1. Ethics, Outreach & Lobbying
By: Ann Coyle, Regional Ethics Counsel
March 21, 2017
Answer questions from the union about lobbying. But it’s much more than that and much more complicated. These questions raise ethics and appropriations issues, EPA’s limited personal use policy, the Master Collective Bargaining Agreement, FLRA case law and negotiated agreements between the Union and management. I can only speak to the ethics piece and appropriations, to some extent.

2. Disclaimer!
This powerpoint reflects the ethics perspective on how various rules apply. There may be other sources of information, such as negotiated union agreements or case law, that provide a different interpretation. When in doubt about how various rules apply to union activity, consult your union rules or a labor and employee relations contact or lawyer.
The Region 5 transition web site has information on ethics and the transition.

3. General Ethics Rules
In the ethics world, you either act in your personal or official capacity. Consult the chart Which Lane Are You In? to see what rules apply.
EPA’s Limited Personal Use Policy also is instructive.
As it relates to union activity, the policy states:
only the use of government equipment for representational or other union functions that has been negotiated and is covered by a bargaining agreements is considered “authorized;” all other uses of government equipment is considered “personal” and is covered by the Limited Personal Use Policy. 
In addition, participating in lobbying or prohibited partisan political activity is never appropriate and, therefore, never authorized on federal office equipment.
Article 6, § 6 of the MCBA states, “Union representatives will not use official time for internal union business including solicitation for membership or collection of dues.”   See also, 5 U.S.C. § Article 11, § 1 of the MCBA states, “provision of any Agency controlled facilities is a matter for local negotiations …”  The MCBA does not define “internal union business,” but it is distinct from representation, which is clearly addressed in the MCBA.  The EPA-AFGE MOU regarding the Limited Personal Use Policy does not provide any additional insight to your question.  The Limited Personal Use Policy states that only the use of government equipment for representational or other union functions that has been negotiated and is covered by a bargaining agreements is considered “authorized;” all other uses of government equipment is considered “personal” and is covered by the Limited Personal Use Policy. 

4. Hatch Act and Partisan Political Activity
The Hatch Act governs partisan political activity (activity aimed at the success or failure of a partisan candidate, political office or partisan political party). It does not apply to nonpartisan issues or events. Here is a Summary of the Hatch Act Rules.
The Office of Special Counsel, which oversees implementation and enforcement of the Hatch Act, has issued guidance on the President’s status as a candidate and its effect on activity in the federal workplace.
This may have to be revised since the President is using campaign funds to pay for his “rallies.”

5. Lobbying Restrictions—What is not covered?
Anti-Lobbying Act and appropriations restrictions do not apply to direct lobbying or educating and informing the public about EPA’s position on legislative proposals.
Direct lobbying in your official capacity involves representing the Agency’s official view on a particular legislative proposal.
Anti-Lobbying Act and appropriations restrictions only apply to the use of appropriated funds for lobbying activities; they do not apply to private speech.
EPA officials may contact members of congress and their staffs directly to urge them to support or oppose legislation
EPA personnel may explain EPA’s view of a legislative proposal in discussions with outside organizations, speeches, public remarks, etc.
There are people whose jobs are to do this.
You would want to make sure you have the authority to do so before making such a statement in your official capacity.

6. Lobbying Restrictions
These laws prohibit EPA from using appropriated funds for “grass- roots or indirect lobbying:
Anti-Lobbying Act, 18 U.S.C. § 1913
EPA annual appropriations act restrictions:
“Tends to promote”
“Pending legislation”
Prohibits the use of appropriated funds for explicit requests to members of the public to contact members of Congress, a jurisdiction, or an official of any government to support or oppose “any bill, measure, or resolution” that proposes legislation, a law, ratification, policy, or appropriation.
Exceptions -- the ALA does not apply to:
Acts undertaken personally by presidentially-appointed and Senate confirmed (PAS) officials.
Published written statements or public speeches urging support for, or opposition to legislation.
Non-substantial grass roots lobbying campaigns (i.e. costing less than $50,000 in 1989 dollars).
these restrictions prohibit the use of appropriated funds for explicit or implicit appeals to the public designed to promote public support for, or opposition to, federal legislative proposals (e.g., bills introduced in Congress or legislation in the President’s budget).
Providing assistance (e.g. preparing new fact sheets or communication materials) when EPA knows the materials will be used to lobby Congress is also prohibited.
Factors considered in evaluation whether an activity is an implicit appeal include timing; setting; audience; content; reasonably anticipated effect of the questioned activity; whether the communication was intended to promote support or opposition to a legislative proposal, e.g.:
Making a public speech that describes the adverse effects of a legislative proposal that is actively being considered by a House committee at the time, at a press conference sponsored by an interest group known to share the employee’s views, in the district of a Congressperson who introduced the legislative proposal.
There are no exceptions to the appropriation act restrictions.

7. Lobbying Restrictions— Indirect Lobbying

8. Lobbying Restrictions—Indirect Lobbying
As a general guideline, EPA employees, in their official capacities, should not:
Explicitly or implicitly encourage the public to contact Congress in support of, or in opposition to, a legislative proposal, or
Explicitly request the public to contact state or local governments in support of, or in opposition to a legislative proposal.

9. Your questions
Can union members call/write/ Congress from their own devices on own time while on government property?
Does it make a difference if they are in the union office?
Does it make a difference what they are talking to Congress about? 
How “live” does the legislation have to be?
Can union officials call/write/ congress from own devices not on official time while on gov’t property?  Does it make a difference if they are in the union office?
The same questions, but for an employee working at an AWL.
Depends on in what capacity you’re doing it

10. Additional Questions?

11. Your questions
Does the union need to leave federal property to send out social media posts? 
It depends. The ethics rules apply to social media the same as they do to more traditional forms of communication. In general, with the exception of authorized time (e.g., representational activities), employees engaged in union work are acting in their personal capacities. See, OGE’s legal advisory on ethics and personal use of social media, the Which Lane Are You In? chart and the Limited Personal Use Policy. 
Also consider whether the posts constitute partisan political activity. If the social media post is not partisan political activity, then the employee needs to comply with the ethics rules and Limited Personal Use Policy. If the post is partisan political activity, then the employee (even in the guise of an anonymous AFGE tweet or Facebook posting) must comply with the Hatch Act.  
An employee’s alternate work location is considered the official duty station when an employee is working there and all the rules discussed here apply.  
This is the ethics perspective. A negotiated agreement or employee relations case law may say something different.
Even though the election is over (and recognizing that the President has filed his reelection papers with the FEC), the Hatch Act applies in certain circumstances.