May 21, 1997
DO-97-025
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Stephen D. Potts
Director
SUBJECT: Interim Policy on Acceptance of Travel Expenses in
Connection with Certain Unofficial Teaching, Speaking,
and Writing Activities
In the wake of the court of appeals decision in Sanjour v.
United States, 56 F.3d 85 (D.C. Cir. 1995) (en banc), the Office of
Government Ethics (OGE), in consultation with the Department of
Justice, has decided to recommend an interim policy of partial
nonenforcement as to an application of section 2635.807(a) of the
Standards of Ethical Conduct for Employees of the Executive Branch
(Standards), 5 C.F.R. part 2635. Specifically, this policy
addresses the prohibition on acceptance of travel expenses for
unofficial teaching, speaking and writing (speech) that is
considered "related to duties" under section
2635.807(a)(2)(i)(E)(2) because it "deals in significant part with
. . . [a]ny ongoing or announced policy, program or operation of
the agency." Pending the district court's issuance of a final
order on remand in Sanjour and until further notice, we ask you to
advise employees that this prohibition will not be enforced against
executive branch employees other than "covered noncareer
employees," as defined in 5 C.F.R. § 2636.303(a).
Background
The Sanjour case was brought as a challenge to the regulatory
prohibition on employee acceptance of travel expenses from non-
Government sources in connection with certain unofficial speech
related to agency policies and programs.(endnote 1) The district court
rejected the plaintiffs' claims that the prohibition violates the
First Amendment, 786 F. Supp. 1033 (D.D.C. 1992), as did the court
of appeals on its first hearing of the case, 984 F.2d 434 (D.C.
Cir. 1993). On May 30, 1995, however, the court of appeals, in a
5-4 en banc decision on rehearing, sustained the employees' First
Amendment challenge and held invalid "the no-expenses regulations."
56 F.3d 85, 88 (D.C. Cir. 1995). At the same time, the court
explicitly reserved judgment on the constitutionality of the rule
as applied to "senior" executive branch employees. Id. at 93.
Subsequently, the Solicitor General decided not to petition
for further review in the Supreme Court and the case was remanded
to the district court for entry of a final order. The parties were
unable to agree, however, upon the relief to which the plaintiffs
are entitled as a result of the court of appeals decision.
Accordingly, there followed a round of briefing on the question of
the appropriate relief, with plaintiffs taking an extremely
expansive view of the decision's impact on section 2635.807 and
defendants (EPA and OGE) taking the position that the court of
appeals addressed only the prohibition on travel expense
reimbursements in connection with "subsection (E)(2) speech," i.e.,
unofficial speech that "deals in significant part with . . . [a]ny
ongoing or announced policy, program or operation of the agency."
Section 2635.807(a)(2)(i)(E)(2).
Pending the district court's issuance of an order clarifying
the reach of the en banc decision, OGE decided to advise executive
branch employees to continue to comply in full with the
requirements of 5 C.F.R. § 2635.807. Our decision was based on the
fact that Sanjour was not a class action, and that, as a result,
the decision in the case would have immediate applicability only to
the named parties before the court. We always have intended, and
still do intend, to amend our regulations to give executive
branchwide effect to Sanjour; however, in view of the uncertainty
regarding the reach of the court of appeals decision and the fact
that it did not have immediate applicability to executive branch
employees other than the plaintiffs, it was reasonable, on an
interim basis, to continue to advise compliance with all of section
2635.807. We anticipated that after the district court issued an
appropriate order for relief, this Office then would make whatever
regulatory amendments might be necessary to give effect to the
appellate court's decision, as clarified by the district court's
order. Upon further review, however, we have now decided to issue
this interim policy limiting enforcement of the ban described above
to "senior" executive branch employees, by which we mean "covered
noncareer employees" under 5 C.F.R. § 2636.303(a).
Enforcement as to "Covered Noncareer Employees,"
No Enforcement as to Others
As defined in 5 C.F.R. § 2636.303(a), and consistent with the
provisions of the Federal Employee Pay Comparability Act of 1990
(FEPCA), the term "covered noncareer employee" covers a variety of
noncareer employees who are in positions "above GS-15," including
certain Presidential appointees, noncareer members of the Senior
Executive Service (SES) or other SES-type systems, and Schedule C
or comparable appointees.(endnote 2) The term excludes special Government
employees, Presidential appointees to positions within the
uniformed services, and Presidential appointees within the foreign
service below the level of Assistant Secretary or Chief of Mission.
5 C.F.R. § 2636.303(a).
The decision to continue enforcement of the prohibition
against "covered noncareer employees" comports with the assertion
by the court of appeals that "the balancing of interests relevant
to senior executive officials might present a different
constitutional question than the one we decide today'" and the
court's determination, accordingly, to "express no view on whether
the challenged regulations may be applied to senior executive
employees." 56 F.3d at 93, citing, United States v. National
Treasury Employees Union, 513 U.S. 454, 115 S. Ct. 1003, 1018
(1995). The decision to rely on the definition of "covered
noncareer employee" in 5 C.F.R. § 2636.303(a) as a means of
distinguishing "senior" from "nonsenior" employees is consistent
with the imposition of greater restrictions on covered noncareer
employees elsewhere in section 2635.807. See 5 C.F.R.
§ 2635.807(a)(2)(i)(E)(3).
Conclusion
Once the district court issues its order implementing the
court of appeals decision, we will reassess, in light of that
order, this interim enforcement policy. Our intent, moreover, as
already noted, is to eventually implement our response to Sanjour
through amendment of our regulations.
In the meantime, please be aware that this nonenforcement
policy affects only acceptance of travel expenses, not other forms
of compensation, and affects acceptance of travel expenses only
when the teaching, speaking, or writing is "related to duties"
under subsection (E)(2) and is performed by an employee who is not
a "covered noncareer employee," as that term is defined in 5 C.F.R.
§ 2636.303(a). All other applications of section 2635.807 remain
enforceable as written.
______________________________________________________________
Endnotes:
(1) The prohibition, originally set forth in 5 C.F.R. section
2636.202(b), was later incorparated in section 2635.807(a) of
the uniform Standards.
(2) The triggering rate of pay, i.e., the rate of pay at or
above which an employee must be paid to be considered a "covered
noncareer employee," is set forth in section 2636.303(a) as the
"annual rate of basic pay in effect for GS-16, step 1 of the
General Schedule." However, the FEPCA eliminated the GS-16, 17,
and 18 classifications and replaced them with a new pay structure
for positions classified "above GS-15." Under the new pay
structure set by the FEPCA, the rate of basic pay for positions
"above GS-15" can be no less than 120 percent of the rate of basic
pay for GS-15, step 1. 5 U.S.C. section 5376.