An Ethics Guide for Special Government Employees of the
U.S. Department of Agriculture
- Gifts From Outside Sources
- Gifts Between Employees
- Impartiality in Performing Official Duties
- Seeking Non-Federal Employment
- Use of Agency Title or Position and Endorsements
- Nonpublic Information
- Agency Time and Property
- Non-Federal Teaching, Speaking, or Writing
- Expert Witness Testimony
- Augmentation of Appropriated Funds
- Emoluments Clause of the Constitution of the United States
- Foreign Gifts and Decorations Act (5 USC 7342)
- Foreign Agents (18 USC 219)
- Lobbying with Appropriated Funds (18 USC Section 1913)
- Political Activity - Hatch Act (5 USC 7321-7326)
I. Title 18 of the United States Code, Sections 201-208 II. Standards of Ethical Conduct for Employees of the Executive Branch
USDA Office of Ethics
AN ETHICS GUIDE FOR SPECIAL GOVERNMENT EMPLOYEES
OF THE U.S. DEPARTMENT OF AGRICULTURE
Routinely, the U.S. Department of Agriculture (USDA) hires experts, consultants and advisors for specific projects from the private sector under a special Government employee (SGE) appointment.
These individuals are appointed to perform temporary duties, with or without compensation, for no more than 130 days during any period of 365 consecutive days. Although there is some supervision, SGEs generally work in an unstructured environment.
SGE appointees, as other employees holding positions of authority, must be sensitive to certain ethics rules and related laws. Overall, ethics rules are often complex and require analysis in applying them to specific situations. This guide offers a synopsis of those rules in three separate parts.
- Title 18 of the United States Code, Sections 201-2091;
- Standards of Ethical Conduct for Employees of the Executive Branch; and
- Miscellaneous Restrictions.
Additionally, the USDA Office of Ethics is available to provide advice and to discuss application of this material.
Generally, any employee who provides all the facts to an Ethics Advisor and follows the advice given will avoid an ethics violation. Moreover, the Office of Ethics in consultation with the Office of Government Ethics, has authority to grant waivers in some circumstances where a conflict of interest is evident.
Each SGE's commitment to upholding these rules is essential to ensure the propriety and integrity of the Federal government. Please don't hesitate to call us on (202) 720-2251 with any questions you may have.
I. Title 18 of the United States Code, Sections 201-208
All employees of the Executive Branch of the Federal government are required to comply with the mandates of Title 18 of the United States Code. Violations carry heavy criminal and civil penalties including fines and/or imprisonment. Below is a synopsis of these restrictions pertinent to your appointment.
Section 201 - Bribery of Public Officials and Witnesses
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.
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.
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.
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 party before the Executive or Judicial Branches of the Federal government regarding the following matters of interest to the Federal government:
(1) Any particular matter involving a specific party or parties (e.g., a contract, loan, grant, claim, litigation, etc.) in which you participated personally and substantially while a Federal employee; or
(2) 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 general policies, programs, and initiatives) pending before USDA (including any agency, office, or component thereof).
Exceptions: You may however:
- Represent yourself, and, under certain circumstances, represent your parents, spouse, child, or person/estate for whom you are serving as personal fiduciary (with your appointing official's approval).
- 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.
- Give testimony under oath.
Section 205 - Activities of Officers and Employees in Claims Against and Other Matters Affecting the Government
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, or
- representing another before the Executive or Judicial Branches of the Federal government regarding:
(1) Any particular matter involving a specific party or parties (e.g., a contract, loan, grant, claim, litigation, etc.) in which you participated personally and substantially while a Federal employee; or
(2)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 general policies, programs, and initiatives) pending before USDA (including any agency, office, or component thereof).
Exceptions: In addition to the exceptions listed under Section 203, above, you also may represent another before the government under the following circumstances:
- Where not inconsistent with one's official duties, and without compensation, you may represent one who is subject to disciplinary, loyalty, or other personnel administrative proceedings; and
- To the extent permitted under 5 C.F.R Part 251, you may represent an organization comprised primarily of Federal employees in certain dealings with the agency concerning employment issues.
Financial Conflicts of Interest
Section 208 - Acts Affecting a Personal Financial Interest
During your appointment, you may not personally and substantially participate (i.e., recommend, influence, or decide) in official matters in which: you; 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 such a situation should arise, immediately call the Office of Ethics. A waiver is sometimes possible.
NOTE: A specific waiver is available for SGEs serving on advisory boards.
