DAEOgram DO-08-006: Book Deals Involving Government Employees

March 6, 2008

DO-08-006

MEMORANDUM

TO: Designated Agency Ethics Officials

FROM: Robert I. Cusick

Director

SUBJECT: Book Deals Involving Government Employees

The Office of Government Ethics (OGE) frequently

receives questions about whether an employee may enter into

an agreement with a publishing company to write a book for

compensation. Various provisions of the Standards of

Ethical Conduct for Employees of the Executive Branch, the

criminal conflict of interest laws, and the rules on

outside earned income apply in such a case. However, the

application of the ethics rules to book deals can be

complex. For example, what the book is about and the

timing and type of compensation may dictate different

results depending on the type of employee seeking to

receive compensation. Because of this complexity, OGE has

decided that it would be useful to issue two separate

summaries on book deals, with each one addressing different

classes of employees.

The first summary (Part I) addresses regular

Government employees and special Government employees. The

second summary (Part II) addresses covered non-career

employees and Presidential appointees to full-time non-

career positions. Each part is a self-contained summary of

how to apply the appropriate ethics rules to the particular

types of employees that are the subject of the summary.

This approach will necessarily generate some degree of

overlap, but the repetition is justified by the added

convenience of having each document contain a comprehensive

analysis for the types of employees covered.

Note: Among other changes to the Standards of

Conduct effective August 15, 2024, OGE restructured

the “compensation” definition in 2635.807(a)(2)(iii).

No substantive changes were made, but this

restructuring has rendered inaccurate some citations

in this document relating to the compensation

definition. See 89 FR 43686 and LA-24-06.

Designated Agency Ethics Officials

Page 2

As you will see, each summary describes six questions

to answer when analyzing a book deal question. Any

comments or questions may be directed to Seth Jaffe,

Attorney-Advisor, at 202-482-9303.

Attachments

Part I: Regular Employees and SGEs

Part II: Covered Noncareer Employees and Presidential Appointees

Book Deal DAEOgram

Table of Contents

Part I: Regular Employees and SGEs

INTRODUCTION ...................................................... 1

I. What Category of Employee is Seeking

Compensation for Writing a Book?............................ 2

A. Regular Employees.................................... 2

B. Special Government Employees......................... 2

II. What is the Book About? .................................... 3

A. Regular Employees and Subject Matter

Prohibitions ........................................ 3

(i) Matters to which a regular employee

is or has been assigned..................... 4

(ii) Ongoing or announced policy, program or

operation of agency......................... 4

B. Special Government Employees and Subject Matter

Prohibitions ........................................ 5

(i) Matters to which an SGE is or has been

assigned.................................... 6

(ii) Ongoing announced policy, program or

operation of agency......................... 6

III. When is the Writing Performed and When is the

Compensation Received?...................................... 7

A. Introduction......................................... 7

................... 9

When does the writing occur?......................... 8

C. When is the compensation received?

TABLE 1: Timing of Writing and Receipt of Compensation.......... 12

TABLE 2: Timing of Contract, Writing and Compensation........... 13

IV. What is the Type of Compensation? ......................... 14

V. Who is Offering the Compensation and Why? ................. 15

VI. What Other Ethics Rules and Considerations

May Apply?................................................. 16

A. Compensation for Writing Related Activities:

What is Considered “Writing?” ...................... 17

B. Supplemental Agency Regulations..................... 18

C. Financial Conflicts of Interest..................... 18

D. Impartiality/Catch-All.............................. 18

E. Supplementation of Salary/Writing as Part of

Official Duties .................................... 19

F. Misuse of Position.................................. 19

(i) Use of Nonpublic Information ............... 20

(ii) Appearance of Governmental Sanction/

Reference to Official Position............. 21

CONCLUSION ....................................................... 21

Overview: Determining Whether a Regular Employee or

an SGE May Receive Compensation for Writing

a Book..................................................... 23

Part I: Regular Employees and SGEs

Part I:

BOOK DEALS INVOLVING REGULAR EMPLOYEES

AND SPECIAL GOVERNMENT EMPLOYEES

INTRODUCTION

This summary provides a template for analyzing whether regular

employees and special Government employees (SGEs) may accept

compensation for writing a book during Government service. The

primary authority limiting payment to these employees for writing a

book is found in the Standards of Ethical Conduct for Employees of

the Executive Branch (Standards of Conduct) at 5 C.F.R. § 2635.807.

Section 2635.807 prohibits an employee from receiving

compensation for teaching, speaking or writing that is related to

the employee’s official duties. Regular employees are subject to

somewhat broad prohibitions under section 2635.807 while SGEs are

subject to similar, but less restrictive prohibitions. It is

important to note that, although section 2635.807 contains a broad

prohibition against the receipt of compensation for writing that

relates to an employee’s official duties, it does not bar any

employee from writing on any subject. It prohibits only the receipt

of compensation for that activity.

To analyze whether an employee may receive compensation for

writing a book, you should answer the following six questions:

• What category of employee is seeking compensation

for writing a book?

• What is the book about?

• When is the writing performed and when is the

compensation received?

• What is the type of payment or compensation?

• Who is offering the compensation and why?

• What other ethics rules and considerations may

apply?

The answers to these questions will help you decide whether the

employee may receive compensation for writing, and whether any

other ethics rules will limit his activities related to the

writing.

I. What Category of Employee is Seeking

Compensation for Writing a Book?

When you are analyzing a book deal question, you should always

first consider the type or status of the employee who is writing

the book. There are a number of different ethics rules that apply

to book deals, and how those rules apply may vary depending on the

category of employee involved. Once you have determined the

category in which the employee falls, you can immediately move on

to the remaining five questions.

As noted earlier, this summary addresses how the ethics rules

apply to compensation for writing received by regular employees and

SGEs. The following discussion explains how these two categories

are defined for purposes of this summary. Please keep in mind that

status as an employee is not affected by leave status or, in the

case of an SGE, by the fact that the individual does not perform

official duties on any given day. 5 C.F.R. § 2635.102(h). Also, the

term “employee” includes officers but not enlisted members of the

uniformed services. 5 C.F.R. § 2635.102(h).

A. Regular Employees

For the purpose of analyzing book deal compensation issues,

“regular employees” are all executive branch employees who are not

(1) SGEs under 18 U.S.C. § 202(a), (2) covered noncareer employees

under 5 C.F.R. § 2636.303(a), nor (3) employees appointed by the

President to a full-time noncareer position described under

5 C.F.R. § 2635.804(c)(2). The most typical example of a regular

employee is a full-time career employee who is a GS-15 or below, or

a career member of the Senior Executive Service (SES) or SES-type

system.

B. Special Government Employees

Special Government employees are those executive branch

officers or employees specified in 18 U.S.C. § 202(a). See also

5 C.F.R. § 2635.102(l). In general, an SGE is one who is retained

to work temporarily for the Government for no more than 130 days in

any 365-day period. An SGE might or might not be paid for his work

and he can work either full-time or on an intermittent basis. A

typical example of an SGE employee is an expert in private industry

who is appointed to perform duties as a member of an advisory

commission for a Government agency that meets a few times a year.

Once you have determined that the type of employee seeking

compensation for a book deal is either a regular employee or an

SGE, you must decide which ethics rules and laws apply to him. The

following questions will help you pinpoint the relevant ethics

provisions, and explain how they apply.

II. What is the Book About?

Now that you have decided that the employee in question is a

regular employee or an SGE, the next important question is whether

the subject matter of the book is related to the employee’s

official duties. The answer to this question is vital because

regular employees as well as SGEs are prohibited from receiving

compensation for writing a book that is related to their official

duties. Regular employees as well as SGEs generally will be allowed

to receive compensation if a book is unrelated to their official

duties.

Section 2635.807(a) of the Standards of Conduct describes

six ways in which a book may be considered related to a regular

employee’s or SGE’s official duties. See 5 C.F.R.

§ 2635.807(a)(2)(i)(A)-(E)(1),(2) and (4). If the employee’s

writing falls within any one of these six categories, then usually

the employee may not receive compensation for the writing.

The six restrictions can be divided into two main

classifications. First, a book may be related to an employee’s

official duties based on its subject matter. These criteria will

be discussed in this section. Second, the book may be considered

related to an employee’s official duties based on who is providing

the compensation and why. These factors are addressed in Section V

of this summary. In an attempt to strike the proper balance between

ensuring that individuals are not unnecessarily deterred from

Government service, while at the same time promoting the integrity

of public service, the definition of “related to” is moderately

broad for regular employees, and is narrower for SGEs.

A. Regular Employees and Subject Matter Prohibitions

A regular employee generally is prohibited from accepting

compensation for writing a book about matters on which he works, or

about agency policies, programs and operations. 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(1) and (2). Specifically, these two subject

matter categories of section 2635.807 state that an employee may

not receive compensation if:

• the subject of the activity deals in significant

part with any matter to which the employee

presently is assigned or to which the employee had

been assigned during the previous one-year period,

5 C.F.R. § 2635.807(a)(2)(i)(E)(1), or

• the subject of the activity deals in significant

part with any ongoing or announced policy, program

or operation of the employee's agency.

5 C.F.R.

§ 2635.807(a)(2)(i)(E)(2).

(i) Matters to which a regular employee

is or has been assigned

Because the first provision above applies to any matter to

which the employee is assigned or has been assigned during the past

year, the factual analysis under this category is often

straightforward.

Under this first restriction, for example, a

regular employee at the National Aeronautics and Space

Administration (NASA) who is assigned to create a research program

related to extraterrestrial intelligence could not receive

compensation for writing a book on NASA’s research program. See

also 5 C.F.R. § 2635.807(a)(2)(i) (Example 8).

