Federal employees have to meet recusal obligations when promoting branded content. Image: Viktollio/Shutterstock.com
By: FEDweek StaffFollowing is the section of recent Office of Government Ethics guidance on the implications for federal employees of social media accounts addressing money-making activities using those accounts.
Over the past decade, social media networks have increasingly offered ways for users to generate income using their social media accounts and content. Social media users are able to monetize their accounts by, for example, (1) selling products and services; (2) advertising third-party products and services (i.e., “branded content”); and (3) receiving payments directly from a social media network, such as subscription fees, ad revenue, or payments from a platform’s “creator funds.” Employee engagement in income-producing social media activities will not always implicate the Standards of Conduct; however, the Standards of Conduct may prohibit or limit certain activities. As a result, OGE is providing answers to certain frequently asked questions about how employees may monetize their personal social media accounts consistent with the ethics rules.
Employee engagement in income-producing social media activities will not always implicate the Standards of Conduct; however, the Standards of Conduct may prohibit or limit certain activities. As a result, OGE is providing answers to certain frequently asked questions about how employees may monetize their personal social media accounts consistent with the ethics rules.
(a) Should I consult with my agency ethics office before monetizing my personal social media account?
Yes. While there is no executive branch-wide requirement for prior approval of outside employment and activities, many agencies have implemented supplemental ethics regulations that require employees to notify the agency ethics office about proposed outside activities and receive prior approval. Some agencies require prior approval for outside employment and activities, while some agencies require it only for certain forms of outside activities or for activities with certain outside organizations.
In addition, employees may not engage in monetized personal social media activity that would conflict with their official duties. It is therefore a good idea for employees to check with their ethics office before taking steps to monetize their personal social media account. This will ensure not only that the employee can comply with necessary prior approval requirements, but also that the employee is aware of the potential ethical pitfalls that may arise and how to avoid them.
(b) If I am promoting branded content, do I have any recusal obligations related to that company?
Yes. If an employee has entered into an agreement to promote a company’s products as an influencer or brand ambassador, the employee has a “covered relationship” with that company. As a result, for the duration of the arrangement, the employee would be required to recuse from any particular matter involving specific parties in which the company is a party or represents a party if a reasonable person would question the employee’s impartiality. Employees should keep in mind that the covered relationship begins at the point that they begin seeking a financial arrangement with the company. For example, an employee of the Department of Agriculture would have a covered relationship with an energy drink company once they have contacted the company seeking to enter into a sponsorship agreement. Employees who reach out to a company seeking to enter into such an agreement, or are negotiating an agreement, must therefore abide by the recusal obligations set forth in 5 C.F.R. § 2635.502.
Moreover, employees are prohibited from taking any actions that could affect their own personal financial interests or those of a person whose interests are imputed to them under 18 U.S.C. § 208(a). As a result, if any such person has entered into a brand promotion contract, an employee may not participate in any particular matter that would affect the company’s ability or willingness to abide by the brand promotion contract or could affect the commission the employee receives for promoting the company’s products. For example, if an employee of the Federal Trade Commission (FTC) has a branding agreement with a company, that employee could not be part of the FTC legal team bringing a suit against that company which argues that the company’s contracts –including the one the employee had signed—include terms that are unfair methods of competition.
(c) If I have an arrangement with a social media platform to permit the platform to show advertisements during my video content, do I have a covered relationship with the platform or the advertisers?
It depends on whether the arrangement is with the platform or the advertisers. If an employee has an agreement with a social media platform to monetize their account through the platform, the employee has a “covered relationship” with the platform and should consider recusal. For example, if an employee enters into the YouTube Partner Program, which allows participants to earn revenue from advertisements after amassing a certain number of subscribers, that employee would then have a covered relationship with YouTube and its parent companies.
However, an employee generally does not have a covered relationship with an advertiser merely because a social media platform has included an advertisement before, during, or after the employee’s content. The platform generally decides which advertisements are shown, and the employee generally will not have a direct relationship with the advertiser. However, if an employee did enter into a direct agreement with an advertiser, they would have a covered relationship with that advertiser.
