MEMORANDUM TO: All Employees of the United States Attorneys' Offices
All Employees of the Executive Office for United States Attorneys
FROM: Carol DiBattiste Director
SUBJECT: Supplemental Regulation on Ethical Standards of Conduct and Outside Activities
ACTION REQUIRED: Prior approvals where indicated.
CONTACT PERSONS: Juliet A. Eurich Legal Counsel (202) 514-4024
Robert Marcovici Senior Attorney-Advisor AEX13(RMARCOVI) (202) 514-4024
GENERAL QUESTIONS: Email: AEX13(ETHICS) Fax: (202) 514-1104
This memorandum describes the newly implemented outside activities regulation, called the Supplemental Standards of Ethical Conduct for Employees of the Department of Justice (DOJ), and provides guidance to all employees of the United States Attorneys' offices (USAOs) and Executive Office for United States Attorneys (EOUSA) on several issues. The memorandum discusses the background leading to the Department's supplemental regulation, analyzes the regulation, describes when a prior approval is and is not required, and when the granting of administrative leave may be appropriate.
The contents of this memorandum have been approved by the Office of Management and Budget Sucommittee, the Attorney General's Advisory Committee (AGAC) and the AGAC. It has also been reviewed by the Deputy Assistant Attorney General for Law and Policy and the Department's Ethics Office.
Please note that employees may have an obligation to notify management of certain outside activities, and obtain the prior approval of the United States Attorney (USAO employees) or the Director, EOUSA (EOUSA employees), under certain circumstances. This responsibility is distinct from the requirements (or lack thereof) contained in the Supplemental Standards of Ethical Conduct for Employees of the Department of Justice and will be noted throughout the memorandum, as appropriate. Employees are encouraged to consult with their Ethics Advisors, or consult with and/or obtain a formal ethics opinion from the Deputy Designated Agency Ethics Official (Deputy DAEO), the Legal Counsel, EOUSA.
Over the past several years the Department of Justice (DOJ) has been negotiating with the Office of Government Ethics (OGE) concerning its "supplemental regulations" to the Standards of Conduct found at 5 C.F.R. § 2635 et seq. The comprehensive regulations provide that each agency may issue its own supplemental regulations after review and approval by OGE. The Department and OGE have agreed on the Department's supplemental regulation and it has been published in the Federal Register as an interim rule subject to public comment to be codified at 5 C.F.R § 3801.106.
The Department had regulations in place several years ago which were located at 28 C.F.R. Part 45. For the most part, these regulations expired with the implementation of the Ethics Reform Act of 1989 (which became effective in February 1993) and have been used only as guidelines when we acted on outside activity requests. Generally, the regulations and other implementing memoranda issued by EOUSA required prior approval for the outside practice of one's profession, including the practice of law, whether compensated or not, teaching and lecturing, and required notice to the head of the employee's division before the employee engaged in pro bono activities. As a companion to and explanation of the regulations at 28 C.F.R. Part 45, we published guidance in the United States Attorney's Manual (JM) on outside activities and required that many activities be pre-approved by the Legal Counsel, EOUSA. A copy of the prior regulations and the pertinent portion of the JM are attached at Tabs A and B.
The "new" DOJ supplemental regulations were published on November 25, 1996, and circulated to all United States Attorneys and First Assistant United States Attorneys. A copy of the regulations is attached at Tab C. There are several significant changes between the new and the old regulations.
The purpose of this memorandum is to set forth new guidelines in light of the supplemental regulation on outside employment and define which activities now need prior approval and which can be handled in the USAOs or EOUSA components without formal opinions or authorization from the Legal Counsel, EOUSA. This memorandum does not apply to involvement of United States Attorneys in the community. United States Attorneys are Presidential appointees, have certain additional restrictions, and have more visibility in their communities. Their requests to be involved in outside activities will continue to be reviewed by the Legal Counsel, EOUSA.
It is important to note that this supplemental regulation on outside employment and the specific issues addressed in this memorandum do not in any way affect or supersede the more general ethics principles and standards of conduct. All outside activities, regardless of whether a prior approval is required, should still be evaluated for possible conflicts of interest, and management or policy implications, if any. Supervisors, Ethics Advisors and employees should still consider whether a formal ethics opinion from the Legal Counsel, EOUSA, as the Deputy DAEO for the USAOs, is desirable to afford them a measure of protection from those who would question the appropriateness of their outside activities. Those who rely on formal opinions from the Deputy DAEO in good faith are protected from disciplinary action, and good faith reliance on a Deputy DAEO's advice is a factor the Department will consider in the selection of cases for prosecution. See 5 C.F.R. § 2635.107.
