An Introduction to the Executive Branch Ethics Program

>>Welcome. My name is Robin Primo. On behalf of Deborah Buford, Manager of Employee
Accountability and Partnership and Labor Relations, US Office of Personnel Management, I am pleased
to open this roundtable and introduce our speakers. Our office presents roundtables in support
of our ongoing effort to bring relevant and reliable developmental opportunities to federal
sector Employee and Labor Relations practitioners. It gives me great pleasure to welcome you
to today’s roundtable entitled An Introduction to the Executive Branch Ethics Program: Helping
Employee Relations Professionals Understand the Rules and Manage Risk. Protecting the integrity of government operations
requires employees to serve ethically and agencies to foster cultures of integrity and
accountability. Today’s presentation will provide an introduction
to the mission and structure of the executive branch ethics program, the ethics laws and
regulations, and best practices for managing the risk of ethical failure within organizations. We encourage everyone to make the most of
the roundtable including asking questions of our presenters. You may do so by sending an email to [email protected] We will do our best to field as many questions
as possible and our speakers will take questions throughout their presentation. Please note that shortly following the presentation,
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future roundtables. For today’s topic of An Introduction to the
Executive Branch Ethics Program: Helping Employee Relations Professionals Understand the Rules
and Manage Risk, we are delighted to have as our presenters today Cheryl Kane-Piasecki
and Patrick Shepherd. Patrick Shepherd is a lead instructor at the
US Office of Government Ethics, OGE. Prior to joining OGE’s Program Counsel Division,
Patrick served as a desk officer in OGE’s Program Services Division where he provided
ethics liaison services to a portfolio of executive agencies. Patrick also served as the Ethics Program
Manager at the Consumer Financial Protection Bureau from October 2011 through May 2012. In 2011 and 2015, Patrick received the US
Office of Government Ethics Director’s Award for Excellence. Cheryl Kane-Piasecki is the Senior Ethics
Specialist and lead instructor in the Program Counsel Division at OGE. She has been with OGE since December of 1991. Prior to her current position, Cheryl served
as a team lead responsible for overseeing a group of ethics specialist providing ethics
program assistance to 34 departments and agencies throughout the executive branch. During her tenure at OGE, Cheryl has served
in the program review, program services, and education and training divisions respectively. She also served on a detail to the White House
Counsel’s Office in 2009. Prior to joining OGE, Cheryl worked in adult
education as a Peace Corps volunteer in Costa Rica. We are delighted to have Patrick and Cheryl
as our presenters today to share their expertise in this vital subject area. Please join me in welcoming Patrick Shepherd
and Cheryl Kane-Piasecki.>>Excellent. Thank you, Robin, very much for inviting us
to be here today and thanks to all of you for joining us. We’re looking forward to a good presentation
and we’re very excited to be able to take your questions throughout the presentation. We’re prepared today to speak about the executive
branch ethics program in general to give you some structure and understanding of the framework
we use to preserve integrity within the government. To provide you an overview of the ethics laws
and regulations in a context that hopefully is valuable to you as ethics–as Employee
and Labor Relations professionals and also to talk about some recent changes to our regulations. OGE has recently modernized the rules, the
structure of the executive branch ethics program and there are some points in those regulations
that might be especially useful for you to have some familiarity with, so that’s what
we’re looking forward to sharing with you today. But again, we do welcome your questions. And if there are things you’d like us to expound
upon or other things that we could address for you, we want to be as responsive as possible.>>And I know that there were some materials
that you were given in advance of the session today and I hope that you’ve had an opportunity
to review some of them of the summaries of the standards of ethical conduct and summaries
of the criminal conflict of interest statutes. We understand that many of you are relatively
novices in this area and Patrick and I are going to do our best to give you a flavor
for circumstances in which you may actually encounter these various authorities. And–but we hope that you’ve had an opportunity
prior to the session because it’ll make it easier for you and then–and then make it
more informative for you as well if you’ve had an opportunity to at least review those
materials.>>Excellent. Cheryl, should we start at the beginning?>>Let’s begin at the beginning. It’s the best place to begin, yes.>>So I–we understand that not everyone is
familiar with the Office of Government Ethics and that’s perfectly okay. Our office is a relatively small office within
the executive branch and our goal is to set policy and provide programmatic oversight
to the executive branch ethics program and our mission is to prevent conflicts of interest
in the executive branch ethics program, so that’s really the beginning. OGE was formed by Congress in 1978 to have
a central location for conflict of interest prevention policy, to create an office that
oversees and supports executive branch agencies in their efforts to prevent conflicts of interest,
and also to provide educational opportunities to officials who need to be familiar with
our mission and work in order to be effective across the executive branch ethics program
and general program operations.>>I think one that we want to underscore
is that the role of OGE since its inception has been to create sort of a uniform set of
standards for the executive branch to follow. Prior to the existence of OGE and the regulatory
body that we have promulgated since our–since our inception, there was a–there was a panoply
of ethics rules that different agencies were applying to their own employees, so there
was not any consistent set of standards that applied to employees across the executive
branch. So one of the primary missions of OGE has
been to create that standardization and create that uniformity. But also, what we want to underscore as well
is that our mission is a prophylactic one. We are involved in the prevention business. There are plenty of folks out there who have
the authorities and responsibilities to engage in enforcement. OGE’s mission is, if not entirely singularly,
then primarily a prophylactic preventative one.>>Right. And it’s no accident that our office was created
concurrently with the Inspector General Act of 1979. So Congress undertook this work of preventing
conflicts of interest and other integrity issues in government in sort of a right-hand,
left-hand way of approaching things. So they established the Office of Government
Ethics as the policy and prevention office while at the same time establishing the Offices
of the Inspectors General as the Oversight and Investigations Office and that’s no accident. We work closely with the Office of Inspector
General to make sure they understand our rules, that they’re familiar with the requirement
of the ethics policies, but we really leave the investigation of individual problems to
them. So today, we’re going to be talking about
the intersection of our prevention work as it relates to enforcement, correction, and
some other activities that support the integrity in government.>>Exactly.>>So should we take a quick look at the structure
of the executive branch and the executive branch ethics program generally? So a question we always get is “If you’re
the Office of Government Ethics, you have roughly 80 employees, give or take, how do
you provide overall policy guidance and support to an executive branch that has millions of
employees?”>>And the answer to that is it’s not easy.>>It’s not easy. But we also don’t do it alone.>>Yeah. I mean, it’s–we have the oversight function
for the entirety of the executive branch, but the day-to-day operations for the ethics
program throughout the executive branch resides in each department and agency. So, each department and agency is charged
with having a designated agency ethics official and that person is delegated that responsibility
from the agency head and they are responsible for creating and maintaining and administering
an ethics program for the employees of their department or agency.>>Yeah, so it’s okay if you’ve never heard
of us. That doesn’t hurt our feelings. But what we do hope is that you have some
familiarity with the ethics officials in your agencies. And if you don’t, you know, we’d strongly
recommend and suggest that you find out who those folks are. They have a lot of valuable expertise and
experience that could be helpful in your work as Employee and Labor Relations specialist. We’re going to talk about some ways they might
be able to assist you through the presentation today. But really, when it comes to the perspective
of individual executive branch employees, the relationship that’s most important is
between those officials and their agency ethics officials. And, you know, we have roughly five thousand
ethics officials across the government on any given day in a hundred and thirty agencies. Each agency’s required to have two ethics
officials. They have to have a designated agency ethics
official and an alternate. In larger organizations, cabinet departments,
obviously two officials for, you know, hundreds of thousands of employees, not going to be
enough. So with some of those larger organizations,
they might have tens or even hundreds of deputy ethics officials who supports the program,
who provide services to employees, who assist folks in the employee labor relations and
human resources area when they have ethics questions. All of those sorts of things, so we really
do have a lot of help across the government in helping to implement ethics policies for
each of the agencies.>>And we find, because of that, is most ethics
officials are actually, particularly ones who are serving in regional–in regional offices,
are part-time ethics officials, which is to say that that is not their fulltime duty. It’s another duty that’s assigned. We find in many, if not most departments in
particular, these folks are typically housed in counsel’s offices. They have a general counsel function, so they’re
people who are engaged generally in the practice of general law and ethics becomes just another–of
the–of the branches of legal authority that they are–that they are responsible for. So in most agencies, in most large departments
and agencies, you’re going to find that ethics officials not only are part time but that,
you know, people cycle through that function. So, you know, the bodies and the–are the
