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A recurring limitation found in all DoD appropriation acts is that "No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress." This limitation has been interpreted to preclude DoD from providing speakers to civilian communities except in response to requests or if otherwise specifically authorized. (Legislation currently pending in Congress (H.R. 5112), if enacted as currently written, will amend 31 U.S.C. 1355 to make this recurring prohibition part of the U.S. Code.)
In practical terms, this limitation means that DoD personnel may not ask private parties if they would be interested in hearing a particular DoD speaker, or if the private party desires a DoD speaker at a particular event, if that party had not requested any speakers from the Department. On the other hand, DoD may provide a speaker when a speaker is requested for particular event or even in response to an open invitation. In such a case it would not be improper to advise the party that a speaker is available. Of course, official speeches must comply with the DoD speaking policy (DoDD 5410.18 and Enclosure 4, Speaking Engagements, of DoDI 5410.19).
Under its public affairs program, DoD provides speakers to the civilian community and public forums, and generally welcomes opportunities to increase the understanding of the Department and the U.S. defense posture and capabilities.
Everyone is familiar with the post-Government employment restriction on Government officers and employees -- that they may not represent someone else to the Government regarding particular matters that they worked on while in Government service. But did you know that 18 U.S.C. §207(l) places additional restrictions on private sector employees who have been detailed to Federal agencies? Former detailees from the private sector who have worked for the Government under the Information Technology Exchange Program cannot represent, aid, counsel, or assist others in representing any other person in connection with any contract with that agency for one year after concluding the detail. Although narrow in application, this actually is more restrictive coverage than 18 U.S.C. 207(a)(1) and (2) in that it includes any contract, is not limited to particular matters, and does not allow "behind the scenes" assistance.
The United States District Court for the Eastern District of California has indicted a Housing and Urban Development (HUD) employee on charges of falsifying or concealing a material fact by failing to disclose outside positions held and income received from outside positions. The indictment recognized the completion of the OGE Form 450 as a condition of his employment. The U.S. Attorney charged 18 U.S.C. 1001(a)(1) False Statement in the indictment to enforce the requirement to file a confidential financial disclosure report. Further, it highlights the importance of the sometimes forgotten section of the disclosure report dealing with outside associations.
As we have previously reported, section 9-502 of DoD 5500.7-R, Joint Ethics Regulation, requires all DoD components to provide guidance on post-Government employment restrictions as part of outprocessing, to all DoD personnel leaving Federal service. A "best practice" is to include the ethics counselor as one of the required stops on your agency's checkout sheet along with the security office and human resources office. A visit to the ethics counselor will ensure compliance with the JER, provide timely advice which may prevent departing personnel from inadvertently violating criminal conflict of interest laws, and provide notice of departing financial disclosure filers.
Equally important is keeping a record of the advice you provide departing personnel. Advice to departing personnel regarding the Procurement Integrity Act and criminal post-Government employment statutes is commonly scrutinized as part of criminal investigations that focus on violations of post-Government employment restrictions.
We strongly recommend the following measures:
The following links are provided for those who receive the SOCO Advisory hardcopy or have trouble with the hyperlinks in the above text:
DISCLAIMER: The purpose of this advisory is to disseminate relevant information and sources of general guidance, policy and law on Government Ethics issues to the Department of Defense ethics community. Advisories are not intended to be and should not be cited as authoritative guidance, DoD policy, or law.