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2013 Annual Ethics Training Presented by Heather LoPresti DHRA Associate General Counsel (571) 372-1988

2013 Annual Ethics Training Presented by Heather LoPresti DHRA Associate General Counsel (571) 372-1988. DHRA Ethics Officials. Designated Agency Ethics Official Robert S. Taylor, General Counsel (GC) (Acting), DoD Deputy Designated Agency Ethics Official

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2013 Annual Ethics Training Presented by Heather LoPresti DHRA Associate General Counsel (571) 372-1988

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  1. 2013 Annual Ethics TrainingPresented byHeather LoPrestiDHRA Associate General Counsel(571) 372-1988

  2. DHRA Ethics Officials • Designated Agency Ethics Official • Robert S. Taylor, General Counsel (GC) (Acting), DoD • Deputy Designated Agency Ethics Official • Carolyn Howell, GC, DHRA, (571) 372-1987 • Ethics Counselor (Primary) • Heather LoPresti, Associate GC, (571) 372-1988 • Ethics Counselors • Hattie DuBois, Associate GC, (571) 372-1965 • Mathew Ponzar, Associate GC, (571) 372-1977

  3. ASK BEFORE YOU ACT • There is no attorney client privilege between you and the DHRA Ethics Counselor • Reliance on a written opinion from an ethics counselor, after full disclosure by you, will certainly help. However, only the Department of Justice decides who it will, or will not, prosecute for criminal violations.

  4. Goal of Ethics Training To assist you in carrying out your duties in an ethical manner and to ensure you are aware of specific ethics laws and regulations.

  5. ETHICAL CHOICES Most of us will faithfully discharge the duties of the office we have been honored to serve. There have been incidents where Federal employees have lost their way and committed ethical violations. The following are some examples. 5

  6. ETHICAL CHOICES GSA’s $823,000 Las Vegas 2010 Conference • Bribery and Kickback investigation • Private parties in M Resort Spa Casino • Pool side entertainment • Conference support contracts awarded sole source in violation of procurement regulation • Martha J. Johnson, GSA Administrator Resigns • Johnson, called the conference a “raucous, extravagant, arrogant, self-congratulatory event that ultimately belittled federal workers… I will mourn for the rest of my life the loss of my appointment.” 6

  7. ETHICAL CHOICES • Voorhis v. Dep’t of Homeland Security, 2010 MSPB (May 5, 2010) (misuse of position; use of nonpublic information; lack of candor) • GS-13 removed from federal employment because he conducted unauthorized queries of individuals on an official government computer database, and made unauthorized disclosures 7

  8. Presentation Road Map • The Principles of Ethical Conduct, 5 C.F.R. 2635.101 • Conflicts of Interest • Impartiality in performing official duties • Outside Activities • Conferences • Other stuff 8

  9. Basic Obligation of Public Service Following is a discussion of the Principles of Ethical Conduct. These principles are things that we all intuitively understand. Public service is an honor, and we all feel good when we serve honorably. 9

  10. Basic Obligation of Public Service Integrity Honor Patriotism Public Services is a Public Trust Selflessness Accountability 10

  11. Basic Obligation of Public Service Do Not Solicit Gifts from Entities Seeking Official Action Do Not Accept Gifts from Prohibited Sources Unless An Exception Applies Avoid Even an Appearance of Ethical Violations Do Not Make Unauthorized Commitments on Behalf of the Government Put Forth An Honest Effort In Performing Your Duties 11

  12. Basic Obligation of Public Service • Do not use nonpublic information for private gain • Do not use your public office for private gain • Do protect and conserve federal property • Do act impartially and not give preferential treatment to any private organization or individual • Do be a good citizen – satisfy in good faith your financial obligations • Do comply with laws and regulations that provide equal opportunity • Do disclose fraud, waste, and abuse 12

