TO: ALL PBGC EMPLOYEES

FROM: John Seal Acting Executive Director

SUBJECT: PBGC Pro Bono and Volunteer Services Policy

Pursuant to President Clinton’s Executive Order on civil justice reform directing agencies to develop programs to encourage pro bono and volunteer service by government employees, I have today signed the PBGC Policy Statement on Pro Bono Legal and Volunteer Services. This Policy Statement is intended to encourage PBGC employees to engage in pro bono legal and volunteer services by summarizing existing PBGC policies and rules on topics such as leave, conflicts of interest, and use of property. Each Department and Division Manager has a copy of the Policy Statement.

Given the significant unmet need for legal and other community services in the nation, this policy is being issued to encourage and support efforts by PBGC employees to provide pro bono legal and volunteer services within their communities that are consistent with applicable federal statutes and regulations governing conflicts of interest and outside activities. I encourage all PBGC employees to participate in pro bono legal and volunteer service.

Pro bono legal work and volunteer services cover many different types of activities of service to the community, performed without compensation. Examples of such legal services and volunteer work are assistance to persons of limited means or other disadvantaged persons, as well as assistance to charitable, religious, civic, community, governmental, health and educational organizations. PBGC does not seek to restrict the type of pro bono or volunteer activities in which employees engage, provided that such activities do not violate any statutory or regulatory restrictions as outlined in the Policy Statement.

All pro bono and volunteer service must comply with all conflict of interest statutes and regulations, ethics rules and all unauthorized practice of law provisions. These and other restrictions on the use of one’s official position and use of agency resources are set forth in more detail in the Policy Statement. The agency ethics staff is available to provide guidance to employees and facilitate pro bono and volunteer service.

Employees are encouraged to participate in volunteer and pro bono legal opportunities that can be accomplished outside their scheduled working hours. However, pro bono legal or volunteer activities may sometimes occur during work hours. Supervisors are urged to be flexible by granting leave to accommodate, where feasible, the efforts of their employees to do pro bono legal or volunteer work.

I know that many of you already are involved in volunteer services in your community or through programs here at the PBGC. Some of you already are providing much needed pro bono legal work. I hope that our policy encourages many more employees to participate.

 

1. PBGC Pro Bono Legal and Volunteer Policy
   
   The Policy. Given the significant unmet need for legal and other community services in the nation, it is the policy of the PBGC to encourage and support efforts by PBGC employees to provide pro bono legal and volunteer services within their communities that are consistent with applicable federal statutes and regulations governing conflicts of interest and outside activities. To this end, PBGC encourages employees to participate in pro bono legal and volunteer service.
   
   If you have questions about this policy, you should contact a PBGC ethics counselor. Currently, those ethics counselors are D. Bruce Campbell, Ray Forster, Andy Iserson, Holli Beckerman Jaffe, Roxanne Sieg, and Lelia Williams. Finally, although you are not required to obtain clearance before engaging in outside activity, we encourage you to consult with a PBGC ethics counselor prior to engaging in pro bono activity.
    
2. Definition of Pro Bono Legal and Volunteer Services
   
   Definition. Pro bono legal work and volunteer services are broadly defined to include many different types of activities, performed without compensation of any kind.
   1. Pro bono legal services. Pro bono legal services are those legal services performed by a lawyer without compensation and include, but are not limited to, the provision of legal services to:
      1. persons of limited means or other disadvantaged persons;
          
      2. charitable, religious, civic, community, governmental, health and educational organizations in matters which are designed primarily to address the needs of our communities or of persons of limited means or other disadvantaged persons, or to further their organizational purpose;
          
      3. individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights; or
          
      4. organizations, such as bar associations, whose aim is to improve the law, the legal system, or the legal profession.
          
   2. Volunteer services. Volunteer services are those activities, other than the practice of law, performed without compensation. They include, but are not limited to, the provision of services to:
      1. persons of limited means or other disadvantaged persons; or
          
      2. charitable, religious, civic, community, governmental, health and educational organizations in matters which are designed primarily to address the needs of our communities or of persons of limited means or other disadvantaged persons.
3. Limitations on Pro Bono Legal and Volunteer Services
   1. Compliance with Law and Regulation. An employee seeking to engage in any pro bono legal work or volunteer services must comply with the Standards of Conduct, 5 C.F.R. Part 2635, as well as other laws including the conflict of interest provisions, 18 U.S.C. §§ 201-209.
       
