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Government of the District of Columbia MEMORANDUM FROM: Darryl G. Gorman, Senior Deputy Corporation Counsel for the Legal Counsel Division DATE: May 25, 2000 SUBJECT: Ethics Inquiry Concerning the Use of District Employees for Lobbying Activities Related to the School Governance Referendum (AL-00-311) This is in response to your oral request for advice earlier today. The questions, presented to Ms. Pollie H. Goff, Assistant Corporation Counsel, Legal Counsel Division, generally concern the lawfulness of District government employees performing functions in support of the forthcoming school governance charter referendum scheduled for June 27, 2000. The referendum is being conducted pursuant to the District's charter-amending process and will present the voters with a non-partisan opportunity to state their preference with regard to school board governance. You have asked whether, and under what circumstances, District government employees may perform activities in support of the referendum during their normal work hours. (There is no issue concerning non-work hours, since employees are clearly free to engage in political activities during non-work hours). You have described the anticipated activities as including such things as: (1) get-out-the-vote campaigns; (2) participating in telephone polls; (3) holding meetings in government offices; (4) using government supplies (copiers, computers, paper, etc.); (5) participating in discussion groups, etc. . You have also asked whether the Mayor could accept a poll or other research from a private individual or group for his use regarding the school governance referendum. The answers to these questions require consideration of the Hatch Act (5 U.S.C. §7321 et seq.), the Antideficiency Act (31 U.S.C. §1341), section 446 of the District of Columbia Home Rule Act (Home Rule Act), approved December 24, 1973 (87 Stat. 801; D.C. Code §10233 (a) (3) (1999 Repl.), and the District's Employee Conduct rules (Chapter 18 of the District Personnel Manual (DPM)). CONCLUSIONSHaving reviewed applicable law and regulations concerning the stated concerns, this Office has reached the following conclusions: 1. The Hatch Act does not prohibit District employees from participating in activities concerning the school governance referendum given the nonpartisan nature of the referendum and definition of "political activity" as defined in the Hatch Act regulations. 2. Employees should ensure that they do not violate relevant sections of the District's Employee Conduct rules set forth in Chapter 18 of the DPM. 3. The Mayor may accept a poll or research concerning the school governance from an individual or group as long as the item does not violate the provisions of section 1803.2 of the DPM. 4. Employees may participate in school governance referendum activities during their work hours if their authorized job functions involve lobbying for legislation, or, if they are detailed to an office whose authorized mandate involves lobbying and appropriated funds have already been authorized for those job functions or offices. If the authorized functions of the employee or the office do not involve lobbying, the employee or office may not be used for that purpose. 5. Office facilities and supplies may be used for lobbying to the same extent that the employee using the office of supplies is authorized to lobby. 6. Individuals not employed by the District government may not use District facilities or supplies to direct lobbying activities of District employees regarding the school governance referendum nor may they use District facilities or supplies for that purpose. ANALYSISThe Hatch Act regulates the political activities of government employees including those in the District government. 5 U.S.C. §7423 (a) (1) prohibits government employees from engaging in political activity while on duty. However, the controlling regulation, codified at 5 C.F.R. §734.101 defines "political activity" as "an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group." As, the school governance referendum is a non-partisan issue, it does not fall within the definition of proscribed "political activity." Further, 5 C.F.R. §734.302 (b) provides:
Accordingly, under the Hatch Act, District employees are permitted to participate in matters concerning the school governance referendum during work hours. Sections 1800.1-1800.3 and 1803.1 of the DPM also have some bearing on the ethical appropriateness of the employee's activities. In general, District employees are required to maintain a high level of ethical conduct in connection with the performance of their official duties. They are to refrain from-participating in any action which would adversely affect the confidence of the public in the integrity of the District government or in their conduct of their official duties (Sections 180011-1800.3). In addition, pursuant to section 1803.1 of the DPM, they are to avoid actions, whether or not specifically prohibited by Chapter 18 of the DPM, which might result in; or create the appearance of, any of the following: (a) Using public office for private gain; (b) Giving preferential treatment to any person; (c) Impeding government efficiency or economy; (d) Losing complete independence or impartiality; (e) Making a government decision outside official channels; or (f) Affecting adversely the confidence of the public in the integrity of the government. Therefore, to the extent District employees participate in any activities concerning the school governance referendum during duty hours, they must ensure that they do not violate any of the foregoing provisions. With respect to the poll or research on the school governance
referendum proposed to be given to the Mayor, section 1803.2 of the DPM provides, in part,
that a District employee shall not "...accept, either directly or through the
intercession of other, any gift, ... of value from person who singularly or in concert
with others: (a) Has, or is seeking to obtain, contractual or other business or financial
relations with the D.C. government; (b) Conducts operations or activities that are subject
to regulation by the D.C. government; or (c) Has an interest that may be favorably
affected by the performance or nonperformance of the employee's official
responsibilities." This Office no information about the proposed poll or research
except that it purportedly concerns the school governance issue in some manner. Therefore,
I must limit my response to this portion of your inquiry to simply state that a mere poll
or other research does not appear to fall within the definition of something of value.