folks are responsible before it changes.>>Yeah. The thing that–it’s a good suggestion that
folks, if you’re looking for an ethics official in your agency and you’re not sure where to
start, the Office of the General Counsel is usually a good place to begin. If they are not the locus of the Ethics Program,
they’re probably familiar with the folks who provide ethic services and can direct you
appropriately because often times when you have complicated issues, it takes a collection
of general law specialists and practitioners to deal with the various. So, OGE has kind of a special relationship
with the ethics officials. We communicate with them very frequently. We provide them training opportunities very
similar to this, but something else that we do to support agency ethics programs is through
our desk officer program. OGE has a desk officer assigned to each agency
within the executive branch and this person serves as a real-time point of contact when
agencies run into ethics issues that they cannot solve in house. So, if they have a particularly complex policy
question, if they need clarification about program requirements, if they’re looking for
program model practices, there’s someone at OGE that every agency can contact to get real-time
assistance. And this is one of the very important ways
that OGE supports the executive branch ethics program and ethics officials across government. So, what
do these folks do? What is an ethics official? What kind of work are they involved in every
day to support the program?>>There are program elements that OGE sort
of prescribes for each agency ethics program. And so ethics officials are charged with providing
an advise and counseling program where they obviously have to be competent in the ethics
authorities that apply and to provide ethics-advising guidance to employees at all levels of the
organization when they find themselves in situations where they’re not entirely sure
what is ethically appropriate or legally required of them. So, there’s an advise and counseling program
that your agency ethics offices is conducting and responsible for. There’s a financial disclosure program. There are actually two separate financial
disclosure programs, right, Patrick?>>Right. That’s right. We do have two separate financial disclosure
programs in the executive branch. Some of you may be familiar with the confidential
financial disclosure program. This is the dreaded OGE Form 450 that you
may be required to complete each year. And this is the confidential system and its
sole focus is preventing conflicts of interests. So, officials who are in positions that make
them more likely to run into work that could pose a conflict of interest are required to
complete these forms. And the definition of filer, OGE provides
guidance to agencies about who should file these reports. But ultimately, it’s determination of the
agency level about who should complete the 450. So, the confidential financial disclosure
reports are completed at the agency level. They’re reviewed by agency ethics officials
and the determination about who should file is made by the agency ethics office and consultation,
usually with supervisors or other managers. We also have a Public Financial Disclosure
System which is for those folks who are above the GS schedule. So, these are both career and non-career officials
who are at the executive level. And they’re required by law to complete a
Public Financial Disclosure Report, for the most senior folks in government. So, this is the 1200 or so Public Financial
Disclosure filers who have positions requiring the advice and consent of the Senate. Those reports were filed at the agency level. They are reviewed by agency ethics officials
and then they are sent to our office for a further level of review and certification,
where after we make those publicly available. For appointees to lower-level positions and
also career officials required to complete the public forms, those forms are collected
at the agency level and they remain at the agency level, but they are publicly available
through a process. And I think both of these elements are important
for you as Employee and Labor Relations Specialist to be familiar with because if you’re involved
in a case that maybe there’s a possibility of misconduct or an investigation and you’re
trying to determine if administrative sanctions might be appropriate, these produce documents
that can be helpful to you and your work. And to get the copies of advice files or Financial
Disclosure Reports for employees that you may be looking into, you can contact the ethics
office and they can provide you guidance on how to do that.>>Yes. And then the final aspect of the–of the ethics
program is a training program, a training and education program. This is an area that OGE has recently tried
to reemphasize the value of this portion of the–of the program and programmatic obligations
in the 2638 Regulations and we’re going to talk about�>>[inaudible]>>�some of the changes to that regulation
in a minute, but I think training is really where the rubber meets the road for OGE with
respect to creating an awareness and creating a sense of ethical culture in organizations. And so, OGE requires that new employees receive
an initial ethics orientation upon entering government service or even employees who change
agencies, who go from one agency to another are also required to receive a new employee
orientation when they arrive at their new agency. In the event that that agency has supplemental
standards of conduct or other ethics rules or even a different sensibility about the
level of scrutiny or the level of conservatism, if you will, in applying–in applying the
rules. So, in addition to that, there are requirements
that folks who file Financial Disclosure Forms, Confidential Financial Disclosure Form Filers,
as well as public filers, are required to receive annual ethics training as well that
focuses on key ethics issues that we think are most likely to come into play for folks
who are in positions of high risk, as are those folks. There’s going to be an–there’s an additional
sort of notification for new hires and an additional notification for new supervisors
that we’re going to be discussing again in a little bit more detail a little later on,
but this is an area where OGE is increasingly placing a lot of focus and emphasis because
we don’t want–we don’t believe that it should be a check-the-box exercise. We think this is the one of the most important
tools in an agency’s toolkit in terms of actually cultivating habits of engagement and awareness
on employee’s part.>>Yeah. We also focus in the training area on building
the relationship between ethics officials and employees and managers. We think it’s very important especially for
those folks with increased risk for conflicts of interest, who are often financial disclosure
filers to have a good working relationship with their ethics office. We know that issues come up, that the rules
can be complicated and we really focus on giving employees the tools and contacts necessary
to help them work through those issues in a way that properly protects the integrity
of government processes and procedures. The training program also provides some documents
that you may also find to be useful. If you’re trying to find out, if an employee,
for example, is simply made aware of their obligations under the ethics rules, you may
be interested in finding evidence of their initial ethics orientation or their receipt
of annual ethics training. And OGE’s regulations do require agency ethics
officials to keep these records and they may be available to you if you are able to contact
the ethics office. As a general matter, we’re going to talk a
little bit about the revisions to our regulations, specifically in a little while. But as a general matter, one of the things
that our recent changes have done is to emphasize that the administration of the ethics program
is an agency-wide requirement. This isn’t something that a handful of ethics
officials and an office can accomplish by themselves. They really need the support of a lot of different
players in the agency. They need the support of supervisors, they
need the support of senior officials, they need the support of human resources officials,
the inspectors general, in some cases, the IT staff, also to people who are necessary
to have a properly functioning program within the executive branch agency. And our new rule makings have sought to make
that necessity clearer through both some specific requirements but also a general sense that
this is a shared obligation. The law puts the responsibility on the agency
head who appoints that they sort of facilitate this work. But really, we’re trying to reemphasize the
organization-wide scope and reach of the program, so that’s going to be sort of the theme as
we go through the presentation today. Can we talk about the laws a little bit?>>Oh, sure.>>So, one of the primary things that our
office is responsible for is promulgating and advising upon the collection of criminal
conflict of interest statutes. And these are a handful of laws that you can
find in Title 18 of the US Code, that some of them date back quite a long time, but they
all govern the prevention of conflicts of interests in some degree.>>Yes.>>And some them are easier to get your head
around than others and what we’d really like to do is go through each of these, kind of
give you a sense of what sort of conduct they prohibit, and then maybe give you a sensibility
about what a risk area for a violation might look like. You know, what kind of work or what kind of
situations are these likely to come up in.>>Right. And we can start with bribery, although we’re
going to have to sort of walk back from what Patrick just said. The Bribery Statute 201, which is bribery
and illegal gratuities, is I’m sure most of you are probably actually familiar with this
one. It’s not–actually, it’s not an authority
over which OGE has cognizance. The Department of Justice reserves to itself
the authority to interpret 18 U.S.C. Section 201, so it’s not–it’s not a statute
that we take responsibility for as it were. I think that bribery and illegal gratuities
are fairly self-evident in terms of what you’re looking at quid pro quos, you’re looking at
whether you’re saying quid pro clo–pro–quid pro quo please or quid pro quo thank you I
think is a very simple way of distinguishing a bribe from a–from an illegal gratuity. But in the fact what we’re looking at here
is when someone is being offered something of value in exchange for an official act.>>Right. Let me include here for completeness but also
because when we get to some of the other rules, they kind of refer to and fit in with the
bribery statute. They kind of enhance it in some ways, so it’s
useful to have it there as sort of a lodestar. So taking our next two and we could take these
two together, 18 U.S.C. Section 203 and 205. And these are probably some of the more misunderstood
of the criminal conflict of interest laws. They are easy to trip over because their scope