(ii) Ongoing or announced policy, program

or operation of agency

Analysis of this second category is not always so

straightforward. Employees may not receive compensation for writing

about substantive core programs and operations of the agency that

fulfill the agency’s mission.

For the purposes of the Standards of Conduct, agency programs

or operations refer to any program or function carried out or

performed by an agency, whether pursuant to statute, Executive

order, or regulation. 5 C.F.R. § 2635.102(d).

The term “matter” is virtually all-encompassing with respect

to the work of the Government and covers even the consideration or

the adoption of broad policy options that are directed to the

interests of a large and diverse group of persons. See DAEOgram

DO-06-029, https://www.oge.gov/Web/OGE.nsf/Resources/DO-06-029:

+"Particular+Matter+Involving+Specific+Parties,"+"Particular

+Matter,"+and+"Matter".

“Agency programs or operations” do not include work that

agencies perform that is not related to an agency’s core mission.

Examples of such work include responding to Freedom of Information

Act requests or dealing with personnel disputes. See 5 C.F.R.

§ 2635.807(a)(2)(i) (Example 5). For further guidance concerning

whether or not the subject matter of an employee’s writing is

related to his official duties based upon the subject matter of the

book, see examples 3, 4 & 6 in 5 C.F.R. § 2635.807(a)(2)(i) of the

Standards of Conduct. Also, for additional discussion and analysis

for determining whether a particular topic may be related to an

ongoing or announced policy, program, or operation of the

(continued)

However, an employee may receive compensation for writings

discussing a general area of expertise that do not inherently

implicate agency programs. See 5 C.F.R. § 2635.807(a)(2)(i)

(Examples 3 and 4); OGE Informal Advisory Letter 01 x 07. Applying

this general principle, a regular employee who works at NASA may

receive compensation for writing a textbook on the general subject

of aeronautics because the topic of aeronautics is not inherently

an agency program or operation. However, if the book specifically

focuses on NASA’s space shuttle program, the employee could not

accept compensation for writing it because it would deal in

significant part with an ongoing or announced policy, program or

operation of the employee's agency.

In addition, in order for the book to be within the “agency

programs” category of prohibitions, the writing must deal in

significant part with agency policies, programs or operations. See

5 C.F.R. § 2635.807(a)(2)(i) (Example 2); OGE Informal Advisory

Letter 01 x 07. Therefore, the NASA employee described above could

receive compensation for writing a book on aeronautics containing a

single chapter discussing aspects of the space shuttle program,

provided that the information described is available to the public.

B. Special Government Employees and

Subject Matter Prohibitions

Although most of the restrictions listed in section 2635.807

apply in the same manner to regular employees and SGEs,

prohibitions based upon the subject matter of the book are less

restrictive when applied to SGEs. OGE adopted narrower restrictions

for SGEs because of the concern that highly qualified individuals

in the private sector would be disqualified from serving on

Government boards and panels, particularly on those dealing with

scientific or technical subject matter.

Therefore, an SGE is the

type of employee least likely to be prohibited from receiving

compensation for a book solely because of the subject matter of the

book.

employee’s agency, see OGE Informal Advisory Opinions 01 x 07

(August 10, 2001) and 01 x 10 (November 13, 2001).

See Standards of Ethical Conduct for Employees of the

Executive Branch, 57 Fed. Reg. 35,5005, 35,038 (1992).

(i) Matters to which an SGE is

or has been assigned

The section of 2635.807 dealing with SGEs stipulates two ways

in which its application differs from its application to regular

employees. First, SGEs who work more than 60 days during any year

of their appointment are prohibited from accepting compensation for

any writing that deals to a significant degree with the matters

they are working on for the Government during their current

appointment. 5 C.F.R. § 2635.807(a)(2)(i)(E)(4); 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(1). This means, for example, that an SGE

could write and receive compensation for a book if the book was

written about a matter to which he was assigned six months ago,

provided he is no longer working on the matter and he is currently

serving under a new appointment.

Second, SGEs who have served, or expect to serve, 60 or fewer

days in each year during their appointment are subject to an even

narrower prohibition. For these SGEs, the subject matter

limitation applies only with respect to particular matters

involving specific parties in which the SGE is personally and

substantially involved. 5 C.F.R. § 2635.807(a)(2)(i)(E)(4);

5 C.F.R. § 2635.807(a)(2)(i)(E)(1).

Thus, a Commissioner on the

Marine Mammal Commission, who served less, or is expected to serve

less, than 60 days during each year of his appointment, could

accept compensation for writing a book concerning methods to

protect whales from the effects of underwater sonar, a project to

which he is assigned. The Commissioner may receive the

compensation because the particular matter he works on does not

involve specific parties. See 5 C.F.R. § 2635.807(a)(2)(i)

(Example 7). If, however, the Commissioner served more than

60 days in any one year during his appointment, then he would not

be allowed to receive compensation for writing

this book. See 5 C.F.R. § 2635.807(a)(2)(i)(E)(4); 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(1).

5 The term “particular matter involving specific parties”

is defined at 5 C.F.R. § 2635.807(a)(2)(v) to have the

meaning setforth in 5 C.F.R. § 2637.102(a)(7) and more

specifically at5 C.F.R. §2637.201(c). See also DAEOgram

DO-06-029,https://www.oge.gov/Web/OGE.nsf/Resources/DO-06-029:

+"Particular+Matter+Involving+Specific+Parties,"+"Particular

+Matter,"+and+"Matter" (definition focuses primarily on

specific parties). The term "personal and substantial”

participation is defined at 5 C.F.R. § 2635.807(a)(2)(vi) to

have the meaning set forth in 5 C.F.R. 2635.402(b)(4)

(ii) Ongoing announced policy, program

or operation of agency

Special Government employees are not subject to the

prohibition on compensation for writing that deals in significant

part with any ongoing or announced policy, program or operation of

the employee’s agency. See 5 C.F.R. § 2635.807(a)(2)(i)(E)(2);

5 C.F.R. § 2635.807(a)(2)(i)(E)(4). In other words, an SGE

generally may receive compensation for writing that deals in

significant part with an ongoing or announced policy, program or

operation of his agency provided he is not assigned to the matter.

For example, an SGE working for the National Science Foundation

(NSF) may accept compensation for writing a book about an

NSF program to study beach erosion, if the employee is not assigned

to work on the matter during his current appointment. See 5 C.F.R.

§ 2635.807(a)(2)(i) (Example 8).

Once you have analyzed the subject matter of the proposed

book, you will have to decide whether the employee is barred from

receiving compensation because the subject matter is related to his

duties, as described above. If you conclude that the subject

matter falls within one of the categories described in

section 2635.807(a)(2)(i)(E), the employee may be barred from

receiving compensation, depending on when he writes the book and

the form of compensation he receives, as discussed in Sections III

and IV. If the subject matter of the book is not related to his

duties under section 2635.807(a)(2)(i)(E), he may be able to

receive compensation, depending on the answers to the questions in

Section V. And in any event, an employee must always adhere to the

requirements in Section VI, whether he receives compensation or

not.

III. When is the Writing Performed and

When is the Compensation Received?

A. Introduction

You must analyze the timing of the writing and the receipt of

compensation under section 2635.807 if you have determined that an

employee’s writing is related to his official duties. If a regular

employee writes a book unrelated to his official duties, the timing

of the writing and receipt of compensation will not change your

decision that the employee may accept compensation. In contrast, if

the same employee writes a book related to his official duties

before, during or after Government service, the timing of the

writing could affect whether he may accept the compensation.

Timing issues can make the analyses of book deals particularly

difficult. The combination of when the writing occurs and when the

compensation is paid will dictate different conclusions about

whether the compensation is permissible. The most common scenario

where section 2635.807 applies is when a regular employee or an SGE

writes the book and receives the compensation during Government

service. However, permutations in the timing of the writing and

the payment of the compensation do occur, and must be analyzed

accordingly.

There are a couple rules of thumb that can help make the

timing issues a little less complex.

• First, ethics rules do not restrict receipt of

compensation unless the writing occurs during Government

service; and

• Second, while ethics rules generally only restrict

receipt of compensation during Government service, in

certain cases payments made before or after Government

service for writing that occurs during Government

service also may be restricted.

This section of the summary outlines the application of these

rules. The section also contains two tables that provide a summary

of how the possible combinations of the timing of the writing and

receipt of compensation affect whether compensation is barred under

section 2635.807.

B. When does the writing occur?

Section 2635.807 applies to an individual while he serves as a

Government employee. Therefore, each provision contained in

section 2635.807 restricts compensation only for writing that

occurs while an individual is in Government service. If the

writing is done either before or after Government service, none of

these provisions will apply.

For example, none of the provisions in section 2635.807 will

bar a regular employee or an SGE who writes a book before entering

Government from receiving compensation for the book while he is an

employee.

Similarly, a former regular employee or an SGE, after

leaving Government service, may enter into an agreement with a

publisher and receive compensation for writing a book, even if the

book is about his Government service.

Some writing that occurs during Government service will not

implicate the rules because no compensation is received for the

writing. For example, a regular employee or an SGE who writes a

book on any topic solely on speculation (i.e. with no agreement to

publish the book) during Government service will not violate any of

provisions in section 2635.807. This is because the employee has

not received, or even agreed to receive, compensation for his

writing. Similarly, an employee who keeps a diary or notes or other

similar materials for use in writing a book after his Government

service has terminated will not violate any of the provisions in

section 2635.807, provided he does not, during Government service,

receive compensation or have an agreement to receive compensation.

