2012 Federal Employees Almanac
Chapter 10, Section 5: Office of Government Ethics
- By Almanac Staff
- February 19, 2012
The Office of Government Ethics (OGE) is an independent agency whose mission is to exercise leadership in the Executive Branch to prevent conflicts of interest on the part of government employees and to resolve conflicts that do occur. OGE can be contacted at: 1201 New York Ave. N.W., Suite 500, Washington, DC 20005-3917; phone (202) 482-9300, www.oge.gov.
In partnership with Executive Branch agencies and departments, OGE is responsible for fostering high ethical standards for employees and strengthening the public's confidence that the government's business is conducted with impartiality and integrity. Ethics standards are found in Executive Order 12731 of 1990, the Ethics in Government Act of 1978, and the Ethics Reform Act of 1989. In addition, the primary conflict of interest statutes that OGE provides advice on are 18 U.S.C. paragraphs 202, 203, 205, 207-209. These establish requirements for executive agency employees and officers on such matters as gift acceptance, prevention of misuse of government position for private gain, outside activities and income, preferential treatment and conflicting financial interests, travel reimbursement, proper use of government assets and information, and post-government employment restrictions.
Rules governing financial disclosure, conduct standards, outside activities, post-federal employment, conflict of interest and other ethical considerations for federal employees are at 5 CFR Parts 2634-2641.
General ethics booklets, pamphlets, and other informational materials are at www.usoge.gov.
The agency's responsibilities fall into six general areas:
Regulatory AuthorityOGE develops, promulgates, and reviews rules and regulations pertaining to employee conflicts of interest, post-employment restrictions, standards of ethical conduct, and public and confidential financial disclosure reports in the Executive Branch.
Financial Disclosure--OGE reviews Executive Branch public financial disclosure statements of presidential nominees subject to Senate confirmation to identify and help resolve all possible conflicts of interest under applicable laws and regulations. It also oversees the administration of Executive Branch blind trusts and issues certificates of divestiture.
Education and Training--OGE provides information on and promotes understanding of ethical standards in executive agencies. It provides ethics training on the standards of conduct, the conflict of interest laws, executive orders, and regulations to Executive Branch ethics officials.
Guidance and Interpretation--OGE prepares formal advisory opinions, informal letter advice, and policy memoranda on how to interpret and comply with conflict of interest, post-employment, standards of conduct and financial disclosure requirements in the Executive Branch. It consults with agency ethics officials in individual cases.
Monitoring and Enforcement--OGE monitors and reviews executive agency ethics programs, including financial disclosure systems, refers possible violations of conflict of interest laws to the Department of Justice, and advises on prosecutions and appeals. It also reviews possible administrative ethics violations and orders corrective action or recommends disciplinary action as appropriate.
Evaluation--OGE comments on proposed ethics-related legislation and evaluates the effectiveness of conflict of interest regulations and policies of other Executive Branch agencies.
Ethical Conduct Standards
Executive Order 12674 of 1989, modified by Executive Order 12731 of 1990, sets principles of ethical conduct for Executive Branch employees.
The main areas of coverage in ethical conduct standards, at 5 CFR Part 2635, include gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of position, and outside activities. Agencies may issue supplemental regulations, which first require OGE approval.
Employees also are subject to standards that preclude the acceptance of compensation for teaching, speaking, or writing on subject matter that relates to the employee's official duties. Additional restrictions, applicable only to senior non-career employees, prohibit the acceptance of compensation for engaging in specified outside activities. The same non-career employees are subject to a cap on the annual amount of outside income they may earn. (See 5 CFR Part 2636, Subpart C.)
Ethical Principles for Federal Employees
Executive Branch employees must adhere to the general principles of ethical conduct as well as specific ethical standards. The following is a list of the general principles that broadly define the obligations of public service:
- Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.
- Employees shall not hold financial interests that conflict with the conscientious performance of duty.
- Employees shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.
- An employee shall not, except pursuant to such reasonable exceptions as are provided by regulation, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
- Employees shall put forth honest effort in the performance of their duties.
- Employees shall make no unauthorized commitments or promises of any kind purporting to bind the government.