   2. Conflicts of Interest.
      1. General Standard. PBGC employees may not engage in pro bono legal or volunteer services that create or appear to create a conflict of interest with their work for the Government. Under the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. Part 2635 (the "Ethical Standards"), a conflict of interest generally exists where the services might involve an entity regulated by the agency or affected by the performance of the employee’s duties. Employees should not engage in pro bono or volunteer activities if the activity would:
         1. create an appearance that the employee’s official duties were performed in a biased or less than impartial manner, see 5 C.F.R. § 2635.502;
             
         2. create an appearance of official sanction or endorsement, see 5 C.F.R. § 2635.702(b); or
             
         3. require the recusal of the employee from significant aspects of the employee’s official duties. See 5 C.F.R. § 2635.802(b).
      2. 18 U.S.C. § 205. With limited exceptions, outside activities may not include the representation of third parties before the federal government, or in a matter in which the United States is a party or has a direct and substantial interest. See 18 U.S.C. § 205.
          
      3. Criminal Representation. PBGC attorneys are prohibited by statute from providing pro bono legal assistance in any case in which the United States is a party or has a direct and substantial interest -- which includes criminal defense representation where violations of federal law are alleged, or representation in federal court concerning appeals from state court criminal decisions where the appeal alleges violation of federal legal or constitutional rights. See 18 U.S.C. § 205.
          
      4. 18 U.S.C. § 203. Except in discharge of his or her official duties, a federal employee may not seek, receive, or agree to receive compensation for representational services rendered personally by that employee or by another, where the payment is for representational services before a department, agency, or court on a particular matter in which the United States is a party or has a direct and substantial interest.
          
      5. Responsibility for Conflicts Check. The PBGC employee must ensure that his or her volunteer services do not present a conflict of interest, and do not otherwise violate any applicable statute or regulation. PBGC’s ethics staff is available to assist employees in these determinations.
          
      6. Hatch Act Policy. Outside activity by PBGC employees must comport with the regulations implementing the Hatch Act Reform Amendments of 1993, 5 C.F.R. Part 734. Questions about the Hatch Act’s restrictions on political activity should be directed to a PBGC ethics counselor.
          
      7. Non-Representational Assistance. PBGC employees may provide non-representational assistance without compensation, such as assistance in filling out forms for persons seeking government benefits, and assistance in preparing tax returns, provided that the services comply with applicable statutes and regulations, and do not present a conflict of interest as addressed in Section III.B.
          
   3. Additional Considerations.
      1. Malpractice Coverage. Before agreeing to meet with or to accept a pro bono legal client, a PBGC attorney should determine whether the referring pro bono program or organization has a malpractice insurance policy which covers volunteer attorneys. The PBGC does not provide malpractice coverage for pro bono work.
          
      2. The District of Columbia Professional Licensing Fee. The D.C. Code has been amended to provide that members of the District of Columbia bar "engaged in the provision of legal services, on a pro bono basis solely or in combination with government service," are exempt from the requirement to pay the District of Columbia professional licensing fee of $250. D.C. Act § 10-304.
          
      3. Restrictions on the Unauthorized Practice of Law. Attorneys not licensed in the District of Columbia may not need to pay the District of Columbia licensing fee to engage in pro bono activity, but may only practice subject to the constraints of the District of Columbia’s local rule regarding the unauthorized practice of law. D.C. Court of Appeals Rule 49.
          
      4. Reimbursement for meals, lodging and travel expenses. Pro bono work is not part of an employee’s official duties, nor will PBGC reimburse an employee for expenses incurred in pro bono work. Generally, however, an employee may accept reimbursement of expenses for meals, lodging or travel, subject to the rules governing the acceptance of gifts contained in the Ethical Standards of 5 C.F.R. § 2635.
          
4. Use of Official Position or Public Office
   
   The Policy. PBGC employees who provide pro bono legal services or who participate in volunteer activities may not indicate or represent in any way that they are acting on behalf of the PBGC, or in their official capacity. The incidental identification of an employee’s position or office -- for example, when an office number and street address are not sufficient to ensure mail delivery or when receiving a telephone call -- is permitted.
   
   1. A PBGC employee may not use office letterhead, agency or office business cards, or otherwise identify himself or herself as a PBGC employee in any communication, correspondence, or pleading connected with pro bono legal activities or other volunteer services.
       
