Advisory 08-04 June 12, 2008

  1. Reminders on Political Activity.

    The Hatch Act allows most Federal employees to actively participate in political activities on their own time and outside of the Federal workplace. There are however, significant restrictions on fundraising, running for office in partisan elections and using one's official authority in the political arena. Please be aware that Senate-confirmed Presidential appointees and non-career SES employees are subject to additional limitations. Additional restrictions are also applicable to career members of the Senior Executive Service, members of the contract appeals boards, and all employees of the National Security Agency, the Defense Intelligence Agency, and the National Geospatial-Intelligence Agency. See (link inactive).

    As the November elections draw near, remember that the Hatch Act prohibits federal employees from sending e-mails that advocate for a political party or candidate for partisan public office while on duty or in a federal building. Engaging in such activity may subject employees to disciplinary action, including the loss of their job. No political activity means no political activity, regardless of the specific technology used. Refer to this press release.

    Engaging in political activity while on duty in a federal building led to a suspension of 180 days without pay for an employee of the National Aeronautics and Space Administration (NASA), Johnson Space Center in Houston. An investigation by the U.S. Office of Special Counsel found that the employee used his NASA e-mail account to send partisan political e-mails, and made numerous partisan political postings to his blog while on duty in his federal workplace. He was also found to have solicited political contributions ( press release ).

    DoD Directive 1344.10 - Political Activities by Members of the Armed Forces - was reissued in February of 2008. Members of the Armed Forces who are on active duty are permitted to, for example, express their personal opinions on political candidates, make a monetary contribution to a campaign, sign a petition to place a candidate's name on the ballot and attend a political event as a spectator. Members on active duty may not participate in partisan activities (e.g., solicit or engage in partisan fundraising activities, serve as the sponsor of a partisan club or speak before a partisan gathering). Among other things, the Directive clarifies permitted and prohibited activities for members of the Armed Forces who are not on active duty. .

    All requests from political campaign organizations to use DoD facilities must be handled by a public affairs officer. Use of DoD facilities for campaign events is prohibited. Please see (link inactive).

  2. Post-Employment: Section 847 Update.

    The Defense Acquisition Regulation Council (DARC) is taking up an initiative to implement the post government employment provision in Section 847 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181. Later this month, DARC will consider an amendment to the Defense Acquisition Regulations to ensure that contracting officers and other acquisition officials affected by the law are aware of the prohibition on defense contractors paying former DoD personnel who have not received written post employment advice. See SOCO Advisory 08-03 (Special Edition, dated April 28, 2008).

    As promised, SOCO has updated the annual certification and post-employment guidance to include reference to section 847. The model certification required by subsection 8-400 of the JER for Public Financial Disclosure Report filers can be found at: (link inactive). The post-employment guidance memos are found on our Ethics Resource Library Handouts.

  3. Court of Claims Interprets 18 U.S.C. 207.

    In CNA Corp. v. United States (April 30, 2008), the United States Court of Federal Claims interprets the phrase "particular matters involving specific parties" in 18 U.S.C. § 207(a)(1) and the phrase "personally and substantially" in 18 U.S.C. § 207(a)(1)(B). The court allowed a former National Institutes of Health (NIH), U.S. Department of Health and Human Services (HHS) employee to represent a would-be contractor on a decades-long research project the National Children's Study (NCS). The issue arose in the context of a bid protest. The former NIH employee had worked on a portion of a broader study involving children's health and environmental exposure. While working for NIH, the former employee and her protocol team developed recommendations regarding the infant neurodevelopmental protocol and presented their recommendations to a steering committee. The former employee left NIH shortly thereafter. Ethics officials at HHS, concluded that CNA, the contractor that she went to work for, could not bid on this project if she would be the Principal Investigator because she had worked on a particular matter involving specific parties, the children's health study, and thus, would be barred by 18 U.S.C. 207 from representing CNA back to the Government.

    The Court stated that this was a 20-year study involving 22 working groups comprised of over 200 scientists, and more than 2500 personnel providing input. The project involved 105 study locations. Subsequent to when the former employee left NIH, contracts were awarded at 22 sites, and the next year, 58 more contracts were awarded. The Court upheld the bid protest, disagreed with the ethics official's opinion, and found that the former employee was not involved "substantially" in such a massive project.

    That Court concluded:

    "Given the massiveness and the time line of this effort, it is unreasonable to be insensitive to the temporary, part-time, relatively small involvement of those who are not even involved, to any degree in the procurement end of the business, but who essentially provided, as part of a team, a small, draft, set of the scientific proposals for others to consider, reject, adopt, and modify over time. It also is unreasonable and not in keeping with the regulatory guidance to be insensitive to the nature of the NCS, which is the technical collection and reporting of factual, scientific data, as opposed to, for example, advocating and attempting to influence for marketing and business development purposes."

    Bottom line: Providing scientific expertise to a massive project does not necessarily trigger representation restrictions under 18 U.S.C. 207.


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.