(d) Can I mention my government position in the background section of my social media profile if I engage in income-generating activity on that social media account?
It depends. In general, employees who use their personal accounts for income-generating activities should only reference their government affiliation if it would be clear to a reasonable person that the employee’s government affiliation is unrelated to their outside activities. For example, it would be permissible for an employee of the Transportation Security Administration to include their official title in the background section of their Facebook account when the employee uses the account for a variety of non-commercial reasons and also engages in a limited amount of commercial activity, such as selling items through Facebook Marketplace or linking to their Etsy jewelry shop. On the other hand, an aerospace engineer of the National Aeronautics and Space Administration (NASA) should not include their official government title as part of the biographical section on a personal subscription-based Instagram account through which the NASA employee sells online courses on aerospace engineering.
(e) May I reference my official title, wear a government uniform, or use photos or video containing government equipment or spaces as part of monetized content?
No. The Standards of Conduct prohibit employees from using their government position for their own private gain, or for the endorsement of a product, and the use of government titles or uniforms in monetized content would normally imply governmental sanction or endorsement. For example, a Marine Corps officer would be precluded from posting paid social media content promoting a weight-lifting supplement while identifying as a member of the Marines.
(f) Can I create paid content during the government workday?
No. The Standards of Conduct provide that employees must use their official time in an honest effort to perform official duties. Although some agencies have limited use policies that permit employees to engage in non-commercial activity during the workday, these policies generally do not permit an employee to engage in any commercial activity during the workday. Thus, if an employee is spending time on duty filming monetized content, they would be in violation of the Standards of Conduct Employees who are working under telework and remote work arrangements should keep in mind that they are expected to use official time for official duties, regardless of whether they are working in a government facility or at an alternative duty station (such as their home).
(g) Can I create paid content on government property that is open to the public?
It depends. The Standards of Conduct prohibit employees from using government property for other than an authorized purpose. Permissible uses of government property include “purposes for which government property is made available to members of the public or those purposes authorized in accordance with law or regulation.” As a result, an employee may create monetized content on government property if (1) the area is open to the public, (2) the public is authorized to engage in commercial activity on the property, (3) the employee has received all required permits and adheres to applicable filming and photographic restrictions, and (4) the content is created during the employee’s personal time. For example, an employee may create content for their monetized social media account in areas of a national park where commercial filming and photography are allowed, if they have first received a commercial use permit from the National Park Service and adhere to all applicable laws and regulations. Employees may not create monetized content on government property not generally made available to the public for commercial activity unless specifically authorized by law or regulation.
(h) Can I ask a subordinate to assist me with branded content or content that would be used on my personal social media account?
No. A supervisor may not order, coerce, or induce a subordinate to assist in personal activities, including creating, editing, filming, or otherwise preparing monetized content for the supervisor’s social media accounts. Moreover, a supervisor cannot encourage, request, direct, or coerce a subordinate to use official time to perform personal activities that are not part of the subordinate’s official duties. Employees are also discouraged from inviting colleagues, particularly subordinates, to “follow” their social media account if it is used to engage in income-generating activity.
(i) Am I permitted to include nonpublic government information—including pictures, videos, or audio—on my monetized social media account?
No. An employee may not share nonpublic information to further any private interest – for example, when that employee is aware that they may stand to receive advertising revenue (or other payments) as a result of visitors engaging with the content. Employees must be mindful that nonpublic information can appear in pictures, videos, and audio, as well as in text documents. For example, an employee with a monetized Instagram account may not reference conversations they had about bidders for a government contract as part of a summary of their day on an Instagram Live story. The same employee also could not share a video of their office showing documents that contain nonpublic information.
Agency ethics officials may contact their OGE Desk Officers if they have any questions about the application of the ethics rules to employees’ use of personal social media.
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