IEC Journal

The Right Way to Announce a DAEO Appointment

Ideally, an agency head's announcement of a DAEO should build them up, giving them credibility with the workforce that makes it easier for them to do their job. Here's a slightly redacted version of a recent announcement from the USAID Administrator that we believe demonstrates a good approach:

I am pleased to announce my designation of Jim Peters, the Assistant General Counsel for Ethics and Administration (GC/EA), as USAID’s Designated Agency Ethics Official (DAEO), pursuant to the requirements of the Ethics in Government Act of 1978.  Jim has my complete confidence to carry out the functions of the Agency’s ethics program, including the collection and review of employee financial disclosure forms, managing the annual ethics training, and providing day-to-day guidance and counseling.  Jim has been performing many of these functions throughout his 25-year career in the U.S. Government, and within his 15-year tenure with the Agency.  He has been USAID’s Alternate DAEO for half of that time.
 
As we carry out our daily functions and work to implement USAID Forward, it is important that we keep sight of the ethical obligations that we owe to the American public and the ultimate beneficiaries of our efforts.  This means not only complete compliance with the ethics rules, but also a focus on doing the right thing.  Jim is a regular resource to my staff and me, and I encourage you to contact him or a member of his staff with any questions you may have.  ...
 
I have also named Bruce McPherson, Attorney-Advisor in GC/EA, as the Alternate DAEO.  Bruce has a background in banking and in legal practice at a prominent DC law firm, and in his nearly two years at USAID has built upon this to become an excellent resource as well.  For staff posted overseas, you may contact your Regional Legal Advisor (RLA), who also serves as a Deputy Ethics Officer.

Shelby's STOCK Act

GovExec article discusses the implications of Congressman Shelby's amendments to the STOCK Act, introduced to address concerns about Congressmen not being covered by insider trading laws.  Under the amendment the impact has been expanded to try to cover many Executive Branch personnel.  As currently contemplated, the law could require:

• Electronic availability of Public Financial Disclosure report
• Posting of all stock trades of certain personnel, where the transaction exceeds $1,000, for all or some financial disclosure filers

See full article at http://www.govexec.com/oversight/2012/02/momentum-builds-require-feds-disclose-stock-trades/41092/.

For details about the various STOCK Act versions, see http://insidertrading.procon.org/view.resource.php?resourceID=004520.

Interesting article on Congress' Insider Trading Bill

If you missed it, the Senate overwhelmingly (96-3) passed the bill that would impose insider training restrictions on lawmakers this week.  The House is expected to take it up next week.  Interestingly, attached conflicting amendments would further impose this on certain Executive Branch employees.  See Associated Press article at http://www.foxnews.com/us/2012/02/03/house-ready-to-consider-insider-trading-ban/.

New York Times Editorial on Ethics and the Supreme Court

The New York Times recently published an editorial regarding ethics and the Supreme Court.

The removal appeal of the employee implicated in US v. POGO is remanded

Consequences of United States v. Project on Government Oversight, 525 F.Supp.2d, 161, 164 (D.D.C. 2007).  The Dept. of Interior employee, Robert Berman received notice of his proposed removal for misuse of public office for personal gain.  The Federal Circuit suspended its review of the case pending the outcome of the DC Circuit case on whether he violated 18 USC 209 by accepting an award from POGO.  Since that case was remanded for a new jury verdict, so was the personnel removal case. 

See Berman v. Department of the Interior, C.A.F.C. No. 2010-3052 (nonprecedential) (Nov. 7, 2011) at http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-3052.pdf.

Read related article at: http://www.fedsmith.com/articles/articles_display.php?a=3183&p=1

"Financial Conflicts of Interest In and Out of Government" by Kathleen Clark

Several people have requested information related to Kathleen Clark's presentation at the September 2011 OGE Conference.  The article she wrote is published as "Financial Conflicts of Interest In and Out of Government" in the Washington University in St. Louis Legal Studies Research Paper No. 11-02-03.  See http://law.wustl.edu/faculty_profiles/pages.aspx?id=223.