C. When is the compensation received?

Generally, section 2635.807 will not apply to a regular

employee or an SGE unless the compensation is received during

Government service. As described above, for example, an employee

who writes a book on speculation during Government service will not

violate any of the provisions if he enters into an agreement after

Government service to publish the book.

Nevertheless, there are several situations where

section 2635.807 will apply even if compensation is paid before or

after Government service.

First, an employee cannot simply defer the receipt of payment

for a book written while an employee, to a time after he terminates

Government service. When an employee signs a contract to receive a

future payment or receives other consideration for a book written

An employee may receive compensation, such as an advance and

royalties, for a book completed prior to entering Government

service even if the book is about his agency’s programs. However,

there may be limitations on the promotional activities he could

undertake while an employee. See section VI infra.

See Section VI, infra, for a discussion of the rules

relating to diaries and notes kept during Government service.

while an employee, he has “received” compensation while a

Government employee.

Second, a regular employee or an SGE who has received

compensation, prior to entering the Government, for writing a book

during Government service, may not be able to write the book while

an employee. In this case, the employee would still “receive” the

compensation while he is an employee because receiving the

compensation is contingent on undertaking the writing during

Government service. This situation sometimes occurs when an

individual has entered a book contract and then subsequently begins

a Government position before he has written the book. Similarly,

the issue may arise when an employee has published a book prior to

entering the Government on a topic that is “related to” his

Government duties and then is asked by the publisher to update or

edit the book while he is serving in the Government.

To comply

with the applicable rules, a regular employee or an SGE in these

situations would have to defer the actual writing or editing until

after he terminates Government service.

Third, an employee who enters a contract to write a book

during Government service and defers payment for the book until

Government service is terminated, still would be subject to the

restrictions on compensation if he keeps a diary, notes or other

similar materials upon which the book will be based. In such a

case, the employee’s receipt of compensation for the book would

also be, in part, for writing the preparatory materials generated

during Government service.

5 C.F.R. § 2635.807(a)(2)(iv) describes the term “receive” to

mean that there is actual or constructive receipt of the

compensation so that the employee can exercise dominion and control

over the compensation and direct its subsequent use. In addition,

section 2636.303(c) specifically states that compensation “is

received while an individual is an employee if it is for conduct by

him that occurs while an employee, even though actual payment may

be deferred until after Federal employment has terminated.” OGE

interprets this definition of “receive” to apply equally to

section 2635.807.

See Section VI, infra, for a further discussion of the rules

related to editing and proofreading.

Finally, a regular employee or an SGE cannot circumvent the

restrictions in section 2635.807 by having the compensation paid to

another person, including a charitable organization. In such

cases, the compensation is still considered to have been “received”

by the employee.

5 C.F.R § 2635.807(a)(2)(iv) states that an employee

“receives” compensation if it is paid (1) to another person,

including a charitable organization, on the basis of designation,

recommendation, or other specification by the employee, or (2) with

the employee’s knowledge and acquiescence to his parent, sibling,

spouse, child or dependent relative.

TABLE 1: Timing of Writing and Receipt of Compensation

If the writing occurs: And if the

compensation is

received:

Then, under the Standards of Conduct § 2635.807 :

Before Gov’t

Service

Before Gov’t Service

Compensation permitted

Before Gov’t

Service

During Gov’t Service

Compensation permitted

Before Gov’t

Service

After Gov’t Service

Compensation permitted

During Gov’t Service Before Gov’t

Service*

1. Com

ensation barred if “related to official duties”

2. Com

pensation perm

itted if not “related to official duties”

During Gov’t Service During Gov’t Service

1. Compensation barred if “related to official duties”

2. Compensation perm

itted if not “related to official duties”

During Gov’t Service After Gov’t Service**

1. Com

ensation barred if “related to official duties”

2. Com

pensation perm

itted if not “related to official duties”

After Gov’t Service Before Gov’t

Service

Com

pensation permitted

After Gov’t Service During Gov’t Service

Compensation permitted

After Gov’t Service After Gov’t Service

Compensation permitted

Section 2635.807 applies to a book advance made prior to Government employment, if the paym

ent is for a book

to be written during Governm

ent employment. Because the payment is conditioned on the subsequent performance

of work after Government appointment, the receipt is not completed prior to employment.

** Section 2635.807 does not apply, however, if the employee writes the book “on speculation,” without any

agreement to receive compensation for the writing that occurs during Government service. (See

discussion in

Section III B, supra.)

TABLE 2: Timing of Contract, Writing and Compensation

If the employee signs the

contract:

The writing AND

compensation occur:

Then, under the Standards of Conduct § 2635.807 :

Before Gov’t Service After Gov’t Service

Compensation permitted

During Gov’t Service

After Gov’t Service***

Compensation permitted

*** Section 2635.807 applies, however, if a book is based on a diary or notes kept while in Government service, if

the keeping of the diary or taking of the notes are done pursuant to an agreement to receive compensation for these

services. (See

discussion in Section VI A, infra.)

IV. What is the Type of Compensation?

For book deals, the two most common types of payment are

(1) royalties--a percentage of the proceeds from the sale of each

book paid to the author from the publisher, and (2) an advance--an

up front cash payment from the publisher to the author that is

earned back through future sales.

Both royalties and an advance

qualify as “compensation.”

For example, neither a regular employee

nor an SGE employed by the National Institutes of Health (NIH) may

receive a cash advance or royalties as compensation for writing a

book during Government service that is related to his official

duties.

Because the definition of compensation, for a regular employee

and an SGE, does not include “travel expenses, consisting of

transportation, lodgings or meals, incurred in connection with the

. . . writing activity,” 5 C.F.R. § 2635.807(a)(2)(iii)(D),

either

Distinctions between an advance and royalties are generally

relevant to the rules for employees appointed by the President to a

full-time noncareer position and covered noncareer employees. Such

distinctions are not relevant for regular employees and SGEs. See

the following OGE Informal Advisory Opinions: 82 x 18 (December 3,

1982), 83 x 4 (March 25, 1983), 89 x 17 (September 26, 1989), and

95 x 9 (July 21, 1995).

Under 5 C.F.R. § 2635.807(a)(2)(iii), “compensation includes

any form of consideration, remuneration or income, including

royalties, given for or in connection with the employee’s . . .

writing activities.”

As noted in Section II of this summary, if a book is

unrelated to his official duties, a regular employee as well as an

SGE will generally be allowed to receive compensation under

section 2635.807, regardless of the type of compensation offered.

See Sanjour v. EPA, 7 F. Supp. 2d. 14 (D.D.C. 1998), on

remand from, Sanjour v. United States 56 F. 3d 85 (D.C. Cir. 1995).

(Holding portion of 5 C.F.R. § 2635.807(a) unconstitutional that

prohibits employees “who work below the grade level of the senior

executive service” from accepting travel expenses in connection

with “teaching, speaking, or writing [that] relates to . . .

official duties . . .”); OGE Informal Advisory Opinion 98 x 19

(November 25, 1998) and 5 C.F.R. § 2635.807(a)(2)(iii)(D)

(interpreting Sanjour to mean that the enforcement of the ban on

travel expenses may only continue against senior executive branch

officials who are covered noncareer employees).

of these employees may be allowed to accept certain payments

related to speaking engagements about his book. The employee may

receive the compensation even if the book is related to his

official duties.

For instance, either NIH employee could accept travel expenses

provided by a publisher for a book reading or presentation, whether

the book was a mystery novel or a discussion of his NIH research.

However, because this “travel expense” exclusion from the

definition of compensation is narrow, other types of compensation

such as a speaker’s fee, may not be accepted if the book is related

to the employees’ duties. See 5 C.F.R. § 2636.303(b); 5 C.F.R.

§ 2635.807(a)(2)(iii)(D)(Example 1).

V. Who is Offering the Compensation and Why?

If, after answering the four previous questions, you have

determined that an employee’s receipt of compensation for writing

is not prohibited, you should then consider the next questions: Who

is offering the compensation and why? The analysis of these

questions will be the same for regular employees and SGEs.

A regular employee or an SGE is prohibited from receiving

compensation for writing if he is asked to write a book, (1) by

someone who will be substantially affected by the performance of

his duties or (2) if the offer is extended primarily because of his

official position rather than his expertise in the subject of the

book.

The first provision deals with the possibility that the public

may question the integrity of a Government official who is being

compensated for writing a book, based upon who made the offer.

Normally the source of the offer to publish a book will be a

publishing company, and the duties of most Government employees

will not substantially affect a book publisher. Sometimes, however,

this restriction may be relevant. For instance, an ethics official

may need to consider section 2635.807(a)(2)(i)(C) if a regular

Specifically, section 2635.807 states that an employee may

not receive compensation if, (1) the invitation or offer of

compensation was extended by a person or entity who may be

substantially affected by the performance of the employee's

official duties; 5 C.F.R. § 2635.807(a)(2)(i)(C), or (2) the

circumstances indicate that the invitation to write the book was

extended to the employee primarily because of his official

position, rather than his expertise in the subject; 5 C.F.R.

§ 2635.807(a)(2)(i)(B).

employee at the National Institutes of Health signs a book deal

with a publishing company that publishes a medical journal and, as

part of his job, reviews articles for publication in the same

journal.

The second provision deals with the possibility that the

integrity of a Government official writing a book may be questioned

based upon why the offer to write the book was made. It will often

be difficult to determine the various motives behind an offer to a

Government employee to write a book. In fact, it is almost always

possible that a Government employee is extended an offer to write a

book, at least in part, because of his official position.