- Employees shall not use public office for private gain.
- Employees shall act impartially and not give preferential treatment to any private organization or individual.
- Employees shall protect and conserve federal property and shall not use it for other than authorized activities.
- Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.
- Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
- Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those--such as federal, state or local taxes--that are imposed by law.
- Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
- Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the standards of ethical conduct.
Gifts from Outside Sources
Executive Branch employees are subject to restrictions on the gifts that they may accept from sources outside the government. Generally they may not accept gifts that are given because of their official positions or that come from certain interested sources ("prohibited sources"). Prohibited sources include persons (or an organization made up of such persons) who:
- are seeking official action by, are doing business or seeking to do business with, or are regulated by the employee's agency; or
- have interests that may be substantially affected by performance or nonperformance of the employee's official duties.
In addition, an employee can never solicit or coerce the offering of a gift, or accept a gift in return for being influenced in the performance of an official act. Nor can an employee accept gifts so frequently that a reasonable person might think that the employee was using public office for private gain.
There are a number of exceptions to the ban on gifts from outside sources. These allow an employee to accept:
- a gift valued at $20 or less, provided that the total value of gifts from the same person is not more than $50 in a calendar year;
- a gift motivated solely by a family relationship or personal friendship;
- a gift based on an employee's or his spouse's outside business or employment relationships, including a gift customarily provided by a prospective employer as part of bona fide employment discussions;
- a gift provided in connection with certain political activities;
- gifts of free attendance at certain widely attended gatherings, provided that the agency has determined that attendance is in the interest of the agency;
- modest refreshments (such as coffee and donuts), greeting cards, plaques and other items of little intrinsic value; and
- discounts available to the public or to all government employees, rewards and prizes connected to competitions open to the general public.
There are other exceptions, including exceptions for awards and honorary degrees, attendance at certain social events, and meals, refreshments and entertainment in foreign countries. These exceptions are subject to some limitations on their use. For example, an employee can never solicit or coerce the offering of a gift. Nor can an employee use exceptions to accept gifts on such a frequent basis that a reasonable person would believe that the employee was using public office for private gain.
If an employee has received a gift that cannot be accepted, the employee may return the gift or pay its market value. If the gift is perishable (such as a fruit basket or flowers) and it is not practical to return it, the gift may, with approval, be given to charity or shared in the office.
See 5 CFR 2635.201-205.
Widely Attended Gatherings--There is an exception to the general ban on gift acceptance for free attendance at "widely attended gatherings" such as conferences. An agency designee must determine that the employee's attendance at the event "is in the interest of the agency because it will further agency programs and operations." A higher standard must be met if the donor has interests that may be substantially affected by the performance of the employee's official duties, or if the donor is an organization a majority of whose members have such interests. Further criteria must be met if the cost of the employee's attendance is provided by someone other than the sponsor of the event.
There also are limits on the kinds of benefits or items that an employee may accept under this provision. The exception permits a waiver of all or part of any attendance fee, as well as food, refreshments, entertainment, instruction and materials furnished to all attendees as an integral part of the event. The exception does not cover entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. Nor does the exception cover travel and lodging.
The employee generally must attend the event on personal time. However, an employee may be authorized to attend on excused absence or otherwise without charge to the employee's leave account. An employee may not coerce or solicit an offer of free attendance. Nor may an employee accept free attendance in return for being influenced in the performance of an official act, and employees may not accept gifts of free attendance from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using his public office for private gain.
Stricter policies apply to political appointees if such gatherings are sponsored by lobbying interests; rules proposed in 2011 would extend most of those additional restrictions to career federal employees.
See 5 CFR 2635.204(g)(2).
Free Attendance for Speakers--Employees may accept offers of free attendance on the day of an event when they are speaking or presenting information in an official capacity. The rationale is that the employee's participation in the event on that day is viewed as a customary and necessary part of his performance of the assignment and does not involve a gift to him or to the agency. This policy also applies to agency personnel whose presence at the event is essential to the speaker's participation at the event, such as members of security details, a representative of the agency's public affairs division, or an aide to assist with a presentation.
