Attachment 2.pdf

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The Judge Advocate General's Legal Center & School Ethics Counselor’s Deskbook

Table of Contents

Title Chapter

Ethics Counselor Fundamentals A

Use of Resources B

Conflicts of Interest C

Financial Disclosure D

Relations with Non-Federal Entities E

Fundraising F

Political Activities G

Gifts H

Travel and Transportation I

Post-Government Employment J

Contractors in the Workplace K

Reserve Component Ethics Issues L

CHAPTER A: ETHICS COUNSELOR FUNDAMENTALS

I. AUTHORITIES

A. 18 U.S.C. §§ 201-209, 216.

B. Ethics in Government Act of 1978 (5 U.S.C. app. § 101 et. seq.).

C. Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R., Part 2635 (Office of Government Ethics Rules).

D. Supplemental Standards of Ethical Conduct for Employees of the Department of Defense, 5 C.F.R., Part 3601.

E. DoD Directive (DoDD) 5500.07, Standards of Conduct (November 29, 2007)

F. DoD 5500.07-R, Joint Ethics Regulation (JER), 30 August 30, 1993 (including Change 7 last revised November 17, 2011).

G. Executive Order 12674, "Principles of Ethical Conduct for Government Officers and Employees," April 12, 1989, as amended.

HELPFUL LINKS.

• DoD Standards of Conduct Office (http://www.dod.mil/dodgc/defense_ethics/)

• Office of Government Ethics (https://www2.oge.gov/web/oge.nsf/About+OGE/)

II. CRIMINAL ETHICS STATUTES

A. 18 U.S.C. § 201-209 are the main criminal ethics statutes providing enforcement mechanisms for these laws. 18 U.S.C. § 216 provides the penalty for a violation of the criminal conflict of interest statutes.

B. Section 201 makes bribery a crime. Section 202 defines Special Government Employees. Sections 203 and 205 restrict Federal employees from representing others before the Government with or without compensation. Section 207 places post-government employment restrictions on former federal employees. Section 208 is the conflicts of interest law covering current Executive Branch federal employees. Section 209 prohibits federal employees from being paid by two non-federal sources to perform their federal duties.

1 Chapter A: Ethics Counselor Fundamentals 2016-2017 http://www.dod.mil/dodgc/defense_ethics/ https://www2.oge.gov/web/oge.nsf/About+OGE/

III. OFFICE OF GOVERNMENT ETHICS (OGE)

A. The U.S. Office of Government Ethics was created by the Ethics in Government Act, 5 U.S.C. app. §401, as a separate Executive Branch agency to oversee Executive Branch ethics programs. The underlying basis for the Ethics in Government Act is the Basic Obligations of Public Service issued under Executive Order 12674 at Appendix A (commonly known as the 14 principles).

B. OGE’s authority, functions, and oversight of Executive Branch agencies is designated by 5 U.S.C. app. § 402.

C. The Ethics in Government Act requires that the head of each Executive Branch agency designate a designated agency ethics official (DAEO) to administer the agency ethics program.

D. In response to Executive Order 12674, OGE issued the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. part 2635. The Standards apply to all executive branch employees and address a myriad of ethics topics, including: both the criminal conflict of interest and appearance of a conflict of interest rules, misuse of Government personnel and equipment, receipt of gifts, regulations on seeking employment and on post-government employment and participation in fundraising events.

IV. IMPLEMENTATION OF THE ETHICS IN GOVERNMENT ACT AT

DOD

A. DoD has issued a supplemental regulation which applies only to DoD personnel (military and civilian) and addresses a number of issues of importance to the DoD community.

B. The Supplemental Regulation is found at 5 C.F.R., Part 3601. (NOTE: The JER incorporates the supplemental regulation by reference but is not itself the DoD supplementation.) This regulation supplements the Standards of Ethical Conduct for Employees of the Executive Branch.

C. Part 3601 provides additional exceptions for gifts from outside sources, provides for additional limitations on gifts between DoD employees, sets forth when employees must complete a written disqualification, places limits on solicited sales by supervisors to subordinates, provides criteria for prior approval for outside employment and business activities, and requires a disclaimer for speeches and writings devoted to agency matters.

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V. WHO RUNS THE DOD ETHICS PROGRAM

A. The general counsel of each DoD designated separate agency component (DoD DAEO organization), pursuant to 5 C.F.R. § 3601.102, serves as the DoD agency DAEO unless the head of the agency appoints another person. See also DoDD 5500.07, section 5.4.

1. DAEO (JER § 1-207): A DoD employee appointed, in writing, by the head of a DoD agency to administer the provisions of the Ethics in Government Act of 1978 and the JER. See also JER §§ 1-203 and 1-206. The DAEO is responsible for the implementation and administration of the component's ethics program.

2. Alternate DAEO (JER § 1-203): An employee of a DoD agency who has been appointed by the DoD component head to serve in the absence of the DoD component DAEO.

3. Deputy DAEO (JER § 1-206): An employee of a DoD agency who has been appointed, in writing, by the DoD component DAEO and who has been delegated, in writing, authority by that DoD component DAEO to act on his behalf.

4. Ethics Counselor (EC) (JER § 1-212): A DoD employee (must be an attorney) appointed, in writing, by the DAEO or designee to assist generally in implementing and administering the command's or organization's ethics program and to provide ethics advice to DoD employees in accordance with the JER.