   2. A PBGC attorney is responsible for making it clear to the client, any opposing parties, or others involved in a pro bono case, that the attorney is acting in his or her individual capacity as a volunteer, and is not acting as a representative of, or on behalf of, the PBGC or the U.S. Government.
5. Use of Agency Resources
   1. Hours of Work. PBGC employees are encouraged to seek volunteer and pro bono legal opportunities that can be accomplished outside their scheduled working hours. However, pro bono legal or volunteer activities may sometimes occur during work hours. Supervisors are urged to be flexible and to accommodate, where feasible, the efforts of their employees to do pro bono legal or volunteer work by granting leave if workload so permits. Employees seeking to participate in pro bono legal or volunteer activities during work hours may be granted leave without pay or annual leave, or, in exceptional circumstances (where the work is in an area related to the employee’s work and engaging in the activity would enhance the employee’s value to the Corporation), administrative leave.
      
      When considering employee requests for leave to engage in pro bono legal or volunteer activities, supervisors should give due attention to the effect of the employee’s absence on office operations.
      
      The decision to grant an employee’s request to engage in pro bono legal or volunteer activities during hours of work may not be affected by a supervisor’s personal views regarding the substance of the pro bono activity.
       
   2. Use of Office Equipment and Resources. As a general rule, employees may use government property only for official business or as authorized by the government. See 5 C.F.R. § 2635.101(b)(9), .704(a). PBGC policy authorizes use of government office equipment and facilities and library materials for pro bono or volunteer services, provided there is only negligible cost to the government. Thus, an employee who is in leave status to perform pro bono or volunteer work may: (1) make local telephone calls; (2) use word processing equipment; and (3) send short local faxes.
      
      This policy permits use of equipment and facilities only if it involves negligible additional expense to the government -- such as electricity, ink, small amounts of paper, and ordinary wear-and-tear. When office computers, printers and copiers are used in moderation, there is only negligible additional expense to the government for electricity, ink and wear-and-tear. Such use, therefore, is authorized as long as only small amounts of paper (e.g., 5 sheets) are involved and as long as the use does not interfere with official business. Employees wishing to use more than a small amount of paper must provide their own.
      
      This policy does not authorize the use of commercial electronic databases when there is an extra cost to the government. On the other hand, research using the library’s books or microfiche would be authorized, as it involves no additional expense to the United States.
      
      The policy authorizes limited local telephone/fax calls, or calls that are charged to non-government accounts (e.g., personal telephone credit cards). Again, such use must not interfere with official business, and supervisors should be consulted if there is any question over whether such use is in fact "limited."
      
      This policy, which allows use of governmental office and library equipment and facilities for pro bono or volunteer services provided there is only negligible cost to the government, does not override statutes, rules or regulations governing the use of specific types of government property, such as electronic mail, and 41 C.F.R. (FPMR) § 201-21.601 (governing the ordinary use of long-distance telephone services). This policy may be revoked or limited at any time by any supervisor for any business reason. Any employee who has questions about the application of this Section to any particular situation should consult his or her supervisor.
      
      In using government property, employees must be mindful of their responsibility to protect and conserve such property and to use official time in an honest effort to perform official duties. See 5 C.F.R. § 2635.101(b)(9), .704(a), .705(a). This policy does not authorize use of PBGC equipment for personal (non-pro bono or non-volunteer services) activities.
       
   3. Clerical Support. Pro bono legal and volunteer work are not official duties, and may not be assigned to or otherwise required of support staff. While support staff may wish to volunteer their services, employees should be careful not to appear or be coercive in asking subordinate employees if they will volunteer to help perform pro bono legal or volunteer services, i.e., the typing of briefs or documents. See 5 C.F.R. § 2635.705.
       
6. Disclaimer
   
   The Policy Statement is intended only to encourage increased pro bono legal and volunteer activities by PBGC employees, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the PBGC, the United States, its agencies, its officers, or any person.
   
   The United States and the PBGC will not be responsible in any manner or to any extent for any negligent or otherwise tortious acts or omissions on the part of any PBGC employee engaged in any pro bono or volunteer activity. While the PBGC encourages pro bono and volunteer activities by its employees, the PBGC exercises no control over the services and activities of employees engaged in pro bono or volunteer activities nor does it control the time or location of any pro bono or volunteer activity. Each employee is acting outside the scope of his or her employment whenever the employee participates, supports or joins in any pro bono or volunteer activity.