Ethics related news items

Please see the following news items which are related to ethics:

• Farm Credit Administration Federal Register publication of its policy statement on ethics. http://www.gpo.gov/fdsys/pkg/FR-2011-11-17/pdf/2011-29687.pdf
• Project on Goverment Oversight (POGO) articles
  • Follow up article on SEC ethics problems. http://pogoblog.typepad.com/pogo/2011/11/watchdog-report-confirms-that-sec-employees-destroyed-records-and-misled-national-archives.html#tp 
  • Follow up article on Senior Mentors at the Dept. of Defense.  See http://pogoblog.typepad.com/pogo/2011/11/98-percent-of-former-military-officers-drop-out-of-pentagon-program-after-financial-disclosure-.html
  • Morning Smoke: Big Banks Promise, Repeatedly, Not to Break SEC Rules. http://pogoblog.typepad.com/pogo/2011/11/morning-smoke-big-banks-promise-repeatedly-not-to-break-sec-rules.html

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

Public-Private Partnership (P3) Presentation Materials

As promised, here are the relevant materials from the wonderful presentation on Public-Private Partnerships by  by USAID and State Department officials.

• Power Point Presentation: Download Dept State Public Private Partnership
• Dept. of State, P3 website: http://www.state.gov/t/pm/wra/partners/
• USAID website: http://idea.usaid.gov/
• USAID fact sheet on difference between P3 and Global Development Alliances: http://idea.usaid.gov/sites/default/files/attachments/PPPs_vs_GDAs.pdf

More to come. Or if you have P3 resources to share, please email them to us. 

Brainstorming Ethics Implications of Budget Cuts: More

Wayne Johnson provided some good suggestions concerning on our September 23 post, Brainstorming Ethics Implications of Budget Cuts. We welcome other thoughts on this important topic.

 

Alleged Supreme Court Conflicts of Interest

The focus of this site is Executive Branch issues, but for awareness purposes, we pass along a link from an IEC member concerning allegations of conflicts of interest against a Supreme Court justice.  

Brainstorming Ethics Implications of Budget Cuts

An August OMB memo directed federal agencies to plan forr 2013 budgets that at least 5 percent below  2011 spending levels. The goal for 2013 budget is at least 10 percent below current appropriations.

What impact will this budget trend have on ethics programs? Coping with smaller budgets is one obvious impact. Will it also impact the types of ethics problems we see?

We welcome your thoughts on these issues, and have enabled the Comments feature on this post. We look forward to hearing from you.

Management Guru Advises Relationship With Ethics Officer

A Frank McDonough post on advice for senior federal managers includes this tip: "schedule semi-annual meetings with the ethics officer." He also notes that the increasing number of laws and regulatory prohibitions creates snares for the unwary, and stresses the importance of avoiding the appearance of impropriety.

Honest Services Fraud Fix Advances

CREW (Citizens for Responsibility and Ethics in Washington) disagrees with the Wall Street Journal's criticism of a legislative proposal to remedy the effects of Skilling vs. United States on the honest services fraud statute, (18 U.S.C. § 1346):

The WSJ's concern about overcriminalization and prosecutorial abuse might have applied to prior versions of the honest services statute, but the current proposal borrows language from 18 U.S.C. 208, a well-established federal conflict-of-interest statute that already applies to the executive branch and, more importantly, has been upheld as constitutionally sound by the Supreme Court. Further, under the proposed statute no public officials may be prosecuted unless they knowingly conceal, cover up, or fail to disclose material information they are obliged to reveal by law or regulation. As crafted, this bill removes the risk that a public official will be convicted for unwitting conflicts of interest or mistakes.

The Senate Committee on the Judiciary approved the “The Public Corruption Prosecution Improvements Act” (S. 401) late in July.

