Commissioner of Social Security
P.O. Box 17703
Baltimore, MD 21235-7703
Re: Notice of Proposed Rulemaking, Supplemental Standards of Ethical Conduct for Employees of the Social Security Administration (70 Fed. Reg. 7192, Feb. 11, 2005)
The ACLU submits the following comments in response to the Notice of Proposed Rulemaking, Supplemental Standards of Ethical Conduct for Employees of the Social Security Administration, 70 Fed. Reg. 7192, Feb. 11, 2005. The original comment period concluded on March 14, 2005. On April 21, 2005, the comment period was further extended to June 3, 2005. The ACLU's comments are restricted to the First Amendment issues raised by the proposed rules. Because we believe the proposed rules are unconstitutional, we urge the Social Security Administration to reject them.
Background
On February 11, 2005 the Social Security Administration (SSA) published a Notice of Proposed Rulemaking (NPRM) for Supplemental Standards of Ethical Conduct in the Federal Register. These rules require SSA employees to seek prior approval from their superiors before a speaking engagement or publishing a writing. They also require approval for outside employment and ""outside activities."" In general, the outside employment or activity must relate in some way to the employee's official duties.
There are additional approval requirements that specifically apply to Administrative Law Judges (ALJ). These rules require prior approval before an ALJ speaks, writes, becomes a member of an organization or renders any professional service. For example, if an ALJ wished to join a group of other ALJs that only hear Social Security cases, the proposed rules require that judge to, no less than 30 days before the proposed activity, file a written request for approval with her immediate supervisor.[1] Only if the supervisor approves may the judge join the organization.
For regular employees and ALJs alike, there is no time frame within which the supervisor must make a decision. Additionally, there is no provision for appeal of the decision. The only criteria by which the supervisor must exercise his discretion is that ""approval shall be granted only upon a determination that the outside employment or activity is not expected to involve conduct prohibited by statute or Federal regulation.""
The Proposed Rules raise serious constitutional issues regarding the First Amendment. These requirements place an imposition on SSA employees' freedom of speech and association guaranteed by the First Amendment.
Public Employees are Protected by the First Amendment
An individual does not automatically relinquish his First Amendment rights by accepting government employment,[2] although some restraints may be placed on speech of public employees that would otherwise be impermissible if applied to the public at large.[3]
Speech by public employees was first constitutionally recognized in Pickering v. Board of Education[4] when the Supreme Court rejected the idea that teachers forfeit their First Amendment rights by becoming a public school teacher. The Court emphasized that there was no indication that Pickering's (the teacher in question) statements interfered with the teacher's ability to perform or the operation of the public school system. The Court in Pickering set forth a balancing test to determine whether an employee's speech can be regulated.[5] First, it must be determined whether an employee's speech can be characterized as a matter of public concern. Second, the employee's interests must be balanced against those of the state. In regard to the second prong, the government has the burden of showing the harms are real and they will be alleviated if the speech is banned.[6]
In Connick v. Meyers[7] the Court reiterated the holding in Pickering and laid down a strong caution against general bans to speech. This case dealt with a public employee who was terminated after distributing a questionnaire at work. Although the Court held that the termination was not wrongful, the decision was based on the fact that the questionnaire was disruptive to the work environment and the speech was not a matter of public concern, not that the employee lacked First Amendment rights.
In U.S. v. National Treasury Employees Union (NTEU) the Court again cautioned against general bans on speech, when it struck down §501(b) of the Ethics in Government Act of 1978 as unconstitutional.[8] This statute prohibited any government employee from accepting an honorarium for making an appearance or speech or writing an article. The Court held that where the speech involved a matter of public concern, the government bears the burden of justifying its action. Where, as here, the regulation prospectively bans speech instead of punishing after it has occurred, ""the Government's burden is greater.""[9] The Pickering balancing test must look not only at the rights of the employee to speak, but the rights of the public to read and hear what the employees would otherwise have said in the absence of the prohibition.[10] In applying this heightened scrutiny, the government must demonstrate that ""the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.""[11]
Clearly, the public has an interest in hearing what Social Security employees may have to say. Given the vast bureaucracy that has sprung up around Social Security, and the current debate about the Social Security system, employees of the Social Security Administration undoubtedly could contribute to the public debate. ALJs are called upon to determine disability entitlements, as well as other issues. Practitioners have an interest in learning what arguments and issues ALJs find persuasive.
