Doing Things Right: Ethical Considerations in Government Service

1
Doing Things Right Ethical Considerations in
Government Service

• Hale Hawbecker, DOI Ethics Office
• Nancy Baumgartner, USGS Ethics Office
• DOI Annual Business Conference, May 2006

2
Ethics training goals

• Raise awareness of ethics issues
• Explain criminal ethics statutes and standards of
  conduct regulations
• Discuss subject areas of interest and concern to
  DOI managers
• Questions are welcome!

3
Management of ethics matters

• Know about ethics laws, regulations and policies
  (Federal, DOI and your bureau)
• Know when and how to contact an ethics counselor
• Dont accept thats how weve always done it.

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14 Principles of Ethical Conduct

• To ensure that every citizen can have complete
  confidence in the integrity of the Federal
  Government, each Federal employee shall respect
  and adhere to the fundamental principles of
  ethical service.
• Presidential Executive Order 12674
• http//www.usoge.gov/pages/laws_regs_fedreg_stats/
  lrfs_files/exeorders/eo12674.html

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5 C.F.R. Part 2635

• Standards of Ethical Conduct for Employees of the
  Executive Branch
• Federal employees in all executive agencies and
  departments must adhere to these
• www4.law.cornell.edu/cfr/5p2635.htm

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Contact an ethics counselor

• Before action requiring ethics advice is
  undertaken (if possible)
• E-mail ensures that we know what is being asked
  (and you know what is being answered)
• Ethics matters are very fact-specific
• Use descriptive subject lines

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• Shayla Simmons -
• Designated Agency Ethics Official (DAEO)
• Hale Hawbecker - Alternate DAEO
• Matt Costello - Ethics Program Specialist
• Pam Miller - Financial Disclosure Specialist
• [phone], http//www.doi.gov/ethics

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DOI Ethics Office webpage
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Bureau ethics counselors

• BIA Jeannie.Cooper_at_bia.gov
• [phone]
• BLM Stephanie_Langseth_at_wo.blm.gov
• [phone]

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Bureau ethics counselors

• BOR Sheila Venson (svenson_at_do.usbr.gov)
• [phone]
• MMS Donna.Huston_at_mms.gov
• [phone]
• OIG Jim OSullivan
• James_OSullivan_at_oig.doi.gov
• [phone]

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Bureau ethics counselors

• NPS Peggy_Moran-Gicker_at_nps.gov
• [phone]
• FWS Cheryl_Duffner_at_fws.gov
• [phone]

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Bureau ethics counselors

• OSM Jim Bush
• jbush_at_osmre.gov
• [phone]
• USGS Nancy Baumgartner
• nbaumgartner_at_usgs.gov
• [phone]

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FWS Ethics webpage
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USGS Ethics Office webpage
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Ethics discussion topics

• Federal ethics statutes
• Conflicts of interest
• Impartiality concerns
• Gift acceptance
• Procurement Integrity

• Outside employment
• Seeking employment
• Post-Government employment
• Q A

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Federal criminal ethics statutes

• 18 U.S. Code 201 No bribery
• 18 U.S. Code 203 and 205 No acting as agent
  for a third party to the Government
• 18 U.S. Code 207 Post-Government employment
  representation restrictions

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Federal criminal ethics statutes

• 18 U.S. Code 208 No financial conflicts of
  interest
• May not participate personally and substantially
  in a matter which may affect your financial
  interest or the financial interests of those
  attributed to you
• spouse, minor child, business partner,
  organizations in which you are an officer or
  employee, future non-Federal employer
  (negotiating/seeking employment)

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Appearance of lack of impartiality

• 5 C.F.R. 2635.502
• Basic Principle Unless specifically authorized
  by an appropriate ethics official, an employee
  should not participate in a particular matter
  involving specific parties when
• The employee knows the matter is likely to have a
  direct and predictable effect
• On the financial interests of a member of his/her
  household

19
Appearance of lack of impartiality

• Authorization may be granted by an appropriate
  ethics official upon written determination that,
  in light of all relevant circumstances, the
  Governments interest in the employees
  participation in the matter outweighs the concern
  that a reasonable person may question the
  integrity of the agency.