isn’t obvious. I think�>>Particularly 205, it’s a very broad statute.>>And generally speaking, what these two
laws do is prohibit employees, federal employees, from representing outside parties before any
part of the government, either for compensation or not compensation. So 203 says you can’t receive monies for representing
outside parties before the government. 205 just says you can’t represent parties
before the government. And the concern we have here is we don’t want
people using the authority of their office or the access of the status’ federal employees
for the benefit of outside clients or others that they might represent. So where do we see this show? Like, how does this come up in real life?>>I think for 203 in particular, that really
is only going to occur in circumstances where someone has a position with an entity that
is basically a representational service type of organization, which is like a general partnership,
like a law firm, or an–a consulting firm. So 203 is likely only going to come up in
a situation where someone themselves is doing representations back before the government
or would want to or is part of a partnership where other people are making these representations
before the government, but the employee themselves is sharing in that–in that compensation and
we just don’t see a lot of 203.>>And this is something that we, you know,
as a practical matter, encourage ethics officials to counsel on when employees have outside
activities.>>Outside activities, right.>>So if you have an employee who has a job
outside of the government and that organization is engaged in paid representation of clients
before the government, this is an area where we would encourage ethics officials to carefully
counsel employees that they are not to share in that compensation. 205 is actually a little bit trickier because
it’s a little bit broader. It requires focus to avoid serving as agents
or attorney in representations before the government of others, but it doesn’t require
that compensatory element.>>No, it doesn’t at all. It’s with or without compensation. So if you have an employee, for example, who’s
working for an advocacy organization on the outside or who is volunteering with some sort
of, you know, legal aid or some sort of organization where they’re providing assistance to folks
in applying for benefits from the government or petitioning the government for any sort
of action, there–this is exactly a kind of situation where 205 might prohibit that person
from engaging in that activity on behalf of that third party.>>We see this a lot where employees will–a
place where we’re very careful to counsel employees is where they’re working for an
outside entity or working with an outside entity or participating in an outside entity
that routinely asks for action of the government. You know, whether that be by way of a contract,
by way of a request, really any substantive request of the government where they’re asking
for government action or government sanction or those kinds of things. There’s a risk that the employee he or him–he
or herself were to make that representation back to the government could contravene Section
205. So we go to great lengths to ensure that employees
understand this rule. And one of the misconceptions that folks have
is that this restricts them only from talking back to their own agencies. And that’s not true. We’re talking about any agency of the federal
government, so that’s an area where understanding the scope of the rule is very, very important
because where people misapprehend that, they could run into problems.>>And it is so broad that–I mean, I like
to draw to people’s attention that the fact that there is an exception in 205 for certain
representations that you would want to make on behalf of your spouse, on behalf of your
minor child, on behalf of your parents, and certain others. But the very fact that I tell you that that’s
an exception to 205 is, you know, is a clue to how broad and expansive 205 is. And that exception has certain previses in
it and certain caveats in it as well. So it’s not just a carte blanche exception
for representing your spouse or even your minor child. So I always–I really recommend that folks
take a close look at 205 and to read it, you know, pretty broadly because the language
of the statute is in fact very broad. And it’s a trap for the unwary.>>Yeah. And I think it’s important to note that if
you’re involved in a case and it concerns improper interactions between someone’s outside
employer and the government or your agency or another part of the government, that’s
a time that you might want to loop in an ethics official to help you spot whether or not there
might be a representational concern that would warrant investigation or even referral to
the Department of Justice.>>Yes. So the next statute is 207, which is the postemployment
statute. And I do think that this is–we’re in a period
of time right now where postemployment might actually be probably one of the biggest issues
that ethics officials are facing at the moment. And it’s not just because we’re going through
a presidential transition. I think it’s just the demographics of federal
employees where we’re an aging federal employee population. A lot of folks are looking at retirement. And as you can well imagine, many folks these
days plan to do something in their retirement. They’re not just going to sit at home or do
volunteer work. The postemployment restrictions, there are
various of them. The primary ones that you’re most going to
encounter with your employees are 207 A1, 207 A2, and 207 C. I’m going to start with
207 C because I think that’s one where you’re dealing with your former senior employees. And senior employee is a–is a–is a defined
term and it’s tied to a dollar value, so I would recommend that you become familiar with
what those dollar values are. We’re not going to discuss that here today
because it changes from year to year.>>From year to year.>>But 207 C are your senior employees, that’s
pretty much your SCS and above. And for one year after they leave government
service or after they leave senior service, they’re going to be restricted from making
any communications back to their former agency where they served during their last year of
senior service. So this isn’t one of your cooling-off period
and this is one of the probably the broadest and strictest of the postemployment restrictions. So this is one that you’re going to want to
be attuned to because I think this is one that probably has the greatest risk of being
violated, particularly, you know, in–when you have so many people who are simultaneously
leaving government service. 207 A1 and A2, these are restrictions–well,
A1, let’s start with A1. 207 A1 is going to apply to any employee, any government employee
who worked on certain kinds of government matters in their federal employment. These are going to be folks who worked on
what we call specific party matters. And you want to give in a couple of examples,
Patrick, of what a specific party matter would be.>>Yeah. This is kind of an important concept, both
to the criminal conflict of interest statutes, as well as to our standards of conduct. So a specific party matter is a matter to
which there are named parties. So this could be something like a grant. The named party would be the grantee. A licensing, the licensee would be one of
the parties. An investigation, the person being investigated
would be a named party. And litigation where you have named parties. Also things like contracts, those sorts of
activities, those sorts of government matters that affect specific individuals, or specific
companies, or organizations, are particular matters involved in specific parties.>>So what 207 A1 is concerned about, it’s
saying in those kinds of discreet kind of matters, those ones where there are actual
parties, like non-federal parties to the matter, the employee who leaves government service
is permanently barred from making any representation back to the government in connection with
those same matters they worked on while they were a government employee. Now there�s no bar on self-representation,
there�s never going to be a bar on self-representation. So, we�re looking at third party representation. So let’s say a government employee–and we
see this all the time, goes to work for a government contractor. They leave the government one day, and, you
know, the next day or the next month, they’re working for a government contractor. An employee who worked on a specific contract
while they were government employee is going to be permanently barred from representing
back to the government on that same contract. And that would include on behalf of their
new employer, who is the contractor. So, they might be able to work behind the
scenes on that contract, but they cannot be the ones making communications back to the
government. They can’t be the voice piece, they can’t
be the person who is the interface between the government and their new employer, the
contractor, on that same contract.>>So we want to be concerned with this where
you have former employees who leave one day working for a contractor, or a grantee, or
someone involved in litigation or licensing on the outside, who shows up in a meeting,
or is making contacts to people within the agency about those kinds of matters. So, if you’re dealing with a case and that
kind of activity is present, this might be another case where you might want to ask an
ethics official to give you a read on the law, and whether or not there is a need for
further investigation, or further sort of looking into the facts to determine if you
have a potential problem under 207.>>Uh-hmm. And the final one that I would–that I’d mentioned
earlier is 207 A2. The restriction is almost identical to A1,
except it reaches mostly A1–A2 is going to cover, like, managers and supervisors who
may not have worked directly on a matter, but who had subordinates that were working
on that same kind of specific party matter. So, what A2 is trying to say is, “Okay, if
you were a supervisor and a manager–or a manager and you had folks under you, subordinates
who were working on a contractor, an investigation, or some sort of litigation, even if you, as
the supervisor and manager, didn’t do any hands on with that particular–that–with
that particular contractor investigation, the fact that you had people under you who
were responsible for it, you’re going to have a two-year bar from the time you leave government
service on representing back on that same matter. So, it’s a graduated kind of, you know, lessening
of the time you’re prohibited, you’re barred, but it’s covering more territory because it
isn’t just the stuff you worked on, it’s the stuff your subordinates worked on.>>And from a procedural perspective, this
is one area where you’re very likely to find counseling documents. So if you have a situation where there’s a
potential problem with a former employee, it is very likely at most agencies that that