Section 207 - Restrictions on Former Officers, Employees and Elected Officials of the Executive and Legislative Branches
With the completion of your SGE appointment, you will be required to comply with certain post-employment prohibitions that primarily deal with non-Federal representation. These prohibitions follow.
Permanent Restriction. 18 U.S.C. 207(a)(1).
You may not knowingly represent any other person (other than the U.S.) [communicate with (orally or in writing), or appear] 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 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.)
Two-Year Restriction. 18 U.S.C. 207(a)(2).
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 under your official responsibility within a period of one year before the date of the termination of your Federal employment. (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.)
One-Year Restriction on Use of Nonpublic Information Concerning Ongoing Trade or Treaty Negotiations. 18 U.S.C. 207(b).
If you participated personally and substantially in certain ongoing trade or treaty negotiations within one year of terminating your Federal service and had access to nonpublic information concerning such negotiations, then, for a period of one year after your termination, you may not represent, aid or advise anyone with regard to that negotiation based upon such nonpublic information.
One-Year Restriction on Certain Senior Personnel of the Executive Branch and Independent Agencies. 18 U.S.C. 207(c).
If you were a "Senior Employee," as defined below:
- 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.
...and worked 60 or more days during the preceding 365-day period, you may not knowingly represent yourself or any other party before the Department in connection with any matter on which you seek official action by the Department for a period of one year after your official service in such position ends. Special exceptions exist for: (1) representing state and local governments, hospitals, colleges, and organizations; (2) making statements of special knowledge; and (3) conveying scientific and technical information.
One-Year Restriction Relating to Senior Employees Representing, Aiding or Advising Foreign Entities. 18 U.S.C. 207(f).
If you were paid at or above the level of Executive Schedule Level V, for a period of one year after terminating such official service, you 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.
Procurement Integrity Act: 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.
II. Standards of Ethical Conduct for Employees of the Executive Branch
The Standards of Ethical Conduct for Employees of the Executive Branch (Standards) contain a collection of ethics rules and regulations for Federal employees. As with Title 18, certain prohibitions within the Standards are less structured for SGEs. A synopsis of those prohibitions applicable to you follows.
Gifts From Outside Sources
Overall, you may not solicit or accept "gifts" given directly or indirectly from licensees, applicants, contractors, anyone seeking business with USDA (this includes any agency, office, or component thereof), anyone with interests that you could affect in your official capacity, or an organization with a majority of members who meet the above description. These entities are called "prohibited sources." Also, you may not accept gifts that are given because of your agency position.
"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.
Many exceptions and exclusions to this general rule apply. If you are offered, or have been given, a personal gift by a prohibited source, call the Office of Ethics.
Gifts Between Employees
You may not give gifts to your "official superior."
An "official superior" is your immediate supervisor and other officials who can affect your performance appraisal, awards, or job assignments.
Exceptions include: 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 supervisor/subordinate relationship.
You may not solicit a contribution from another employee for a gift to an official superior; either your supervisor or the other employee's.
You may not coerce the offering of a gift.
Impartiality in Performing Official Duties
Unless a waiver is granted, you are prohibited from participating in any particular agency matter involving specific parties which you know is likely to have a direct and predictable effect on the financial interests of a member of your household or other "covered relationship" if a reasonable person would question your impartiality. (This is not a criminal prohibition, but expands on the prohibitions on "Conflicts of Financial Interest," 18 U.S.C. 208.)
Other "covered relationships" include:
- 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; or
- any organization, other than a political party, in which you are an active participant (e.g. committee chair, fundraiser, adviser, manager, etc.).
Seeking Non-Federal Employment
You must disqualify yourself from participating in any particular agency matter, including rulemaking and other general matters, that will have a direct and predictable effect on the financial interest of a person with whom you are seeking or negotiating for employment, or have any arrangement for future employment, unless you receive a waiver. (This is prohibited under "Financial Conflicts of Interest," 18 U.S.C. 208).
Use of Agency Title or Position and Endorsements
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 for personal gain or the gain of anyone else.
You must avoid taking any action in your official capacity that may result in or create the appearance of: using public office for private gain (the term private gain means anyone's private gain, including an outside organization's); losing independence or impartiality; or causing the public to lose confidence in the integrity of the government.
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.
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 Act.
When you leave Federal employment, you may not take nonpublic agency documents with you or use nonpublic information in grant applications or contract bids (including agency records you wrote or reviewed that have not been released to the public). The agency requests that you neither communicate nonpublic information to others after termination of service nor use nonpublic information in grant applications or contract bids submitted to the agency.
