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CHIPS Articles: The Standards of Conduct as Applied to Personal Social Media Use

The Standards of Conduct as Applied to Personal Social Media Use
What federal employees need to know
By Sharon Anderson - April-June 2015
The U.S. Office of Government Ethics released The Standards of Conduct as Applied to Personal Social Media Use April 9. (Available at http://oge.gov/OGE-Advisories/Legal-Advisories/LA-15-03--OGE-Issues-Legal-Advisory-on-the-Standards-of-Conduct-and-Social-Media/.)

According to the OGE, the guidance is not comprehensive. Due to the evolving nature of social media, the OGE will be issuing further guidance. Employees with further questions regarding the ethical use of social media are encouraged to contact their command ethics adviser.

The guidance was written due to the plethora of questions that the OGE has received from agencies seeking advice in understanding how the Standards of Ethical Conduct for Executive Branch Employees (Standards of Conduct), 5 C.F.R. part 2635, apply to the use of social media.

First, the Standards of Conduct do not prohibit executive branch employees from establishing and maintaining personal social media accounts. However, employees must ensure that their social media activities comply with the Standards of Conduct and other applicable laws, including agency supplemental regulations and agency-specific policies.

To assist employees and agency ethics officials, the OGE provided guidance regarding issues that agency ethics officials have frequently raised concerning employees’ obligations under the Standards of Conduct when using social media.

1. Use of Government Time and Property

When employees are on-duty, the Standards of Conduct require that they use official time in an honest effort to perform official duties. (See 5 C.F.R. § 2635.705.) As a general matter, this requirement limits the extent to which employees may access and use their personal social media accounts while on duty.

The Standards of Conduct also require employees to protect and conserve government property and to use government property only to perform official duties, unless they are authorized to use government property for other purposes. (See 5 C.F.R. §2635.704.)

For example, under the Standards of Conduct, a supervisor may not order, or even ask, a subordinate to work on the supervisor’s personal social media account. Coercing or inducing a subordinate to maintain the supervisor’s personal account would amount to a misuse of position and, if done on official time, a misuse of official time. The same would be true if the supervisor were to have a subordinate create content for the supervisor’s personal account, even if the subordinate were not involved in uploading the content to that account. (See 5 C.F.R. §§ 2635.702(a), 2635.705(b).)

In some cases, agencies have “limited use” policies which may authorize employees to access their personal social media accounts while on duty. Employees should follow their agency’s policies regarding use of government equipment.

Department of the Navy employees should follow the Acceptable Use Policy for DON IT Resources, DTG 031648Z Oct 11, available from the Department of the Navy Chief Information Officer website: http://www.doncio.navy.mil/ContentView.aspx?id=2829.

2. Reference to Government Title or Position and Appearance of Official Sanction

A question that frequently arises is the extent to which employees may reference their official titles on their personal social media accounts. In general, the Standards of Conduct prohibit employees from using their official titles, positions, or any authority associated with their public offices for private gain. (See 5 C.F.R. § 2635.702.)

The Standards of Conduct also require that employees avoid using their titles or positions in any manner that would create an appearance that the federal government sanctions or endorses their activities or those of another. (See 5 C.F.R. §§ 2635.702; 2635.807(b).2.)

Normally, employees’ use of personal social media does not create the impermissible appearance of governmental sanction or endorsement which would be prohibited under §2635.702(b). An employee does not, for example, create the appearance of government sanction merely by identifying his or her official title or position in an area of the personal social media account designated for biographical information. (See e.g. OGE Legal Advisory LA-14-08; OGE Informal Advisory Opinion 10 x 1.)

Ordinarily, an employee is not required to post a disclaimer disavowing government sanction or endorsement on the employee’s personal social media account. But where confusion or doubt is likely to arise regarding the personal nature of social media activities, employees are encouraged to include a disclaimer clarifying that their social media communications reflect only their personal views and do not necessarily represent the views of their agency or the United States.

A clear and conspicuous disclaimer will usually be sufficient to dispel any confusion that arises. (See OGE Legal Advisory LA-14-08 or check with your command ethics adviser.)

3. Recommending and Endorsing Others on Social Media

Social media networks, particularly those focused on job seeking, sometimes allow users to recommend or endorse the skills of other users. The Standards of Conduct permit employees to use social media to make such recommendations or endorsements in their personal capacity. It is not a misuse of position for employees to provide such endorsements merely because they have provided their official titles or positions in areas of their personal social media accounts that are designated for biographical information.

