What is "outside work"?

[sandiferhands (old)]

There was a brief passing note in another thread about an ALJ being released for pursuing outside work. I'm curious--what is and isn't allowed? If you have a hobby/business, say, painting pictures, making jewelry, etc. that you clearly do in your spare time, and from which you make some money, is that prohibited? Or is the focus on being employed elsewhere or doing contract legal work at the same time you are an ALJ?

[cubbietax]

As a follow up to sandiferhands' question, are you able to get the approval for outside work if you are an ALJ? I am a referee on the side and would like to continue to this activity as it keeps me in shape. At my current agency, non-SSA, I simply made a outside work request and it was approved.

[moopigsdad]

Sandifer when did you take up painting or jewelry making? Was it during the downtime for OPM waiting to get the Register up and going? I believe you must make ODAR aware of any outside work and must report any income. If ODAR finds a conflict with your ALJ position (when you acquire one) you will have to choose which job is more important. It was the same when I joined State government for my present position. Someone else may be able to answer you with more detail.

[gary]

I'll throw another question into this hopper. I am a volunteer mediator for no compensation for a non-profit mediation-provider. I am also a volunteer arbitrator for the BBB and currently accept a small honorarium per case from them (though I previously arbitrated for free when my job forbade my accepting the money). If I were to make a cert and get hired as an ALJ, would I need to give up these activities?

[sandiferhands (old)]

Jun 23, 2014 9:46:12 GMT -5 moopigsdad said:

Sandifer when did you take up painting or jewelry making? Was it during the downtime for OPM waiting to get the Register up and going? I believe you must make ODAR aware of any outside work and must report any income. If ODAR finds a conflict with your ALJ position (when you acquire one) you will have to choose which job is more important. It was the same when I joined State government for my present position. Someone else may be able to answer you with more detail.

LOL mpd--I do neither. But I did stay at a Holiday Inn Express last week.

As the other responses have shown, many folks have similar little activities, mostly for nominal "pay", that they're curious about. I hope some who have traveled this path can shed some light for the rest of us.

[cat]

Generally speaking, federal attorneys must obtain pre-approval to work anywhere else.  I know of attorneys who have taught in various law schools and undergrad programs with pre-approval.  One attorney received clearance to work in a different area of law on the outside as long as the attorney did not use government time or other resources to work in that area and did not represent that the work was on behalf of the government.  I am not as familiar with the judicial ethics requirements and potential conflicts those might pose. 

[bartleby]

One must obtain pre-approval to do outside work of almost any nature, ie, voluntary or otherwise. As with everything else at ODAR, there appears to be no rhyme or reason for the denials or approvals. Different results in different Regions, different results in the same office. Go figure. ODAR does as ODAR wants..

[funkyodar]

My experience with requests for outside work activities is largely limited to attorneys, but I do know several judges that have experience with such.

When I first was hired as a writer, I requested to finish a small handful of cases from my private practice. After certifying those cases did noy involve ssa (and were not federal, iirc) that permission was granted. About 2 years into the job, I was asked to present at a cle, uncompensated, and that request was denied. This despite the fact I know many judges and others that have done cle presentations.

Then, last October when the gov was heading for shutdown, I joined most everyone else and submitted a request to do some non ssa legal work to help ends meet. That was granted and I have done some, very minor outside work under that permission (wrote one brief and did some jury consulting). That request was for an indefinite period and I suppose is still active as I have never been advised it has been rescinded or otherwise lapsed.

Interestingly, i know of one AA in anothef office that, when hired, asked permission to maintain a small law office doing non ssa, non federal, mostly nonadversarial work and that permission was granted. Four years later he still does uncontested divorces, wills etc on the side through that office.

Judges, I would expect, are much more scrutinized. For one, they have to do the financial declaration every year disclosing assets and all sources of income. For some, that appears simple. For others....? I know one judge that told me he had to disclose each investment in his wife's IRA.

One of the judges in my office owns some rental properties. Im sure they have to disclose those assets and income, but whether they also need outside activity permission I dunno.

I would expect to not be able to do anything related to ssa, probably nothing in federal courts/agencies and most likely nothing that stems from your title or position. Ie, if your side gig mediating is enhanced or made possible by your being an alj, its probably a no.

I would not expect anything like a hobby farm, jewelry making or art from which you do on your own time, is only small scale and does not derive any benefit from your status or cause your reputation as an alj to suffer to be problematic.

