NTEU 

The National Treasury Employees Union 

VIA E-MAIL (ferne.mosley@dhs.gov) 

AND FIRST CLASS MAIL 

Ms. Ferne L. Mosley 

Deputy Ethics Official 

OGC MAIL STOP 0485 

Department of Homeland Security 

245 Murray Lane 

Washington, DC 20528-0485 

RE: DHS-2008-0168 

Dear Ms. Mosley: 

December 12, 2011 

The National Treasury Employees Union (NTEU) submits these 

comments in response to the notice published in the Federal 

Register on October 12, 2011 (76 Fed. Reg. 63206), in which the 

Department of Homeland Security (DHS) proposed regulations that 

would supplement the Standards of Ethical Conduct for Employees 

of the Executive Branch. The proposed regulations would, inter 

alia, require DHS employees to obtain approval before taking on 

certain outside employment and activities. 

NTEU is the nation's largest independent federal union, 

representing approximately 150,000 employees in 31 federal 

agencies. Approximately 24,000 of these employees work at 

Customs and Border Protection (CBP), a component of DHS. 

NTEU has significant concerns about the proposed 

regulations at 5 C.F.R. §§ 4601.101 and 4601.103. As a 

threshold matter, NTEU believes that the proposed prior approval 

requirement is unnecessary. Should it be adopted, NTEU is 

concerned that the proposed definition of "outside employment" 

is overbroad, and that, as written, the prior approval 

requirement will raise serious constitutional concerns. 

Finally, if--notwithstanding these concerns--DHS decides to 

implement the prior approval requirement, NTEU urges that the 

proposed approval process be modified. The presumption should 

be that requests for outside employment are to be approved: DHS 

components should be required to approve outside employment 

I 750 H Street, N.W. • Washington, D.C. 20006 • (202) 572-5500 
Ms. Ferne L. Mosley 

December 12, 2011 

Page 2 of 7 

unless they find that the employment would adversely affect DHS. 

Furthermore, the regulations should specify that DHS components 

must evaluate outside employment requests in a timely manner and 

base their decisions on pre-established criteria. 

I. The Prior Approval Requirement Is Unnecessary 

As an initial matter, NTEU questions the need for a blanket 

requirement of prior approval before an employee may engage in 

outside employment or activities. DHS has premised its proposed 

requirement largely on what it perceives as a need to protect 

employees from the risk of violating the government-wide 

standards of conduct. See 76 Fed. Reg. at 63207. NTEU believes 

that DHS employees are fully capable of determining for 

themselves whether an activity would conflict with their 

official responsibilities or otherwise adversely affect DHS, or 

create the appearance ·of impropriety. Employees also know that 

they are subject to discipline for engaging in such activities. 

They will voluntarily seek advice and approval if they have any 

doubts. Imposing a mandatory prior approval requirement is 

paternalistic and unnecessary. It also subjects employees to 

the added risk of discipline for a mere failure to seek 

approval, even when there is· no actual conflict or appearance of 

conflict from the activity itself. 

DHS also premises its proposed prior approval requirement 

on its belief that review is necessary to ensure that employees 

do not engage in activities that adversely affect agency 

operations or create the appearance of impropriety. !d. But 

DHS can accomplish this objective by specifying the types of 

activities that would have an adverse effect, based on an actual 

or perceived conflict with the mission of the individual 

component of DHS. Indeed, DHS has done that to some extent in 

the proposed regulations. See proposed rules 5 C.F.R. 

§§ 4601.104-107. That list can be amplified, as necessary, by 

individual components in instructions issued to their employees. 

The result would be clear communication to employees as to 

activities deemed to conflict with agency operations, without 

the imposition of the burden of a prior approval requirement. 

II. The Proposed Definition of Outside Employment Is 

Too Broad 

NTEU notes with approval that DHS excludes some forms of 

outside activities from the definition of "outside employment" 

in the proposed 5 C.F.R. § 4601.10l(d) (2). These exceptions 

include participating in the activities of nonprofit charitable, 
Ms. Ferne L. Mosley 

December 12, 2011 

Page 3 of 7 

religious, professional, and civic organizations. The list of 

excepted activities is, however, insufficient. It should be 

longer. At a minimum, any activity on behalf of nonprofit 

organizations should be excluded, even if the activity is 

compensated. And all outside employment in positions unrelated 

to an employee's official duties or the mission of an employee's 

DHS component should also be excluded. 

