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May 2, 2011

Notes from DEC/EC Meeting
Monday -- May 2, 2011

Items for Discussion/Presentations:

  1. WAGs, continued from last month
  • Meals and receptions that are incorporated into the event. See attachment: Check the registration form first. If payment of the registration fee covers the costs of meals (see attached agenda and registration form as an example of such (pdf, 6 pages)), then you do not need to accept the meals under separate WAGs. In this case, either the government has paid for the meal (so no gift, 5 CFR 2635. 203(b)(7)), or an all-inclusive WAG (or 1353 travel authority if the event is not local) covers acceptance of the meals within the registration fee.
  • Sporting events: Usually, a sporting event is not a WAG because this type of event does not give an opportunity for “an exchange of ideas.” See DAEOgram DO-07-047 section 3. OGE web site, (pdf, 42 Page) 
  • Free attendance offered by non-sponsor: It is important to determine who is offering the gift of free attendance. If a non-sponsor offers the gift, the value of the gift must be below the dollar threshold (recently raised to $350) and 100 persons must be expected to attend the event. NOTE: For gifts from the sponsor, the regulations do not give a minimum number of attendees that are required for the exception to apply.
  • Possible use of exclusions when WAG exception is not a good option: The WAG exception is usually not beneficial when the event is scheduled during working hours (because an employee must attend the event in his/her personal capacity). So, consider using other exceptions or exclusions, such as the exclusion for when the event is free to all government employees. 5 CFR 2536.203(b)(4).
  • Possible use of 348 travel when event does not meet the WAG exception: The WAG exception requires persons with a “diversity of views” to be present. If that criterion will not be met (at an organization’s Board meeting, for example), consider whether the meeting meets the 348 (travel from a non-federal source) exception. Speak with EO or AO to get this determination. Whether an event meets the 348 definition is not a determination that an ethics official should make.
  1. 278 extensions (presented by Elton Croy): See attached summary (pdf, 1 page).
  1. IPAs and section 208: An employee who is on detail to the NIH from another institution remains an employee of his/her home institution. Thus, an IPA detailee may not participate in matters as a federal employee that affect his/her personal and imputed interests. This means he/she may not be assigned to participate in matters that affect his/her home institution, both specific party matters and matters of general applicability.

    If an employee is detailed full time to the NIH and is on a leave of absence from his/her home institution, a regulatory waiver allows the IPA detailee to participate in any particular matter of general applicability that affects his/her home institution as long as the matter will not have a special or distinct effect on that institution other than as part of a class. You should confirm with the institution that the detailee is on a leave of absence before applying the regulatory exemption for general matters. See 5 CFR 2640.203(b).

    If the detail is for less than 100% of the person’s time, the detailee may work on matters that affect his/her home institution while at his/her institution, or otherwise on his/her institution’s time. For example, a part-time IPA detail may be able to remain as PI on an NIH grant while serving on an IPA detail to the NIH. However, the representation ban in 18 USC 205 may prohibit some of the PI’s interactions with the NIH as PI. A co-PI may need to be appointed to handle these duties.

    Ethics officials should: 1) ask their EOs to notify them when an IPA detail is coming on board (preferably before the detailee arrives); and 2) discuss the limitations of sections 205 and 208 with the detailee’s supervisor and the detailee him/herself.

  1. Speaking engagement at grantee institution involving previously approved outside writing activity: Marketing of a book, such as participating in a book signing, is generally covered by the initial 520 (often it is incorporated into the contract) and is permitted without additional clearance. Lectures on the book’s subject matter at a university, for example, require a new clearance which must be done on a case-by-case basis. With book talks, the outside employer is the sponsor of the talk (the university) and not the publisher (unlike with a book signing). Thus, a conflicts analysis between the employee’s official duties and the sponsoring entity would be required before the lecture could be cleared as an outside activity. (Any potential conflict would be with the sponsoring entity and not the subject of the lecture; the subject matter was already cleared when the employee received permission to write the book (assuming the scope of his official duties have not changed).)
  1. Awards scenario: Items of little intrinsic value (i.e., items without inherent value) may be accepted under the gift exclusion at 2635.203(b)(2) if such items are given to the awardee solely for presentation. However, a medal made out of precious metal, or a crystal trophy purchased from a well-known designer (e.g., Waterford or Lalique), has inherent value and would not fit the 203(b)(2) exclusion. Such a gift may be accepted by the employee if, for example, the award is deemed bona fide under section 2635.204(d)(1).

Back to List of Meeting Notes (Posted 7/6/11 )