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Ethics Training2009

JASON B. SMITH

ADMINISTRATIVE LAW ATTORNEY

FORT BELVOIR, VAPhone number: (703) 805-5013

E-mail address: jason.bowers.smith@us.army.mil

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Got Ethics Questions?

Contact your ethics counselor

before you act.

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Why Ethics Rules?

• Ensure we perform our mission with public interest in mind.

• Uphold public’s confidence in integrity of Government.

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Applicable Law And Regulations

• Code of Ethics – 14 Principles

• Standards of Ethical Conduct for Executive Branch Employees 5 C.F.R. Part 2635

• The Joint Ethics Regulation (JER), DoD 5500.7-R

• 18 United States Code Sections 203, 207, 208

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Discussion Topics• What forms the Ethics Rules and the Code of

Ethics – 14 Principles• Use of Communications Equipment• Use of Government Property• Use of Official Position• Official and Personal Participation in Private

Organizations• Seeking Employment Outside the Government• Post-Government Employment

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Code of Ethics

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I. Employees’ Responsibilities under Executive Order 12674 (as amended):

DO• Place loyalty to the Constitution, the laws, and ethical principles

above private gain.• Act impartially to all groups, persons, and organizations.• Give an honest effort in the performance of your duties.• Protect and conserve Federal property.• Disclose fraud, waste, and abuse, and corruption to appropriate

authorities.• Fulfill in good faith your obligations as citizens, and pay your

Federal, State, and local taxes. • Comply with all laws providing equal opportunity to all persons,

regardless of their race, color, religion.

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I. Employees’ Responsibilities under Executive Order 12674 (as amended) (cont):

DO NOT• Use nonpublic information to benefit yourself or anyone

else.• Solicit or accept gifts from persons or parties that do

business with or seek official action from DOD (unless permitted by an exception).

• Make unauthorized commitments or promises that bind the government.

• Use Federal property for unauthorized purposes.• Take jobs or hold financial interests that conflict with your

government responsibilities.• Take actions that appear illegal or unethical.

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Use Of Government Communications Equipment

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Ethics Principles

• Public service is a public trust (#1)• Duty to protect and conserve

Government property (#9)• Government resources may only be

used for authorized purposes (#9)

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Official And Authorized Use Only

• Official and Authorized Use only

• Telephones• Fax Machines• Computers• E-mail• Internet

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Official Use• Communications that are necessary in

the interest of Government• Emergency communications• Morale and welfare communications

(extended deployments)

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Authorized Use• Personal communications from office

- Does not adversely affect official duties - Reasonable duration and frequency - Legitimate public interest - Does not reflect adversely on DOD - Does not overburden communications

system - Creates no significant additional cost• Brief calls home while TDY (transportation and

schedule changes)

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Cell Phones

• Official Use• Limited Authorized Use Permissible

• AR 25-1 (15 Jul 05)• Land Line Phone Must Not Be

Available

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E-mail And Internet• Official Use• Authorized Use

- Brief internet searches

- E-mailing directions to visiting relatives

- Scheduling doctor or home repair appointments

• Authorized use may not interfere with official duties or undermine readiness

• May not overburden communications system

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No No’s!• Pornography or obscene material• Copyright infringement (such as the sharing of

copyright material by means of peer-to-peer software)

• Gambling• Unofficial advertising, soliciting, or selling

except on authorized bulletin boards established for such use

• Chain letters• Inappropriately handled classified information

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Beware!

Also, check local command policy.

It can be more restrictive than the JER or AR 25-1 or AR 25-2.

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Use Of Other Government Equipment

• Use other Federal Government equipment and property only for official purposes or authorized purposes as approved by your supervisor.

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Use Of Official Time

• Rule: Use official time in an honest effort to perform official duties. Remember: Your time is a Government Resource!

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Use Of Personnel

• Rule: Do not ask subordinates to perform tasks outside their official duties.

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Use of Government ResourcesSCENARIO: You have a Government travel card, which

normally you use only when you are on official travel. On Sunday, however, your daughter calls from college to tell you that she needs a new laptop because her old one was destroyed when she jumped into the mosh pit. (She refuses to give you any further details.) You quickly purchase a new one on-line for $900, but since your credit card is at home, you use your Government travel card, knowing you will pay the bill when you get it.

QUESTION: Since this is no cost to the Government, it is ok, right?

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Possible Answers

2. No, it is not ok, but don’t worry because the Inspector General will not investigate any expenditure under $1000.

3. No, the travel card may not be used for any personal expenses.

1. It is ok as long as you pay the travel card bill on time. The Department will never know. Actually, it’s a benefit to the Department since it reaps the "points" from use of the travel card.

