For printing purposes, note that some of the material referenced in this "Desk Reference" points to content located in other places of the USDA/Ethics website (e.g., Appendices C, D and F). The links contained in this Desk Reference will redirect you to these documents, and - when this is the case - annotations have been made in the Desk Reference Text.
“Agency” or “component” refers to all distinct USDA sub-components and offices.
“Agency designee” means an employee who has been delegated authority to make any determination, give any approval, or take any other action required or permitted under 5 CFR Part 2635 with respect to another employee.
“Designated Agency Ethics Official (DAEO)” means the Assistant Secretary for Administration. The Alternate DAEO means the Director, Office of Ethics.
“Federal agency” means an executive agency as defined at 5 U.S.C. § 105. This would include the Department of Agriculture (also referred to as “Department” or “USDA”), but not a component thereof (e.g., Rural Development).
B. SCOPE AND APPLICABILITY
Except for the provisions of 18 U.S.C. § 201, applicable to “public officials,” the ethics laws and regulations apply strictly to Federal employees. The degree to which those provisions apply depends upon the type of employee.
Definition. The term “employee” refers to those persons possessing Federal employment status under 5 U.S.C. § 2105 which requires all of the following: (1) appointment to a position in the Federal civil service by a Federal official; (2) performance of a Federal duty; and (3) supervision by a Federal officer or employee.
Applicability. The full measure of ethics statutes and regulations apply to all Federal employees other than Special Government Employees (see 3, below). Statutes applicable to “public officials” apply to Federal employees, as well.
2. PUBLIC OFFICIALS
Definition. The phrase “public official” includes all Federal employees, as well as persons “acting for or on behalf of” any Federal agency or branch.
Applicability. For purposes of this guide, this applies only to the prohibitions in 18 U.S.C. § 201.
USDA “Public Official” examples (in addition to all USDA “employees”) may include:
|FSA county/community committee members.
FSA county office employees.
State Extension Agents.
State employees on loan to USDA.
|Personal service contractors.
“Checkoff” Fund members and employees.
Advisory committee members appointed as “Industry representatives.”
3. SPECIAL GOVERNMENT EMPLOYEES
Definition. A “Special Government Employee (SGE),” as defined under 18 U.S.C. § 202(a), is a Federal employee within the Executive branch retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days.
Applicability. SGEs are subject to the same ethical restrictions imposed upon other Federal employees with the following exceptions:
18 U.S.C. §§ 203 and 205. The prohibitions on “representing” apply solely as to:
A “particular matter involving a specific party” in which: (1) the SGE “participated personally and substantially”; or (2) Any “particular matter” pending before the SGE’s agency if the SGE has served 60 or more days during the preceding 365-day period.
18 U.S.C. § 207(c). The 1-year “cooling off’ bar on post-employment representation does not apply to SGEs who serve less than 60 days in the preceding 365-day period.
18 U.S.C. § 208(a). SGEs serving on advisory boards may seek a specific waiver, under 18 U.S.C. § 208(b)(3), to participate in a matter where the need for their services outweighs any conflict of interest.
18 U.S.C. § 209. This statute does not apply to those SGEs who are not compensated for their services.
5 CFR § 2635.805. Restrictions on serving as an expert witness apply only if:
The SGE participated in the proceeding or matter as an employee; or
The SGE is appointed by the President, serves on statutory commissions, or expects to serve more than 60 days AND the employing agency is a party or has a direct and substantial interest in the matter.
5 CFR § 2635.807(a)(2)(1)(E)(4). SGEs may receive compensation for teaching, speaking, and writing about agency policies, programs, and operations, so long as they were not assigned to those matters during the previous year.
USDA SGE Examples. Members of the following Boards of Directors are SGEs:
Alternative Agricultural Research and Commercialization Corporation.
Federal Crop Insurance Corporation.
Rural Telephone Bank.
Advisory committee members that are not appointed as “industry representatives.”
Conflict of Interest Statutes (18 U.S.C. §§ 203-209). Penalties cited in 18 U.S.C. § 216.
Standards/Anti-nepotism Statute/Gambling Restrictions.
Political Activity (5 U.S.C. §§ 7324-7327).
Foreign Gifts Act (5 U.S.C. § 7342).
Anti-lobbying Statute (18 U.S.C. § 1913).
Procurement Integrity Act (41 U.S.C. § 423).
A. BRIBERY AND CRIMINAL CONFLICT OF INTEREST STATUTES
The statutory prohibitions are found at 18 U.S.C. §§ 201-209. They serve as the basis for most standards of conduct prohibitions.
18 U.S.C. § 201 — BRIBERY AND ILLEGAL GRATUITIES
RULE: You may not accept a bribe or offer a bribe to a “public official;” accept an illegal gratuity (“gift”), offer an illegal gift to a “public official,” or promise a “public official” that you will give a gift to another, where the gift is offered or received in return for carrying out a specific official duty by that official.
|This statute applies to gifts:||
A bribe is distinguished from an illegal gratuity in that it is offered or received with an element of corruption.
Giving includes offering and promising.
“Public official” includes a person selected to become a public official. With regard to gifts received for acts performed, it includes a former public official, as well.
Receiving includes demanding, seeking, accepting, or agreeing to receive.
Example: Bill recently was nominated to serve as FSIS Agency Administrator. During Senate consideration, he received a call from Sam, President of Cluckers Poultry. Sam offers Bill a free trip for his wife, a Thai national, to Thailand if Bill will loosen certain poultry inspection requirements. Sam has violated the statute and, if Bill accepts the offer, he will also. Note: If the trip is not clearly offered in return for the sought official action, this statute might not apply. However, Bill still must be concerned with the following prohibitions: 18 U.S.C. § 205 (if he presses Sam’s position before his agency); 18 U.S.C. § 203 (if he works behind the scenes in support of someone else who is representing Sam's position); 18 U.S.C. § 209 (if this trip is in payment for an official act); and the regulatory restrictions on gifts, losing impartiality, and using his official position for Sam’s benefit.
18 U.S.C. § 203 — COMPENSATED REPRESENTATIONAL ACTIVITIES
RULE: You may not accept or solicit compensation for “representational activities” if in relation to a “particular matter” in which the government is involved or has an interest.
|This statute applies:||
“Representing” includes not only acting as another person's attorney or agent, but also includes knowingly making, with the intent to influence, any communication (oral or written) to or appearance before any officer or employee of a Federal agency.
"Particular matter" includes any matter that involves deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. It includes not only particular matters that involve the legal rights of specific parties (e.g., judicial proceediings, applications, requests for rulings and determinations, claims, contracts, grants, controversies, charges and accusations, investigations, etc.), but also matters such as legislation or policy-making where narrowly focused on the interests of such a discrete and identifiable class of persons).
See “Special Government Employee” rules.
Example 1: Compensation for your representational efforts.
|This statute does NOT apply:|
Example 2: Compensation for representations made by others through partnership shares.
Don, who also works at FNS, is a Data Senior Vice President. His duties with Data have nothing to do with Data’s bid to FDA. However, his compensation from Data is partially derived from shares tied to company profits. He would not violate this statute by accepting that portion of his salary or benefits directly attributable to company profits based upon representations by Data to FDA, because his receipt of compensation was not related to services that he provided in support of representation.
18 U.S.C. § 205 — REPRESENTATION
|This statute applies:||
See “Special Government Employee” rules.
Example 1: Outside Business Interest.
Example 2: Outside Volunteer Activity.
|This statute does NOT apply:|
18 U.S.C. § 208 — CONFLICTING FINANCIAL INTERESTS
RULE: You may not “participate personally and substantially” in your official capacity in any “particular matter” in which you have a direct or “imputed financial interest.”
|This statute applies:||
You “participate personally and substantially” if your involvement is direct and significant. It includes involvement by decision, approval, disapproval, recommendation, rendering of advice, and investigation.
“Imputed financial interest” includes those of: your spouse or minor child(ren); general partners; an organization in which you serve as an officer, trustee, general partner, or employee; and any person or organization with whom you are negotiating or arranging for employment.
See “Special Government employee” waiver.
|This statute does NOT apply if:|
WAIVERS: If you have a conflict of interest, above, you still may be allowed to participate in otherwise prohibited official matters where the conflict of interest is waived under 18 U.S.C. § 208(b). The following bases for waiver exist under this statute:
Example 1: Outside Business Interests.
On her own time, Ann is an officer in a professional organization which submitted a financial report to her agency. Ann's supervisor has asked her to review the report and make recommendations. She should advise her supervisor that she may not do so under the conflict of interest prohibitions which prohibit her from making decisions, recommendations, or taking an official action that can affect the financial interests of an organization in which she serves as an officer.
