USDA Ethics Issuances
06-1 An Ethics Guide for Officers and Board Members of the Federal Crop
OF AGRICULTURE - OFFICE OF ETHICS
ETHICS ISSUANCE: Number 06-1 - DATE:
June 7, 2006 (Updated November 2017)
SUBJECT: AN ETHICS GUIDE FOR OFFICERS
AND BOARD MEMBERS OF THE FEDERAL CROP INSURANCE CORPORATION
The Federal Crop Insurance Corporation ("FCIC") is a wholly
owned government corporation within the U.S. Department of
Agriculture ("USDA") that is authorized to carry out all actions
and programs authorized by the Federal Crop Insurance Act,
7 U.S.C. § 1501, et seq.(Act). The Risk Management Agency
("RMA") has been delegated authority to act on the behalf of
the FCIC to deliver and administer all Federal crop insurance
programs. Management of the FCIC is vested in the FCIC Board
of Directors ("Board") under the supervision of the Secretary
This guide is designed to provide a basic ethics primer for
FCIC Officers and Board Members concerning some of the restrictions
most likely to impact them in the performance of their official
duties, and focusing specifically upon restrictions that may
have unexpected applications. In this regard, the issuance
is designed to be a quick-reference compendium of pertinent
rules taken from other, more specific, statutory and regulatory
sources that are cited in each section. In addressing actual
ethics questions, reference should always be made to the statutes
and regulations themselves, particularly to the Standards of
Ethical Conduct for Employees of the Executive Branch (Standards),
5 C.F.R. Part 2635. Not all ethics issues discussed herein
are treated in depth. Some common issues, discussed under "Other
Ethical Concerns" and "Miscellaneous Restrictions and Obligations," are
treated generally. For information on any ethics-related restriction,
including training modules that address most common ethics
issues, see the Office of Ethics website at www.usda.gov/ethics.
- "FCIC Board," for purposes of this guide, refers solely
to the six voting non-Federal members on the Board provided
for at 7 U.S.C. 1505(a)(2). All references to "Board Members" will
refer solely to these individuals.
- "FCIC Employee," for purposes of this guide, includes all
FCIC Officers and Board Members;
- "FCIC Manager" means the Administrator of RMA. The FCIC
Manager also serves as a non-voting Federal member of the
- "FCIC Officer," for purposes of this guide, refers to the
- FCIC Manager, a non-career Senior Executive Service
- Deputy Manager and Executive Secretary, SES-N employees;
- Deputy Executive Secretary, a career GS-15 ("GS")
- RMA Chief Financial Officer, a career GS-15 employee;
- Three voting Federal members of the Board to include:
- Under Secretary of Farm and Foreign Agricultural
Services ("FFAS"), a Presidential Appointee with
Senate Confirmation ("PAS") employee;
- Another USDA Under Secretary (PAS), and
- USDA Chief Economist, a career Senior Executive
Service ("SES-C") employee.
The ethics statutes and rules discussed in this guide apply
to all FCIC employees; however the manner in which the rules
apply vary according to the nature of the individual's Federal
- FCIC Officers. As
noted above, FCIC Officers serve under three types of appointments:
PAS, SES (to include both SES-C and SES-N employees), and
GS. The ethics statutes and rules apply equally and in
full force to all FCIC Officers with the following notable
- Outside Earned Income Bans. PAS
and SES-N employees face restrictions on acceptance of outside earned
income during their tenure in such positions. PAS officials are subject
to a total prohibition on the receipt of outside earned income. See
section 102 of Executive Order 12674, as amended; 5 CFR 2636.302. SES-N
employees are restricted to outside earned income of no more than 15%
of the basic pay for Executive Level II. See 5 CFR 2626.304. Moreover,
non-career SES employees are barred from receiving any compensation
for practicing a profession, affiliating with a firm providing professional
services involving such a relationship, or permitting their names to
be used by such an entity. See 5 CFR 2636.305.
- Post-employment Restrictions.
- PAS and most SES employees (both
N and C) are subject to a 1-year "cooling off" ban on representing
others before USDA after leaving their senior positions at USDA.
- Partisan Political Activity.
- PAS Officials have
broad freedom to participate in partisan political activity,
even while on official duty;
- SES-N and GS employees have
broad freedom to participate in partisan political activity while
on their own time;
- SES-C employees are
very limited in the degree to which they may participate in partisan
- FCIC Board Members.
FCIC Board members are special Government employees
("SGEs") and, thus, while subject to the laws regarding
conflicts of interest; they are subject to such laws
to a more limited extent. Of note for FCIC Board members
are the following differences:
- Representation Before the Federal
Government. The prohibitions on representing apply: (1)
only on the days on which the SGE is in a Federal status or performs
Federal duties; and (2) to a more-limited set of matters;
- Serving as an Expert Witness. Restrictions
on serving as an expert witness apply only if the SGE participated
in the proceeding or matter as an employee;
- Teaching, speaking and writing. 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; and
- Partisan Political Activity. The
rules apply to SGEs only on those days when they are in Federal status
or are performing Federal duties.
LAWS AND REGULATIONS
I. BRIBERY -- 18 U.S.C. 201.
-- As a Federal employee you may not give/receive/
request/offer anything of value to influence an official
act of a government employee, or to be influenced in performing
your official duties.
- This criminal statute applies equally to FCIC Officers
and Board Members. Conviction for bribery requires proof
of corrupt intent and a quid pro quo (something given or
offered for a specific official action to be taken or not
taken). Absence of corrupt intent or quid pro quo may still
violate 18 U.S.C. 209 (below), or be prohibited under the
rules concerning Gifts From Outside Sources, 5 CFR Part 2635,
- The prohibition applies whether one is on official duty
or on personal time.