See 5 CFR 2635.204(g)(1).
Gifts of Travel--Gifts of transportation accepted in connection with official duties are considered to be accepted on behalf of the agency itself, rather than the employee, although the employee might be accepting and using the travel gift. One statutory authority, 31 U.S.C. 1353, authorizes Executive Branch agencies to accept travel gifts from nonfederal sources for employees to attend meetings and other similar functions, such as a speaking engagement, conference, or seminar that takes place away from an employee's official duty station. "Meeting" does not include a meeting to carry out an agency's statutory, regulatory, or other function essential to an agency's mission, or promotional vendor training or other meetings designed for marketing services to the government from nonfederal sources.
Travel gifts, including upgrades, accepted under this authority may never be solicited. Agencies also must analyze whether accepting the gift would create a conflict of interest.
Student Loan Reimbursements--The College Opportunity and Affordability Act, P.L. 110-315, 122 Stat. 3078 (2008), allows current and former students of institutions of higher education who go to work for the federal government to participate in such an institution's loan forbearance or repayment programs--commonly called loan repayment assistance programs--without violating 18 U.S.C. 209 (which generally prohibits a government employee from receiving and anyone other than the government from giving payment for performing government duties) or the gift rules if certain conditions are met. These conditions are: the payments may be made only from the government employee's institution of higher education; the program must be provided in accordance with an institution of higher education's written and published loan policy; and the institution's policy must have been in place before the employee ceased to be a student at the school. The exception became effective January 1, 2008.
Financial Disclosure Filers--Those subject to financial disclosure requirements (see below) must apply a stricter set of rules that govern which gifts of tickets they must report and how they must value them for reporting purposes. A filer must report each gift received that is worth $140 or more when the total value of all such gifts from one source is $350 or more in a calendar year.
Luxury Accommodations--The value of a gift of attendance in luxury accommodations such as a skybox or private suite is determined by adding the market value of the most expensive publicly available ticket to the event to the market value of the food, parking and other tangible benefits provided in connection with the gift of attendance. The various tangible benefits included in the gift of free admission to the event may not be treated as separate gifts for reporting purposes.
Disclosure Exception--Public Law 111-259 allows the head of an element of the intelligence community to delete certain information about the receipt and disposition of foreign gifts and decorations if release of the information would adversely affect intelligence sources or methods.
Gifts Between Employees
Executive Branch employees may not give a gift to an official superior nor can an employee accept a gift from another employee who receives less pay, except in certain circumstances. On an occasional basis, the following individual gifts to a supervisor are permitted:
- gifts other than cash that are valued at no more than $10;
- food and refreshments shared in the office;
- personal hospitality in the employee's home that is the same as that customarily provided to personal friends;
- gifts given in connection with the receipt of personal hospitality that is customary to the occasion; and
- transferred leave, provided that it is not to an immediate superior.
On certain special infrequent occasions a gift may be given that is appropriate to that occasion. These occasions include:
- events of personal significance such as marriage, illness or the birth or adoption of a child; or
- occasions that terminate the subordinate-official superior relationship such as retirement, resignation or transfer.
Employees may solicit or contribute, on a strictly voluntary basis, nominal amounts for a group gift to an official superior on a special infrequent occasion and occasionally for items such as food and refreshments to be shared among employees at the office.
See 5 CFR 2635.301-304.
Conflicting Financial Interests
An Executive Branch employee is prohibited by a federal criminal statute from participating personally and substantially in a particular government matter that will affect his own financial interests, as well as the financial interests of:
- his spouse or minor child;
- his general partner;
- an organization in which he serves as an officer, director, trustee, general partner or employee; and
- a person with whom he is negotiating for or has an arrangement concerning prospective employment.
Several kinds of financial interests are exempt from this prohibition. These include direct or imputed financial interests in securities that are worth $15,000 or less and financial interests in diversified mutual funds and unit investment trusts, regardless of their value.
Agencies may, by supplemental regulation, prohibit or restrict the holding of certain financial interests by all or a group of agency employees. A few agencies extend such restrictions to the employee's spouse and minor children.
