Following is the section of recent guidance from the Office of Government Ethics pertaining to federal employees who are considering writing a book related to their official duties, even in which nearly all of the work would be done after leaving their jobs. (Note: The guidance, at www.oge.gov, also covers situations involving updates of books written prior to government service and promotional activities.)
Two primary authorities limit payments to employees for writing a book. Section 2635.807 of the Standards of Ethical Conduct for Employees of the Executive Branch prohibits any employee from receiving compensation for teaching, speaking, or writing that is related to the employee’s official duties. The Ethics in Government Act at 5 U.S.C. app. § 501(a)(1) and Exec. Order No. 12,674, sec. 102 limit outside earned income for Presidential appointees to full-time noncareer positions (PA) and covered noncareer (CNC) employees, irrespective of the subject matter of the writing. Timing is critical; these restrictions generally apply when the writing and the receipt of compensation are both attributable to the time of the employee’s government service.
For incoming or outgoing employees in particular, it can be difficult to answer the threshold question of whether the compensation rules apply. Even when the compensation restrictions are inapplicable, ethics officials must still consider other laws and ethics rules that may apply to the activity.
Trying to Sell a Book Idea or “Shop a Book Around”
Outgoing employees often seek to “pitch” their book ideas to potential publishers, which is permissible with certain limitations. Before an employee or the employee’s agent enters into any formal negotiations with the publishers, the first issue that must be addressed is whether the employee will engage in writing during government service. If so, the compensation restrictions may apply, because compensation is considered to be received while an individual is an employee if it is for conduct by the individual during government service.
The question of whether there is a “writing” for these purposes is not always clear. On the one hand, completing a manuscript is a writing, as is using another person as a “ghostwriter” to draft a manuscript that will be officially credited to the employee. Keeping diaries and notes during government service to be used later as a basis for a book also constitutes a writing. This means, for example, that an employee may not enter into an agreement during government service to write a book for compensation based on the diary of the employee’s participation in agency meetings.
On the other hand, it is probably permissible to sign a contract with a publisher based on a prepared short summary for a potential book so long as there are no other writings upon which the book will be based. The short summary may take various forms such as an outline, summarized prose description of the content, or a PowerPoint presentation. If, however, the summary includes proposed text, such as a chapter of the book, the proposal will constitute a writing implicating the compensation restrictions if the employee subsequently signs a contract during government service.
If the employee does not enter into an agreement for their book idea while in government service, then the compensation restrictions do not apply. As a result, it is permissible under the compensation restrictions to prepare a draft of a proposed book “on speculation,” meaning the book is not written pursuant to a publishing agreement, and to keep diaries and notes during government service to be used later as a basis for a book. The employee may also shop the draft written “on speculation” to publishers and subsequently base a book on diaries and notes without implicating the compensation restrictions, so long as the employee does not enter into an agreement for that book during government service. However, other ethics rules may apply to these activities, such as the rules regarding use of public office for private gain, the use of nonpublic information, and the use of official time. For example, an employee may not ask a subordinate to perform tasks on official time relating to a proposed book, such as researching, typing, or editing, in connection with this non-Government activity. Likewise, an employee may not impermissibly use nonpublic information in connection with writing.