DOD Personnel Publicly Supporting Changes to State Law
• Working as an Expert Witness in Private Litigation

To be added to Mark's mailing list, send an e-mail to:

mark DOT stone AT wpafb DOT af DOT mil (address disguised to throw off automated spammer software; reformat to use).

The Air Force Materiel Command (AFMC) ethics website, designed and maintained by Walter, has additional useful information. Users get access only after being validated, a relatively easy procedure.

Devaney: Accountability Starts At The Top

Earl Devaney, the Inspector General of the Department of the Interior, and Chris Martinez, a member of his staff, have an extremely interesting article entitled "The Buck Stops Here" in The Journal of Public Inquiry. A copy of Devaney's article is attached, while a complete copy of all 8 Mb worth of articles from the Spring/Summer 2007 issue is available at the web site of the President's Council for Integrity and Efficiency.

The thesis is that the key to government integrity is holding senior managers accountable for lapses that occur on their watch, on something close to a strict liability basis. The Introduction summarizes this idea:

By far, the most effective way for government to prevent ethical and legal abuses within its ranks is not to focus myopically on individual instances of wrongdoing as they occur, but to imbue one’s workforce with an affirmative, all-permeating sense of integrity – to shine a light of excellence that dispels the shadows from which malfeasance sprouts. This article is a discussion of quotes from notable historical figures, provisions of law, and other authoritative sources establishing the theoretical basis for holding high level officials accountable for cultures of waste, fraud, abuse, or other indiscretion within their organizations. That is to say, this standard of supervisory responsibility does not depend on whether the official knew or should have known of the bad acts of his or her subordinates, or participated in them to any degree. Instead, it is the high official’s duty to actively prevent, seek out, and eradicate the harmful mentalities that can result in such negligence or misdeeds. Furthermore, because no duty truly exists without a consequence for having failed it, this article also provides a theoretical basis for holding such senior officials to account for their unwillingness or inability to prevent a harmful culture from growing within their organizations.

Ethics Reporting & E-Gov

Jerry Brito, a senior research fellow with the Mercatus Center at George Mason University has published a critique of federal efforts to make information available to the public online:

Unfortunately, many of the statutory requirements for disclosure do not take Internet technology into account. For example, the 1978 Ethics in Government Act requires the disclosure of financial information -- including the source, type, and amount of income -- by many federal employees, elected officials, and candidates for office, including the president and vice president, and members of Congress. The act further requires that all filings be available to the public. One might imagine, then, that every representative or senator’s information would be just a Web search away, but one would be wrong.

Mr. Brito further comments that, “Even when public information is available online, it is often not available in an easily accessible form. If data is difficult to search for and find, the effect might be the same as if it were not online.” Mr. Brito's diagnosis of the cause of the perceived problem? “Bureaucratic inertia” and the lack of an incentive to make public information easily accessible. Thanks to Tech Insider for the link.

More Guidance on Funeral Attendance

Mark Stone provided two additional resources to supplement his advice on “Sources of Guidance on Travel at Government Expense to Funerals”:

1. A four-page, November 2005 document issued by the Air Force General Counsel entitled “Funding Travel to Certain Ceremonies.” Travel to funerals is discussed at pages 2-3. (FLITE password required).
2. Matter of: Central Intelligence Agency – Use of Government Vehicle to Attend Funeral of Employee’s Child, Comp. Gen. Dec. B-275365, December 17, 1996.

Implementing Best Practices

The Department of the Interior web site has an interesting memorandum describing how the Department of the Interior went about implementing an OGE list of 80 best practices for ethics programs.

More on Emoluments Clause

Gretchen Wilson offers a correction to our previous post on Emoluments Clause.