June 26, 1995
DO-95-026
MEMORANDUM
TO: Designated Agency Ethics Officials
FROM: Stephen D. Potts
Director
SUBJECT: Sanjour v. Environmental Protection Agency
On May 30, 1995, the United States Court of Appeals for the
District of Columbia Circuit, sitting en banc, issued its decision
in Sanjour v. Environmental Protection Agency (No. 92-5123). The
decision sustains a First Amendment challenge to a portion of
5 C.F.R. § 2635.807, the section within the Standards of Ethical
Conduct entitled "Teaching, speaking, and writing."
For your convenience, the court's decision is available on The
Ethics Bulletin Board System (TEBBS).
The case was brought by two Environmental Protection Agency
employees who sought to accept travel reimbursements for making
speeches in their private capacities concerning the subject matter
of their Government work. The Standards of Conduct provide that,
subject to an exception for teaching certain courses, "an employee
. . . shall not receive compensation from any source other than the
Government for teaching, speaking or writing that relates to the
employee's official duties." §2635.807(a). "Compensation" is
defined to include travel reimbursements. § 2635.807(a)(2)(iii).
Teaching, speaking and writing "related to duties" is defined to
include teaching, speaking, and writing where "the subject of the
activity deals in significant part with: (1) [a]ny matter to which
the employee is assigned or to which the employee had been assigned
during the previous one-year period; [or] (2) [a]ny ongoing or
announced policy, program or operation of the agency."
§ 2635.807(a)(2)(i)(E)(1)-(2). Accordingly, under the Standards,
the employees were prohibited from accepting the offered travel
expense reimbursements.1
__________________
1 The prohibition was also set forth in 5 C.F.R.
§ 2636.202(b), an earlier synopsis of the policy later refined in
§ 2635.807, as well as in an advisory letter issued by the
Environmental Protection Agency to its employees.
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Designated Agency Ethics Officials
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The employees challenged the regulation on First Amendment
grounds. The district court dismissed the challenge, 786 F. Supp.
1033 (D.D.C. 1992), and a panel of the Court of Appeals for the
D.C. Circuit affirmed. 997 F.2d 1584 (D.C. Cir. 1993). The court
of appeals, however, subsequently vacated the panel decision and
set the case for rehearing en banc. 997 F.2d 1584 (D.C. Cir.
1993). On rehearing, the court, as indicated, sustained the
employees' First Amendment challenge and held invalid the
prohibition on receipt of travel reimbursements for speech "related
to duties" under § 2635.807(a)(2)(i)(E)(1)-(2). The court did not
address the other definitions of the term "related to duties" under
§ 2635.807(a)(2)(i) and it explicitly reserved judgment on the
constitutionality of the rule as applied to "senior executive
employees."
We believe that Sanjour was wrongly decided and that it
adversely impacts the ability of the Federal ethics program to
ensure conduct by Federal employees consistent with high ethical
principles, especially the principle that employees shall not use
public office for private gain. The authority to decide whether to
seek further review in the Supreme Court, however, resides with the
Justice Department. The Department has until August 28 to file a
petition for writ of certiorari and this time period may be
extended by the Supreme Court.
We have been advised by the Department of Justice that the
relief granted by the court -- invalidation of § 2635.807 insofar
as it prohibits reimbursement for travel expenses for unofficial
speech about Government work by non-"senior" employees -- applies
only to the named plaintiffs in Sanjour because the court did not
certify a class including as plaintiffs persons in addition to
those who brought the case. For the present, and pending further
developments in the case that would foreclose the possibility of
further review of the court's decision, we have decided, as a
matter of policy, not to extend this relief to other Government
employees. If the Solicitor General decides not to seek Supreme
Court review or if the Supreme Court declines to review the
decision, we will reevaluate this policy.
For the time being, and until further notice, we ask that you
advise employees that § 2635.807 remains in effect as to them in
all of its applications, including the prohibition on receipt of
compensation, including travel expense reimbursement, for teaching,
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Designated Agency Ethics Officials
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speaking, and writing activities that deal in a significant way
with current or recent assignments or with current programs,
policies, or operations of their agencies.2
We will advise you of further developments in the case as they
occur.
_________________
2 Part-time or intermittent "special Government employees," as
before, are subject to less restrictive standards. See
§ 2635.807(a)(2)(i)(E)(4). Other parts of § 2635.807, not
addressed by the court in Sanjour, naturally also remain in effect.
Thus, employees continue to be prohibited from accepting
compensation, including travel expense reimbursement, for teaching,
speaking, and writing activities that are "related to duties" as
that term is defined in § 2635.807(a)(2)(i)(A)-(D). High-level
noncareer employees are subject to additional restrictions under
§ 2635.807(a)(2)(i)(E)(3).