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SINCE

CIVILIAN EMPLOYMENT OF NAVAL

I

PERSONNEL

LIEUTENANT PAUL GARDNER, JR., USNR*

The two major problem areas with regard to off-duty employment are the possible impairment of the serviceman's official duties as a result of such employment and its impact upon the community at large and the civilian job force. This article collects and categorizes the existing regulations designed to minimize these problems. Lieutenant Gardner devotes particular attention to the area of conflict of interests which may arise from such employment, possibly compromising the member's position as a public servant. His article furnishes guidelines for the local commander who is vested with broad discretion in this matter.

INTRODUCTION

INCE THE DAYS of the original "9-to-5" worker, "free time" has been a coveted item. Utilization of free time in commercial and professional pursuits has come to be known by the term "moonlighting". While this term may carry faintly disparaging overtones, the concept of moonlighting is not without redeeming features. How a man uses his free time may affect not only his financial security, but also his sense of achievement and fulfillment. The effect of restrictions upon service morale is a legitimate consideration. There is thus justification for a constructive attitude upon the part of the Navy toward off-duty employment of its personnel.

At the same time, there are two considerations which dictate restraint. First, recognizing the advantage of outside employment as a morale factor, such activity should nevertheless be forbidden when it threatens to impair the performance of principal duties. In this instance, a permissive approach would be selfdefeating. Secondly, there is a somewhat less precise objection to permitting naval personnel to utilize their training in competition with civilians whose tax dollars facilitate developnent of these skills. Representing perhaps an >verly restrictive interpretation of the obligaions of the public servant to refrain from pri

Lieutenant Gardner is presently assigned to the Appellate Defense Division, Navy Appellate Review Activity, Office of the Judge Advocate General. He formerly served as an attorney in the Administrative Law Division, Office of the Judge Advocate General, from July 1963 to May 1965. Lieutenant Gardner graduated from Harvard University, receiving an A.B. degree (History) in 1959 and an LL.B. degree in 1962. He is a member of the Pennsylvania bar and the bar of the U.S. Court of Military Appeals.

vate pursuits, but also reflecting legitimate fears of an adverse impact upon the organized labor market, this protest against competitive activities by service personnel has received expression in law and must be reckoned with in any determination of the propriety of civilian employment.

It is the purpose of this article to collect and categorize existing restrictions on outside employment of naval personnel. Restrictions are grouped under the two general headings suggested above. Focus is exclusively on active duty personnel. Insofar, however, as concerns the concept of "employment," no precise boundaries are drawn. Both compensable and noncompensable activities are treated. Enterprise, or self-employment, is likewise covered.

The right of the Government to place restrictions upon outside employment of service personnel cannot be questioned. Inasmuch as a member of the naval service is considered to occupy a 24-hour status,1 utilization of his free time is necessarily limited by the demands of his military duties. In general, neither officer nor enlisted personnel are restricted from engaging in legitimate and ethical enterprise or employment during their off-duty hours.2 Where, however, outside employment threatens to result in substandard performance of official duties or in compromise of a member's position as a public servant, restrictive regulation is warranted.

1. BuPers Manual, article C-11101(2). Marine Corps equivalent to article C-11101 is Marine Corps Personnel Manual, paragraph 9350.

2. Ibid.

II

INTERFERENCE WITH NORMAL
MILITARY DUTIES

Outside employment is the potential harbinger of conflict with military duties in several respects. It may make competing demands upon the time, physical well-being, and loyalty of naval personnel. It is the duty of the local commanding officer to assure that the tasks of his command are satisfactorily executed. A commanding officer has both the responsibility and the authority to assure that personnel under his command are fully equipped to meet their assigned duties. The compatibility of the demands of outside employment with the satisfactory execution of principal duties is thus a legitimate concern of the local command, and a determination of the propriety of outside employment is largely a matter for the discretion of the local commanding officer acting within the ambit of the existing standards treated herein.

A. HOURS OF WORK

Obviously, outside employment must not cut directly across the performance of military duties. Regulations thus provide that personnel shall not engage in any civilian employment which, by reason of the hours of the work, interferes with the proper and efficient performance of their military duties. The hours of outside employment must not conflict or overlap with the hours of military duty. The concept of interference by reason of the hours of the work is, however, broader and more flexible. serviceman takes a job which requires work late into the night, so that his mental alertness toward his naval duties is impaired the next day, there is "interference" justifying a decision by his commanding officer to prohibit such activity. Either the length or the irregularity of the offduty working hours may be the occasion for a finding of interference with normal military duties.

