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DON Author Memo - 13 December 2006

By Jeanette Lawrence,2014-05-06 12:07
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DON Author Memo - 13 December 2006

    13 December 2006

From: LT Lesley Lykins, Deputy, NAVINFO EAST

    To: LCDR Tamsen Reese, Director, NAVINFO EAST

Subj: REGULATIONS FOR BOOK PUBLISHING BY ACTIVE DUTY/ RESERVE

    PERSONNEL

Ref: (a) SECNAVINST 5720.44B, “Navy Public Affairs Regulations”

     (b) 5 Code of Federal Regulations 2635.807, Office of Government Ethics

     (c) DoD 5500.7-R, Joint Ethics Regulation, “Standards of Conduct”

    1. Purpose: This memo compares and contrasts the current Public Affairs Regulations SECNAVINST 5720.44B on book publishing versus General Rule 5 C.F.R. 2635.807,

    conveys the current situation regarding active duty/reserve Sailors writing books to be

    published and offers recommendations on steps to take to streamline the approval process

    and remain within legal directives.

2. SECNAVINST 5720.44B Current Guidance: Current guidance for DoN authors

    seeking to write and publish books in an unofficial capacity is found in the Public Affairs

    Regulations Supplemental Guidance and reads as follows:

     1004 OTHER PRINT PRODUCTS

    1. Commercial Publications. DoN authors may write signed articles and books for commercial

    publications as long as they comply with rules Joint Ethics Regulations DoD 5500.7-R and the

    following rules:

a. Articles written in unofficial capacity shall not replace customary public information channels

    as the public’s principal means of receiving prompt, complete Navy and Marine Corps

    information.

b. If the writing concerns or affects the plans, policies, programs or operations of the U.S.

    government, DoD or DON, the author must submit the material for security and policy review

    ( See 0204.4)

c. A DoD employee who uses or permits the use of his military grade or who includes or permits

    the inclusion of his title or position as one of several biographical details given to identify himself

    in connection with teaching, speaking or writing, in accordance with 5 C.F.R. 2635.807 shall

    make a disclaimer if the subject of the teaching, speaking or writing deals in significant part with

    any ongoing or announced policy, program or operation of the DoD employee's Agency and the

    DoD employee has not been authorized by appropriate Agency authority to present that material

    as the Agency's position. The disclaimer shall be made as follows:

    (1) The required disclaimer shall expressly state that the views presented are those of the speaker or author and do not necessarily represent the views of DoD or its Components;

    (2) Where a disclaimer is required for an article, book or other writing, the disclaimer shall be printed in a reasonably prominent position in the writing itself;

d. Where a disclaimer is required for a speech or other oral presentation, the disclaimer may be

    given orally provided it is given at the beginning of the oral presentation.

e. DoN employees may not receive compensation from anyone other than the government for

    work conducted as part of official duties. Similarly, any work undertaken in one’s official

    capacity may not be copy righted.

Additional direction for DOD personnel acting in a private capacity and what type of

    information can and cannot be used as well as information review directives can be found

    in the Supplemental Guidance reading as follows:

0204 Security and Policy Review

    5. Voluntary Review. Sources outside of DOD, or DOD personnel acting in a private

    capacity, may volunteer to have information reviewed. The DOD directive on clearance of DOD

    information for public release (DODD 5230.9) states that a DOD employee operating in a

    private capacity and not in connection with their official duties has the right to prepare

    information for public release through non-DOD forums or media if:

a. No laws or regulations are violated.

b. Ethical standards and compliance with DOD Standards of Conduct and Joint Ethics

    Regulations directives are maintained.

c. The preparation activities are not done during normal duty hours or with the use of DOD

    facilities, property, or personnel except as authorized by DOD Standards of Conduct and Joint

    Ethics Regulations directives.

d. The author does not use official DOD information generally not available to the public and

    which would not be released under FOIA.

    3. 5 C.F.R. 2635.807 Current Guidance: The JAG Corps currently relies heavily on General Rule 5 C.F.R. 2635.807 to determine the ethics and regulations for Federal

    employees accepting compensation for any activity involving teaching, speaking or

    writing. The rule is specific that military personnel cannot receive compensation for

    teaching, speaking or writing during while on official duty - Government employees

    shall not receive compensation from any source other than the Government for teaching,

    speaking or writing that relates to the employee’s official duties” (2635.807 para. a.).

