Office of Ethics
United States Department of Agriculture
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Guidance on Participation in Outside Organizations in an Official Capacity

Board Membership: Waiver Process

The Department of Justice has determined that service by a Federal official in his or her official capacity on the board of directors of an outside organization may, under certain circumstances, constitute a conflict of interest under 18 U.S.C. § 208(a). The following paragraphs briefly set forth a step-by-step methodology that agency ethics personnel may use in addressing whether conflict of interest issues exist and, if so, how they may be resolved, in connection with the participation by agency personnel in outside organizations in official capacity.


I.   IS PARTICIPATION SUSPECT UNDER 18 U.S.C. § 208(a)?

While conflict concerns may arise based on what actions an employee takes while participating in an outside organization, only service in the following positions ("significant participation") in outside organizations automatically raises potential conflict concerns based merely on official participation:

  1. Officer, including, but not limited to:
    1. President and Vice President;
    2. Chief Officers (Executive; Administrative; Operations; Information; Finance, etc.);
    3. Secretary;
    4. Treasurer;
    5. Counsel;
  2. Director, or member of a board of directors;
  3. Trustee;
  4. General partner; or
  5. Employee.

Official participation by Federal employees in other than "significant" capacities ("non-significant" participation) will not, by itself, result in a statutory violation. For example, 18 U.S.C.§ 208 would not prohibit you from participating officially in outside organizations through attendance for training, making an agency presentation, serving as an agency representative on a panel, or providing agency technical expertise to a committee of the organization.


II.   IS PARTICIPATION ACTUALLY OFFICIAL?

If "significant participation" is involved, the next question is whether it is being performed in the employee’s official capacity. The following factors constitute a non-exclusive list of considerations in determining the status of the employee in participating in the outside organization (no one factor is necessarily determinative). Participation in an outside organization may be considered official where:

  1. performed as part of one’s official duties, for example, if:

    1. assigned as official duties by an official superior;
    2. occurring during official work hours;
    3. travel costs are borne by the agency; or
    4. the employee attends wearing official uniform; or
  2. the employee was invited to participate primarily based on his or her official position, for example:
    1. the organization is involved in issues with, or is working with the agency on, matters of mutual interest;
    2. the invitation to participate was received at the employee’s office or forwarded to his or her attention by official title;
    3. the organization by-laws or charter specify the position as reserved for an agency employee; or
    4. the employee had not previously participated in the organization in a personal capacity.

NOTE: The statute does not prohibit "significant participation" that is not performed in one’s official capacity. Examples of significant participation that, absent more, would not be performed in one’s official capacity include: serving as director of the local Boy’s Club, church elder, president of a homeowner’s community association, president of the local chapter of the Girl Scouts, or director of the local March of Dimes, etc.


III.   IS OFFICIAL “SIGNIFICANT PARTICIPATION” AUTHORIZED?

Assuming that "significant participation" is involved and the employee also seeks to participate in an official capacity, the following factors ought to be considered:

  1. whether there is express statutory authority for the employee to serve ex officio on a board (e.g., the Chief of the Forest Service is required by statute to serve on the National Forest Foundation Board of Directors);
  2. whether there is clearly an absence of fiduciary obligations to the organization as determined under State law (e.g., evidence of non-voting or advisory status and a letter from the organization counsel addressing applicable State law); or
  3. whether the organization is engaged in activities clearly related to statutory directives requiring the agency to participate with other entities, such as State governments, local groups, and/or private industry, in accomplishing the statutory goals (e.g., some standard setting organizations).


IV.   IS “SIGNIFICANT PARTICIPATION” NECESSARY TO THE AGENCY?

NOTE: "Significant participation" in one’s official capacity in an outside organization may place the agency in the position of directing and administering the affairs and operations of a non-Federal entity. This may expose the agency, USDA, the Federal Government, and/or the employee, to the same potential liability faced by other organization members in similar positions for actions taken or decisions made by the outside organization.

Unless "significant participation" in an official capacity is required expressly by statute (see III.1, above), the agency always should consider whether there is a legitimate agency need to have an agency employee engaged in official "significant participation" with that organization. The following considerations should be addressed:

  1. whether any form of participation in the organization benefits the agency in the accomplishment of its mission;
  2. whether "significant participation" increases that benefit and to what extent (e.g., both considerations come into play where participation in outside scientific, technical, and professional associations, is a recognized peer review factor affecting professional advancement within the agency).
  3. whether there are other, lesser forms of participation that can achieve the same goals, for example:
    1. membership, if the agency interest is simply in educating its employees;
    2. agency liaison where the agency interest is in presenting the agency’s perspective; or
    3. agency advisor to the board where the agency provides expert technical advice that it would provide to any similarly-situated member of the public; and
  4. whether the agency is prepared to treat requests for official "significant participation" by all similarly-situated organizations in the same manner.


V.   IS A WAIVER UNDER 18 U.S.C. § 208(b) APPROPRIATE?

Finally, if there is no clear authority for "significant participation" in an official capacity, but the employee or his or her agency still seeks to engage in such participation in an official capacity, he or she may request an individual waiver, under 18 U.S.C. § 208(b), permitting the participation. The test for approving a waiver request is that a conflicting financial interest (in this case, "significant participation" in an outside organization) is not so substantial as to be deemed likely to affect the integrity of the employee’s services to the Government. The following may well be considered by the agency in deciding to grant or deny a waiver request:

  1. whether the organization takes official positions on agency matters (as opposed to merely publishing scholarly, but agency-critical, discussions by its members)1:
  2. whether the organization has financial interests that conflict with agency interests; or,
  3. whether the organization is a prohibited source to the agency under 5 CFR §2635.203(d).
1
It is possible that representations made on behalf of an organization as a whole are imputable to the organization directors, officers, and other “significant participation” positions. If a Federal employee is serving in such a position in an official capacity and if those representationsare made to the Federal government, the Federal employee may well be in violation of the representation bar found at 18 U.S.C. §205.