§ 2635.807 - Teaching, speaking, and writing.

§ 2635.807 Teaching, speaking, and writing.

(a) Compensation for teaching, speaking, or writing. Except for teaching certain courses as permitted by paragraph (a)(3) of this section, an employee, including a special Government employee, shall may not receive compensation from any source other than the Government for teaching, speaking, or writing that occurs while the person is a Government employee and that relates to the employee's official duties.

(1) Relationship to other limitations on receipt of compensation. The compensation prohibition contained in this section is in addition to any other limitation on receipt of compensation set forth in this chapter, including:

(i) The requirement contained in § 2636.307 of this chapter that covered noncareer employees obtain advance authorization before engaging in teaching for compensation; and

(ii) The prohibitions and limitations in § 2635.804 and in § 2636.304 of this chapter on receipt of outside earned income applicable to certain Presidential appointees and to other covered noncareer employees.

(2) Definitions. For purposes of this paragraph (a):

(i) Teaching, speaking, or writing relates to the employee's official duties if:

(A) The activity is undertaken as part of the employee's official duties;

(B) The circumstances indicate that the invitation to engage in the activity was extended to the employee primarily because of

his

their official position rather than

his

their expertise on the particular subject matter;

(C) The invitation to engage in the activity or the offer of compensation for the activity was extended to the employee, directly or indirectly, by a person who has interests that may be affected substantially by performance or nonperformance of the employee's official duties;

(D) The information conveyed through the activity draws substantially on ideas or official data that are nonpublic information as defined in § 2635.703(b); or

(E) Except as provided in paragraph (a)(2)(i)(E)(4) of this section, the subject of the activity deals in significant part with:

(1) Any matter to which the employee presently is assigned or to which the employee had been assigned during the previous one-year period;

(2) Any ongoing or announced policy, program, or operation of the agency; or

(3) In the case of a noncareer employee as defined in § 2636.303(a) of this chapter, the general subject matter area, industry, or economic sector primarily affected by the programs and operations of

his

the employee's agency.

(4) The restrictions in paragraphs (a)(2)(i)(E)(2) and (3) of this section do not apply to a special Government employee. The restriction in paragraph (a)(2)(i)(E)(1) of this section applies only during the current appointment of a special Government employee; except that if the special Government employee has not served or is not expected to serve for more than 60 days during the first year or any subsequent one-year period of that appointment, the restriction applies only to particular matters involving specific parties in which the special Government employee has participated or is participating personally and substantially.

Note

:Section 2635.807

1 to paragraph (a)(2)(i):

Paragraph (a)(2)(i)(E) of this section does not preclude an employee, other than a covered noncareer employee, from receiving compensation for teaching, speaking, or writing on a subject within the employee's discipline or inherent area of expertise based on

his

the employee's educational background or experience even though the teaching, speaking, or writing deals generally with a subject within the agency's areas of responsibility.

Example 1 to paragraph (a)(2)(i): The Director of the Division of Enforcement at the Commodity Futures Trading Commission has a keen interest in stamp collecting and has spent years developing

his own

a personal collection as well as studying the field generally.

He

The Director is asked by an international society of philatelists to give a series of four lectures on how to assess the value of American stamps. Because the subject does not relate to

his

the Director's official duties, it is permissible for the Director

may

to accept compensation for the lecture series.

He

The Director could not, however, accept a similar invitation from a commodities broker.

Example 2 to paragraph (a)(2)(i): A scientist at the National Institutes of Health (NIH), whose principal area of Government research is the molecular basis of the development of cancer, could not be compensated for writing a book which focuses specifically on the research

she conducts

conducted in

her

this position at NIH,

and

which thus

,

relates to

her

the scientist's official duties. However, the scientist could receive compensation for writing or editing a textbook on the treatment of all cancers, provided that the book does not focus on recent research at NIH, but rather conveys scientific knowledge gleaned from the scientific community as a whole. The book might include a chapter, among many other chapters, which discusses the molecular basis of cancer development. Additionally, the book could contain brief discussions of recent developments in cancer treatment, even though some of those developments are derived from NIH research, as long as it is available to the public.