B. NATURE OF THE WORK

(1) Generally

If a

Regulations also provide that personnel shall not engage in any civilian employment which, by reason of the nature of the work, interferes with the proper and efficient performance of their military duties. The potentiality of application of this standard is practically limitless. There are many ways in which the nature of outside employment may appear incompatible with

3. BuPers Manual, article C-11101(3).

4. Ibid.

proper performance of military duties. For convenience, the subject is reduced to three categories, reflecting the impact of outside employment upon the physical well-being, the public image, and the undivided loyalty of service personnel.

(2) Hazardous employment

6

Certain work may present an extraordinary risk to life or health. Such a factor does not by itself necessarily render participation by naval personnel unlawful. It has thus been held that there is no general prohibition against engaging in firefighting or police activities or professional diving works during off-duty hours. If such employment results in injury or death, however, a line of duty-misconduct determination must be made. Generally, such activities will be held to be in line of duty and not misconduct, unless accomplished in violation of a law or regulation. In those cases in which the evidence clearly and convincingly establishes that an active-duty member demonstrated an utter disregard for the foreseeable consequences and that he was grossly negligent by exposing himself to unnecessary risks in the course of civilian employment, an adverse determination may be made, resulting in loss of death or disability benefits.10 The concern in this area is, of course, with the possibility that accidents incident to civilian employment may disable a serviceman from performing his military duties. While there is no absolute bar against hazardous employment, the local commanding officer retains discretion to permit or to forbid such activity based upon a determination of the import of conflicting demands upon the serviceman's physical condition and time."1 A factor which has not yet received attention would be the indispensability of the individual serviceman to the local command, giving weight to his possession of special skills or training. Since temporary or permanent loss of such skilled personnel would have a more disruptive effect upon the functioning of the command, greater caution is warranted in their clearance for hazardous employment.

(3) Employment reflecting discredit on
the service

Naval personnel must also refrain from en

5. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964. 6. Ibid.

7. JAG 2nd end., JAG:II:1:JRV:win of 6 Apr 1954; But see footnote 31a, infra.

8. JAG ltr, JAG:131.4:DAS:sb ser 1120 of 1 Mar 1961.

9. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964; also JAG opinion JAG:III:8:JJE:JHG:vn of 3 Nov 1953 cited at 3 Dig. Ops., L.O.D. § 15.3.

10. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964.

11. Ibid; also, JAG 2nd end., JAG:II:1:JRV:win of 6 Apr 1954.

SINCE

CIVILIAN EMPLOYMENT OF NAVAL

I

PERSONNEL

LIEUTENANT PAUL GARDNER, JR., USNR*

The two major problem areas with regard to off-duty employment are the possible impairment of the serviceman's official duties as a result of such employment and its impact upon the community at large and the civilian job force. This article collects and categorizes the existing regulations designed to minimize these problems. Lieutenant Gardner devotes particular attention to the area of conflict of interests which may arise from such employment, possibly compromising the member's position as a public servant. His article furnishes guidelines for the local commander who is vested with broad discretion in this matter.

INTRODUCTION

INCE THE DAYS of the original "9-to-5" worker, "free time" has been a coveted item. Utilization of free time in commercial and professional pursuits has come to be known by the term "moonlighting". While this term may carry faintly disparaging overtones, the concept of moonlighting is not without redeeming features. How a man uses his free time may affect not only his financial security, but also his sense of achievement and fulfillment. The effect of restrictions upon service morale is a legitimate consideration. There is thus justification for a constructive attitude upon the part of the Navy toward off-duty employment of its personnel.

At the same time, there are two considerations which dictate restraint. First, recognizing the advantage of outside employment as a morale factor, such activity should nevertheless be forbidden when it threatens to impair the performance of principal duties. In this instance, a permissive approach would be selfdefeating. Secondly, there is a somewhat less precise objection to permitting naval personnel to utilize their training in competition with civilians whose tax dollars facilitate development of these skills. Representing perhaps an overly restrictive interpretation of the obligations of the public servant to refrain from pri

*Lieutenant Gardner is presently assigned to the Appellate Defense Division, Navy Appellate Review Activity, Office of the Judge Advocate General. He formerly served as an attorney in the Administrative Law Division, Office of the Judge Advocate General, from July 1963 to May 1965. Lieutenant Gardner graduated from Harvard University, receiving an A.B. degree (History) in 1959 and an LL.B. degree in 1962. He is a member of the Pennsylvania bar and the bar of the U.S. Court of Military Appeals.

vate pursuits, but also reflecting legitimate fears of an adverse impact upon the organized labor market, this protest against competitive activities by service personnel has received expression in law and must be reckoned with in any determination of the propriety of civilian employment.