former employee will have received some kind of post-employment counseling before they
walked out the door. And if those facts are useful to you in a
case, the ethics office should be able to provide those.>>Because normally, I mean, many, many agencies
have an out-processing and part of that out-processing is a requirement to get a post-employment
briefing before you walk out the door. Even if you don’t, there are many, many contractors
and other non-governmental agent–entities that require what they call a clean letter
before they will hire someone out of government–post-government service. So as Patrick said, it’s very likely, particularly
with your more senior employees, that there will be something on file with the ethics
office about some sort of post-employment guidance that the person was provided.>>Yeah. And our next law is probably the biggest one
from our…>>It’s the mother of all conflict of interest
law.>>…from our perspective. This is the one we spent a lot of time and
agencies spent a lot of time dealing with and preventing problems under our financial
disclosure system is set up primarily to avoid problems under 18 U.S.C. Section 208. And what this law deals with is taking official
action that would affect an employee’s personal financial interest. That’s one of the really shortest, most basic
version, is it says that employees shouldn’t do work at the government that could affect
their financial interests or the financial interests of certain persons who are close
to them. For example, their spouse, minor child, general
partner, organizations where they’re serving as an officer or a director, a trustee, or
employee, or anyone that they’re negotiating for employment or having an arrangement concerning
future employment. So basically what we’re saying is if someone’s
asked to participate in a government matter that would affect any of those people, they
are prohibited from doing so under 18 U.S.C. Section 208. And if you are someone who completes an OGE
form for 450 each year, you will notice those are exactly the kinds of relationships and
the holdings that we ask you about. We ask you for your financial holdings, we
ask you for your spouse’s financial holdings, we ask you for your minor child’s financial
holdings, and we ask you for the names of organizations that you participate as an employee
or similar. And the reason we do that is so that we can
help to avoid problems under 18 U.S.C. Section 208. I think there’s problematic misconception
under 208 that it–somehow it only applies to contracting folks.>>Yes.>>That’s not really true, is it?>>No, no, it’s not at all. I think that those are some of the most obvious
ways in which someone could have a conflict of interest, and I think that’s, you know,
in all fairness, I think that is an area where we do see a lot more conflicts of interest
because it is so much more amenable to a conflict of interest. But certainly we have concerns as well. When there are for example regulatory matters
and this is one area I think that’s commonly misunderstood, where if you have someone who
for example has financial interests in the financial services sector, let’s for example,
and if they were to participating in regulatory matters, that would clearly affect the bottom
line of financial services providers that could be a two-way conflict of interest.>>Right. So if we had a situation–let’s stick with
the financial regulatory agency because I’ve worked for one for a while, where we had an
employee who was participating in our rule-making, say dealing with consumer lenders, maybe a
subset of consumer lenders, maybe people who make payday loans. And they held some sort of financial interest
in a payday loan company. That’s very likely to be prohibited under
208 even if there’s no contract or money-changing hands between the government and the regulated
organization.>>Right. Right. What we’re looking at is whether or not the
outcome of the government matter would affect the financial interest that the–that the
employee has in the matter, which is to say if an employee has, for example, a stockholding
or some other financial tie to a, you know, a commercial enterprise, for example, then
that employee can’t participate in any government matter if the outcome of that government matter
is basically going to affect that non-federal entity’s, you know, financial interest, the,
you know, their bottom line.>>Right. So I think from a perspective, from an enforcement
perspective, we want to think about this law anytime you have misconduct that involves
an employee participating in a contract. Maybe there’s an inappropriate relationship
between the employee and the contractor, likewise for a grant or an investigation, or a licensing,
but also where someone might be involved in outside employments or have financial interest
with certain regulated entities. So where you have misconduct related to those
kinds of matters, I think you want to be very careful about concerns under 18 U.S.C. Section 208. And the financial disclosure program and the
report of those individuals could be very helpful in determining if such a problem is
present. And by coordinating with the ethics office,
they can assist you in finding out if there is indeed a possible conflict of interest
that needs to be investigated or referred.>>And sort of like taking 207 and 208 kind
of hand in hand, we talked about how post-employment is going to be a big issue for ethics officials
at the moment with lots of folks leaving. 208 is sort of the concern that ethics officials
have during the period of time right before the employee leaves government service because
presumably, if they have an arrangement for a post-employment by the time they’re leaving
service, that arrangement was negotiated while they were still a government employee. And if they’ve got a post-employment restriction
with respect to that new employer, chances are they had a 208 conflict at the time that
they were negotiating that post-employment arrangement. So this is what a lot of ethics officials
have actually, you know, been–have concerns about. When employees come to them for post-employment
guidance and they find that in the context of giving them post-employment guidance that
they may have already violated another criminal statute namely 208 because they were negotiating
for employee with an entity at the same time they were working on a government matter in
which that entity had a financial interest, so.>>Right. Yeah, so it’s–it is–it is tricky and, you
know, I think one of the things that we want to accomplish today is to give you some ideas
about where these risks live because agencies can be proactive in managing the risk of violations
of these laws. And I think we should’ve pointed out a couple
of them here already, which is where we have government work that affects outside entities. There is always a risk of possible ethics
concerns, right? Anytime you have government work that affects
outside organization financially, it affects their legal rights, those kinds of situations
make the likelihood of misconduct much, much greater. So we train ethics officials to be mindful
of that. We encourage agencies to put their training
resources around that. And when we’re talking to managers and program
leaders, and people who are in the government integrity area, we’d say, “Look, where do
you see these? Get help.” Right? You can request briefings, request materials,
request advice in areas where you’re not sure if you have a potential conflict of interest
or other ethics concern. And one place we see that is in the areas
where our work affects outside entities and the other areas where we have personnel changes
when you have people coming in to government, from outside the government, and you have
people leaving from within the government, when you have people looking for work outside
of the government, maybe concurrent with their–with their work. These are also areas of risk both for the
employees who are doing the coming and going, but also for their subordinates, you know. There’s a–there’s–sort of there’s a disruption
that happens when we have changes in personnel and that can have kind of downstream effects. So, yeah, that’s another area that we want
people to be especially attuned to and I think especially right now when we have a lot of
coming and going that we want to be really careful and mindful about how we manage those
transitions, and ensure that we engage the appropriate officials in our agencies in managing
those risks. So, that might mean if you have a lot of turnover
in your office or in an office that you provide services to, thinking about what kind of ethics
training or support can help to manage those risks.>>Yeah. And I think a final area, too, is if you have
a dispersed workforce, meaning that you have a variety of regional offices, and county
offices, and small enclaves that are scattered across the, you know, continent of United
States or even the world, I think that we’ve–we also see that there are greater risks in those
areas that don’t–that don’t receive quite as much oversight, direct oversight or supervision,
and that–those offices, I think, are at a greater risk for, you know, ethical misconduct
not because of any inherent nature of people, but I just I think the lack of oversight sometimes
is a contributing factor to lax ethical standards .>>Yeah. And, yeah, something that you can do is you
can sort of sit down and–for the units who provides services to you, you can almost do
a desk on it by looking at your organization chart, and say, you know, “Where are some
of these factors present?” You know, “Do we have a field office that
also engages in contracting or investigations where there’s a lot of turnover?” You know, that’s an area of serious concern
and it’s not that we should never have that situation. Obviously it’s necessary for us to have people
in the field, and sometimes there’s going to be turnover in those field offices, but
to the extent we have resources, prevention resources, if we can apply them strategically,
we can–we can save a lot of time and hopefully we can save people a lot of difficulty. So, as you’re–as we’re going through these
rules, that’s something to keep in mind is, how can we use this awareness to manage risk
in our agencies? How can we work with others in our agencies
to put the resources available into the prevention site? So we have one last law, Cheryl.>>We have one last law. 209, which is a supplementation of salary,
this is a statute that we don’t see invoked a lot, and in fact what it says is that the
United States–if you’re a federal employee, the United States government can be the only
source of payment to you for your government services. Now, unlike 201 where when we’re talking about
bribery and illegal gratuities, for there to be a bribe or an illegal gratuity, that
quid pro quos has to be the–something of value attached directly to a discreet, you
know, a discreet official act. For 209 to apply, it’s enough that a non-federal
source has provided you with salary or a contribution to, or supplementation of your salary, just