VI. THE JOINT ETHICS REGULATION

A. Created and authorized by DoDD 5500.07, Standards of Conduct.

1. Current version consists of Changes 1-7.

(http://www.dod.mil/dodgc/defense_ethics/ethics_regulation/)

2. Applies to all DoD Components and personnel.

3. Punitive. Noncompliance with the regulation is administratively punitive for civilian personnel. Regulations printed in bold italics in the JER are general orders—they apply to all military members without further implementation and violations may be punishable as violations of a lawful general order, Article 92, Uniform Code of Military Justice (UCMJ).

3 Chapter A: Ethics Counselor Fundamentals http://www.dod.mil/dodgc/defense_ethics/ethics_regulation/

B. Foreword to the JER. Cancels all DoD and service directives and regulations that are inconsistent with the JER.

C. Applies the OGE rules (C.F.R. provisions) to non-covered DoD personnel.

1. Republishes and specifically applies many of the OGE rules to enlisted and national guard members.

2. Rules apply to all “DoD employees” except the following do not apply to enlisted personnel: 18 U.S.C. §§ 203, 205, 207, 208, and 209; but provisions similar to 18 U.S.C. §§ 208 and 209 do apply. See JER 1- 300b.

D. Only the Secretary can waive application of a JER provision, unless the JER provides otherwise (e.g., certain provisions may be waived by the DoD General Counsel).

E. The JER provides DoD-specific interpretative and procedural guidance for implementation of the regulations. For example, the JER also includes key definitions for identifying who has what responsibilities in implementing the DoD ethics program.

F. Key definitions under the JER.

1. DoD Employee (JER § 1-209): The JER applies the Executive Branch Standards of Conduct rules to "DoD Employees." The definition essentially includes everyone in DoD:

a. Any DoD civilian officer or employee (including special government employees) of any DoD component (including any non-appropriated fund activity).

b. Any active duty regular or reserve military officer, including warrant officers.

c. Any active duty enlisted member of the Army, Navy, Air Force, or Marine Corps.

d. Any reserve or National Guard member on active duty under orders issued pursuant to Title 10, United States Code.

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e. Any reserve or National Guard member while performing official duties or functions under the authority of either Title 10 or 32, United States Code, or while engaged in any activity related to the performance of such duties or functions, including any time the member uses his reserve or National Guard of the United States title or position, or any authority derived therefrom.

f. Foreign national employees if consistent with labor agreements and international treaties and agreement, and host country laws, e.g., German and Japanese national employees are not subject to the JER, but Korean national employees are.

g. Employees from outside the U.S. Government, but who are working in DoD under authority of the Intergovernmental Personnel Act, are not included in the definition of “DoD employee.” However, personnel assigned to DoD (appointed or detailed) are covered by the Ethics in Government Act, Standards of Ethical Conduct for Employees of the Executive Branch, and the conflict of interest laws.

2. Agency Designee (JER § 1-202): The first supervisor who is a commissioned military officer or a civilian above GS/GM-11 in the chain of command or supervisor of the DoD employee concerned. Except in remote locations, the agency designee may act only after consultation with his local ethics counselor. For any military officer in grade 0-7 or above who is in command and any civilian presidential appointee confirmed by the Senate, the agency designee is his ethics counselor.

3. Special Government Employee (SGE) (JER § 1-227): Person, including an enlisted member, who performs temporary duties not-to-exceed 130 days during any period of 365 consecutive days. Includes reserve component (RC) officers “serving on active duty involuntarily or for training for any length of time, and one who is serving voluntarily on active duty for training for 130 days or less.” But see also 18 U.S.C. § 202, which provides a slightly different definition regarding when RC officers are SGEs. Consult the websites listed at the end of this outline for future updates and clarification on this matter.

VII. DESIGNATED AGENCY ETHICS OFFICIAL DUTIES AND

RESPONSIBILITIES

(All short references are to 5 C.F.R.)

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§ 2635.102(c) DAEO and various designees are also agency ethics officials.

§ 2635.107(a) Responsible for managing agency ethics program.

§ 2635.805(c) May authorize, in coordination with the DOJ, service as an expert witness which might otherwise violate 18 U.S.C. §§ 205 or 207.

§ 2634.201(f) Reviewing official (DAEO or alternate) may grant 45-day extension for filing OGE 278.

§ 2634.204(a) May determine that filer will serve less than 60 days in a given year and not have to file OGE 278.

§ 2634.602 OGE 278s are filed with DAEO.

§ 2634.604(a) OGE 278s must be reviewed within 60 days after filing.

§ 2634.604(b) OGE 278s are to be reviewed for facial completeness and apparent conflicts.

§ 2634.604(b) When OGE 278s are incomplete:

(1) Reviewer must request info by a date certain (usually no more than 90 days)

(2) Must give the filer notice and an opportunity to respond

(3) Must pursue remedies to resolve conflicts

(4) Must notify the head of the agency if the filer is in non-compliance

§ 2634.605(b) DAEO must maintain a list of 278 filers in non-compliance.

§ 2634.803(d) DAEO may enter into ethics agreements to resolve conflicts of interest.

§ 2638.203(b) DAEO duties in managing agency ethics program are:

(1) Liaison with OGE

(2) Maintain financial disclosure system

(3) Personally review presidential appointee disclosures

(4) Report ethics violations

(5) Maintain agency ethics education program

(6) Maintain counseling program

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(7) Keep records of advice rendered

(8) Enforce ethics rules

(9) Periodically evaluate/audit agency ethics

(10) Liaison with Inspector General

§ 2638.204 May delegate powers to deputy ethics officials (as used by OGE

"deputy ethics officials" includes alternate DAEOs, agency ethics officials, and ethics counselors).