Big Shots Who Are Humble Impress China

Thanks to an alert IEC member for alerting us to a NY Times article that shows how normal U.S. standards of behavior by public officials can make a big impression on those in other countries: 

A photograph taken last Friday of Gary F. Locke, the new United States ambassador to China, buying coffee with his 6-year-old daughter and carrying a black backpack at a Starbucks in the Seattle airport has gone viral on the Chinese Internet. The seemingly banal scene has bewildered and disarmed Chinese because they are used to seeing their own officials indulge in privileged lives often propped up by graft and bribery and lavish expense accounts. … 

Mr. Locke and his family were waiting to fly to Beijing when a Chinese-American businessman shot the photograph and posted it on Sina Weibo, a popular Chinese social networking site. It has been reposted over 40,000 times and has generated thousands of comments. State news organizations have weighed in with favorable articles about Mr. Locke, a former governor of Washington State and President Obama’s first Commerce secretary, who on Tuesday presented his credentials to President Hu Jintao of China to start his posting. …

“To most Chinese people, the scene was so unusual it almost defied belief,” Chen Weihua, an editor at China Daily, an official English-language newspaper, wrote in an article Wednesday.

The danger in focusing so intently on how we can improve our system has a downside, in that it can sometimes cause us to overlook the blessings that we already have.

Resources Available to Ethics Officials Concerning Special Government Employees

We usually prefer to avoid reposting of information distributed via the OGE mailing list, but the note below on Special Government Employees seems so useful it is worth an exception: 

OGE issued an Advisory Opinion in 2000 that provides a summary of the ethical requirements applicable to Special Government Employees.  For a quick reference on the financial disclosure reporting requirements for SGEs go to DAEOgram (03-021).  If you receive question on post-employment restrictions, read DAEOgram (07-002) which clarifies the “cooling off” restrictions and conditions under which an agency need not count a day of service solely on the basis of certain activities by SGEs.

To increase awareness of applicable ethics standards and principles you may want  to send your SGES an online training module developed by OGE entitled, "Ethics Training for Special Government Employees." The course is an interactive web-based training module designed to be completed in about one hour and is intended for use by Special Government Employees (SGEs).  It contains a summary of the ethics laws and rules that apply to SGEs, and may be appropriate as part of either your initial or annual ethics training program.

Save Money on Official Travel

Wayne Johnson was kind enough to provide a few tips that should be very valuable for those attending the upcoming OGE Conference in Orlando in September and for other government travel situations as well:

Some federal ethics workers travel infrequently and thus may not be aware that some states, such as Florida, exempt federal employees on Temporary Duty (TDY) orders from paying sales/hotel taxes on their hotel rooms.

Travelers on TDY using their government issued “travel card” (or personal credit card if not issued a travel card) to pay their hotel accommodations pay state sales tax even though the federal government will be reimbursing the traveler later UNLESS under the local state’s law there is a tax exemption. This is because the sale is made to the person, not the government, who is personally responsible for paying the “travel card” bill. States do not have to offer this exemption to government travelers nor are hotels required to make the traveler aware of this.

The traveler’s government travel card should not be confused with the GSA SMART CARD IMPACT CREDIT CARD. Holders of the IMPACT card, usually the office’s procurement official, never pay state sales taxes when using the IMPACT card as those charges are billed directly to the U.S. Government and are thus not subject to state sales taxes as a matter of Federal law.

General Services Administration’s (GSA’s) web page provides more information, including links to all 50 states and explanations of their tax policies. GSA also provides information about Florida in particular. Information on Florida law in particular. Copies of the Florida hotel tax exemption form are available at the following websites:

• GSA and
• AFCEA

Disclaimer: The views expressed above are those of Wayne Johnson and are not those of the U.S. Government. They were prepared in his personal capacity and are not to be construed to imply that his agency or the U.S. Government sanctions or endorses what he has written.

Need to collect Contractor Business Ethics Compliance info?

