U.S. Office of Government Ethics Issues New Guidance on Official Social Media Use
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
On January 30, 2023, the U.S. Office of Government Ethics (OGE) issued a Legal Advisory to provide guidance on how Federal ethics rules, as well as conflict of interest statute 18 U.S.C. § 208, apply to executive branch employees’ use of official government social media.
The memo first discussed federal employee obligations regarding use of government property. Official social media accounts, which are defined as accounts the agencies use to conduct official outreach, are considered Government property. Employees have an obligation to “protect and conserve” this Federal property and use it for authorized activities by operating accounts “in accordance with applicable agency directives, regulations, and policies.” Correspondingly, OGE encouraged agencies to establish policies that “identify authorized uses of official social media accounts” as well as to “create procedures and processes” to mitigate risk of unauthorized use. In addition to ensuring authorized individuals use social media accounts properly, OGE emphasized the importance of preventing unauthorized access and use of accounts by unauthorized individuals, such as former employees and creating a policy that helps to enforce this goal.
The memo next addressed proper use of social media accounts and endorsements. Ordinarily, employees may not use their Government position or title to issue endorsements. If an employee operating an official Government social media account appears to endorse a product or service, the endorsement must meet one of the regulatory exceptions outlined in 5 C.F.R. § 2635.702(c). The regulatory exceptions provide that endorsement are only appropriate under two circumstances: “(1) In furtherance of statutory authority to promote products, services or enterprises; (2) As a result of the documentation of compliance with agency requirements or standards or as the result of recognition for achievement given under an agency program of recognition for accomplishment in support of the agency’s mission.” If an employee wishes to “like,” repost, or link content created by an external organization, they should take into consideration “whether the content should be reasonably construed as an endorsement.” As this distinction can be difficult to make, OGE encouraged agencies to either limit references to non-Governmental entities or establish review procedures for engaging with such entities. It further noted that including a disclaimer indicating that liking, reposting, or linking content does not constitute an endorsement can be helpful but may not always be sufficient.
Lastly, the memo addressed conflicts of interest and impartiality. 18 U.S.C. § 208 prohibits employees from participating personally and substantially in any matter they know would have a “direct and predictable effect on their own financial interest.” Accordingly, this statute prohibits employees who own stock or other equity in a social media network from participating in any matter that would “directly or and predictably affect the financial interests of the social media network.” Employees are, generally, also required to not give preferential treatment or any private organization or individual. OGE identified several areas in which that may give rise to conflicts of interest and impartiality concerns, including technical management of an account—including opening, operating, and closing accounts—as well as participation in the preparation of official content.
Employees who have an equity interest in a social media platform that allows users to create free accounts may participate in the decision to open or close a free account on that platform without violating 18 U.S.C. § 208. They may not do so, though, if the decision to establish a free official account on that platform requires negotiations or changes to the Terms of Service. If a social media site charges users to create an account, an employee who has an equity interest in the platform also cannot participate in the decision to open or close an account. Additionally, if an employee has a “covered relationship” with a social media platform under 5 C.F.R. § 2635.502, such as an employee who receives payments from the platform, they must also take impartiality concerns into consideration.
Alternatively, an employee with stock in a social media network also does not violation 18 U.S.C. § 208 “merely by creating and editing content that will be posted on an official social media account on that network.” If an employee has an investment interest in a third party that is referenced in official social media content, though, that may pose an issue. Such employees should consider their involvement in the matter being posted about. For example, if an employee has stock in a company and writes a social media post announcing that the agency has awarded a contract to that company, the employee may participate in the post so long as they were not involved in awarding the contract.
Find the full Legal Advisory here: The Standards of Conduct and 18 U.S.C. § 208 as Applied to Official Social Media Use.
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