An employee may engage in outside activities that require the use of inherent
expertise provided his/her work does not create a real or an apparent conflict
of interest by interfering with officially assigned duties. On October 2, 2000, the Department of Agriculture published a final
rule in the Federal Register that requires all employees who file a public
or confidential financial disclosure report to seek and obtain
prior approval to engage in outside employment and activities. The requirement does not prevent
employees from seeking outside employment, but helps to prevent employees
from avoiding conflicts of interest.
An employee seeking to engage in employment for which advance approval
is required must submit form OE-101, Application for Approval to Engage in
Non-Federal Employment or Activity, to their supervisor
within a reasonable time before the employee proposes to begin the employment.
Upon a significant change in the nature of the outside employment or in the
employee's official position, the employee must submit a revised request for
approval. Prior approval/concurrence must be received by the immediate supervisor
and Ethics Advisor. The OE-101 can be found on our Forms page.
For purposes of outside positions, "employment" means any form of
non-Federal employment or business relationship or activity involving the provision
of personal services by the employee for direct, indirect, or deferred compensation
other than reimbursement of actual and necessary expenses. It also includes, irrespective
of compensation, the following outside activities:
- Providing personal services as a consultant or professional, including
service as an expert witness or as an attorney; and
- Providing personal services to a for-profit entity as an officer, director,
employee, agent, attorney, consultant, contractor, general partner, or trustee,
which involves decision making or policymaking for the non-Federal entity,
or the provision of advice or counsel.
Approval of form OE-101 does not relieve the employee of the obligation to abide
by all applicable laws governing employee conduct nor does approval constitute
a sanction of any violation. Approval involves an assessment that the general
activity as described on the submission does not appear likely to violate any
criminal statutes or other ethics rules. Employees are reminded that during
the course of an otherwise approved activity, situations may arise, or actions
may be contemplated, that, nevertheless, pose ethical concerns.
When you work for a company, organization, or other employer outside your government
job, your relationship with that outside employer has certain legal and ethical
consequences. The approval of an outside activity does not mean that you are
free of conflicts of interest. You must still follow all substantive ethics
requirements after approval is granted.
Employees considering outside employment should carefully review the provisions
of 5 C.F.R. Part 2635 - Standards of Ethical Conduct for Employees of the Executive
Branch; specifically 5 C.F.R. 2635.802, Conflicting Outside Employment and
Activities and USDA Ethics Issuance 00-1, Participation in Non-Federal Organizations.
The following provides only general criteria for the consideration of potential
conflicts between official duties and outside activities:
- Activities Must Not Be Related to Official Duties: An employee may
not receive compensation for outside activities that relate to his/her official
duties and responsibilities as a USDA employee. An activity is considered
related if it is performed as part of official duties or the employee was
invited to perform the activity primarily because of the employee's official
- Teaching, speaking or writing activities are considered to be related to
the employee's official duties if the activity is undertaken as part of the
employee's official duties; the circumstances indicate that the invitation
to engage in the activity was extended to the employee primarily because
of their official position rather than inherent expertise on a particular
subject matter; the invitation to engage in the activity or the offer of
compensation for the activity was extended to the employee, directly or indirectly,
by a person who has interests that may be affected substantially by performance
or nonperformance of the employee's official duties; information conveyed
through the activity draws substantially on ideas or official data that are
nonpublic information; or the activity deals with any matter to which the
employee is presently assigned or to which the employee had been assigned
during the previous one-year period; or the activity deals with any ongoing or announced policy, program or operation of the USDA.
Exception: An employee may teach a course, with or
without compensation, on subjects within the employee's discipline
or inherent area of expertise based on his/her educational
background or experience even though the teaching, speaking
or writing deals generally with a subject within the agency's
areas of responsibility.
- Compensation: If no conflict is apparent, an employee may receive
compensation for his/her work with outside organizations. Compensation may
be in the form of money, stocks, or any other financial instruments that
have a monetary value. Compensation also includes travel expenses, whether
provided in-kind or reimbursed. An employee may also perform work for an
outside organization without pay. There is no limitation on the amount of
compensation the career employee can receive. Non-career employees should
contact their Agency/Area Ethics Advisor to determine if they are subject
- Compensation From Federal Agencies: A USDA employee may not accept
compensation for service of any kind that is funded by a USDA contract, grant,
cooperative agreement, or other USDA mechanism. Compensation is also prohibited
for assisting or preparing a grant application or other document intended
for submission to the USDA. Compensation for any kind of unrelated work performed
for and paid directly by another Federal agency may be accepted unless prohibited
by either the Dual Compensation Clause (5 U.S.C. Section 5533) or the Federal
Acquisition Regulations. Compensation from a Federal grant or contract may
be accepted for unrelated work performed for a non-USDA organization provided
that: (a) the services performed do not involve legal representation, accounting
services or public relations services; and (b) the source of the funding
is not USDA.
- Use of Personal Time: Generally, an employee must conduct all outside
activities on his/her personal time. If outside work is to be performed during
an employee's standard tour of duty, the employee must be on approved leave,
leave without pay, credit hours, or compensatory time and not be present
at his/her duty station. There is no limit on the number of hours an employee
can devote to outside activities except when time spent on outside activities
interferes with the performance of an employee's official duties.
Many non-Federal organizations schedule internal business or administrative
meetings of the organization in conjunction with their conferences and seminars.
This often occurs in relation to scientific and professional associations.
