# NTEU

TheNationalTreasuryEmployeesUnion

VIAE-MAIL (ferne.mosley@dhs.gov) AND FIRST CLASS MAIL

Ms. Ferne L. Mosley DeputyEthics Official OGC MAIL STOP 0485 Department of Homeland Security 245 MurrayLane Washington, DC 20528-0485

RE: DHS-2008-0168

DearMs. Mosley: December 12, 2011

The National TreasuryEmployees Union (NTEU) submits these comments in response to the notice published in the Federal Registeron October 12, 2011 (76 Fed. Reg. 63206), inwhich 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 obtainapproval before taking on certainoutside 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 thresholdmatter, NTEU believes that the proposedprior 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 shouldbe required to approve outside employment

I750HStreet,N.W.•Washington,D.C.20006•(202)572-5500Ms. 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 timelymanner and base theirdecisions onpre-established criteria.

I. The PriorApproval 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 itsproposed requirement largelyon what it perceives as a need toprotect 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 activitywould 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. Theywill voluntarily seek advice and approval if theyhave any doubts. Imposing a mandatoryprior approval requirement is paternalistic and unnecessary. It also subjects employees to the added risk of discipline for a mere failure to seek approval, evenwhen there is·no actual conflict or appearance of conflict from the activity itself.

DHS alsopremises itsproposedprior approval requirement

on its belief that review is necessaryto 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 objectiveby specifying the types of activities that wouldhave an adverse effect, basedon an actual

orperceived 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 canbe amplified, as necessary, by individual components in instructions issued to their employees. The result wouldbe 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 ProposedDefinitionof Outside Employment Is Too Broad

NTEU notes with approval that DHS excludes some forms of outside activities from the definition of "outside employment" inthe proposed 5 C.F.R. § 4601.10l(d)(2). These exceptions includeparticipating 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 shouldbe longer. At a minimum, any activityonbehalf of nonprofit organizations shouldbe excluded, even if the activity is compensated. And all outside employment inpositions 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 expressedpurpose of the proposed regulations is to prevent federal employees from engaging in activities that "could cause a reasonable person to question an employee's impartialityand objectivity. " 76 Fed. Reg. at 63206. But, under the proposed definitionof outside employment, any kind of employment for compensation as well as certainuncompensated activityonbehalf of some nonprofit organizations would trigger the approval requirement. Many federal employees work secondjobs that couldnot possiblyput into question these employees' impartiality or objectivity. For example, there is no reason to require a federal employee to seekpermissionbefore moonlighting as a waiter, a babysitter,

or a camp counselor. There is equallyno apparent government interest inwriting done byemployees in theirpersonal capacity

ontopics unrelated to their official duties. Yet, the proposed regulations would require employees to seekprior approval for "anywritingwhen done under an arrangement with anotherperson for production orpublication. " 76 Fed. Reg. at 63208 (emphasis added)

.
The constitutional implications for requiringprior 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 unnecessarypaperwork for agencies and employees. It would also unjustifiablyviolate the privacyof federal employees. NTEU

canconceive 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 seekprior approval onlywhen the outside activities relate to the subjectMs. Ferne L. Mosley December 12, 2011 Page 4 of 7

matter of the employee's official duties andpose a potential conflict.

III. The PriorApproval Requirement ForWriting, Speaking, Teaching, and PoliticalActivityRaises Serious Constitutional Concerns

The prior approval requirement burdens the First Amendment rights of federal employees who seek outside employment as speakers, teachers, orwriters 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 ultimatelygranted, the delay causedby the approval process potentiallydestroys the immediacy and newsworthiness of an article or speech. Even more fundamentally, the approval requirement inhibits expressive activity. Many employees are understandablyhesitant to reveal the scope of their expressive activities tomanagement andmight
censorthat activity instead of pursuing formal agency approval.

