Ethics for HSRB Special Government Employees

Dan FortEthics Officer

EPA Office of General Counsel

What is an SGE?

Temporary service (not to exceed 130 days) Recruited primarily for expertise NOT

representation Advisory committee members, individual

experts or consultants Ethics laws and regulations apply (regardless

of compensation)

Day Counting Has implications for many ethics

regulations Counted: Any day in when work for the

Government is performed. Even one hour is counted as a day

Not counted: any brief or non-substantive activities on uncompensated days (brief communications or administrative matters)

The Bottom Line SGEs ARE Government employees for

purposes of the conflict of interest laws and ethics rules.

SGEs are NOT representative committee members or Government contractors.

SGEs are subject to somewhat less restrictive ethics laws and regulations than other Government employees. (Representative committee members and contractors are not Government employees and are not covered by the federal ethics laws and regulations.)

Financial Disclosure

Public service is a public trust. We all must uphold the highest ethical

standards. Private interests must not conflict with

public duties To ensure integrity of operations, financial

disclosure information is collected from Government employees and reviewed

You are required to take annual ethics training

Public or Confidential?

SGEs must file either a public or confidential financial disclosure report:

Public Reporting: If you work (or are expected to work) more than 60 days in a calendar year AND are paid at least the equivalent of $57.28/hour (current for CY 2012), you must file a public financial disclosure form (OGE-278)

Confidential Reporting: Any SGE not required to file a public financial disclosure report must file a confidential financial disclosure report (EPA Form 3110-48)

After You File…

Report is reviewed for completeness and any ethics issues

Each report reviewed again before each new particular matter

You may be asked for additional information

Conflicts of Interest 18 U.S.C. §208: No employee may participate in any

particular Government matter that will have a direct and predictable effect on their financial interests.

Includes financial interests of others with whom they have certain relationships. These relationships are:

Spouse Minor child General partner Organization in which the individual serves as officer,

director, trustee, general partner or employee Person or organization with which the employee is

negotiating or has an arrangement concerning prospective employment.

This is a criminal statute!

Conflicts of Interest:Particular Matter

Definition: Deliberations, decisions, or actions that are focused upon the interests of specific persons or entities or an identifiable class of persons or entities. The Government interprets this term broadly.

Not broad policy options or considerations directed toward the interest of a large and diverse group of people

May involve specific parties (e.g., a contract, grant or case in litigation)

May be of general applicability (focused on the interests of a discrete and identifiable class of persons, such as an industry)

Conflicts of Interest:Direct & Predictable

Must be a direct and predictable effect on your financial interests (e.g., you own stock).

Must be a close causal link between your SGE work and your financial interest. Can’t be “speculative” or dependent on events that are independent of and unrelated to your SGE work.

Not necessary to know the magnitude of the loss/gain, and the dollar amount is immaterial

Important Exception for FACA Committee Members

You may participate in particular matters of general applicability where your disqualifying financial interest arises from your non-Federal employment or prospective employment.

Exception is subject to several important limitations:

Can’t have a "special or distinct effect" on either you or your employer, other than as part of a class

Doesn’t cover interests arising from the ownership of financial interests in the employer or prospective employer (e.g., stock)

Your employment must involve an actual employee/employer relationship as opposed to an independent contractor (such as certain consulting positions).

Appearance Issues

Not criminal like conflict of interest under 18 U.S.C. 208

Covered relationships outside the Government might lead to questions of whether you have an appearance of a loss of impartiality

EPA may determine that the interest of the Government in your participation outweighs the concern that a reasonable person may question the integrity of the Agency's programs and operations.

Representation 18 U.S.C. § 203 and 205: Can’t represent any

person or organization back to the Government, whether or not for compensation – criminal prohibitions!

For SGE’s, the rule is limited to particular matters involving specific parties but:

SGE under 60 days: Applies to a particular matter involving a specific party or parties that you have, at any time, participated in personally and substantially as a Government employee.

SGE over 60 days: Applies to any particular matter involving a specific party or parties if the matter is pending in the department or agency in which you are serving, whether you worked on it or not.

Post Employment18 U.S.C. §207: Can’t represent others back to the Government on

particular matters involving specific parties that you participated in personally and substantially. Criminal prohibition.

All SGEs: The lifetime post-employment restriction on any particular matter involving specific parties (where you participated personally and substantially) applies to you.