§ 2638.702 In managing the agency ethics training program, the DAEO must:

(1) Ensure it is legally correct

(2) Ensure qualified trainers are available

(3) Submit an annual training plan to OGE

§2641.201(d) DAEO can request exemption of positions, or revocation of exemption, from 18 U.S.C. § 207(c) coverage.

VIII. AUTHORITY AND APPOINTMENT OF ETHICS COUNSELORS

Check with your office to determine if you have been properly delegated authority to act as an ethics counselor. If you do not have a proper delegation, then check with your judge advocate general or general counsel’s office.

IX. ETHICS COUNSELOR RESPONSIBILITIES INCLUDING THOSE

UNDER THE DOD SUPPLEMENTAL REGULATION (5 C.F.R.,

PART 3601)

A. Implements, administers, and oversees all aspects of the organization’s ethics program and all matters relating to ethics covered by the DoD supplemental ethics regulation at 5 C.F.R., Part 3601 and the JER. See 5 C.F.R. § 2638.201 (in Chapter 11 of the JER) and JER 1-401a.

B. Specific responsibilities set out in the ethics rules:

1. DoD Supplemental Regulation 5 C.F.R., Part 3601:

a. .104 advising on acceptance of group gifts

b. .105 advising on written disqualification

c. .106 advising on limitation on solicitation of sales to people junior in rank

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d. .107 advising on prior approval for outside activities

e. .108 advising on disclaimer for speeches and writings

2. Chapter 2, JER:

a. 5 C.F.R. § 2635.107(b) - Advice and counsel.

b. 5 C.F.R. § 2635.204(d)(2) - Written determination required before certain awards or honorary degrees may be accepted.

c. 5 C.F.R. § 2635.205(c) - Advise on proper disposition of improper gifts. See also group gifts at 5 C.F.R. § 3601.104

d. 5 C.F.R. § 2635.502(a)(1) - Consult with ethics counselor when appearance of a conflict may exist over personal or business relations.

e. 5 C.F.R. § 2635.602(a)(2) - Post-government employment advice including advising on written disqualification at 5 C.F.R. § 3601.105

f. 5 C.F.R. § 2635.805(c) - Authorize appearance of government employee as an expert witness in a case in which the U.S.

Government is a party.

(1) Delegated by Army DAEO to Chief, Litigation Division for Army. For the rules, see Army Regulation 27-40, paragraph 7-10b

(2) Current and former Air Force employees rules are found in Air Force Instruction 51-301 (20 June 2002), Chapter 9.)

(3) Current Navy and Marine guidance is at 32 C.F.R. part 725.

g. JER § 2-202b - Determination regarding gifts of scholarship and grants.

3. Chapter 3, JER (5 C.F.R. § 2636.103) – Advisory opinions (honoraria, etc.).

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4. Chapter 10, JER - EC responsibility to consult on and report violations of the ethics laws.

5. Chapter 11, JER (5 C.F.R. Part 2638.701 et seq.) - Training responsibilities.

C. ECs provide guidance to “Agency Designees” when dealing with:

1. Acceptance of Gifts from Outside Sources - Widely Attended Gathering (Chapter 2, JER).

a. 5 C.F.R. § 2635.204(g)(3) - Determination of agency interest.

b. 5 C.F.R. § 2635.204(g)(3)(i) - Written determination of agency interest--that employee's participation outweighs favoritism appearances.

c. 5 C.F.R. § 2635.204(g)(3)(ii) - Blanket determination of agency interest.

d. 5 C.F.R. § 2635.204(g)(6) - Authorize accompanying spouse or other guest.

2. Waiver of Conflicting Financial Interest (Chapter 2, JER). NOTE: ECs must elevate any discussion of a possible 208 waiver through the appropriate component DAEO, which will consult with the U.S. Office of Government Ethics.

a. 5 C.F.R. § 2635.402(d)(2)(i) - Official responsible for appointment waives 18 U.S.C. § 208 conflict of interest.

b. 5 C.F.R. § 2635.402(d)(3)(ii) - Official responsible for appointment of SGE to a Federal Advisory Committee waives 18 U.S.C. § 208 conflict.

3. Conflict of Interests - Impartiality (Chapter 2, JER).

a. 5 C.F.R. § 2635.502(a) - Consult when appearance of a conflict.

b. 5 C.F.R. § 2635.502(c) - Determines if appearance of a conflict.

c. 5 C.F.R. § 2635.502(d) - Authorize participation notwithstanding appearance of a conflict of interest.

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4. Seeking Employment (Chapter 3, JER) - 5 C.F.R. § 2635.605(b) - Authorize participation in a particular matter notwithstanding appearance of a conflict of interest while seeking employment.

5. Events sponsored by State and Local Government (JER § 2-202) - Determination of community relations interest.

6. Outside Employment (JER § 2-206) - Authorize employment.

D. Act as the Agency Designee for General/Flag Officer in Command (JER § 1-202).

E. 31 U.S.C. § 1353 (Gifts of Travel and Travel-Related Expenses to the Agency).

Travel approval authority may not authorize acceptance without advice and concurrence of EC: 5 C.F.R., Part 304; JER §§ 4-100 & 4-101

1. Army Directive 2007-01, paragraph 15

2. SECNAVINST 4001.2J (12 Aug 09)

3. No Specific instruction in Air Force.

F. Public (OGE Form 278) and Confidential (OGE 450) Financial Disclosure Reports (5 C.F.R. Part 2634).

1. JER §§ 7-205 & 7-305 - Submit financial disclosure report through ECs.

2. JER §§ 7-206 & 7-306 - EC review of financial disclosure reports.

G. Provide Written Ethics Opinions to Individuals.

1. Chapter 2, JER, 5 C.F.R. § 2635.107 (In general).

2. Chapter 2, JER, 5 C.F.R. § 2635.602 (Post-Government Restrictions).

3. 5 U.S.C. app. 504(b); Chapter 3, JER; 5 C.F.R. § 2636.103 (Compensation for Teaching).