There is no reason to have an all-encompassing definition 

of "outside employment." The expressed purpose of the proposed 

regulations is to prevent federal employees from engaging in 

activities that "could cause a reasonable person to question an 

employee's impartiality and objectivity. " 76 Fed. Reg. at 

63206. But, under the proposed definition of outside 

employment, any kind of employment for compensation as well as 

certain uncompensated activity on behalf of some nonprofit 

organizations would trigger the approval requirement. Many 

federal employees work second jobs that could not possibly put 

into question these employees' impartiality or objectivity. For 

example, there is no reason to require a federal employee to 

seek permission before moonlighting as a waiter, a babysitter, 

or a camp counselor. There is equally no apparent government 

interest in writing done by employees in their personal capacity 

on topics unrelated to their official duties. Yet, the proposed 

regulations would require employees to seek prior approval for 

"any writing when done under an arrangement with another person 

for production or publication. " 76 Fed. Reg. at 63208 

(emphasis added) . 

The constitutional implications for requiring prior 

approval of writing and other expressive activity are discussed 

in section III, below. But regardless of the type of activity, 

a prior approval requirement would waste time and create 

unnecessary paperwork for agencies and employees. It would also 

unjustifiably violate the privacy of federal employees. NTEU 

can conceive of no legitimate reason for the government to 

require an employee to disclose her intent to take on a parttime job at Walmart in order to earn extra cash for the 

holidays. The most likely outcome of the requirement is to 

subject to discipline employees who fail to ask for prior 

approval because it never occurs to them that disclosure of such 

insignificant employment is necessary. 

Accordingly, the definition of "outside employment" should 

be narrowed so that an employee is required to seek prior 

approval only when the outside activities relate to the subject 
Ms. Ferne L. Mosley 

December 12, 2011 

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matter of the employee's official duties and pose a potential 

conflict. 

III. The Prior Approval Requirement For Writing, Speaking, 

Teaching, and Political Activity Raises Serious 

Constitutional Concerns 

The prior approval requirement burdens the First Amendment 

rights of federal employees who seek outside employment as 

speakers, teachers, or writers or those who would engage in 

lawful political activity. The approval requirement completely 

bars this expressive activity for as long as the approval 

process lasts. Even if approval is ultimately granted, the 

delay caused by the approval process potentially destroys the 

immediacy and newsworthiness of an article or speech. Even more 

fundamentally, the approval requirement inhibits expressive 

activity. Many employees are understandably hesitant to reveal 

the scope of their expressive activities to management and might 

censor that activity instead of pursuing formal agency approval. 

Under the proposed definition of outside employment, all 

DHS employees (i.e., over 200,000 people) would need to obtain 

prior approval for almost any expressive activity undertaken for 

compensation, including articles or speeches on matters of 

public concern unrelated to employees' positions or the mission 

of DHS. For such a restraint on speech to be constitutional, 

the government's interests in suppressing the speech must 

outweigh the interests of "potential audiences and a vast group 

of present and future employees in a broad range of present and 

future expression." DHS has offered nothing to suggest that it 

could meet this standard, especially for speech unrelated to 

employee duties. Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. 

2004) (quoting United States v. NTEU, 513 U.S. 454, 468 (1994)) 

(invalidating a prior approval requirement, and indicating that 

it constituted a prior restraint). Indeed, it is highly likely 

that even a prior approval requirement limited to expressive 

activity related to employees' official duties would be 

unconstitutional. See Weaver v. U.S. Information Agency, 

87 F.3d 1429, 1432, 1436 (D.C. Cir. 1996) (indicating that a 

prior approval requirement for writing about matters of 

"official concern" to the employer would "raise serious 

constitutional issues"). 

It is further important to point out that the proposed 

regulations appear to burden employees' right to engage in 

political activity protected by the Hatch Act, and thus 
Ms. Ferne L. Mosley 

December 12, 2011 

Page 5 of 7 

contravene the First Amendment. 1 The Hatch Act expresses 

Congress' intent that employees should be "encouraged" to· 

participate in political activity. See 5 U.S.C. § 7321. For 

example, under regulations implementing the Hatch Act, "[a]n 

employee may . [r]un as a candidate in a non-partisan 

election." 5 C.F.R. § 734.206. DHS's proposed approval 

requirement would probably require an employee to seek approval 

prior to running for such an office--and would bar an employee 

from taking any steps for the duration of the approval process. 