There are a number of ways in which an employee may deal with a potential financial conflict of interest. These include recusals, waivers, divestiture, and use of trusts.
Waivers--Section 208(b) of Title 18 U.S.C. allows waivers of the prohibition against an employee from participating in a particular matter in which he has a personal or imputed financial interest. Waivers also are allowed in situations in which an employee's participation in a particular matter involving specific parties would not violate section 208, but would raise a question in the mind of a reasonable person about the employee's impartiality. When waivers are considered, an agency designee must review the facts and circumstances to determine whether to permit an employee to engage in conduct that otherwise would be prohibited or questionable. Such waivers must be granted before an employee engages in a potentially prohibited activity and must be based upon full disclosure of the financial interest involved and a specific agency determination that the employee's interest is not so substantial as to be likely to affect the integrity of the services that the government may expect. Waivers also are permitted for certain investments that track broad financial sectors and may be granted to employees who fulfill certain roles in nonprofit organizations in their official government capacities.
See 5 CFR 2635 and 2640.
Financial Disclosure Requirements
Public Reports--Certain senior officers and employees of the Executive Branch, including persons who are nominated by the President for positions requiring confirmation by the Senate, are required by law to file public financial disclosure reports (Standard Form 278) disclosing their financial interests as well as the interests of their spouse and minor children. Public filers must report:
- interests in property held in a trade or business or for investment or the production of income (real estate, stocks, bonds, securities, futures contracts, beneficial interests in trusts or estates, pensions and annuities, mutual funds, etc.) that meet reporting thresholds;
- earned income, retirement benefits, honoraria and any other non-investment income, gifts and reimbursements that meet reporting thresholds;
- liabilities (personal loans from certain family members, a mortgage on a personal residence, automobile, furniture and appliance loans, revolving charge accounts that do not exceed $10,000 at the close of the reporting period are excluded from reporting);
- agreements or arrangements with respect to future employment, leaves of absence and continuation of payments or benefits from a former employer; and
- outside positions as an officer, director, trustee, general partner, proprietor, employee, consultant, etc. of any organization (positions with religious, social, fraternal or political entities are excluded, as are solely honorary positions).
Confidential Reports--Certain executive branch employees whose duties involve the exercise of discretion in sensitive areas such as contracting, procurement, administration of grants and licenses, and regulating or auditing nonfederal entities are required to file confidential financial disclosure reports (OGE Form 450). This reporting system generally tracks the approach of the public disclosure system except that the reports are not available to the public.
See 5 CFR Part 2634.
Impartiality in Performing Official Duties
Executive Branch employees are required to consider whether their impartiality may be questioned whenever their involvement in a particular matter involving specific parties might affect certain personal and business relationships. A pending case, contract, grant, permit, license or loan are some examples of particular matters involving specific parties. A general rulemaking, on the other hand, is not.
If a particular matter involving specific parties would have an effect on the financial interest of a member of the employee's household, or if a person with whom the employee has a "covered relationship" is or represents a party to such a matter, then the employee must consider whether a reasonable person would question his impartiality in the matter. If the employee concludes that there would be an appearance problem, then the employee should not participate in the matter unless authorized by the agency.
An employee has a "covered relationship" with the following persons:
- a person with whom the employee has or seeks a business, contractual or other financial relationship;
- a person who is a member of the employee's household or is a relative with whom the employee has a close personal relationship;
- a person for whom the employee's spouse, parent or dependent child serves or seeks to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
- any person for whom the employee has within the last year served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
- any organization (other than a political party) in which the employee is an active participant.
An employee may have a concern that circumstances other than those expressly described in the regulation may raise a question regarding the employee's impartiality. In such a situation, the employee should follow certain procedures to determine whether or not participation in the particular matter would be appropriate.
If someone who is entering government service has received a special severance payment or other benefit in excess of $10,000 which his former employer does not make to other departing employees not entering into federal service, and if certain other factors are present, then the employee must be disqualified for two years from participating in any particular matter in which the former employer is a party or represents a party. The agency may waive or shorten the disqualification period.
See 5 CFR 2635.501-503.