4. 41 U.S.C. § 2101-2107 (Procurement Integrity).

H. Additional EC Responsibilities (JER § 1-411).

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1. Request assistance through EC channels if issue cannot be resolved locally.

2. Maintain a current copy of JER for review of employees. NOTE: Any link to JER should be back to the DoD Publications website. A local version should not be used. This prevents outdated versions from existing.

3. Maintain thorough understanding of DoD ethics policies.

4. Provide copies of precedential ethics opinions to DAEO.

G. Other EC Responsibilities.

Often, an Agency Ethics Official is appointed in writing by the DAEO, or by the head of a command or organization, who has been delegated the authority to assist in managing the ethics program and provide ethics advice (a.k.a. "Ethics Counselor"). He has the following responsibilities. (All short references are to 5 C.F.R., Part 2635.)

.102(c) Definition: Has been delegated authority to carry out agency ethics program.

.107(b) May give authoritative advice on the standards of conduct.

.204(d)(l) Must make written determination that awards in excess of $200 in value are bona fide part of a program of established recognition.

.204(d)(2) Must make written determination that acceptance of an honorary degree would not create an appearance of impropriety.

.205(a)(2) May decide how to dispose of improper perishable gift (note: all supervisors have this power).

.205(c) May provide qualified immunity from adverse actions to employees who seek advice on disposition of improper gifts.

.402(c)(2) May require written disqualification in resolving conflicting financial interest under 18 U.S.C. § 208 (note: all supervisors have this power).

.502(a)(1) May provide advice to employees on whether an outside interest or relationship creates an appearance of impropriety.

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.502(e)(2) May require written disqualification in resolving appearance of impropriety (note: all supervisors have this power).

.602(a)(2) May provide advice to employees on post-employment restrictions

(including 18 U.S.C. § 207; 5 C.F.R. §§ 2637 & 2641; and 41 U.S.C. § 423).

.604(c) May require written disqualification while "seeking employment"

(note: all supervisors have this power).

2636.103(b) May provide advisory opinion on whether honorarium prohibition applies to a specific activity.

FAR 3.104-6(a) Shall, within 30 days of written request, provide written opinion on whether this statute precludes engaging in a specific activity.

X. WHAT AN ETHICS COUNSELOR MAY NOT DO

Certain duties of the DAEO are not delegable. They are:

A. Determining whether an employee may testify against the Government pursuant to 5 C.F.R. § 2635.805.

B. Approving teaching as an outside activity by a non-career political appointee pursuant to 5 C.F.R. § 2636.307.

C. Certifying a public financial disclosure report of a presidential appointee confirmed by the Senate.

D. Possibly being the final reviewer of the commander depending upon the EC delegation.

XI. COMMAND RESPONSIBILITIES (CHAPTER 1, SECTION 4, JER)

A. DoD Component Heads (JER § 1-400).

1. Exercise personal leadership.

2. Take personal responsibility.

3. Provide sufficient resources to implement the program.

B. Heads of DoD Component Commands or Organizations (JER § 1-404).

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1. Personally account for command’s ethics program.

2. Exercise personal leadership in maintaining the command’s program.

C. Inspector General (JER § 1-412).

1. Investigate ethics matters.

2. Report to DAEO or designee potential criminal matters referred to Department of Justice.

D. Personnel and Administrative Officers (JER §§ 1-413 & 414).

1. Identify employees required to receive ethics training.

2. Inform new employees of requirement to receive ethics training.

XII. REQUIRED REPORTS

A major part of an ethics program is a series of reports. The Ethics Counselor will be responsible for completing the following reports either as a reviewer for financial disclosure or as the designee responsible for gathering the information in the office to be included in the report.

A. OGE Form 450 - Confidential Financial Disclosure Reports (or the DoD version of OGE Optional Form 450-A, Confidential Certificate of No New Interests) (Annual reports due 15 February).

B. OGE Form 278 - Public Financial Disclosure Reports (Annual reports due 15 May).

C. Gifts of Travel - (31 U.S.C. 1353) to report up to DAEO office as instructed.

(Prior approval required prior to acceptance, and final report due within 30 days of travel) (Agency submits semi-annual reports to OGE no later than 31 May & 30 Nov).

D. Annual Ethics Training Plan. (5 C.F.R. § 2638.702) (Chapter 11, JER § 11-302).

Due December each year. (Check your delegation and with your Service to ensure that you must complete this.)

E. Annual Ethics Program Survey to report up to DAEO office as instructed. (5 C.F.R. § 2638.602(a)). (Due Feb each year).

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F. Enforcement of the Joint Ethics Regulation - (Chapter 10, JER). (As needed for serious criminal misconduct. Matters referred to DOJ or U.S. Attorney are reported on OGE Form 202, “Notification of Conflict of Interest Referral,” Nov.