The Federal Register published a joint notice of request for public comments regarding an extension to an existing OMB clearance requirement.   Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.  Comments due Aug. 26, 2011.  See Fed.Reg. at http://www.gpo.gov/fdsys/pkg/FR-2011-06-27/pdf/2011-16058.pdf.

More ethics related news items

Government press releases on misconduct:

• Bureau of Prisons employee indicted for selling govt equipment. http://www.justice.gov/oig/reports/press/2011/2011_06_09a.pdf
• FEMA employee charged with embezzling $149K. http://www.dhs.gov/xoig/assets/press/oigpr_040811.pdf
• Former supervisory at US Customs & Immigration Service convicted of bribery.  http://www.dhs.gov/xoig/assets/press/oigpr_050311.pdf
• Coast Guard Officer indicted in kickback scheme in Coast Guard contracting. http://www.dhs.gov/xoig/assets/press/oigpr_060911.pdf
• Army Sergent indicted in bribery scheme related to govt contracting. http://www.justice.gov/opa/pr/2011/June/11-crm-809.html 

Other news articles:

• The Hill's report on corrupation in the Customs & Border Protection Agency. http://thehill.com/blogs/blog-briefing-room/news/165925-corruption-a-problem-at-customs-and-border-protection-agency-head-says
• GovExec article on the Congressional testimony by Ana Galinda-Marrone, Chief of the Hatch Act unit at the Office of Special Counsel re complaints of inappropriate partisan political activity in Federal workplace. http://www.govexec.com/story_page.cfm?articleid=48056&dcn=e_gvet

Federal Advisory Committee Act (FACA)

Federal Advisory CommitteeAct question? Executive Order 12024 (1976) delegated the President's implementation responsibilities to the Administrator of GSA.  The FACA section of the GSA website has guidance.

Interesting articles on Congressional Financial Disclosures

Amanda Becker authors an interesting article about Congressional financial disclosure requirements and penalties.  See full article at http://www.rollcall.com/issues/56_119/financial-disclosure-congress-205462-1.html.  She previously published another article on the same revision of the instruction manual from the House Ethics Committee, which avoided including same-sex spouse interests as a reportable information.  See http://www.rollcall.com/issues/56_117/financial-disclosure-same-sex-couples-205356-1.html?pos=adp.

For access to the new House Ethics Committee guidance, see: http://ethics.house.gov/Subjects/List.aspx?subid=6 

GSA's new Federal Advisory Committee Website

A White House press release discusses the new GSA website dedicated to the Federal Advisory Committee Act.

The public will now be able to retrieve information about advisory committee membership, costs, meetings, and contact information. The user friendly site provides not only information about individual committee members but also information about the composition of specific committees. GSA’s new user friendly site also links directly to the websites of many of the individual federal advisory committees.

GSA’s effort to provide more information about federal advisory committees supports efforts to move FACA management and implementation to newer technologies. Electronic FACA, or eFACA, is the broader name given to the agency’s efforts to guide other agencies about the best use of technology to reduce the costs of advisory committee meetings and increase public access.

Thanks to Steve Epstein for the tip.

S.Ct. to hear case on whether COI restrictions violate 1st Amendment Rights

A Nevada public official was centured by the state's ethics commission for voting on a provision which would have impact on his friend.  He is now appealing the ruling to the Supreme Court on the basis that this conflict of interest rule violates his freedom of speech.  Read the Washington Post full article at: http://www.washingtonpost.com/politics/supreme-court-confronts-whether-conflict-of-interest-laws-violate-officials-free-speech/2011/04/23/AF9hsTdE_story.html

Ethics in the News

• The National Journal article on how cartels try to corrupt Federal employees. http://www.nationaljournal.com/how-drug-cartels-try-to-corrupt-federal-employees-20110412?mrefid=site_search&page=1
• TSA employee indicted for posting child pornography on his personal FB page (he also posted photos in his uniform) http://articles.philly.com/2011-04-23/news/29466700_1_tsa-spokeswoman-ann-davis-child-pornography-federal-agents 
• Union's seek approval for "controlled napping" during official duty hours (misuse of govt resources?) http://online.wsj.com/article/SB10001424052748703907004576279481823660922.html?mod=WSJ_article_LatestHeadlines
• Clerk faces administrative action after posting sensitive/confidential information online. http://www.thesmokinggun.com/documents/investigation/sealed-federal-court-records-exposed-216309