ANALYSIS OF THE NEW REGULATION
The new supplemental regulation on outside employment, 5 C.F.R. § 3801.106, is divided into three sections - a definition, a prohibition against certain activities and a requirement for prior approval for other types of activities.
Section 3801.106(a) defines "employment" in very inclusive and broad terms to cover any business relationship or business activity involving the provision of personal services, including service on a board, being a partner, agent, or contractor. It applies to both compensated and uncompensated activities. It excludes speaking, writing and serving as a fact witness as long as these activities do not overlap with another activity covered by the regulation. Those who want to engage in speaking and writing for compensation are referred to 5 C.F.R. § 2635.807 of the Standards of Conduct.
Section 3801.106(b)(1) sets forth three prohibited activities:
(i) The practice of law UNLESS it is uncompensated, for certain immediate family members or it is "in the nature of community service;"
(ii) Any criminal or habeas corpus matter, be it federal, state or local; or
(iii) Litigation, investigation, grants or other matters in which the Justice Department is or represents a party, witness, litigant, investigator or grant-maker.
The Deputy Attorney General may grant waivers to the prohibitions in section (b)(1) above in certain limited instances like family hardship.
Section 3801.106(c) permits outside employment that is not prohibited by subsection (b). However, subsection (c) requires prior approval for the outside practice of law and outside employment which involves a "subject matter, policy, or program that is in his [the employee's] component's area of responsibility."
We ask that all employees contact us with questions and requests for prior approvals if the outside activity in which they want to engage falls within the purview of the new supplemental regulation. In addition, other ethics principles and standards of conduct may apply and may require a consultation with the USAOs' Ethics Advisors or the Legal Counsel, EOUSA. For example, financial or other conflicts of interest and appearances of impropriety or partiality may require a consultation or a formal ethics opinion. In such instances, USAO employees should consult with their Ethics Advisors, and EOUSA employees should consult with their supervisors. When appropriate, the Ethics Advisors (USAO employees) and supervisors (EOUSA employees) should contact the Legal Counsel, EOUSA, to decide whether a formal ethics opinion is needed or to confirm the proper course of action.
OBTAINING APPROVAL TO PRACTICE LAW
There is a Department Order (DOJ Order No. 1735.1) which provides that the uncompensated practice of law may be approved by the Deputy DAEO, as delegated by the USAO employees' determining official, the Director, EOUSA. Although the supplemental regulation generally prohibits the compensated practice of law, there may be special circumstances (e.g., 5 C.F.R. § 3801.106(b)(2)) where such requests may be considered and approved by the Deputy Attorney General. See U.S.A.M. 1-4.320. The Pro Bono Policy statement issued by the Attorney General in March 1996, provides that programmatic approval must come from the Director, EOUSA, as the component head. All programmatic requests are reviewed by the Deputy DAEO and forwarded to the Director, EOUSA, with a recommendation. Individual requests to undertake pro bono work must be approved by the Deputy DAEO since it is essentially the uncompensated practice of law. This does not represent a change from the old regulation, which also required approval for the practice of law.
The new regulation only permits representing parents, spouses, children and oneself. No aunts, uncles, brothers, sisters, grandparents or in-laws are covered. We have received a number of requests which we have not approved because the family member is not in the covered group.
ACTIVITIES WHICH NO LONGER REQUIRE APPROVAL OF EOUSA BUT WHICH REQUIRE UNITED STATES ATTORNEY APPROVAL
It is important to state, at the outset, that there is a difference between the approval of the Deputy DAEO and the approval of USAO or EOUSA management about what is an appropriate outside activity. The role of the Deputy DAEO is to review the proposed activity in light of the Standards of Conduct and other federal laws and regulations. This analysis does not involve a review of the staffing needs of an office or the way in which an employee's time is or should be spent. That is the role of the management in the USAO and EOUSA. If an employee wants to engage in an outside activity that will impact the time that employee spends in or out of the office, management should be made aware of the activity and should be given the opportunity to approve it as a management decision, not an ethics decision. With that in mind, the following sections discuss the need for an employee to contact and/or consult with his/her United States Attorney (for USAO employees) or the Director, EOUSA (for EOUSA employees), before engaging in certain outside activities.
