Advisory 15-02 September 23, 2015

  1. Welcome New DoD SOCO Director.

    Ms. Ruth M.S. Vetter joined the SOCO team in late July, coming to us from the Defense Logistics Agency (DLA) Office of General Counsel where she served as Senior Associate General Counsel and Chief Counsel, Administrative and International Law. In 2012, Ruth was detailed from DLA to the Office of the White House Counsel where she was appointed as a Deputy Designated Agency Ethics Official. Prior to DLA, Ruth served as an U.S. Army civilian attorney at the Europe Regional Medical Command and before that, as an officer in the U.S. Army Judge Advocate General's Corps. As a Judge Advocate, Ruth held a variety of assignments including deployments to Bosnia-Herzegovina and Iraq. Ruth is thrilled to be the SOCO Director and looks forward to working with the talented community of ethics professionals in DoD.

  2. Encyclopedia of Ethical Failure Update.

    The Encyclopedia of Ethics Failure now includes updates for 2015. To view only the latest entries, click here. These summaries of various ethical misadventures provide useful teaching aides - but should not be cited as authoritative guidance, DoD policy or law.

  3. 2015 National Emergency Extended by President.

    On September 4, 2015, the President extended the National Emergency related to the terrorist attacks on September 11, 2001. The practical effect for the ethics community is a continuation (through September 14, 2016) of the suspension of the 180-day waiting period required at 5 U.S.C. § 3326 that restricts the appointment of retired military members into civilian positions at DoD. A copy of the Federal register notice is here.

  4. Holiday Guidance.

    Tired of getting those questions about contractors participating in holiday office parties and about what kind of gifts can be exchanged among employees? Your answers are addressed in the SOCO Holiday Party Guidance available here. We recommend using this guide to develop helpful messages and reminders to the workforce.

  5. Application of 18 U.S.C. § 203 to Federal Personnel Working As Contractors in the Federal Workplace (Usually on Terminal Leave or Moonlighting).

    Few Federal personnel are aware that a criminal statute, 18 U.S.C. § 203, prohibits them from:

    • - receiving compensation for acting as an agent or attorney (e.g. (representing)) someone else
    • - for anyone,
    • - before any part of the Executive or Judicial branches of the Federal Government,
    • - in connection with a particular matter,
    • - in which the United States is a party or has a direct and substantial interest.

    While the statute applies to personnel throughout their Federal careers, it has particular relevance in two situations: (1) military officers who desire to work in the Federal workplace for a contractor while on terminal leave and (2) personnel who desire to work in the Federal workplace for a contractor during their off-duty time ((moonlighting)). This statute will, in most cases, make such employment impossible. However, because the statute does not bar (communications that are merely ministerial in nature,) such as seeking information that is routinely made available to the public or providing purely factual information, some such employment may be possible.

    (Section 203 has historically been interpreted by the Department of Justice as prohibiting compensation only for representational services. Such representations must involve communications made with the intent to influence and must concern an issue or controversy. The provision of purely factual information or the submission of documents not intended to influence are not representational acts.) Consequently, where communications do not involve a potential for divergent views, or where the employees' actions do not constitute a communication, the prohibition does not apply. [See OGE Informal Advisory Memorandum 99 x 25].

    While this opens the door for some employment of Federal personnel as contractors in the Federal workplace, it also places these personnel in positions to inadvertently violate the prohibition. The examples below illustrate application of the statute.

    • -- A Federal employee who moonlights as a custodian working for a contractor in a Federal agency, may, in theory, perform his or her contractor duties without violating the statute since the employee's contractor duties do not primarily involve communications and most communications by the employee will be ministerial. However, if the employee was accused of not cleaning satisfactorily, the employee is prohibited by the statute from defending the contractor's performance in a discussion with a Federal official. Contractor employees who are not Government personnel must handle the complaint.

    • -- A Federal employee could moonlight as a security guard at a Federal facility but would not be able to engage in a discussion with Federal employees about the guard's decision to deny admission to a visitor whose identity was in question.

    • -- A military officer on terminal leave, who is employed by a contractor as a consultant for a Federal agency, could not provide advice or consultant services to the Federal agency concerning a particular matter if the matter has a potential for divergent views.

    18 U.S.C. § 205 parallels § 203 except that even uncompensated representation is prohibited. Neither § 203 nor § 205 apply to enlisted personnel. Modified rules apply to Special Government Employees.

    Bottom line: As stated earlier, it is almost impossible for Federal personnel to work for a contractor in the Federal workplace. In theory, they could perform roles that do not involve communications or that involve only ministerial communications. However, if the quality, quantity, or timeliness of their work is challenged, they may not participate in such discussions. As The Office of Government Ethics warned, (As a general matter, [the employee] should take great care in avoiding any situation in which he may argue a position on behalf of [the organization] in a covered matter before any Federal employee in which there are potentially differing views or conflicting interests.) [See OGE Advisory Opinion 96 x 6].

    Please note that while a violation is more likely to occur if the employee is located in the Federal workplace, this restriction would also prohibit an employee from representing the contractor before Federal personnel outside of the Federal workplace, e.g., at the contractor's facility. Where the prohibited representation actually takes place is irrelevant.


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.