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.
Non-Federal Teaching, Speaking, or Writing
During your SGE appointment you may not accept compensation from any source other than the government for teaching, speaking, or writing that relates to your official duties.
Teaching, speaking or writing relates to your official duties if:
- The activity is undertanken 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; or
- The information conveyed through the activity drawn substantially on nonpublic information obtained through your government service.
However, as applied to SGEs, this prohibition is limited to the following conditions:
- 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) were assigned during the previous one-year period if part of your current appointment; or
- 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).
Special note: This restriction does not apply to:
- accepting travel expenses;
- communicating programs or general subject areas of the USDA; or
- 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 local government.
You may engage in fundraising in a personal capacity (i.e., on your own time and not on government property) 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.
Expert Witness Testimony
Unless officially authorized, as an SGE, 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)].
III. Miscellaneous Restrictions and Obligations
Below is a synopsis of some additional regulations addressing restrictions for SGEs. Following the synopsis on foreign employment are guidelines for lobbying activities and political activity.
Augmentation of Appropriated Funds
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 USC § 2269, as implemented by DR 5200-1].
Emoluments Clause of the Constitution of the United States
During your SGE 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.
The ban does not apply to a foreign privately-owned corporation or an international organization.
Foreign Gifts and Decorations Act (5 U.S.C. 7342)
You may accept a gift with a retail value of $305 or less from a foreign government or an international organization. Gifts valued in excess of $305 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 $305 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.
Foreign Agents (18 U.S.C. 219)
Lobbying with Appropriated Funds (18 U.S.C. Section 1913)
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.
Political Activity - Hatch Act (5 U.S.C. 7321-7326)
SGEs are bound by the same rules as regular Federal employees; however, the following rules only apply to SGEs on the days they serve as SGEs on behalf of the Agency:
Engaging in political activity while:
- on duty;
- on government-paid travel;
- in any room or building occupied in the conduct of government business;
- wearing a uniform or official insignia identifying the office or position of the employee; or
- using any vehicle owned or leased by the government.
Using official authority or influence to interfere with or affect the result of an election.
Knowingly soliciting, accepting, or receiving political campaign contributions from ANY person, unless that person is a member of the same labor organization; not a subordinate employee; and the solicitation is for a contribution to the multi-candidate political committee of the labor organization.
Running for a partisan political office.
Soliciting or discouraging the political activity of any person who: (1) has any application pending before the Department; or (2) is a subject or participant in an ongoing audit, investigation, or enforcement action being carried out by the Department.
Campaigning, on a partisan basis, for or against partisan candidates or issues by:
- Distributing campaign literature.
- Making campaign speeches.
- Writing or signing letters for publication soliciting votes.
- Registering voters.
- Driving voters to the polls in "get-out-to-vote" efforts.
- Acting for a political party at a polling place.
- Organizing, managing, or holding office in campaign organizations.
- Attending or 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.
- Voting as individuals.
- Expressing opinion on political subjects and candidates.
- Serving as candidates for election in nonpartisan elections.
- Serving as nonpartisan candidates for election in partisan campaigns in political subdivisions designated by the Office of Personnel Management.
- Contributing money to political organizations.
- Attending (but not hosting) political fundraising functions.
Financial disclosure is a process created to facilitate the review of possible conflicts of interest and to assist agencies in counseling employees. You will be asked to disclose via one of two reporting systems. Your servicing ethics advisor will determine the appropriate system based on the number of days you are expected to work and the amount of compensation you are expected to receive. Forms available for this process include the:
Executive Branch Public Financial Disclosure Report, SF 278
Executive Branch Confidential Financial Disclosure Report, Form OGE 450
For both the SF 278 and the Form OGE 450, regulation requires that you submit a completed new entrant report to your reviewing ethics advisor within 30 days of taking office and annually thereafter. Additionally, submission of a termination report is required by SGEs who meet criteria for public disclosure.
Special Note for SGEs who serve on advisory committees: A disclosure report must be submitted prior to giving any advice, or no later than the first committee meeting.
As you can see, ethics rules are often complex and require some analysis in applying them to specific situations. As communicated in our introduction, please donít hesitate to call us on (202) 720-2251 with any question you may have.
1 While the Federal Conflict of Interest Statutes also include 18 U.S.C. 209, we note that the provision of that statute does not apply to SGEs.