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Correct Answer

#3. The travel card may be used only for travel-related expenses while you are performing official travel.

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Use of Your Official PositionSCENARIO: You are in charge of the Tri-Service

Interoperability Task Force. The Task Force includes personnel from all three Military Departments, as well as DoD civilian employees. You believe that Task Force personnel would be effective if they joined the Association of the U.S. Army (AUSA),a nonfederal organization that frequently deals with topics of interest to the Task Force. To join, employees would have to sign up in their personal capacities and pay membership fees. You assign a member of your staff to distribute AUSA flyers to the Task Force and to give you periodic reports on who has joined.

QUESTION: Have you done anything wrong?

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Possible Answers1. Yes. Although membership in AUSA by Task Force

personnel would help it to accomplish its mission, requiring periodic reports on who had become an AUSA member suggests that you are coercing Task Force personnel to join AUSA.

2. Yes. Although membership in AUSA by Task Force personnel would help it to accomplish its mission, asking your staff to distribute AUSA flyers to the Task Force and to give you periodic reports on who had become an AUSA member suggests that you are coercing your staff to join AUSA.

3. No. There is an exception for using your official position to promote the activities of nonfederal entities when it helps accomplish the mission.

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Correct Answer

#2. Asking your staff to distribute AUSA flyers to the Task Force and asking for periodic reports on who on the Task Force had become an AUSA member are both violations of the prohibition on using your official position to promote the activities of nonfederal entities (in this case, AUSA’s efforts to increase its membership).

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SCENARIO: You volunteer for Help the Teachers, a nonprofit civic group that provides counseling to public school teachers to help them cope with the stresses of their profession. The group will distribute flyers to advertise its upcoming fundraising dinner. The fundraising chairman proposes to include your name as a volunteer on some of the flyers, describe your contribution, and refer to your Government position (Deputy Director, Zero Emission Fuels Development, U.S. Office of Stealth Transportation).

QUESTION: May you consent to the use of your Government title on the flyers?

Use of Your Official Position

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Possible Answers1. Yes. Help the Teachers is a nonprofit organization in

the service of a worthy cause. Although the general rule is that you may not use your official position to promote the activities of nonfederal entities, there is an exception for nonprofit entities that serve a worthy cause, since the purpose of Government is to promote the general welfare of the people.

2. No. The general rule is that you may not use your official position to promote the activities of nonfederal entities. There are no exceptions.

3. No. The general rule is that you may not use your official position to promote nonfederal entities. There are exceptions, but none that apply here.

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Correct Answer#3. There are a

few, very narrow exceptions to the rule against using your official position to promote the activities of nonfederal entities, but none apply to Help the Teachers.

Exceptions:1. Combined Federal Campaign2. Military Relief Societies3. Emergency and disaster appeals approved by Office of Personnel Management.4. Organizations composed primarily of agency employees or their dependents, under certain circumstances

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Use of Your Official Position

SCENARIO: As the Recreation Officer at Fort Morly, you are responsible for all recreational facilities on post. A local private school asks permission to use the post basketball court for a championship game. You would like to say "yes.” Such use would be in the Department’s community relations interests - but you know that if you approve their request, it will encourage other youth and civic groups in the community to request use of the athletic facilities -- and you will be unable to accommodate all their requests.

QUESTION: What should you tell the private school?

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Possible Answers1. Yes, it may use the basketball court. Supporting the private

school’s championship game would meet two of the three criteria for approval, in that it would not interfere with the performance of official duties and would be in the Department’s community relations interests. As long as a majority of the criteria are satisfied, and the end result benefits the Department, you may approve the use of the court.

2. No, it may not use the basketball court. You know that you will be unable to accommodate requests for support for comparable events of other similar youth and civic groups.

3. No, it may not use the basketball court. The private school charges a substantial tuition and is open only to those students who can pay it. Public funding may not be used for the benefit of private groups.

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Correct Answer#2. You may only support

the private school’s championship game if the support meets all three of the criteria in the general rule. Here, one of the criteria is not met because you will be unable to accommodate other requests for support for comparable events of other similar youth and civic groups.