SGE over 60 days: An additional one‑year "cooling‑off" period applies to you if you were a senior employee. No representations on behalf of another back to EPA with the intent to influence any official action (regardless of whether you participated personally and substantially) for one year. Senior employee = compensation equal to or greater than $74.48/hour (current for CY 2012).

Salary Supplementation

18 U.S.C. § 209: Can’t receive salary or supplementation of salary from any source other than the United States for work as a Government employee. Criminal Prohibition.

SGEs: Doesn’t apply to you. BUT, you may be prohibited from compensation for teaching, speaking, or writing when the activity is undertaken as part of your official duties.

You are also subject to the criminal bribery and illegal gratuity statute, which prohibits, under certain circumstances, the receipt of anything of value in connection with official acts (a.k.a. bribery).

Hatch Act 5 U.S.C. §§7321 ‑ 7328 (a.k.a. “The Hatch Act”)

covers political activity restrictions. Permits most employees to take an active part in political management and campaigns. But, you still can’t: Run for partisan office Solicit, collect or receive political contributions Engage in political activity (including wearing

buttons) while on duty, or in a government office, or while using a government vehicle

SGEs: You are covered by the Act only during the time that you are actually performing government business.

Gifts

5 C.F.R. Part 2635 Subpart B: Can’t accept gifts from "prohibited sources" (generally persons or organizations affected by EPA actions) or given because of official government position. Certain exceptions apply.

SGEs: This provision applies to you.

Giving Gifts to Others

5 C.F.R. Part 2635 Subpart C: You can’t give or contribute toward a gift for an official superior or receive a gift from an employee who receives less pay. Certain exceptions apply.

SGEs: This provision applies to you.

Seeking Employment 5 C.F.R. Part 2635 Subpart F: You can’t

participate in any particular matter which directly and predictably affects the financial interest of any person or organization with whom you have had any contact regarding future employment unless authorized by your Deputy Ethics Official

If the communications amount to "negotiating" for future "employment," you may not participate in such matters unless the Deputy Agency Ethics Official (not the Deputy Ethics Official) has granted a waiver under 18 U.S.C. §208(b)(1).

SGEs: This provision applies to you.

Misuse of Position 5 C.F.R. Part 2635 Subpart G: Relates to

use of official time, authority, information and resources. Has standards relating to: Use of public office for private gain Use of nonpublic information Use of Government Property Use of Official Time Use of Official Title & Authority

SGEs: These provisions apply to you

Expert Witness 5 C.F.R. §2635.805: Can’t serve, other than on behalf

of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless authorized by the DAEO.

SGEs under 60 days: Applies only if you have participated as a federal employee in the particular proceeding or in the particular matter that is the subject of the proceeding.

SGEs over 60 days: Full restriction applies

Teaching/Speaking/Writing

5 C.F.R. §2635.807: Except for certain teaching activities, you can’t receive compensation from any source other than the Government for teaching, speaking, and writing that relates to the your official duties or ongoing policy/program/operation of the Agency.

The term “related” has specific meanings

More: T/S/W SGEs: As a general rule, you can’t get paid for

teaching, speaking, writing about the work that you do for the Government while you are a Government employee.

Applies for the entire time of your appointment (not just the days you work as an SGE)

Limited to a matter to which you were personally involved during the past year

SGE less than 60 days: Applies only to specific party matters in which you participated (i.e., you may accept compensation for matters of general applicability, even though you participated)

THE 14 Ethical Principles Public service is a public trust Avoid financial conflicts of interest Don’t use nonpublic information for

private gain Don’t solicit or accept gifts from

those with interests before EPA Give an honest day’s work Don’t make unauthorized

commitments for the Government Don’t use public office for private

gain Act impartially

Conserve and protect federal property

Disclose waste, fraud, abuse and corruption

Satisfy your legal duties (and pay “all just financial obligations”)

Obey EEO laws and regulations Avoid outside employment or

activities, including seeking or negotiating for employment, that conflict with official duties

Avoid creating the appearance that you are violating the law or the ethical standards

Thanks!

Have questions? Contact your Deputy Ethics Official (DEO)

Still have questions? Call us: Dan Fort, Ethics Officer: (202) 564-2200 Jennie Keith, Ethics Officer: (202) 564-

3412 Justina Fugh, Senior Counsel for Ethics and

Alternate Agency Ethics Official: (202) 564-1786