Broken down the rule can be summarized to explain an activity relates to an employee’s

    official duties if:

    - The activity is undertaken as part of the employee’s official duties; or

    - Circumstances indicate the invitation to engage in the activity was extended primarily

    because of the employee’s official position rather than his or her expertise on the

    particular subject matter; or

    - The invitation is from a person whose interests may be affected substantially by the

    employee’s performance or non-performance of official duties; or - The information conveyed through the activity draws substantially on non-public

    information; or

    - The activity deals in significant part with any matter to which the employee is assigned presently or was assigned within the past year; or

    - The activity deals in significant part with any ongoing or announced policy, program or operation of the Department of the Navy

    Compensation is to include any form of consideration, remuneration or income, including royalties, given for or in connection with the teaching, speaking or writing activities. Unless accepted under specific statutory authority, it includes transportation, lodging and meals, whether provided in kind, by purchase of a ticket, by payment in advance or by reimbursement after the expense has been incurred.

Some other considerations brought forth from this rule include:

    - An employee is prohibited from using his or her official title, position, or authority to promote, or suggest DoN endorsement of a private book or article. Note that an employee who is ordinarily addressed using a general term or address or rank, such as military rank, may use that term of rank in connection with his/her teaching, speaking, or writing.

    - An employee may include his title or position as one of several biographical details to identify him in connection with his private writing, provided that this information is given no more prominence that other significant biographical details. The required disclaimer shall expressly state that the views presented are those of the author and do not necessarily represent the views of DOD or DoN.

    - A writing that pertains to military matters, national security issues, or subjects of significant concern to DOD shall be reviewed for clearance by appropriate security and public affairs offices prior to publication.

3. Rules Applying to Reservists Publishing Based on Military Experience: Naval

    Reservists are participating more frequently on an activated status and many are choosing to write about their experiences. If the book they are writing encompasses information or experience gained while on an activated status, it is clear that they fall under 5 C.F.R. 2635.807 and the same regulations apply as to active duty service members.

4. Recent Examples: Each example of military service members choosing to publish on

    their own is unique with unique considerations. The three examples below demonstrate the various issues arising lately with more and more service members seeking to publish.

a. Example 1. A Navy Reserve Doctor returned from a deployment to Iraq and wrote a

    book about his experience in country. He found a publisher while at the same time contacting Navy Public Affairs for approval of the project. He was originally told by the Public Affairs Community that he could not publish a book for profit. There was some question regarding whether those rules applied to him as he is a reservist and not active duty. He hired a private lawyer and continued to press the Navy for approval to publish. The book was not written while on duty and the minimum one-year time period had elapsed. The Public Affairs Community working with the JAG ethics specialist at the Pentagon determined that it was lawful for the reservist to publish his book, but it would

    require a security review. His book was forwarded to the Department of Defense for the security review and the author was told by the DOD that because his book had already been accepted by a publisher it was no longer “secure” and the review could not be completed by the DOD. Eventually, a security review office was found within the Department of the Navy and that office agreed to review the book. The office determined that the book passed the security review but there were specific concerns regarding privacy act information that the author had included as well as the fact that there was not disclaimer. The author was advised to re-evaluate the privacy concerns and include a disclaimer, but technically he had completed the security review and could publish his book without further review. The Public Affairs Community pulled out of the process after the Department of the Navy security review office had read the book.

b. Example 2. A Navy Reserve EOD Technician that had previously served as active

    duty recently returned from a deployment to Iraq as a reservist and decided to write a non-fiction account of all the work the various service EOD Techs are doing to support the Global War on Terror. A few years early this same service member had written a novel and walked into the CHINFO offices to find out what approval he would need to publish his novel. The PAO told him that the Navy did not need to do anything with his novel that there was an office in New York that supported civilian authors looking for Navy support, but as far as a service member writing a novel (in the author’s words)

    “They didn’t care.”

    Now as he begins to write his non-fiction account of EOD Techs, he figures that the Public Affairs Community doesn’t care and he proceeds to interview friends in the EOD community as well as friends of friends. He goes to the Public Affairs Office for each of the other services asking for support and contacts that he could interview. The Army responds and supports his request supplying him contact information for some of their EOD specialists returning. He knows that before he can publish his book it needs to go through the Navy’s Security Review office. Once he contacts the office, the reviewer asks if he has worked with the NAVINFO East office for Public Affairs approval for his project. He finds this surprising due to his previous experience, but he contacts NAVINFO East. He is told that he will need CHINFO approval because he has interviewed Navy service members for this book. CHINFO approval is obtained after the interviews have already occurred and the Chains of Command in this case are back filled and asked for their approval after the interviews had already been completed. The author continued with the security review and because he was writing about Explosive Ordnance Disposal had to also submit his book to JIEDDO for final security review.

c. Example 3. An active duty Chaplain aboard a carrier writes to Navy Visual for

    permission to use various Navy photos in a book he is publishing. His email is forwarded to NAVINFO East. NAVINFO East asks more about what he is publishing and determines that the Chaplain was sent through a school of theology by the Naval Chaplain Corps and for his Master’s project wrote this book. He was now looking for permission to include photos from the carrier he is currently stationed aboard. While Navy photos are not copyrighted and may be used as long as proper credit is given to the photos, certain concerns arose. First, were all of the pictures he chose to use already

released by the Navy or did he acquire them from the ship’s PA shop and they may have

    not been release publicly. Second, does the book contain anything that is not common

    public knowledge or current Navy policies or programs?