Misuse of Position
Executive Branch employees must not use their public office for their own or another's private gain. Employees are not to use their position, title or any authority associated with their office to coerce or induce a benefit for themselves or others. Employees also are not to use or allow the improper use of nonpublic information to further a private interest, either their own or another's.
Employees may use government property only for authorized purposes. Government property includes office supplies, telephones, computers, copiers and any other property purchased with government funds. Also see Personal Use of Office Equipment in Chapter 8, Section 4.
Employees may not misuse official time. This includes the employee's own time as well as the time of a subordinate.
See 5 CFR 2635.701-705.
Employment References--Section 2635.702 of 5 CFR generally prohibits an employee from using his government position, title or authority in a manner that is designed to coerce or induce a benefit or to create a government endorsement or sanction for the private gain of a friend, relative or other person with whom the employee is associated in a nongovernmental capacity. Creating the appearance that these ethical standards have been violated also is prohibited.
OGE recognizes that employment contacts and recommendations are conventional business practices and are often unobjectionable. Nevertheless, Executive Branch employees are obligated to ensure that any contacts they make do not create the appearance of inappropriately using public office for private gain. In making such a determination, OGE considers factors including who initiated the employment contact, whether the employee has a relationship with the prospective employer independent of the federal workplace, whether the prospective employer is affected by the operations of the employee's agency, the nature of the relationship between the employee and the person on whose behalf he is making the contact, and whether the employee uses government resources to make the employment contact.
Outside Employment--An employee may not have outside employment or be involved in an outside activity that conflicts with the official duties of the employee's position. An activity conflicts with official duties if it is prohibited by statute or by the regulations of the employee's agency, or if the activity would require the employee to be disqualified from matters so central to the performance of the employee's official duties as to materially impair the employee's ability to carry out those duties.
All federal personnel are subject to 18 U.S.C. 208, which prohibits employees from participating personally and substantially in particular matters that have a direct and predictable effect on the employee's financial interest, and the financial interest of any employer. Employees should disqualify themselves from participating in an activity that would affect the outside employer, to avoid violating 18 U.S.C. 208.
Presidential appointees to full-time, non-career positions generally are prohibited from receiving outside earned income. Also, certain other non-career employees are subject to monetary limitations on the amount of outside income that they may earn.
Regulations at 5 CFR 2635.502 state that if an employee has a "covered relationship" with a business such as by way of outside employment, such an arrangement might create the appearance of a conflict of interest if the employee is working on a matter that could be perceived as affecting the outside employer. If so, the employee's supervisor may determine if the employee still may be authorized to participate in that matter in an official capacity.
Under Public Law 111-259, the Director of National Intelligence submits an annual report to the congressional intelligence committees detailing authorized instances of outside employment for intelligence officers and employees.
Fundraising--Employees may engage in fundraising in a personal capacity subject to several restrictions. An employee cannot solicit funds from subordinates. And an employee cannot solicit funds from persons who have interests that may be affected by the employee's agency such as those who are regulated by, seeking official action from, or doing business with the agency. Also an employee cannot use or permit the use of the employee's official title, position or authority to promote the fundraising effort.
Speaking and Writing--Under 5 CFR 2635.807 federal employees are prohibited from receiving compensation from any source other than the government for teaching, speaking, or writing that relates to official duties. Writing relates to an employee's official duties if the circumstances indicate that the invitation was extended primarily because of an employee's official position rather than the employee's expertise on the particular subject matter, or if the subject of the activity deals in significant part with any ongoing or announced policy, program or operation of the agency. This ban does not prohibit an employee from receiving compensation for teaching, speaking or writing on a subject within the employee's discipline or inherent area of expertise based on his or her educational background or experience even though the teaching, speaking or writing deals generally with a subject within the agency's areas of responsibility.
The application of ethics rules to book writing can depend on issues such as the category of employee, the subject of the book, the timing and type of compensation, the source of the compensation and its motivation. For example, a book may be deemed related to an employee's official duties based on its subject matter or based on who is providing the compensation and why. Prohibitions generally don't apply to compensation for books written before government service, or for writing--such as a book written on speculation with no agreement that the book will be published--where no compensation is received.