It is the purpose of this article to collect and categorize existing restrictions on outside employment of naval personnel. Restrictions are grouped under the two general headings suggested above. Focus is exclusively on active duty personnel. Insofar, however, as concerns the concept of "employment," no precise boundaries are drawn. Both compensable and noncompensable activities are treated. Enterprise, or self-employment, is likewise covered.

1

The right of the Government to place restrictions upon outside employment of service personnel cannot be questioned. Inasmuch as a member of the naval service is considered to occupy a 24-hour status, utilization of his free time is necessarily limited by the demands of his military duties. In general, neither officer nor enlisted personnel are restricted from engaging in legitimate and ethical enterprise or employment during their off-duty hours.2 Where, however, outside employment threatens to result in substandard performance of official duties or in compromise of a member's position as a public servant, restrictive regulation is warranted.

1. BuPers Manual, article C-11101(2). Marine Corps equivalent to article C-11101 is Marine Corps Personnel Manual, paragraph 9350.

2. Ibid.

II

INTERFERENCE WITH NORMAL

MILITARY DUTIES

Outside employment is the potential harbinger of conflict with military duties in several respects. It may make competing demands upon the time, physical well-being, and loyalty of naval personnel. It is the duty of the local commanding officer to assure that the tasks of his command are satisfactorily executed. A commanding officer has both the responsibility and the authority to assure that personnel under his command are fully equipped to meet their assigned duties. The compatibility of the demands of outside employment with the satisfactory execution of principal duties is thus a legitimate concern of the local command, and a determination of the propriety of outside employment is largely a matter for the discretion of the local commanding officer acting within the ambit of the existing standards treated herein.

A. HOURS OF WORK

Obviously, outside employment must not cut directly across the performance of military duties. Regulations thus provide that personnel shall not engage in any civilian employment which, by reason of the hours of the work, interferes with the proper and efficient performance of their military duties. The hours of outside employment must not conflict or overlap with the hours of military duty. The concept of interference by reason of the hours of the work is, however, broader and more flexible. If a serviceman takes a job which requires work late into the night, so that his mental alertness toward his naval duties is impaired the next day, there is "interference" justifying a decision by his commanding officer to prohibit such activity. Either the length or the irregularity of the offduty working hours may be the occasion for a finding of interference with normal military duties.

B. NATURE OF THE WORK

(1) Generally

Regulations also provide that personnel shall not engage in any civilian employment which, by reason of the nature of the work, interferes with the proper and efficient performance of their military duties. The potentiality of application of this standard is practically limitless. There are many ways in which the nature of outside employment may appear incompatible with

3. BuPers Manual, article C-11101(3).

4. Ibid.

proper performance of military duties. For convenience, the subject is reduced to three categories, reflecting the impact of outside employment upon the physical well-being, the public image, and the undivided loyalty of service personnel.

(2) Hazardous employment

6

Certain work may present an extraordinary risk to life or health. Such a factor does not by itself necessarily render participation by naval personnel unlawful. It has thus been held that there is no general prohibition against engaging in firefighting or police activities or professional diving works during off-duty hours. If such employment results in injury or death, however, a line of duty-misconduct determination must be made. Generally, such activities will be held to be in line of duty and not misconduct, unless accomplished in violation of a law or regulation." In those cases in which the evidence clearly and convincingly establishes that an active-duty member demonstrated an utter disregard for the foreseeable consequences and that he was grossly negligent by exposing himself to unnecessary risks in the course of civilian employment, an adverse determination may be made, resulting in loss of death or disability benefits.10 The concern in this area is, of course, with the possibility that accidents incident to civilian employment may disable a serviceman from performing his military duties. While there is no absolute bar against hazardous employment, the local commanding officer retains discretion to permit or to forbid such activity based upon a determination of the import of conflicting demands upon the serviceman's physical condition and time." A factor which has not yet received attention would be the indispensability of the individual serviceman to the local command, giving weight to his possession of special skills or training. Since temporary or permanent loss of such skilled personnel would have a more disruptive effect upon the functioning of the command, greater caution is warranted in their clearance for hazardous employment.

(3) Employment reflecting discredit on
the service

Naval personnel must also refrain from en

5. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964. 6. Ibid.

7. JAG 2nd end., JAG:II:1:JRV:wln of 6 Apr 1954; But see footnote 31a, infra.

8. JAG ltr, JAG:131.4 :DAS:sb ser 1120 of 1 Mar 1961.

9. JAG ltr, JAG:131,5:DWB:acd ser 5872 of 2 Oct 1964; also JAG opinion JAG:III:8:JJE:JHG:vn of 3 Nov 1953 cited at 3 Dig. Ops., L.O.D. § 15.3.