II. CONFLICTS OUTSIDE OF OFFICIAL DUTIES.
Representation before the Federal Government. 18 U.S.C.
203 & 205.
General: Two very similar criminal
statutes govern whether you may interact with the Federal Government
on behalf of non-Federal entities during your Federal employment,
18 U.S.C. 203 and 205.
- Section 203 - Compensation to Members of Congress,
Officers, and Others in Matters Affecting the Government. During
your Federal appointment and except in the discharge
of official duty, you may not seek, agree to receive,
receive, or solicit compensation for representational
services provided personally or by another
before the Executive or Judicial branches of the Federal
- Section 205 - Activities of Officers and Employees
in Claims Against and Other Matters Affecting the Government. During
your Federal appointment and except in the discharge
of official duties you are prohibited from engaging in
the following, with or without compensation:
- prosecuting any claim against the U.S., or receiving any gratuity,
or share or interest in a claim for assisting in prosecution of the claim,
- representing another before the Executive or Judicial Branches of the
- Representational services means
any actions undertaken in direct and knowing support of a
representation. This could involve drafting documents, proposals
and bids, and other support activities short of actual representation.
- Representing means
acting as agent or attorney for another person by communicating
with (either orally or in writing) or appearing before, the
Executive or Judicial Branches of the Federal government.
Application: Prohibitions apply as
- FCIC Officers: To
any particular matter in which the US is a party or has
a direct and significant interest.
- FCIC Board Members: Only to
- Any particular matter
involving a specific party or parties (e.g., a contract,
loan, grant, claim, law suit, etc.) in which you
participated personally and substantially while a
Federal employee; and
- If you served more than
60 days during the preceding 365-day period, any
particular matter (this would include the above matters,
as well as most policies, programs, and initiatives)
pending before USDA (including any agency, office,
or component thereof). (NOTE: Most
FCIC Board members will serve more than 60 days in
a 365-day period)
Exceptions: You may however:
- Represent yourself; however, this exemption does not cover
your acting on behalf of your personal or family corporation.
- Represent your parents, spouse, child, or person/estate
for whom you are serving as personal fiduciary with1 or
without compensation, so long as you did not take
official action on the matter or so long as the matter is
not subject to your official responsibility.
- Give testimony under oath.
- [Board Members only] Represent
others on work done under a grant or contract with the
U.S. or one that benefits the U.S., if the USDA certifies
in the Federal Register that it is in the national interest.
- Where not inconsistent with one's official duties, and without
compensation, represent one who is subject to
disciplinary, loyalty, or other personnel administrative
- To the extent permitted under 5 C.F.R Part 251, represent
an organization comprised primarily of Federal employees
in certain dealings with the agency concerning employment
An FCIC Official:
- Could not represent his
spouse's company, either in person, by phone, or in writing,
to or before the Department of Interior concerning her
company's application for a Special Use Permit on a National
Park; however, he could represent her, if without compensation,
on an application which she submitted on her personal
- Could file a tort claim
on his personal behalf, or on behalf of his parents,
if without compensation, against the USDA for damage
to family properties caused by negligence of USDA employees
in the scope of their employment.
- Who is a GS or SES employee,
could not, were he to practice law outside of USDA, represent
or receive legal fees for behind-the-scenes representational
services he provided related to another's representation
of a non-family member in their claim against a Federal
agency, or in a Federal court action on such a claim.
- Could not represent his
incorporated farm on an application to the Farm Services
Agency for an Operating Loan.
- Who is a GS or SES employee,
could not, as a partner in an outside business concern,
receive compensation for work that he did in support
of the company's representational efforts to obtain a
Department of Defense contract; however, if he did not
work on the contract effort, he could receive partnership
shares related to the increased company profits derived
from the contract (NOTE: An SES-N also would be limited
by the 15% cap on outside earned income).
- Could, without compensation,
represent or provide representational services in support
of a friend who is facing disciplinary proceedings before
FSIS and regarding matters in which her agency has no
- Could not represent his
outside company, or be compensated for services in support
of another's representations before the FCIC Board regarding
the company's position on FCIC proposed changes in policy,
such as the renegotiation of the Standard Reinsurance
An FCIC Board Member:
- Could, while on personal
time, represent and/or be compensated for providing representational
services related to a matter before the U.S. Food and
- Could not perform such
duties while on official time (e.g., on any day that
she performs services of any significant nature as an
FCIC Board Member). For purposes of this rule, where
on official travel, official time would cover the entire
time that she is engaged in official travel, or in a
Federal pay status, not just the time actually spent
performing FCIC duties.
- Who served less than 60
days during the past 365 calendar days, could, on her
personal time, represent her company, or receive compensation
for services in support of another's representation of
her company in connection with an application that her
company has pending before the Farm Services Agency if
that application has nothing to do with matters that
would come before her as a member of the FCIC Board.
- However, if she
served more than 60 days during the past 365 calendar
days, then she would not be able to engage in representational
activities of any sort regarding any matters pending
before any part of USDA.
- Irrespective of
length of SGE service, an FCIC Board member may
neither represent another before the FCIC Board,
nor assist another in their representations before
the FCIC Board. This is based, not on the foregoing
representation statutes, but upon the prohibition
against misusing one's official title and position
on behalf of another. See III.A., below.