Normally, a publishing company will offer a book deal to a

Government employee who has a high level of expertise in or

knowledge about, a particular subject matter. Occasionally, a

publishing company may ask an employee to write a book about a

hobby or demonstrated interest of the employee. Generally, these

situations will satisfy the requirements of

section 2635.807(a)(2)(i)(B), because the book deal is offered

primarily as the result of the employee’s expertise or knowledge of

a topic through personal experience, and not primarily because of

his official position. If you are presented with a situation where

an employee is asked to write a book on a topic about which he has

no apparent knowledge or expertise, you should consult with OGE.

If after answering the previous questions you have determined

that an employee is not barred from receiving compensation for the

writing, you must still consider other ethics rules that may apply.

These further considerations, outlined in the following section,

are necessary because employees must always adhere to these

additional requirements, some of which are not found in

section 2635.807.

VI. What Other Ethics Rules and Considerations May Apply?

Once you have finished analyzing whether a particular employee

may receive compensation for writing a book, you will still need to

address a variety of miscellaneous issues, as described below. If

you conclude that the employee may not receive compensation after

answering the previous questions, most of the following

considerations will be moot because the employee will probably

abandon his efforts to write during Government service. However,

if you have decided that the employee is not precluded from

receiving compensation, or if an employee decides to proceed with

the writing without compensation, the following considerations will

have to be addressed. Except for 18 U.S.C. § 209 concerning the

supplementation of salary, from which SGEs are exempt, these

restrictions apply in a similar manner to regular employees and

SGEs.

A. Compensation for Writing Related Activities: What is

Considered “Writing?”

Employees may want to engage in a variety of activities

associated with writing a book, apart from the original drafting of

the written text. For example, an employee may edit or proofread a

book, or may keep diaries or notes during Government service

intended for a later writing. You will need to analyze when these

activities are, or are not, considered “writing” for which

compensation is barred under section 2635.807.

OGE has drawn a distinction between substantive writing and

editing that qualify as writing, versus proofreading and copy

editing which do not. Any activity, such as substantive editing or

writing that changes or modifies the content of a written product

or publication, is considered writing under the rule. Proofreading

and copy editing such as changing formatting, or correcting

spelling, grammar and punctuation generally do not change the

meaning of the content of a writing or publication and therefore do

not qualify as writing under section 2635.807.

Because updating or modifying the content of a book, such as a

textbook, is considered writing, a regular employee or an SGE may

not receive compensation under section 2635.807 for the update

performed during Government service if the book is related to his

official duties. Similarly, keeping diaries or notes during

Government service to be used later as a basis for a book is

considered “writing.” Compensation for those activities performed

during Government service is prohibited under section 2635.807, if

the diaries or notes are related to an employee’s official duties.

For example, a regular employee may not receive compensation

if he enters into an agreement either before or during his

Government service to write a book for compensation based upon a

diary of his participation in agency meetings. He may not accept

the compensation even if his agreement calls for the payment to be

made after he leaves the Government.

Compensation for non-substantive proofreading and formatting

is permissible while in Government service, because such activities

are not considered “writing.” However, if an employee requests

permission to make any types of changes to a book that is related

to his official duties, you should consult with OGE about how to

advise the employee.

B. Supplemental Agency Regulations

Many agencies have supplemental regulations that require

employees to obtain prior approval to engage in certain outside

activities, including writing. Some of these agencies’ supplemental

regulations may contain other provisions related to writing.

Therefore, you should consult your agency’s supplemental

regulations before advising an employee whether he may receive

compensation for writing a book.

C. Financial Conflicts of Interest

Under 18 U.S.C. § 208, an employee, including an SGE, who

receives royalties for a published book may not participate

personally and substantially in a particular matter that would

directly and predictably affect the sales of his book. In addition,

if an employee who has a contract with a publisher participates

personally and substantially in a particular matter that would

directly and predictably affect the publisher’s ability and

willingness to pay what it promised under the contract, his

participation poses a conflict of interest under 18 U.S.C. § 208.

D. Impartiality/Catch-All

Once an employee enters into a book deal that complies with

all other ethics provisions, the employee will have to recuse from

Government matters involving his book publisher in order to avoid

the appearance of loss of impartiality. 5 C.F.R. § 2635.502(a). An

employee should not participate in a matter involving specific

parties when someone with whom the employee has a “covered

relationship” is a party to the matter, or represents a party to

the matter, if a reasonable person would question his impartiality

in the matter. In general, an employee who enters into a book

publishing contract will be considered to have a “covered

relationship” with that publisher under 5 C.F.R.

§ 2635.502(b)(1)(i).

Under this standard, for example, it is very

likely that a reasonable person would question the impartiality of

a regular employee or an SGE who participates in an agency decision

to use his outside publisher as the publisher of official agency

reports.

An employee’s book publisher will qualify as a “covered

relationship” under 5 C.F.R. § 2635.502(b)(1)(i) because the

publisher is “A person . . . with whom the employee has or seeks a

business, contractual or other financial relationship that involves

other than a routine consumer transaction.”

E. Supplementation of Salary/Writing as

Part of Official Duties

Unlike the prohibitions previously addressed in this summary,

18 U.S.C. § 209 does not contain prohibitions on receipt of

compensation for personal writing; it restricts compensation for

official writing. This criminal conflict of interest provision

prohibits a regular employee, but not an SGE, from receiving a

supplementation of his Federal salary as compensation for

performing official duties from any source other than the United

States.

Therefore, if a regular employee at the Internal Revenue

Service as part of his official duties writes a manual instructing

citizens how to fill out their tax returns, he may not accept any

payment--whether a fee, an advance, or royalties--from a non-

Government source in connection with publication of that book.

Not only does 18 U.S.C. § 209 prohibit a regular employee from

accepting compensation for writing he did as part of his official

duties, 5 C.F.R. § 2635.807(a)(2)(i)(A) of the Standards of Conduct

also prohibits such conduct.

Although SGEs are exempt from

18 U.S.C. § 209, section 2635.807 of the Standards of Conduct does

apply to SGEs. Therefore, if a regular employee or an SGE writes a

series of speeches for his supervisor, neither employee may receive

compensation for writing a book consisting of a compilation of the

speeches. See OGE Informal Advisory Letter 95 x 09 (July 21, 1995).

F. Misuse of Position

Subpart G of the Standards of Conduct prohibits an employee,

including an SGE, from misusing his official position.

Specifically, this subpart prohibits:

• the use of public office for private gain,

• the use of official time, including a subordinate’s

SGEs are completely exempt from this prohibition, while

regular employees are subject to the prohibition unless they serve

the Government without compensation. See 18 U.S.C. § 209(c).

Section 2635.807 incorporates the same prohibition on

supplementation of salary contained in 18 U.S.C. § 209 by including

in the definition of “related to official duties,” those

“activit[ies] undertaken as part of the employee’s official

duties,” 5 C.F.R. § 2635.807(a)(2)(i)(A).

time, to perform non-official duties,

• the use of Government property for unauthorized

purposes, and

• the use of nonpublic information to further a

private interest. See 5 C.F.R. §§ 2635.702 - 705.

These limitations apply even when an employee may otherwise

receive compensation for writing a book unrelated to his official

duties. For example, an employee may not write a book while on

official duty. Likewise, he may not ask his subordinate to perform

tasks on official time, such as typing or editing, in connection

with this non-Government activity. 5 C.F.R. § 2635.705(b). Nor

may an employee otherwise use Government equipment or supplies for

work in connection with a personal writing project. 5 C.F.R.

§ 2635.704.

(i) Use of Nonpublic Information

The Standards of Conduct contain two provisions relating to

the use of nonpublic information

in connection with writing.

First, section 2635.703 prohibits the use of nonpublic information

by an employee to further his own private interest or that of

another. This prohibition applies regardless of whether

compensation is received.

Second, section 2635.807 prohibits an employee from receiving

compensation for a writing that is drawn substantially from

nonpublic information or ideas. 5 C.F.R. § 2635.807(a)(2)(i)(D).

This provision prohibits only the receipt of compensation, but it

applies when the information conveyed through the writing is

nonpublic information.

For the purpose of writing a book, “nonpublic information”

referred to in 5 C.F.R. § 2635.807(a)(2)(i)(D), is defined at

5 C.F.R. § 2635.703(b). Nonpublic information is information that

an employee gains by reason of Federal employment and knows or

should know has not been made available to the general public. It

includes information that: (1) is exempt from disclosure by

statute, Executive order or regulation, (2) is designated as

confidential by an agency, or (3) has not been disseminated to the

general public and is not authorized to be made available to the

public upon request.

(ii) Appearance of Governmental Sanction/Reference

to Official Position

In addition to the prohibitions discussed above, an employee,

including an SGE, may not use or permit the use of his title or

position in a manner suggesting that the Government sanctions or

endorses his outside writing. See 5 C.F.R. § 2635.702(b); 5 C.F.R.

§ 2635.807(b). There is an exception, however, permitting an

employee to include a reference to his title or position in

connection with non-Government writing as one of several

biographical details if that reference is not given more prominence

than other significant biographical details. See 5 C.F.R.

§ 2635.807(b)(1). Thus, an employee may not use only his name and

official title on the cover of a book, the book jacket, the title

page or other promotional materials for the book because the

reference to his official position would not be included with other

biographical details.

The limits on promotional materials mentioned immediately

above also apply to promotional activities such as appearances on

various media outlets or on promotional book tours.

For instance,

a regular employee at the Department of Education who wrote a book

prior to his Government service may not be introduced during book

signings or on TV or radio only by his name and official position.

