January 11, 2019
Moonlighting Feds Could Be Risking Their Jobs
Furloughed federal employees turning to other jobs need to be aware of federal ethics guidelines and agency rules a second job could violate
As the partial government shutdown enters a third week—and 800,000 federal employees miss a paycheck—nearly 400,000 furloughed employees face hard decisions, including whether to take a second job to make ends meet.
According to several attorneys interviewed by Nextgov, furloughed federal employees who moonlight risk running afoul of a hodge-podge of government ethics rules and varying interagency policies that could ultimately cost them their federal jobs or result in other consequences.
“They could be risking their jobs or other administrative charges against them,” said Debra Roth, managing partner at Shaw Bransford & Roth, who recommends furloughed feds immediately file for unemployment benefits. “Depending upon your job activity and the agency you work for, the agency may or may not allow you to have to outside employment.”
Most agencies, Roth said, require federal employees to get preapproval from a designated agency ethics officer to engage in outside employment. This process vets the secondary employment for issues such as conflicts of interest—imagine a Food and Drug Administration employee taking a job in the sector FDA regulates—and importantly protects the federal employee once approved.
But the partial government shutdown has furloughed most of the ethics officials, creating a conundrum.
“In most agencies, you’re going to need prior approval, and if you work in an agency where you need prior approval, how are you going to get it with all the designated agency ethics officers furloughed?” Roth said.
Ricardo Pitts-Wiley, a partner at The Federal Practice Group, said furloughed feds who already had prior approval to work outside their government jobs and those feds who work in agencies that don’t require prior approval to do so “are pretty safe.”
But Pitts-Wiley said the rules in agencies that require prior approval for outside employment “are black and white: Any kind of outside employment is prohibited.”
That includes gig economy jobs like driving for Uber or Lyft, which media reports suggest some feds have turned to.
The longer the shutdown goes, the more likely furloughed feds are to buck the risk and find a secondary income stream, even if they are technically prohibited from doing so. Once the government opens, employees who have violated ethics rules or policies could risk punishment, but Pitts-Wiley said he felt it would be “unlikely” that agency officials would enforce those rules “if people were, in fact, engaging in employment that did not conflict with their official duties.”
Pitts-Wiley said if agencies did elect to take disciplinary action against employees who violated rules by engaging in outside employment, those employees would have a defense in another set of blanket federal regulations: Section 5 of the Code of Federal Regulations, part 2635 subsection 809.
The regulations demand federal employees “shall satisfy in good faith their obligations as citizens, including all just financial obligations,” or in other words, to pay their debts.
“You actually have a conflict here with regulations,” Pitts-Wiley said.
Federal employees filing for unemployment should keep an eye on whether Congress approves back pay; after the 2013 shutdown, some feds had to return money. The Senate passed a bill Thursday to ensure furloughed workers receive back pay, and President Trump said he would sign it.
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