Basic Federal Government Ethics Policy
Underlying ethical principles for federal employees are two core concepts:
- employees shall not use public office for private gain; and
- employees shall act impartially and not give preferential treatment to any private organization or individual.
In addition, employees must strive to avoid any action that would create the appearance that they are violating the law or ethical standards.
Each agency head selects an individual employee of that agency to serve as the agency’s designated agency ethics official. In certain circumstances agencies may grant waivers in situations where employees ordinarily would be recused from taking part in an agency action due to a personal or imputed financial interest or when a reasonable question could be raised about the employee’s impartiality. Waivers can be granted when a conflict of interest is minimal or is outweighed by the government’s need for the employee to act. While procedures vary, waivers must be issued before the employee engages in the otherwise prohibited activities. Waivers further must be based on a full disclosure by the employee of the relevant facts and must be in writing. See 18 U.S.C. 208(b) and 5 CFR 2635.402(d)(3) and 2640.302.
In many cases, laws applying to political appointees and to other high-level officials are stricter than those applying to rank and file career employees, as explained below. In addition to those differences in law, Executive Order 14390 of 2009 affecting non-career SES, Schedule C and certain other non-career appointees, bars acceptance of gifts from lobbyists, creates a two-year ban against communicating with a former agency after leaving government in certain circumstances, and bars lobbying of certain officials after leaving for the duration of the Obama administration.
The Office of Government Ethics exercises central leadership in the executive branch to prevent conflicts of interest on the part of government employees, and to resolve those conflicts of interest that do occur.
Note: The terms “marriage,” “spouse” and “relative” in ethics laws generally do not apply to domestic partnerships, civil unions and other arrangements not formally recognized as marriages although policies implicating those with a “close association” with federal employees may apply. See OGE Legal Advisory 13-10 at www.oge.gov.
Executive branch employees are prohibited by a federal criminal statute from participating personally and substantially in a particular matter that will affect certain financial interests. Those include the financial interests of the employee, the employee’s spouse or minor child, the employee’s general partner, an organization in which the employee serves as an officer, director, trustee, general partner or employee, and a person with whom the employee is negotiating for or has an arrangement concerning prospective employment.
There are a number of ways in which an employee may deal with a potential conflict of interest. The employee may simply not participate in the matter that would pose the conflict. This is called “recusal.” The employee may also obtain a waiver from the agency, sell off or “divest” the conflicting interest, or resign from the conflicting position.
Agencies may prohibit or restrict the holding of certain financial interests by all agency employees or a group of employees. A few extend such restrictions to the employee’s spouse and minor children.
There are some exceptions, including situations in which employees are assigned to serve in their official capacities as officers of nonprofit organizations whose work is seen as benefitting the employing agency’s mission, personnel development or other needs.
Legal Advisories at www.oge.gov set policies regarding ownership of individual stocks, mutual funds and various specialized types of investments.
Impartiality in Performing Official Duties
Executive branch employees are required to consider whether their impartiality may be compromised regarding personal and business relationships. A pending case, contract, grant, permit, license or loan are some examples of particular matters involving specific parties. A general rulemaking, on the other hand, is not.
If such a matter would have an effect on the financial interest of a member of the employee’s household, or if a person with whom the employee has a “covered relationship” is, or represents a party to such a matter, then the employee must consider whether a reasonable person would question the employee’s impartiality in the matter. If the employee concludes that there would be an appearance problem, then the employee should not participate in the matter unless authorized by the agency.
An employee has a “covered relationship” with the following:
- a person with whom the employee has or seeks a business, contractual or other financial relationship;
- a person who is a member of the employee’s household or with whom the employee has a close personal relationship;
- a person for whom the employee’s spouse, parent or dependent child serves as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
- any person for whom the employee has within the last year served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
- any organization in which the employee is an active participant.
An employee may have a concern that circumstances other than those expressly described in the regulation may raise a question regarding the employee’s impartiality. In such a situation, the employee should follow the procedures described in the regulation to determine whether or not participation in the particular matter would be appropriate.
Misuse of Position
Executive branch employees must not use their public office for their own or another’s private gain. Employees are not to use their position, title or any authority associated with their office to coerce or induce a benefit for themselves or others.
