Some Notes on Special Government Employees
Toward A Guide for the Perplexed
What is a special government employee (SGE)? What can an SGE do?
There is a lot of discussion these days of SGEs. (See, for example, https://storage.courtlistener.com/recap/gov.uscourts.dcd.277463/gov.uscourts.dcd.277463.24.1.pdf) The role was created by statute in 1962, as a way of allowing the federal government to obtain assistance from people who were not able or willing to become full-time government employees.
Here are five notes, designed not as a polemic or argument of any kind (sorry!), but as something approaching a guide for the perplexed.
General definition. A special government employee is defined in 18 USC 202(a):
For the purpose of sections 203, 205, 207, 208, and 209 of this title the term “special Government employee” shall mean an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis, a part-time United States commissioner, a part-time United States magistrate judge, or, regardless of the number of days of appointment, an independent counsel appointed under chapter 40 of title 28 and any person appointed by that independent counsel under section 594(c) of title 28.
Length of service. A key restriction here is this: “not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis.”
This is pretty rigorous restriction. If an SGE does more than de minimis work on a day — say, an hour, probably even 45 minutes, probably even 30 minutes — it almost certainly counts as a “day.” (See https://www.oge.gov/Web/oge.nsf/Legal%20Docs/F24F83CD5FDBFA6D85258BC6004B8C21/$FILE/LA-24-14%20-%20SGE%20Day%20Counting.pdf?open)
It follows that if an SGE works every day a week (7 days) for just 20 weeks, that person is over the limit. (There are some complications here, and I am not getting into them.)
Ethics. There are ethical restrictions on what SGEs can do. Here is one list: https://www.flra.gov/Ethics_Rules_for_SGE.
Here is a formal opinion: https://www.oge.gov/Web/oge.nsf/Legal%20Docs/445ECB1FB63809DA852585BA005BED9E/$FILE/00x1.pdf?open
From the Department of Justice, see https://www.justice.gov/jmd/ethics/summary-government-ethics-rules-special-government-employees. Among other things, SGEs are not supposed to use their official position to engage in partisan political activity while on duty.
Conflict of interest in particular. There are also conflict of interest rules. Thus, for example (see https://www.justice.gov/jmd/ethics/summary-government-ethics-rules-new-department-officials, from which this is taken):
“The governing statute on financial conflicts of interest is 18 U.S.C. § 208. It prohibits participating in matters that affect your financial interests as well as those of your spouse, minor child, or a general partner; an organization which you serve as an officer, director, trustee, partner or employee; or an organization you are negotiating with for future employment.”
There is an exception here: “in the case of a special Government employee serving on an advisory committee within the meaning of chapter 10 of title 5 (including an individual being considered for an appointment to such a position), the official responsible for the employee’s appointment, after review of the financial disclosure report filed by the individual pursuant to chapter 131 of title 5, certifies in writing that the need for the individual’s services outweighs the potential for a conflict of interest created by the financial interest involved.”
Note, however, that the exception applies only to an SGE serving on an advisory committee. It does not apply to anyone else.
Directive authority? In one of my stints in the federal government, I was informed by government counsel in no uncertain terms that under the law, an SGE is only an adviser and may not exercise directive authority - that is, an SGE is not allowed to tell people what to do. I am not sure about the source of this restriction, if indeed it exists.
These are just a few, incomplete, preliminary notes on an exceedingly interesting, and interestingly cabined, set of federal government employees.