Ethics
Outside Employment/Activities
An employee may engage in outside activities that require the
use of inherent expertise provided his/her work does not create
a real or an apparent conflict of interest by interfering with
officially assigned duties. In 1997, employees were advised that
they were no longer required to request prior management approval
for engaging in outside employment and outside activities. However,
on March, 24, 2000, the Department of Agriculture published an
interim rule in the Federal Register that requires all employees
who file a public or confidential financial disclosure report
to seek and obtain prior approval to engage in outside
employment and activities. This rule became final on October 2,
2000. The requirement does not prevent employees from seeking
outside employment, but helps to prevent employees from avoiding
conflicts of interest.
An REE employee seeking to engage in employment for which advance
approval is required must submit form REE-101, Application for Approval
to Engage in Non-Federal Employment or Activity, (August 2004 version)
to their supervisor within a reasonable time before the employee
proposes to begin the employment. Upon a significant change in the
nature of the outside employment or in the employee's official position,
the employee must submit a revised request for approval. Prior approval/concurrence
must be received by the immediate supervisor and Ethics Advisor.
For purposes of outside positions, "employment" means
any form of non-Federal employment or business relationship or activity
involving the provision of personal services by the employee for
direct, indirect, or deferred compensation other than reimbursement
of actual and necessary expenses. It also includes, irrespective
of compensation, the following outside activities:
- Providing personal services as a consultant or professional,
including service as an expert witness or as an attorney; and
- Providing personal services to a for-profit entity as an officer,
director, employee, agent, attorney, consultant, contractor, general
partner, or trustee, which involves decision making or policymaking
for the non-Federal entity, or the provision of advice or counsel.
Approval of a REE-101 does not relieve the employee of the obligation
to abide by all applicable laws governing employee conduct nor does
approval constitute a sanction of any violation. Approval involves
an assessment that the general activity as described on the submission
does not appear likely to violate any criminal statutes or other
ethics rules. Employees are reminded that during the course of an
otherwise approved activity, situations may arise, or actions may
be contemplated, that, nevertheless, pose ethical concerns.
When you work for a company, organization, or other employer outside
your government job, your relationship with that outside employer
has certain legal and ethical consequences. The approval of an outside
activity does not mean that you are free of conflicts of interest.
You must still follow all substantive ethics requirements after
approval is granted.
Employees considering outside employment should carefully review
the provisions of 5 C.F.R. Part 2635 - Standards of Ethical Conduct
for Employees of the Executive Branch; specifically 5 C.F.R. 2635.802,
Conflicting Outside Employment and Activities and USDA Ethics Issuance
00-1, Participation in Non-Federal Organizations. The following
provides only general criteria for the consideration of potential
conflicts between official duties and outside activities:
- Activities Must Not Be Related to Official Duties: An
employee may not receive compensation for outside activities that
relate to his/her official duties and responsibilities as a USDA
employee. An activity is considered related if it is performed
as part of official duties or the employee was invited to perform
the activity primarily because of the employee's official position.
- Teaching, speaking or writing activities are considered to be
related to the employee's official duties if the activity is undertaken
as part of the employee's official duties; the circumstances indicate
that the invitation to engage in the activity was extended to
the employee primarily because of their official position rather
than inherent expertise on a particular subject matter; the invitation
to engage in the activity or the offer of compensation for the
activity was extended to the employee, directly or indirectly,
by a person who has interests that may be affected substantially
by performance or nonperformance of the employee's official duties;
information conveyed through the activity draws substantially
on ideas or official data that are nonpublic information; or the
activity deals with any matter to which the employee is presently
assigned or to which the employee had been assigned during the
previous one-year period; or the activity deals with any on going
or announced policy, program or operation of the USDA.
Exception: An employee may teach a course, with or without
compensation, on subjects within the employee's discipline or
inherent area of expertise based on his/her educational background
or experience even though the teaching, speaking or writing deals
generally with a subject within the agency's areas of responsibility.
- Compensation: If no conflict is apparent, an employee
may receive compensation for his/her work with outside organizations.
Compensation may be in the form of money, stocks, or any other
financial instruments that have a monetary value. Compensation
also includes travel expenses, whether provided in-kind or reimbursed.
An employee may also perform work for an outside organization
without pay. There is no limitation on the amount of compensation
the career employee can receive. Non-career employees should contact
their Agency/Area Ethics Advisor to determine if they are subject
to limitations.
- Compensation From Federal Agencies: A USDA employee
may not accept compensation for service of any kind that is funded
by a USDA contract, grant, cooperative agreement, or other USDA
mechanism. Compensation is also prohibited for assisting or preparing
a grant application or other document intended for submission
to the USDA. Compensation for any kind of unrelated work performed
for and paid directly by another Federal agency may be accepted
unless prohibited by either the Dual Compensation Clause (5 U.S.C.
Section 5533) or the Federal Acquisition Regulations. Compensation
from a Federal grant or contract may be accepted for unrelated
work performed for a non-USDA organization provided that: (a)
the services performed do not involve legal representation, accounting
services or public relations services; and (b) the source of the
funding is not USDA.
- Use of Personal Time: Generally, an employee must conduct
all outside activities on his/her personal time. If outside work
is to be performed during an employee's standard tour of duty,
the employee must be on approved leave, leave without pay, credit
hours, or compensatory time and not be present at his/her duty
station. There is no limit on the number of hours an employee
can devote to outside activities except when time spent on outside
activities interferes with the performance of an employee's official
duties.