  13. Basic Obligation of Public Service • Do Not Hold Financial Interests That Conflict With The Conscientious Performance Of Duty. • Do Not Engage In Outside Employment Or Activities, Including Seeking Or Negotiating For Employment, That Conflict With Official Government Duties And Responsibilities. 13

  14. Conflicts of Interest 18 U.S.C. 208 It is a crime for you to take official action in particular matters, such as contracts, or source selections, where you, your spouse, minor child, general partner, any organization where you serve as an officer, director, trustee, general partner, or employee, or any non-Federal entity with whom you are negotiating employment has a financial interest. 14

  15. Conflicts of Interest 18 U.S.C. 208 Examples of conflicts that violate this statute: You serve on a source selection evaluation board when your spouse holds stock in excess of $15,000 in one of the companies offering under a solicitation. You are a contracting officer’s representative (COR), working diligently at your desk, when your contractor calls to offer you a job. You start negotiations without first disqualifying yourself as the COR. 15

  16. Conflicts of Interest 18 U.S.C. 208 • Another example of a conflict of interest that would violate 18 U.S.C. 208: • You serve on a source selection evaluation board and one of the offerors employs your spouse. Your spouse will lose her job if you do not award the contract to her company. This is a conflict of interest. 16

  17. Conflicts of Interest 18 U.S.C. 208 What if your spouse works for a different division of the company, and there is nothing you can do in your evaluation of proposals that would affect her financial interests? She will not lose her job, promotion, perks, and does not participate in profit sharing. Is this still a conflict of interest? 17

  18. Conflicts of Interest 18 U.S.C. 208 ANSWER: No! As your spouse works in a different division and you cannot affect her financial interests through your participation on the evaluation board, this is not a conflict of interest under 18 U.S.C. 208. However, you should discuss with your supervisor and OGC whether your participation will nevertheless be a disqualifying financial interest under the impartiality principle as implemented by 5 C.F.R. 2635.502 18

  19. Resolution of Conflicts • Disqualification/Recusal • Regulatory Exemption • Reassignment • Divestiture (voluntary or required) • Certificate of Divestiture may be available to defer tax consequence from selling conflicting financial interests – You must obtain the certificate before you sell the interest. See OGC!!! • Qualified Trusts (expensive) • Individual Waiver (rarely given) • Termination (last resort)

  20. Conflict RemediesRegulatory Exemptions Stocks/Securities: De minimis exemption • For publicly traded stocks, as long as you own less than $15k in a participating company (contractors, subcontractors, companies offering under a solicitation), you may participate in the acquisition, contract, or other particular matter. • Remember: You must aggregate the value of stock ownership. The aggregate includes all financial interests in the fund or funds, held by you, your spouse, your minor children, and general partner. For example, if you own $10K of company X stock and your spouse owns $10K of company X stock, you must add the two together, for a value of $20K. In such a case, you would have a conflict of interest.

  21. Conflict RemediesRegulatory Exemptions Sector Mutual Fund • Under the ethics rules, a sector mutual fund is a mutual fund that concentrates its investments in an industry, business, single country other than the United States, or bonds of a single State within the United States (e.g., Aim China, Aim Technology Fund). • How do you recognize a sector fund? • Fund name usually includes clues about its concentration (e.g., Aim Energy Fund or Fidelity Advisor Biotechnology). • Look at the Investment Strategy in the prospectus of the fund. Does the strategy state that it will concentrate in one sector? If so, it is probably a sector fund. • When in doubt, seek ethics advice.

  22. Conflict RemediesRegulatory Exemptions Sector Mutual Funds: • De minimis Exemption: The aggregate market value of your interests in the sector fund or funds, not just the value of a conflicting holding, is less than $50,000. • OR • The affected holding is NOT in the sector of a fund’s concentration. E.g., if a mutual fund that invests primarily in the health care industry also holds stock in a computer company, you would be permitted to work on assignments potentially affecting the computer company, because it is not within the fund’s sector of concentration, i.e. health care. Tip: The aggregate includes all financial interests in the fund or funds, held by you, your spouse, your minor children, and general partner.