in consideration of for doing your government duties. It doesn’t have to be a discreet official
act. It’s just generally speaking in consideration
of the performance of your government duties. I know at OGE, where we run up against this
most frequently, is in the nominee program when presidential appointees are being considered
for–where people are being considered for a presidential appointment with senate confirmation. And you have folks who are coming in from
the private sector, either from a corporation, from a law firm, even from a university. And their former employers elect to give them
or want to give them a bonus or to give them some sort of benefit, that they only offer
to people who are going in to the federal government. If the employee were to receive that benefit
once they were a government employee, that we think that payment would implicate 209
because it would be something that a non-federal source was giving to this employee in considerations
simply for the performance of government services. So, to just–I mean that’s the clearest example
I can give you based on what OGE experience is of 209. I don’t know if you have any other illustrative
example, Patrick, that�>>Yeah. I think, you know, the thing to keep in mind
here is, this is the law that sort of cleans up the space where you have something that
looks like it may be a bribe but there’s not a specific act you can tie it to. So, if it’s just sort of–it appears you received
this thing of value or this consideration because of the work that you do for the government,
this kind of draws offense around that and so, you know, that’s also prohibited. Right?>>Right.>>So those are the criminal conflict of interest
statutes. And I think it’s important again to emphasize
these are criminal conflict of interest statutes. They carry criminal penalties where there
are potential violations of these. It would have to be investigated as criminal
problems. And in certain cases, they have to be referred
to the Department of Justice. And we’re going to talk a little bit about
notifications and referral later, but that is part of the process of these investigations,
is the–an inspector general in consultation with the Department of Justice has to decide
what to do when these kinds of things come up.>>Well, I think that–and we’re going to
discuss this again in a little bit when we talk about these notifications of referral
to the Department of Justice, but I mean I think that there is an understanding as well
that just because something might not reach the level of prosecution and the–and the
Department of Justice might decline prosecution on the criminal offense, that doesn’t not–that
does not necessarily mean that there may not be administrative or other actions that could
be taken notwithstanding that the Department of Justice selected not to prosecute someone
for a conflict of interest violation.>>This is another area. We’ve updated our regulations to reflect this
and we’re going to show you how this is going to work in practice. Before we do that, we’d like to spend a little
bit of time talking about the standards of conduct for employees of the executive branch. And these are the government-wide standards
of conducts that apply to each of us as federal employees. They are regulatory standards. So, we find them in the Code of Federal Regulations
at 5 CFR 2635. These are regulations that are created by
our office, promulgated by our office, to the executive branch and advised upon by ethics
officials. So should we just sort of go through the structure
quickly?>>Sure. Sure.>>And give people a sense of what the might
find when they’re looking to the standards.>>Uh-hmm. The 100 series is basically where we articulate
the 14 general principles of ethical conduct, and that 14 principles, which was established
in executive order, is one–is sort of like the–one of the fundaments, if you will, of
the standards of ethical conduct. The standards are in part an effort to layout
and to extrapolate upon the more narrow principles to create a–or the broader principles, I
mean, to create more discreet standards of conduct from those principles. And you’ll see a lot of the ideas that are
reflected in each of the subparts are, you know, are articulated in the principles that
you find in the 100 series.>>All right. And I think it’s also important to note here
that the 14 principles of ethical conduct apply. And the individual standards that we�ll
see in the subsequent parts of the regulation partially implement these principles. But they don’t delimit the principles. So, if you’re seeking to take an administrative
action against an employee or you’re conducting an investigation of misconduct, the principles
apply to employees and employees are required to live up to those principles. So where you have a situation where someone
has failed to, it is not inappropriate for agencies to site those principles as evidence
of misconduct.>>Yes. And I would argue that that in fact, more
often than not, you don’t have to site a specific–specifically articulated restriction under any of the other
subparts in order to bring a charge of ethical misconduct. I’ve seen any number of MSPB cases where the
charge that was brought was something like use of public office for private gain. And that was all that had to be established. So, there wasn’t a need to go into some sort
of explicitly articulated standard in order to be able to bring the broader charge of
the use of public office in private gain.>>And as we go through here, you’ll see there’s,
kind of, an elaborate system of prophylaxis in the standards of conduct to prevent problems
in these specific areas, but when it comes to the discipline side, the principles are
probably where you want to begin.>>Uh-hmm. Yes. And the only other thing I did want to mention
though is that there is a safe harbor provision in the standards of conduct, which basically
says that if an employee in good faith has gone to–has asked for and received ethics
advise, you know, provided that they–that they have given all of the material facts
that they have withhold–withheld material facts, that they are protected in the guidance
that they receive from an ethics official even if that guidance turns out to be having–to
have been, you know, in some way incorrect.>>Right. So, yeah, another good reason to be aware
that the advice files exist and that you can request them from ethics officials if you
need them in connection with an investigation or other action. So our first that we can take together, these
are our gifts regulation, and you’re very likely to be familiar with these regulations. The 200 series deals with gifts from sources
outside of the government and they essentially prohibit employees from accepting gifts given
because of their official position or given from people who do business or regulated or
are otherwise involved with their agencies. There are some exceptions that allow for things
like gift between family members and gifts that are in the interest of the agency in
connection with outside employment, those kinds of things that are available, but as
a general matter, what we’re talking about here is a prohibition on accepting gifts because
of your government job, or from people who are affected by your agency’s work.>>That’s correct.>>And the 300 series deals with gifts between
employees. And the general idea here is that employees
should not give gifts to the supervisors, or other people above them in the chain of
command. And the people should not be receiving gifts
from people lower in the chain of command than themselves. So the idea here is to preserve a merit-based
civil service to prevent sort of pressure on employees to provide gifts to their bosses,
to prevent awkward situations where supervisors maybe received a thing of value from a subordinate
and now has to take action that’s maybe not good for that subordinate. So generally, we’re trying to prevent those
kinds of situations or prohibitions go to that. So where you have seen maybe in a case that
there have been gratuities back and forth between outside organizations and federal
employees that don’t seem appropriate, or between federal employees, these are the rules
you might want to look to and maybe seek the advice of an ethics official in finding out
how they apply.>>And the gifts between employees provisions
as well. First of all, I want to say that those date
back to like the 19th century and the–and that–and the–and the gift rules as they
are articulated today are pretty much the same as existed back in the 19th century. And that–and there were some real–there
were some newspaper articles at the time that talked about–that it was a real problem,
that there were shakedowns all the time of subordinate employees by their superiors to
contribute to all sorts of gifts to their official superior. So, I think to–in this day and age, we–I’m
not sure that we have the same sensibility about the dangers of that, but it was evidently
a very real issue in 19th century America. But also I think that one of the things it’s
trying to mitigate as well is the enthusiastic gift-givers among your peers sometimes who
want to, for every occasion, think every occasion is suitable for a gift to someone or others. So, I think it’s also a matter of not only
just coercion among, you know, between subordinates and superiors, but I think it’s also a way
to try to mitigate any kind of peer pressure in an organization if you have some folks
who are more inclined to engage in that kind of activity.>>Right. Oh, so those are things that come up fairly
often. You’re probably familiar with them. You probably cover them if you receive Annual
Ethics Training. You might notice that the 400s are missing
here. And there’s a good reason for that. And that’s they refer to the restrictions
on employees under 18 U.S.C. Section 208, which we just discussed, and
that’s the financial conflict of interest law. We include it in the standards of conduct,
so employees, when they’re looking to the standards of conduct, realize that they are
subject to the criminal conflict of interest law, but we’re not going to cover it again
because it’s basically a restatement of the law. But we will cover the impartiality regulations,
often misunderstood, very useful.>>Yes. The impartiality provisions of the standards
of conduct, I think, are intended to, sort of, expand upon the notion of conflict of
interest. So, it’s a way of, sort of, taking the prohibitions
that adhere in 18 U.S.C. Section 208, which is to say, we don’t want
employees working on matters in which they have a financial interest or others that–whose
interest [inaudible] have a financial interest. And what impartiality does and said–is to
say yes. And we also don’t want people participating
in matters in which people or organizations with whom employees have, like, personal affiliations
or business affiliations, not necessarily that they have a per se financial interest
in, but they have other bonds of loyalty or affiliation. So, impartiality says, look, you know, we