III. CONFLICTS IN THE PERFORMANCE OF OFFICIAL DUTIES
A. Financial Conflicts of Interest, Loss of Impartiality & Favoritism
General: At the core of Federal ethics
laws and regulations is the concept that official duties shall
be performed based upon what is in the best interests of the
public, vice what is specifically in your interest or specifically
in the interests of those close to you. This concept is covered
by three separate provisions: First, by the criminal financial
conflict of interest statute, 18 U.S.C. 208; second, by the
administrative rules against loss of impartiality, 5 CFR 2635.502,
which expand upon the criminal statute; and third, the administrative
rules against misusing your official position for the specific
benefit of you or anyone else, 5 CFR 2635.702(d). While the
administrative rules are not criminal in nature, violation
can result in discipline, even dismissal.
- 18 U.S.C. 208 - Acts Affecting a Personal Financial
Interest. During your appointment, you may
not participate personally and substantially (i.e.,
recommend, influence, or decide) in any particular
matter in which:
- your spouse;
- minor child;
- general partner;
- organization in which you serve as officer, director, trustee, general
partner or employee; or
- any person or organization with whom you are negotiating or have an
arrangement concerning prospective employment,
has a financial interest if that official action will have a direct and predictable
impact upon the financial interest.
- 5 CFR 2635.502 - Impartiality in Performing
Official Duties. Even if not prohibited
by the statute, unless a waiver is granted, you also
may not participate personally and substantially in
any particular matter involving specific
parties which you know:
- Is likely to have a direct and predictable impact on
the financial interests of a member of your household; or
- A person with whom you have a covered relationship is
or represents a party to that matter, IF
a reasonable person would question your impartiality.
- 5 CFR 2635.702(d) - Performance of Official
Duties Affecting a Private Interest. If
performance of your official duties would affect the
financial interests of a friend, relative or person with
whom you are affiliated in a nongovernmental capacity
and who would not be covered either under the statute
or rules concerning impartiality, you still should follow
the impartiality rules.
- Covered relationships include
- Anyone, other than a prospective employer, whom you
have or seek to have a business, contractual or other
financial relationship involving other than a routine
- Members of your household and relatives with whom
you have a close personal relationship;
- Individuals with whom your spouse, dependent child
or parent serves or seeks to serve as an officer, director,
trustee, general partner, agent, attorney, consultant,
contractor or employee;
- Any person for whom you have within the last year
served as officer, director, trustee, general partner,
agent, attorney, consultant, contractor or employee;
- Any organization, other than a political party, in
which you are an active participant (e.g. committee
chair, fundraiser, adviser, manager, etc.).
personally and substantially means participating
directly (or through a subordinate at your direction)
and in a manner of significance to the outcome. One can
meet this requirement through participation in the decision-making
or deliberative process, not just through participation
in or making the ultimate decision.
matter is a 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 specific parties (see
below), but also matters such as legislation or policy-making
that are narrowly focused on the interests of such a
discrete and identifiable class of persons. Examples
of particular matters before FCIC would include the following:
- Judicial Proceedings: Litigation brought by insurance
companies challenging an FCIC rulemaking for alleged violations of
the Administrative Procedure Act.
- Applications: A specific application submitted
to RMA to enter into a risk management research partnership.
- Contracts: FCIC enters into a contract to perform
evaluations of its pilot programs.
- Claims: An insurance company owing money to FCIC
is placed in liquidation, making FCIC a creditor in the State proceeding.
- Controversies: A dispute over whether a non-profit
association is eligible to apply for an award under the Community Outreach
and Assistance Partnership Program.
- Policymaking: Renegotiation of the Standard Reinsurance
- Policymaking: Development of regulations insuring
growers of wild rice in Minnesota.
- Policymaking. Deliberations over a proposal to
request applications for RMA research partnerships.
- Particular matter involving specific parties means
a subset of particular matters in which there are formal
parties identified to the matter - persons or entities with
legal rights and obligations at issue. This would include
judicial proceedings and litigation, applications, requests
for rulings and determinations, contracts and grants, claims,
charges and accusations, and investigations (see examples
under particular matter, above).
However, the term would not include legislation or policymaking
(see examples, above) unless the legislation or policymaking
is related to one or a few specified parties (e.g., a private
The following are examples that show the difference between particular
matters and particular matters involving specific
- Deliberations over, or issuance of, a proposal to request applications
for RMA research partnerships would be a particular matter, but would
not be a particular matter that involves specific parties; however,
.an application that is submitted to RMA by a company to enter into
a risk management research partnership under that proposal would be
a particular matter that involves specific parties.
- The decision to include a type of organization as eligible to apply
for an award under the Community Outreach and Assistance Partnership
Program would be a particular matter, but would not involve specific
parties; however, a challenge raised by a rejected applicant would
be a particular matter involving a specific party.
- Direct and predictable impact. If
a particular matter is involved, for the prohibition to apply,
the official action also must have a direct and predictable
impact upon the financial interest at issue - this means
a real, rather than speculative impact.
Application: The application of the
statute and regulations to FCIC must be considered in light
of the fact that Congress, by statute, has deemed it necessary
to place upon the Board persons who otherwise would have a
natural conflict of interest in so serving. Accordingly, for
the purposes of FCIC, the Office of the General Counsel has
set forth the following guidelines as to what would and would
not constitute a direct and predictable impact on a Board Member's
- Not direct and predictable: Actions, including
deliberations and voting on matters–
- Generally applying equally to all active farmer policyholders;
- Generally applying equally to a given industry, such as crop insurance
- Involving a specific commodity with national or regional application
- Direct and predictable: Actions including
deliberations and voting on matters–
- Relating to a county where a Board member has farming interests at
- Relating to a specific farm or company owned by a Board member;
- Relating to interests held by a friend, family member, or business
associate or client;
- Relating to the interests of direct competitors of a Board member.
