LEGAL GUIDANCE

ETHICS ISSUES IN THE BRAC
PROCESS

With the Department of Defense downsizing
its defense missions, the Base Closure and
Realignment Commission (BRAC) has had a
major impact on both military and civilian
personnel throughout the United States.
Below are frequently asked questions and
answers involving Ethics issues in the BRAC
process.

Question 1: May a federal employee
(including military personnel) write or lobby
Congress with respect to BRAC?

Answer: Yes, ifin his or her personal capacity
(off-duty, not using Government resources,
not disclosing non-public information, and not
using his or her position or authority).

Question 2: May a federal employee join a
local (non-governmental) group that seeks to
influence BRAC?

Answer: Yes, in his or her personal capacity,
and, only to the extent that the employee's
activities do not "compromise his or her
efficiency or integrity as an employee or the
neutrality, efficiency, or integrity of the
agency." (5 C.F.R. 734.203.) In this respect,
it is likely that personal actions by the
installation commanding officer are more
circumscribed than those of a less prominent
base employee. Of course, official time,
Government property, position or title, or non-
public information may not be used.

Question 3: May a federal employee be
assigned, as part of his or her official duties, as
liaison to a local group that seeks to influence
BRAC?

Answer: Yes. Section 3-201 of DoD 5500.
7-R, Joint Ethics Regulation, permits
assignment of federal employees to non-

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Federal entities when there is a significant and
continuing Department of the Navy (DON)
interest to be served by such representation.
These employees represent the DON's official
interests and should guard against disclosing
non-public information, rendering preferential
treatment to the group, or taking sides in
disputes. In a liaison role, federal employees
cannot vote or participate in the management
of the group.

Question 4: May the federal employee vote or
participate in management of such a group?
Answer: Possibly. Section 3-202 of the Joint
Ethics Regulation permits federal employees to
participate in their official DON capacities in
the management of non-Federal entities if
authorized by SECNAV. Alternatively,
federal employees may also take a
management role in their personal capacities.
However, as the federal employee takes a
more visible or prominent role in the group,
the likelihood that such activities may
compromise the employee's efficiency or
integrity or, the neutrality of the agency, also
increases.

Question 5: May active-duty military
personnel accept positions on a "Local
Redevelopment Authority" that is a part of the
local or state government?

Answer: If the DON organization or
command desires to establish an official liaison
with the Redevelopment Authority, it may
assign personnel to carry out liaison duties
only, in accordance with Section 3-201 of the
Joint Ethics Regulation. If the DON
organization or command desires to appoint a
military officer to a management position on
the Redevelopment Authority (assuming a
position is offered), it must ensure that the
position is nota "civil office" as defined by
10 U.S.C. 973, which prohibits active duty
officers from holding civil office in federal,

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LEGAL GUIDANCE (CONT.)
a OT

state, or local governments. Whether such an
appointment qualifies as a "civil office"
depends upon the sovereign powers delegated
to the authority, whether the position was
created by the legislature, and whether definite
duties are imposed by law on the office. Since
these cases are very fact-specific, referral of
these cases to counsel is strongly
recommended. Finally, if the active-duty
officer accepts a position on the local
Redevelopment Authority in his or her
personal capacity, the same civil office
prohibition and analysis applies.

Question 6: May a federal employee take
official action with respect to a request from a
group in which the employee is a leader or
member?

Answer: No, 18 U.S.C. 208 prohibits federal
employees from taking official action with
respect to an organization in which he or she
is an officer or, director. In addition, 5 C.F.R.
2635.502 prohibits federal employees from
taking official action with respect to an
organization in which they are active
participants.

Question 7: May a federal employee, as a
member of a citizens or private group,
negotiate or represent the interests of the
group before the BRAC or a federal agency?
Answer: No, 18 U.S.C. 205 prohibits federal
employees from representing another before a
department or federal agency, whether the
employee is compensated or not.

Question 8: May a federal employee
contribute money to the group?

Answer: Yes, in the employee's personal
capacity.

Question 9: May a federal employee solicit
funds for the group?
Answer: Yes, as long as the solicitation is

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carried out in his or her personal capacity, not
in the workplace, not from a subordinate or
prohibited source, and without using the
employee's position, official title, or authority.
(5 C.ER. 2635.808, Section 3-300 of Joint
Ethics Regulation.)

Question 10: May a federal employee be an
officer or spokesperson of the organization?
Answer: Yes, in a personal capacity.
However, the employee cannot use his or her
position or title to imply government sanction
or endorsement, (5 C.F.R. 2635.702); cannot
use non-public information, (5 C.FR.
2635.703); cannot use government property or
official time (5 C.F.R. 2635.704, 705); and
cannot engage in outside activities that conflict
with his or her official duties (5 C.FR.
2635.802).

NMLC point of contact is Mr. John R. Osing,

Jr., Office of the Counsel, who may be reached
at (301) 619-2157 or by DSN at 343-2157.

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