TEACHING AT LAW SCHOOLS OR COLLEGES
Prior approval for teaching was required and there was a time when the honorarium ban was in effect and complicated teaching requests. Now that the ban is gone, there is no need to approve routine teaching at law schools or other educational institutions. The Standards of Conduct at 5 C.F.R. § 2635.807 govern teaching and permit compensated teaching, if it does not relate to one's work (official duties), and consists of multiple presentations and is given at an institution of higher education, secondary school or elementary school, or it is sponsored by the federal government. (It also permits compensated speaking and writing if it does not relate to one's official duties.) We presume that those engaged in teaching will abide by their obligations not to disclose non-public information, that they must limit the time they are absent from the office, they cannot use office staff to prepare their materials, and they must be careful about using their titles since they are engaging in this activity in their personal capacities. EOUSA employees who want to teach under this regulation should consult the Director, EOUSA, and their supervisors, and USAO employees should consult with their United States Attorney and Ethics Advisors, and the Ethics Advisors should monitor this activity and provide advice as needed.
TEACHING FOR NITA OR OTHER ORGANIZATIONS
Teaching for NITA or another entity which is not a college or law school presents different considerations from law school/ college courses because employees are often paid more money and are out of the office for several days or a week. USAO employees should consult with the USAO Ethics Advisors and the United States Attorneys, and EOUSA employees should consult with the Director, EOUSA, and their supervisors when they are asked to teach such a course, since their absence from the office may impact on the mission of the office.
SERVICE ON CERTAIN BOARDS OF DIRECTORS
Both Assistant United States Attorneys (AUSAs) and non-attorney employees of USAOs are very involved in their communities and this should be encouraged. The prior policy and the bluesheet required approval for each person, each time he/she became a board member and did not differentiate between school boards, banks, churches, or the YMCA.
We have decided that several categories of boards can be deleted from the list of prior approvals since they are unlikely to conflict with the work of the Department or a given USAO. The same holds true for EOUSA employees. Set forth below is a list of those types of boards which no longer require prior approval of the Deputy DAEO. Any employee who wants to serve on a board of this type of organization must consult with the United States Attorney (USAO employees) or the Director, EOUSA (EOUSA employees). The United States Attorney or the Director, EOUSA, may decide in his/her discretion to require prior approval if he/she believes that the activity may involve a policy, program or subject matter of the USAO or EOUSA. The USAO Ethics Advisors should monitor these outside activity requests at the local level. The following types of organizations should not routinely require prior approval:
- 1. Churches;
2. Homeowners' Associations;
4. Parent Associations;
6. Big Brothers/Big Sisters;
7. Elks, Rotary, Lions Clubs;
8. Sports Clubs;
9. Art or Civic organizations; and
10. Day Care Groups.
Board memberships other than those listed above still require the prior approval of the Legal Counsel, EOUSA.
SPEAKING AND WRITING
Speaking and writing are included in the general Standards of Conduct regulations, 5 C.F.R. § 2635.807, and they are excluded from the definition of "employment" in the supplemental regulation. If an employee writes an article that relates to his/her employment in the USAO/EOUSA or impacts on the Department, he or she must include a disclaimer that the views expressed therein do not represent the views of the USAO/EOUSA or DOJ. A disclaimer is also required when the employee's title is used in the article or writing.
Employees who wish to make speeches or publish articles which relate to their employment should consult with their United States Attorney (USAO employees) or the Director, EOUSA (EOUSA employees). They are also free to contact their Ethics Advisors or the Legal Counsel, EOUSA (Deputy DAEO), to obtain an ethics opinion and approval for the article, as appropriate.
EMPLOYMENT FOR COMPENSATION WHICH INVOLVES SELLING OR MARKETING A
The EOUSA receives many requests from employees to engage in marketing products such as AMWAY in the community. While these activities do not necessarily involve a policy or program of the USAO, they do present unique problems because the Standards of Conduct generally do not permit soliciting or selling in the office or to other government organizations. In addition, general ethics principles must be considered when selling or marketing products to government prohibited sources. There may also be other issues involved in creating and operating a business because the enterprise may involve a policy, program or subject matter of a USAO/EOUSA. For these reasons, employees should consider the general ethics and conflicts principles and standards, seek the approval of the Director, EOUSA (EOUSA employees), or their United States Attorney (USAO employees), and advice from their USAO Ethics Advisor or the Legal Counsel, EOUSA.
