The Office of Government Ethics has warned federal agencies against gathering information or touting themselves through their employees’ personal social media accounts, saying that would place employees “at an increased risk of ethics violations.”
Such a program also “may implicate a multitude of legal authorities outside of OGE’s jurisdiction,” it said in a letter to an agency whose identity was redacted. The request for guidance was made in 2019, during the Trump administration; it is not clear whether the program still is being pursued.
The letter recounts that the agency requested an opinion on two programs, one in which employees would voluntarily use their personal LinkedIn accounts “to gather business intelligence” and to distribute content approved by the agency. Samples of that content provided to the OGE ranged from “general observations about American business to outreach directed at individual potential customers,” it said.
In the other, employees would voluntarily post “general positive statements” about the agency through commercial software that can “facilitate the posting of content across multiple platforms and track responses to employees’ posts.”
The OGE stressed that federal employees are barred from using their office “for the endorsement of any product, service or enterprise” and even “from engaging in conduct creating the appearance that they are misusing their public office.” Those who participate would “face risks arising from the interplay of different types of content on their personal social media accounts – some personal, some official, and some ambiguous,” it said.
Employees would be using official resources in the former program, creating “uncertainty about whether this material is posted in official capacity or personal capacity,” and in the latter there similarly would be “considerable ambiguity about the capacity in which people will participate.”
Readers of the agency-sponsored content “are likely to perceive that opinions expressed on social media, intended to be personal, are depicted as having official endorsement” in violation of the Standards of Ethical Conduct and “there are real possibilities that the employee could be in jeopardy of violating the Standards,” it said.
Also, employees might be violating a ban on accepting compensation for items posted as part of the employee’s official duties, and a ban on using official time or other official resources for activities that are personal in nature, it said.
Further, “there are a large number of legal compliance questions that may arise” regarding laws such as the Anti-Lobbying Act, the rights of employees under labor-management law, and the potential “legal liability for an employee” for violating the terms of service of their social media accounts.
The agency could modify the programs to attempt to address those concerns but “it is not clear that any [such measures] can totally cure” the risks to employees. It urged the agency to “ensure that individual employees are not asked to take steps that would violate their obligations to uphold the Standards of Conduct.”