Balanced against the right of the employees to speak, and the right of the public to listen, the reason for the regulation appears to be to avoid the appearance of impropriety and to maintain the ALJ's appearance of impartiality. There is, however, little that would demonstrate a concrete harm that needs to be addressed, and why current mechanisms are inadequate. A federal ALJ is subject to host of regulatory and policy standards for behavior. As a lawyer, a judge is subject to rules of professional responsibility. These include the American Bar Association (ABA) Model Code of Judicial Conduct (1972) and the Model Code of Judicial Conduct for Federal Administrative Law Judges (1989). Both of these codes are used as guides for ALJ conduct in administrative forums and in federal district court. The Canon 2 in both judicial codes states that judges should avoid impropriety and the appearance of impropriety in all activities, the same goal of the Proposed Rules. In addition, as a federal employee, the ALJ must comply with laws and regulations applicable to all federal employees, some of which apply specifically to ALJ's. For example, there are restrictions upon a federal employee misusing his or her official time.[12] There are many additional restrictions that apply to employee responsibilities and conduct.[13] An ALJ is also bound by the Administrative Procedure Act (APA),[14] which was adopted by Congress in 1946 to ensure that American people were provided hearings that are not prejudiced by undue agency influence. The APA sets forth standards for hearings and decisions by ALJ's. There is little evidence to show that these rules are ineffective. In the supporting rationale for the Proposed Rules, no examples of ALJ misconduct were cited. It is apparent that a number of regulations already provide ethical and procedural guidelines for ALJ's. Since the goals of the Proposed Rules are equivalent to those of current provisions, the government's interest in ensuring judicial impartiality is already met through existing guidelines.
The Proposed Regulations are Procedurally Flawed
As noted above, the proposed regulations do not provide a time limit within which a supervisor must make a decision, nor is there any judicial review provided. The proposed regulations are thus similar to a censorship scheme ruled unconstitutional by the Supreme Court in Freedman v. Maryland, 380 U.S. 51 (1965).
In Freedman, Maryland required movies to be submitted to a board of censors who would determine whether or not a film could be shown. First, the Court disapproved of the process, noting that if the censor disapproved the film, the exhibitor was required to assume the burden of instituting judicial proceedings and persuading the court that the film was protected expression. The burden of instituting the judicial proceeding as well as the burden of proof should rest on the censor. Second, the Court found that once the censor had acted to prohibit the film, exhibition of the film was continually prohibited pending judicial review, and finally, the censorship scheme provided no assurance of prompt judicial determination.
Here, the regulatory scheme is similar. While an SSA employee must, within 30 days of the event, file a written request with his supervisor, there is no time limit within which the supervisor must act. There appears to be no appeal to any other forum. Assuming, however, that judicial review is permitted, it appears incumbent upon the speaker to institute that proceeding instead of the censor (supervisor). Once the censor acts, the speech or writing is prohibited, apparently for all time. And, finally, there is no assurance of prompt judicial review. It thus appears that the procedure indicated in the proposed regulation is fatally flawed.
Conclusion
Government employee speech is protected under the First Amendment. It can only be infringed when the government demonstrates that the burden on speech is ""outweighed by [its] necessary impact on the actual operation of the government."" Here, there has been no demonstration of the need for these supplemental regulations. Additionally, the proposed regulations are procedurally flawed. For all of the above reasons, we urge you to reject the proposed regulations.
Sincerely,
Gregory T. Nojeim
Acting Director
Marvin J. Johnson
Legislative Counsel
Footnotes
[1] Proposed rule §9101.102(d)(2)(ii) applies where the ALJ seeks to participate in ""professional, social, fraternal, educational"" activities and the activity ""relates to the employee's official duties.""
[2] Sanjour v. E.P.A., 56 F.3d 85, 90, 312 U.S.App.D.C. 121 (1995) (citing Keyishian v. Board of Regents, 385 U.S. 589 (1967)).
[3] U.S. v. National Treasury Employees Union, 513 U.S. 454, 465 (1995).
[4] Pickering v. Board of Education (391 U.S. 574) (1968).
[5] Id. at 150.
[6] U.S. v. National Treasury Employees Union, 513 U.S. 454 (1995). [7] 461 U.S. 138 (1983).
[8]See National Treasury Employees Union, 513 U.S. at 454.
[9] National Treasury Employees Union, 513 U.S. at 468. Additionally, by banning the speech before it has occurred, the regulation operates as a prior restraint on speech. In Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), the Court declared, ""Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.""
[10] ""The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government."" Id. at 468.
[11] Id. at 475.
[12] 5 CFR 2635, Subpart G, (""Misuse of Position"").
[13] 5 CFR Part 735 (""Employee Responsibilities and Conduct"").
[14] Pub. L. No. 79-404, 60 Stat. 244 (1946) [5 USC 500, et. seq., 5 USC 1305, 5US 3105, 5 USC 3344, 5 USC 4301, 5 USC 5362 and 5 USC 7521].