See 5 C.F.R. § 2635.807(b). Such an introduction or reference does

not include the other biographical details required under the rule.

CONCLUSION

Once you have analyzed all of the six questions outlined in

this summary you should be able to advise a regular employee or an

SGE who asks you whether he may receive compensation for his

writing. You should also be able to confidently advise the

employee concerning whether any other ethics rules will limit his

activities related to the writing.

The outline at the end of this summary contains the

six questions discussed in the summary as well as a list of the

citations to the various ethics rules applicable to answering these

Sometimes a publishing company may ask a Government official

to participate in promotional book tours in connection with a book

written prior to Government service. These tours can pose

additional concerns about use of public office for private gain.

You should consult with OGE before authorizing the participation of

high ranking officials in such tours.

questions. It is a one-page overview you can use as another tool in

analyzing book deal questions when making a determination whether

or not a regular employee or an SGE may receive compensation for

writing a book.

Overview: Determining Whether a Regular Employee or an SGE

May Receive Compensation for Writing a Book

I. Employee Category: Regular or SGE

Regular:

Not an SGE, CNC or PA employee

SGE: 18 U.S.C. § 202(a)

II. § 807 – “Related To Official Duties”

What is the Book About? / Subject Matter Prohibitions

Regular

5 C.F.R. § 2635.807(a)(2)(i)(E)(1) & (2)

(E)(1) Matter in which employee assigned within previous year

(E)(2) Concerning any ongoing or announced policy, program or operation

SGE

5 C.F.R. § 2635.807(a)(2)(i)(E)(4)

(E)(1) Applies to SGEs differently from Regular – See

5 C.F.R. § 2635.807(a)(2)(i)(E)(1)

(E)(2) Does not apply to SGEs

III. Timing of the Work / Receipt of the Compensation

Regular & SGE

: 5 C.F.R. § 2635.807(a)(2)(iii) & (iv) – Receipt of compensation is usually

attributable to the time the writing occurs, unless written solely on speculation during

Government service.

Possibilities: Before, during or after Government service

IV: Type of the Compensation

Regular & SGE: 5 C.F.R. § 2635.807(a)(2)(iii) – All forms of consideration except travel

Possibilities: Advance

;

alties

;

Other Com

ensation or Consideration

V. § 807 – “Related To Official Duties”

Who is Offering the Compensation and Why?

Regular & SGE

5 C.F.R. § 2635.807(a)(2)(i)(B) Invitation extended primarily because of official position

5 C.F.R. § 2635.807(a)(2)(i)(C) Invitation extended by person affected by employee’s duties

VI. Other Considerations

Compensation for Writing Related Activities; Supplemental Agency Regulations; 18 U.S.C.

§ 208 (Financial Conflicts); 5 C.F.R. § 2635.502 (Covered Relationship - Publisher); 18 U.S.C. §

209 (Supplementation of Salary – SGEs Exempt); 5 C.F.R. § 2635.807(a)(2)(i)(A) (Writing as

Part of Official Duty); 5 C.F.R. § 2635.702 (Public Office for Private Gain); 5 C.F.R. § 2635.703

(Use of Nonpublic Information); 5 C.F.R. § 2635.807(a)(2)(i)(D) (Draws Substantially on

nonpublic information); 5 C.F.R. § 2635.704 (Use of Government Property); 5 C.F.R.

§ 2635.705 (Use of Official Time); 5 C.F.R. § 2635.807(b) (Reference to Official Position);

5 C.F.R. § 2635.802 (Conflicting Outside Employment & Activities)

Book Deal DAEOgram

Table of Contents

Part II: Covered Noncareer Employees and Presidential Appointees

INTRODUCTION.......................................................................................................................................1

I. What Category of Employee is Seeking

Compensation for Writing a Book?.......................................................................2

A. Covered Noncareer (CNC) Employees....................................................3

B. Presidential Appointees (PA) to a Full-Time

Noncareer Position.......................................................................................4

C. Distinguishing Between CNC and PA Employees............................5

II. What is the Book About?..............................................................................................5

A. General subject matter area, industry, or

economic sector primarily affected by

the programs and operations of agency .........................................6

B. Matters to which a CNC or PA employee

is or has been assigned...........................................................................7

C. Ongoing announced policy, program or

operation of agency.....................................................................................7

III. When is the Writing Performed and When is the

Compensation Received?...............................................................................................9

A. Introduction......................................................................................................9

B. When does the writing occur?..............................................................10

C. When is the compensation received?...............................................11

D. How to Calculate the 15% Limitation.............................................12

Table 1: Timing of Writing and Receipt of Compensation........................15

Table 2: Timing of Contract, Writing and Compensation..........................16

IV. What is the Type of Compensation?....................................................................17

A. Royalties vs. Advance Payments.........................................................17

B. How to Apply the Distinction Between Royalties and

Advances.............................................................................................................18

V. Who is Offering the Compensation and Why?.................................................19

VI. What Other Ethics Rules and Considerations May Apply?....................20

A. Compensation for Writing Related Activities..........................21

(i) Editing Proofreading, & Diaries: What is

Considered "Writing?” ...............................................................21

(ii) Travel Expenses & Speaking Fees.......................................22

B. Supplemental Agency Regulations......................................................23

C. Financial Conflicts of Interest......................................................24

D. Impartiality/Catch-All............................................................................24

E. Supplementation of Salary/Writing as Part of

Official Duties............................................................................................24

F. Misuse of Position......................................................................................25

(i) Use of Nonpublic Information............................................25

(ii) Appearance of Governmental Sanction/

Reference to Official Position .......................................26

Conclusion..........................................................................................................................................27

a PA Employee May Receive Compensation for Writing

a Book.......................................................................................................................28

Overview: Determining Whether a CNC employee or

Part II: Covered Noncareer and

Presidential Appointees

PART II:

BOOK DEALS INVOLVING COVERED NONCAREER EMPLOYEES

AND PRESIDENTIAL APPOINTEES TO FULL-TIME

NONCAREER POSITIONS

INTRODUCTION

This summary provides a template for analyzing whether covered

noncareer (CNC) employees and Presidential appointees to full-time

noncareer positions (PA) may accept compensation for writing a book

during Government service. Analyzing this question can be unusually

complex because a number of different, but similar, rules apply to

these employees.

Three primary rules may come into play.

First, the Standards of Ethical Conduct for Employees of the

Executive Branch (Standards of Conduct) limit payment to these

employees depending on the subject matter of the book, who would

make the payment, or why the payment would be made. See 5 C.F.R.

§ 2635.807.

Second, both CNC and PA employees are subject to a ban on

receiving, in a calendar year, outside earned income that exceeds

15% of the annual rate of basic pay for level II of the Executive

Schedule. See 5 U.S.C. app. § 501(a)(1) (15% limitation).

Finally, PA employees may not receive any earned income for

activities performed during Government service. See Executive

Order 12674, section 102 (outside earned income ban). For all

practical purposes, this broad outside earned income ban completely

subsumes the 15% limitation described above, as applied to

PA employees.

It is important to remember that these three provisions may

apply in the alternative in a particular case. For example, even if

a PA employee’s writing satisfies the requirements of

section 2635.807 and the 15% limitation, he still would not be

allowed to receive compensation if acceptance would violate the

outside earned income ban.

For example, the term “compensation” is defined differently

in the applicable rules. In one of the rules, book royalties are

treated as compensation; in the other two rules, royalties are

excluded from the definition of compensation. These distinctions

will be discussed further in this summary.

To help analyze whether an employee may receive compensation

for writing a book, an ethics official should answer the following

six questions:

• What category of employee is seeking compensation

for writing a book?

• What is the book about?

• When is the writing performed and when is the

compensation received?

• What is the type of payment or compensation?

• Who is offering the compensation and why?

• What other ethics rules and considerations may

apply?

The answers to these questions will help you decide whether

accepting the compensation is permissible, and whether any other

ethics rules will limit the employee’s activities related to the

writing.

I. What Category of Employee is Seeking

Compensation for Writing a Book?

When you are analyzing a book deal question, you should always

first consider the type or status of the employee who is writing

the book. There are a number of different ethics rules that apply

to book deals, and how those rules apply may vary based on the

category of employee involved. Once you have determined the

category in which the employee falls, you can immediately move on

to the remaining five questions.

As noted earlier, this summary addresses how the ethics rules

apply to compensation for writing received by covered noncareer

employees and Presidential appointees to full-time noncareer

positions. The following discussion explains how to identify

whether an employee falls into one of these categories. Please

keep in mind that status as an employee is not affected by leave

status. 5 C.F.R. § 2635.102(h).

Also, an employee includes officers but not enlisted members

of the uniformed services. 5 C.F.R. § 2635.102(h).

A. Covered Noncareer (CNC) Employees

There are several ways in which an employee may qualify as a

CNC employee under 5 C.F.R. § 2636.303(a).

Generally, there are

three primary points to remember about a CNC employee:

• a CNC’s appointment must be one of several types of

noncareer appointments. 5 C.F.R. § 2636.303(a)(1)-

(4). Typically, when a position is identified as

“noncareer” it refers to a political appointment

where the appointee can be removed at the will of

the appointing official(s);

• a CNC employee must be in a position that meets

certain grade and pay requirements. CNCs must be in

a position classified above GS-15 in the General

Schedule or, for positions not under the General

Schedule, in a position for which the rate of basic

pay is at least 120 percent of the minimum rate of

basic pay payable for GS-15 of the General

Schedule.