A frightening trend in the reporting news

Have you noticed that the media has been emphasizing the Federal employment status of individuals being reported for various alleged crimes, even though its unrelated to the misconduct being reported?  It seems to be a new alarming trend, which inappropriately impugns their Federal agency's integrity.

Check out these articles for example:

• http://www.news4jax.com/news/27627451/detail.html
• http://www.journal-news.net/page/content.detail/id/559918/VA-employee-pleads-guilty-to-the---.html

Tech Firm head pleads guilty in bribery scheme at the Navy

The head of a Naval Sea Systems Command (NAVSEA) contractor, Advanced Solutions for Tomorrow, plead guilty to bribing a public official.  According to court documents, from 1996 to 2011, the company paid at least $8 million to program managers to ensure that millions of dollars in additional funds were added to Advanced Solutions for Tomorrow's contracts and that its invoices were paid.  See article at http://www.theday.com/article/20110421/NWS09/304219391/-1/NWS.

Newell: A New Approach to Ethics in Government?

Terry Newell, founder of Leadership for a Responsible Society, presents his views on ethics reform in a Huffington Post article entitled Needed: A New Approach to Ethics in Government.

Federal Employee Pleads Guilty to Failure to File Federal Income Tax Return

A federal employee recently pled guilty to one count of failure to file her 2008 income tax returns.  The facts however bear out a lot more--namely, failure to timely file most returns and willfully acting to stop her federal agency employer from withholding her Federal income tax, among other things.  The woman was apparently a member of the "tax protest" movement. See DOJ press release at http://www.justice.gov/opa/pr/2011/April/11-tax-474.html.

OPM fundraising guidance related to Japan's Earthquake & Tsunami

On March 23, 2011, OPM certified the Japanese Earthquake & Tsunami as a natural disaster, pursuant to5 CFR §950.102.  This authorizes special solicitations of Federal employees outside the Combined Federal Campaign.   To conduct special solicitations within an agency, employees should still check with the office responsible for their CFC program to verify whether there are other agency-specific requirements.

• OPM Special Solicitation Memo - http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=3702
• OPM FAQ Regarding Special Solicitations For Victims of the Earthquake and Tsunami in Japan- http://www.chcoc.gov/documents/DisplayDocument.aspx?PublicDocID=252 

FDA chemist charged with Insider Trading

Have you ever thought about "Insider Trading" as being a more specific example of the Government ethics principles of not using public office for private gain or nondisclosure of non-public information, violation of which underminds public trust.  Well this might be a good example of how these principles work.

A Food and Drug Administration (FDA) chemist and his son were arrested in connection with an alleged $2.27 million insider trading scheme.  Mr. Cheng Yi Liang was entrusted with privileged information to perform his job and used that information to line his pockets.  See full Justice Press release at http://www.justice.gov/opa/pr/2011/March/11-crm-393.html.

An Alternate Approach to NCAA Pools

In an e-mail with the title "No one wants to be a spoil sport . . . so don't be" an astute IEC member pointed out that there are alternatives to the nanny-type approach of warning against gambling:

One alternative to playing the heavy on the NCAA front, (and arguably losing some of your hard fought for credibility) it to work with the people who want to run pools to make sure they are legal.  Here’s how one agency handles NCAA pools. 

From:
Sent: Monday, March 15, 2010
To:
Subject: Policy Schmolicy . . . . Let's talk basketball!!!

 Lowering trade barriers, negotiating new agreements, opening markets, and winning big cases are all well and good, but we all know that if we really want to impress our cohor …. coworkers, the real way to do it is to win the annual, completely ethical, NCAA Basketball Pool!!!! 