ACTIVITIES WHICH REQUIRE PRIOR APPROVAL
There has been a tremendous increase in AUSAs' involvement in all types of Bar Activities in their communities. This includes the American Bar Association, the Federal Bar Association, local and State Bar Associations, etc. Some AUSAs serve on committees, some chair committees, and many are speaking at conferences. We have permitted AUSAs to be on committees as long as they are acting in their private capacity. We have begun to receive a lot of requests to allow non-federal entities to reimburse the USAOs for employees' travel expenses as authorized by 41 C.F.R. § 304-1 et seq. (the federal travel regulations) to attend these conferences and meetings. This has presented a unique situation since we are authorizing AUSAs to participate in the bar activities in a private capacity, but subsequently the office regards such activities as official functions by accepting reimbursement from the non-federal entities. We realize that USAOs have decided it is in the interest of the office to have the employee attend in his/her official capacity. However, a consequence of deciding that the participation is an official activity is that the AUSA must then speak for the USAO and/or DOJ, and must know our position on the issues under consideration. For the reasons stated below, this may become an untenable situation.
Official Versus Private Capacity Participation
These activities, i.e., service or participation on a bar committee, should be undertaken in the AUSA's private capacity and should be approved in writing since the activity impacts on a policy, subject matter, or program of the component. However, speaking should be done in an official capacity since the employee will generally appear on a panel or give a particular lecture on a topic related to his/her job as a federal attorney. Were we to view all bar committee work as official, there would be serious questions about what position DOJ should take on issues at meetings. We would not be able to monitor all the opinions voiced across the country. It would also raise serious questions about the fiduciary role AUSAs would play if they became an officer or director of a committee. For all these reasons, we will continue to approve individual requests for involvement in bar activities.
Payment of Travel Expenses
We believe that requests for reimbursement of travel expenses from non-federal entities have increased because a significant number of employees mistakenly believe that unless the USAO asks for reimbursement of an employee's travel expenses, the employees may not accept payment from these entities for their expenses in a private capacity.
If they are serving on a committee, in their private capacity, and are traveling to a meeting or conference, they cannot submit a travel reimbursement form pursuant to the travel regulations because the travel is not for official purposes. Generally they may, as stated above, accept payment of their expenses from the entity sponsoring the meeting or conference in their private capacity. The AUSAs should be sensitive to potential conflicts of interest and appearance issues when accepting payment from outside sources and should consult with their USAO Ethics Advisors, as necessary.
Conversely, when they are speaking at an event in an official capacity, AUSAs may not accept direct payment from the organization. The non-federal entity may reimburse the USAO, but not the AUSA for travel expenses, according to the federal travel regulations cited above, if approved by the Legal Counsel, EOUSA (Deputy DAEO).
We have received many inquiries asking for administrative leave to engage in outside activities. Each USAO has the authority to grant up to 8 hours of administrative leave to an employee, but we are being asked to approve leave for pro bono legal work, attendance at bar conventions, tutoring at schools, teaching, and a myriad of other activities. There is much confusion about when administrative leave is necessary or appropriate. Generally, employees should not receive administrative leave for pro bono or community service activities.
However, United States Attorneys are encouraged to grant up to twenty-four (24) hours of administrative leave per AUSA, per year, for bar activities, subject to workload demands and trial schedules. Under unusual circumstances and at the discretion of the United States Attorney, AUSAs may be granted administrative leave for bar activities in excess of twenty-four (24) hours. The same holds true for EOUSA employees. Bar activities are distinguishable from other types of outside activities because such participation increases DOJ's voice in matters that may impact the mission of the USAOs and affords an opportunity for attorneys serving as federal prosecutors to present a more balanced perspective on many issues. In deciding whether to grant administrative leave for AUSAs participating in certain bar association sections, United States Attorneys should consider the particular section's relevance for the office. The primary sources for granting administrative leave to employees are the Department's Pro Bono Policy, DOJ Order No. 1630.1B (Chapter 14), Memorandum to Department of Justice Attorneys, from the Deputy Attorney General, Participation in Bar Activities by Justice Department Attorneys (March 27, 1997) (Tab D), Memorandum to All United States Attorneys, from Carol DiBattiste, Director, Bar Association Activities of Assistant United States Attorneys (September 26, 1995) (Tab E), U.S.A.M. 3-2.630G, and Memorandum to U.S. Department of Justice Attorneys and All U.S. Attorneys, from The Attorney General, Involvement of Department Lawyers in Bar Activity (January 4, 1994) (Tab F).