- The statute and regulations apply equally to FCIC Officers
and FCIC Board Members. Recusal from participation in a matter
in which you have a financial interest effectively resolves
the conflict; however, recusal must be from all significant
involvement in the decision-making process concerning the
matter, NOT just the final decision.
Exceptions: You may still participate
if the conflict is subject to one of the following waivers:
If a conflict of interest:
- Individual Waiver. 18 U.S.C. 208(b)(1).
You may request a waiver if you advise the person who appointed
you of the official matter at issue and your conflicting
interest and receive in advance a written determination by
that official that the interest is not so substantial as
to be deemed likely to affect the integrity of the services
which the Government may expect from you;
- Regulatory Waiver. 18 U.S.C. 208(b)(2) & 5
CFR Part 2640, Covers situations where the conflicting financial
interest is comprised of assets in diversified where the
conflicting financial interest is comprised of assets in
diversified mutual funds, unit investment trusts, some Sector
mutual funds, Government pension plans; diversified employee
benefit plans and publicly-traded securities.
- Tribal Interest Waiver. 18 U.S.C.
208(b)(4). Covers situations where the conflicting financial
interest results solely from interests in birthrights in
an Federally-recognized Indian tribe [or Alaska Native village
corporation], Indian allotment, or Indian claims fund.
In cases of a loss of impartiality and misuse of position:
- Consideration of appearances by the employee. 5
CFR 2635.502(a) and (c). If you see that there is the potential
for your participation in an FCIC matter to raise reasonable
concerns as to your impartiality and objectivity, you should
inform the FCIC Manager or Executive Secretary of the appearance
and not participate in the matter until you receive authorization
from that official based on a determination made in writing,
made in light of all relevant circumstances, that the interest
of the Government in the employee's participation outweighs
the concern that a reasonable person may question the integrity
of the agency's programs and operations.
An FCIC Officer or Board
- Whose spouse owns a cotton
farm would not violate the criminal statute by participating
in the consideration of agency policies that would affect
cotton growers nationally; but would do so in participating
in the consideration of the spouse's application for
a written agreement to insure unclassified land.
- Whose spouse is an employee
of a cotton farm, would not violate the criminal statute
by participating in the consideration of the above application,
but would violate the impartiality rules and could face
- Who has an inactive crop
insurance business during tenure as a Federal employee,
could participate in matters involving crop insurance
which apply to the conduct of crop insurance nationwide
if these policies have no effect upon her business that
are different from the effects upon other similarly-situated
persons, agencies, and insurance companies. There is
no direct and predictable impact of such policies upon
the employee's financial interests.
- Whose farm partnership
leases farm property, would violate the criminal statute
by participating in the deliberations over a compliance
investigation regarding her general partner; if the application
were from her lessee, she would not violate the criminal
statute, but would violate the rules against loss of
- Whose minor son has stock
in a crop insurance company with an with a 508(h) submission
before FCIC, would face a criminal conflict by participating
in the matter; if the son were of majority age, there
would not be a criminal conflict, but would be a loss
of impartiality issue (even if the son moves out of the
house, he is a close, personal relative).
- Who has had conversations
with the president of a reinsurance company about the
possibility of post-Government employment with that company,
would violate the criminal statute if she participated
in any official actions relating not only to a matter
directly affecting that company (e.g., a 508(h) submission
by the company), but also as to a matter affecting FCIC
policy relating to the reinsurance industry (e.g., renegotiation
of the Standard Reinsurance Agreement). [NOTE: Once she
leaves FCIC, however, post-employment restrictions would
only preclude her from improper representations made
in reference to the 508(h) submission; not as to the
Standard Reinsurance Agreement].
An FCIC Board Member: (In
light of the statutory resolution of conflicts for Board Members):
- A private Board member
- Be able to maintain
her involvement in the crop insurance industry
while on the Board;
- Be able to participate
in matters involving crop insurance which apply
to the conduct of crop insurance nationwide AND
which have no effects upon her business that are
different from the effects upon other similarly-situated
persons, agencies, and insurance companies;
- Not be able to participate
in deliberations or voting on matters that directly
affect her company's interests, such as whether
to require companies reinsured by FCIC themselves
to perform actuarial services that they currently
contract out, or to require them to contract out
services currently within their capabilities;
- Not be able to participate
in deliberations or voting on matters that directly
specifically affect the interests of her direct
competitors in the crop insurance business.
- As discussed in
the examples under II, above, irrespective of length
of SGE service, an FCIC Board member would likely
be seen as misusing his or her official position
where either representing another before the FCIC
Board, or assisting another in their representations
before the FCIC Board. It is unlikely that a reasonable
person possessing all relevant facts would see
other members of the FCIC Board as not being influenced
by the official status of a Board member acting
in this fashion before the Board. Moreover, the
potential that the Board member would have access
to, and make personal use of, nonpublic FCIC information
could undermine the public's faith in the integrityand
fairness of Board operations and programs.
B. Dual Compensation. 18 U.S.C. 209.
General: During your tenure as a Federal
employee, you should not receive or agree to receive any salary
or compensation from a non-Federal source for performing your
official duties. As all FCIC employees receive Federal compensation
for their services, this statute applies to them equally.3
- A producers association could reimburse the Agency, under
31 U.S.C. 1353, for the cost of sending a FCIC Officer or
Board Member to address association members on various issues
concerning FCIC; however, the Officer or Board Member could
not accept an honorarium from the association because the
speech is part of the Officer or Board Member's official
- A local civic association wants to present an FCIC Officer
with an award honoring her public service in that role. So
long as the award is an established award program for public
service, the Officer can accept; not so, if the award is
ad hoc, or given based on a decision made by the Officer
that specifically benefited the awarding group or association.
