Administrative Law and Regulatory Practice

SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE

SECTION OF PUBLIC CONTRACT LAW

SECTION OF NATURAL RESOURCES, ENERGY, AND ENVIRONMENTAL LAW

NATIONAL CONFERENCE OF ADMINISTRATIVE LAW JUDGES

BE IT RESOLVED, that the American Bar Association opposes proposed limitations and restrictions upon participation in professional associations of employees of the Executive Branch of the United State government set forth in the proposed rule 5 CFR §2635.860 as published by the Office of Government Ethics in the Federal Register on July 23, 1991.

REPORT

The ABA has long sought to attract and retain government lawyers in the Association. For many years, many of the Sections have had substantial numbers of government lawyers serving as active and productive members. And at its 1991 mid-Winter meeting at Seattle, the House of Delegates authorized the creation of a Government and Public Sector Lawyers Division.

On June 23, 1991, the Office of Government Ethics published in the Federal Register, a proposed standard of conduct for employees and officers of the Executive Branch, and set September 20 as the deadline for receipt of comments on the proposed standard. Among the many provisions set forth in that proposed rule (much of which is commendable and deserving of implementation) is a proposed §2635.806 (attached). The Section begins with the laudatory statement encouraging government employees to participate in the activities of relevant professional associations. Nonetheless, the next few sentences greatly restrict, if not totally undercut, the effect of this opening line. Specifically, subparagraphs (a) and (b) effectively limit government employee participation to ""substantive programs" and then only if the employee's superior determines that the content of the program directly relates to the performance of the employee's official duties. So there is no question, the standard clearly states that government employers are not to use government time or resources to participate in the "internal affairs" of any such organization or "to carry out its business affairs or to attend or to participate in meetings or events that primarily serve those purposes.

The effect of this proposed standard is directly contrary to long standing ABA policy to encourage active participation and leadership by public sector lawyers. We therefore urge the Board of Governors to adopt the resolution. Action is requested at this time in view of the September 20 deadline set by the Office of Government Ethics.