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). 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 in a managerial/fiduciary role:
Officer, including but not limited to: President and Vice President; Chief Officers (Executive; Administrative; Operations; Information; Finance); Secretary; Treasurer; Counsel; Director, or member of a board of directors; Trustee; General partner; or Employee.
For additional information on serving on boards of a non-Federal organization, see Board Membership
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 an employee 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.
If a non-Federal organization is so closely involved with the Agency that a continuing but distinct presence in an environment free of conflict is warranted, the respective Agency may assign the employee to serve in his or her official capacity in an advisory, liaison or consultative role to the non-Federal organization.
Employees may choose to serve an organization in their personal capacity. However, personal participation means that an employee’s participation in the organization is not derived from their Federal position, title or authority; does not entail official positions or policies of USDA; does not occur on official time; and does not involve the expenditure of appropriated funds. An employee who serves in a managerial/fiduciary role with a non-Federal organization in their personal capacity is required to avoid conducting official USDA work on a particular matter in which that non-Federal organization is a party or has an interest (5C.F.R.2635 Subparts D & E). Consider the following when making a decision to serve in a personal capacity...participation in an outside organization may be considered “official” when the employee was invited to participate primarily based on their official position and duties; personal capacity would likely be prohibited.
Questions concerning potential statutory violations should be addressed to your Ethics Advisor.
The fact that the prohibition is based on a Department of Justice ruling, basically means there is little point in entertaining debate on the issue. There are, however, some elements of practical reality that are worth mentioning:
1. Leading national professional organizations is only one among a plethora of activities cited as evidence of scientific stature in the Research Grade Evaluation Guide (RGEG), and is clearly not a “make-or-break” grading criterion.
2. A high percentage of ARS researchers are nonsupervisory GS-15's, and even the supervisors got there via the RGEG (not based on their supervisory responsibilities). Obviously they don't all hold managerial/fiduciary positions with outside organizations.
3. RGEG Factor 4 criteria assess a wide variety of possible contributions and activities. A scientist receives maximum Factor 4 credit by virtue of extensive scientific contributions and peer recognition, not by business acumen in running or helping run a society.
4. Serving as an officer in an outside organization has never been a "make-or-break" fact in deciding a panel’s decision (UPG vs RIG). Panels just don't focus on managerial/fiduciary (or even society) roles... or they do so only after assessing Demonstrated Accomplishments and other forms of recognition.
5. There have been instances where panels chided scientists for neglecting their personal research by over involvement in society activity.
Bottom line--there is no validity to the argument that holding managerial/fiduciary positions in outside organizations is essential for promotion under the RGEG.