IV. POST-EMPLOYMENT CONFLICTS
General: Upon completion of your Federal
service, you will be required to comply with certain post-employment
prohibitions that primarily deal with representation of others
back before the Federal government. There are five criminal
provisions under 18 U.S.C. 207 and one civil restriction under
41 U.S.C. 423:
A. 18 U.S.C. 207(a)(1).--
Permanent Restriction. You may not knowingly represent
any other person (other than the U.S.) before
the Executive or Judicial Branches of the Federal government
with the intent to influence the government's actions in
a particular matter involving specific parties (i.e.,
a contract, grant, application or claim) in which you participated
personally and substantially for the government at
any time in your Federal career. (As with
other ethics violations, for a violation to occur, the
U.S. must be a party or have a direct and substantial interest
in the matter.)
- Representing. See definition, above.
- Particular matter involving specific parties. See definition,
- Participating personally and substantially. See definition, above.
- Applies to FCIC
Officers and Board
- This statute does not prohibit you from representing yourself.
- The statute also does not prohibit you from working behind-the-scenes
in assisting another in the actual representation (compare
this with the rules on representation while you are an employee).
- You may avoid being covered under this provision by recusing
yourself from all participation in a covered matter.
- Usually this provision applies to "hands-on" participation,
but may include brief but significant involvement such as
approving a matter. Participation in this manner occurs not
merely at the decision level, but anywhere within the deliberative,
or decision-making process.
- While the provision applies to matters that you participated
in at any time in your Federal career, the application may
be limited where a significant period of time has elapsed
between your current representation of a party before the
government and your official participation in it as a Federal
employee. The issue is whether the matter has changed significantly
enough that it is still the same matter.
B. 18 U.S.C. 207(a)(2) --Two-Year Restriction. You
may not knowingly represent any other person (except the U.S.)
before the Executive or Judicial Branches of the Federal
government, with the intent to influence the government in
a particular matter involving specific parties which you knew
or should have known was actually pending under
your official responsibility within a period
of one year before the date of the termination of
your Federal employment.
- Representation and Particular
matter involving specific parties.
- Actually pending under your official responsibilities means
that the matter actually was received by FCIC, was a matter
over which you had responsibility, and was available for
action during your last year of Federal service.
- See first three application notes
under 207(a)(1), above.
- Unlike section 207(a)(1), above, if the
matter is under your official responsibility, a recusal does
not preclude application of this provision.
- This often is the "supervisory" bar. The provision contemplates
managers and superiors whose offices and organizations have
the matter for action, even if they do nothing on the matter
during the former employee's last year of Federal service.
C. 18 U.S.C. 207(c)
-- One-Year Senior "Cooling Off" Restriction. A
former USDA Senior Employee,
may not knowingly represent any other party before the Department in
connection with any matter on
which the former employee seeks official action by the
Department for a period of one year after
that employee's official service in such position ends.
- Senior Employee means FCIC
- Terminated service
prior to 11/23/2003.
- All Executive
Level (EL) officials.
- Senior Executive
Service employees at pay levels ES 5 and 6.
- Terminated service
between 11/23/2003 and 01/10/2004.
- Any Federal employee
who, as of 11/23/2003, was paid at the above
- Terminated on
or after 01/10/2004.
- All Executive
Level (EL) officials.
- All employees
paid at a rate of basic pay that exceeds 86.5
percent of the rate of basic pay for Level
II of the Executive Schedule (ES II). This
effectively includes all employees who, under
the former SES pay scheme, would have been
paid at SES levels ES 2-6, as well as all SES
employees in San Francisco.
- Any matter includes
all matters under consideration by USDA. This would include
not only particular matters, whether or not specific parties
are involved, but also matters of broad general legislation
and policy-making. It also applies across USDA, not just
to matters involving FCIC, RMA, or FFAS.
- As FCIC Board Members are
compensated at levels below 86.5% of base pay for level
II of the Executive Schedule, this provision applies only
to FCIC Officers paid above that level.
one-year bar does not apply to the following:
- Acts done in carrying out
official duties on behalf of the U.S. as a State or local
government elected official;
- Representation, aid or advice
to an international organization in which the U.S. participates;
- Testimony unless it would
- Representation by a candidate
for elected office.
D. 18 U.S.C. 207(f).--
One-Year Senior Foreign Entity Restriction. A Senior
Employee, for a period of one year after
terminating such official service, also may not represent,
aid or advise a foreign entity before
any officer of any agency or
department of the United States with the intent to influence
such officer in the performance of their official duty.
- Senior Employee. See
- Foreign entity means
a foreign government, corporation, or political party.
- Unlike 207(c), this statute
- Unlike the other post-employment
statutes, in addition to representation, the statute prohibits "behind
the scenes" efforts in support of representations.
E. 41 U.S.C. 423 --
One-Year Restriction on Procurement Matters. If
you played a significant role in a Federal procurement
action worth more than $10 million during the last year
of your Federal service, you may be precluded from receiving
any form of compensation from the winning bidder for
a period of one year from your last involvement in that
procurement. Please contact the Office of Ethics for
guidance on any procurement exceeding $10 million.
- This provision would
probably only apply to the Chief Economist and the Deputy
Manager for FCIC. It would not apply to FCIC Board Members.
