Are Your Union Officers Violating a Criminal Statute With Your Money?

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By on August 2, 2018 in Human Resources with 0 Comments

Stack of legal documents with two rubber stamps, one labeled 'compliance' and the other labeled 'legal'

In a recent article, a commenter pointed out a law forbidding Federal employees from being paid by an organization with an active interest involving the government. That got my attention, so I decided to check out the claim.

Turns out the person was spot on. To keep it relatively simple, let’s look at what the Office of Government Ethics has to say about it:

  • 18 USC §203 prohibits an executive branch employee from receiving any form of compensation derived from representing others before the executive branch or courts where the United States is a party or has a direct interest. 
  • 18 USC §205 bars Government employees from representing anyone other than themselves on any matter before the executive branch if the U.S. has an interest.
  • 18 USC §209 prohibits employees from being paid by someone other than the U.S. for doing their official duties. There are exceptions but none of them apply to union representatives.

In Office of Government Ethics guidance 92×6 dated 2/25/1992, in reply to an Agency Ethics Official, the Office said:

This responds to the request of [an attorney in your office] whether 18 U.S.C. § 209 would bar [agency] employees who are  officials of [a Union] from accepting compensation from the [Union] for services they provide to the Union during normal duty  hours. As I understand it, the employees in question devote 100% of their official duty time to Union activities in accordance with [a specific section of] the agreement between the [agency] and the [Union]. They receive full Government salaries for these  activities; the compensation they would receive from the Union would be in addition to their Government salaries.

    Section 209 of Title 18 prohibits any person from receiving  “any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the  executive branch of the United States Government . . . from any  source other than the Government of the United States . . .” with  certain exceptions not relevant here. The statute contains a  parallel provision prohibiting anyone from making such payments where receipt would be a violation.

The Guidance went on to say:

If Congress believed that the  activities of a Union negotiator should not be considered “services  as an officer or employee of the United States” for purposes of  pay, it could have simply barred employees from receiving their  Government salaries during the time they are engaged in Union  activities. In our view, where Congress has specifically provided that the Federal Government must continue to pay employees  their usual Government salaries during the time they are engaged  in Union activities, those employees should be considered “on the  job” for purposes of pay and compensation. Any additional  payments made as compensation for these services, received from the Union or otherwise, would be inconsistent with the provisions  of 18 U.S.C. § 209 and would therefore be impermissible. (My emphasis)

You might also want to take a look at Guidance Letter 94X15 which limits Agency ability to communicate with labor organizations and which has been ignored totally.

So, What’s Going On?

So, I poked around a bit looking at union reports to the Department of Labor called LM-2s and LM-3s. Interestingly, most that I looked at didn’t show salary payments to union officers in the reports.

For those that did, I looked to see if they might have put the amount in the wrong place as there is a disbursements block as well as a salary block. In every case in which the salary block had an amount, so did the disbursements, so it appears fair to assume these folks were getting paid by the union if they were a Federal employee.

OK, so I then checked out the Federal employee salary database provided by FedSmith and guess what? Almost all the folks getting salaries from the union were on their Agency payroll at the same time.

So, What’s the Big Deal?

The big deal is 18 U.S. Code 209 which says:

18 U.S. Code § 216 – Penalties and injunctions

(a)The punishment for an offense under section 203, 204, 205, 207, 208, or 209 of this title is the following:

(1) Whoever engages in the conduct constituting the offense shall be imprisoned for not more than one year or fined in the amount set forth in this title, or both.

(2) Whoever willfully engages in the conduct constituting the offense shall be imprisoned for not more than five years or fined in the amount set forth in this title, or both. (My emphasis)

(b) The Attorney General may bring a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of a civil penalty under this subsection does not preclude any other criminal or civil statutory, common law, or administrative remedy, which is available by law to the United States or any other person.

(c) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under section 203, 204, 205, 207, 208, or 209 of this title, the Attorney General may petition an appropriate United States district court for an order prohibiting that person from engaging in such conduct. The court may issue an order prohibiting that person from engaging in such conduct if the court finds that the conduct constitutes such an offense. The filing of a petition under this section does not preclude any other remedy which is available by law to the United States or any other person.

Also interesting is the idea mentioned in the guidance that whoever authorized the payment of the salaries violated the law as well. I think that means that if the union president and treasurer both collected a salary and authorized it for themselves or others, they violated the law twice.

So, What’s Next?

As a mere article writer for FedSmith, it’s not my business to enforce the law, tell Inspectors General or Agency ethics officials how to do their job or investigate crime. But if a union official has certified by their signature to the Department of Labor in a statutorily required form that certain officials have received union salaries while getting government salaries, it might look like pretty substantial proof of a violation to even the most risk averse Agency lawyer or IG out there. I think it would be a pretty cut and dried matter.

So, you might want to look up your union council and/or local (councils appeared more likely to be paying when I looked) on the DOL website and have a word with your ethics and IG folks if you see the union paying officers who are already on Uncle Sam’s clock. If an Agency official needs some help looking up the LMs on the DOL website, let me know.

I was a little taken aback when I looked at this issue. These folks are mostly sworn Federal employees who get a mandatory ethics briefing or training session each year.

Also, after my last article in which some commenters appeared to defend virtually anything a union might do, I’m interested in whether we’ll all hear the ever-present refrain: “but it’s only a little crime, so its ok”.

Remember, these folks diverted dues money into their own pocket for their personal gain. Where is the national union and what are they doing to guarantee members money is safeguarded from the sticky fingered?

Any opinion expressed above is mine. In this case, there are only a few since the evidence speaks for itself.

OGE Opinion on Union Payments to Federal Employees

© 2018 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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