With March Madness approaching, several ethics issues related to March Madness and other office pools are worth considering:
1. Office pools that meet the elements of "gambling" are prohibited.
Federal employees are generally prohibited from gambling (including lotteries and pools) on duty, in/on governmental facilities, or using governmental equipment. JER 2-302; 41 CFR 102-74.395; 5 CFR 735.201. "Gambling" is generally defined by three elements: (1) pay-to-play (i.e., consideration furnished to enter); (2) game of chance (vice skill); and (3) an opportunity to win a reward/prize. Sports pools that meet these three elements are gambling. Pools that eliminate one or more of these elements, such as those for bragging rights only (no prizes offered) or are free to enter, are not considered gambling. (Note: these pools are inherently games of chance vice skill, though there may be some educated predictions, so that element is always met.) Violations of the gambling regulations may result in criminal, disciplinary, and/or administrative action.
2. Use of Government time or resources to conduct office pools is generally prohibited.
Non-gambling pools are not official and generally employees may not use official time or resources to administer them. However, the appropriate CO or Supervisor (JER 1-202) may authorize limited use of governmental communication systems, like email, to administer the non-gambling pool in accordance with JER 3-201.a and supplemental guidance (e.g., DON CIO Msg 031648Z Oct 11). Under these regulations, use of computers and email may be authorized for limited personal communications most reasonably made from the workspace (e.g., checking email, brief internet searches, brief banking, etc.). They may also be used to distribute information on matters of common interest (JER 3-208). Even so, such communications must not adversely impact duties, degrade the network/bandwith, or reflect adversely on the Navy. Further, even if authorized, personal communications should still be made during personal time (e.g., lunch hour, breaks), be limited in duration and frequency, and serve an articulable governmental interest (e.g., morale and welfare). Ultimately, while it is within a CO's or Supervisor's discretion to authorize such use, if sports pools waste official time and resources, then they should be curtailed. We have a duty to protect and conserve governmental resources and not use them for other than authorized activities. 5 CFR 2635.101(b)(9), .704, .705; JER 2-301.
3. Official endorsement is prohibited.
Federal employees may not state or imply official endorsement of any non-federal entity or its activities. 5 CFR 2635.702(b)-(c); JER 3-209. Personnel must therefore avoid stating or implying official endorsement of March Madness, conferences, schools, teams, television networks, etc. As a matter of prudence, emails concerning March Madness should include a disclaimer of endorsement. Bracket sheets should not include command or DON/DoD logos (this would raise trademark issues as well as endorsement concerns).
4. Solicitation of gifts/prizes for office pools is prohibited.
Federal employees may not solicit or accept gifts from prohibited sources or given because of their official position. 5 CFR 2635.202(a), (c)(2). Likewise, they may not fundraise in an official capacity (with limited exceptions, e.g., CFC, NMCRS) or use official title, position, or authority in connection with personal fundraising. 5 CFR 2635.808. Employees should therefore not solicit local businesses to donate gifts or other prizes for use in a March Madness pool. Even if done in a personal capacity for an unofficial pool, the risk that the donor is a prohibited source or contributing based on the employee's position (e.g., status as a Sailor or member of the DoD) is great and risks running afoul of these prohibitions.
(Love, the friendly JAG officer)
