The Antideficiency Act and Moves During A Shutdown

We have heard reports of Goddard-campus civil servants being directed to come onsite during the shutdown to complete building move activities, including moves of both offices and laboratories. We have significant concerns that such activities during a government shutdown may be illegal under the Antideficiency Act, which defines what activities may continue during a lapse in appropriations (see also the NASA shutdown Continuity of Operations Plan). Violating the Antideficiency Act carries potential penalties of suspension without pay, removal from office, fines of up to $5000, or up to two years in prison.

Any work that happens during a shutdown also has to be approved, first at the Center management level and then at the NASA HQ-level by a Shutdown Executive Committee (SEC) led by the Agency Chief Financial Officer (CFO), Stephen Shinn.

If you receive instructions that you believe may violate the Antideficiency Act, we recommend that you do the following (note that you can do these in any order, or at the same time).

1. Request clarification in writing (by email) from your supervisor and whoever told you to come in for the move, about what activities you are being asked to perform, and under what authority, and what legal justification or approval (i.e. either as an “excepted” activity or under what appropriated funding). You can also ask your supervisor if the above NASA SEC approval has been obtained and if they can share documentation of that approval with you. State clearly “I am concerned that this may be a violation of the Antideficiency Act, and I would like written orders before I proceed.”
   
2. Separately or by copying him on the email to your supervisor, email Goddard General Counsel Dave Barrett. Include a copy of whatever instructions you’ve received and say “I am concerned that these instructions I’ve received may violate the Antideficiency Act, and I would like a legal opinion before I proceed.”
3. Separately or by copy, email Agency CFO Stephen Shinn to ask for confirmation that the activity has been reviewed and approved to continue during the lapse in appropriations.
4. Please share any documentation of the directions you receive from management (including pdf copies of any email documentation or any written notes of verbal instructions) with GESTA by sending this documentation to our tipline email address. GESTA will not share this information externally without your permission.

You have a legal right not just to report known or suspected violations of law, regulation, or policy, but even to refuse orders that would violate a law, rule, or regulation. Requesting clear instructions and legal guidance, as above, creates a paper trail that may be used later to fight any retaliation you might face. If you are given verbal instructions, you should also make written notes as soon as possible, including the presence of any witnesses.

You can also report any known or suspected Antideficiency Act violations to the Government Accountability Office (GAO), the NASA Office of the Inspector General (OIG), or the House and Senate whistleblower channels. GAO and OIG will not be able to investigate or respond until after the shutdown but it is better to make the report as soon as possible.

If you do comply with any moving instructions, please keep detailed records of how much time you spend, on what dates, and what WBS(s) you charge. If management mishandles your personal property, they would be liable for lost or damaged items. For more information, please also see our previous Building Closures Guidance. We always urge you to keep in mind your right to refuse illegal orders.