don’t want you working on matters if, you know, the organization that you’re involved
in outside of government, you know, is involved in the matter. We don’t want you working on matters if you’re–if
a relative with whom you have a close relationship is going to be affected or is involved in
the matter.>>Yeah. And I like to think of this as the rule that
says, “Don’t do things that will get your work criticized,” right? You know, if you have a friend on the other
side of the matter, if you have a–certain family members, or a business associate, or
someone you used to do business with who’s going to be affected by your work, and it’s
likely that you’re going to be criticized, you might not have, strictly speaking, a criminal
conflict of interest, but there’s a likelihood to the integrity. Your service will be questioned or the integrity
of the government. Work would be questioned. And this rule provides a framework for thinking
about those issues, for deciding as an organization whether it’s appropriate to have an employee
participate. And that’s really what we’re reminding employees
to do, is that, you know, if you think there’s a likelihood you’ll be criticized or a likelihood
that the integrity of your service will be questioned or the agency�s integrity will
be questioned, this is a reminder that you should seek the advice of an ethics official
or other non-interested third party to help you think through that from an organizational
perspective, and determine whether or not it’s appropriate for you to participate.>>It’s–and I mean, and it’s a really emphasis
on optics. And I think that we underestimate sometimes
the deleterious effect that optics can have on the–on the, you know, on people�s confidence
and the integrity of government programs. I don’t think it has to be a full-blown financial
interest that an employee has in a matter that gives people pause to wonder whether
or not, you know, there are, you know, there’s a lack of impartiality in the way the government
is conducting business. I think, you know, affiliations and friendship,
and things like that have as much, if not more, of an effect on people�s perspective
of the fairness in the level playing field with which the government is conducting business.>>Right. And I think, you know, one of the reasons
for that deleterious effect is that there’s often criticism and maybe valid criticism,
but by the nature of these kinds of relationships, it’s less likely that there’s a satisfying
resolution in the way of discipline or criminal action. So it seems that there’s a lot of smoke and
there’s a lot of criticism, and then nothing. So, we really, from a prevention side, we
want to avoid those situations, right? We don’t want agencies to be engaged in activities
that require–that results in their integrity being questioned, especially when there’s
not a good remedy. There’s not, like, a good fix for it. So, yeah. This is an important area, not so much on
the enforcement side, but looking forward to avoiding problems. And then we have the SIG employment regulations. We, sort of, talked about this with Section
208, if you participate in a government matter that affects someone that you have an arrangement
for future employment or someone you’re negotiating for employment with, well, that’s potentially
a criminal violation. This basically says that it moves the line
back a little bit. It’s, sort of, a prophylactic measure to prevent
us from having those problems. It says that employees generally shouldn’t
participate in any government matters affecting folks they are seeking employment with. And there’s a technical definition between
the two. But basically if you have contacted anyone
about outside employment, the SIG employment regulation says you shouldn’t participate
in government matters affecting them [inaudible]>>Yeah. So, if you�ve sent resumes, you’re, you
know, you’re looking for a job with somebody, then you shouldn’t be working on matters that
can affect those people.>>Right. Yeah. And as a practical matter from, kind of, your
own conduct perspective, it’s a really good idea to get ethics advice before you begin
a job search. That’s the safest thing to do. Ethics officials are very good at keeping
that confidential. On the enforcement side, it’s very likely
that there is advice around this area either in the seeking/negotiating or post-employment
area if you have a situation involving a former employee or someone who’s looking to get leave
at the–leave the agency.>>Uh-hmm. And then, we have the 700 which is Misuse
of Position. And this is, kind of, the bonanza for Ethical
Misconduct because it really covers the waterfront and it covers some of the most observable. So, therefore, it is probably some of the
most–I don’t want to say prosecuted, but some of the most, you know, disciplined of
all of the–of the provisions in the Standards of Conduct. With Misuse of Position, we’re looking at
everything from, like, literally misusing your position to coerce a benefit, to solicit
benefits, to benefit your friends and family, using your title in a way that’s inappropriate
because it suggests that you’re doing something in an official capacity, when in fact you’re
only doing it on a private capacity, but you want the–you want your–the–you know, intentionally
trying to mislead by misusing your title. Misuse of Government Property falls within
the ambit of Misuse of Position, Misuse of Time, Use of Nonpublic Government Information,
Use of a Subordinate’s Time. So, really, the entire waterfront of a way
that an employee on a day to day basis could bump up against the ethics rules is pretty
much located in the Misuse of Position Section of the Standards of Conduct.>>Absolutely. And we provide in the regulation specific
examples of things that constitute misuse. But we also say anytime an employee uses their
public office for private gain, that is a problem under subpart G. That is a problem under the 700 Series in
the Misuse Regulations. And that’s something that we find cited in
a lot of disciplinary actions. So, if you have a situation where employee
is misusing their time, they’re doing other work that isn’t the government’s work at work. They’re directing subordinates to do the same,
they’re misusing government property, all of those kinds of things or places where you
can look to this regulation either in the specific things that we delineate in the regulation
or the general standard that says, you cannot use your public office for private gain.>>Yeah. And there was a–there was a specific case
where the–where they said, you know, you just have to establish that the person used
their position, and that there was a gain to themselves or to some other private entity,
and that’s it. I mean, it was a very basic–yeah, a very
basic standard to meet.>>All right. And then, finally, we have regulations dealing
with outside activities. So, this is situations from employees have
employment outside of their government office. So, this would–is concurrent outside employment. And our general standard here is that employee
shall not hold outside positions that conflict with their official duties. So, if someone works on a contract, that wants
to have a job with the contractor, and they would not be able to work on the contract
because of their outside job, and so that’s not attainable situation, and the agency where
the government can decide that they have to choose between those jobs. We also have restrictions and reference to
a lot of the other laws that come into play when people have outside employment. So, I teach the class for ethics officials
about advising employees on outside activities and outside employment. That I would talk about 25 different laws
and regulations in that class.>>Yes, absolutely.>>And here we correlate all those for the
convenience of ethics officials, but it’s, sort of, just good to know if you–that if
you have a situation that involve someone improperly interacting with an outside employer
or they have an outside activity that is detracting from their ability to do their government
work, these regulations exist. They’re complicated. They are numerous. And an ethics official is probably needed
to help you navigate those waters.>>The other thing, too, is some of you may
work for departments and agencies where there is a prior repro–prior approval requirement
by regulation. So, your agency has issued a supplemental
regulation that requires employees who are going to engage in certain types of outside
activities that they have to receive prior approval to–prior approval before engaging
in those activity. So, that’s another area I think where ethics
officials–I mean, it’s an–it’s an extra set of authorities that allow you to, sort
of, monitor employees’ behavior particularly if they’re not–if they’re not complying with
that particular requirement.>>And it’s interesting, here again, we see
some of our factors–our risk factors evidenced in these regulations. And we talked about areas where employees
are distant from oversight. In those cases, I think you have an increased
possibility if you use a public office for private gain or the misuse of government resources. Obviously, areas where you have government
work that touches outside of that entities, you have an increased possibility for impartiality
concerns. And then, we have the special regulations
that deal with people coming and going from the government. So, again, here, if we, kind of, keep those
three themes in mind, we can begin to anticipate where we’re likely to find these potential
challenges and maybe spend some resources, or training time, or counseling to prevent
those kinds of issues. So, those are the Standards of Conduct. Should we pause briefly to see if we have
any questions that have come in? Oh, if not–okay. Well, if you do have questions and they come
up, we would be happy to, sort of, go over again or elaborate on any of these concepts
because we do want to be as responsible as we can to your questions. And so, we’re sort of fortunate to be meeting
and talking together right now because we’ve had some recent interesting changes to the
ethics program regulations. I think when we scheduled this, we weren’t
sure if we were going to be able to talk about this, but we’re very pleased that we are going
to. So, OGE for the first time in many, many years
has undertaken some modernized regulations that prescribe the bits, and pieces, and the
activities that agencies have to engage in to fulfill the obligation to the executive
branch ethics program. And the changes that we’ve made are pretty
extensive. And what we have done today is taken out some
highlights that we think will be most useful to you, that you’re most likely to become
involved in, and that you may–most want to be aware of, but we did mention some thematically. The goal of many of these changes is to emphasize
the shared responsibility of the entire enterprise of an executive branch agency to ensure the
integrity of its services and its work.>>Yes. And I would–I’m–and we might want to go