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Official And Personal Participation In Private

Organizations

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Ethics Principles

• No preferential treatment for any Non-Federal Entity (NFE) (#8)

• Do not misuse public office for private gain (#7)

• Government resources may be used only for authorized purposes (#9)

• Avoid conflicts of interest (#2)

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AR 210-22

• AR 210-22, Private Organizations on Department of the Army Installations – Outlines Army policy– Dictates the procedures to establish – Lists authorized activities– Lists prohibited activities

• Consult the JER for authorized support

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Official Participation In POs Or NFEs

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Attendance In An Official Capacity

A supervisor (officer or employee above GS-11) may permit DOD employees to attend meetings, conferences, seminars sponsored by private organizations if there is a legitimate Government purpose.

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Providing Speakers & Panel Members

A Commander or head of an Army organization may provide DOD employees in their official capacities to speak at private organization events.– But, there are seven factors that need to be

weighed and the fee charged for those to attend must be reasonable.

– Contact your ethics counselor.

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Official ManagementProhibited

• General rule: You may not participate in the management of a private organization as part of your official duties.

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Official Management

Army employees, to include Soldiers, may participate in the management of a non-Federal entity in an official capacity only if authorization is received from the Secretary of the Army and the DOD General Counsel.

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Official Endorsements

Endorsement of a private organization event, product, service may not be stated or implied by Soldiers or DA civilians in their official capacities.

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Exceptions to Endorsements• Exceptions:

– CFC – AER – Disaster Appeals approved by OPM, and– Organizations consisting of Army/DoD

employees/dependents when conducting internal fundraising for informal funds when approved by the Commander

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Personal Participation In Private Organizations

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Personal Participation• Soldiers and Army civilians may join,

participate in, or hold office in POs or NFEs in their personal capacities

• When participating in POs or NFEs, Soldiers and Army civilians must act exclusively outside the scope of their official positions

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Personal Participation

• Soldiers and Army civilians may not use official titles/positions/organization names in connection with private organization or NFE activities

• Exception: A Soldier may use his/her grade and military department as part of his/her name (e.g., Major Smith, U.S. Army). But, cannot use title or position to induce or coerce others to join

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You Make the Call!

A Soldier has been asked by his college to serve on the Alumni Association.

Is this permissible?

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Answer

• He may serve in his personal capacity.

• But, he may not allow his position, duty address, or duty phone number be used on the college letterhead or other promotional literature.

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You Make the Call!

COL Hoohah is a member of an organization called “Support Your Army.” “Support Your Army” wants to use the post auditorium for a presentation. COL Hoohah decides to submit the request using his official position (Chief of Staff) and rank.

Is this permissible?

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Answer

Inducement or coercion of benefits.

An employee, to include all Soldiers, shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.

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• Membership or position in a PO may not be accepted if it was offered because of an employee’s official position

No Membership Or Position If Offered Due To Official Position

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No Solicitation

• Army personnel may not solicit subordinates or prohibited sources (e.g. contractors) in PO fundraising campaigns or membership drives

• Army personnel may not permit the use of their names in a PO solicitation that targets subordinates or prohibited sources

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• An employee who is an officer, director, or employee of a private organization may not participate in official DOD matters involving the organization.

• Employees may not represent a private organization to the Government.

• Exception: uncompensated representation for certain nonprofit professional, recreational, and similar organizations.

Conflicts Of InterestProhibited

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Seeking Employment

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Applicable Law• Procurement Integrity Act

• 18 U.S.C. Section 208

• Joint Ethics Regulation

• Standards of Ethical Conduct for Executive Branch Employees

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Seeking EmploymentProcurement Integrity Act

• Participating personally and substantially• Competitive procurement• Valued in excess of simplified threshold

(currently $100,000)• You contact or are contacted by a bidder

or offeror in the procurement

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PIA Requirements (continued)

• Promptly report the contact in writing to:– Your supervisor and– Ethics Counselor

And• Reject the offer, or• Disqualify yourself from further

involvement in the procurement

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Seeking EmploymentConflicts of Interest

• You may not take any official action that affects a company with which you are negotiating for employment or have an arrangement concerning prospective employment

• JER 5-301 applies to National Guard and enlisted personnel

18 U.S.C. § 2085 C.F.R. § 2635.402

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“Seeking Employment”

• 5 C.F.R.2635.603(b)• You are “seeking employment” when

you:– engage in negotiations– make unsolicited employment contact

• includes sending resume• excludes requesting job application

– respond to unsolicited proposal (except unconditional rejection)

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Termination of Seeking Employment

You are no longer “seeking employment” when:– either party rejects proposal and

discussions have terminated, OR

– two months have passed after mailing resume and no response

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Disqualification

To avoid violation:– Take no action– Written notice to

supervisor (JER 2-204)– Supervisor response:

• Written • Recusal • Copy to Ethics Counselor &

subordinates

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Seeking EmploymentOutside the Government

SCENARIO: Until 13 months ago, you were in charge of a maintenance program supported by a $30 million contract for helicopter blades from the Whirly Company.