Example 2: Negotiating for Non-Federal Employment.
Ned, a contract administrator with RHS , wishes to negotiate for non-Federal employment with Textel, an onsite contractor. In the course of his duties, he may not participate in decisions or recommendations pertaining to Textel while he is negotiating. He must recuse (disqualify) himself from participation in official matters involving Textel while he is negotiating with that company. He must inform his supervisor and should also advise coworkers involved with him on Textel contracts of his disqualification. See also Seeking Non-Federal Employment.
Example 3: Scientific Peer Review.
Sarah, an ARS scientist, currently serves as a paid, part-time professor at State University. She has collaborated with scientists at the university in preparing a research grant application for submission to ARS. As the financial interests of the university are imputed to her, she may not participate in peer review of any applications submitted as part of the competitive process, serve on any recommendation or selection panels for awarding funds as part of that process, or serve as a formally-designated university investigator on the grant application.
Example 4: Service on Outside Boards in Official Capacity.
Toni, as Deputy Administrator for Food Programs at FNS , has been invited by Mothers & Babies, Inc. , a non-profit organization concerned with child nutrition, to serve on its board of directors in order that she may provide FNS perspectives and input. Absent statutory authority requiring such service, or a waiver, she may not do so. She possesses the financial interests of the organization at the same time that she is representing the interests of FNS . However, she may attend organizational meetings as an agency representative, or liaison. See Service in Outside Organizations.
Example 5: Indirect and Speculative Interests.
Bill, an employee of the National Agricultural Library, has been asked to serve on the technical evaluation panel to review proposals for a new computer system. His wife is president of DEF Corporation which often bids on agency computer projects. DEF does not bid on the contract, but EFG Corp., DEF’s main competitor in the area, is one of six bidders. Technically, Bill may still serve on the panel as any impact of such service on his financial interests is speculative and indirect. However, Bill still may well be advised to forego service on the panel due to the close competitive relationship between DEF and EFG in that area. It is quite possible that his actions or inactions on matters involving EFG may be seen as using his official position to benefit DEF by affecting EFG, negatively.
18 U.S.C. § 209 — DUAL COMPENSATION
RULE: You may not accept compensation or anything of value from an outside source for doing or not doing your government job.
|This statute does NOT apply:|
Example 1: Gift
As part of her duties for RHS, Fran handled a problem with a lease application. In gratitude, the applicant sent her a $100 gift certificate. She may not accept this gift because it would be considered dual compensation. (It also could violate 18 U.S.C. § 201, or be an impermissible gift from a prohibited source).
Example 2: Honorarium for Speaking
Harold, an ARS botanist, is invited to speak at the Annual Conference of the National Plant and Vegetable Association. He will discuss ARS efforts in creating disease-free soybeans. He is being sent to the conference by ARS on official travel. Since he presents his speech as part of his official duties, he may not accept the Association’s offer to pay him $500 for speaking. This honorarium would constitute dual compensation since he is drawing Federal pay for making the speech.
Example 3: “Golden Parachute.”
Doug has just accepted a post as Associate General Counsel. His duties will encompass issues directly affecting his former employer, Contiguous Land Co. Contiguous wants to offer Doug a special "golden parachute" compensation package for going to work for the government. If Doug accepts this package after being appointed, he will violate 18 U.S.C. § 209. If he accepts the package before appointment, he would not violate this statute, but must be careful not to give the appearance of losing impartiality in dealings with Contiguous. See Conflicting Financial and Personal Interests, (Example 4).
B. GOVERNMENT-WIDE GUIDANCE
EXECUTIVE ORDER NO. 12674 PRINCIPLES.
This sets forth the 14 fundamental principles of ethical service. It is the foundation for the following ethics regulations. See: Rules of the Road.
5 CFR PART 2634 — FINANCIAL DISCLOSURE.
Procedures for filing public and confidential financial disclosure reports, creating qualified trusts, trust certificates, trustee approvals, ethics agreements, and certificates of divestiture.
5 CFR PART 2635 — STANDARDS OF ETHICAL CONDUCT.
Government-wide ethics guidance covering gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of official position, and outside activities.
5 CFR PART 2636, — SUBPART C EARNED INCOME LIMITATION.
Rules governing receipt of outside income by non-career employees (“15 percent” limitation), compensation and use of name relating to professions involving fiduciary relationships, compensation for service as officer or board member of an outside organization, and compensation for teaching without prior authorization.
5 CFR PART 2637 — POST-EMPLOYMENT PROHIBITIONS (I).
Guidance concerning post-employment restrictions under 18 U.S.C. § 207. Applicable to all employees, except for Senior Employees who terminated Federal service on or after January 1, 1991.
5 CFR PART 2638 — ETHICS PROGRAM DUTIES.
Procedures concerning Office of Government Ethics (OGE) direction and leadership of the government-wide ethics program, as well as the duties of and responsibilities of the DAEO for departmental ethics programs.
5 CFR PART 2640 — WAIVERS UNDER 18 U.S.C. § 208(b).
Standards for granting administrative and individual waivers for conflicting financial interests.
5 CFR PART 2641 — POST-EMPLOYMENT RESTRICTIONS (II).
Amendments to 5 CFR Part 2637 as a result of the Ethics Reform Act amendments to 18 U.S.C. § 207(c). Applicable to Senior Employees terminating Federal service subsequent to January 1, 1991.
PART III. — GIFTS
A. GIFTS FROM OUTSIDE SOURCES — 5 CFR PART 2635, SUBPART B
RULE: Generally, you may not solicit or accept gifts: (1) from prohibited sources; or (2) based upon your official position. This rule applies: (1) whether ON or OFF duty; (2) to direct & indirect acceptance.
1. GENERAL DEFINITIONS. 5 CFR §§ 2635.201-.203.
"Prohibited source" includes any person, company, or organization that:
The term "prohibited source" also may include an outside organization which seeks to influence USDA or a newspaper/media reporter.
2. GIFT EXCLUSIONS AND EXCEPTIONS. 5 CFR §§ 2635.203(b),.204.
EXCLUSIONS: Under 5 CFR § 2635.203(b), the following are NOT "gifts":
EXCEPTIONS: Under 5 CFR § 2635.204, the following are “gifts” that may be accepted:
3. OUTSIDE EVENTS 5 CFR § 2635.204(g).
a. ACTIVE OFFICIAL PARTICIPATION. 5 CFR § 2635.204(g)(1).
YOU MAY accept free attendance at an event on the day of the presentation IF:
YOU MAY accept an unsolicited gift of free attendance at all or appropriate parts of a widely-attended gathering where the agency has determined that attendance is in the interest of the agency (attendance will further agency programs and operations) and either of the following conditions are met:
DETERMINATION OF AGENCY INTEREST. 5 CFR § 2635.204(g)(2).
The determination shall be made by the agency designee. It may be made orally or in writing.
May not include travel expenses, lodgings, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees.
4. AWARDS AND HONORARY DEGREES. 5 CFR § 2635.204(d).
Without Prior Approval.
YOU MAY accept an award if:
Prior Written Approval required.
YOU MAY accept awards in excess of $200, of cash, or of investment interests, for meritorious public service ONLY when subsequent to:
YOU MAY accept when:
Example 1: Gift From a Prohibited Source.
The onsite contractor wants to give an outboard motor to the agency contract manager who is retiring. The going away party is to be held after the employee leaves government service. Once the employee leaves government service the gift rules no longer apply, so as long as this is not a gift given because of a specific official act that was taken prior to leaving, the gift is acceptable.
Example 2: Awards.
Bryce, an FS Law Enforcement Officer, has been notified that he is to receive an award from the National Forest Federation. The Federation is neither affected substantially by Bryce’s performance of his official duties, nor a member of an association that is so affected. The award in question is a statuette of a Giant Sequoia Tree valued at $300. It is being presented to him for his contributions in the field of law enforcement. Because the gift is valued at more than $200, his ethics counselor must confirm that the National Forest Federation program has given awards on a regular basis in the past and that selection of award recipients was made pursuant to written standards. If so, it is permissible for him to accept. However, were the award an ad hoc award given for his handling of a recent timber theft case, acceptance may violate 18 U.S.C. § 209.
Example 3: Gift Based Upon Official Position.