Just my own guesses though.

[gary]

Jun 23, 2014 11:42:43 GMT -5 funkyodar said:

My experience with requests for outside work activities is largely limited to attorneys, but I do know several judges that have experience with such.

When I first was hired as a writer, I requested to finish a small handful of cases from my private practice. After certifying those cases did noy involve ssa (and were not federal, iirc) that permission was granted. About 2 years into the job, I was asked to present at a cle, uncompensated, and that request was denied. This despite the fact I know many judges and others that have done cle presentations.

Then, last October when the gov was heading for shutdown, I joined most everyone else and submitted a request to do some non ssa legal work to help ends meet. That was granted and I have done some, very minor outside work under that permission (wrote one brief and did some jury consulting). That request was for an indefinite period and I suppose is still active as I have never been advised it has been rescinded or otherwise lapsed.

Interestingly, i know of one AA in anothef office that, when hired, asked permission to maintain a small law office doing non ssa, non federal, mostly nonadversarial work and that permission was granted. Four years later he still does uncontested divorces, wills etc on the side through that office.

Judges, I would expect, are much more scrutinized. For one, they have to do the financial declaration every year disclosing assets and all sources of income. For some, that appears simple. For others....? I know one judge that told me he had to disclose each investment in his wife's IRA.

One of the judges in my office owns some rental properties. Im sure they have to disclose those assets and income, but whether they also need outside activity permission I dunno.

I would expect to not be able to do anything related to ssa, probably nothing in federal courts/agencies and most likely nothing that stems from your title or position. Ie, if your side gig mediating is enhanced or made possible by your being an alj, its probably a no.

I would not expect anything like a hobby farm, jewelry making or art from which you do on your own time, is only small scale and does not derive any benefit from your status or cause your reputation as an alj to suffer to be problematic.

Just my own guesses though.

That's about what I expect will be the case, Funky, but since the conversation about outside work was opened up I thought I'd throw my situation out there. I hope some day to make a cert and, better yet, to be in a position to ask my question of the powers that be at SSA.

[privateatty]

Jun 23, 2014 11:42:43 GMT -5 funkyodar said:

My experience with requests for outside work activities is largely limited to attorneys, but I do know several judges that have experience with such.

When I first was hired as a writer, I requested to finish a small handful of cases from my private practice. After certifying those cases did noy involve ssa (and were not federal, iirc) that permission was granted. About 2 years into the job, I was asked to present at a cle, uncompensated, and that request was denied. This despite the fact I know many judges and others that have done cle presentations.

Then, last October when the gov was heading for shutdown, I joined most everyone else and submitted a request to do some non ssa legal work to help ends meet. That was granted and I have done some, very minor outside work under that permission (wrote one brief and did some jury consulting). That request was for an indefinite period and I suppose is still active as I have never been advised it has been rescinded or otherwise lapsed.

Interestingly, i know of one AA in anothef office that, when hired, asked permission to maintain a small law office doing non ssa, non federal, mostly nonadversarial work and that permission was granted. Four years later he still does uncontested divorces, wills etc on the side through that office.

Judges, I would expect, are much more scrutinized. For one, they have to do the financial declaration every year disclosing assets and all sources of income. For some, that appears simple. For others....? I know one judge that told me he had to disclose each investment in his wife's IRA.

One of the judges in my office owns some rental properties. Im sure they have to disclose those assets and income, but whether they also need outside activity permission I dunno.

I would expect to not be able to do anything related to ssa, probably nothing in federal courts/agencies and most likely nothing that stems from your title or position. Ie, if your side gig mediating is enhanced or made possible by your being an alj, its probably a no.

I would not expect anything like a hobby farm, jewelry making or art from which you do on your own time, is only small scale and does not derive any benefit from your status or cause your reputation as an alj to suffer to be problematic.

Just my own guesses though.

(I have yet to figure out how to quote just one portion of a post). ALJs have to file a Form 278 annualy and certain financial transactions every 30 days. All of this information is readily available with a Google search. However, rental income is hardly outside activity and as such does not entail outside activity permission unless the rental constitues a conflict. Bottom line, follow the Model Judicial Code and you'll be fine.

[luckylady2]

Yep - disclose, disclose, disclose. My experience as a non-SSA fed atty was I had to disclose and ask permission for anything that earned money or involved using my legal skills. Stuff that was clearly non-legal (and non-adr) was approved easily. Anything that even smelled legal was turned down.