Employees also are not to use or allow the improper use of nonpublic information to further a private interest, either their own or another’s. Employees may not use government property for other than authorized purposes. Government property includes office supplies, telephones, computers, copiers and any other property purchased with government funds.
Employees may not misuse official time. This includes the employee’s own time as well as the time of a subordinate.
Executive branch employees are subject to a number of limitations on the outside activities in which they may be involved.
An employee may not have outside employment or be involved in an outside activity that conflicts with the official duties of the employee’s position. An activity conflicts with official duties if it is prohibited by statute or by the regulations of the employee’s agency, or if the activity would require the employee to be disqualified from matters so central to the performance of the employee’s official duties as to materially impair the employee’s ability to carry out those duties.
Employees of some agencies may be required by their agency’s own supplemental conduct regulations to obtain prior approval before engaging in certain outside employment or activities.
Employees generally may not be paid for outside teaching, speaking and writing if the activity relates to the employee’s official duties. However, there is an exception that would allow an employee to be paid for teaching certain courses at accredited educational institutions. Employees may not use their official title or position (except as part of a biography or for identification as the author of an article with an appropriate disclaimer) to promote a book, seminar, course, program or similar undertaking.
Employees entering into agreements with publishers to write books may be subject to various provisions of the Standards of Ethical Conduct for Employees of the Executive Branch, criminal conflict of interest laws, and rules on outside earned income. The application of the ethics rules to book deals can be complex and can vary according to the subject of the book, the timing and type of compensation and the type of federal position.
Employees may engage in fundraising in a personal capacity subject to several restrictions. An employee cannot solicit funds from subordinates. And an employee cannot solicit funds from persons who have interests that may be affected by the employee’s agency such as those who are regulated by, seeking official action from, or doing business with the agency. Also an employee cannot use or permit the use of the employee’s official title, position or authority to promote the fundraising effort.
Guidance on use of official titles by outside entities an employee is affiliated with is in OGE Legal Advisory 14-08 at www.oge.gov.
Executive branch employees generally may accept honoraria for an appearance, speech or article, provided that the activity does not relate to the employee’s official duties. Employees are subject to other restrictions on the receipt of honoraria in certain circumstances, including the prohibition on receiving compensation for teaching, speaking and writing that relates to their official duties (subject to an exception for teaching certain courses).
Rules at 5 CFR Parts 2634 and 2635 address acceptance by federal employees of payments for legal expenses through a legal expense fund and acceptance of free legal services for suits connected to their official positions. The rules address matters including requirements for setting up such funds; limits on donations by any one party; restrictions on the recipient’s involvement in decisions that could affect a donor; public reporting requirements; and more. The rules also apply to acceptance of such help for legal matters connected to some prior employment, such as with a Presidential campaign or transition team.
Restrictions Against Job Seeking
An executive branch employee may not participate in any particular government matter that will affect the financial interests of a person or entity with whom he is seeking employment. An employee is considered to be seeking employment if:
- the employee is engaged in actual negotiations for employment;
- a potential employer has contacted the employee about possible employment and the employee makes a response other than rejection; and
- the employee has contacted a prospective employer about possible employment (unless the sole purpose of the contact is to request a job application or if the person contacted is affected by the performance of the employee’s duties only as part of an industry).
An employee is considered no longer seeking employment if either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended, or two months have elapsed since the employee’s dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer.
Note: An employee is not considered to be seeking employment merely by posting to a social media account a profile, resume, or similar summary of professional experience that is not targeted at a specific person. Similarly, such an employee would not be deemed to be seeking employment with a person merely because a person has viewed the employee’s profile on that social media account. The same remains true if someone viewing the posting sends an unsolicited message to the employee after viewing the online profile. However, the employee receiving such a message would be deemed to be seeking employment with the sender if the employee responds to the message and the employee’s response is anything other than a rejection.
In some cases, you may be authorized by an agency official to participate in particular matters from which you would otherwise have to be disqualified due to your job search.
If a search firm or other intermediary is involved, the employee is not disqualified unless the intermediary identifies the prospective employer to the employee.