Alison , a new ARS Associate Administrator, has been offered free tickets to attend a banquet sponsored by the National Cotton Association. She is not a member of the Association and was not involved with the Association prior to her appointment. She clearly is being invited because of her official position. She may pay for her own ticket or, if the event meets the criteria for a “widely attended event” under the gift rules, she may accept free attendance. Otherwise, she may not accept the invitation.
Example 4: Items Available to the Public.
Bob, a botanist with the National Arboretum, attended a luncheon sponsored by a civic group. He paid for the luncheon out of his personal funds and attended on his own time. There was a door prize/drawing and his name was selected. The prize was for $1,500 worth of advertising in a local publication. He wants to donate the prize to the Friends of the Bonsai. This is acceptable because a gift received in a contest that is open to the general public is not covered under the gift acceptance prohibitions. Since he attended as a private citizen, the prize is his to do with as he pleases. He could not accept, however, if he attended in his official capacity.
Example 5: Perishable Goods.
An Indian Tribal Council sent a dozen lovely yellow roses to Cheryl, Director of Native American Programs, for her birthday. She wanted to take them home since they are perishable and not really returnable. Because the tribe is a prohibited source, and the roses were valued at more than $20, the gift rules apply. Since the roses are perishable, she could leave them at the office in a common area for all to enjoy, donate them to a charitable organization or dispose of them.
B. GIFTS BETWEEN EMPLOYEES. 5 CFR PART 2635, SUBPART C
RULE: You may not give, or donate to, gifts to official superiors; solicit employee donations for a gift to a superior (yours or the solicited employee’s); or accept gifts from employees paid less than you.
|This rule applies to:||
GENERAL EXCEPTIONS: On an occasional basis, including on occasions on which gifts are traditionally given or exchanged, an official superior may be given and may accept:
SPECIAL EXCEPTIONS: Suitable gifts may be given/exchanged in relation to:
|This rule does not apply to acceptance of gifts from lesser paid employees where there:|
“Official superiors” include officials above you in the chain of command and/or who can affect your performance appraisal, awards, or job assignments.
Example 1: Infrequent Event.
Helen gave her boss a $7 mug for Boss’ Day. The boss may accept the mug because it is worth less than $10.
Example 2: Termination of Subordinate-Official Superior Relationship.
Bill is moving to a new division. Teri, his subordinate, wants to give him a crystal beer stein worth $100. Since the subordinate-official superior relationship is ending, the gift is proper. Teri also may ask other coworkers to donate to the gift. However, she may not recommend a level of donation, nor should she pressure coworkers to give anything.
C. GIFTS FROM FOREIGN SOURCES. 5 U.S.C. § 7342 (Foreign Gifts and Decorations Act)
RULE: You may not accept or encourage the tender of a gift from a foreign government.
|This rule applies:||
Regulations: 41 CFR Part 101-49 (Disposition of Gifts)
Example 1: Gift.
While in Australia attending an international conference on agricultural marketing, Sally, an attorney with OGC, was given a handcrafted boomerang valued at $200 by a representative of the Australian government. She may accept because the gift is valued at less than $285.
Example 2: Foreign Travel
Wanda, an FAS official, is invited to travel from Jakarta to several locations in Indonesia. She may accept the transportation taking place entirely outside the United States under the Foreign Gifts and Decoration Act. But if the Indonesian government offers to pay her way from the U.S. to Jakarta, she must request approval under 31 U.S.C. § 1353. (See Travel Gifts From Non-Federal Sources, Example 2).
D. AGENCY-SPECIFIC GIFT PROHIBITIONS
7 U.S.C. § 87(c)
No person licensed or authorized by the Secretary of Agriculture to perform any funtion under the U.S. Grain Standards Act, or employed by the Secretary in carrying out the provisions of that Act shall, during that license, authorization, or employment, accept gratuitites from any business entity owning or operating any grain elevator or warehouse.
7 U.S.C. § 1986
You may not, directly or indirectly receive a fee, commission, gift, etc. beyond your Federal salary for any transaction/business under the Consolidated Farm and Rural Development Act (Act).
Employees within the Office of the Secretary, Rural Development (RD), and the Farm Service Agency (FSA), who perform official duties involving RD and FSA loan programs are covered by this Act.
Criminal Penalties: Up to $2000 fine; imprisonment of not more than 2 years, or both.
7 U.S.C. § 1615(h)(2)
Anyone who serves as a certifying agent under provisions of the Organic Foods Production Act of 1990 is prohibited from accepting payments, gifts, or favors of any kind from the business inspected other than prescribed fees.
EXCEPTIONS: None provided for.
21 U.S.C. § 622. FEDERAL MEAT INSPECTION ACT
Anyone engaged in commerce is prohibited from offering a Federal Meat Inspector, and a Federal Meat Inspector is prohibited from receiving, anything of value given with intent to influence his or her performance of official duties.
Criminal Penalties: Removal; fine of $1000-$10,000; imprisonment of 1-3 years.
Meat inspection officials covered by this Act are inspectors, deputy inspectors, chief inspector, or any other officer or employee authorized to perform duties under the Act.
E. GIFTS TO USDA AND ITS AGENCIES
Gifts made to USDA and its agencies, or received by Federal employees on behalf of USDA and its agencies are augmentations of appropriated funds and, as a result:
They are subject to principles of appropriations law; not to 5 CFR Part 2635;
They may be accepted only under specific statutory authority, and in accordance with the provisions of DR 5200-3.
USDA AGENCY GIFT ACCEPTANCE STATUTES:
|Secretary of Agriculture||7 U.S.C. § 2269|
|Rural Telephone Bank||7 U.S.C. § 942|
|National Agricultural Library||7 U.S.C. § 2264|
|U.S. Forest Service|
|Cradle of Forestry||16 U.S.C. § 471h|
|Cascade Head Scenic Research Area||16 U.S.C. § 541d|
|Mono Basin Scenic Area||16 U.S.C. § 543b|
|Timber Lands||16 U.S.C. § 541d|
|State/Private Working Lands||16 U.S.C. § 572|
|National Forest Foundation||16 U.S.C. § 583j|
|Forest & Rangeland Research||16 U.S.C. § 1643|
|U.S. National Arboretum||20 U.S.C. § 195**|
|Animal and Plant Health Inspection|
|Service (Animal Quarantine)||21 U.S.C. § 135|
|Food and Nutrition Service|
|(Breast feeding Promotion)||42 U.S.C. § 1790**|
F. TRAVEL COSTS PAID BY “NON-FEDERAL SOURCES” (See Appendix C)
RULE: Whether a “non-Federal source” may pay for an employee’s travel costs depends upon whether the travel is official or personal. A “Non-Federal source” may include individual, private or commercial entities, nonprofit organizations, as well as state, local, or foreign governments.
1. OFFICIAL OR PERSONAL TRAVEL
Factors that indicate official travel are where the travel:
is assigned by an official superior;
occurs during normal working hours while the employee is not on approved leave;
costs normally would be borne by the agency;
is accomplished in uniform; or
otherwise relates to the employee’s official duties or the agency mission.
2. OFFICIAL TRAVEL – AGENCY ACCEPTANCE
SECRETARY’S GIFT AUTHORITY. 7 U.S.C. § 2269
The Secretary MAY accept gifts and bequests on behalf of USDA in furtherance of USDA functions. However, this broad acceptance authority may be subject to limitations found in DR 5200-3, depending upon the recipient agency, value, and state of dealings between USDA and the donor. NOTE: This authority may not be applied to meetings and similar off-site events such as those permissible under 31 U.S.C. § 1353 (see below).
TRAVEL TO CONFERENCES, MEETINGS, SEMINARS. 31 U.S.C. § 1353
RULE: Agencies may accept reimbursement from a non-Federal source (source) for travel subsistence and related expenses for an employee to attend conferences, meetings, seminars, training courses, speaking engagements, or similar events sponsored by outside sources.
The event relates to the employee’s official duties, but is NOT for: (1) performing statutory/regulatory functions (e.g., audits, inspections, or site visits); or (2) vendor promotional training (see definition in "Gifts from Outside Sources");
The employee does not solicit the payment;
The event takes place away from the employee’s duty station; AND
The authorized agency official finds that acceptance meets the “conflict analysis,” below.
Conflict Analysis 41 CFR § 304-1.5(a)
Standard: Would a reasonable person with knowledge of all relevent facts question the integrity of the agency programs or operations.
Relevant factors include:
Generally, EMPLOYEES MAY NOT accept payments unless authorized in advance by the agency.
EMPLOYEES MAY accept additional travel assistance while in travel status when it is offered from the same source if:
EMPLOYEES MAY accept "payments-in-kind," (e.g., airline tickets, banquet meals, hotel accommodations, etc.). There is no dollar limit to the payment-in-kind that can be accepted.