The OGE is aware that at least one social media service automatically adds a user’s name, title, and employer to any recommendation that the user posts regarding a job seeker. In any such case where title and employer name are added automatically, the OGE does not consider a recommendation to constitute a misuse of position because the recommendation is readily understood by users of the social media service to be personal, rather than official, in nature. An employee should not, however, affirmatively choose to include a reference to the employee’s title, position, or employer in a recommendation, except where 5 C.F.R. § 2635.702(b) expressly permits such references.

4. Seeking Employment through Social Media

Employees who are seeking or negotiating for employment through social media must comply with the applicable disqualification requirements of 5 C.F.R. § 2635.601, et seq., 18 U.S.C. § 208, and any additional requirements found in agency supplemental regulations. Public financial disclosure filers who are negotiating or have an arrangement concerning future employment or compensation also must comply with the notification requirements found in section 17 of the Stop Trading on Congressional Knowledge Act of 2012. (See 5 U.S.C. app. §101, note; OGE Legal Advisories LA-13-06 and LA-12-01 or contact your command ethics adviser.)

An employee is not considered to be seeking employment with any person or organization merely because the employee has posted a resume or similar summary of professional experience to the employee’s personal social media account. Likewise, an employee is not considered to be seeking employment merely because a person or organization has viewed the employee’s resume on that social media account or has sent an unsolicited message, including one containing a job offer, to the employee. An employee who receives an unsolicited message or job offer is seeking employment with the sender only if the employee responds to the message and the employee’s response is anything other than a rejection. (See 5 C.F.R. § 2635.603 or contact your command ethics adviser for assistance.)

An employee will be considered to be seeking employment with a person or an organization if the employee contacts that person or organization concerning future employment. In the age of social media, there many ways that an employee might contact a prospective employer and thereby trigger the seeking employment rules. For example, an employee would trigger the seeking employment rules by sending a message directly to the organization, uploading a resume or application to the prospective employer’s social media account for recruiting employees, or otherwise targeting the organization through a social media communication.

5. Disclosing Nonpublic Information

The Standards of Conduct prohibit employees from disclosing nonpublic information to further their private interests or the private interests of others. (See 5 C.F.R. § 2635.703.) This prohibition applies without regard to the medium used for the unauthorized disclosure.

In addition to the Standards of Conduct, other statutes and regulations prohibit the disclosure of specific categories of nonpublic information, such as classified or confidential information.

For DON employees, with questions regarding the protection of classified or protected information, please see Secretary of the Navy Manual, SECNAV M-5510.36 , Department of the Navy Information Security Program, June 2006, or contact your command security manager.

The Standards of Conduct generally do not prevent employees from discussing or sharing government information that is publicly available. Employees may not, however, accept compensation for statements or communications made over social media that relate to their official duties. (See 5 C.F.R. §§ 2635.807(a); 2635.703.)

6. Personal Fundraising

Employees may use personal social media accounts to fundraise for nonprofit charitable organizations in a personal capacity, but they must comply with 5 C.F.R. § 2635.808, the section of the Standards of Conduct that covers fundraising. As a general rule, fundraising solicitations over social media are permissible so long as the employee does not “personally solicit” funds from a subordinate or a known prohibited source. (See 5 C.F.R. § 2635.808(c)(1).)

Additionally, employees may not use their official titles, positions, or authority associated with their positions to further fundraising efforts. See 5 C.F.R. § 2635.808(c)(2); OGE Informal Advisory Opinion 96 x 2. Employees are not considered to have used their official titles, positions, or authority associated with their positions to further fundraising efforts merely because they have provided this information in areas of their personal social media accounts designated for biographical information.

7. Official Social Media Accounts

Many federal agencies maintain one or more official social media accounts for use in conducting official business. Put simply, official accounts are for official purposes.

The OGE encourages agencies to adopt policies indicating which employees are authorized to access official accounts and defining the authorized uses for those accounts. For additional information, visit the General Services Administration’s online Federal Social Media Community of Practice and Social Media Registry at http://www.digitalgov.gov/.

For DON employees, please see SECNAVINST 5720.44, DON Public Affairs Policy and Regulations, of Feb. 21, 2012, for information regarding guidance for maintaining an official social media account: http://www.doncio.navy.mil/ContentView.aspx?id=4006.

Please contact your command ethics adviser if you have questions.

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