Example 3 to paragraph (a)(2)(i): On

his own

personal time, a National Highway Traffic Safety Administration (NHTSA) employee prepared a consumer's guide to purchasing a safe automobile that focuses on automobile crash worthiness statistics gathered and made public by NHTSA.

He

The employee may not receive royalties or any other form of compensation for the guide. The guide deals in significant part with the programs or operations of NHTSA and, therefore, relates to the employee's official duties. On the other hand, the employee could receive royalties from the sale of a consumer's guide to values in used automobiles even though it contains a brief, incidental discussion of automobile safety standards developed by NHTSA.

Example 4 to paragraph (a)(2)(i): An employee of the Securities and Exchange Commission (SEC) may not receive compensation for a book which focuses specifically on the regulation of the securities industry in the United States,

since

because that subject concerns the regulatory programs or operations of the SEC. The employee may, however, write a book about the advantages of investing in various types of securities as long as the book contains only an incidental discussion of any program or operation of the SEC.

Example 5 to paragraph (a)(2)(i): An employee of the Department of Commerce who works in the Department's employee relations office is an acknowledged expert in the field of Federal employee labor relations, and participates in Department negotiations with employee unions. The employee may receive compensation from a private training institute for a series of lectures which describe the decisions of the Federal Labor Relations Authority concerning unfair labor practices, provided that

her

the lectures do not contain any significant discussion of labor relations cases handled at the Department of Commerce, or the Department's labor relations policies. Federal Labor Relations Authority decisions concerning Federal employee unfair labor practices are not a specific program or operation of the Department of Commerce and thus do not relate to the employee's official duties. However, an employee of the FLRA could not give the same presentations for compensation.

Example 6 to paragraph (a)(2)(i): A program analyst employed at the Environmental Protection Agency (EPA) may receive royalties and other compensation for a book about the history of the environmental movement in the United States even though it contains brief references to the creation and responsibilities of the EPA. A covered noncareer employee of the EPA, however, could not receive compensation for writing the same book because it deals with the general subject matter area affected by EPA programs and operations. Neither employee could receive compensation for writing a book that focuses on specific EPA regulations or otherwise on its programs and operations.

Example 7 to paragraph (a)(2)(i): An attorney in private practice has been given a one-year appointment as a special Government employee to serve on an advisory committee convened for the purpose of surveying and recommending modification of procurement regulations that deter small businesses from competing for Government contracts. Because

his

service under

that

this appointment is not expected to exceed 60 days, the attorney may accept compensation for an article about the anticompetitive effects of certain regulatory certification requirements even though those regulations are being reviewed by the advisory committee. The regulations which are the focus of the advisory committee deliberations are not a particular matter involving specific parties. Because the information is nonpublic,

he

the attorney could not, however, accept compensation for an article which recounts advisory committee deliberations that took place in a meeting closed to the public in order to discuss proprietary information provided by a small business.

Example 8 to paragraph (a)(2)(i): A biologist who is an expert in marine life is employed for more than 60 days in a year as a special Government employee by the National Science Foundation (NSF) to assist in developing a program of grants by the

Foundation

NSF for the study of coral reefs. The biologist may continue to receive compensation for speaking, teaching, and writing about marine life generally and coral reefs specifically. However, during the term of

her

the appointment as a special Government employee,

she

the biologist may not receive compensation for an article about the NSF program

she is participating in developing

being developed. Only the latter would concern a matter to which the special Government employee is assigned.

Example 9 to paragraph (a)(2)(i): An expert on international banking transactions has been given a one-year appointment as a special Government employee to assist in analyzing evidence in the Government's fraud prosecution of owners of a failed savings and loan association. It is anticipated that

she

the expert will serve fewer than 60 days under that appointment. Nevertheless, during

her

this appointment, the expert may not accept compensation for an article about the fraud prosecution, even though the article does not reveal nonpublic information. The prosecution is a particular matter that involves specific parties.

(ii) Agency has the meaning set forth in § 2635.102(a), except that any component of a department designated as a separate agency under § 2635.203(a)

shall

will be considered a separate agency.