20
Federal criminal ethics statutes

• 18 U.S. Code 209 No supplementation of
  Federal salary (Is it really outside
  employment?)
• 18 U.S. Code 219
  No acting as agent for foreign
  principal
• Penalties of up to 5 years in jail and 50,000
  fine

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Gift acceptance

• What you can and cant do

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Gifts from outside sources

• 5 C.F.R. 2635.203(b)
• Not everything is a gift
• Snacks (coffee, donuts, etc.)
• Greeting cards, certificates, trophies
• Prizes in contests open to the public
• Commercial discounts
• If employee pays fair market value
• If Federal government pays

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What you cant do

• Federal employees may not
• Solicit or accept, directly or indirectly,
• A gift
• From a prohibited source
• Or offered due to their official position

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What is a prohibited source?

• Any person, company, or organization that
• Does business (or is seeking to do business) with
  bureaus or DOI (contractors, consultants,
  concessionaires, etc.)
• Is regulated by your DOI or bureaus or
• Can be affected by the performance or
  nonperformance of your official duties

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More prohibited sources

• Any professional, technical, or trade
  association, the majority of whose members
  represent prohibited sources or
• An outside organization that seeks to influence
  the government.

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Separate components

• 5 C.F.R. 3501.102
• The term "agency" is narrowly defined to mean the
  organization that employs the individual. An
  employee who works for a DOI bureau may accept a
  gift from a person or organization having
  business dealings with another bureau component.
  

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Separate components, contd

• BUT, Department employees are prohibited from
  accepting gifts from any person or organization
  having business dealings with DOI or any DOI
  bureau, as well as
• Office of Indian Education Programs,
• National Indian Gaming Commission and
• Office of the Special Trustee for American
  Indians

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Gift exceptions

• Gifts valued at 20 or less per source per
  occasion (50/year)
• Gifts based on personal relationships or outside
  business relationships
• Free attendance at widely attended gatherings or
  where you are participating as a speaker (subject
  to advance written approval)

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Gift exceptions

• Sharing of perishable items in office
• Awards (with Ethics Counselor approval)
• Some gifts shouldnt be accepted, even if an
  exception applies
• 5 C.F.R. 2635.204
• http//a257.g.akamaitech.net/7/257/2422/11feb20051
  500/edocket.access.gpo.gov/cfr_2005/janqtr/5cfr263
  5.204.htm
• Questions? Consult your Ethics Counselor

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What if I cant refuse a gift?

• DOI employees may accept gifts offered to them by
  representatives of Indian Tribes, Alaska Native
  Organizations, Insular and foreign governments
  when refusal to accept such gifts would be likely
  to cause offense or embarrassment or otherwise
  adversely affect relations with the United
  States.
• Such gifts shall be deposited with their bureau's
  property officer

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Gifts to supervisors

• OK, if voluntary
• On occasions when gifts are traditionally given
  (holidays, birthdays, Bosses Day) - items other
  than cash, 10 limit (NO pooling)
• Contributions for food to be shared in office
• No coercion of donations

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Gifts to supervisors

• Special, infrequent occasions or those that end
  supervisor/manager status (retirement, transfer,
  marriage, birth of child, etc.)
• No limit, but must be appropriate to the
  occasion
• Between employees
• Must have a bona fide personal relationship

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Gift acceptance by DOI or bureaus

• Avoid conflicts of interest
• Donation Guidelines regulation
• 374 DM 6, Dec 13, 2005
• The Department and each bureau should designate a
  senior person to be its donation vetting point of
  contact
• Maintain the integrity and impartiality of DOI
  and bureau programs and operations

34
Acceptance of travel expenses from non-Federal
entities

• 31 U.S.C. 1353 permits agencies to accept
  travel expenses from non-Federal entities
• With prior written approval via DI-2000
• Or within 7 days of travel, if exigent
  circumstances
• Employee must be in official travel status

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Acceptance of travel expenses from non-Federal
entities

• For attendance at meetings, workshops, training,
  conferences or similar events
• Not for field work (use agency gift regs)
• Employees may never personally accept cash or
  checks for reimbursement
• For international travel annotate authority on
  the DI-1175 (DI-2000 is still required)

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Outside Activities

• 5 C.F.R. 2635.801-809

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Limitations on Outside Activities

• You generally may not receive pay for teaching,
  speaking and writing that relates to your
  official duties
• There is an exception that permits you to teach
  certain courses at accredited educational
  institutions