  23. Conflict RemediesRegulatory Exemptions Remember: You are responsible for monitoring the value of your financial interests in stocks and sector mutual funds throughout the year to ensure that you remain below the regulatory exemption thresholds. • Additional regulatory exemptions exist for certain private sector employee benefit plans, such as defined benefit plans. • Other regulatory exemptions may also apply. • If you believe you have a conflict of interest, do not participate in the matter, and seek ethics advice immediately. There may be a regulatory exemption or other remedy is available to you.

  24. Impartiality in Performing Official Duties5 C.F.R. 2635.502 • Do not participate in a matter likely to affect the financial interest of a member of your household, or • Do not participate in a matter where a person with whom you have a covered relationship is also involved, and • A reasonable person with knowledge of the facts would question your impartiality. 24

  25. Impartiality in Performing Official Duties5 C.F.R. 2635.502 • Covered Relationships include: • Members of your household • Relatives with whom you have a close personal relationship • Persons or organizations in which you have or seek business, contractual, or other financial relationship • Persons or organizations in which your spouse, parent, or dependent child is serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee • Organizations in which you served as officer, director, agent, contractor, consultant, or employee within last year Do these brothers look impartial? We do not want to see you negotiating across the table from your brother! 25

  26. A Word About Disqualification DoD Supplemental Standards at 5 C.F.R. 3601.105 are more stringent than Office of Government Ethics Regulations. DoD requires that for disqualifying financial interests, where you have an actual conflict of interest under 18 U.S.C. 208, your disqualification must be in writing! For disqualifications to ensure impartiality, your disqualification notice must also be in writing! 26

  27. A Word About Disqualification Provide the notice to your supervisor with copy to DHRA OGC. Contact DHRA OGC for sample notices. Always seek ethics advice regarding conflicts and impartiality problems before you participate to avoid an ethical failure. Your ethics counselor can assist you in determining whether any regulatory exemptions apply. 27

  28. WARNING: Ethics Training Has Been Known To Cause Excessive Sleepiness. Please Feel Free to Pause For A Brief, Not Excessive, Coffee/Tea, or Stretch Break.

  29. Outside Activities Whether you decide to be an entertainer, barrista, office worker, or even the tooth fairy in off duty hours, there are ethics laws and regulations that will restrict your outside activities.

  30. Outside Activities • Criminal Statutes That Restrict Outside Activities: • 18 U.S.C. 208, Conflicts of Interest • 18 U.S.C. 203, Representation • 18 U.S.C. 205, Representation • 18 U.S.C. 209, Dual Compensation • 18 U.S.C. 1905, Disclosure of Confidential Info • 41 U.S.C. 2102, Disclosure of Procurement Info

  31. Outside Activities • Criminal Statutes That Restrict Outside Activities: • 18 U.S.C. 203, Representation • Bars employees from seeking or accepting compensation for representing another before a Federal department, agency, or court in matters where the U.S. is a party or has a substantial interest; or receiving money from anyone else’s representation. • 18 U.S.C. 205, Representation • Forbids employees from prosecuting or assisting in the prosecution of claims against the U.S.; or representing another before a Federal department, agency or court in matters where the U.S. is a party or has a substantial interest.

  32. Outside Activities Receipt of Income by Federal Employee Results in 18 U.S.C. 203 Violation A former employee of the Department of Transportation was sentenced in the U.S. District Court for receiving unauthorized compensation from a Government contractor for performing Government duties. The employee, in his capacity as a Supervisory Marine Surveyor for the Maritime Administration, accepted compensation from a company for providing representational services in preparing a bid package for a $1 million U.S. Coast Guard contract. The employee pled guilty to one count of violating 18 U.S.C. 203, and the Government dropped its charge of making false statements to the Government and failure to report the receipt of the unauthorized compensation on his annual financial disclosure form. The employee was sentenced to a one-year probation and ordered to pay a $2,500 fine.