3. OFFICIAL TRAVEL -- PERSONAL ACCEPTANCE
FOREIGN GIFTS AND DECORATIONS ACT. 5 U.S.C. § 7342
An employee MAY personally accept travel costs from a non-Federal source, in this case, a foreign government, if travel begins and ends entirely outside of the United States. Generally, there is a $285 threshold set for employee acceptance, and gifts exceeding this threshold are the property of the Government. However, an exception to this limit exists for travel, meals, lodging, educational scholarships, and medical treatments.
TRAINING AT A NON-GOVERNMENT FACILITY. 5 U.S.C. § 4111
This authority allows Federal employees to accept reimbursement from non-profit, tax exempt organizations, for transportation expenses to certain training functions related to the employee's official duties. To accept reimbursement, the following conditions must be met:
The employee must receive prior approval from the employee’s training officer;
Travel payments must be connected with attendance at a training seminar or conference at a non-government facility; and
The source of the payment must be a non-profit, tax exempt 501(c)(3) organization, a state or local government, or the District of Columbia.
NOTE: Generally, these organizations have restricted lobbying activities so they may not take actions to substantially influence legislation.
To find out whether a particular non-profit organization is covered, call: IRS Cincinnati Service Center (877-829-5500).
Once your travel is approved, you must keep records in the office file that the travel payment was accepted under the authority of 5 U.S.C. § 4111.
4. ACCEPTANCE OF GIFTS OF PERSONAL TRAVEL. 5 CFR Part 2635, Subpart B
RULE: Generally, as a private individual, you are free to accept travel payments by non-Federal sources for private travel subject to the following restrictions:
TRAVEL GIFTS FROM OUTSIDE SOURCES. 5 CFR PART 2635, SUBPART B
Unless a gift of travel costs is excepted under 5 CFR § 2635.204, you may not accept a gift of travel costs that either is offered based upon your official position, or is offered by one who is a “prohibited source.”
NOTE: Appropriated funds, including funds received by agencies under the aforementioned gift acceptance statutes, may not be used to pay for personal travel for Federal employees.
Example 1: Performance of statutory duties.
A national supermarket chain wants to fly two USDA employees - one from FNS; the other from ARS - to view the "Supermarket of the Future.” Since the supermarket chain accepts food stamps, and thus is an FNS program participant, under DR 5200-3, FNS could not accept the gift; however, ARS could. Were the supermarket chain in litigation with USDA (e.g., for mishandling food stamps, ARS would not be able to accept the gift.
Example 2: Foreign Travel.
Jerry, an FAS official stationed in the Philippines, receives an invitation from the Australian Ministry of Agriculture to attend and participate in a conference on beef exports to the United States to be held in Melbourne. The invitation includes an offer of free travel paid for by the Australian Ministry. Australia, in this context, is a prohibited source. However, Jerry personally may accept the offer. Since the travel occurs wholly outside of the continental U.S., Jerry may accept the offer under the terms of the Foreign Gifts & Decorations Act, despite the fact that the offer is extended by a prohibited source (see Gifts from Foreign Sources, Example 2). NOTE: If the offer was for Jerry to fly from Hawaii to Melbourne, the offer would have to be viewed under 31 U.S.C. § 1353 and, its implementing regulations (41 CFR Part 304). The gift could not be accepted under 7 U.S.C. § 2269 and DR 5200-3, since the travel relates to a conference, a matter that must be addressed under 31 U.S.C. § 1353. If the travel involved a site visit or involved participation in negotiations, the reverse would be true.
5. FREQUENT FLYER (FF ) PROGRAMS
RULES: With the President’s signing of S. 1438, The National Defense Act on December 28, 2001, flight mileage paid for by the government is determined to be the personal property of the Federal traveler. Section 1116 of the Act contains the pertient provision for this determination.
View GSA's Travel Guidance for additional information.
For further information on the use of official frequent flyer miles, contact your agency Financial Officer.
PART IV. ETHICS AT THE OFFICE
A. CONFLICTING FINANCIAL AND PERSONAL INTERESTS
As a Federal employee, you are to place loyalty to the United States Constitution, Federal laws, and ethical principles above private gain, yours or anyone else’s. An official action that is not a criminal conflict of interest, still may constitute a loss of impartiality or misuse of position.
1. CONFLICTING FINANCIAL INTERESTS. 18 U.S.C. § 208 (5 CFR Part 2635, Subpart D)
2. LOSS OF IMPARTIALITY. 5 CFR PART 2635, SUBPART E
RULE: You may not give preferential treatment to anyone.
|Specifically, you may not:||
“Particular matter involving a specific party” is a subset of "particular matter" limited to judicial or other proceedings, applications, requests for a ruling or other determination, contracts, claims, controversies, investigations, charges, accusations, arrests. It normally, however, does not include policymaking.
“Covered relationship” include business and financial relationships; household members; close relatives; organizations in which a spouse, parent, or dependent child serves as a fiduciary; your non-Federal employers in the last year; and organizations (not political parties) in which you are an active participant.
“Extraordinary payment” include items, cash, investments that a former employer offers after learning of your considering or accepting a Federal position; and which probably wouldn’t be offered otherwise.
3. MISUSE OF POSITION. 5 CFR PART 2635, SUBPART G
RULE: You may not use your official position, title, or authority to benefit yourself or anyone else.
Specifically, YOU MAY NOT:
Example 1: Financial Interests of Close Relatives.
Tom is the Contracting Officer on an agency procurement. One bidder, L-Com, employs his 28-year old son, Jim. Tom’s 16-year old son, Andy, owns stock in L-Com. Jim lives on his own; Andy temporarily resides with Jim. Neither is a member of Tom’s household. However, Andy is a minor child and his stock interest is imputed to Tom under 18 U.S.C. § 208. Tom has a conflicting financial interest and should recuse himself from the procurement. NOTE: Even if Andy sells his stock, there remains an impartiality issue given the closeness of the relationship between Tom and his sons.
Example 2: Misuse of Official Position to Benefit a Friend.
Wanda, an Assistant General Counsel, heads the OGC division handling the government claim against Wanatek Inc. Art, who worked closely with Wanda in state politics, is the new president of Wanatek, Inc. He calls Wanda to see if she won’t drop or compromise the claim. There is no conflicting financial interest, or “covered relationship,” but if Wanda compromises the claim, she could be viewed as using her official position to benefit Art. She may violate 18 U.S.C. § 205 if she contacts other officials to present Art's position.
Example 3: Official Title in a Letter of Recommendation
Toni, a Regional Inspector General, is asked by a close friend to send a letter of recommendation to a prospective Federal employer. Toni wants to use official letterhead and her official title in the letter. Since the recommendation is for Federal employment, she may do so.
Example 4: “Golden Parachute.”
Doug accepts a post as Deputy Administrator for RUS . Upon learning of his appointment, North Power, Inc. , Doug’s employer, offers him a real estate package worth $25,000. No one else in North has ever received an offer like this. Doug may accept this, but may not participate in any matters involving North for 2 years from receipt of the package. (Compare with 18 U.S.C. § 209, Example 3).
Example 5: Using Official Position
Sandy, Deputy Administrator at FNS , previously served as Executive Director for Food Fund, a non-profit anti-hunger organization. She receives a call from Jo, the current Executive Director and a long-time friend. Jo tells her how a grant application the organization has pending with FNS seems to be languishing in Jim’s division of FNS . Jo asks Sandy to call Jim to emphasize how important the grant proposal is. The matter is not under Sandy’s authority and Sandy should not make the call to Jim. Not only would she be using her official position for the personal benefit of Food Fund and Jo, she may also be in violation of 18 U.S.C. § 205.
Example 6: Endorsement of an Outside Product.
John, a former RHS Administrator, now works for a lobbying firm representing an association of rural housing developers. The firm wants to produce a reference guide on rural housing development loans for its client. John calls Anne, his former deputy at RHS , who now is the Acting Administrator. John tells her of the project. Anne agrees with John’s assessment that it looks like a “win:win” for RHS and for loan applicants. John asks whether Anne would consent to providing a cover page, signed by her, discussing the importance of the book to rural developers. He also asks whether two specific RHS employees whom he considered experts, could write a couple of chapters for the book. Anne should not consent to issuing the cover page, or to make the employees available to write the chapters. Unless RHS has authority to endorse this enterprise, this endorsement would be impermissible. Further, if John calls within his first year after leaving his Federal post, he may be in violation of 18 U.S.C. § 207(c).