2004. See http://www.oge.gov/Forms-Library/OGE-Form-202,-Notice-of- Conflict-of-Interest-Referral).

XIII. RESOURCES (IN ADDITION TO LAW AND REGULATION) THAT

MAY HELP THE ETHICS COUNSELOR

A. GAO Principle of Federal Appropriations Law (Redbook) for Fiscal Law Related Issues. (http://www.gao.gov/)

B. OGE material. (https://www2.oge.gov/web/oge.nsf/About+OGE/)

C. DoD SOCO website. (http://www.dod.mil/dodgc/defense_ethics/index.html)

D. Your MACOM/MAJCOM/higher command EC.

E. Navy JAG (Code 13); Navy Assistant General Counsel (Ethics); AF/JAG General Law Division; Army SOCO.

F. Army Ethics website. (http://www.jagcnet.army.mil/) Ethics Forum and SOC Database. (http://ogc.hqda.pentagon.mil/Ethics.aspx)

G. Navy Ethics website. (http://www.ethics.navy.mil)

H. Air Force website. (http://www.safgc.hq.af.mil/organizations/gca/index.asp)

XIV. HEAD OF AGENCY AND SGES

A. Head of Agency

(All short references are to 5 C.F.R., Part 2635.)

.102(b) Determinations relating to the conduct of the agency head, or actions which must be taken by agency head, must be done in consultation with the DAEO

.102(i) Definition: "Head of Agency" means head of agency

.503(c) Waiver of conflict created by extraordinary payments from former

14 Chapter A: Ethics Counselor Fundamentals 2016-2017 http://www.gao.gov/ https://www2.oge.gov/web/oge.nsf/About+OGE/ http://www.dod.mil/dodgc/defense_ethics/index.html http://www.jagcnet.army.mil/ http://ogc.hqda.pentagon.mil/Ethics.aspx http://www.ethics.navy.mil/ http://www.safgc.hq.af.mil/organizations/gca/index.asp employers shall be in writing and given only by the head of agency.

However, this waiver authority may be delegated.

2634.605(b) Must maintain list of OGE278 filers in non-compliance

2638.202(a) and (b) Is personally responsible for agency ethics program, and shall make sufficient resources available for the program, and select the DAEO.

NOTE! The headnote summaries of these sections have been condensed and simplified. However, to the greatest extent possible, the operative verbs and objects in the regulations have been retained.

B. Special Government Employees and How They Are Impacted Under OGE Rules

.102(h) Definition of "employee" includes special government employees (SGE)

.102(1) Definition of "SGE" incorporated from 18 U.S.C. § 202(a), i.e., on temporary duty not to exceed 130 days per year. They generally are consultants or members of an advisory committee. An SGE is an ethics term, and not a personnel term.

.202(c)(4) "Public official" under 18 U.S.C. § 801 (bribery) includes SGEs

.204(e)(2) Gifts: Example 1: For gifts based on outside relationships, SGEs may accept gifts (even from DoD contractors) so long as it is not given for work done as an SGE

.402(d)(3) 208 waivers: SGEs who are members of advisory committees may get 18

U.S.C. § 208 waivers

.603(b)(3) Negotiating for employment: Example 5, SGE used as an example of how sending a resume is not negotiating for employment (implying that SGEs are subject to 18 U.S.C. § 208 conflicts on this issue)

.604(c) Conflicts of interest: Example 4, SGE used as an example of when duties would conflict with negotiating for employment

.80l(d) Summarizes four statutes in which SGE is mentioned

.805(a) Restriction on service as an expert witness only applies to SGEs on the same particular matter in which they served as a federal official

.805(b) SGE must get agency permission to act as expert witness in a matter

15 Chapter A: Ethics Counselor Fundamentals involving agency where SGE was employed if the SGE is a presidential appointee, serves on a statutory commission, or has served more than 60 days in a given year

.807(a) SGE prohibited from receiving compensation for speaking, teaching, or writing about official duties

.807(a)(2)(i)(E)(4) Teaching, speaking, and writing do not relate to SGE official duties when the SGE comments on matters of official agency policy, agency operations, agency programs, general subject matter concerning an industry or economic sector, or matters to which to employee was assigned during the previous year (unless the employee has served more than 60 days during the previous year and 60 days during the subsequent year). In other words, the restriction on SGEs’ compensation for teaching, speaking, or writing is limited to the same particular matter in which they were involved personally and substantially. See examples 7, 8, and 9.

.808(c) SGE may engage in fund-raising in a personal capacity and may solicit a prohibited source, if the prohibited source is not directly affected by the SGE's duties

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APPENDIX A

BASIC OBLIGATIONS OF PUBLIC SERVICE UNDER

EXECUTIVE ORDER 12674

1. Public Service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.

2. Employees shall not hold financial interests that conflict with the conscientious performance of duty.

3. Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.

4. An employee shall not, except as [provided for by regulation], solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.

5. Employees shall put forth honest effort in the performance of their duties.

6. Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.

7. Employees shall not use public office for private gain.

8. Employees shall act impartially and not give preferential treatment to any private organization or individual.

9. Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.

10. Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.

11. Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

12. Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those--such as Federal, State, or local taxes--that are imposed by law.

13. Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.

14. Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or ethical standards. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.

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CHAPTER B: USE OF GOVERNMENT RESOURCES

Public service is a public trust.

5 C.F.R. § 2635.101(b)(1)

(Basic Obligation of Public Service)

Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.

5 C.F.R. 2635.101(b)(9) (Seventh Principle of Ethical Conduct)

An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.

5 C.F.R. § 2635.704(a)

(Use of Government Property)

I. INTRODUCTION.

A. The Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R.

Part 2635, acknowledge that “there may be circumstances when an employee may properly use Government property or official time for activities other than the performance of the official duties of the employee’s position.” Office of Government Ethics (OGE) Informal Advisory Letter 97x3 (Mar. 21, 1997).

B. Employees who use Government property in accordance with applicable laws and regulations do not violate ethical standards. OGE Informal Advisory Letter 95 X 13, (Dec. 1, 1995).