to the next slide here because I just–one of the things that I–that I want to say with
respect to 2638 is if you don’t have the time or opportunity to read the bulk of or the
entirety of the 2638 regulation that we just issued, I mean, I’m going to give you a citation
for it here in just a second. I would–I would encourage you to at least
read subpart A. We’re going to talk about it here in a second, but subpart A is where
we really start–we really try to delineate and to expand upon various players’ responsibilities
not only for ethical conduct, but for creating an ethical culture in your organization and
that’s kind of some–I don’t want to say it’s new language, but our emphasis on the building
an organizational ethical culture is something you’re going to–you’re going to–it’s going
to resound throughout 2638 and particularly throughout subpart A. And so, I think that
that’s something that everybody is being asked to sort of like take quite seriously and I
think subpart A really tries to, you know, emphasize that for–of the rules of a variety
of different individuals. But before we move further, I just wanted
to let you know that 2638 you can–the new 2638 you can find on our website, but it’s
federal register notice. It’s volume 81, number 212. Again, that’s volume 81 number 212 and that’s
Wednesday November 2nd, 2016 was when that was issued.>>So, these are very recent changes?>>Yes.>>And the process we underwent to make these
changes involve a very long period of consultation with the agency ethics officials, with other
agency officials circulating the regulation amongst all of the agencies. So, this really reflects a shared understanding
of where the executive branch is going in terms of ethics program, administration, and
policy. So, let’s take a look at the next slide quickly.>>Sure.>>So, Cheryl mentioned subpart A had some
sort of significant changes. And in the–in the current regulation, the
first version of the regulation, we were only really dealing with the responsibilities of
the designated agency ethics officials, the agency head, and the office government ethics. This reflected an understanding of the ethics
program in a sort of [inaudible] this was a new kind of work, this was something we’re
establishing for the first time. And the responsibilities took sort of a minimalist
approach, you know, we wanted to give agencies flexibility, we weren’t sure exactly how it
was going to work out. So, the people involved and their responsibilities
are quite narrow. We’ve learned a lot in the last 20 years or
maybe more than 20 years.>>Twenty five years, as long I’ve been in
OGE.>>And there are–and we’ve realized that
for agencies to have successful ethics programs, a lot more players need to be effectively
involved in the program. So, in the new version of subpart A of the
regulation, we talk about the responsibilities of federal employees. We talk about the specific responsibilities
of supervisors, lead human resources officials for CHCO offices, that’s the Chief Human Capital
Officer. We talk about the relationship between the
Inspector General and the ethics program. Agency ethics officials of course also agency
heads and the OGE. So, you really see a reflection of a larger
group of officials participating in this work. And it really reflects our understanding and
our observation that the agencies that has successful programs have all of these folks
working together. Let me focus briefly on the ethics responsibilities
of the human resources office. And this is a programmatic area, you know,
if you’re involved in some audit functions, you’re looking for documents, this is another
area where you might–you might start if you’re looking for certain kinds of notices. But one of the things that’s essential to
our ethics program is finding out who is coming into the government for a bunch of different
reasons. We need to know who is coming into the government,
so that we can provide them their initial ethics orientation. If they are financial disclosure filers, we
need to collect their financial disclosure reports. If they have potential ethics issues, we need
to get them timely counseling, so they don’t get in trouble before anyone has told them
about the rules or their responsibilities under those rules. And we really need to let them know who their
ethics official is, so that they can seek advice where they have questions and to help
resolve any problems they have with maybe a former employer or spouse employment, all
sorts of things. So, here we’ve required the head–the human
resources officer to notify the designated agency ethics official of all appointments
to financial disclosure positions, no later than 15 days after appointment. And this is important. We can’t collect the reports from folks who
we don’t know they exist. And this is an area that some agencies have
a hard time with. And where they do, it has–does not have a
good effect on the strength of their program and you can end up in really unfortunate situations
where people have gotten in trouble. No one has told them about the potential issues. They’ve not been apprised of the rules they
are subject to and that puts the agency in a–in a really awkward and uncomfortable position.>>And really, this isn’t anything really
new. I mean, ethics programs have had to rely on
HR because that’s the most logical place. Those HR folks are the ones who are going
to have the most current information and the most timely information about onboarding new
employees because that’s an integral part of HR functioning. So, I think there’s always been a reliance,
an informal reliance on HR for notification of certain personnel matters. What 2638 is trying to do in this revision
is to formalize that, so that the–so that the ethics shops has some sort of regulatory
recourse when it comes to coordinating with HR shops, but it also gives HR the ability
to say, “Yeah, we do have this as a formal function. There’s a regulatory requirement that we do
this.” So, it kind of gives everybody cover to say,
“Yeah, this is a formal function. And this is–this requires a coordinated effort.” And now, we actually have an authority that
we can–we can point to, to say, “This–yes, we do have to do this. We’re not just being courteous. We are required to do this.”>>Right. And I think this is also a good source of
possible documentation if you’re engaged in a case you’re trying to kind of get a whole
picture of an employee who’s may be been involved in misconduct. The human resources office may be able to
provide some insight into how positions are designated as financial disclosure filing
positions, they might be able to provide you evidence that someone has been notified of
their obligation to file. They also may have some data about the collection
of those reports and the like. We also have an additional portion of this
regulation that recognizes the designated agency ethics officials may need additional
support from the human resources office and allows them to work within their agency to
establish procedures, to get the information from the HR office that they require. This might be things like–oh, we have a question,
excellent.>>We have a question. This person is a current HR Specialist at
the GS-12 level, and was previously a staffing specialist at another agency. The question is, can this person start a side
business teaching civilians how to write resumes and federal interviewing skills? It has nothing to do with his current position. He says, “As long as I state that I’m not
endorsed by the agency or the government at all. What are the parameters stating whether or
not I can pursue this business?”>>Excellent, that’s a great question.>>That’s a great question.>>And, you know, I think actually this question
is going to be very helpful to kind of see the importance of the way the program works. So, the good news is for most kinds of outside
employment, the answer is very rarely no way, no how, not as long as you have this job. The answer is usually yes…>>But.>>…but, so if you actually are–had found
yourself in this situation, I think we both encourage you very strongly to seek advice
from your ethics office. And the answer that they provide you is probably
going to be long. And there are some–there are a number of
things that will probably stand out with things you want to careful of. But the good news is that it’s sort of unusual
that something is impossible. It’s usually very much possible as long as
specific guidelines are followed. So, you know, so some issues that might come
up here that you might be counseled upon are–the prohibition against representing clients before
the government, you know, so if your business evolved where you wanted to help people and
act as their representative in hiring matters before the government, that might be prohibited
by one of the criminal conflict of interest statutes and your ethics office is likely
to caution you about that. You’re likely to be cautioned about misusing
your government time to work on your outside business, using your government authority
to promote the business, all those kinds of things. But it’s really good to get a clear document
and a clear understanding between you and the ethics office before you engage in those
outside activities because there really are a lot of potential pitfalls. And you want to make sure you’re as clear
as you can be and that you have that guidance in writing, so thanks for that question.>>Yeah, I mean, the only thing that I would
add to that is that, you know, you would be probably be precluded from, you know, working
on assisting people with applying for jobs that you would then be responsible for, you
know, grading or reviewing the applications for, so you wouldn’t want to have any nexus
between any assistance you are providing an outside client and what you would actually
be doing in your official duties. But Patrick is right, I mean, the word not–we’re
simply not in a position to be able to give you a yes or no, you could do what you can’t,
it’s a very complex situation and you would need to discuss it with your own ethics official
because among other things there might be prior approval requirements that you need
to–you literally by regulation have to get prior approval from your agency.>>Okay. That’s a great question, thank you. Do we have any other questions? No? Okay. So, getting back to the responsibilities here,
our new regulations do allow for the designated agency ethics official to work with the human
resources office. On any other procedures necessary for the
proper functioning of the ethics program and there’s a requirement, they evaluate that
to make sure that it’s working and, you know, we mentioned earlier that OGE does some programmatic
oversight. And this is an area that we look at when we
review ethics programs. We don’t come in to look at individuals or
to investigate misconducts, but we do come into agencies periodically to make sure their
programs are functioning properly and this relationship is one that we focus on during
that oversight. We want to make sure that there’s effective