5 C.F.R. § 2636.303(a); see 5 U.S.C. app.

§§ 501(a), 502(a); and

• a special Government employee cannot be a

CNC employee. 5 C.F.R. § 2636.303(a); see 5 U.S.C.

app. § 505(2) (excluding SGEs from the class of

covered employees).

Under this definition, an employee whose position is

classified at GS-15 or lower, including one appointed to a

Schedule C position pursuant to 5 C.F.R. § 213.3301, can never be a

CNC employee. For example, a GS-15 Schedule C employee who makes

$116,500 a year fails to meet the threshold to qualify as a

CNC employee because his position is not classified above GS-15.

Therefore, although the Schedule C employee is a noncareer

employee, he is not “covered noncareer” under this definition.

5 C.F.R. § 2636.303(a) contains a comprehensive definition

of “covered noncareer employee,” as well as a brief list of

exclusions from the definition.

For calendar year 2008 the minimum rate of basic pay payable

for GS-15 is $95,390 and 120 percent of this basic rate of pay is

$114,468.

Typical examples of CNC employees are full-time employees who are

noncareer members of the Senior Executive Service (SES) or most

Presidential appointees subject to Senate confirmation.

B. Presidential Appointees (PA) to a Full-Time Noncareer

Position

Generally, a PA employee means any employee who is appointed

by the President to a full-time position. See 5 C.F.R.

§ 2635.804(c)(2), implementing section 102 of Executive

Order 12674.

There are three primary points to remember about a

PA employee:

• the employee must be appointed by the President;

• the employee must be a full-time employee to be

covered. Therefore, special Government employees

and other employees who work more than SGEs but

less than full-time are not PAs subject to this

rule. See OGE Informal Advisory Opinion 05 x 07

(November 1, 2005); and

• the employee must not be excluded from coverage.

(e.g. Presidential appointees in the White House

whose basic rate of pay is below GS-9 are

excluded).

Sometimes it can be difficult to determine whether an

employee is a CNC employee, a PA employee, or both. For example,

it may be difficult to determine whether an employee is a

CNC employee when he has been appointed under an agency-specific

statute. According to 5 C.F.R. § 2636.303(a)(3), an employee will

be a CNC employee if, after meeting the other non-appointment

criteria, he is appointed “under an agency-specific statute that

establishes appointment criteria essentially the same as those set

forth in [5 C.F.R.] section 213.3301 . . . for Schedule C

appointments.” For additional discussion and analysis on

determining whether an agency-specific appointment authority

qualifies a position as a CNC position under 5 C.F.R.

§ 2636.303(a)(3), see OGE Informal Advisory Letters; 05 x 02(2)

(April 18, 2005); 05 x 07 (November 1, 2005); and OGE Informal

Advisory Opinion 04 x 10 (July 20, 2004).

5 C.F.R. § 2635.804(c)(2)contains a comprehensive definition

of a Presidential appointee to a full-time noncareer position as

well as a brief list of exclusions from the definition.

A typical example of a PA employee is the Director of the Office of

Government Ethics whose position is classified as level III of the

Executive Schedule pursuant to 5 U.S.C. § 5314.

C. Distinguishing Between CNC and PA Employees

An employee can be both a CNC and a PA employee at the same

time.

Once you have determined that an employee is a PA employee,

even if he is also a CNC employee, the stricter complete ban on

outside earned income always applies, superseding the

15% limitation on outside earned income applicable to

CNC employees.

For instance, the Deputy General Counsel for the Department of

Defense qualifies as both a CNC employee and a PA employee because

he is appointed by the President to a position classified as

level V of the Executive Schedule pursuant to 5 U.S.C. § 5316.

This appointment satisfies the requirement in 5 C.F.R.

§ 2636.303(a)(1) for a CNC employee as well as requirements under

5 C.F.R. § 2635.804(c)(2) for a PA employee. Because this employee

is subject to the outside earned income ban, no analysis under the

15% limitation is necessary.

In contrast, once you have determined that an employee holds a

CNC position you cannot assume that employee will also be a

PA employee because many CNC employees are not appointed by the

President. For example, a Deputy General Counsel appointed to his

position by the General Counsel of an agency as a noncareer member

of the Senior Executive Service is a CNC, but not a PA employee.

His appointment satisfies the required elements in 5 C.F.R.

§ 2636.303 (assuming he meets the minimum pay threshold), but his

appointment does not satisfy 5 C.F.R. § 2635.804(c)(2) because he

is not appointed by the President.

II. What is the Book About?

Once you have decided that the employee in question is a

CNC employee, a PA employee, or both, the next important question

is whether the subject matter of the book is related to the

employee’s official duties. Both CNC and PA employees are

prohibited from receiving compensation for writing a book that is

related to their official duties. See 5 C.F.R. § 2635.807.

A PA employee usually also is a CNC employee unless he fails

to meet the minimum salary requirement for a CNC employee.

CNC and PA employees generally are prohibited from accepting

compensation for writing a book that deals in significant part with

any of the following three subject matter categories:

• the subject deals in significant part with the

general subject matter area, industry, or economic

sector primarily affected by the programs and

operations of the employee’s agency. 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(3); or

• the subject deals in significant part with any

matter to which the employee presently is assigned

or to which the employee had been assigned during

the previous one-year period, 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(1); or

• the subject deals in significant part with any

ongoing or announced policy, program or operation

of the employee’s agency.

5 C.F.R.

§ 2635.807(a)(2)(i)(E)(2).

Under section 2635.807(a)(2)(i)(E)(2), an employee is not

prohibited from receiving compensation for writing a book that only

incidentally discusses his agency’s programs. For example, a

CNC employee who works at NASA may receive compensation for writing

a book on the subject of engineering advances in modes of

transportation containing a single chapter discussing NASA’s space

shuttle program, provided that the information described is

available to the public. This type of book does not deal in

significant part with NASA’s space shuttle program.

A. General subject matter area, industry, or economic

sector primarily affected by the programs and

operations of agency

This provision of section 2635.807 is very broad and more

restrictive than the other provisions cited above. See 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(3). For example, a CNC employee of the

For the purposes of the Standards of Conduct, agency programs

or operations refer to any program or function carried out or

performed by an agency, whether pursuant to statute, Executive

order, or regulation. 5 C.F.R. § 2635.102(d).

National Labor Relations Board who is subject to this provision may

not write a book and receive compensation if the book concerns, in

significant part, the general topic of the United States labor

movement. The receipt of compensation is impermissible because the

topic concerns the general subject matter area primarily affected

by the employee’s agency. As a result, this employee will be

prohibited from receiving compensation for this book, even though

the writing does not specifically involve operations, policies or

programs of his agency. For a further discussion and analysis of

whether receipt of compensation is prohibited based on the topic of

the writing under 5 C.F.R. § 2635.807(a)(2)(i)(E)(3), see

OGE Informal Advisory Opinion 85 x 18 (October 28, 1985) and

OGE Informal Advisory Letter 89 x 17 (September 26, 1989).

B. Matters to which a CNC or PA employee is or has been

assigned

The second provision above applies to any matter to which the

employee is assigned or has been assigned during the past year.

This prohibition also applies to high ranking CNC and PA employees

who are responsible for making their own assignments.

Under this

second restriction, for example, an employee of the National

Aeronautics and Space Administration (NASA) who is assigned to

create a research program related to extraterrestrial intelligence

could not receive compensation for writing a book on NASA’s

research program. See also 5 C.F.R. § 2635.807(a)(2)(i)

(Example 8).

C. Ongoing announced policy, program or operation of agency

An employee may receive compensation for writings discussing a

general area of expertise that do not inherently implicate agency

programs. See 5 C.F.R. § 2635.807(a)(2)(i)(E)(2) (Examples 3 and

4); OGE Informal Advisory Letter 01 x 07 (August 10, 2001).

The term “matter” is virtually all-encompassing with respect

to the work of the Government and covers even the consideration or

the adoption of broad policy options that are directed to the

interests of a large and diverse group of persons. See DAEOgram

DO-06-029, https://www.oge.gov/Web/OGE.nsf/Resources/DO-06-029:

+"Particular+Matter+Involving+Specific+Parties,"+"Particular

+Matter,"+and+"Matter".

See 5 C.F.R. § 2635.402(c)(1)(stating that an employee

responsible for making his own assignments must take the necessary

steps to ensure that he does not participate in matters from which

he is disqualified).

Applying this general principle, a CNC employee who works at the

Securities and Exchange Commission (SEC) may receive compensation

for writing an economics textbook, under this subsection, because

the topic of economics is not an agency program or operation.

However, if the book specifically focuses on the SEC’s regulatory

scheme for registered mutual funds, the employee could not accept

compensation for writing it because it would deal in significant

part with an ongoing or announced policy, program or operation of

the employee's agency.

For further guidance concerning whether or not the subject

matter of an employee’s writing is related to his official duties

based upon the subject matter of the book, see examples 3, 4 & 6 in

5 C.F.R. § 2635.807(a)(2)(i) of the Standards of Conduct. Also, for

additional discussion and analysis regarding whether a particular

topic may be related in significant part to an ongoing or announced

policy, program or operation of the employee’s agency, see 5 C.F.R.

§ 2635.807(a)(2)(i)(E)(2) (Example 2); OGE Informal Advisory

Opinions 01 x 07 (August 10, 2001) and 01 x 10 (November 13, 2001).

