DON’T LIE ABOUT OFFICIAL TIME, PLEEEEEEEAZE

Not long ago, media material started pointing out that when federal employees act together to defraud the United States, it exposes them to potential criminal conspiracy charges under 18 USC 371.  That got us thinking about official time, particularly how it is used for training conferences and the potential there for abuse of official time. In fact, it got us worried enough to put together a reminder of where the line is crossed in training and the law likely violated.

There is no problem using management-approved official time to train union reps on representational matters, e.g. enforcement of the contract, regulations, laws, practices, and other employee rights.  The FLRA has also held negotiable proposals allowing time to comply with the union’s administrative obligations, e.g., prepare annual reports to IRS and DOL, as well as to interact with (lobby) legislative folks.

However, it is no secret that union leaders, especially those above the local level, want to get time when local leaders gathered at training conferences to discuss internal union business issues, e.g., building membership, supporting political action committees, internal union politics, passing Constitutional amendments, budgeting, preparing for convention, etc. That is where problems are most likely to arise.

Many agencies today ask unions to identify the topics that will be covered in training programs eligible for official time as well as provide a description of the courses.  What is so easy to forget is that when a union knowingly and willfully sends false applications for official time it risks violating several provisions of the federal criminal code, such as  18 USC 371 and the even broader prohibition against any kind of false statement.

For example, suppose the union asks the agency for official time for a class entitled, “Overview of National Issues” and leads the agency (and maybe even attendees) to believe the issues will be representational ones.  However, it knows full well that the time will actually be used to cover membership building, PAC support, pending convention issues, etc.? That union has a problem for several reasons.

First, it likely sent the proposed agenda and course description via e-mail where nothing ever disappears.  Second, everyone attending the class is not just a student, but also a potential witness for the government.  After all, today’s highly supportive union activist could be tomorrow’s agency LR officer, angry ex-union leader, or just someone looking to make a buck through one of the laws providing rewards to those who report waste, fraud or abuse. Third, the material actually covered in these classes is almost always documented thanks to Powerpoint presentations, handouts, and cell phones.  (Remember what a cell phone did to Mitt Romney’s campaign—hint: 47%.) Fourth, there are a lot of anti-union investigators trolling out there for evidence that union reps are abusing time, especially criminally abusing it as a group. The Washington Examiner and similar right-wing activists have focused particularly on the unions at EPA and FAA as official time abusers. That puts AFGE, NTEU and NATCA, primarily, in the cross-hairs. EPA is particularly vulnerable because less than 25% of the unit employees belong to either of the two unions, i.e., NTEU or AFGE.

While most media and political focus on official time has been on how much unions use, that is only because investigators have not yet uncovered stories about actual fraudulent use of it on a significant scale.  Once they do, they could march those involved in front of Congressional committees, leave them no choice but to take the 5th amendment, wheel in witnesses with immunity, and scandalize all those wonderful union leaders who are properly using their time.  At the same time, one or two U.S. Attorneys could try to prosecute a few local union leaders who attended the class on official time knowing full well that they should not have claimed official time to attend because it amounted to a false claim for compensation. (And if a union lawyer is involved in making false statements to get official time or delivering classes he/she knows to be improper uses of official time, his/her professional liability is even greater.) That could be the end of official time for everyone.

If you think we are exaggerating Congressional potential to turn a single training conference error into a national embarrassment, go read the report on the FAA diversity training conference. Need more convincing?  Check out how Congress treated the IRS Disneyland training conference.

It is not enough for local leaders or attendees to assume that regional and national union leaders would never put local leaders in jeopardy. Frankly, the greatest potential for illegal official time activity occurs at large, multi-local, training conferences where an elected leader rather than technical staffer leads a class, the agenda does not match the material, and the class focuses primarily on membership building, PAC activity, internal politics, and other matters not related to representational issues.  There is nothing wrong with classes primarily about a representational matters wandering into some of the non-representational conversations so long as they are short. But the reverse is not true.

Here is what local leaders and other attendees can do to avoid problems, especially where the put their trust in their national leaders to lead them properly.

• Insist that regional and national training conferences avoid even questionable classes on official time;
• Insist that any questionable classes be scheduled outside the hours covered by official time;
• Leave or avoid classes that are questionable;
• If available, attend alternate classes during the questionable classes on your training agenda;
• If alternative classes are not available, bite the bullet and charge that class time to annual leave; and
• If serving on bargaining teams, accept reasonable management oversight of the agenda and materials.

Sorry to ruin your mood with such serious matters of personal liability for being a union leader, but that is better than pretending there is no potential “nuclear explosion” out there just waiting to be triggered by a single abusive union training conference.  If we do not scrupulously police ourselves on official time for training, so many things can go wrong for our unions, careers, families and future.  So, pleeeease, no game playing with official time for group training. Just say no, practice safe training, and remember that only you can prevent official time abuse.

Here is the statutory provision making false statements illegal. Title 18 usc 1001–(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.