C. Authority to Regulate the Use of Government Property.

1. General Services Administration (GSA) and the Office of Personnel Management (OPM) are authorized to promulgate executive branch-wide regulations governing the use of Government resources.

2. Except as limited by statute or regulation, Federal agencies possess the discretion to promulgate regulations governing the use of Government resources. OGE Informal Advisory Letter 93 X 6 (Mar. 10, 1993).

D. The Office of Government Ethics (OGE) lacks the authority to promulgate any expansion or limitation of other regulations governing the use of Government property.

OGE Informal Advisory Letter 95 X 13 (Dec. 1, 1995).

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II. FISCAL FOUNDATION.

A. Appropriated funds are available only for the objects for which the appropriations were made. 31 U.S.C. § 1301(a) (the "Purpose Statute").

B. Congress cannot specify every item of expenditure in agency appropriation acts.

The "necessary expense rule" allows that appropriations made for particular objects, by implication, confer authority to incur expenses that are reasonably necessary or incident to the proper execution of those objects. See Internal Revenue Service: Use of Appropriated Funds to Pay for Eldercare Facilities and Counseling Services, 71 Comp.

Gen. 527 (1992).

1. Application of the "necessary expense rule" is a matter of agency discretion.

2. In reviewing the propriety of an expenditure, consider whether, under the circumstances, the relationship between the authorized function and the expenditure is so attenuated as to take it beyond the agency's legitimate range of discretion.

See Food and Drug Administration - - Use of Appropriations for “No Red Tape” Buttons and Mementoes, B-257488, Nov. 6, 1995.

3. Accountable officers should seek advance decisions regarding legality of payments from agency’s general counsel. Under current law, accountable officers receive no legal protection from Comptroller General decisions purporting to relieve them from liability for erroneous or improper payments. See Letter from Jack L.

Goldsmith III, Assistant Attorney General, to Mr. Arnold I. Havens, General Counsel, U.S. Department of the Treasury (Jan. 28, 2004).

4. Agencies’ general counsels may consult any appropriate persuasive source, including decisions of the Comptroller General, in preparing opinions. Id. See also DoJ Order 2110.39A, Legality of and Liability for Obligation and Payment of Government Funds by Accountable Officers, Approved by Janet Reno, Attorney General, Nov. 15, 1995.

III. DUTY TO PROTECT AND CONSERVE GOVERNMENT RESOURCES.

A. Employees have a duty to:

1. protect and conserve Government property, and

2. refrain from using or allowing its use for purposes other than those for which it is made available to the public or those authorized in accordance with law or regulation. 5 C.F.R. 2635.704 (emphasis added).

B. 5 C.F.R. § 2635.704(b)(1) defines "Government property" to include:

1. any form of real or personal property;

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2. in which the Government has an ownership, leasehold, or other property interest;

3. as well as any right or other intangible interest; and,

4. purchased with Government funds (to include services of contractor personnel).

C. Examples of Government property include, but are not limited to:

1. office supplies,

2. telephone and other telecommunications equipment,

3. printing and reproduction facilities,

4. Government mails, and

5. Government vehicles.

D. An employee may not accept for personal use any benefit to which the Government is entitled as the result of an expenditure of appropriated funds. 5 C.F.R. § 2635.204(c)(3) (and example 3 thereafter).

E. "Authorized purposes" are purposes for which Government property is made available to members of the public, or purposes authorized under law or regulation. 5 C.F.R.

§ 2635.704(b)(2).

F. The duty to protect and conserve Government property and to use it only for authorized purposes is attended by an obligation to disclose waste, fraud, abuse, and corruption to appropriate authorities. See 5 C.F.R. § 2635.101(b)(11).

IV. RESTRICTIONS ON USE OF PARTICULAR TYPES OF GOVERNMENT

RESOURCES.

A. Official Time. Employees shall use official time in an honest effort to perform official duties, unless authorized under law or regulation to use official time for other purposes.

5 C.F.R. § 2635.705(a).

B. Public Office for Private Gain. "An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations." 5 C.F.R. § 2635.702. Specific prohibitions include:

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1. Coerce or induce any person to provide any benefit to the employee or any person with whom the employee is affiliated in nongovernmental capacity. 5 C.F.R.

§ 2635.702(a).

2. Imply official endorsement of personal activities.

a. Employees shall not use or permit to be used their Government position or title or authority associated with their public office in a manner that could reasonably be construed to imply that their agency or the Government sanctions or endorses their personal activities or those of another. 5 C.F.R.

§ 2635.702(b). See also JER, para. 3-209.

b. Employees may refer to official title or position, as permitted by 5 C.F.R.

§ 2635.807(b), when teaching, speaking, or writing in a personal capacity.

For example, employee may use official title or position when one of several biographical details given to identify him or her in connection with the speech, publication, teaching, and it is given no more prominence than other significant biographical details.

3. Endorse any product, service or enterprise except as statutorily authorized, or pursuant to agency programs that recognize accomplishments or compliance with agency standards. 5 C.F.R. § 2635.702(c).

C. Nonpublic Information. Information gained through federal employment that the employee knows or should know is unavailable publicly may not be used in financial transactions, or to further private interests. 5 C.F.R. § 2635.703.

D. Subordinates.

1. "An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation." 5 C.F.R.

§ 2635.705(b).

2. Enlisted aides. See DoD Instruction 1315.09, Utilization of Enlisted Personnel on Personal Staffs of General and Flag Officers, 6 Mar 15. See also AR 614-200, Enlisted Assignments and Utilization Management, 11 Oct 11; Air Force: AFI 36- 2123, Management of Enlisted Aides, 2 Oct 08.