Restrictions apply even to uncompensated teaching, speaking, and writing. For example, an employee may include or permit the inclusion of his or her title or position as one of several biographical details in identifying information only if it is given no more prominence than other significant biographical details. However, the employee is not accountable for changes made by an editor or someone else outside the employee's control whose revisions result in undue prominence being given to the employee's title or official position, so long as the employee has complied with the requirement in good faith.
In addition, employees publishing in scientific or professional journals in their personal capacities may use their title or official position but also must include a disclaimer stating that the views expressed do not necessarily represent those of the employee's agency or the United States. Such disclaimers may be included as a matter of prudence in other types of writing. In both cases, OGE recognizes that an employee might not have the final decision as to what is ultimately published.
Witness Testimony--Rules at 5 CFR 2635.805 generally bar current employees from testifying as expert witness in a federal forum where the United States is a party or has a direct and substantial interest, and 18 U.S.C. 207(a)(1) & (j)(6) generally bars former employees from testifying as expert on same official matter in which they participated for the government. Not prohibited is fact testimony--testifying solely as to facts within witness's personal knowledge--or lay opinion testimony--opinions or inferences rationally based on witness's own perceptions and not based on scientific, technical, or other specialized knowledge. Disputes may arise over the nature of the planned testimony, however, so care must be exercised and agency ethics and legal counsel offices should be consulted. State proceedings are not covered by the prohibitions, although employees still must follow rules prohibiting use of public office for private gain.
Awards and Prizes--Rules at 5 CFR 2635.204(d) require that the agency ethics official approve, by written determination, any awards to personnel that exceed $200 in market value, and all awards in cash or investment interests.
Individual Agency Policies--Individual agencies have rules regarding outside activities. For example:
- Section 2-206 of DoD 5500.7-R, the Joint Ethics Regulation (JER), requires Department of Defense personnel who file a financial disclosure report (Standard Form 278 or OGE Form 450) to obtain approval from their supervisor before accepting honoraria or outside employment from a "prohibited source" (essentially someone doing or seeking to do business with DoD). Section 2-303 of the JER authorizes supervisors to require approval of the outside activity in advance.
- a National Institutes of Health policy (www.nih.gov/about/ethics_COI.htm) generally prohibits outside consulting by NIH staff with substantially affected organizations, such as pharmaceutical, biotechnology or medical device manufacturing companies, health care providers or insurers, and supported research institutions.
A compilation of individual agency policies is at www.usoge.gov -- select Laws and Regulations, then Agency Supplemental Regulations. Also contact your agency's ethics office.
Seeking Outside Employment
An Executive Branch employee may not participate in any particular government matter that will affect the financial interests of a person or entity with whom he is seeking employment (see 18 U.S.C. 208 and 5 CFR 2635.601-606). An employee is considered to be seeking employment if:
- the employee is engaged in actual negotiations for employment;
- a potential employer has contacted the employee about possible employment and the employee makes a response other than rejection; and
- the employee has contacted a prospective employer about possible employment (unless the sole purpose of the contact is to request a job application or if the person contacted is affected by the performance of the employee's duties only as part of an industry).
An employee is considered no longer seeking employment if:
- either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended; or
- two months have elapsed since the employee's dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer.
In some cases, an employee may be authorized by an agency official to participate in particular matters from which he would otherwise have to be disqualified due to his job search. In other cases, an agency ethics official may determine that an employee who has sought, but is no longer seeking, employment nevertheless shall be subject to a continuing period of disqualification.
If a search firm or other intermediary is involved, the employee is not disqualified unless the intermediary identifies the prospective employer to the employee.
Additional restrictions apply under the Procurement Integrity Act (see 5 CFR 2635.107 and 41 U.S.C.A. 2101-07) to employees involved in acquisition. In sum, once they have started seeking employment with a bidder or offeror, they may not take any official action in a procurement for $100,000 or more. Guidance for Defense Department employees under this act is at www.defenselink.mil/dodgc/defense_ethics--select "Ethics Resource Library," then "DoD Guidance."