- A former Board
member who was a member during renegotiation of
the Standard Reinsurance Agreement (SRA) and participated
in meetings during which renegotiation progress and strategy
were discussed, could represent his company before the
Government concerning the SRA because the SRA, while
a particular matter, does not involve specific parties;
the same result would hold true, under the same facts,
for an FCIC
Officer who was not a "Senior employee;" however
an FCIC Officer who was a Senior Employee could not represent
another before the Government on the SRA for one year
after leaving his Senior Employee position because the
1-year bar under 18 U.S.C. 207(c) covers all matters
before USDA. After the 1-year bar expires, however, the
FCIC Officer could then represent another on the SRA.
- A former Board
member who was a member during consideration of
an application from a non-profit association for an award
under the Commodity Partnerships Program and who participated
in the consideration of the application but recused himself
from the final decision, would be barred under 18 U.S.C.
207(a)(1) from ever representing any party before the
Government concerning that application. The application
is a particular matter involving specific parties and
the former member participated personally and substantially
in that matter. Had he recused himself from any participation
in the consideration of the application, he would still
be barred from such representation, but only for 2 years
under 18 U.S.C. 207(a)(2) if the matter still was pending
before the Board during his last year as a Board Member.
The same result would hold true for all FCIC Officers.
- A former FCIC
Board Member would be able to represent a trade
association before the Deputy Administrator of the Food
Safety Inspection Service on matters that did not relate
to her official duties on the FCIC Board; however, an FCIC Officer who was a Senior
Employee could not do so for a period of one year after
leaving such position.
- A former FCIC
Officer who would otherwise be barred from representing
another before the Federal Government could be paid for
her services in assisting a party in who is challenging
an award made by the FCIC Board on which she participated
while a Board Member so long as she remained completely
behind the scenes (e.g., did not attend any meetings,
sign any documents for submission to the Government,
or contact a Federal officer or employee in support of
V. OTHER ETHICAL CONCERNS
A. Gifts From Outside Sources. 5 CFR 2635.201-205.
General: You may not solicit or accept gifts directly
or indirectly from anyone either (1) given because of your
official position; or (2) given by a prohibited
- Prohibited source means anyone
who (1) seeks official action from USDA; (2) does business
or seeks to do business with USDA; (3) conducts activities
regulated by USDA; (4) has interests that you could affect
in your official capacity; and (5) any organization with
a majority of members who meet the above descriptions.
- Gifts include any tangible or
intangible item, favor, gratuity, loan or forbearance, discount,
entertainment, hospitality, travel, or travel-related expense
obtained for less than market value.
- As with Bribes, this prohibition applies whether you are
on or off duty.
Exceptions: Below are brief synopses
of the various exclusions to this rule. If you have questions,
contact the Mission Area Ethics Advisor for FFAS or the Office
- Gifts of $20 or less,
- Gifts based on a personal relationship;
- Discounts to all Federal employees;
- Bona fide awards and honorary degrees;
- Gifts based on outside business or employment relationships;
- Gifts in connection with political activities under the
Hatch Act Reform Amendments;
- Free attendance at an event where you are speaking in official
- Free attendance at widely-attended gatherings of interest
to the Agency.
"PRUDENCE RULE": Even where
a gift may be accepted, if there are matters coming
before FCIC, or that reasonably could come before the
FCIC, that involve the donor, or if there are other
factors that would appear questionable in the eyes
of the public [e.g., donor is in litigation with USDA,
or participation has been suspended for cause], the
employee should exercise prudence and either decline
the gift, or pay market value for the gift.
- Gifts of $20 or
less. If a prohibited source offers to take
you to lunch, you may accept the free lunch if it is
worth $20 or less; if more than $20, you must pay the
full price of the meal or decline the offer. Also,
if the meal is worth less than $20, but acceptance
of this meal would mean that you have accepted more
than $50 in gifts from this source within the year,
you either must pay the full price of the meal, or
- Gifts based on
a personal relationship. If your brother is
in the crop insurance business and has interests that
are affected by FCIC, if he comes to town and offers
to take you to lunch, you can accept no matter what
the value of the meal is. However, with gifts from
close friends and relatives:
- The gift must be
from (i.e., paid for by) the friend or relative;
NOT by his or her company.
- If there are specific
matters before FCIC, consider the "Prudence Rule," above.
- Gifts based on outside
business or employment relationships. If you receive
free tickets to a ball game from a partner or client
of your outside business, or from your spouse's employer
irrespective of the value, you may accept the tickets
IF it is clear that there is no likelihood that the gift
is being given to curry favor with you based upon your
position as FCIC Board member. Again, consider the "Prudence
B. Gifts Between Employees. 5 CFR 2635.301-304.
General: You may not:
- Give gifts to your official superior;
- Accept gifts from your subordinates;
- Solicit a contribution from another employee for a gift
to an official superior; either your supervisor or the other
- Coerce the offering of a gift.
- Official superior means your
immediate supervisor and other officials who can affect your
performance appraisal, awards, or job assignments.
- Non-cash items of $10 or less on an occasional basis;
- Refreshments shared in the office;
- Hospitality offered at home; and
- Gifts given on special infrequent occasions of either personal
significance (birth, weddings, etc.), or that terminate a
C. Misuse of Title, Position & Endorsements. 5
General: You may not use your official
position, title or authority on behalf of anyone other than
the public. See III.A., above, especially the last example.
- Official Title: Use of your official title
when representing the USDA is obviously expected. This may
be on written documents or in verbal introduction. However,
you may not use your USDA title where unrelated to your official
duties or for personal gain or the gain of anyone else.
- Endorsements: In your official
capacity, unless authorized by statute or regulation, you
may not endorse: the products or processes of manufacturers;
or the services of commercial firms for advertising publicity
or sales purposes.
- Nonpublic Information: You may
not: engage in a financial transaction using nonpublic information;
allow the improper use of nonpublic information to further
your interest or anyone else's interest; or make any unauthorized
disclosure of such information.