Example 7: Use of Official Title
Off duty, Florence, an employee with the AMS, teaches an introductory public administration class at the local community college. The University is putting out their catalogue and wants to use her government title. They may only do so if it is put in a biographical context, not if they are listing her only by name, title, and government affiliation.
Example 8: Impartiality and Former Employer
Bill, an investigator with OIG , has been assigned to investigate a potential criminal violation of 18 U.S.C. § 201 involving a gratuity provided to a senior USDA official by ABC Corp. Bill previously worked for ABC Corp. in his spare time during the past year. There is no continuing financial tie between Bill and ABC , but a “covered relationship” exists regarding a “particular matter involving specific parties.” However, based on Bill’s expert knowledge of ethics statutes and certain program-related issues involved, the agency designee might determine that the interests of USDA in having Bill apply his expertise on this investigation outweighs the concern that a reasonable person may question the integrity of the investigation. The decision to assign Bill, notwithstanding his “covered relationship,” should be documented in accordance with 5 CFR § 2635.502(d)(6).
B. MISUSE OF GOVERNMENT TIME, EQUIPMENT, AND INFORMATION. 5 CFR PART 2635, SUBPART G
RULE: It is each employee's responsibility to protect and conserve government time, property, and information, and to use them economically and for official purposes only.
GOVERNMENT TIME. YOU MAY NOT:
NONPUBLIC INFORMATION. YOU MAY NOT:
PENALTY/FRANKED MAIL & OFFICIAL STATIONARY. YOU MAY NOT:
THEFT AND EMBEZZLEMENT. YOU MAY NOT:
GOVERNMENT EQUIPMENT AND PROPERTY. YOU MAY NOT:
GOVERNMENT MOTOR VEHICLES OR AIRCRAFT. YOU MAY NOT:
Example 1: Franked Envelopes.
The local congregation is building a new wing on the church and is trying to raise money. The fundraising chairman sent out a solicitation for donations in official government franked envelopes that he took from the office. He has violated the franking prohibition.
Example 2: Personal Use of Government Credit Card.
Harvey is on travel when he realizes that it's his wedding anniversary. His personal credit cards are already “maxed” so he uses his official government credit card to order flowers. He thinks that because he will pay the bill immediately upon his return home that there will be no problem. Harvey is incorrect. The official government credit card is only for official travel and related expenses. He may not use the card for any personal purchases, even though he is on travel at the time he makes the purchase.
Example 3: Personal Use of Office Equipment.
Ozzie is having trouble figuring out his personal income taxes. He loads a tax software package on his PC at work and does his taxes on his lunch hour and after work. Ozzie’s use would not be in violation of the prohibition against using government property for personal use. However, he would be in violation, should he use his office computer to do the taxes for his outside business.
C. NEPOTISM. 5 U.S.C. § 3110
RULE: You may not show favoritism on the basis of family relationship.
|You may not:||
An employee may supervise a relative when management:
|This statute applies:|
“Relative” means an individual who is related to an employee as a father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.
Example 1: Advocating Employment.
Bertha, a senior official with the Office of the Secretary, has a new son-in-law who has just graduated from the state university with a degree in literature and is looking for a job. Bertha calls a friend in one of the agencies and asks him to find a job as a writer/editor for the young man. The friend should advise Bertha that she is prohibited from recommending the appointment of her son-in-law.
Example 2: Dropping off an Application.
Dawn, a college sophomore, wants a summer job with ERS where her mom works. Mom offers to drop Dawn's SF -171 off in the personnel office on her way to work. Because Dawn's mother is not advocating that she be hired, it is permissible for her drop off the job application. It would also be permissible for her to pick up blank application forms and other hiring literature for Dawn.
Example 3: Emergencies.
Forest fires, raging out of control in Big Trees National Forest, are threatening a nearby town. Additional fire fighters are needed immediately. Larry, Darrell, and Darrell, sons of a Forest employee, are given an emergency appointment and hired on the spot to help fight the fire. However, as soon as reinforcements are available or the emergency passes, the appointment is terminated.
D. GAMBLING ON GOVERNMENT PREMISES. 5 CFR § 735.201
RULE: You may not gamble (e.g., raffles, lotteries, sports pools) on Federal premises.
Tom, Dick, and Harry, Office of Ethics employees, are running a “March Madness” NCAA college basketball pool out of their office. It is not a very big pool, but they are trying to drum up more interest, so they approach their supervisor to see if he would like to get into it. No, he does not. Not only does his alma mater NEVER get an invitation to the tournament, but, drolly, he also advises the trio to cease this activity on government premises.
Bill, Director of the National Arboretum, is approached by Friends of Bushes (NOTE: not to be confused with the fundraising arm of any G.O.P. presidential candidate, past or present, the wife of any such candidate, or with any commercial distributor of baked beans) to permit that organization to have its annual fundraiser on Arboretum grounds. As part of the event, Friends wants to hold a raffle with the winners to receive rare, miniature Bonsai trees. Even if Arboretum employees do not participate in the raffle, Friends may not hold the raffle on Arboretum grounds. Additionally, if Friends holds the fundraiser off of government property, Federal employees attending in their official capacities still would not be able to participate. The raffle clearly would not be open to the public.
E. TESTIFYING ON OFFICIAL MATTERS
1. ADMINISTRATIVE PROCEDURES. 7 CFR PART 1, SUBPART K
RULE: YOU MAY NOT:
Testify/appear in judicial or administrative proceedings without first notifying your supervisor and receiving appropriate authorization.
FEES: You may accept travel costs up to the level set forth in Agriculture Travel Regulation. Witness fees are collected and remitted to the agency.
For further advice on these requirements, contact the General Law Division, Office of the General Counsel (OGC).
2. EMPLOYEES PROVIDING TESTIMONY. 18 U.S.C. § 205
See above for discussion of this statute.
3. EMPLOYEES PROVIDING EXPERT TESTIMONY. 5 CFR § 2635.805.
Unless authorized by OGC or the DAEO, you generally may not serve as an expert witness, other than on behalf of the United States, before any court or agency of the United States in any matter in which the United States is a party or has a direct and substantial interest.
4. FORMER EMPLOYEES PROVIDING EXPERT TESTIMONY. 18 U.S.C. § 207(j)(6).
Unless pursuant to court order, a former employee who is subject to post-employment restrictions under 18 U.S.C. § 207(a)(1), may not serve as an expert witness for anyone other than the United States as to the particular matter covered under the post-employment restriction.
F. LOBBYING ACTIVITY
1. LOBBYING WITH APPROPRIATED FUNDS. 18 U.S.C. § 1913
RULE: You may not use APPROPRIATED FUNDS to lobby Congress.
See also, SEC. 637, TREASURY AND GENERAL GOVERNMENT APPROPRIATIONS ACT SEC. 303, DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT (1999) – Applies to Forest Service programs/activities.
Appropriated funds MAY NOT BE USED to:
Example: June, a conservation engineer with NRCS, is Secretary for an intergovernmental association. As part of her official duties, she puts out a quarterly newsletter. She proposes publishing an article in the newsletter encouraging readers to write Members of Congress on pending legislation on dam construction projects. She may be seen as lobbying using appropriated funds.
2. ACTING AS AGENT OF FOREIGN PRINCIPALS. 18 U.S.C. § 219
RULE: A “public official” may not act as an agent of a foreign principal, or as a lobbyist required to register regarding registration of a foreign entity under the Lobbying Disclosure Act of 1995.
PART V. ETHICS OFF THE JOB
A. OUTSIDE EMPLOYMENT. 5 CFR Part 2635, Subpart H
GENERAL RULE: Outside employment must not keep you from devoting primary attention to official duties, or create a conflict or apparent conflict between private interests and official duties.
1. USDA PRIOR APPROVAL REQUIREMENT. 5 CFR PART 8301 et seq.
|In addition to all forms of compensated work, “employment" ALSO includes the following:
However, it does NOT include:
2. OUTSIDE INCOME LIMITATIONS
Senate-Confirmed Presidential Appointees to full-time, non-career positions may not receive any outside earned income for employment or activity performed during that appointment. 5 CFR § 2635.804(a).
Senior-level, non-career employees (SES and Schedule C employees paid at SES level) who are not SGEs may not receive compensation over 15% of Level II, Executive Schedule basic pay from, or allow their name used in relation to, a profession involving a fiduciary relationship; for serving as an officer/board member; or for teaching without obtaining advance authorization. See 5 CFR § 2635.804(b); 5 CFR Part 2636, Subpart C.