Time to show your stuff in the race to have your name inscribed on the prestigious and coveted Oracle of March Trophy.  (not to mention the chance to show your collogues that you know more about basketball than they do.)  Simply fill out the attached bracket, or whatever version you have, using all of your skill, knowledge, cunning or dumb luck, and drop it off in  Room # by noon on Thursday. 

So join this free and totally ethical NCAA pool and win everlasting (or until we lose the trophy) fame and glory.  Now, isn't that so much better than money?  (Don’t answer that, since I’m not really giving you a choice anyway.)

Bills Target Tax Delinquent Employees

GovExec.com reports on two new bills would prevent contractors and federal employees with "seriously delinquent" tax debt from working for the government.

Time for Gambling Reminder?

With the NCAA tournament rapidly approaching, some may want to issue reminders to their workforce that gambling is prohibited. Our March 2008 and 2009 posts had suggestions.

Bribery convictions in the News

• A former correctional officer at the Federal Medical Center in Rochester was sentenced to 8 months for accepting $5,000 in bribes (betraying public trust) from two inmates' familites.  See DOJ press release at http://www.justice.gov/oig/reports/press/2011/2011_03_08.pdf.

• Puerto Rico Senator Hector Martinez Maldonado and Juan Bravo Fernandez, the former president of one of the largest private security companies in Puerto Rico, were convicted by a jury for their roles in a bribery scheme, where the Senator received lavish gifts and travel in exchange for official acts (like beneficial legisltation).  See DOJ press release at http://www.justice.gov/opa/pr/2011/March/11-crm-289.html.

Ethics pledge stymies prospective appointee, Larry Mirel

The Hill published an article on Feb. 22, 2011, dealing with the unsuccessful appointment of Larry Mirel to the National Flood Insurance Program, because the White House would not grant him an Ethics Pledge waiver.  Read the full article at http://thehill.com/business-a-lobbying/143409-flood-program-appointee-stymied-by-ethics-pledge.

DOI Rule on Integrity & Scholarship

The Department of the Interior has issued new rules on integrity and scholarship. Government Executive has comments.

FBI Office of Professional Responsibility report on Agents behavior

CNN reports on the ethical and inappropriate conduct of FBI employees.  From documents obtained from the FBI Office of Professional Responsibility, it appears that only 325-350 out of 34,300 FBI employees are disciplined each year, which bodes pretty well for their ethical conduct of the agency.  But it also shows some serious lack of judgment and conduct unbecoming a Federal employee.  See report at http://www.cnn.com/2011/US/01/27/siu.fbi.internal.documents/index.html. 

See related articles:

• FBI OPR document at http://i2.cdn.turner.com/cnn/2011/images/01/27/fbi.documents.siu.pdf
• TMP Media report at http://tpmmuckraker.talkingpointsmemo.com/2011/01/fbi_agent_threatened_to_release_sex_tape_with_reporter.php?ref=fpb#. 

Thomas to amend financial disclosures for past 13 years

Supreme Court Justice Thomas neglected to include it, as required, on the report of his spous's positions with Michigan's Hillsdale College, the Heritage Foundation and the Republican leadership in the House. Thomas blamed the error on misunderstanding the filing instructions.  See Washington Post article at http://www.washingtonpost.com/wp-dyn/content/article/2011/01/24/AR2011012404092.html or CNN article at http://www.cnn.com/2011/US/01/24/thomas.financial.disclosure/index.html.

To view Supreme Court Justices' financial disclosures see http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/scotus.html.

Army Contracting official sentenced to 60 months in bribery scheme

After pleading guilty to bribery, Army Major Roderick D. Sanchez was sentenced to 60 months in prison, and three years of supervised probation in addition to a $15,000 fine and forfeiture of items received as part of the scheme.  See DOJ press release at http://www.justice.gov/opa/pr/2011/January/11-crm-067.html.

