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July 23, 2014

Keep Working While Furloughed? | A Question of Ethics

Q. I am a staffer for a member of the House. The government shutdown has caused most members’ offices to furlough staffers, and I am one of them. Unfortunately, there are a number of things I was working on before the shutdown, and I’d like to be able to make some progress on them while on furlough. I’m not being paid either way, so I figure I might as well be productive. The problem is that I’ve been told I’m not supposed to do any work while out. Is this really prohibited?

A. Answering this question reminds me of the type of thing I might tell my young children when using reverse psychology. “Do not do any work. Whatever you do, you may not do any work.”

Believe it or not, those are essentially the marching orders for staffers who have been furloughed. A general prohibition prevents all nonessential federal workers, including nonessential House staffers, from working while on furlough.

The House Administration Committee confirmed this in guidance recently issued to members. “If I furlough an employee, can he/she still come into work?” asks one question in the guidance. The answer? “No, if you have decided that an employee is non-essential, he/she cannot perform official duties, (either at the office or at home).”

There are several reasons for this. One is an old law known as the Anti-Deficiency Act, which has its origins in 19th-century budget battles between the executive branch and Congress. Under the Constitution, no money may be drawn from the Treasury unless appropriated by Congress. This means that Congress generally has discretion over which government services to fund and how much to fund them.

During the 19th-century budget battles, executive branch departments would seek ways around the financial constraints of running out of funds appropriated to them. (Sound familiar?) One method was to allow employees to perform government services on a volunteer basis. When the volunteers later asked to be paid for their services, there would be a “deficiency” of funds. Congress would sometimes feel compelled to fill that deficiency so that the volunteers could receive retroactive payment for their services.

The Anti-Deficiency Act prohibits this practice. Specifically, it states that a federal official “may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.” Federal officials have interpreted this to mean that when there is a lapse in appropriations for government services, they may not allow those services to continue on a volunteer basis.

Note that this doesn’t mean that all government services must shut down whenever there is a lapse in appropriations. As a 1995 memorandum by the Office of Management and Budget observed, the commonly used term “government shutdown” to refer to a lapse in appropriations is in fact an “entirely inaccurate description.” A true government shutdown, the memo states, would mean no air traffic control, FBI, customs services, border control, stock markets or VA hospitals, among other vital services. A “true shut down of the federal government,” the memo says, “would impose … incalculable amounts of suffering and loss.”

Thus, even during a lapse in appropriations, such as the current one, the Anti-Deficiency Act permits the continuation of certain essential services. The House has determined that the essential services of House staffers include those that are associated with constitutional responsibilities, the protection of human life or the protection of property. Each member must determine which of his or her staffers perform such duties. All others — that is, nonessential employees — must be placed on furlough.

Under the Anti-Deficiency Act, then, furloughed staffers may not perform their official duties on a volunteer basis while on furlough. The recent guidance by the House Administration Committee explains just how broad this prohibition is. For example, a member’s office “may not communicate with a furloughed employee about official duties and the furloughed employee may not perform official duties by email or telephone.” As a way to ensure compliance, the guidance suggests that a member’s office may even require furloughed staffers to turn in their cellphones, laptops and BlackBerrys.

One wonders whether even this is enough to comply. Keep in mind that, technically speaking, violations of the Anti-Deficiency act can be considered crimes, punishable by up to two years in jail. So, what if your mind strays and you start having productive thoughts about the projects you were working on before being furloughed? It seems that if you really want to make sure you don’t break the law against working while on furlough, merely turning in your cellphone and turning off your computer won’t do the trick.

Have you considered a lobotomy?

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