Clinton Email Fracas Raises Question: What Is a 'Special Government Employee?'

For more than two years, Iowa Republican Sen. Chuck Grassley has been firing off letters to Secretary of State John Kerry demanding information on the employment arrangements of Huma Abedin, the all-purpose aide to Kerry’s predecessor, Hillary Clinton.

The drip-drip controversies over Clinton’s email practices dogging her presidential campaign have surfaced a side drama concerning Abedin’s status as a “special government employee” during the final months of Clinton’s tenure at the State Department.

On Aug. 26, Grassley wrote again, complaining that State was not delivering documents to clarify emails that describe Abedin’s simultaneous work with the State Department, the Clinton Foundation and the New York City-based global advisory company Teneo.

“These emails illustrate why there are legitimate concerns about the department’s use of the SGE designation,” the senator wrote, citing the “blurring of the lines between the official business of the State Department, the private interests of Teneo, and the fundraising interests for various entities under the personal control of Secretary and former President Clinton.” Grassley’s concern is that she might have helped the outside firm win work or place job-seekers.

Government Executive interviews with attorneys and State Department officials suggest that the nature, scope and ethics requirements of the “special government employee” designation are not widely understood—and that questions remain about whether the rules were properly applied in Abedin’s case.

Special government employee status was created by statute in 1962, at a time when an expanding government was tapping outside expertise amid concerns about graft and conflicts of interest. An SGE is defined in Section 18 of the U.S. Code as "an officer or employee . . . who is retained, designated, appointed, or employed" by the government to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days,” as noted by the Office of Government Ethics. “SGEs were originally conceived as a ‘hybrid’ class, in recognition of the fact that the simple categories of 'employee' and 'non-employee' are no longer adequate to describe the multiplicity of ways in which modern government gets its work done."

The arrangement provides the government with specialized expertise while the employee is allowed to continue to earn a living in the private sector.

Over the decades, as the number of federal advisory panels expanded, the guidance was expanded to lay out prohibitions on lobbying, fundraising and post-government service participation in related agency decisions.  

The Defense Department’s Standards of Conduct Office, for example, published an ethics guide that warns against “serving two masters. You cannot represent two entities and retain impartiality. For example, you may be an employee of a corporation or nonprofit organization which intends to submit its views to government officials regarding the same subject matter that your advisory committee is studying. In such a situation, you must recuse yourself from participation in the advisory committee’s recommendation, and make sure you do not trigger the representational restrictions if you are a signatory to the submission.”

At the State Department, SGE’s are viewed as “part-time employees across the federal government who typically are brought on as experts or consultants,” a spokesman emailed Government Executive. “The SGE category of employees was created by Congress in part to permit such part-time employees across the federal government to engage in a broader range of outside activities. In 2013 the State Department designated 50 individuals as SGE’s who served in roles other than as members of advisory committees,” 15 of which are unpaid, the spokesman said.

The precise number of SGE’s governmentwide is difficult to track. State did not compile data until it received a 2014 Freedom of Information Act request by Grassley and the nonprofit journalism organization Pro Publica. The resulting numbers showed a range of 50-70 SGE’s from 2009-2012. A State Department Inspector General report put the 2012 figure at 100.

Abedin, who became a mother in December 2011, left full-time service to then-Secretary Clinton in June 2012. She kept her SGE status—paid $74.51 hourly as a GS 15, Step 10, or about $155,000 a year rate, according to State data analyzed by Fox News.

Grassley in July demanded Abedin’s time-and-attendance records following an inspector general finding that she was overpaid during maternity leave. The attorney Abedin retained wrote to State on Aug. 21, asking the department to refute what the attorney called Grassley’s unfair charges of a conflict based on an unreliable source, according to The New York Times.

Grassley’s outstanding questions include, “How can the taxpayer know who exactly SGEs are working for at any given moment? How can the ethics officer at the State Department know?” Grassley also said wants to know what steps Abedin took to preserve her federal records.

Though many of the facts about Abedin’s case remain unclear, it is reasonable to speculate that there are potential legal problems, Joanna Friedman, law partner in the Federal Practice Group, told Government Executive. “The spirit of the statute for SGE employees is for the government to be able to bring them in for a short time for very specific needs—to fill an unmet government need for rare or unique expertise. That means they are going to have substantial outside activities that may potentially raise a conflict of interest,” Friedman said.

The decision to hire an SGE lies with the agency manager, though the human resources department supplies guidance. “Where it starts to get murky is whether Huma Abedin really fits this mold of SGE status,” Friedman said. “It’s a little weird in that she was an employee full-time, then went to SGE status, probably because she wanted to go part-time and there was no billet,” Friedman speculated, adding that it’s not uncommon for federal managers to find loopholes to retain a valued employee.

“But her main duties appeared to be scheduling and travel for Secretary Clinton, which begs the question, ‘What special expertise is necessary to fulfilling those duties?’ ” Freidman said. Given the Teneo work, “one question would be whether she was using her position to help people get jobs in government, or was she abusing the privilege of her position in terms of the close relationship that position gave her to certain people?”

Larry Youngner, who spent decades in legal work for the Air Force before becoming managing partner at the Tully Rinckey law firm, stressed that when he left government, he was counseled that the Defense Department joint ethics regulation has a key rule enforcing a life-time ban on former employees working “on a particular matter they worked personally and substantially” from the agency job—particularly in contracting, he said. There are two-and three-year bans on narrower questions, Youngner added, noting that an incumbent SGE’s continuing ability to earn money in private employment does not mean he or she can always “double dip,” being compensated privately for the  same work they are accepting government pay for.

“I advise people in the Senior Executive Service, the military, even in the Senate to seek an advisory opinion from their Designated Agency Ethics Officer,” Youngner said.  “Abedin has done the right thing in hiring an attorney to represent her. It’s truly an area where you want to ask permission, not forgiveness.”