However, if either of the provisions (a), (b), or (c) apply to the person or group who
conducted the research, there may arguably be a violation of the District's ethics
regulations. A more definitive answer to this question may be provided by the Ethics
Counselor for the District of Columbia (Ethics Counselor) upon the presentation of
additional facts. Given the fundamental limitation imposed by federal appropriations law (i.e., that appropriated funds may not be expended for purposes other than those expressly designated), the issue which is posed is whether government funds (i.e. the salaries of the involved District employees, and, the District's facilities and supplies) may be used for the purpose of lobbying for the passage of legislation. Lobbying activities concerning the school governance referendum would generally fall into two categories of types of messages: (1) general messages encouraging citizens to vote; or (2) specific messages encouraging citizens to vote in favor of the school governance referendum. My analysis, therefore, is in two parts dependent upon the message of the lobbyist and the otherwise assigned duties of the lobbyist. If the District employee's authorized duties involve lobbying on behalf of the Mayor for the passage of legislation, the employee may lobby the citizenry for passage of the referendum.2 However, if the employee's authorized duties do not involve lobbying for or against legislation, they are limited to activities aimed at a more general "get-out-the-vote" campaign.3 It should be noted, however, that the Mayor could detail an employee from his or her normal duties for the purpose of assisting with the school governance referendum activities. In that event, even an employee whose normal duties would not include lobbying for legislation would take on the employment characteristics of one whose normal duties involve lobbying. Accordingly, such a detailed employee would then be permitted to engage in the more specific campaigns aimed at encouraging votes in favor of the referendum. Federal appropriations law also provides that "[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law." (31 U.S.C. §1301 (a)). Therefore, even a marginal increase in incidental expenditures (e.g., for electricity used to light an office space, additional janitorial services for office space that would otherwise be unoccupied, increased use of paper, toner staples, etc.) for a non-appropriated purpose can run afoul of the law. However, as with the distinction made regarding employees, if the office space and supplies are those used by employees (including those detailed for this specific purpose) whose job duties involve legislative lobbying, the use of the office space and supplies for school governance referendum lobbying is, in the opinion of this Office, permissible. Further, a non-District employee may not direct District employees in the latter's lobbying efforts nor may they use District facilities or supplies in such lobbying activities. In addition to the foregoing, please be advised that: 1. No employee should be forced or coerced to express a particular view contrary to his or her personal belief. 2. All employees should be treated alike regardless of their opinions regarding the referendum. 3. Posters or other displays which support one side or another should not be displayed in the workplace, except for those places where specific viewpoints are normally expressed. In summary, dependent upon an individual employee's job status and assigned duties, District employees may lobby in general "get-out-the-vote" campaigns or more specific campaigns to encourage votes in favor of the proposed school governance referendum. Care should be taken to ensure compliance with all relevant requirements of federal appropriations law and District Employee Conduct regulations. Should you have questions regarding this memorandum, please feel free to contact either Ms. Goff at 724-5562 or me at 724-5493. Questions concerning the limitations of specific employees with respect to lobbying activities related to the school governance referendum should be directed to the Ethics Officer. 1. Section 112 of An Act Making consolidated appropriations for the fiscal year ending September 30, 2000, and for other purposes, approved November 29, 1999 (Pub. L. 106-113) provides that "[n]o part of the appropriation shall be used for publicity or propaganda purposes or implementation of any policy including boycott designed to support or defeat legislation pending before Congress or any State legislature." However, as the school governance referendum is not "pending" before Congress or a state legislature, this section is not applicable. 2. As the school governance referendum is to amend the District Charter, the public can essentially be viewed as the legislative body and thus those employees who would normally lobby the Council could lobby the public. Employees whose authorized duties involve lobbying the legislative body include the Mayor and his cabinet, agency heads, and may include certain high level employees of such offices as the Communications Office of the Mayor, the Office of Policy and Evaluation, and the Office of Intergovernmental Relations. In addition, the heads of independent agencies such as the D.C. Public Schools, and boards such as the Board of Education, are authorized to lobby as part of their normal job duties. We suggest that the Director of these offices review their statutory or administrative authority to confirm that lobbying for legislation is an authorized function. 3. Of course, this would not prohibit the employee, on his or her own time, from exercising his or her First Amendment rights by participating in activities of their choosing including those aimed at swaying citizens to vote a particular way. DGG/phg |
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