  33. Outside Activities Deputy Secretary of Commerce Improperly Contacts Official at Department of Veterans Affairs -Violation of 18 U.S.C. 205 The Deputy Secretary of Commerce received from his father‑in‑law, the owner of a company doing business with the Department of Veterans Affairs (VA), a letter complaining of delays experienced by the company in modifying its contract with the VA. The Deputy Secretary referred the letter to his counterpart at the VA on behalf of his father‑in‑law, and also contacted the VA by telephone. A complaint for civil penalties was filed for a violation of 18 U.S.C. 205. The Deputy Secretary agreed to a civil settlement, including a $5,000 fine.

  34. Outside Activities • Criminal Statutes That Restrict Outside Activities: • 18 U.S.C. 209, Dual Compensation • Prohibits employees from receiving any salary or contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government Employee. • Keep this in mind when teaching, speaking, and writing. You cannot be paid by third parties for speaking about matters that relate to your official position. 5 C.F.R. 2635.807 • Seek ethics advice, and ensure before releasing information, you have obtained a review from public affairs and securityper DoD Instruction 5230.29

  35. Outside Activities • “What Happens in Vegas, Stays in Vegas!” • Information You Cannot Share: • 18 U.S.C. 1905, Disclosure of Confidential Info • Prohibits employees from disclosing trade secrets or confidential information. Violations may result in fine, imprisonment of not more than one year, or both, and removal from office. • 41 U.S.C. 2102, Disclosure of Procurement Info • Prohibits employees from knowingly disclosing contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract. Violations may result in fine, imprisonment for not more than 5 years, or both.

  36. Outside Activities • Selling State Secrets is NOT an Authorized Outside Activity: • 18 U.S.C. 641, penalizes improper use of records • 18 U.S.C. 793, penalizes disclosure of certain national defense information • 18 U.S.C. 794, penalizes the delivery of defense information to aid a foreign government • 50 U.S.C. 783, penalizes improper communication of classified information

  37. Outside Activities Jill is considering outside employment during furlough. Can you help her avoid ethical failure?

  38. Outside Activities Jill has a great opportunity to sell cosmetics and sets out to beautify the world! Is there a problem?

  39. Outside Activities No! The cosmetic company she plans to work for does not do business with, seek to do business with, or seek any official action from her DHRA organization. As such, the cosmetic company is not a prohibited source, and there is no conflict of interest. RULE: An executive branch employee may not engage in outside employment or any other outside activity that conflicts with the employee’s official duties. 18 U.S.C. 208; 5 C.F.R. 2635.802 Public Service Announcement: If this had been a prohibited source, Jill, as a Confidential Financial Disclosure, OGE 450, filer would have been required to seek written approval from her supervisor. 5 C.F.R. 3601.107

  40. Outside Activities Jill is so enthusiastic about beautifying the world that she expands her business beyond furlough days and has set up a cosmetic display and makeup application center next to her cubicle. Oh My… We have a problem…

  41. Outside Activities • Limitation on solicited sales. 5 C.F.R. 3601.106 • Jill is prohibited from soliciting to DoD personnel who are junior in rank, grade or position, or to family members of such personnel, on or off duty. • Use of Government property and official time. 5 C.F.R. 2635.704 and 705 • Jill cannot use Government property, including office space, equipment, and time for unauthorized purposes.

  42. Outside Activities • Jill would really like to beautify her boss. She has a lovely cosmetic make over kit valued at $50 that she plans give her boss as a birthday present. • Is Jill about to violate the Standards of Conduct?

  43. Outside Activities • Yes! Jill may not give her boss a gift valued at $50 for her birthday. • General Rule: Employees may not directly or indirectly give a gift or make a donation toward a gift for an official superior, or solicit a contribution from another employee for a gift to either his own or the other employee’s official superior. • Exceptions: For traditional gift giving occasions, such as a birthday, Jill may give her boss a gift valued at $10 or less, but no cash.