Many non-Federal organizations schedule internal business or administrative
meetings of the organization in conjunction with their conferences
and seminars. This often occurs in relation to scientific and
professional associations. Agencies often send their professional
employees, at government expense and as part of their official
duties, to attend and/or to participate in such conferences or
seminars. A USDA employee may attend the business meeting of the
organization in his or her personal capacity, provided that such
attendance occurs outside normal work hours and incurs no incremental
travel costs to the government. For example, the business meeting
may be held in the evening. Alternatively, the business meeting
may be scheduled for the day before or the day after the conference,
in which case management may approve annual or administrative
leave for the day in question. In these instances the employee
would be expected to cover his or her own lodging and subsistence
for that extra day at the conference site.
- Use of Government Resources: An employee normally may
not use government resources (e.g., equipment, services, supplies
or staff) in the performance of outside activities. There are
some instances where minimal use of government resources may be
permitted (REE Policy & Procedure 253.4, Use of Information
Technology Resources).
- Use of USDA Space: An employee may not normally use federal
facility meeting rooms for outside activities. Occasionally, activities
may be authorized if they are a part of a USDA event that has
been approved for the use of USDA space. However, exceptions will
be approved only if it is determined that the activities will
meet the mission objectives of USDA.
- Use of Official Titles: Both the employee and an outside
organization are prohibited from referencing the title of an employee
in connection with any outside activity or employment except as
follows: An employee may include or permit the inclusion of his/her
title or position as one of several biographical details when
such information is used to introduce and identify the employee
with the outside activity, provided the title or position is given
no more prominence than other significant biographical details.
An employee may NOT be listed in the written program using title
and official affiliation. If employees see an improper listing,
it is advised that they notify the organization in writing and
reference appropriate ethics regulations (contact your Area/Agency
Ethics Advisor for assistance). This will help protect the employee
and avoid any future conflicts. In addition, when giving oral
presentations, employees should inform their audience that they
are speaking in a personal capacity and the opinions expressed
are their own and do not represent the views of USDA. When a title
or position is used in connection with articles published in a
scientific or professional journal, or other publication where
the topics relate to research, the title or position may be used
but must be accompanied by a reasonably prominent disclaimer that
the views expressed in the articles do not necessarily represent
the views of USDA.
- Use of Information on Current and Ongoing Agency Research:
In the context of an outside activity, only information that
is in the public domain may be used and that information must
not derive from work an employee has done within the last year.
An employee may provide information on previous work (i.e., performed
prior to the last 12-month period) which has been publicly disclosed,
provided such information does not deal in significant part with
ongoing research, programs, or policies. The employee may also
provide information that is based on his/her general scientific
or professional knowledge and expertise and not derived specifically
from his/her employment within a USDA agency.
- Advance Approval Required: All outside activities must
be requested and approved in advance by an employee's supervisor
with concurrence from an Agency/Area Ethics Advisor if the USDA
employee is subject to submission of a public or confidential
financial disclosure report. However, personal activities which
are not covered by the USDA outside employment/activity definition
do not require submission of form REE-101 nor approval for participation.
- Participation in the Business Affairs of Outside Organizations:
An employee may participate in the internal and external business
operations of an outside organization as an outside activity in
their personal capacity, if no conflict is apparent; including
involvement in the human resources, financial or fund-raising
activities to the extent permitted by these organizations. Such
involvement usually occurs when an employee serves as an officer
or member of a Board of Directors of an outside organization.
However, such service requires that the employee disqualify him/herself
from taking official actions that involve the outside organization
if the organization has any official dealings involving the employee
in their official capacity. This type of arrangement may not be
possible based on the officially assigned duties of an employee
and must be examined on an individual basis.
In a personal capacity, a Federal employee may serve in a managerial/fiduciary
or employment role (officer, director, trustee, general partner
or employee) with a non-Federal organization. However, a Federal
employee who serves in such a role subjects himself or herself
to potential criminal penalties should he or she take official
action on matters involving the non-Federal organization. If you
serve as a fiduciary or an employee in a non-Federal organization,
then you are considered, for purposes of 18 U.S.C. § 208,
to possess the financial interests of the organization. Under
these circumstances, it should be remembered that USDA may not
pay for travel, expenses, official time, supplies, and equipment
use that is for conducting the administrative purposes of the
organization, as that could convert the participation from personal
to official. For specific guidance, review USDA Ethics Issuance
00-1, Participation in Non-Federal Organizations.
- Other Considerations Associated With Working for an Outside
Organization: There is no limit on the amount of money an
employee may earn from outside work activities, nor on the amount
of time an employee can spend performing outside activities. However,
outside activities may not interfere or impair the ability of
an employee to perform his/her officially assigned Government
duties. Approval to engage in outside work activities will be
denied or withdrawn if the activities conflict or interfere with
the performance of the employee's duties at USDA.
- Activities With Foreign Entities: There are some issues
to keep in mind when considering an activity with a foreign entity.
Generally, an employee of the Federal Government may not accept
employment, gifts or compensation from any foreign government,
including any entity that is owned or operated by the foreign
government, which may include public research institutions or
universities. This prohibition is found in the "Emoluments
Clause" of the U.S. Constitution. The Constitution specifically
states that "with the consent of Congress" certain activities,
gifts and honors are permissible. Congress' consent is found in
the Foreign Gifts and Decorations Act (FGDA), which permits gifts
up to the minimal value (as of 1/02, that value is $285). The
FGDA also permits official travel, lodging and meal expenses when
it occurs totally outside of the United States. Outside activities
with privately funded foreign universities and other non-government
foreign entities may be permitted with prior approval, check with
your Area/Agency Ethics Advisor regarding the applicability of
the Emoluments Clause.
This information is to be used as a general guide, contact your
Agency/Area Ethics Advisor for specific information and visit the
REE website: http://www.afm.ars.usda.gov/hrd/ethics.
Last updated09/02/2004
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