If approval were delayed, it could effectively foreclose an 

employee from running. The process would also have a chilling 

effect on other permissible Hatch Act activities, as many 

employees are hesitant to reveal their personal political views 

and activist inclinations to management. Accordingly, to the 

extent that the proposed regulations burden employees' right to 

engage in political activity permitted by the Hatch Act, they 

raise serious First Amendment concerns. 

For the foregoing reasons, the definition of outside 

employment must be narrowed to make it clear that that employees 

need not seek prior approval to participate in permissible Hatch 

Act activities or to write, speak, or teach on matters of public 

concern. 

IV. If, Despite NTEU's Strenuous Objections, DHS Implements 

a Prior Approval Requirement, the Approval Process Must 

Contain a Deadline and Pre-established Criteria 

A. If, despite NTEU's strenuous objections, a prior 

approval process is implemented, the regulations must modify the 

standard for approval in proposed 5 C.F.R. § 4601.103(b). 

Instead of specifying that approval shall be granted only upon a 

determination that the outside employment is not expected to 

involve prohibited conduct, it should specify that approval 

shall be granted unless there is a showing that it will involve 

1 DHS proposes to exclude from the definition of "outside 

employment" unpaid activity on behalf of a nonprofit "public 

service" or "civic organization." Sec. 4101.101(d) (2). It is 

unclear whether that exception encompasses the running for and 

holding of nonpartisan political office or participation in the 

management of a political office or campaign, all activities 

that are lawful for most executive branch employees under the 

Hatch Act. See 5 C.F.R. §§ 734.204-207. In any event, it is 

clear that any individual who received compensation for such 

service would be engaged in outside employment under the 

proposed definition. 
Ms. Ferne L. Mosley 

December 12, 2011 

Page 6 of 7 

prohibited conduct. See generally Williams v. IRS, 919 F.2d 

745, 747 (D.C. Cir. 1990) (upholding regulations that required 

agency officials to approve outside employment requests by IRS 

employees so long as the outside employment would not involve 

resolving tax issues; present any apparent conflict of interest; 

create any opportunity for official information to be improperly 

used; or adversely affect the employee's performance of his or 

her official duties) . 

B. Any regulations must also provide a deadline by which a 

DHS component must approve or deny an employee's outside 

employment request. Although the proposed regulations allow DHS 

components to "issue instructions or a manual governing the 

submission of requests for approval," there is no requirement 

that individual components include deadlines for themselves to 

act on those requests. We note that the collective bargaining 

agreement between CBP and NTEU includes time frames for CBP 

action on requests, but an obligation to adopt such time frames 

should be imposed on all DHS components. 

An employee may have a small window of time to accept a job 

offer, or may have an urgent need to begin earning a second 

paycheck, especially in today's economy. Without a deadline, 

DHS components could take months or longer to consider outside 

employment requests, and employees will never be certain when 

their requests will be reviewed--or whether they will be 

reviewed at all. This would be particularly troubling should 

prior approval or even prior review be required of teaching, 

speaking, or writing that is related to time-sensitive topics. 

For example, if an employee sought to publish an article 

predicting the outcome of an election, a prior approval process 

could prevent the article's publication until after that 

election occurred. Such a delay would amount to censorship. 

Accordingly, DHS should require its components to respond 

to outside employment requests within a short time frame. 

Uniform deadlines will ensure that every DHS component reviews 

outside employment requests in a timely manner. Requests that 

are not responded to within this time frame should be deemed 

approved. 

c. If, despite our comments, DHS implements an approval 

requirement, DHS should require its components to establish 

standardized criteria so that only truly improper outside 

employment is prohibited. The proposed regulations state that 

approval may not be granted when "the outside employment is not 

expected to involve conduct prohibited by statute or Federal 
Ms. Ferne L. Mosley 

December 12, 2011 

Page 7 of 7 

regulation. " Proposed 5 C.F.R. § 4601.103(b). This 

"[s]tandard for approval" provides practically no guidance to 

DHS components or employees. 

Without pre-established criteria, ethics officers are more 

likely to act inconsistently or arbitrarily, and employees will 

not be able to predict whether an outside employment request 

will be approved. DHS components should be required to approve 

every outside activity that does not adversely affect DHS. 

NTEU thanks DHS for the opportunity to submit these 

comments. Please do not hesitate to contact us if you require 

any further elaboration of these views. 

Sincerely, 

~ .. )A.~~ Colleen M. Kelley 

National President