The Department of Justice has determined that service by a Federal
official in his or her official capacity on the board of directors
of an outside organization may, under certain circumstances, constitute
a conflict of interest under 18 U.S.C. § 208(a). While conflict
concerns may arise based on what actions an employee takes while
participating in an outside organization, only service in the
following positions ("significant participation") in
outside organizations automatically raises potential conflict
concerns based merely on official participation in a managerial/fiduciary
role:
Official participation by Federal employees in other than "significant"
capacities ("non-significant" participation) will not,
by itself, result in a statutory violation. For example, 18 U.S.C.§
208 would not prohibit an employee from participating officially
in outside organizations through attendance for training, making
an agency presentation, serving as an agency representative on
a panel, or providing agency technical expertise to a committee
of the organization.
If a non-Federal organization is so closely involved with the
Agency that a continuing but distinct presence in an environment
free of conflict is warranted, the respective Agency may assign
the employee to serve in his or her official capacity in an advisory,
liaison or consultative role to the non-Federal organization.
Employees may chose to serve an organization in their personal
capacity. However, personal participation means that an employee’s
participation in the organization is not derived from their Federal
position, title or authority; does not entail official positions
or policies of USDA; does not occur on official time; and does
not involve the expenditure of appropriated funds. An employee
who serves in a managerial/fiduciary role with a non-Federal organization
in their personal capacity is required to avoid conducting official
USDA work on a particular matter in which that non-Federal organization
is a party or has an interest (5C.F.R.2635 Subparts D & E).
Consider the following when making a decision to serve in a personal
capacity...participation in an outside organization may be considered
“official” when the employee was invited to participate
primarily based on their official position and duties; personal
capacity would likely be prohibited.
Questions concerning potential statutory violations should be
addressed to the REE Ethics Advisor.
The fact that the prohibition is based on a Department of Justice
ruling, basically means there is little point in entertaining
debate on the issue. There are, however, some elements of practical
reality that are worth mentioning:
1. The Research Grade Evaluation Guide (RGEG) contains no criteria
mentioning (much less attaching significance to) a researcher
holding a managerial/fiduciary position in an outside organization.
By contrast, the RGEG specifically cites service on important
technical committees in professional societies as evidence of
scientific stature.
2. A high percentage of ARS researchers is nonsupervisory GS-15's,
and even the supervisors got there via the RGEG (not based on
their supervisory responsibilities). Obviously they don't all
hold managerial/fiduciary positions with outside organizations.
3. RGEG Factor IV criteria assess a wide variety of possible
contributions and activities. A scientist receives maximum Factor
IV credit by virtue of extensive scientific contributions and
peer recognition, not by business acumen in running or helping
run a society.
4. Serving as an officer in an outside organization has never
been a make-or-break fact in deciding a panel’s decision
(UPG vs RIG). Panels just don't focus on managerial/fiduciary
(or even society) roles... or they do so only after assessing
Demonstrated Accomplishments and other forms of recognition.
5. There have been instances where panels chided scientists for
neglecting their personal research by over involvement in society
activity.
Bottom line--there is no validity to the argument that holding
managerial/fiduciary positions in outside organizations is essential
for promotion under the RGEG. It is not and never has been a classification
consideration.
Prepared by: Merle T. Cole (Head, Research Position
Evaluation Staff) and Susan J. Mutchler (REE Ethics Advisor),
ARS Human Resources Division, December 2003