As described above, you will have to decide whether the

employee is barred from receiving compensation for the book because

the subject matter is related to his official duties. If you

conclude that the subject matter falls within one of the categories

described in section 2635.807(a)(2)(i)(E)(1)-(3) the employee may

be barred from receiving compensation, depending on when the book

This CNC employee at the SEC may also receive compensation

for this textbook under 5 C.F.R. § 2635.807(a)(2)(i)(E)(3)

(prohibiting a CNC employee from receiving compensation for writing

that deals in significant part with the general subject matter

area, industry, or economic sector primarily affected by his

agency). The employee may receive the compensation under this

provision because the academic field of economics does not qualify

as the general subject matter of the SEC.

“Agency programs or operations” include substantive core

programs and operations that fulfill an agency’s mission. The term

does not include work that all agencies perform that is not related

to an agency’s core mission. Examples of such work include

fulfilling Freedom of Information Act requests or dealing with

personnel disputes. See 5 C.F.R. § 2635.807(a)(2)(i) (Example 5).

is written and published, and the form of compensation

he would

receive. And in any event, even if the employee decides to proceed

with writing the book without any compensation, you will still need

to address the considerations discussed in Section VI.

III. When is the Writing Performed and

When is the Compensation Received?

A. Introduction

Timing issues make the analyses of book deals particularly

difficult. The combination of when the writing occurs and when the

compensation is paid will dictate different conclusions about

whether the compensation is permissible. The most common scenario

where section 2635.807, the 15% limitation, and the outside earned

income ban apply is when a PA or CNC employee writes the book and

receives the compensation during Government service. However,

permutations in the timing of the writing and the payment of the

compensation do occur, and must be analyzed accordingly.

There are several rules of thumb that can help make the timing

issues a little less complex.

• First, ethics rules do not restrict receipt of

compensation unless the writing occurs during Government

service;

• Second, while ethics rules generally only restrict

receipt of compensation during Government service, in

certain cases payments made before or after Government

service for writing that occurs during Government service

also may be restricted; and

• Finally, where receipt of compensation is permitted, you

still must make a special calculation under the

15% earned income limitation to determine how much

compensation can be received in any one calendar year.

Because the definition of “compensation” as it applies to

the outside earned income ban and the 15% limitation specifically

excludes royalties, it will still be necessary to do an analysis

under section 2635.807 when a CNC or PA employee has a contract to

write a book that includes the receipt of royalties. 5 C.F.R.

§ 2635.804(c)(1). A further discussion of the distinct treatment

of advances and royalties is contained in section IV of this

summary.

This section discusses these rules of thumb for each of the

three applicable ethics provisions (i.e. section 2635.807, the

15% limitation, the outside earned income ban). The section also

contains two tables that provide a summary of how the possible

combinations of the timing of the writing and the receipt of

compensation affect whether compensation is permitted under the

three applicable provisions.

B. When does the writing occur?

Section 2635.807, the 15% limitation, and the outside earned

income ban apply to an individual while he serves as a Government

employee. Therefore, each provision restricts compensation only

for writing that occurs while an individual is in Government

service. If the writing is done either before or after Government

service, none of these provisions will apply.

For example, none of the provisions will bar a PA or

CNC employee who writes a book before entering Government from

receiving compensation for the book while he is an employee.

Similarly, a former PA or CNC employee, after leaving Government

service, may enter into an agreement with a publisher and receive

compensation for writing a book, even if the book is about his

Government service.

Some writing that occurs during Government service will not

implicate the rules because no compensation is received for the

writing. For example, a PA or CNC employee who writes a book on

any topic solely on speculation (i.e. with no agreement to publish

the book) during Government service will not violate any of the

three provisions. This is because the employee has not received,

or even agreed to receive, compensation for his writing.

Similarly, an employee who keeps a diary or notes or other similar

materials for use in writing a book after his Government service

has terminated will not violate any of the three provisions,

provided he does not, during Government service, receive

compensation or have an agreement to receive compensation.

An employee may receive compensation, such as royalties,

for a book completed prior to entering Government service even if

the book is about his agency’s programs. However, there may be

limitations on the promotional activities he could undertake while

an employee. See Section VI infra.

See Section VI, infra, for a discussion of the rules

relating to diaries and notes kept during Government service.

C. When is the compensation received?

Generally, section 2635.807, the 15% limitation, and the

outside earned income ban will not apply to a PA or a CNC employee

unless the compensation is received during Government service. As

described above, for example, an employee who writes a book on

speculation during Government service will not violate any of the

three provisions if he enters an agreement after Government service

to publish the book.

Nevertheless, there are several situations where the

three rules will apply even if compensation is paid before or after

Government service.

First, an employee cannot simply defer the receipt of payment

for a book written while an employee, to a time after he terminates

Government service. When an employee signs a contract to receive a

future payment or receives other consideration for a book written

while an employee, he has “received” compensation while a

Government employee.

Second, a PA or CNC employee who has received compensation,

prior to entering the Government, for writing a book during

Government service, may not be able to write the book while an

employee. In this case, the employee would still “receive” the

compensation while he is an employee because receiving the

compensation is contingent on undertaking the writing during

Government service. This situation sometimes occurs when an

individual has entered a book contract and then is selected for a

Government position before he has written the book. Similarly, the

issue may arise when an employee has published a book prior to

entering the Government on a topic that is “related to” his

Government duties or to agency programs, and then is asked by the

publisher to update or edit the book while he is serving in the

5 C.F.R. § 2635.807(a)(2)(iv) and 5 C.F.R. § 2636.303(c)

both describe the term “receive” to mean that there is actual or

constructive receipt of the compensation so that the employee can

exercise dominion and control over the compensation and direct its

subsequent use. In addition, section 2636.303(c) specifically

states that compensation “is received while an individual is an

employee if it is for conduct by him that occurs while an employee,

even though actual payment may be deferred until after Federal

employment has terminated.” OGE interprets this definition of

“receive” to apply equally to section 2635.807.

Government.

To comply with the applicable rules, a PA or

CNC employee in these situations would have to defer the actual

writing or editing until after he terminates Government service.

Third, an employee who enters a contract to write a book

during Government service and defers payment for the book until

Government service is terminated, still would be subject to the

restrictions on compensation if he keeps a diary, notes or other

similar materials upon which the book will be based. In such a

case, the employee’s receipt of compensation for the book would

also be, in part, for writing the preparatory materials generated

during Government service.

Finally, a PA or CNC employee cannot circumvent the

restrictions of section 2635.807, the 15% limitation, and the

outside earned income ban by having the compensation paid to

another person, including a charitable organization. In such

cases, the compensation is still considered to have been “received”

by the employee.

D. How to Calculate the 15% Limitation

A CNC employee may not, in any calendar year, have outside

earned income attributable to that year which exceeds 15% of the

annual rate of basic pay for Level II of the Executive Schedule.

5 U.S.C. app. § 501(a)(1). Regardless of when the compensation is

actually paid, a CNC employee may not receive income in excess of

the 15% limitation for services provided in a calendar year.

See Section VI, infra, for a further discussion of the rules

related to editing and proofreading.

Both 5 C.F.R. § 2635.807(a)(2)(iv) and 5 C.F.R.

§ 2636.303(c) state that an employee “receives” compensation if it

is paid (1) to another person on the basis of designation,

recommendation, or other specification by the employee, or (2) with

the employee’s knowledge and acquiescence to his parent, sibling,

spouse, child or dependent relative.

As of January 1, 2008, the rate of basic pay for Level II of

the Executive Schedule was $172,200. Fifteen percent of that

amount is $25,830.

The 15% limitation is determined on a pro rata basis for an

individual who becomes a CNC employee during a given calendar year.

See 5 C.F.R. § 2636.304(b). In other words, a CNC employee may not

receive more than 15% of the annual rate of basic pay for Level II

of the Executive Schedule in effect on January 1 of the calendar

(continued)

For example, a CNC employee who signs a contract to write a

book in 2008 that calls for a $60,000 cash advance and 5% of the

royalties from books sold, would be allowed to keep the royalties

(regardless of the amount) because royalties are not considered

“earned income.” However, the CNC employee would be able to accept

only $25,830 of the advance because he is limited to receiving

15% of Level II of the Executive Schedule for writing in that

calendar year.

On the other hand, if the book contract makes clear that an

advance is for writing that will occur in stages over more than one

calendar year, a CNC employee may be able to accept a larger

advance. For example, suppose a CNC employee entered a book deal

to receive a $60,000 advance payable in three installments (i.e.

when the first draft of the manuscript was submitted; when the

second draft was submitted; and when the final product was

published), he could not receive two installments of $20,000 (for a

total of $40,000) for two drafts completed in a single calendar

year, because the two installments exceed the 15% limitation. Nor

could he simply defer payment of the amount of the installments

that exceeds the 15% limitation to the next calendar year. The

15% limitation applies to compensation attributable to the year in

which the services were provided. However, in this scenario, the

CNC employee could write the first draft in Year 1 and receive

$20,000; write the second draft in Year 2 and receive another

$20,000; and complete the book in Year 3 and receive the final

$20,000 installment.

year he becomes a CNC employee, divided by 365 days and multiplied

by the number of days in which he serves as a CNC employee.

The 15% limitation applies to the aggregate of all outside

earned income attributable to a calendar year and not just to

income earned for writing. Therefore, an employee may only accept

the full $25,830 for writing attributable to a calendar year in

which he has not received any other earned income attributable to

that year.

One final important thing to remember about the 15% limitation

is that most PA employees cannot receive any outside earned income

during Government service, so the rules on how to apportion

payments received for writing will not apply to them. In addition,

a CNC employee who writes on a topic “related” to his duties as

defined in section 2635.807, may not receive any earned income or

compensation for the writing. Therefore, these rules on how to

apportion payments for writing will apply to a CNC employee only if

the writing is not related to his duties.

