As of last Tuesday, the federal government prohibits Thomas Fishell, an Internal Revenue Service tax examiner in Dallas, from collecting fees for weekend weddings and funerals such as he has performed as a Southern Baptist minister for the last 11 years.
Jan Adams-Grant, an IRS employee in Ogden, Utah, is no longer allowed to earn a cent from freelance articles on camping and the church seminars on earthquake preparedness she has conducted for several years.
Adams-Grant and Fishell, who received their supervisors' approval that the outside work did not constitute a conflict with their federal jobs, have become the unwitting players in the latest Capitol Hill conflict-of-interest controversy.
Under the Ethics Reform Act of 1989, federal employees are banned, starting this year, from accepting honoraria -- outside income -- for speaking or writing, regardless of the subject they speak or write about and how it does or does not relate to their government jobs.
Congressional aides involved in drafting the law and federal employee unions lobbying Capitol Hill on the matter said the inclusion of all federal employees was unintended and that several members of the House and Senate are preparing language to modify the act this session to exclude federal workers from its provisions.
At the same time, the American Federation of Government Employees, the National Treasury Employees Union and 10 employees represented by the American Civil Liberties Union have filed suit against the government to overturn the ban as it applies to federal employees. The suit charges that the act infringes on employees' First Amendment rights, which "are directly burdened by the prohibition on receipt of income from speeches, appearances, and articles."
In other words, prohibiting payment for such articles and appearances will effectively make it impossible for employees to continue to conduct these activities.
Because most employees affected cannot afford to absorb the costs associated with researching articles or delivering speeches, "It is really not just a ban on accepting money, but it makes it virtually impossible to write" or make public appearances, said David Klein, assistant counsel for the treasury employees union. "People can sell roses, they just can't write about them or talk about them. That's obviously singling out speech."
Government attorneys have argued that the act does not infringe on workers' First Amendment rights because it does not deny employees the right to speak or write, only to get paid for it.
Two federal courts have refused the plantiffs' request for an emergency, temporary halt to the prohibition while they attempt to permanently overturn it. On Saturday, attorneys for the plantiffs asked the Supreme Court to block the honoraria ban for federal employees until their legal challenge is resolved in the courts.
The Supreme Court has asked the solicitor general's office to file a reply to the request. Klein said a court clerk told him the court is likely to discuss the request in its regular Friday conference.
Arguments on the merits of the suit have not been scheduled in U.S. District Court here.
The honoraria ban for all federal employees was a last-minute addition to the act, which primarily deals with limiting outside income received by House members, their staffs and executive branch political appointees and restricts the type of work permitted for recently retired or resigned high-level federal executives in private practice. House members and senior executive branch employees got hefty pay raises as part of the package. The raises, which also took effect Jan. 1, are as high as 33 percent for some employees.
The act was adopted after a wave of high-profile conflict-of-interest scandals, including one that led then-House Speaker Jim Wright (D-Tex.) to resign.
Under the ban, federal employees and others are allowed to perform other sorts of outside work, including fiction writing and certain teaching positions.
The ban allows employees to donate what would have been their honoraria to charity, although they may not claim a tax deduction for the donation and may not donate more than $2,000 to any one charity.
There was an attempt at the end of the last session to amend the act to exclude federal employees below Grade 16 on the General Schedule. The attempt failed, in part because certain members, including House Judiciary Committee Chairman Jack Brooks (D-Tex.), objected to the GS-16 cutoff, according to congressional aides.
The debate going into the new session is likely to center on whether all federal employees should be exempt from the honoraria ban, or just those in non-policy-making positions under the GS-16 level.
The public interest lobby group Common Cause objects to a change exempting all federal employees and wants to ensure that low- and mid-level employees would continue to be restricted from performing outside activities that conflict with their federal jobs.
"We believe that top officials in government, people with the greatest responsibility, should be completely out of the business of receiving fees from private interest groups," said Common Cause President Fred Wertheimer.
High-level employees should not be allowed to collect honoraria even from outside groups that appear to have no possible connection with the employee's job, he said, because to do otherwise, "you're going to get into a case-by-case analysis that, in our view, doesn't provide the kind of protection a clear ban provides."
For employees such as Adams-Grant and Fishell, the ban is a ludicrous byproduct of a congressional ethics problem that does not really involve them.
"There's absolutely no ethical conflict" with being a part-time minister and a tax examiner, said Fishell, a GS-8 who became a minister at age 19. "It's offensive to me to have Congress lecture me now about ethics. Congress needs to not get paid for speaking because there's nothing they can speak about that they later on can't make laws on."
Although Fishell said he believes he might be able to continue a small amount of his former outside work without getting paid -- he isn't about to turn down marrying friends just because he isn't allowed to accept their money -- Adams-Grant said she clearly would not.
"I can't afford to do it," she said. "It really is my right to free speech that I can't afford."