(iii) Compensation

includes

, for purposes of this paragraph (a):

(A) Includes any form of consideration, remuneration, or income, including royalties, given for or in connection with the employee's teaching, speaking, or writing

activities. Unless accepted under specific statutory authority, such as 31 U.S.C. 1353, 5 U.S.C. 4111 or 7342, or an agency gift acceptance statute, it includes transportation, lodgings and meals, whether provided in kind, by purchase of a ticket, by payment in advance or by reimbursement after the expense has been incurred. It

.

(B) Compensation does not include:

(

A

1) Items offered by any source that could be accepted from a prohibited source under subpart B of this part;

(

B

2) Meals or other incidents of attendance such as waiver of attendance fees or course materials furnished as part of the event at which the teaching or speaking takes place;

(

C

3) Copies of books or of publications containing articles, reprints of articles, tapes of speeches, and similar items that provide a record of the teaching, speaking, or writing activity; or

(

D) In the case of an employee other than a covered noncareer employee as defined in 5 CFR

4) Travel expenses for certain individuals as described in paragraph (a)(2)(iii)(C) of this section.

(C) For employees other than covered noncareer employees as defined in § 2636.303(a) of this chapter, compensation does not include travel expenses, consisting of transportation,

lodgings

lodging or meals, incurred in connection with the teaching, speaking, or writing activity. For covered noncareer employees as defined in § 2636.303(a) of this chapter, compensation does include transportation, lodging, and meals, whether provided in kind, by purchase of a ticket, by payment in advance, or by reimbursement after the expense has been incurred, unless such travel expenses are accepted under specific statutory authority, such as 31 U.S.C. 1353, 5 U.S.C. 4111, or 5 U.S.C. 7342, or an agency gift acceptance statute.

Note 2 to paragraph (a)(2)(iii)(C):

Independent of

§ 2635.807

paragraph (a) of this section, other authorities,

such as

including but not limited to 18 U.S.C. 209, in some circumstances may limit or entirely preclude an employee's acceptance of travel expenses. In addition, employees who file financial disclosure reports should be aware that, subject to applicable thresholds and exclusions, travel and travel reimbursements accepted from sources other than the United States Government must be reported on their financial disclosure reports.

Example 1 to paragraph (a)(2)(iii): A GS-15 employee of the Forest Service has developed and marketed, in

her

a private capacity, a speed-reading technique for which popular demand is growing.

She

The employee is invited to speak about the technique by a representative of an organization that will be substantially affected by a regulation on land management which the employee is in the process of drafting for the Forest Service. The representative offers to pay the employee a $200 speaker's fee and to reimburse all

her

travel expenses.

She

The employee may accept the travel reimbursements, but not the speaker's fee. The speaking activity is related to

her

official duties under

§ 2635.807

paragraph (a)(2)(i)(C) of this section and the fee is prohibited compensation for such speech; travel expenses incurred in connection with the speaking engagement, on the other hand, are not prohibited compensation for a GS-15 employee.

Example 2 to paragraph (a)(2)(iii): Solely because of

her

their recent appointment to a Cabinet-level position, a Government official is invited by the Chief Executive Officer of a major international corporation to attend, in their personal capacity, firm meetings to be held in Aspen for the purpose of addressing senior corporate managers on the importance of recreational activities to a balanced lifestyle. The firm offers to reimburse the official's travel expenses. The official may not accept the offer. The speaking activity is related to official duties under

§ 2635.807

paragraph (a)(2)(i)(B) of this section and, because

she

the official is a covered noncareer employee as defined in § 2636.303(a) of this chapter, the travel expenses are prohibited compensation

as to her

.