Employees terminating government service are subject to the post-employment restrictions of 18 U.S.C. 207 as amended by the Ethics Reform Act of 1989. Provisions of Section 207, as amended, restrict former employees of the Executive Branch from making any communication to or appearance before an employee of the United States on behalf of any other person concerning a particular matter involving specific parties, for example, a particular contract, that was either under the former employee's official responsibility (two-year bar) or one in which the former employee had participated personally and substantially (lifetime bar). In general, Section 207 does not prohibit behind the scenes assistance to a new nongovernment employer, although former employees who participated in trade or treaty negotiations or who now seek to represent "foreign entities" face restrictions in this regard.
Some agencies require that departing or former employees file reports concerning their new employment if they are not going to another federal position for which public financial disclosure is required. If they have negotiated a job in the private sector, they must indicate that they have an agreement or arrangement with a private sector employer.
Additional Restrictions on'Senior' Employees--"Senior" employees--those whose basic pay rate is at or above 86.5 percent of the rate for Executive Schedule Level II--are subject to certain additional restrictions under 18 U.S.C. Section 207 after leaving such a position (see 5 CFR Part 2637 and 5 CFR Part 2641):
- For one year, they may not represent someone else, with the intent to influence, before their former agency regarding any official action (for purposes of this policy, some larger agencies are divided into components, meaning that an employee who left one component for another could not communicate back to the prior component on behalf of the new one); and may not aid, advise or represent a foreign government or foreign political party with intent to influence the U.S. government.
- For two years, they may not represent someone else to the government regarding particular matters that they did not work on personally, but were pending under their responsibility during their last year of government service.
- There is a lifetime ban against representing someone else to the government regarding particular matters that they worked on while in government service.
Further restrictions apply to former "very senior" employees, which include Cabinet secretaries, the Vice President and very high-level White House staff. A two-year "cooling off period" applies to them during which they are prohibited from representing anyone other than the United States before any department or agency in which they served and before certain high level Executive Branch officials, under P.L. 110-81. The same restriction applies to former Senators; a one-year period applies to former House members.
Other Statutes--Other statutes impose post-employment restrictions in addition to those of Section 207. For example, the "procurement integrity" provisions of 41 U.S.C. 423 (implemented in the Federal Acquisition Regulation) contain additional post-employment restrictions (as well as restrictions on activities before leaving government; see above) for certain former government officials--for example, restrictions for one year after a certain designated date on accepting compensation from the concerned contractor on a contract above $10 million on which the individual performed certain services while a government employee. These provisions also prohibit the release of contractor bid or proposal information and source selection information. A booklet titled Ethics & Procurement Integrity: What You Need to Know as a Federal Employee Involved in the Procurement and Acquisition Process is at www.usoge.gov--select Education, then Education Resources for Federal Employees.
Similarly, under 18 U.S.C. Section 203, former "senior" employees may not accept compensation for representational services that were provided by anyone while they were a government employee, before a federal agency or court regarding particular matters in which the government was a party or had a substantial interest. This prohibition may affect personnel who leave the government and share in the proceeds of a partnership or business for representational services that occurred before the employee terminated federal service, such as through lobbying, consulting, and legal representation.
Public Law 110-181, Section 847, requires that a Defense Department official who has participated personally and substantially in a DoD acquisition exceeding $10 million, or who has held a key acquisition position, must obtain a written opinion from a DoD ethics counselor regarding the activities that the official may undertake on behalf of a DoD contractor within two years after leaving DoD service. In addition, Section 847 prohibits a DoD contractor from providing compensation to such a DoD official without first determining that the official has received or appropriately requested a post-employment ethics opinion. Implementing rules are at 48 CFR Parts 203, 209, and 252.
In addition, there are agency-specific statutes that restrict the post-employment activities of their former employees. A compilation of individual agency policies is at www.usoge.gov -- select Laws and Regulations, then Agency Supplemental Regulations. Also contact your agency's ethics office.
Representation of Private Interests
Executive Branch employees are subject to criminal statutes that prohibit the representation of private interests before the government. One of these laws prohibits an employee from prosecuting a claim against the United States or acting as the agent or attorney of a private party before the government in connection with a particular matter in which the United States is a party or has a direct and substantial interest. This prohibition applies whether or not the employee receives compensation for the representation.