Nonpublic information means information gained through
Federal employment which has not been made available to the general public.
It includes agency plans, policies, reports, studies, financial plans, or
internal data protected by the Privacy Act or the Freedom of Information
- Agency Time and Property: You have
a duty to protect and conserve government time and property,
and use them economically and for official purposes. It is
not unusual for individuals in both the public and private
sector to monitor the activities of Federal employees. Public
perception is important.
D. Teaching, Speaking & Writing. 5 CFR 2635.807
General: As a Federal employee, you
may not accept compensation from any non-Federal source for
teaching, speaking, or writing that relates to your official
duties. Teaching, speaking or writing relates to your official
- The activity is undertaken as part of your official duties;
- The invitation to engage in the activity was extended primarily
because of your official position rather than your expertise
in the subject matter;
- The invitation or offer of compensation was extended by
someone with interests that may be affected substantially
by your official duties;
- The information conveyed through the activity drawn substantially
on nonpublic information obtained through your government
- In the case of an SES-N employee,
the subject of the activity deals in significant part with
the general subject matter area, industry, or economic
sector primarily affected by the programs and operations
of that employee's agency.
- SES-N FCIC Officers. FCIC
Officers who are SES-N employees must (1) receive specific
advance authority by the Designated Agency Ethics Official
(Deputy Assistant Secretary for Administration) before
receiving compensation for teaching; and (2) are subject
to outside earned income limitations found in 5 CFR part
2635, subpart C.
- FCIC Board Members. As
applied to SGEs, this prohibition is limited to the following
- If you have served or
are expected to serve more than 60 days during your
first year of an appointment, or during any subsequent
one year period of that appointment, the prohibition
applies to matters to which: (1) you are presently
assigned; or (2) you were assigned during the previous
one-year period if part of your current appointment;
- If you have not served
or are not expected to serve more than 60 days during
your first year of an appointment, or during any
subsequent one year period of that appointment, the
prohibition applies to particular matters (i.e.,
contract, claim, grant application) involving specific
parties in which you participated or are participating
personally and substantially (e.g., by advising,
recommending, or influencing a government decision).
Exceptions: This restriction does
not apply to:
- Accepting travel expenses;
- Communicating programs or general subject areas of the
- Teaching a regularly established course at an institution
of higher learning, an elementary or secondary school, or
a program sponsored and funded by the Federal, State, or
E. Fundraising. 5 CFR 2635.808.
General: You may engage in fundraising
in a personal capacity provided you do not solicit funds from
subordinates and from anyone you know having interests that
could be substantially affected by the performance or nonperformance
of your government duties. You must also avoid using your official
title or any authority associated with your government position
to further the fundraising effort. Generally, the only authorized
official participation in fundraising efforts is through the
Combined Federal Campaign.
F. Expert Witness Testimony. 5 CFR 2635.805.
General: Unless officially authorized,
you may not participate as an expert witness, with or without
compensation, other than on behalf of the U.S., in any proceeding
before a Federal court or agency in which the U.S. is a party
or has a direct and substantial interest where you participated
in the particular proceeding or in the particular matter that
is the subject of the proceeding as a Federal employee or SGE
[5 CFR § 2635.805(a)]. Also, if you were appointed by
the President, serve on a statutory commission, or expect to
serve more than 60 days in a period of 365 consecutive days,
you shall not serve as an expert witness, with or without compensation
in any proceeding in which USDA is a party or has a direct
and substantial interest in the matter [5 CFR § 2635.805(b)].
G. Partisan Political Activity. 5 CFR Part 734.
General: All Federal employees are
subject to rules limiting their ability to participate in partisan
- FCIC Officers may
participate in partisan politics to the extent permitted
based upon the nature of their Federal appointment. For
purposes of FCIC, there are three sets of limitations for
FCIC Employees: (1) PAS officers; (2) SES-C employees;
and (3) Others (including SES-N, Schedule C, and GS employees.
- PAS Officers. Both
Undersecretaries who sit on the FCIC Board are PAS
Officers. These officers have broad authority to
participate in partisan political activity and may
do so on official time and using Federal office spaces.
As with other Federal employees, however, they may
not run for partisan office, nor may they participate
in partisan fundraising efforts. Also, while they
may mix official and political travel, they must
ensure that public monies are not spent in order
to accomplish partisan political purposes. Moreover,
while they may engage in partisan political activity
on official time and in Federal work spaces, they
must avoid employing the services of non-PAS subordinates
in support of these efforts.
- SES-C Employees. The
USDA Chief Economist is the only SES-C serving as
either an FCIC Officer or Board Member. These employees
are highly restricted in terms of their ability to
participate in partisan political activities. Under
the rules, they may do the following, and only on
their personal time:
- Vote as individuals;
- Express opinions
on political subjects and candidates;
- Serve as candidates
for election in non-partisan elections;
- Participate in non-partisan "Get
Out the Vote" drives;
- Contribute money
to political organizations; and
- Attend, but not
be an active participant at, political events
- All Others. With
the Hatch Act Reform Amendments of 1993 (Amendments),
all other employees were accorded greater freedom
to participate in partisan political activities,
but only on their personal time. In addition to the
activities permitted to SES-C employees, employees
governed by the Amendments may engage such partisan
political activities as:
- Distributing campaign
- Making campaign
- Writing or signing
letters for publication soliciting votes;
- Registering voters
for a party;
- Driving voters
to the polls in partisan "get-out-to-vote" efforts;
- Acting for a political
party at a polling place;
- Organizing, managing,
or holding office in campaign organizations;
- Being active at
political rallies and meetings;
- Taking a prominent
part in primary meetings or caucuses;
- Serving as delegates
to party conventions;
- Initiating or
signing nominating petitions;
- Holding office
in partisan political clubs or parties.