Ethics Related Reminders

The Simplified Acquisition Threshold increased from $100,000 to $150,000, effective October 1, 2010.  See 75 FR 53129-53135 (Aug. 30, 2010) at http://edocket.access.gpo.gov/2010/pdf/2010-21025.pdf.

 

The Foreign Gifts and Decorations Act "minimal value" was last increased in 2008 and is due for possible updating this year.

Alcatel-Lucent to pay $93M in Foreign Corrupt Practices Act Investigation

Alcatel-Lucent S.A. and Three Subsidiaries Agree to Pay $92 Million to Resolve Foreign Corrupt Practices Act Investigation.  See full DOJ press release at http://www.justice.gov/opa/pr/2010/December/10-crm-1481.html.

NY Times Article Criticizes Justice Closing of Congressional Corruption Cases

The Justice Department has shut down a wave of high-profile investigations of members of Congress over the past few months, drawing criticism that the government’s premier anticorruption agency has lost its nerve after the disastrous collapse last year of its case against former Senator Ted Stevens.  Read the full article at http://www.nytimes.com/2010/12/21/us/politics/21justice.html?_r=2&pagewanted=print.

One of our more astute IEC members notes that GSA's "ExpertNet" proposal that would allow federal agencies to solicit advice from private citizens raises the following questions:

1. Can a Federal employee use official time to write up and submit a comment? Is it a matter of supervisor discretion? Does it make a difference if the question the employee would respond to was posted by his or her own agency?
2. When a Federal employee submits a comment, can he or she refer to his or her official title?
3. When a Federal employee submits a comment, can he or she indicate that he or she is submitting the comment on behalf of a non-Federal organization (i.e., the 18 USC 205 issue)?
4. Can agency leaders take any kind of action against a Federal employee who submits an opinion or comment that the agency leaders don’t like, such as ones that disagree with positions taken by the agency leaders?
5. Can agency leaders prohibit agency employees from submitting comments (even if they are using their personal equipment and personal time)?

Comment's on GSA proposal are due by 7 Jan 11.  Wikispaces has discussion of the proposal

Seeking Input on "Ethics for an Outsourced Government."

We are passing along the following request by Professor Kathleen Clark, author of the excellent Confidentiality Norms and Government Lawyers article, among others.  To reduce her exposure to spam, we will forward e-mails sent to the "Contact Us" address to her:

I've started a new research project, and would welcome feedback from ethics professionals and others.

As your readers know, the federal government has increasingly turned to contractors to perform some of the services that previously were performed by government employees.  Most of the ethics statutes and regulations that apply to government employees do not apply to these contractors, and the government is only beginning to grapple with these issues.  I have written a draft report on this topic for the Administrative Conference of the United States, "Ethics for an Outsourced Government." (available at: )

In this report, I describe the phenomenon of government outsourcing, compare the detailed ethics provisions that apply to government employees with the limited provisions applicable to contractor employees, and argue that the government needs take action to prevent conflicts of interest.

I also plan to write a series of law review articles on this theme, and would welcome feedback on the research project more generally.  One of the articles will examine the ethics of bailout contractors; another will focus on financial conflict standards for government employees and contractors; and a third will examine how various institutions implement financial conflict standards (e.g., requiring annual disclosures or more targeted approaches).

Kathleen Clark                        
Professor of Law & Israel Treiman Faculty Fellow                                                    
Washington University in St. Louis          
Campus Box 1120
St. Louis, MO 63130                     
(314) 935-4081

Abstract

In recent decades, the federal government has greatly expanded its use of contractors to perform services, and now purchases more than $260 billion in services every year.  The government has increasingly turned to contractors to accomplish its programmatic goals, and contractor personnel are now performing tasks that in the past had been performed by government employees.