[hamster]

Jun 23, 2014 9:43:16 GMT -5 cubbietax said:

As a follow up to sandiferhands' question, are you able to get the approval for outside work if you are an ALJ? I am a referee on the side and would like to continue to this activity as it keeps me in shape. At my current agency, non-SSA, I simply made a outside work request and it was approved.

There is an ALJ in the Philadelphia East office who works as a referee, too, such as at basketball games. So there's precedent. She's been a referee and an ALJ for more than ten years. Don't argue with the Ref--nor the Judge, either!

My HOCALJ told me last week that there is no longer a requirement to ask for approval for after-work activities of this sort. There used to be. I have no personal knowledge either way.  So, this is something that you should look into.

Best, Hamster

[cubbietax]

Jun 23, 2014 19:55:08 GMT -5 hamster said:

Jun 23, 2014 9:43:16 GMT -5 cubbietax said:

As a follow up to sandiferhands' question, are you able to get the approval for outside work if you are an ALJ? I am a referee on the side and would like to continue to this activity as it keeps me in shape. At my current agency, non-SSA, I simply made a outside work request and it was approved.

There is an ALJ in the Philadelphia East office who works as a referee, too, such as at basketball games. So there's precedent. She's been a referee and an ALJ for more than ten years. Don't argue with the Ref--nor the Judge, either!

My HOCALJ told me last week that there is no longer a requirement to ask for approval for after-work activities of this sort. There used to be. I have no personal knowledge either way.  So, this is something that you should look into.

Best, Hamster

I referee soccer and basketball. I have some Midwest Regional soccer games this weekend. High level youth soccer. Do some competitive men's games but not at professional level Basketball for me is more recreation in the winter while there is no outdoor soccer in Midwest. Refereeing has taught me to make quick decisions. Maybe it will help me if I become an ALJ.

[gary]

Jun 23, 2014 20:57:03 GMT -5 cubbietax said:

Jun 23, 2014 19:55:08 GMT -5 hamster said:

There is an ALJ in the Philadelphia East office who works as a referee, too, such as at basketball games. So there's precedent. She's been a referee and an ALJ for more than ten years. Don't argue with the Ref--nor the Judge, either!

My HOCALJ told me last week that there is no longer a requirement to ask for approval for after-work activities of this sort. There used to be. I have no personal knowledge either way.  So, this is something that you should look into.

Best, Hamster

I referee soccer and basketball. I have some Midwest Regional soccer games this weekend. High level youth soccer. Do some competitive men's games but not at professional level Basketball for me is more recreation in the winter while there is no outdoor soccer in Midwest. Refereeing has taught me to make quick decisions. Maybe it will help me if I become an ALJ.

It's probably also accustomed you to being booed by the disappointed, which should also prove useful as an ALJ.

[cubbietax]

Jun 23, 2014 21:06:27 GMT -5 gary said:

Jun 23, 2014 20:57:03 GMT -5 cubbietax said:

I referee soccer and basketball. I have some Midwest Regional soccer games this weekend. High level youth soccer. Do some competitive men's games but not at professional level Basketball for me is more recreation in the winter while there is no outdoor soccer in Midwest. Refereeing has taught me to make quick decisions. Maybe it will help me if I become an ALJ.

It's probably also accustomed you to being booed by the disappointed, which should also prove useful as an ALJ.

Yes that happens quite frequently. Even though I am always right while refereeing.

[anotherfed]

So, I wouldn't have to give up my job at Burger King!

[moopigsdad]

Jun 25, 2014 6:39:35 GMT -5 anotherfed said:

So, I wouldn't have to give up my job at Burger King!

Nor your second job at McDonalds.

[southerner]

There are more restrictions on ALJ position and outside activity. Legal work is almost never approved in our area. I have found for compensation positions are problematic in general but not so volunteer. That said, I have never worked outside of ODAR during ALJ tenure. I have served on boards, including a municipal commission, but had to be quite specific that I was not rendering or offering legal opinions or representation even gratis. I serve on a joint interprofessional committee of the state bar/state medical association and sought approval for that beforehand and that was granted.

[Deleted]

Something I put together on another thread re: specific questions on making $ on the side. Take a look at the thread 'ALJ Salary Tops out at X"...

§ 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