However, as set forth previously, they may
not engage in partisan political
- On duty;
- On government-paid
- In any room or
building used in the conduct of government
- Wearing a uniform
or official insignia identifying the office
or position of the employee; or
- Using any vehicle
owned or leased by the government.
Moreover, they may not engage,
at any time, in the following:
- Partisan in political
fundraising (soliciting, accepting, or receiving
contributions), except in the context of a
Federal labor organization multi-candidate
political committee (seek further ethics advice
before engaging in this activity);
- Running for a
partisan political office;
- Soliciting or
discouraging the partisan activity by any person
who: (1) has any application pending before
USDA; or (2) is a subject or participant in
an ongoing audit, investigation, or enforcement
action being carried out by USDA; and
- Using official
authority or influence to interfere with or
affect the result of an election.
- FCIC Board Members are
bound by the Amendments; however, the rules only
apply to on the days (or portions of days)
on which they perform official duties on behalf of
- An FCIC
Officer generally could not run for a seat as
State Senator, even on her own personal time, nor could
she participate in fundraising efforts on behalf of another
for such seat; an FCIC
Board Member, however, could do both so long as
she does not engage in such activities, in any way, on
those days that she performs any amount of official duty
on behalf of, or related to, FCIC.
- An FCIC
Board Member who is in official travel status
could not participate in partisan political activity
at any time during the period of official travel, even
if all FCIC business has been completed.
- An FCIC
Officer or Board
Member could be appointed to
fill a public office normally filled through a partisan
election without violating the Hatch Reforms. Being appointed
to a post is not the same as seeking nomination or election.
However, the FCIC Officer or Board Member would have
to avoid conflicts and appearance (including representation)
issues flowing from such appointment; FCIC officers would
have to consider outside earned income limitations; and
both would have to follow agency rules concerning requesting
prior approval for outside employment.
VI. MISCELLANEOUS RESTRICTIONS AND OBLIGATIONS
A. Augmentation of Appropriated Funds
General. Unless specifically authorized
by statute, Federal employees may neither solicit, nor accept,
donations from private entities either to Federal entities
or for use in accomplishing Federal Agency programs [7 U.S.C. § 2269,
as implemented by DR 5200-1].
B. Emoluments Clause of the Constitution of the United
General. During your appointment you
may not accept any employment with a foreign government or
the political subdivision of a foreign government, including
a public university or commercial enterprise owned or operated
by a foreign government.
Exception. Foreign Gifts and Decorations Act (5
U.S.C. 7342). Under a statutory exception
to the Emoluments Clause, you may accept a gift with a
retail value of $285 or less from a foreign government
or an international organization. Gifts valued in excess
of $285 should be politely declined except in those instances
where your refusal would likely cause offense or embarrassment
or otherwise adversely affect the foreign relations of
the United States. In such instances these gifts may be
accepted on behalf of the United States and, upon acceptance,
become the property of the United States. This restriction
extends to your spouse and dependents. Exceptions to the
$285 threshold are gifts in the nature of educational scholarships
or medical treatment. Also, gifts of travel and related
expenses may be accepted when such travel takes place entirely
outside the United States.
C. 18 U.S.C. 219 - Foreign Agents
General. You may not act as an agent
of a foreign principal registered under the Foreign Agents
Registration Act unless USDA certifies that this employment
is in the national interest.
D. 18 U.S.C. 1913 -- Lobbying with Appropriated Funds
General. No employee may use appropriated
funds to lobby (contact) any member of Congress on matters
of a personal interest. For example, do not use government
resources to present matters of concern to any outside organization
of which you are a member or officer. Lobbying on matters of
official interest must be conducted through officially established
channels. This does not preclude you, on your own time and
at your own expense, from contacting your congressional representative
or Senator as a private citizen.
VII. FINANCIAL DISCLOSURE
- Non-Federal Board Members. Each non-Federal FCIC Board Member is required to submit a new entrant Executive Branch Confidential Financial Disclosure Report (OGE Form 450), within 30 days of appointment and annually, thereafter, with each reappointment. Non-Federal FCIC Board Members, as SGEs, must always complete the OGE Form 450, and are prohibited from using the OGE Optional Form 450-A, Confidential Certificate of No New Interests.
Federal Board Members and FCIC Officers. All FCIC Board Members who currently serve as Federal employees and all FCIC Officers already submit financial disclosure reports based upon the nature of their Federal appointments. No separate filing requirement is imposed based solely upon their status as FCIC officers. The reporting requirements are set forth below:
|FFAS Under Secretary
||OGE Form 278e
|Other Under Secretary
|USDA Chief Economist
|Four active producers who
are also policymakers
||OGE Form 450
|Person experienced in the
crop insurance business
||OGE Form 450
|Person experienced in reinsurance
or the regulation of insurance
||OGE Form 450
|President [Under Secretary, FFAS, see above.]
|Manager/CEO [RMA Administrator, see above.]
||OGE Form 278e
|Deputy Executive Secretary
||OGE Form 450
|Chief Financial Officer
||OGE Form 450
||OGE Form 278e
PAS officers and SES-N employees are subject to additional
outside earned income restrictions. Moreover, even where
within the 15% limitations, an SES-N would also be restricted
from accepting any income due to the fiduciary nature of
2Reference to a particular
governmental agency is for instructional purposes only and
would include all Executive Branch agencies or departments.
3The statute does not
apply to SGEs, or other officers or employees, who serve without