  44. Outside Activities • It’s always a good idea to seek ethics advice before engaging in outside activities • Moving on to a topic that has been of great concern within DHRA during the past year: • CONFERENCES!

  45. CONFERENCES • In a report dated Sept. 2012, Dept. of VA, Inspector General found that VA spent a whopping $6.1M on two conferences in Orlando, FL. • 11 VA employees responsible for conference planning improperly accepted gifts from contractors doing business with or seeking to do business with VA • Senior leadership abdicated responsibility to ensure fiscal stewardship • Wasteful spending on audiovisual aids, food, beverages • Unnecessary site survey trips • For more detail: http://www.va.gov/oig/pubs/VAOIG-12-02525-291R.pdf • The New Landscape

  46. CONFERENCES • New Conference Approval Policies! • Source Documents: • Deputy Secretary of Defense Memorandum, “Implementation of Conference Oversight Requirements and Delegation of Conference Approval Authority, September 29, 2012 • DCMO Memorandum, “Delegation of Conference Approval Authority,” October 16, 2012 • USD(P&R) Memorandum, “Designation of Individuals for Approval Authority of Conferences,” [ on or about January 11, 2013].

  47. CONFERENCES • When DHRA or DHRA Component is hosting a conference and the estimated dollar value is: • $0 to $100,000 – DHRA Director must approve • $100,001 to $500,000 – USD(P&R) must approve • Over $500,000 – Deputy Chief Management Officer (DCMO) must approve • When DHRA or DHRA component employee(s) is attending a non-DoD entity conference and the cost of attendance is: • $0 to $20,000 – DHRA Director must approve • Over $20,000 – DCMO must approve • EXCEPTION: Even if the dollar value of a DHRA hosted conference is at or below $100,000, approval authority is DCMO if the conference involves a co-sponsorship agreement, a no-cost conference planning contract, or other similar arrangement such as an MOU with a non-federal entity, and/or a request for approval of spousal travel

  48. CONFERENCES • Conference Defined at DepSecDef Sept. 29, 2012 Memorandum: • A conference is defined in the Travel Regulations as, “[a] meeting, retreat, seminar, symposium, or event that involves attendee travel. The term ‘conference’ also applies to training activities that are considered to be conferences under 5 C.F.R. 410.404.” DepSecDef Memo explains that this definition is only a starting point. What constitutes a conference is a fact-based determination. • A conference may be disguised under other names: • Conventions • Expositions • Symposiums • Seminars • Workshops • Exhibitions • A conference may have a registration, fee, published substantive agenda, speakers, or discussion panels.

  49. CONFERENCES • FISCAL STEWARDSHIP • Ensure appropriate management oversight of the conference planning process; • Perform cost comparisons of the size, scope, and location; • Determine if a Government facility is available at a lesser rate; • Consider alternatives to a conference, e.g., teleconferencing, consolidating the event with another event; • Maintain written documentation of the alternatives considered and the selection rationale used; • Maintain written documentation, to include at least three quotes, of the costs of each conference site considered; • Use the CAPE tool as required by the December 27, 2010, Secretary of Defense, “Consideration of Costs in DoD Decision Making” memorandum.

  50. CONFERENCES • LOCATION! LOCATION! LOCATION! • WHS Approves Conference Space in the National Capital Region • Consider Direct and Indirect Costs: • Travel and per diem expenses; • Rent of room for official business; • Costs for audiovisual and other equipment; • Computer and telephone access fees; • Light refreshments or meals; • Printing costs; • Registration fees and administrative costs; • Ground transportation; and • Attendees’ travel time and costs. • Congress scrutinizes Federal participation at conferences. Extreme examples where Congress has criticized include sending 236 employees to Barcelona, Spain and 1,000 employees to Orlando, FL. Also criticized was the frequent use of lavish locales including Palm Springs, Atlantic City, and Las Vegas. Oh my…

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