Following is guidance from the Office of Government Ethics on policies regarding outside employment of federal employees, an issue that has drawn the interest among many of the some 380,000 employees on unpaid furlough due to the partial government shutdown.
An executive branch employee may not engage in outside employment or any other outside activity that conflicts with the employee’s official duties. Under Subpart H of 5 C.F.R. part 2635, an outside activity conflicts with an employee’s official duties if the activity:
Is prohibited by statute or by an agency supplemental regulation; or
Requires the employee’s disqualification from Government work that is central or critical to the performance of the employee’s Government duties.
In addition, an employee must comply with provisions in Subpart H governing specific outside activities. Moreover, an employee must ensure compliance with other subparts in 5 C.F.R. part 2635 and with other legal authorities.
In order to prevent a possible conflict of interest or ensure compliance with a provision, it may be necessary for an employee to avoid, modify, or terminate an outside activity or affiliation. Employees are encouraged to seek advice from an agency ethics official if there is a reasonable possibility that an outside activity or affiliation may conflict with the employee’s official duties or violate a law or regulation. Employees of some agencies may be required by an agency supplemental regulation to obtain prior approval before engaging in specified outside activities.
Prohibition in Statute or Agency Supplemental Regulation
As mentioned above, an outside activity conflicts with an employee’s official duties if it is prohibited by statute. Notably, certain criminal conflict of interest statutes may prohibit or limit an employee’s proposed outside activity or may prohibit the employee from receiving compensation for an activity. In addition, employees of some agencies must comply with agency-specific statutes concerning outside activities. Even the U.S. Constitution contains a provision that may be relevant.
Subject to certain exceptions, an employee may not personally represent others (or share in compensation for another’s representational services) before any court, Federal agency, or certain other entities concerning matters of interest to the United States. (18 U.S.C. § 203, 18 U.S.C. § 205)
Subject to certain exceptions, an employee may not receive any salary or supplementation of salary, from any person other than the Government, as compensation for services as a Government employee. (18 U.S.C. § 209)
If an employee’s Government position is an “office of profit or trust,” the employee may not have any position in or receive any payment from a foreign government. (The Emoluments Clause of the U.S. Constitution)
Separately, an agency supplemental regulation may contain one or more provisions that prohibit an employee from engaging in an outside activity.
Example: Subject to certain exceptions, an employee of the Department of Housing and Urban Development may not engage in employment involving active participation in a business dealing with or related to real estate or manufactured housing.
Conflict Arising Due to Required Disqualification
A conflict of interest statute, 18 U.S.C. § 208, prohibits an employee from participating personally and substantially, in an official capacity, in any “particular matter” that would have a direct and predictable effect on the employee’s own financial interests or on certain interests that are treated as the employee’s own. Financial interests imputed to the employee include those of an organization which the employee serves as an officer, director, trustee, general partner, or employee. Moreover, under 5 C.F.R. § 2635.502, other outside affiliations or business relationships might warrant an employee’s disqualification from a Government matter if a reasonable person would question the employee’s impartiality.
Example: Sophie is a Government attorney who works part-time at ABC Company as an illustrator. Because Sophie is an employee of ABC Company, she is prohibited by 18 U.S.C. § 208 from working on a Government claim against ABC Company.
Example: Ben is a member of a nonprofit organization and chairs the fundraising committee. Depending on the circumstances, Ben’s agency might decide in accordance with 5 C.F.R. § 2635.502 that Ben should not participate in a Government matter involving the nonprofit organization as a party.
As defined in Subpart H, an outside activity conflicts with an employee’s official duties if 18 U.S.C. § 208 or 5 C.F.R. § 2635.502 requires an employee’s disqualification from Government work that is central or critical to the performance of the employee’s Government duties.
Compliance with Other Provisions
Subpart H contains a number of provisions governing specific outside activities, including:
A prohibition against serving as an expert witness, other than on behalf of the United States, in certain proceedings in which the United States is a party or has a direct and substantial interest;
A prohibition against receiving compensation for teaching, speaking, or writing related to an employee’s official duties;
Limitations on fundraising in a personal capacity; and
An outside earned income ban applicable to certain political appointees (A similar outside earned income limitation is implemented in 5 C.F.R. part 2636. Part 2636 also describes other statutory limitations on outside employment and affiliations applicable to a category of political appointees.)
Subpart H also emphasizes that an employee’s outside activity may not violate principles or standards in other Subparts in 5 C.F.R. part 2635. These include the principle that an employee must endeavor to avoid actions creating an appearance of violating any of the ethical standards and the prohibition against use of official position for private gain.