Agencies often send their professional employees, at government expense and
as part of their official duties, to attend and/or to participate in such
conferences or seminars. A USDA employee may attend the business meeting
of the organization in his or her personal capacity, provided that such attendance
occurs outside normal work hours and incurs no incremental travel costs to
the government. For example, the business meeting may be held in the evening.
Alternatively, the business meeting may be scheduled for the day before or
the day after the conference, in which case management may approve annual
or administrative leave for the day in question. In these instances the employee
would be expected to cover his or her own lodging and subsistence for that
extra day at the conference site.
- Use of Government Resources: An employee normally may not use government
resources (e.g., equipment, services, supplies or staff) in the performance
of outside activities. There are some instances where minimal use of government
resources may be permitted (REE Policy & Procedure 253.4, Use of Information
- Use of USDA Space: An employee may not normally use federal facility
meeting rooms for outside activities. Occasionally, activities may be authorized
if they are a part of a USDA event that has been approved for the use of
USDA space. However, exceptions will be approved only if it is determined
that the activities will meet the mission objectives of USDA.
- Use of Official Titles: Both the employee and an outside organization
are prohibited from referencing the title of an employee in connection with
any outside activity or employment except as follows: An employee may include
or permit the inclusion of his/her title or position as one of several biographical
details when such information is used to introduce and identify the employee
with the outside activity, provided the title or position is given no more
prominence than other significant biographical details. An employee may NOT
be listed in the written program using title and official affiliation. If
employees see an improper listing, it is advised that they notify the organization
in writing and reference appropriate ethics regulations (contact your Area/Agency
Ethics Advisor for assistance). This will help protect the employee and avoid
any future conflicts. In addition, when giving oral presentations, employees
should inform their audience that they are speaking in a personal capacity
and the opinions expressed are their own and do not represent the views of
USDA. When a title or position is used in connection with articles published
in a scientific or professional journal, or other publication where the topics
relate to research, the title or position may be used but must be accompanied
by a reasonably prominent disclaimer that the views expressed in the articles
do not necessarily represent the views of USDA.
- Use of Information on Current and Ongoing Agency Research: In the
context of an outside activity, only information that is in the public domain
may be used and that information must not derive from work an employee has
done within the last year. An employee may provide information on previous
work (i.e., performed prior to the last 12-month period) which has been publicly
disclosed, provided such information does not deal in significant part with
ongoing research, programs, or policies. The employee may also provide information
that is based on his/her general scientific or professional knowledge and
expertise and not derived specifically from his/her employment within a USDA
- Advance Approval Required: All outside activities must be requested
and approved in advance by an employee's supervisor with concurrence from
an Agency/Area Ethics Advisor if the USDA employee is subject to submission
of a public or confidential financial disclosure report. However, personal
activities which are not covered by the USDA outside employment/activity
definition do not require submission of form OE-101 nor approval for participation.
- Participation in the Business Affairs of Outside Organizations: An
employee may participate in the internal and external business operations
of an outside organization as an outside activity in their personal capacity,
if no conflict is apparent; including involvement in the human resources,
financial or fund-raising activities to the extent permitted by these organizations.
Such involvement usually occurs when an employee serves as an officer or
member of a Board of Directors of an outside organization. However, such
service requires that the employee disqualify him/herself from taking official
actions that involve the outside organization if the organization has any
official dealings involving the employee in their official capacity. This
type of arrangement may not be possible based on the officially assigned
duties of an employee and must be examined on an individual basis.
In a personal capacity, a Federal employee may serve in a managerial/fiduciary
or employment role (officer, director, trustee, general partner or employee)
with a non-Federal organization. However, a Federal employee who serves in
such a role subjects himself or herself to potential criminal penalties should
he or she take official action on matters involving the non-Federal organization.
If you serve as a fiduciary or an employee in a non-Federal organization,
then you are considered, for purposes of 18 U.S.C. § 208, to possess
the financial interests of the organization. Under these circumstances, it
should be remembered that USDA may not pay for travel, expenses, official
time, supplies, and equipment use that is for conducting the administrative
purposes of the organization, as that could convert the participation from
personal to official. For specific guidance, review USDA Ethics Issuance
00-1, Participation in Non-Federal Organizations.
- Other Considerations Associated With Working for an Outside Organization: There
is no limit on the amount of money an employee may earn from outside work
activities, nor on the amount of time an employee can spend performing outside
activities. However, outside activities may not interfere or impair the ability
of an employee to perform his/her officially assigned Government duties.
Approval to engage in outside work activities will be denied or withdrawn
if the activities conflict or interfere with the performance of the employee's
duties at USDA.
- Activities With Foreign Entities: There are some issues to keep
in mind when considering an activity with a foreign entity. Generally, an
employee of the Federal Government may not accept employment, gifts or compensation
from any foreign government, including any entity that is owned or operated
by the foreign government, which may include public research institutions
or universities. This prohibition is found in the "Emoluments Clause" of
the U.S. Constitution. The Constitution specifically states that "with
the consent of Congress" certain activities, gifts and honors are permissible.
Congress' consent is found in the Foreign Gifts and Decorations Act (FGDA),
which permits gifts up to the minimal value.
The FGDA also permits official travel, lodging and meal expenses when it
occurs totally outside of the United States. Outside activities with privately
funded foreign universities and other non-government foreign entities may
be permitted with prior approval, check with your Area/Agency Ethics Advisor
regarding the applicability of the Emoluments Clause.
This information is to be used as a general guide, contact your Agency/Area Ethics Advisor for specific information.