DOJ: ‘Ethics’ Advisers are Non-Essential Personnel

By Terence P. Jeffrey | October 9, 2013 | 3:03 PM EDT

Attorney General Eric Holder (AP Photo/J. Scott Applewhite)

( - The U.S. Department of Justice has decided that the department officials who counsel DOJ employees on whether their activities comport with government ethics rules are non-essential personnel--and thus are barred from reporting to work until Congress enacts a law approving DOJ’s fiscal 2014 funding.

DOJ is warning its employees, however, that they must behave ethically even when furloughed—and even when they cannot vet their activities with the department's ethicists.

“Please note: unless included in an excepted category based on other duties, ethics officials are non-excepted; therefore; they will not be available to answer questions,” says an advisory sheet DOJ posted online for its employees. “If an employee is concerned that his action may violate the ethics statutes, standards of conduct, or DOJ supplemental regulations, it is best to refrain from that action until the employee may seek the necessary guidance or authorization.”

“Our status as federal and Department of Justice (DOJ) employees does not change for both excepted and non-excepted employees, even though non-excepted employees are not reporting to work at their federal facilities,” says the DOD advisory. “Therefore, all of the ethics rules continue to apply to all employees.”

According to the DOJ advisory sheet, “non-excepted” DOJ officials are barred from doing work for the department—even on a volunteer basis—during the shutdown. Thus, DOJ ethics advisers would be violating the rules if they voluntarily answered questions from ethically perplexed DOJ employees.

“Employees deemed non-excepted may not volunteer their services and continue working on Department business during a government shut down,” says the advisory sheet.

The sheet provides some examples of the types of non-government work that furloughed DOJ employees can and cannot do during their time away from the department.

Working at a McDonalds or a Walmart, it appears, would fall on the safe end of the spectrum for a furloughed DOJ employee, while providing paid legal assistance to an organized crime boss would fall clearly in the red zone.

“Generally, no prior approval is required for certain outside employment such as sales positions at a retail store or food service positions at restaurants,” says the DOJ advisory. “Positions such as these likely will not conflict with an employee’s duties at DOJ.”

“Regardless of a government shutdown,” says the advisory, “the following activities are prohibited unless a waiver from the Deputy Attorney General is obtained prior to the shutdown: the paid practice of law, involvement in criminal or habeas corpus matters, and involvement in matters in which the Department is a party or represents a party.”