Under the proposeddefinition of outside employment, all DHS employees (i.e., over 200,000 people) would need to obtain prior approval for almost any expressive activityundertaken for compensation, including articles or speeches onmatters of public concernunrelated to employees' positions or the mission of DHS. For such a restraint on speech tobe constitutional, the government's interests in suppressing the speechmust outweigh the interests of "potential audiences and a vast group ofpresent and future employees in a broad range of present and future expression." DHS has offered nothing to suggest that it couldmeet this standard, especially for speechunrelated to employee duties. Crue v. Aiken, 370 F.3d 668, 678 (7th Cir. 2004) (quotingUnited States v. NTEU, 513 U.S. 454, 468 (1994)) (invalidating a prior approval requirement, and indicating that it constituted a priorrestraint). Indeed, it is highly likely that even a prior approval requirement limited to expressive activity related to employees' official duties wouldbe unconstitutional. See Weaver v. U.S. InformationAgency, 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 employerwould "raise serious constitutional issues").

It is further important topoint out that the proposed regulations appear toburden employees' right to engage in political activityprotectedby the HatchAct, and thusMs. Ferne L. Mosley December 12, 2011 Page 5 of 7

contravene the First Amendment. 1 The HatchAct expresses Congress' intent that employees shouldbe "encouraged" to· participate inpolitical activity. See 5 U.S.C. § 7321. For example, under regulations implementing the HatchAct, "[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 wouldprobablyrequire an employee to seek approval prior to running for such an office--andwouldbar 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. Theprocess would also have a chilling effect on otherpermissible HatchAct activities, as many employees are hesitant to reveal theirpersonal political views and activist inclinations tomanagement. Accordingly, to the extent that the proposed regulations burden employees' right to engage inpolitical activitypermittedby the HatchAct, they raise serious First Amendment concerns.

For the foregoing reasons, the definitionof outside employment must be narrowed tomake it clear that that employees need not seekprior approval toparticipate inpermissible Hatch Act activities or to write, speak, or teach on matters of public
concern.

IV. If, DespiteNTEU's Strenuous Objections, DHS Implements
a PriorApproval Requirement, theApproval Process Must Containa Deadline andPre-established Criteria

A. If, despite NTEU's strenuous objections, a prior approval process is implemented, the regulations must modify the standard for approval inproposed 5 C.F.R. § 4601.103(b). Insteadof specifying that approval shall be grantedonlyupon a determination that the outside employment is not expected to involve prohibited conduct, it should specify that approval shall be grantedunless there is a showing that it will involve

1 DHS proposes to exclude from the definition of "outside employment" unpaid activityonbehalf 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 nonpartisanpolitical office orparticipation in the management of a political office or campaign, all activities that are lawful for most executive branchemployees under the HatchAct. See 5 C.F.R. §§ 734.204-207. In any event, it is clear that any individual who received compensation for such service wouldbe engaged in outside employment under the proposed definition.Ms. Ferne L. Mosley December 12, 2011 Page 6 of 7

prohibited conduct. See generallyWilliams 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 ordeny an employee's outside employment request. Although the proposed regulations allowDHS components to "issue instructions or a manual governing the submissionof requests for approval," there is no requirement that individual components include deadlines for themselves to act on those requests. We note that the collectivebargaining agreement between CBP andNTEU includes time frames for CBP actionon requests, but an obligation to adopt suchtime frames shouldbe imposed on all DHS components.

An employee may have a small window of time to accept a job offer, ormayhave 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 neverbe certainwhen their requests will be reviewed--or whether theywill be reviewed at all. This wouldbeparticularly troubling should prior approval or evenprior reviewbe required of teaching, speaking, orwriting that is related to time-sensitive topics. Forexample, if an employee sought topublish an article predicting the outcome of an election, a prior approval process couldprevent the article's publicationuntil after that electionoccurred. Such a delaywould 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 everyDHS component reviews outside employment requests in a timelymanner. Requests that

are not responded to within this time frame shouldbe 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 grantedwhen "the outside employment is not expected to involve conduct prohibitedby statute or FederalMs. 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 practicallyno guidance to DHS components or employees.

Without pre-established criteria, ethics officers are more likelyto act inconsistentlyor arbitrarily, and employees will not be able topredict whether an outside employment request will be approved. DHS components shouldbe required to approve every outside activity that does not adversely affect DHS.

NTEU thanks DHS for the opportunityto submit these comments. Please do not hesitate to contact us ifyou require any further elaboration of these views.
Sincerely,



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**)A.~~** ColleenM. Kelley National President