communication between the human resources office and the ethics office to achieve the
goals of the ethics program and where there’s not, we will take steps to ensure that agencies
correct those deficiencies. So, next thing we want to talk about that
we hope is relevant to your work is the changes to our system of notifying OGE about corrective
actions involving individual employees. So, when we talked about the criminal conflict
of interest statutes, they are the requirement in the Ethics in Government Act that agencies
notify OGE of any referrals to the Department of Justice that implicate one of the statutes. And historically, that’s happened. And there’s a problem that we’ve come across
in the last 20 odd years that we are seeking to address. And I think it’s particularly relevant to
this audience and that is very often the Department of the Just–the Department of Justice declines
to prosecute. And cases are remanded to the agency for administrative
action. And somehow, after that happens, these things
get lost. And nothing happens. And that’s a serious problem. Just because the Department of Justice doesn’t
think something raises to the level toward a criminal prosecution or they don’t think
the facts support a criminal prosecution does not mean that the employee has been engaged
in noble conduct. It doesn’t mean there hasn’t been any actionable
misconduct. And it really does have a deleterious effect
on the integrity of the service when people are allowed to sort of proceed without sanction
simply because they haven’t been prosecuted criminally. You know, that’s not the standard that we
aspire to as federal employees or as agencies is to merely have people participate or work
in ways that avoids the–oh, we have–we have another question. Okay. So, let’s take a look at how this used to
work. So, the form we often receive from agency
ethics officials is a notification of conflict of interest referral. And part one basically stays the same. We need to know the office, the date, point
of contact, tracking numbers, et cetera, so the standard notification required under the
law. What we’ve added is a new requirement. We have asked the agencies to affirm for us
whether or not administrative, disciplinary, or other corrective action has been taken. And regardless if we want to know who made
the decision. So, if agencies are going to receive possible
referrals that are remanded because prosecution isn’t undertaken and they decide not to take
administrative action or other disciplinary action, we want–we need to know who made
that decision. So, we’re not telling agencies they absolutely
in all cases have to take disciplinary action, but what we are saying here is it’s important
that we know who is responsible for that decision.>>Exactly. So, we’re basically putting agencies on notice
that someone has to take responsibility for actively considering it and making a decision,
and that whoever that person is, we want them identified, and then we also want to know
why, you know, whether there was an active consideration and if there was not an active
consideration why there was not an active consideration. So, we’re just putting people on the loop,
it’s an accountability piece for decisions that are being made. Yes?>>And we have another question.>>Yes, we have another question. We’re being asked if a supervisor is a roommate
to an employee at an agency, not the supervisor’s employee, can that supervisor advice the roommate
on recommendations to improve the employee’s employment opportunities and the employee
is a lower grade than the supervisor?>>That’s very interesting.>>I’m not sure I’m clear on the…>>So, I think this is–this is how the facts
go. So, you have an employee at an agency who
is a roommate of another employee at the agency. One of those employees is in a supervisor
role?>>Yes.>>The other is a staff level employee?>>Yes.>>But the supervisor is not the staff of
the employee’s supervisor.>>Yeah, I got that. I got that, yes.>>Could they establish some sort of mentoring
arrangement to, sort of, help with the performance or, you know, those kinds of things. And I think that’s, kind of, an interesting
question. Whether it’s strictly an ethics question is…>>There are a lot of facts that I’d need
to know before I’d feel comfortable answering that question. And a lot of it has to do with, you know,
where in the organization each of them works and what is the likelihood of any, sort of,
like overlap between the–you know, where each of them works and whether or not any
of the mentoring could in any way be, I don’t know, advantageous or like provide a discreet
advantage to this individual. These–it’s a more complicated question than
the facts are lending themselves to, so…>>And I think one of the big takeaways here
is that when you’re engaged in sort of business relationships with other employees at your
agency, it’s a really good idea to get advice before you engage in those. Because there are a lot of possibilities,
there are a lot of, sort of, pitfalls that you could fall into where you have business
or financial relationships with colleagues. Especially in cases like this where you have
a close living arrangement, you know, some of the concerns that I think we’d be particularly
focused on is the misuse of non-public information, you know, the misuse of public office for
private gain, and event potential conflicts of interest because where you have a financial
relationship, where you’re both paying rent, you know, the level of that employee’s compensation
could have a financial effect on the roommate. You know, so there are–there are significant
potential issues here. You know, it’s not impossible to do that,
to probably have that relationship without running into those problems, but you really
want to be able to see those with eyes wide open. And again, there’s not going to be, sort of,
a simple yes or no. It’s going to be…>>It depends.>>You got to be very careful about the following
things. But yeah, that’s a great question. Let’s talk about just a few of the very final
changes to the–to the–to the regulation. So, one of the other things we changed significantly
are the requirements for government ethics education. So, if you receive an Annual Ethics Training,
you’re sort of familiar with that. We have generally given ethics officials greater
flexibility to just sort of determine the content of that training, but sometimes it’s
maybe particularly useful to folks who are engaged in employee and labor relations. If we’ve introduced a requirement that supervisors,
people new to supervisory positions be provided with written ethics information upon being
promoted to being a supervisor. This might actually help our questionnaire
if it’s put in place, but we recognize that supervisors have a special role to play within
the ethics office. So, we’ve asked agencies to make sure to notify
them of special ethics requirements upon their appointment to supervisory roles. We’ve given agencies some flexibility to make
this workable, but the general idea here is that we need supervisors to be aware of the
new responsibilities they have under the ethics program. And we need them to be able to carry those
out, so we ask them to be reminded of the contact information for the ethics office. The text dealing with the responsibilities
of supervisors, and then links to the rules that they’re responsible for, and anything
else the head ethics official thinks they should have.>>And I want to alert you to the language
at 103–2638.103 because as I told you before, if you don’t read any other part–closely
read subpart A. Because for example, it talks about that every supervisor has a heightened
personal responsibility for advancing government ethics. It is imperative that supervisors serve as
models of ethical behavior for subordinates. Supervisors have a responsibility to help
ensure that subordinates–that subordinates are aware of their ethical obligations under
the Standards of Conduct and that subordinates know how to contact agency ethics officials. So, it really expands upon how supervisors
are not only responsible for their own conduct, but it explicitly lets supervisors know you
are also responsible for the conduct of your subordinates. And I think that is the first time OGE has
ever pointedly reminded supervisors of their responsibilities. So, that’s all the more reason why want to
put a notice out to new supervisors that it isn’t just about your personal conduct anymore,
it’s about your role as a supervisor in overseeing other people’s conducts.>>Yeah. And I think that’s an important new change
and reflects our understanding of the importance of supervisors in the integrity of services. The final change we wanted to make you aware
of and I think this is an important one is a requirement to notify prospective employees
of their ethics obligations. Any ethics official, or human resources official,
or other agency officials hired an employee with irreparable conflicts of interest knows
that that’s a terrible situation to be in. And we want to make sure that people who are
new to government who are deciding whether or not they want to come in to government
are fully aware of the rules to which they will be subject before they make that decision. Because we don’t want a situation where someone
comes in, we advise them of their obligations, and they are not able to live up to or meet
those obligations. So, this is not an area where the human resources
office may become involved, but also an area where there’s some documentation that may
be useful to you. So, thank you all very much for joining us. And we hope this has been helpful to you that
we’ve covered OGE’s mission, an overview of the ethics rules, and we are very fortunate
to be able to share with you some changes to the executive branch ethics program. We’re very pleased to be here and we hope
you found this helpful. And if you have any questions, feel free to
contact us.>>Absolutely. Thanks very much.>>Thank you.>>Patrick and Cheryl, on behalf of Partnership
and Labor Relations, thank you for sharing your expertise during today’s roundtable on
An Introduction to the Executive Branch Ethics Program Helping Employee Relations Professionals
Understand the Rules and Manage Risk. You both have provided an outstanding overview
of the executive branch ethics program, ethics laws and regulations, and concrete best practices
for identifying and mitigating risk within organizations. I thank OPM’s communication staff as well
for their webcast of the roundtable. And thanks to my colleagues in Partnership
and Labor Relations for their work on this roundtable. And thank you for participating today and
we look forward to having you at the next Employee and Labor Relations Roundtable. Finally, please remember that shortly, you
will receive an email with a hyperlink to an online evaluation form courtesy of Your feedback helps us to plan future roundtables
and we appreciate your taking the time to complete the survey. Have a great afternoon.

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