You now have different responsibilities and are no longer involved with any matters that affect the Whirly Co.

QUESTION: The President of the Whirly Co. is interested in hiring you now.

What may you tell him?

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Possible Answers

1. "Thanks, I’m definitely interested in the job. Please tell me all about it." 

2. "Thanks, but I have to say ‘no.’ Since I was the program manager for a program that involved a large contract with your company, the Procurement Integrity Act will bar me for life from working for your company."

3. "Thanks, but as long as I’m working in any job in the Government, the ethics rules don’t allow me to seek employment with anybody doing business with our agency."

 

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Correct Answer

The first answer is the correct one. It follows from the general rule. You are not performing Government duties that affect the financial interests of the Whirly Co., so, under the general rule, you may seek employment with the company.

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Post-Government Employment Restrictions

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Post-Government Employment Restrictions

Representational Restrictions18 U.S.C. § 207

Prohibits representing another before U.S. Government with intent to influence

– Lifetime ban– 2-year ban– 2-year cooling-off period for senior employees– 2-year ban on senior employees representing

foreign entities

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Lifetime Ban

• 18 U.S.C. § 207(a)(1)• May not:

– Communicate/appear on behalf of another – With “intent to influence”– Regarding a “particular matter”– Involving specific parties– Where participated “personally and

substantially” as Federal employee– Behind-the-scenes assistance permitted

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Definitions• “Particular matter” -- includes a judicial or other

proceeding, application, request for a ruling or other determination, contract, claim, controversy, or investigation. Generally, does not include rulemaking, formulation of general policy, standards or objectives, or other matters of general application.

• “Intent to influence” -- seeking some discretionary action, ruling, benefit, or approval. Does not include purely social contacts or requesting publicly available information.

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Definitions(continued)

• Participate “personally and substantially” -- to participate directly and significantly by decision, approval, recommendation, rendering of advice or investigation. Includes actions of a subordinate if actually directed by the former employee.

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2-Year Ban

• 18 U.S.C. § 207(a)(2). May not, within 2 years of termination of Government service– Communicate/appear on behalf of another– With “intent to influence”– Regarding a “particular matter”– Involving specific parties– Under “official responsibility” during last year of

Government service

• Behind-the-scenes assistance permitted

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Definitions

“Official responsibility” -- direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action.

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Post-Government ServiceSCENARIO: Your last job with the

Government was providing oversight of the "We Want You" program, a joint service program to improve military recruiting in high schools. A contractor, Military Recruiting Enterprises, Inc. (MRE), supports the program by providing pamphlets describing the advantages of joining the armed forces. One of your responsibilities was to compose and design the text of the pamphlets.

QUESTION: If employed by MRE, may you contact the military recruiters on behalf of MRE to ask what they want included in the pamphlets?

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Possible Answers1. Yes. You would not be involved in any sales or marketing.

Therefore, you won’t be communicating with recruiters with the intent to influence them. Since you are familiar with the pamphlet, you’d be able to answer any questions they might have, saving time and effort.  

2. Yes. While it’s true the contract for the pamphlets supplied by MRE was a "particular matter," while you were in the Government, you did not have any procurement responsibilities for the contract. Therefore, you may communicate with recruiters on behalf of MRE regarding that particular contract, even if you do have intent to influence.  

3. No. The contract for the pamphlets supplied by MRE is a "particular matter.” Your last Government job included work on the pamphlet contract and the design and composition of the text. In your new position with MRE, you may not ask military recruiters what they want included on the pamphlets.

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Correct Answer# 3. Your responsibilities for the "We Want You"

program included designing and composing the text of the pamphlets. You performed work on the contract (and thus, the particular matter). Even though you would be working on a new and supposedly different pamphlet, the contract is the same one, and so it’s the same particular matter. Also, if you contact your old colleagues, they may continue to treat you as a colleague and not as a contractor, thereby giving you preferential treatment. Therefore, you should not communicate to or appear before the military recruiters on behalf of MRE.

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Restrictions On Military Personnel

• Employment with and/or compensation from foreign government– Must get approval

from Service Secretary• No civil office while on

transition (formerly terminal) leave

• Permissive TDY issues

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Conclusion

No matter what the ethics issue may be, if you’re not sure what to do, check with your ethics counselor in advance.

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Questions