As explained in the general discussion of outside employment limitations, Subpart H of 5 C.F.R. part 2635 contains a number of provisions governing particular outside activities. One of those provisions concerns serving as an expert witness in a proceeding before a Federal court or agency.
Under 5 C.F.R. § 2635.805, an executive branch employee may not serve as an expert witness, for anyone except the United States, in a proceeding before a Federal court or agency in which the United States is a party or has a direct and substantial interest, unless the employee’ s participation is authorized by the Designated Agency Ethics Official (DAEO). This provision is intended to prevent an employee from using public office for the employee’s personal private gain or for the private gain of the party on whose behalf the employee would testify.
Note: Section 2635.805 applies differently to special Government employees.
In order to authorize an employee to serve as an expert witness in the circumstances specified in the regulation, the DAEO must determine that:
- the employee’s service as an expert witness is in the interest of the Government (after consulting with the agency representing the Government or with other agencies, as appropriate, if the United States is not a party); or
- the subject matter of the testimony does not related to the employee’s duties within the meaning of 5 C.F.R. § 2635.807(a)(2)(i).
Section 2635.805 does not prohibit an employee from serving as:
- a fact witness when subpoenaed by an appropriate authority; or
- an expert witness when doing so under an agency “housekeeping” regulation. (Many agencies have issued regulations that govern the circumstances and manner in which an employee may respond to demands for testimony or the production of documents. Such a regulation was upheld by the U.S. Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). (For example, see OGE’s “Touhy” regulation, at 5 C.F.R. part 2608.)
The information on this page is not a substitute for individual advice. Agency ethics officials should be consulted about specific situations.