B. SERVICE IN OUTSIDE ORGANIZATIONS
RULE: Service in outside organizations can result in conflicts of interest in two ways: (1) the very status of your service; or (2) the actions you take on behalf of the organization, or official actions you take that affect the organization.
1. OFFICIAL PARTICIPATION AS A FIDUCIARY
A conflict of interest, under 18 U.S.C. § 208, may arise based simply upon your “official participation” in an outside organization in a “fiduciary capacity.” See 18 U.S.C. § 208, Example 4.
You probably are participating officially in the outside organization if:
You hold a position that triggers a conflict under 18 U.S.C. § 208 if you serve as an officer (e.g., president; vice president; chief executive, administrative, operations, information, or finance officer; secretary; treasurer; counsel); director, or member of a board of directors; trustee; or general partner. The statute also applies to you if you serve as an employee; a lesser position will not normally result in a status conflict.
NOTE: Official participation in non-fiduciary capacity generally will not result in a conflict of interest based on mere participation (e.g., serving as member, moderator, committee chairman, advisory board member, panelist, editor, or agency liaison to the board of directors).
Exceptions: Official participation in a fiduciary capacity is permissible if:
2. OFFICIAL PARTICIPATION AS NON-FIDUCIARY.
Dual Compensation. You MAY NOT accept outside compensation for your official participation in a non-Federal organization. See 18 U.S.C. § 209.
Lobbying with Appropriated Funds. You MAY NOT participate in efforts to influence legislation through the organization while in official capacity. See Lobbying Activity.
Fundraising. You MAY NOT raise funds for the organization except where specifically authorized. See Fundraising for Non-profit Organizations.
3. PERSONAL PARTICIPATION AS A FIDUCIARY.
RULE: You MAY NOT participate officially in an agency matter affecting the interests of the organization as its financial interests are yours. See 18 U.S.C. § 208.
Also You are subject to all of the rules in 4, below.
4. PERSONAL PARTICIPATION AS A NON-FIDUCIARY.
Impartiality/Misuse of Position. An active member of the organization (fiduciary, committee/subcommittee chair, spokesperson, etc.) has a “covered relationship” with the organization. Official actions that you take regarding your organization, even if not subject to 18 U.S.C. § 208, may result in an appearance of either a loss of impartiality, or that you are using your official position for the benefit of the organization. Additionally, other than as permitted, you may not use office staff or equipment to accomplish organization business.
Representing back to Government. You MAY NOT represent outside organization positions/interests to any Federal agency whether or not such representation is compensated. See 18 U.S.C. § 205. Also, you MAY NOT receive or seek compensation from an outside source for services rendered by you in support of another’s representation to a Federal agency. See 18 U.S.C. § 203.
Fundraising. In your personal capacity, you MAY NOT solicit money on behalf of the organization from either prohibited sources or your subordinates. See Fundraising for Nonprofit Organizations.
Endorsement. You MAY NOT use your official title/position in a manner that benefits or appears to endorse the organization. See Ethics at the Office.
5. PROFESSIONAL ORGANIZATIONS – MIXED CAPACITY
GENERAL RULE: If your agency allows official time for you to attend outside organization events (e.g., conventions, meetings) and also pays for your travel to such meetings, you are in attendance as a Federal employee and are there to obtain information, or to represent the interests of the government.
EXCEPTION: Where an organizational event also involves an adjunct internal organizational activity (e.g., business meeting, election, vote, etc.) AND you are also a member of that organization, YOU MAY participate in the internal activity (including running for and serving in elected office) IF:
The internal activity is not the primary purpose for your attendance at the event.
You do so in your PERSONAL CAPACITY (i.e., you take annual or administrative leave, if necessary, and disclaim any agency authority behind you involvement).
NOTE: Your agency MAY choose to impose additional constraints upon your personal participation as a condition of paying your travel to such meetings. Reasonable additional restrictions might include restraints upon: fundraising; involvement in organizational activities/issues that relate to policies of USDA or your agency; your working on grant applications or other representations to be made to the Federal government.
C. OUTSIDE ACTIVITIES. 5 CFR PART 2635, Subpart H
1. HONORARIA. 18 U.S.C. § 209.
RULE: You may not accept honoraria for the performance of official duties. See 18 U.S.C. § 209, (Example 2).
2. TEACHING, SPEAKING, & WRITING. 5 CFR § 2635.807
RULE: You may not accept compensation from outside sources for teaching, speaking, or writing if it is related to your official duties. Teaching, speaking, and writing is considered “related to your official duties” if:
NOTE: Pursuant to the decision in Sanjour vs. EPA, YOU MAY accept free travel and accommodations in relation to speaking on matters related to your official duties if done in your personal capacity, if you are employed at GS-15 or below.
YOU MAY NOT accept an honorarium for speaking on matters related to your official duties, however.
Harvey wants to write an article to his hometown newspaper criticizing the President. He may write the article and express his personal views. He may not use his official title, reference his position, use any proprietary or nonpublic information.
Marlene has been asked to speak in her official capacity and wants to request an honoraria which she plans to donate to the Red Cross. She may not solicit nor accept the honorarium. Acceptance of the honorarium, even on behalf of another, would violate 18 U.S.C. § 209.
On his own time, Darren, an APHIS inspector, has written an opinion piece for the Christian Science Monitor about the need for improved pepper sprays. He will be paid $200. As an inspector, Darren has used pepper spray in performing animal health inspections. However, the article will not rely substantially upon information specific to his job. He may accept. The Office of Communications should review it to make sure it that he has not used any non-public information. He may use his official title as part of his biographical background information. However, he should ensure that the article makes clear that these are his views, not those of APHIS.
3. FUNDRAISING FOR NON-PROFIT ORGANIZATIONS
OFFICIAL CAPACITY. 5 CFR § 2635.808(b); 5 CFR PART 950.
RULE: You may engage in fundraising in your official capacity only if in accordance with statute, Executive Order, regulation, or otherwise as determined by the agency. Generally, the only fundraising permitted in the Federal workplace is the Combined Federal Campaign.
“Participation in the conduct of an event” is active and visible participation in promotion, production, or presentation of the event (e.g., serving as honorary chairperson, sitting at the head table, standing in the reception line).
An “official speech” is given in official capacity on a subject related to official duties. It requires an agency determination that the event is an appropriate forum for disseminating the information. It MAY NOT be used to solicit donations.
If participating in official capacity, an employee MAY use official title, position and authority, and may accept a free meal as part of such participation.
PERSONAL CAPACITY. 5 CFR § 2635.808(c).
RULE: YOU MAY participate in fundraising in your personal capacity subject to the following:
YOU MAY NOT:
Soliciting Federal agencies to support outside organizations. See 18 U.S.C. 205; misuse of official position.
Soliciting outside entity donations to agency. See Gifts to USDA and Its Agencies
D. POLITICAL ACTIVITY
1. HATCH ACT. 5 U.S.C. §§ 7324-7327
Regulation: 5 CFR PARTS 733 & 734
SEE APPENDIX D: POLITICAL ACTIVITIES QUICK REFERENCE CHART (what you can and can’t do).
GENERAL RULE: Whether, and to what extent, an employee may participate in “partisan” political activity depends upon the nature of the employee's Federal appointment.
The Hatch Act generally restricts an employee’s ability to participate in partisan political activity as follows:
Political activity is ”partisan” if it relates to the success or failure of a political party, candidate for partisan political office, or partisan political group.
“Partisan political office” means any public office for which any candidate is nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected. It does not include offices or positions within a political party or affiliated organization.
A “political contribution” means any gift, subscription, loan, advance, or deposit of money or anything of value, made for any political purpose. It may include:
A contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for any political purpose;
A payment by any person, other than a candidate or political party or affiliated organization, of compensation for the personal services of another person rendered to any candidate or political party or affiliated organization without charge for any political purpose; and
The provision of personal service for any political purpose.
2. GENERALLY-APPLICABLE RULES
ALL EMPLOYEES MAY:
3. SPECIFIC PRESIDENTIAL APPOINTEE (PAS) RESTRICTIONS
Using non-PAS assistants, or other staff, to make calls or set up appointments for political campaign or committee activity during duty hours.
Requiring subordinate government employees to work on campaign activities.
4. SPECIAL GOVERNMENT EMPLOYEES (SGEs). 5 CFR 734.601
5. ADDITIONAL POLITICAL ACTIVITY RULES.
OPM “LOCALITY” RULES. 5 CFR PART 733
Special rules apply to local elections in the Washington D.C. area and in a few designated municipalities elsewhere in the country where large numbers of voters are Federal employees. Employees in these areas may run as independent candidates for partisan political office in elections for local offices of the municipality or political subdivision and solicit, accept and receive political contributions in connection with such local elections.