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Limitations on Outside Activities

• You may not use your official title or position
  (except as part of a biography or an article in a
  professional journal with appropriate disclaimer)
• Outside employment with a prohibited source
  requires approval of your agency

39
Limitations on Outside Activities

• USGS requires approval of outside employment that
  is related to your USGS duties or the USGS
  mission
• No holding state or local office (if partisan)
• May not work for agency contractor or grantee

40
Outside work

• PRIOR approval of outside work by an ethics
  counselor means that an employees receipt of
  compensation does not violate 18 U.S. Code 209
  (the criminal ethics statute that prohibits
  supplementation of a Federal employees salary)

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Speaking as outside work

• Why how was the request received?
• Is the subject matter part of the work of the
  employee during the previous year?
• Is the employee being offered anything more than
  actual (and reasonable) personal travel expenses?

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Speaking as outside work

• Does the employees PD include outreach
  activities?
• Was the employee on leave or authorized absence
  during the preparation and delivery of the
  speech?
• No honoraria if not outside work

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Writing a book as outside work

• No royalties if the book deals in significant
  part with
• any matter to which the employee is presently
  assigned or has been assigned during the previous
  1-year period, or
• any ongoing or announced agency or bureau policy,
  program or operation

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Procurement Integrity

• 41 U.S.C. 423

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Procurement Integrity

• Ban on disclosing information
• Contractor bid/proposal info
• Source selection info
• Ban on obtaining procurement info
• Companies can be banned from future procurements
• Boeing and Lockheed Martin industrial espionage

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Procurement Integrity

• Employment contact reporting rule
• Involving contracts over 100K
• Report and reject offer
• Report and recuse (disqualify)
• One-year ban on accepting compensation from
  contractor
• Applies to contracts over 10 million

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Procurement - Sensitive Information

• If it has not previously been made public, DO NOT
  DISCLOSE
• Proposal or bid information, including
• Cost or pricing data, including indirect costs
  and direct labor rates
• Proprietary information about manufacturing
  process, operations, or techniques identified as
  such by any contractor
• Information identified by any contractor as
  "contractor bid or proposal information

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Procurement - Sensitive Information

• If it has not previously been made public, DO NOT
  DISCLOSE
• Source selection information (which is
  information that is prepared for use by a
  Federal agency for the purpose of evaluating a
  bid or proposal)

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Source selection information

• Bid prices
• Proposed costs or prices
• Source selection plans
• Technical evaluation plans
• Technical and cost or price evaluations of
  proposals
• Competitive range determinations
• Rankings of bids, proposals, or competitors
• Reports and evaluations of source selection
  panels, boards, or advisory councils
• Other "source selection information

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Post-Government employment

• Including seeking for employment

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Seeking employment restrictions

• 18 U.S. Code 208
• No actions in official capacity that could affect
  finances of organizations with whom an employee
  is seeking employment
• Must disqualify (recusal)
• Preferably in writing

52
Seeking employment restrictions

• You are considered to be seeking employment
  when
• You engage in actual negotiations for employment
  
• A potential employer contacts you and you make a
  response other than rejection
• You contact a prospective employer about possible
  employment (unless the sole purpose of the
  contact is to request a job application or send a
  resume to a person affected by your duties only
  as a member of a class)

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Seeking employment restrictions

• You are no longer considered to be seeking
  employment when
• You or the prospective employer reject the
  possibility of employment and all discussions
  have ended
• Two months have elapsed since you sent an
  unsolicited resume and you have received no
  expression of interest

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Post-Government restrictions

• Bans of varying durations
• Lifetime ban - specific party particular matters
  (such as contracts) in which employee was
  involved in any way
• Similar 2 year ban specific party particular
  matters pending in employees official
  responsibility during final year of Government
  service

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Post-Government restrictions

• 1 year cooling off period PAS, SES employees,
  anyone paid more than 89.5 of the rate for level
  II of the Executive Schedule (currently 142,898
  or more)
• Detailed post-Government employment advice is
  available from DOI and bureau ethics counselors
  even after retirement

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Post-Government restrictions

• Limitations on representational acts
• Cannot contact DOI or bureau with the intent to
  influence
• OK to work behind the scenes in an advisory
  capacity to post-Government employer

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Comments, questions, concerns?
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Dont take chances, its not worth it.