Example 3 to paragraph (a)(2)(iii): A GS-14 attorney at the Federal Trade Commission (FTC) who played a lead role in a recently concluded merger case is invited to speak about the case, in

his

a private capacity, at a conference in New York. The attorney has no public speaking responsibilities on behalf of the FTC apart from the judicial and administrative proceedings to which

he is

they are assigned. The sponsors of the conference offer to reimburse the attorney for expenses incurred in connection with

his

the travel to New York. They also offer

him

the attorney, as compensation for

his

time and effort, a free trip to San Francisco. The attorney may accept the travel expenses to New York, but not the expenses to San Francisco. The lecture relates to

his

official duties under paragraphs (a)(2)(i)(E)(1) and (

a)(

2)

(i)(E)(2) of § 2635.807

of this section, but because

he

the attorney is not a covered noncareer employee as defined in § 2636.303(a) of this chapter, the expenses associated with

his

the travel to New York are not a prohibited form of compensation

as to him

. The travel expenses to San Francisco, on the other hand, not incurred in connection with the speaking activity, are a prohibited form of compensation. If the attorney were a covered noncareer employee

he would be barred from accepting

, the travel expenses to New York as well as the travel expenses to San Francisco would be barred.

Example 4 to paragraph (a)(2)(iii): An advocacy group dedicated to improving treatments for severe pain asks the National Institutes of Health (NIH) to provide a conference speaker who can discuss recent advances in the agency's research on pain. The group also offers to pay the employee's travel expenses to attend the conference. After performing the required conflict of interest analysis, NIH authorizes acceptance of the travel expenses under 31 U.S.C. 1353 and the implementing General Services Administration regulation, as codified under 41 CFR chapter 304, and authorizes an employee to undertake the travel. At the conference the advocacy group, as agreed, pays the employee's hotel bill, and provides several of

his

the employee's meals. Subsequently the group reimburses the agency for the cost of the employee's airfare and some additional meals. All of the payments by the advocacy group are permissible.

Since

Because the employee is speaking officially and the expense payments are accepted under 31 U.S.C. 1353, they are not prohibited compensation under

§ 2635.807

paragraph (a)(2)(iii) of this section. The same result would obtain with respect to expense payments made by non-Government sources properly authorized under an agency gift acceptance statute, the Government Employees Training Act, 5 U.S.C. 4111, or the

foreign gifts law

Foreign Gifts and Decorations Act, 5 U.S.C. 7342.

(iv) Receive means that there is actual or constructive receipt of the compensation by the employee so that the employee has the right to exercise dominion and control over the compensation and to direct its subsequent use. Receipt of compensation is attributable to the time that the teaching, speaking, or writing occurs when there is actual or constructive receipt of the compensation by the employee. If the employee has an enforceable agreement to receive compensation for writing undertaken during Government service, then compensation is received while the individual is an employee even though actual payment may be deferred until after Government service. Compensation received by an employee includes compensation which is:

(A) Paid to another person, including a charitable organization, on the basis of designation, recommendation, or other specification by the employee; or

(B) Paid with the employee's knowledge and acquiescence to

his

the employee's parent, sibling, spouse, child, or dependent relative.

(v) Particular matter involving specific parties has the meaning set forth in §

2637

2640.102(

a

l)

(7)

of this chapter.

(vi) Personal and substantial participation has the meaning set forth in § 2635.402(b)(4).

(3) Exception for teaching certain courses. Notwithstanding that the activity would relate to

his

their official duties under

paragraphs

paragraph (a)(2)(i)(B) or (E) of this section,

an employee

employees may accept compensation for teaching a course requiring multiple presentations by the employee if the course is offered as part of:

(i) The regularly established curriculum of:

(A) An institution of higher education as defined at 20 U.S.C.

1141

1001 or from a similar foreign institution of higher education;

Note 3 to paragraph (a)

;(

(3)(i)(A):

When the course is offered as part of the regularly established curriculum of a foreign institution of higher education, the agency may need to make a separate determination as to whether the institution of higher education is a foreign government for purposes of the Emoluments Clause of the U.S. Constitution (U.S. Const., art. I, sec. 9, cl. 8), which forbids employees from accepting emoluments, presents, offices, or titles from foreign governments, without the consent of Congress.

(B) An elementary school as defined at 20 U.S.C.

2891

7801(

8

19); or

(C) A secondary school as defined at 20 U.S.C.

2891

7801(

21

45); or

(ii) A program of education or training sponsored and funded by the Federal Government or by a State or local government which is not offered by an entity described in paragraph (a)(3)(i) of this section.