     5. Navy Offices Involved: For the most part PAOs and many Navy commands realize

    that authors seeking Navy support for book should be forwarded directly to NAVINFO

    East. However, military service members interested in publishing do not seem to have a

    clear understanding of the rules and chain of command they need to work with in order to

    ensure they are publishing material according to government regulations.

CHINFO Point Papers are submitted to CHINFO from NAVINFO East with summaries

    of various book projects and recommendations for approval. The point papers are

    processed through OI-8 and signed by CHINFO himself.

    NAVINFO East Serves to review book proposals and work directly with CHINFO to determine the amount of support the Navy can offer to the author as well as whether or

    not approval for support should be granted. For military service members, NAVINFO

    East should be the Public Affairs Office they contact to begin coordinating review of

    their material, if it focuses on military and military experience, legal publication. th Floor, New York, NY 10022; (212) 784-0133 NAVINFO East, 805 Third Avenue, 9

USN Standards of Conduct and Government Ethics Branch Administrative Law Division,

    OJAG (Code 13) Located at the Pentagon, this is the JAG that NAVINFO East PAOs work closely with to determine the ethics and legality for service members’ book projects

    and requests. In some cases, military service members are forwarded directly to this

    office for specific legal questions.

     Department of the Navy, Office of the Judge Advocate General (Code 13), Washington

    Navy Yard, 1322 Patterson Avenue, SE, Suite 3000, Washington, DC 20374-5066; (703)

    604-8280

Department of Navy Security Review Located in a Washington area NCIS office, Mr.

    David Daley serves as the head of the Navy’s Security Review office working for the

    CNO. NAVINFO East was introduced to him and his office during Fall 2006 when

    questions came up regarding the security review for a Navy doctor publishing a book on

    his experience. Mr. Daley and NAVINFO East are now working closely with each other

    to forward service members between the two offices to ensure the proper regulations are

    followed. Mr. Daley reads through the entire book and conducts the security review,

    while he picks up issues such as privacy right violations it is not his responsibility as

    part of the security book to make the author change those things. Right now he is the

    only government employee that reads the entire manuscript, with the exception of

    JIEDDO for EOD related topics.

    Head, DON Security Review, CNO(N09N2)/NCIS-24E, Washington Navy Yard, DC;

    (202) 433-8862

6. Recommendations. There are steps that should be taken to better align the Public

    Affairs Regulations with the Joint Ethics Regulations as well as steps that could be taken to better inform the uniformed service members interested in unofficial publishing.

    a. Update SECNAVINST 5720.44B (PA REGS) Supplemental Guidance 1004 para. e. with further numbered bullets within paragraph e.

     An activity relates to official duties if:

    (1) The activity is undertaken as part of the employee’s official duties; or

    (2)Circumstances indicate the invitation to engage in the activity was extended primarily because of the employee’s official position rather than his or her expertise on the particular subject matter; or

    (3) The invitation is from a person whose interests may be affected substantially by the employee’s performance or non-performance of official duties; or

    (4) The information conveyed through the activity draws substantially on non-public information; or

    (5) The activity deals in significant part with any matter to which the employee is assigned presently or was assigned within the past year; or

    (6) The activity deals in significant part with any ongoing or announced policy, program or operation of the Department of the Navy.”

    b. Constant communication should occur between NAVINFO East and the Department of the Navy’s Security Review Office. It is essential that those lines of communication remain open and that both commands are forwarding on information on authors that reach out to either or both commands.

    It is important that NAVINFO East continue to receive feedback from the Security Review office concerning policy issues such as privacy right violations that the PA community can then work with the author to correct.

    c. NAVINFO East should submit an internal Navy News Story discussion service members that are writing books and what procedures and regulations they should be familiar with to better inform the Sailors. This article should also be submitted to Navy

    Reservist magazine.

Copy: LCDR Aaron Rugh, USN Standards of Conduct and Government Ethics

    Branch Administrative Law Division, OJAG (Code 13)

    LCDR Julie Crisfield, USN Standards of Conduct and Government Ethics Branch Administrative Law Division, OJAG (Code 13)

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