Under PL 112-95 (the STOCK Act of 2012), those who are subject to submitting public financial disclosure reports (see below) must report to their agencies within three days and recuse themselves from certain decisions if they enter discussions regarding potential future employment or compensation with outside parties. This includes personal services such as teaching, speaking or writing that might not involve a formal employment arrangement. See OGE Legal Advisories 12-01 and 13-06 at www.oge.gov.
Section 207 of Title 18, U.S. Code, restricts activities of individuals who leave government service or who leave certain high-level positions in the executive branch. None of the provisions bar any individual, regardless of rank or position, from accepting employment with any private or public employer after government service. Section 207 only prohibits individuals from engaging in certain activities on behalf of persons or entities other than the United States, whether or not done for compensation. None of the restrictions bar self-representation.
For purposes of this law, a “senior” employee is one who was employed in a position for which the rate of pay is specified in or fixed according to the Executive Schedule, in a position for which the rate of basic pay is equal to or greater than 86.5 percent of the rate of basic pay payable for Level II of the Executive Schedule. This includes many Senior Executive Service members, senior scientific or technical employees, and others at comparable levels.
A “very senior” employee is one who was employed in a position at a rate of pay payable for Level I of the Executive Schedule, or in a position in the Executive Office of the President at a rate of pay payable for Level II of the Executive Schedule. This includes Cabinet Secretaries, the Vice President and high-level White House staff.
The major provisions of the law are:
- No former employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties, in which he participated personally and substantially as an employee, and in which the United States is a party or has a direct and substantial interest.
- For two years after his government service terminates, no former employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties, in which the United States is a party or has a direct and substantial interest, and which such person knows or reasonably should know was actually pending under his official responsibility within the one-year period prior to the termination of his employment with the United States.
- For one year after his government service terminates, no former employee may knowingly represent, aid, or advise on the basis of covered information, any other person (except the United States) concerning any ongoing trade or treaty negotiation in which, during his last year of government service, he participated personally and substantially as an employee.
- For one year after service in a “senior” position terminates, no former “senior” employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of a department or agency in which he served in any capacity during the one-year period prior to termination from “senior” service, if that communication or appearance is made on behalf of any other person (except the United States), in connection with any matter concerning which he seeks official action by that employee. “Senior” level officers or employees of the executive branch include persons paid on the Executive Schedule, and those who are paid at a rate under other authority which is equal to or greater than 86.5% of the basic rate of pay for Level II of the Executive Schedule; military officers in a pay grade of 0-7 or above; and certain staff of the President and Vice President.
- There is a two-year “cooling off period” during which a former very senior employee is prohibited from representing anyone other than the United States before any department or agency in which he served and before certain high level executive branch officials.
In addition, agency-specific policies apply in some cases. Check with your agency’s ethics office to determine if any such restrictions apply to you.
Supplementation of Salary
Executive branch employees may not be paid by someone other than the United States for doing their government job. Thus, for example, a highly paid executive of a corporation upon entering government service could not accept an offer from her former employer to make up the difference between her government salary and the compensation she received from her former employer.
Certain career or politically appointed federal employees, generally including those in the Senior Executive Service and at comparable pay levels in other salary systems, are required to file a publicly viewable report disclosing their financial interests as well as those of their spouse and minor children. Some of these forms, mainly those filed by officials subject to Senate confirmation, are held at the Office of Government Ethics and are accessible through www.oge.gov. Others are held by employing agencies.
Certain other less senior employees are required to file confidential financial disclosure reports. These mainly involve positions whose duties involve the exercise of discretion that could have an economic impact on non-federal entities, in areas such as contracting, procurement, administration of grants and licenses, and regulating or auditing. Agencies further have discretion to require confidential disclosures in certain other circumstances. These confidential forms are held at the employing agencies.
For public disclosure filers, the STOCK Act of 2012 (P.L. 112-95) generally requires reporting certain personal transactions within a month; under a later revision, a similar requirement for certain transactions by a filer’s spouse or dependent children was imposed. For certain officials at the highest levels, the law also imposed an obligation to report mortgages on personal homes in some cases. However, a provision requiring that agencies post online the public disclosure forms of those below the level of presidential appointees requiring Senate confirmation never took effect due to a series of delays and was suspended indefinitely in 2013 by P.L. 113-7.
There are potentially both civil and criminal penalties for knowing and willful falsification or failure to report required information on a financial disclosure form.