Example 1 to paragraph (a)(3): 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.

Example 2 to paragraph (a)(3): An attorney employed by the Equal Employment Opportunity Commission (EEOC) may accept compensation for teaching a course at a state college on the subject of EEOC enforcement of Federal employment discrimination law. The attorney could not accept compensation for teaching the same seminar as part of a continuing education program sponsored by

her

a bar association because the subject of the course is focused on the operations or programs of the EEOC, and the sponsor of the course is not an accredited educational institution.

Example 3 to paragraph (a)(3): An employee of the National Endowment for the Humanities (NEH) is invited by a private university to teach a course that is a survey of Government policies in support of artists, poets, and writers. As part of

his

official

duties

duty activities, the employee administers a grant that the university has received from the NEH. The employee may not accept compensation for teaching the course because the university has interests that may be substantially affected by the performance or nonperformance of the employee's duties. Likewise, an employee may not receive compensation for any teaching that is undertaken as part of

his

official duties or that involves the use of nonpublic information.

(b) Reference to official position. An employee Employees who is are engaged in teaching, speaking, or writing as outside employment or as an outside activity shall may not use or permit the use of his their official title or position to identify him themselves in connection with his a teaching, speaking, or writing activity, or to promote any book, seminar, course, program, or similar undertaking, except that:

(1) An employee Employees may include or permit the inclusion of his their title or position as one of several biographical details when such information is given to identify him them in connection with his their teaching, speaking, or writing, provided that his their title or position is given no more prominence than other significant biographical details;

(2) An employee Employees may use , or permit the use of , his their title or position in connection with an article published in a scientific or professional journal, provided that the title or position is accompanied by a reasonably prominent disclaimer satisfactory to the agency stating that the views expressed in the article do not necessarily represent the views of the agency or the United States; and

(3) An employee Employees who is are ordinarily addressed using a general term of address, such as “The HonorableHonorable” or “Judge,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank in connection with his their teaching, speaking, or writing.

Note

:Some

4 to paragraph (b):

Reference to official title and position other than in a teaching, speaking, or writing capacity may be made only as permitted by § 2635.702(b). In addition, some agencies may have policies requiring advance agency review, clearance, or approval of certain speeches, books, articles, or similar products to determine whether the product contains an appropriate disclaimer, discloses nonpublic information, or otherwise complies with this section.

Example 1 to paragraph (b): A meteorologist employed with the National Oceanic and Atmospheric Administration (NOAA) is asked by a local university to teach a graduate course on hurricanes. The university may include the meteorologist's Government title and position together with other information about

his

the meteorologist's education and previous employment in course materials setting forth biographical data on all teachers involved in the graduate program. However,

his

the meteorologist's title or position may not be used to promote the course, for example, by featuring the meteorologist's Government title, Senior Meteorologist, NOAA, in bold type under

his

their name. In contrast,

his

the meteorologist's title may be used in this manner when

the meteorologist is authorized by NOAA to speak in his

NOAA authorized speaking in an official capacity.

Example 2 to paragraph (b): A doctor just employed by the Centers for Disease Control (CDC) has written a paper based on

his

earlier independent research into cell structures. Incident to the paper's publication in the Journal of the American Medical Association, the doctor may be given credit for the paper, as Dr. M. Wellbeing, Associate Director, Centers for Disease Control, provided that the article also contains a disclaimer, concurred in by the CDC, indicating that the paper is the result of the doctor's independent research and does not represent the findings of the CDC.

Example 3 to paragraph (b): An employee of the Federal Deposit Insurance Corporation (FDIC) has been asked to give a speech in

his

a private capacity, without compensation, to the annual meeting of a committee of the American Bankers Association on the need for banking reform. The employee may be described in

his

an introduction at the meeting as an employee of the

Federal Deposit Insurance Corporation

FDIC provided that other pertinent biographical details are mentioned as well.

[57 FR 35042, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992, as amended at 62 FR 48748, Sept. 17, 1997; 65 FR 53652, Sept. 5, 2000; 66 FR 59674, Nov. 30, 2001]