(You folks need to stop encouraging me. I have work to do).
Wow, this is a challenge. There is a LOT of ground covered here. I’m sure a decent ethics officer could just rattle this stuff off, but I’ll take a stab at it.
(I can’t think of one ALJ I know that is maintaining any type of continuous other employment, with the possible exception of Guard or Reserve duty.)
practicing law generally in your off hours (I'm guessing no, but what's the cite?)
1. You would need approval. Would you need approval for EVERY client?
§ 2635.803 Prior approval for outside employment and activities.
When required by agency supplemental regulation issued after February 3, 1993, an employee shall obtain prior approval before engaging in outside employment or activities. Where it is determined to be necessary or desirable for the purpose of administering its ethics program, an agency shall, by supplemental regulation, require employees or any category of employees to obtain prior approval before engaging in specific types of outside activities, including outside employment.
2. Pro Bono work might be okay?
On February 5, 1996, President Clinton issued Executive Order 12988 which provides that “all Federal agencies should develop appropriate programs to encourage and facilitate pro bono legal and other volunteer service by government employees to be performed on their own time, including attorneys, as permitted by statute, regulation, or other rule or guideline.” In response to this presidential directive, we issued the April 24, 1997 statement that encourages all Agency employees to participate in pro bono legal and volunteer programs and sets forth a coherent and uniform set of guidelines for attorney participation, which is particularly important because of the need to overcome a long-standing and widely-held assumption that federal government attorneys can generally not do pro bono legal work.
Also, see, § 2635.802 Conflicting outside employment and activities, below.
3. But only in limited circumstances:
All employees are prohibited by statute from providing legal assistance--with or without compensation--in any case in which the United States is a party or has a direct and substantial interest. 18 U.S.C. §§ 203, 205.
All employees are prohibited from providing any outside professional services in criminal or habeas corpus matters in any court, whether with or without compensation.
- part-time professor of law in the evenings on generic legal topic like trial advocacy or legal writing
5 CFR § 2635.807 Teaching, speaking and writing. Long statute. There does appear to be some wiggle room if you are clearly teaching a subject not related to official duties, and you are careful that your position as ALJ is not used to advertise the course. (i.e. using your position for gain.)
(3) Exception for teaching certain courses. Notwithstanding that the activity would relate to his official duties under paragraphs (a)(2)(i) (B) or (E) of this section, an employee may accept compensation for teaching a course requiring multiple presentations by the employee if the course is offered as part of..
Example 1: An employee of the Cost Accounting Standards Board who teaches an advanced accounting course as part of the regular business school curriculum of an accredited university may receive compensation for teaching the course even though a substantial portion of the course deals with cost accounting principles applicable to contracts with the Government.
- mediator of non-agency-related disputes (like general business litigation, or consumer class actions)
My concern, and I’m guessing the concern of the ethics officer approving your mediation, might be the possibility of your contact with out-side counsel leading to your recusal in ALJ matters.
§ 2635.802 Conflicting outside employment and activities.
An employee shall not engage in outside employment or any other outside activity that conflicts with his official duties. An activity conflicts with an employee's official duties:
(a) If it is prohibited by statute or by an agency supplemental regulation; or
(b) If, under the standards set forth in §§ 2635.402 and 2635.502, it would require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired.
- expert witness
I’m guessing it is highly unlikely that a sitting ALJ would get approval on a consistent basis to actually make any money doing this. Even if you could wiggle in an exception, it would be an uphill battle for approval every time.
§ 2635.805 Service as an expert witness.
(a) Restriction. An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee's participation is authorized by the agency under paragraph (c) of this section. Except as provided in paragraph (b) of this section, this restriction shall apply to a special Government employee only if he has participated as an employee or special Government employee in the particular proceeding or in the particular matter that is the subject of the proceeding.
- real estate development
- stock trading (granted, no insider trader)
I can find no specific site that would prevent these activities, with several, several, caveats. Approval. Conflict. Possible recusal. Use of position, etc. Also, as ALJ’s we have to report financial transactions, so that would be critical.
www.oge.gov/Financial-Disclosure/Confidential-Financial-Disclosure-450/Confidential-Financial-Disclosure/Very Important Case: Imagine taking the time to write a textbook and then not be allowed to make any money off it. Doh!
Enforcement by Social Security Administration (SSA), of regulation prohibiting government employees from receiving compensation from any source other than the government for teaching, speaking, and writing activities relating to official duties, to prevent administrative law judge (ALJ) for the SSA from receiving royalties for a textbook he wrote on Social Security law and practice, was not arbitrary and capricious, in violation of the Administrative Procedure Act (APA); SSA's interpretation of the regulation was entitled to deference. Wolfe v. Barnhart, N.D.Okla.2004, 354 F.Supp.2d 1226, affirmed 446 F.3d 1096. United States 41
Good place to start with more specific questions:
www.oge.gov/Education/Education-Resources-for-Federal-Employees/Education-Resources-for-Federal-Employees/If you can get to this page on Westlaw, it has a quality summary on outside activities. It relates to DOJ(?), but the principles appear universal.
U.S. Attorneys' Manual 1-4.320, 1998 WL 1744721 (U.S.A.M.)
Also please see: SSA Ethics Site:
sharepoint.ba.ssa.gov/ogc/ethics/EthicsPages/ethicsguidance.aspx