There is an exception that allows an employee to represent, with or without compensation, the employee (self-representation), a parent, spouse or child of the employee, or a person or estate that the employee serves as a guardian, executor, administrator, trustee or personal fiduciary.
The matter involved may not be one in which the employee participated personally and substantially or which was the subject of the employee's official responsibility. Also the employee must obtain approval for the activity from the employee's appointing official.
An employee may represent employee non-profit organizations (such as child care centers, recreational associations, professional organizations, credit unions or other similar groups) before the government under certain circumstances. The employee may not be compensated. And the employee may not represent an employee group in claims against the government, in seeking grants, contracts or cash from the government, or in litigation where the group is a party.
An employee also may represent a person who is the subject of disciplinary, loyalty, or personnel administration proceedings.
Another law governing representational activity prohibits an employee from accepting compensation for certain representational services before the government whether those services were provided by the employee personally or by some other person. There are exceptions that allow for the representation of a parent, spouse, child or person served in a fiduciary capacity.
See 18 U.S.C. 205, 203.
Supplementation of Salary
Executive Branch employees may not be paid by someone other than the United States for doing their government job. Thus, for example, a highly paid executive of a corporation upon entering government service could not accept an offer from her former employer to make up the difference between her government salary and the compensation she received from her former employer.
This prohibition does not apply to:
- special government employees and employees serving without compensation;
- funds contributed out of the treasury of any state, county, or municipality;
- continued participation in a bona fide pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan maintained by a former employer;
- payments for travel, subsistence and other expenses made to an employee by a tax-exempt non-profit organization incurred in connection with training; or
- moving expenses incurred in connection with participation in an executive exchange or fellowship program in an executive agency.
See 18 U.S.C. 209.
Ethics Pledge for Appointees
Executive Order 13490 of 2009 requires every full-time, political appointee appointed on or after January 20, 2009, to sign an ethics pledge upon becoming an appointee regardless of whether they are appointed by the President, the Vice President, an agency head, or otherwise. Unlike certain other ethical requirements, the pledge requirement applies without regard to the salary level of the political appointee. Individuals appointed to a career position are not required to sign the pledge.
Generally, appointees subject to the pledge must commit to:
- not accept gifts or gratuities from registered lobbyists or lobbying organizations (with limited exceptions); and
- recuse themselves for two years from any particular matter involving specific parties in which a former employer or client is or represents a party, if the appointee served that employer or client during the two years prior to the appointment.
An appointee who was a registered lobbyist during the prior two years must additionally recuse, for two years after appointment, from any particular matter on which he or she lobbied during the two years prior to appointment or any particular matter that falls within the same specific issue area, and not seek or accept employment with an agency or department that he or she lobbied during the prior two years.
An appointee subject to the senior employee post-employment restriction in 18 U.S.C. 207(c) must agree to: abide by such restrictions for two years after termination of the appointment; not lobby any covered Executive Branch official as described in the Lobbying Disclosure Act or any non-career SES appointee during the present Presidential administration; and pledge that any hiring or other employment decisions will be based on the candidate's qualifications, competence and experience.
The order provides for enforcement of the pledge through civil action by the Justice Department and agency debarment proceedings against former appointees found to have violated the pledge. It also outlines agency responsibilities and allows for waivers in limited circumstances.
Each agency is required to appoint a designated agency ethics official to coordinate and manage the agency's ethics program. Employees should first contact their agency ethics official with questions concerning the standards of conduct, conflicts of interest, financial disclosure, or agency-specific requirements, or to obtain copies of relevant laws. They may also seek advice by calling or writing to the Office of Government Ethics at Suite 500, 1201 New York Ave. N.W., Washington, DC 20005-3917, phone (202) 208-9300. OGE's Web site at www.oge.gov contains various executive orders, statutes, and regulations that form the basis for the Executive Branch ethics program, as well as ethics advisory opinions, letters that interpret ethics materials, downloadable forms, and electronically fileable versions of some forms.