3. Limited use of personnel is authorized to prepare papers for presentation at non-profit professional associations and learned societies, or for professional journals.

The participation or paper must be related to the employee’s official position or is mission-related, agency must derive some benefit, and cannot interfere with official duties, JER, para. 3-300b.

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4. Examples: Subordinates may not: Be asked to draft a letter accepting an invitation to an Air Force reception; Asked to address a superior’s personal holiday cards;

Pick up/drop off dry cleaning for superior.

E. Communication Systems. Federal Government communication systems and equipment (including Government-owned telephones, facsimile machines, electronic mail, Internet systems, and commercial systems when the federal Government pays for use) shall be for official use and authorized purposes only. JER, para. 2-301.

1. "Official use" includes emergency communications; communications deemed necessary in the interest of the Government; and "morale and welfare" communications by DoD employees on extended deployments. JER, para. 2- 301a(1).

2. "Authorized purposes," as discussed in JER para. 2-301a(2), include:

a. Brief calls home while TDY to notify family of official transportation or schedule changes.

b. Personal communications from the workplace that are most reasonably made while at the workplace when the Agency Designee determines that such communications:

(1) Do not adversely affect official duty performance;

(2) Are of reasonable duration and frequency, and, whenever possible, made during personal time (such as after duty hours or lunch periods);

(3) Serve a legitimate public interest (such as keeping employees at their desks, enhancing professional skills of the employees; job searching in response to Government downsizing).

(4) Do not reflect adversely on DoD; and

(5) Do not overburden the communication system and create no significant additional cost to DoD (including long distance telephone charges).

c. Other examples include checking in with spouse or minor children, scheduling doctor and auto or home repair appointments, brief Internet searches, e-mailing directions to visiting relatives. Note: Practitioners should determine whether agency guidance exists that permits specific uses of communication resources.

See, e.g., Administrative Assistant to the Secretary of the Army memorandum, dated 20 August 2001, Subject: Personal Use of Telephones, E-mail, and the Internet, (for Principal Officials of HQDA). Air Force personnel should check Air Force Instruction Series 33 - Communication and Information, for guidance on proper use of E-mail, telephones, Internet and other

5 Chapter B: Use of Government Resources communication resources.

3. Prohibited Uses. Use of communications systems that would adversely reflect on DOD, including all Military Departments, include uses involving pornography, chain e-mail messages, unofficial advertising, soliciting, or selling via E-mail, and other uses incompatible with public service. JER, para. 2-301a(2)(d), AR 25-1, para. 4-2, AR 25-2, para. 4-5a. See also AFI 33-100, para. 3.9.1.1 through 3.9.1.14.

4. Government telephones in personal residences. Permitted when necessary for national defense purposes. 31 U.S.C. § 1348(c). DoDI 4640.07. Additionally, DoD may install telephone lines in certain volunteers’ residences. Such volunteers are those who provide medical, dental, nursing, or other health-care related services; volunteer services for museum or natural resources program; or, programs that support service members and their families. 10 U.S.C. § 1588(f).

F. Cell Phones and Other Wireless Phones

1. Special category of communications resources.

2. Service policies.

a. Army: AR 25-1, Army Knowledge Management and Information Technology, paragraph 6-4u - Portable, mobile, cellular, and wireless telephones and devices.

(1) These types of telephones will not be used in lieu of established ‘wired’ telephones.

(2) These devices are to be used for official business and authorized use only.

(3) They may be approved for handheld portable use and/or installed in Government vehicles.

(4) Authorized personal use of cell phones is subject to the same restrictions and prohibitions that apply to other communications systems. Authorized use is limited since these types of telephones cannot be used in lieu of established ‘wired’ telephones.

(5) Cellular phones may not be used while operating a vehicle, unless the vehicle is safely parked or a hands-free device is being used. See AR 190-5, paragraph 4-2(c)(3).

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b. Navy: No specific policy except that provided in the JER or by local policy.

c. Air Force: AFI 33-111, Voice Systems Management, paragraph 26 (24 March 2005). Use a regular telephone (land line) as a first priority when and where available. Use these services only when they are the most cost-effective way to provide necessary communications or mobility is required. They are to be used only for official and authorized purposes.

G. Use of E-Mail and Internet.

1. Limitations

a. Use of communications systems that could reasonably be expected to cause, directly or indirectly, congestion, delay, or disruption of services to any computing facilities or cause unwarranted or unsolicited interference with others’ use of communications. AR 25-13, Telecommunications and Unified Capabilities, para. 3-9. Air Force E-mail use is governed by AFI 33-119, Air Force Messaging, para. 3.9.1.

b. Unauthorized uses include (from AFI 33-119):

(1) Distributing copyrighted materials by electronic messaging without consent from the copyright owner;

(2) Sending or receiving electronic messages for commercial or personal financial gain;

(3) Intentionally or unlawfully misrepresenting your identity or affiliation in electronic messaging communications;

(4) Sending harassing, intimidating, abusive, or offensive material to, or about others;

(5) Causing congestion on the network by such things as the propagation of chain letters, junk E-mails, and broadcasting inappropriate messages to groups or individuals;

(6) Using government systems for political lobbying;

(7) Accessing commercial web mail accounts and instant messaging services (i.e.,Yahoo, AOL, or MSN mail accounts).

2. Official website links to private websites. See DoD Web Site Administration Policies and Procedures, dated 25 November 1998 (updated 11 January 2002), found at http://www.defenselink.mil/webmasters/

7 Chapter B: Use of Government Resources http://www.defenselink.mil/webmasters/

a. Requirements:

(1) Must include a disclaimer.