While an extensive array of ethics statutes and rules regulate government employees to ensure that they make decisions in the interest of the government rather than a private interest, only a few of these restrictions apply to contractor personnel.   If a federal employee makes a recommendation on a matter that could affect her financial interest, she could be subject not only to administrative discipline but also to criminal prosecution.  In most cases, a contractor employee who has that same financial interest and makes the same recommendation is not subject to any consequences.   In fact, the government does not have any systematic way of even finding out when contractor personnel have such conflicts of interest.  The personal conflicts of interest of contractor personnel are largely unregulated.

In light of the fact that so much of the government’s work is outsourced, the government needs to develop appropriate safeguards to ensure that the public interest is protected when contractors are doing the government’s work.  This report describes the complex set of government ethics statutes and regulations, identifies the principles underlying those restrictions, and suggests ways that those principles can be applied to government contractor personnel.

Looking for contributions

The IEC is always looking for interesting articles, cases, new law or legislation, in the area of Government ethics or related fields (e.g., professional responsiblity).  Please send contributions to iecjournal123@yahoo.com.  We are willing to post items anonymously or identify contributors. 

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Future of Congressional Ethics Office

Watchdogs worry over future of congressional ethics office.  Interesting USA Today article.  See full article at http://usat.me?41078354

OMB Proposed Guidance on Appointment of Lobbyists to Fed. Boads & Commissions

Pursuant to a June 2010 memorandum from the GSA Committee Management Secretartiat Director, OMB was instructed to issue guidance on the administrations policy prohibiting appointment of Federally registered lobbyists on advisory boards.

See OMB Proposed Guidance.  Download OMB Proposed Lobbyist Ban Guidance (11-10)

"Tip of the Day" on Dealing with Journalists

United States Agency for International Development employees seeking to access the organization's intranet must read an automated "Tip of the Day" and answer a related True/False question to be admitted. These tips provide an effective way of distributing ethics-related information like this example: Legislative and Public Affairs (LPA) The media has asked for a comment about one of USAID’s high-profile projects. What should you do?   Media inquiries can come from anywhere—newspaper, radio,   television and online journalists, or bloggers. You should   direct all media inquiries to:   • In Washington, the USAID Press Relations Office—the central     point of contact for all media inquiries—at (202) 712-[XXXX].   • In the Missions, the Development Outreach and     Communications Specialists (DOCS). The Press Relations Officers and DOCS coordinate information about USAID's work to the media and set up interviews between USAID’s staff and journalists. If a journalist asks about a USAID project, I should answer his questions immediately and help him meet his deadline.TRUE | FALSE

Eliminate Requirement for ALJ to Maintain Law License?

A proposed OPM rule would eliminate the requirement for Administrative Law Judges retain their law license after they become an ALJ. The proposal explains:

OPM is considering whether the licensure requirement for incumbents should be eliminated from the final rule. In addition to the reasons stated above, OPM recognizes that once an applicant is appointed as an ALJ, he or she becomes subject both to supervision appropriate to the position and to the standards of ethical conduct for employees of the Executive Branch, codified by the Office of Government Ethics at part 2635 of this title. Moreover, an ALJ who exhibits conduct that rises to the level of "good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing by the Board,'' 5 U.S.C. 7521, may be subject to an adverse action pursuant to statute. 5 CFR 930.211(c) enumerates other actions that may be taken in appropriate circumstances.
    In conclusion, OPM believes that the standards of ethical conduct that apply to ALJs as Federal employees, and agencies' existing authority to supervise ALJs and take actions against them in appropriate circumstances, are sufficient to ensure that ALJs are held  to a high standard of conduct. Accordingly, OPM is proposing to permanently eliminate the requirement in Sec.  930.204(b), that an incumbent ALJ must maintain a particular sort of license or status with respect to the practice of law, as unnecessary.

The deadline for comments is December 6, 2010.  Thanks to Bill Love for the tip.

DoD Social Media Directory

With "social media" like blogs, Facebook, YouTube, Twitter and Flickr being such a hot topic for ethics specialists, we particularly appreciate Mark Stone providing a pointer to the DoD website that lists the social media sites of DoD and the Military Departments.