“LITTLE” HATCH ACT (State and local employees). 5 U.S.C. §§ 1501-1508
State and local employees whose principal employment is in connection with an activity financed, at least in part, by Federal loans or grants may not use their official authority or influence to interfere with or affect an election or nomination for office, directly or indirectly coerce any State or local employee to contribute for political purposes, or become a candidate for elective office.
FSA COUNTY COMMITTEE RULES. 7 CFR § 7.27
This regulation sets out political activity rules for Farm Service Agency (FSA) county or community committees members and to FSA county employees appointed or employed pursuant to 16 U.S.C. § 590h. As such individuals are NOT Federal employees, the Hatch Act does not apply to them.
PAS COST ALLOCATION AND REIMBURSEMENT (“HARD TIME”) RULES. 5 CFR § 734.503
Costs associated with political activities engaged in by PAS employees while “on duty” (see APPENDIX D), may not be paid for with appropriated funds. Where a PAS employee engages in “on duty” political activity while performing official duties, costs of “mixed travel” MUST be apportioned based on time spent on political activities and time spent on official duties. Costs related to political activity by PAS employees MUST be repaid to the Treasury by the political entity or organization involved. Use the following process to allocate costs:
Determine the TOTAL ACTIVITY TIME (TAT). TAT = Official Time (OT) [time spent in official meetings, receptions, etc.] AND Political Time (PT) [time spent in political meetings, receptions, rallies, etc.]. DO NOT COUNT: Actual travel time, or private study, rest, or recreation time.
Determine the Percentage of the TAT that is OT (OT%) and the percentage that is PT (PT%). If either percentage is minimal (e.g., less than three percent (3%) of the TAT), the entire trip will be considered as being of the nature of the predominate portion of the trip. If neither percentage is less than 3%, see Step 3, below.
Determine the “Mixed Cost” Allocation (MCA). First, determine the costs that clearly are political and costs that clearly are official. Second, multiply the PT% by the remaining total costs of the trip as if the trip had been entirely political. DO NOT COUNT: the PAS employee’s salary; value of property/or office loaned/leased by the government; compensation of Federal employees required to accompany/assist the PAS as part of their official duties; and cost of special security arrangements, including special transportation vehicles or methods. The result is the MCA to be repaid.
PART VI. PROHIBITED FINANCIAL INTERESTS
FARM SERVICE AGENCY 5 CFR § 8301.103
Real Estate Purchases. FSA employees, spouses and minor children MAY NOT directly or indirectly purchase real estate held in the FSA inventory, for sale under forfeiture to FSA, or from an FSA program participant.
Exception. A waiver may be granted by the FSA State Executive Director (SED) where:
Jointly requested in writing by FSA program participant & the FSA employee; and
Based on a determination by the SED that: (a) the waiver is not inconsistent with 5 CFR Part 2635 or otherwise prohibited by law; and (b) under the circumstances, application of the prohibition is not necessary to avoid appearances of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity of agency program administration.
Business Transactions. FSA employees, spouses and minor children MAY NOT directly or indirectly: (1) sell real property to; (2) lease real property to or from; (3) sell to, lease to or from, or purchase personal property from; or (4) employ for compensation a person whom the employee knows or reasonably should know is an FSA program participant.
Exception. This prohibition does not apply:
To a sale, lease, or purchase of personal property involving: (1) goods available to the public at posted prices that are customary and usual within the community; or (2) property obtained at public auction.
If the appropriate SED determines in advance that the transaction is consistent with 5 CFR Part 2635 and otherwise not prohibited by law.
“FSA employee,” means FSA Federal employees; not county committee members or personnel.
“FSA program participant” means any person who is, or is an applicant to become, an FSA borrower, FSA grantee, or recipient of any other form of FSA financial assistance available under any farm credit, payment or other program administered by FSA.
PART VII. POST-EMPLOYMENT ETHICS
A. SEEKING NON-FEDERAL EMPLOYMENT. 5 CFR Part 2635, Subpart F
1. GENERAL RULES. 18 U.S.C. § 208
RULE: You may not participate personally and substantially in any particular matter involving a person (including company) from whom you are seeking non-Federal employment.
“SEEKS EMPLOYMENT” when:
No longer “SEEKS EMPLOYMENT” when:
NOTE: These rules apply as well to communications through an agent (e.g., a job search firm) if the employee knows the identity of the prospective employer.
Obligation To Disqualify. If an employee can affect the financial interests of a prospective employer through performing or not performing official responsibilities, the employee must disqualify himself or herself from those duties.
Documenting Disqualification. The employee must notify the supervisor of the intent to be disqualified and also should notify coworkers. Unless a PAS employee, the employee need not provide a written record of disqualification, but it is a good idea.
Offer Accepted. The recusal should remain in effect until leaving the government.
Offer rejected or not made. The recusal may be rescinded. The DAEO may require an additional period of disqualification to avoid loss of impartiality concerns.
Regulation: 5 CFR Part 2635, Subpart F.
2. NEGOTIATING WITH A COMPETING CONTRACTOR. 41 U.S.C. § 423
An agency official who participates personally and substantially in an agency procurement worth more than $10 million and who wishes to negotiate for employment with a competitive bidder on that procurement (including with an agent or subcontractor to such bidder) MUST:
Report negotiations both to his or her supervisor and to the DAEO; and
Either reject the offer to negotiate; or disqualify him or herself from participating in the procurement.
Negotiation is not limited to discussions of specific terms and conditions of employment in a specific position. However, it does not include communication for the sole purpose of requesting a job application.
While an employee may not be prohibited from negotiating for employment, should self-disqualification preclude the employee from performing duties that are critical or central to his or her position and if the agency does not have the means of accomplishing those duties other than through the employee’s participation, the agency may take adverse action.
Example: Sandy, an attorney with OGC, wishes to negotiate for future employment with Grabbe, DeMonay & Runne, Inc., a company which she deals with in her official capacity. She MUST recuse (disqualify) herself from making decisions or recommendations which pertain to that company or taking any actions that may affect the company. The recusal should remain effective until negotiations are completed and she has no possibility of a job with the company. In the meantime, her supervisor should try not to give her any assignments which would put her in violation of a criminal statute. While her supervisor must permit the recusal, he may take adverse action against her should the recusal mean that she cannot perform duties that are central or critical to her position, or which may not be accomplished without her participation (see also, 18 U.S.C. § 208, Example 2)
2. POST EMPLOYMENT RESTRICTIONS
1. ALL FORMER EMPLOYEES. 18 U.S.C. § 207(a).
All employees are subject to two basic prohibitions that affect representing another before the Federal Government (any Federal agency or official thereof) with regard to a particular matter involving a specific party or specific parties.
If the employee “participated personally and substantially” in the matter at any time that the matter also involved specific parties, he or she is barred permanently from “representing” another before the government on that matter.
If the employee did not participate personally and substantially in the matter, but the matter actually was “pending under the employee’s official responsibility” during his or her last year of service and involved specific parties during that time, the employee is barred from “representing” another before the government for two years from the date of termination.
“Pending under the employee’s official responsibility” means that the matter actually was received by the employee or by those assigned under the employee for action during the employee’s last year in Federal service.
Regulation: 5 CFR Part 2637 .
Lorretta was the lead OIG auditor of the 1990 audit of the Beltway Bandit Corporation. Upon leaving government service, Lorretta went to work for Bandit. Her first assignment is to answer the issues raised in the 1990 audit. Lorretta may help the company write their response to the audit, but she may not represent Bandit orally or in writing back to the government. However, she must be careful not to use any nonpublic information gained while she was a Federal employee.
Larry led a multi-agency effort to develop a consolidated database on agency debt collection. At the time of his retirement, a major information technology procurement was envisioned, though no Request for Proposals had been issued at that time. Larry now is President of InfoCom, a bidder on the procurement. As he left Federal service before specific parties (e.g., bidders) were identified to the procurement, he may bid and contract with other Federal agencies involved in the program.
2. EXCEPTIONS TO 18 U.S.C. § 207. 18 U.S.C. § 207(j).
The provisions of 18 U.S.C. § 207 do not apply when:
ANY FORMER EMPLOYEE IS:
A FORMER SENIOR EMPLOYEE IS:
3. SENIOR EMPLOYEES: ADDITIONAL RESTRICTIONS
Pursuant to the passage of the National Defense Authorization Act for FY 2004, Pub. L. No. 108-136, the term “Senior employee (SE)” includes the following:
CRIMINAL 1-YEAR ("COOLING OFF") BARS.