(2) Do not imply official DoD endorsement.

(3) Must include links to similar organizations if requested.

b. Services’ web policies. Individual services may be accessed from the DoD Web Policy website: http://www.defenselink.mil/webmasters/

3. Use of Government systems indicates consent to monitoring. 18 U.S.C. 2510 (The Electronic Communications Privacy Act); 50 U.S.C. 1809; 18 U.S.C. 1030 (Computer Fraud and Abuse Act)(The Hacker Statute); O’Connor v. Ortega, 480 U.S. 709 (1987) (ad hoc approach to reasonableness); AR 380-53 (Information System Security Monitoring), para. 2-1b. Monitoring guidelines are contained in AR 25-2 (Information Assurance), para. 4-5m(2); Policy on Use of Department of Defense (DoD) Information Systems Standard Consent Banner and User Agreement, DOD Chief Information Officer Memorandum, 9 May 2008.

4. May use official e-mail to notify DoD personnel of events of common interest sponsored by non-Federal entities. Email contents must be factual (who, where, when) and should not contain expressions of support of a particular non-Federal entity, which may be construed as official DOD endorsement of the NFE.

JER, para. 3-208; para. 3-209.

5. Other Guidance:

a. AFI 33-129, Web Management and Internet Use.

b. Navy guidance. See Office of the Under Secretary of the Navy, dated 5 February 1997, Subject: Guidelines for Internet Web Browsing within the Department of the Navy Headquarters Network. See also CINCLANFLT message, dated 30 August 93, Subject: Internet Policy, (discussing prohibited uses of Government information systems).

H. Business Cards.

1. DoD Policy: In-house printing of business cards using existing software and commercially purchased card stock is permitted. Contracting with Lighthouse of the Blind is also permissible if costs do not exceed those of in-house printing. See Office of the Secretary of Defense, Administration and Management, 15 July 1999, Printing of Business Cards.

8 Chapter B: Use of Government Resources http://www.defenselink.mil/webmasters/#DoD_Web_Policy

2. Services Policies.

a. Army Limitations:

(1) Cards should contain only the necessary business information.

(2) Color or customized cards must be purchased at the employee’s expense.

b. Air Force guidance on using Government computers to create business cards is found at paragraph 5.5.1.7 of the Air Force Supplement (dated 28 February 2007) to DoDI 5330.03, Defense Automated Printing Service (DAPS), 25 Jun

97. Procurement and use must be in accordance with AFI 65-601, Volume I, Budget Guidance and Procedures.

I. Holiday Cards. Are not considered official. It is improper to use Government resources to produce holiday greeting cards. See DA OGC Memo, dated December 7, 1998, Subject: Christmas Cards.

J. Use of Appropriated Funds for Postage on Congratulatory Notes. AR 25-51, para. 2-22.

a. Congratulatory notes to individuals within the technical responsibility or chain of command who have been selected for promotion or advanced schooling serve an official morale and esprit de corps function appropriated fund postage is authorized.

b. Similar notes to friends, former subordinates or colleagues, or those not within the sender’s technical responsibility or chain of command are personal in nature. Appropriated fund postage may not be used.

c. This issue is also addressed in two other publications: DoD 4525.8-M, DoD Official Mail Manual, December 2001, para. C1.4.7, and Opinion of The Judge Advocate General of the Air Force (OpJAGAF) 1995/103, "Appropriated Fund Postage," 28 Nov 95.

V. PERSONAL USE OF GOVERNMENT RESOURCES (OTHER THAN

COMMUNICATIONS SYSTEMS).

A. Section 2-301b, JER authorizes limited personal use of Government resources (equipment and property such as typewriters, calculators, and libraries), if the agency designee determines that such use meets the following criteria:

1. Does not adversely affect official duty performance;

2. Is of reasonable duration and frequency and occurs only during the employee's personal time;

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3. Serves a legitimate public purpose (such as supporting local charities or volunteer services to the community, developing professional skills, job searching in response to downsizing);

4. Does not reflect adversely on DoD; and,

5. Creates no significant additional cost to DoD.

B. Use of official time and Government equipment for Guard or Reserve duty purposes may be authorized. 5 C.F.R. § 251.202. See Comp. Gen. Letter, B-277678, January 4, 1999.

C. Remember - the use always requires supervisor approval

VI. ENFORCEMENT.

A. Military members. Penalties for violating the rules republished in, and prescribed by, the JER include the applicable criminal, civil and administrative sanctions for current DoD employees, including punishment under the UCMJ for military members. JER, para. 10-100.

1. The regulations at 5 C.F.R. 2635 in subsection 2-100 of the JER apply to enlisted members pursuant to DoD Directive 5500.07, Standards of Conduct, para. 2.2.5.

(29 Nov 07), and JER, 1-300b.

2. The prohibitions and requirements printed in bold italics in the JER are general orders and apply to all military members without further implementation. DoD Directive 5500.07, para. 2.2.6.1. (29 Nov 07).

B. Civilian employees.

1. The Merit Systems Protection Board regards misuse of Government resources as a serious charge. The Board has upheld suspensions of 30 days or more for sustained charges of misuse of Government resources. Barcia v. Department of the Army, 47 M.S.P.R. 423 (1991) (30-day suspension was reasonable for appellant’s misuse of Government computer to maintain private business records and contact computer firms by modem).

2. The agency is not required to prove intent to sustain a charge of misuse of Government property. Sternberg v. Department of Defense, Dependents Schools, 52 M.S.P.R. 547 (1992).

3. Charge of misusing Government property can be sustained…