Office of Government Ethics
1201 New York Avenue, NW., Suite 500
Washington, DC 20005-3917
June 12, 1997
TO: All OGE Employees
FROM: Stephen D. Potts
SUBJECT: OGE Policy on Volunteer and Pro Bono Activities by OGE
I am pleased to announce the institution of a new policy here at the Office of Government Ethics (OGE) concerning volunteer and pro bono activities by OGE employees. In keeping with the goals of Executive Orders 12820 and 12988, OGE encourages employees to participate voluntarily in direct and consequential community service. These services include pro bono legal and other volunteer activities to be performed by employees on their own time, in accordance with applicable statutes, regulations and rules of conduct. For those of you who are interested in becoming involved in volunteer activities, but are uncertain of an outlet, the Office of Administration (OA) will retain lists of organizations that employees may use as a starting point. The lists were provided by Greater D.C. Cares and the Points of Light Foundation; they include lists of volunteer centers that employees may contact to find volunteer opportunities in Washington, DC or in their home area. OA will also retain a list of organizations that the Department of Justice provides to its employees seeking opportunities to engage in pro bono service. Employees should not feel that their potential volunteer or pro bono opportunities are limited to those organizations and activities on these lists; however, they should feel free to explore other options if so desired. OGE does not seek to restrict the types of volunteer activities in which employees may engage in their free time, provided that the activities do not violate any statutory or regulatory restrictions.
Volunteer Activities 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;
2. charitable, religious, civic community, governmental, health and educational organizations in matters which are designated primarily to address the needs of persons of limited means or other disadvantaged persons, or to further their organizational purpose; or
3. individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights.
Pro Bono Activities are those legal services performed without compensation and include, but are not limited to, the three categories listed above for volunteer services. They may also include legal services performed without compensation to activities for improving the law, the legal system, or the legal profession.
Limitations on Volunteer Activities
As you all know, there are certain restrictions that apply to outside activities by executive branch employees. These restrictions continue to apply even if the activity is a voluntary and/or charitable one. OGE employees therefore may not engage in volunteer or pro bono activities that create or appear to create a conflict of interest with their work here at OGE. Under the Standards of Ethical Conduct for Employees of the Executive Branch (Standards), 5 C.F.R. part 2635, employees are prohibited from engaging in activities that would:
1. require the recusal of the employee from significant aspects of the employee's official duties (§ 2635.803(b));
2. create an appearance of official sanction or endorsement
(§ 2635.702(b)); or
3. violate any other conflict of interest statute or regulation, such as the restriction of 18 U.S.C. § 205 that generally bars employees from representing third parties before the Federal Government.
If you are unsure about the application of these restrictions to a proposed volunteer or pro bono activity, you should consult with OGE's Designated Agency Ethics Official (the Deputy Director).
Use of Official Property
Under the Standards, an employee may only use Government property for official business or as authorized. 5 C.F.R. § 2635.704. OGE employees are hereby authorized to use OGE equipment and facilities in connection with their volunteer and pro bono activities, if the use does not interfere with the regular business of the Office and incurs negligible additional expense to the Government. This would include such things as electricity, ink, very small amounts of paper, and ordinary wear and tear. Employees wishing to use more than a small amount of paper must provide their own or pay its cost. Limited local phone and FAX calls are also permitted, subject to the same considerations. Legal research conducted through publications in the OGE library on an employee's own time, for example, would involve negligible expense to the Government. Use of the LEXIS legal research database, however, would not be permitted as such use would incur costs to the Government each time it is used. If there is any question as to whether a particular use would be considered "negligible," you should contact your supervisor. Use of E-mail and the internet in connection with volunteer activities must be consistent with OGE's policy on use of these technologies. That policy will be issued separately.
Use of Official Position
Any volunteer activity in which an employee participates would be in his individual capacity. It is therefore prohibited to indicate or represent in any way that such activity is on behalf of the Government, or in the employee's official capacity. Employees cannot use OGE letterhead or business cards that identify them as OGE employees, nor can they identify themselves as OGE employees in communication or correspondence undertaken in connection with their chosen volunteer activity. Incidental identification of an employee's official position or office, such as providing the employee's office phone number when necessary to receive a telephone call, is not prohibited.
Scheduling Volunteer Activities
Because any volunteer pro bono activities are individual activities of the employee and not on behalf of OGE employees are encouraged to seek volunteer opportunities that can be accomplished outside of work hours on their own personal time. Although an employee's official OGB assignments must of course be given priority over any outside activities, on rare occasions overlap of the outside activities into an employee's workday may be unavoidable. In such instances the employee may request annual leave or leave without pay. Another possibility would be for the employee to seek to adjust his work schedule on a one-time or limited basis to accommodate those infrequent occasions when his volunteer activities require time that would ordinarily fall within his official duty hours. Employees may therefore request to report for duty earlier or later than the regularly scheduled arrival time, in order to meet the needs of their volunteer activities. Requests for such temporary schedule changes must be made at least one day before the first day on which the change is requested, and if at all possible the requested changes in the schedule should occur within a single pay period. In any event, a requested change is not effective unless approved by the supervisor. Supervisors will inform the employee of their approval or disapproval of the request, and (if approved) will also inform the appropriate T&A clerk either orally, by written note or by E-mail.
Special Issues for Attorneys
While attorneys are, of course, free to participate in volunteer activities in accordance with this policy just as any other OGE employee, their particular expertise gives them the opportunity to provide unique assistance to the disadvantaged in our society. There is a fine tradition in the law for providing services pro bono publicio, and OGE attorneys are encouraged to follow this tradition and help meet this societal need. OGE attorneys examining pro bono opportunities should be aware of certain issues that may affect the decisions that they make regarding pro bono service. These include the following:
Malpractice Insurance. Before agreeing to meet with or accept a pro bono legal client, an OGE attorney should determine whether the referring pro bono program or organization has a malpractice insurance policy which covers volunteer attorneys. OGE does not provide malpractice coverage for pro bono work.
D.C. Licensing Fee. The D.C. Code has been recently 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 D.C. professional licensing fee of $250. D.C. Act 10-304.
Restrictions on Unauthorized Practice of Law. D.C. Court of Appeals Rule 49 was recently amended to permit Federal Government attorneys who are members in good standing of another state bar to accept pro bono cases under the supervision of a D.C. Bar member employed by or affiliated with a legal service or referral program, or other nonprofit organization in the District. Such representation is therefore not considered to violate the D.C. Bar restrictions prohibiting the unauthorized practice of law in the District.
 Employees should also bear in mind that participation in an outside organization could give rise to a covered relationship under 5 C.F.R. § 2635.502(b) (1) (v). Employees should remain conscious of potential appearance problems and use the process described at § 2635.502 of the Standards to determine whether an outside activity would require them to recuse from aspects of their official duties.