CRIMINAL 1-YEAR (“COOLING OFF”) BARS ON USDA SEs (INCLUDING SAs).
REPRESENTING, AIDING, OR ADVISING A FOREIGN ENTITY BEFORE THE GOVERNMENT.
See “Special Government Employee” rules.
Regulation: 5 CFR Parts 2637 and 2641 (depending upon whether the date of termination from the SE position occurred prior to or subsequent to January 1, 1991).
Example: Myra, a former senior employee in the Under Secretary for Natural Resources' Office, left government service six months ago. She was hired to represent a western community in a water dispute and would like to discuss the issue with both the Bureau of Reclamation (Department of the Interior) and NRCS. She was not personally and substantially involved in the matter when she worked for USDA. However, because she was a senior employee when she left USDA, she may not make an appearance before NRCS until one year has passed. However, she could appeal before the Bureau of Reclamation.
4. TRADE NEGOTIATORS AND “FOREIGN ENTITY” EMPLOYMENT
CRIMINAL 1-YEAR BARS.
REPRESENTING, AIDING, OR ADVISING ON ONGOING TRADE/TREATY NEGOTIATIONS.
REPRESENTING, AIDING, OR ADVISING A FOREIGN ENTITY BEFORE THE GOVERNMENT.
“Represent, aid, or advise” applies to representation and to in-house advice, as well.
5. PROCUREMENT OFFICIALS 41 U.S.C. § 423
RULE: A former Federal official may not accept compensation from a contractor as an employee, officer, director, or consultant of that contractor, for a period of one year after that official either:
THIS DOES NOT APPLY:
USDA PROTECTED INFORMATION PROHIBITIONS
7 U.S.C. 222. Packers & Stockyards Act. Unauthorized release of information specified in the Act.
7 U.S.C. 742. Release of information in an employee’s possession concerning cotton standards, estimates, tests, and analysis unless authorized by the Secretary.
7 U.S. 608(2). Release of information acquired from parties to marketing agreements (MA) & from handlers subject to MA orders, except as authorized by the Secretary for purposes of suit/administrative hearings.
7 U.S.C. 610(i). Use/availability of information furnished in connection with MA and orders.
7 U.S.C. 855. Availability of information furnished in connection with MAs and orders, and applicable to MAs for anti-hog-cholera serum and hog-cholera virus.
7 U.S.C. 955. Use/publication of information furnished in connection with the collection of peanut statistics.
7 U.S.C. 1373(c). Disclosure of information furnished in connection with establishment and adjustment of farm marketing quotas except as authorized by the Secretary for purposes of suit/administrative hearing.
7 U.S.C. 2105(c). Unauthorized release of information relating to the production and marketing of cotton.
7 U.S.C. 2426. Unauthorized release of information relating to the production and marketing of eggs.
12 U.S.C. 1141j(d). Unauthorized prediction as to cotton prices in a governmental publication.
18 U.S.C. 217. Acceptance of fees, gifts & other consideration for compromise, adjustment, or cancellation of farm indebtedness.
18 U.S.C. 1902. Willful disclosure of official information that might influence or affect the market value of crops prior to authorized publication. An employee acquiring, through employment, information on market value of agricultural crops, which information is required to be withheld, is prohibited from speculating in such product.
18 U.S.C. 2072. Compilation or issuance of false crop reports.
21 U.S.C. 458. Poultry Inspection Act. Using information to personal advantage or improperly revealing information concerning trade secrets acquired under the Act.
50 U.S.C. App. 2160(f). Use of information obtained in the course of employment to speculate or to aid another in speculating on any commodity exchange.
ADDITIONAL USDA STATUTORY PROHIBITIONS
7 U.S.C. 87(a). U.S. Grain Standards Act
A person licensed or authorized to perform any official function under the Act, or employed by USDA to carry out the provisions of the Act, MAY NOT be financially or otherwise interested in an entity owning or operating a grain elevator or warehouse or engaging in the merchandising of grain, or be employed by or accept gratuities from any such entity.
7 U.S.C. 610(g). Agricultural Adjustment Act
Persons administering activities concerned with cotton option contracts and commodity benefits as provided by the Act, MAY NOT speculate in agricultural commodities or projects to which such contracts or benefits apply, or in contracts relating thereto, or in the stock or membership interests of any association or corporation handling such commodities or products.
7 U.S.C. 1986. Consolidated Farm and Rural Development Act
An officer or employee MAY NOT be the beneficiary of or receive any fee, commission, or gift for or in connection with any transaction or business under the Act other than such salary, fee, or compensation as he or she may receive as an officer or employee. In addition, members of a County Committee are prohibited from making any certification with respect to a loan to purchase any land in which they or any person related to them have any financial interest.
18 U.S.C. 1902.
An employee acquiring, by reason of his or her employment, information as to the market value of agricultural crops, which information is required to be withheld, MAY NOT speculate in such product.
18 U.S.C. 1903. Federal Crop Insurance Act
The prohibition against speculating in agricultural commodities to which the Act applies or in contracts relating to those commodities, or in the stock or membership interests of corporations or associations handling those commodities, by any person administering the Act.
30 U.S.C. 1211(f). Surface Mining Act
The prohibition against performing any function or duty that has a direct or indirect financial interest in underground or surface coal mining operations.
TRAVEL COSTS PAID BY NON-FEDERAL SOURCES (FEBRUARY 2004)NOTE: For this Appendix, please refer to the USDA Office of Ethics "Rules of the Road" section, under Acceptance of Non-Federal Travel Assistance
POLITICAL ACTIVITIES QUICK REFERENCE CHARTNOTE: For this Appendix, please refer to the USDA Office of Ethics "Rules of the Road" section, under Political Activities Quick Reference Chart
"LIMITED USE" POLICY DR 3300-1 (March 23, 1999)
1. TELEPHONE USE – APPENDIX B (pertinent excerpts)
a. Use of Government Telephones
Government telephone systems (including cellular telephones and calls over commercial systems which will be paid for by the government) are in place for the conduct of official business or limited personal use as outlined in this Directive.
Criteria for Authorized Limited Personal Use. Use of government telephone systems for limited personal use may be authorized as being in the interest of the government if such use satisfies the following criteria:
Examples of Authorized Use. Some examples of authorized use by employees that are consistent with the previously stated criteria [Section 4, a, (1)] are:
Long Distance Calls. Personal calls that must be made during working hours may be made over the commercial long distance network if the call is consistent with previously stated criteria [Section 4, a, (1)] and is:
Prohibitions. Listed below are PROHIBITED practices in accordance with Federal Property Management Regulation (FPMR) 101-35.201 and 5 CFR 735.205. Willful violation may result in criminal, civil, or administrative action, to include suspension or dismissal.
b. Collect Calls.
Collect calls (calls placed from a non-government number to a government number) and third party calls are prohibited except for official business and only when authorized in writing by the Agency Administrator or Staff Office Director. Since a collect surcharge is charged by the telephone company, it is strongly recommended that one of the following efficient and cost-effective methods be used in lieu of collect calls:
Use of FTS2000/2001 Federal Calling Card for employees making frequent long-distance calls;
Use of 1-800, 1-877, or 1-888 Service for mission requirements to satisfy external customers calls or public access to government information; or
Use of FTS contract prepaid debit cards.
2. INTERNET – APPENDIX I (pertinent excerpts)
It is the policy of the United States Department of Agriculture to allow and encourage the use of Internet services to support the accomplishment of the various missions of the Department. Users of the Internet must be aware of the following policies regarding the content and management of Internet data and information.
a. Acceptable Use
Federal government telecommunication systems and equipment (including government owned telephones, facsimile machines, electronic mail, interact systems (Internet), and commercial systems (when use is paid for by the Federal government) shall be for official use and authorized purposes. (See GSA Federal Property Management Regulation (FPMR) 41 C.F.R. Subpart 101-35.1)
Authorized purposes may include limited personal use, with supervisor approval, and it is determined that such communications:
USDA employees and contractors shall use Federal government telecommunications systems with the understanding that such use serves as consent to monitoring of any type of use, including incidental and personal uses, whether authorized or unauthorized. In addition, access of such systems is not anonymous. For example, for each use of the Internet over Federal government systems, these systems may capture information transmitted, received or stored on the system.
SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT (5 CFR Part 8301)NOTE: For this Appendix, please refer to Supplemental Standards of Ethical Conduct