10. JAG ltr, JAG:131.5:DWB:acd ser 5872 of 2 Oct 1964. 11. Ibid; also, JAG 2nd end., JAG:II:1:JRV:wln of 6 Apr 1954.

gaging in outside employment which is of such a nature as to reflect discredit on the Navy.12 This standard is most commonly applied to jobs which bear unsuitable associations. It would thus be improper for a serviceman to accept employment with an illegal enterprise or with an enterprise which commonly engages in illegal or unethical practices. A serviceman, in selecting outside employment, must also be aware of the public image of the enterprise with which he is to be associated. The instances of these cases are rare and do not pose any real administrative dilemma, inasmuch as the impropriety may be easily evaluated by the serviceman himself. Avoidance of work of this nature is largely a matter of common sense-and if the serviceman fails to exercise his common sense, his commanding officer may be expected to interpose an appropriate restriction.

(4) Employment involving a conflict of

interests

Conflict of interests has recently become a very fertile area of inquiry and administrative comment. Initially, it may be stated that, if the nature of outside employment is such as to create a conflict between the interest of public service and some private interest, then there is "interference" with the performance of normal military duties, at least in a figurative sense. This is because of the inherent danger in such situations that service personnel will not translate their duty assignments into action with the same singleness of purpose which is normally expected of the public servant. The topic of conflict of interests is sufficiently broad to merit separate treatment at this point.

C. CONFLICT OF INTERESTS PRIVATE GAIN The concept of conflict of interests is normally associated with private gain. The integrity of government service in the eyes of the public demands divorce from the traditional profit motive of private enterprise. A serviceman is therefore enjoined to avoid even the appearance of a conflict of interests.13 The most common forms of infraction are the use of influence or special knowledge derived from military position and the acceptance of outside compensation for performance of military duties.

(1) Use of influence attending military
position

A member of the naval service must refrain from civilian employment which is unethical in view of the possible exercise of influence attend12. BuPers Manual C-11101 (3) (a) (2).

13. DOD Directive 5500.7 of 17 May 1963, transmitted and implemented by SECNAVINST 5370.2C of 1 Dec 1964.

14

ing his military position. He is thus forbidden to use his position in any way to induce, or give the appearance of inducing, another person to provide any financial benefit to himself, or persons with whom he has family, business or financial ties.15 In addition, he is prohibited from using his military title or position in connection with any commercial enterprise or in endorsing any commercial product.16 [This latter restriction does not, however, apply to the publication of books or articles which identify the author by his military title or position. On the question of clearance of such writing, see infra at II F. (3).] One area of particular concern is the propriety of employment as an officer of a corporation. A naval officer may have a substantial financial interest in a corporation and may wish to participate in its management. Generally, there is no objection to official 17 or unofficial 18 participation in the management of the affairs of a corporation. This conclusion is reinforced in cases where the employment is in a noncommercial capacity.19 Regular officers, however, are absolutely forbidden, upon penalty of forfeiture of naval pay, to accept employment with any person furnishing naval supplies or war materials to the United States.20 Generally speaking, a serviceman should avoid taking an off-duty job which requires, as part of its assigned duties, direct or indirect dealings with the Navy. Reservists who continue in their former employ upon call to active duty may, however, receive compensation from that source while on active duty without regard to the type of business, provided that they do not personally engage in activities involving dealings with the Navy.21

(2) Use of inside information

A serviceman is forbidden to engage in any private activity which involves the use of, or the appearance of the use of, inside information gained through a DOD position for private gain for himself, his family, or business associates.22 "Inside information" does not include ordinary skills acquired through military service. Thus, an officer may be permitted to accept a position as a technical consultant to a private company for the adaption of useful techniques and procedures which he developed in the course of mili

14. BuPers Manual, article C-11101 (3) (a) (2). 15. DOD Directive 5500.7.

16. Ibid; also, U.S. Navy Regulations (1948), article 1254. 17. JAG ltr, JAG:134.1:ejs ser 4349 of 22 June 1959.

18. JAG ltr, JAG:134.1:HJW:sb ser 4467 of 22 Jul 1964. 19. JAG ltr, JAG:131.5:DWB:jb ser 3500 of 9 Jun 1964.

20. 37 U.S.C. 801(a) [10 U.S.C. 6112]; JAG ltr, JAG:134.1: HJW:sb ser 1808 of 24 Mar 1964.

21. 10 U.S.C. 1033; JAG ltr, JAG:II:JWG:asj of 11 Oct 1950. 22. DOD Directive 5500.7.

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