Table 1: Timing of Writing and Receipt of Compensation

If the writing

occurs:

And if the

compensation

is received:

Then, under the Standards

of Conduct § 2635.807 :

PA & CNC Employees

Then, under the

Outside Earned

Income Ban:

PA Employees

Then, under the

15% Outside

Earned Income

Limitation:

CNC Employees

Before Gov’t

Service

Before Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

Before Gov’t

Service

During Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

Before Gov’t

Service

After Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

During Gov’t

Service

Before Gov’t

Service*

1. Compensation barred if

“related to official duties”

2. Compensation permitted if

not “related to official duties”

1. Advance barred

2. Royalties

permitted

1. Advance counts

toward limit

2. Royalties do not

count toward limit

During Gov’t

Service

During Gov’t

Service

1. Compensation barred if

“related to official duties”

2. Compensation permitted if

not “related to official duties”

1. Advance barred

2. Royalties

permitted

1. Advance counts

toward limit

2. Royalties do not

count toward limit

During Gov’t

Service

After Gov’t

Service**

1. Compensation barred if

“related to official duties”

2. Compensation permitted if

not “related to official duties”

1. Advance barred

2. Royalties

permitted

1. Advance counts

toward limit

2. Royalties do not

count toward limit

After Gov’t

Service

Before Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

After Gov’t

Service

During Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

After Gov’t

Service

After Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

* The rules restricting receipt of compensation by Government employees for writing do apply to a book advance made

prior to Government employment, if the payment is for a book to be written during Government employment. This is the

case because the payment is conditioned on the performance of work during Government service.

** The rules do not apply, however, if the employee writes the book “on speculation”. (See

discussion in section III B,

supra.)

Table 2: Timing of Contract, Writing and Compensation

If the

employee

signs the

contract:

The writing

AND

compensation

occur:

Then, under the Standards

of Conduct § 2635.807 :

PA & CNC Employees

Then, under the

Outside Earned

Income Ban:

PA Employees

Then, under the

15% Outside

Earned Income

Limitation:

CNC Employees

Before Gov’t

Service

After Gov’t

Service

Compensation permitted

Compensation

permitted

Compensation

doesn’t count

toward limit

During Gov’t

Service

After Gov’t

Service***

Compensation permitted Compensation

permitted

Compensation

doesn’t count

toward limit

*** A book based on a diary or notes kept while in Government service, however, is considered writing during

Government service if the keeping of the diary or taking of the notes are done pursuant to an agreement to receive

compensation for these services. (See

discussion in section VI A, infra.)

IV. What is the Type of Compensation?

A. Royalties vs. Advance Payments

For book deals, the two most common types of payment are

(1) royalties--a percentage of the proceeds from the sale of each

book paid to the author from the publisher, and (2) an advance--an

up front cash payment from the publisher to the author that is

earned back through future sales.

Determining whether the employee will receive royalties and/or

an advance for writing a book is important because royalties and

advances from book deals are not treated the same under all ethics

rules for CNC and PA employees. Under section 2635.807 of the

Standards of Conduct both royalties and advances are treated as

compensation.

However, under the 15% limitation and the outside

earned income ban, only advances are considered “compensation” and

“earned income”. Royalties are not considered “compensation” nor

“earned income” under the 15% limitation or the outside earned

income ban.

This distinction between royalties and an advance for the

15% limitation and the outside earned income ban is based on the

concept that royalties are not “earned” income. More specifically,

an employee with a royalty interest in a manuscript is deemed to

retain a mere property right in the residual income stream, making

it more akin to investment income than to earned income. Therefore,

the income an author receives from book royalties does not fall

within the concept of “earned income.”

5 C.F.R. § 2635.807(a)(2)(iii)(“compensation includes any

form of consideration, remuneration or income, including royalties,

given for or in connection with the employee’s . . . writing

activities.”)

Specifically, outside earned income and compensation under

the 15% limitation and the outside earned income ban mean wages,

salaries, honoraria, commissions, professional fees and any other

form of compensation for services other than salary, benefits and

allowances paid by the United States Government. These terms do not

include, among other things, copyright royalties and their

functional equivalent. See 5 C.F.R. § 2636.303(b)(5); 5 C.F.R.

§ 2635.804(c)(1).

See OGE Informal Advisory Opinions 82 x 18 (December 3,

1982), 83 x 4 (March 25, 1983), 89 x 17 (September 26, 1989), and

95 x 9 (July 21, 1995).

B. How to Apply the Distinction Between Royalties and Advances

The following examples illustrate how the distinction between

advances and royalties affects the results in particular cases.

Because royalties and advance payments are both considered

compensation under section 2635.807, neither a CNC employee nor a

PA employee at the National Institutes of Health (NIH) may receive

a cash advance or royalties as compensation for writing a book

during Government service that is related to his official duties.

However, because book royalties are excluded from the definition of

“earned income,” a CNC employee as well as a PA employee may

receive an unlimited amount of royalties for a book written during

Government service, provided that the writing is not related to his

official duties and all other ethics requirements have been

satisfied.

In contrast, because an advance is considered “earned income,”

a PA employee may not accept any advance for writing a book during

his Presidential appointment. For example, the General Counsel for

the Department of Veterans Affairs, a PA employee appointed under

5 C.F.R. § 5315, may receive all royalties generated from a book

written during his appointment concerning global warming. The book

is not related to his official duties, and the royalties are not

“earned income.” He cannot, however, accept any advance for writing

the book during his Presidential appointment because the advance is

“earned income.” A CNC employee may receive an advance worth up to

15% of the basic rate of pay for level II of the Executive Schedule

in any calendar year to which the outside earned income from that

book is attributable.

Depending on the terms of the contract, a CNC employee might

be able to accept advances greater than the 15% limitation when an

amount smaller than the 15% limit is attributable to any one

calendar year. For instance, if a CNC employee in the Department of

Education writes a diet book during Government service, he may

accept all of the advance payments if the contract calls for a

$20,000 advance due upon signing the contract in 2008 and a $20,000

advance payment in 2009 when the manuscript is completed. Because

the payments are tied to bona fide events called for in the

contract and these terms fall within the normal practice of the

publishing industry for this type of book, the payments are

“received” in the respective years in which they are paid and when

the writing occurs. However, if this employee receives a one time

$40,000 advance in 2008 for the diet book that is not explicitly

tied to bona fide benchmarks in the contract, the advance is

attributable to 2008. Therefore, under the 15% limitation, the

employee may only receive up to $25,830 (i.e. 15% of the rate of

basic pay for an EL-II in 2008) of the $40,000 advance.

As mentioned above, the 15% limitation and the outside earned

income ban also apply to agreements between a publisher and an

employee to pay the employee in the future for writing that occurs

during his Government appointment. See OGE Informal Advisory

Opinion 82 x 18 (December 3, 1982). As an example, the Chief

Financial Officer (CFO) at the Department of Health and Human

Services is a PA employee who writes a book about collecting

baseball cards. He cannot receive a $20,000 payment after his

Presidential appointment, if it was previously agreed that the

publishing company would pay for writing that took place during his

Presidential appointment (The CFO is able to receive an unlimited

amount of royalties since the topic is not “related” to his

duties). Finally, he will be unable to direct an advance of $20,000

to the Major League Baseball Hall of Fame for writing that will

occur during his Government appointment.

V. Who is Offering the Compensation and Why?

If, after answering the four previous questions, you have

determined that an employee’s receipt of compensation for writing

is not prohibited, you should then consider the next questions: Who

is offering the compensation and why? The analysis of these

questions will be the same for CNC and PA employees.

A CNC or a PA employee is prohibited from receiving

compensation for writing (including royalties) if he is asked to

write a book, (1) by someone who will be substantially affected by

the performance of his duties or (2) if the offer is extended

primarily because of his official position rather than his

expertise in the subject of the book.

The 15% limitation and the ban apply, respectively, to both

a CNC employee and a PA employee who “receives” an advance by

directing that the payment for his book be made to a third party.

5 C.F.R. § 2636.303(c); See, OGE Informal Advisory Letter 89 x 17

(September 26, 1989).

Specifically, section 2635.807 states that an employee may

not receive compensation if, (1) the invitation or offer of

compensation was extended by a person or entity who may be

substantially affected by the performance of the employee's

official duties; 5 C.F.R. § 2635.807(a)(2)(i)(C), or (2) the

circumstances indicate that the invitation to write the book was

extended to the employee primarily because of his official

position, rather than his expertise in the subject; 5 C.F.R.

§ 2635.807(a)(2)(i)(B).

The first provision deals with the possibility that the public

may question the integrity of a Government official who is being

compensated for writing a book, based upon who made the offer.

Normally the source of the offer to publish a book will be a

publishing company, and the duties of most Government employees

will not substantially affect a book publisher. Sometimes, however,

this restriction may be relevant. For instance, an ethics official

may need to consider section 2635.807(a)(2)(i)(C), if an employee

at the National Institutes of Health signs a book deal with a

publishing company that publishes a medical journal and, as part

of his job, reviews articles for publication in the same journal.

The second provision deals with the possibility that the

integrity of a Government official writing a book may be questioned

based upon why the offer to write the book was made. It will often

be difficult to determine the various motives behind an offer to a

Government employee to write a book. In fact, it is almost always

possible that a Government employee is extended an offer to write a

book, at least in part, because of his official position. This can

be true especially for CNC and PA employees who may have a higher

profile than other Government employees.

Normally, a publishing company will offer a book deal to a

Government employee who has a high level of expertise in, or