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June 6, 2011

Notes from DEC/EC Meeting
Monday -- June 6, 2011

Items for Discussion/Presentations:

  1. Advisory Committee and Editorial Board Service (presented by Marilyn Rogalski): See attached slides (pdf, 5 pages)
  1. Gift scenario: can AOs accept this invitation? The invitation (scanned pdf, 1 page) to the Marriott’s client party was sent to employees because of their NIH positions (Admin Officers). Thus, an exclusion or exception must apply in order for the gift to be accepted. The refreshments can be accepted under one of two exclusions: 2635.203(b)(1), modest items of food and refreshments offered other than as part of a meal; or 2635.203(b)(4), opportunities available to the public because the invitation states “[t]his is an open invitation event so please feel free to forward this invitation to others . . . .” The prizes, if won, could be kept by an NIH employee pursuant to 2635.203(b)(5), prizes given to competitors in contests open to the public. The prizes meet this exclusion because the employee’s entry into the contest is not required as part of his official duties, but rather is at the employee’s discretion.
  1. 520 scenario: prior approval to serve as a compensated Minister of a church? Need prior approval before engaging in certain outside activities (5 CFR 5501.106(d)(1)-(2);
    1. Provision of consultative or professional services, including service as an expert witness;
    2. Teaching, speaking or writing that relates to the employee’s duties;
    3. Provision of service to a non-Federal entity as an officer, director or board member, or a member of a group (commission, council or board) which requires the provision of advice, counsel or consultation); or
    4. Outside activity with a prohibited source.

Despite 1-4 approve, no prior approval needed if outside activity is with the following groups:

  • Religious;
  • Political;
  • Social;
  • Fraternal; or
  • Recreational

unless the activity is compensated (accept for reimbursement of expenses) or the provision of professional services (e.g., medical, legal or accounting services).

Professional services is defined at 5 CFR 2636.305(b)(1) as a “calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical or scholarly principles underlying such skills and methods.”

So, a compensated outside activity with a church may not need a 520 if the activity does not involve the provision of “professional services.”

  1. Clearing SGEs: Emoluments Clause and FGDA: The Emoluments Clause prohibits federal employees, including some SGEs, from receiving compensation and gifts from a foreign government or a foreign governmental entity. The Foreign Gifts and Decorations Act (FGDA) is exception to the Emoluments Clause which allows certain gifts to be accepted. If the advisory committee is not subject to the Emoluments Clause (check list on OFACP’s website https://ofacp.od.nih.gov/), then the SGE may have a compensated outside activity with a foreign government or foreign governmental entity (because compensation for services rendered is not a gift) and/or accept gifts which are permissible under the FGDA, such as gifts with a value of less than $350 (value recently raised, see below).

Announcements:

  1. 278 30-day grace period expires June 15, 2011.
    • 45-day extensions are still available but they run from May 16
    • If no report on June 16 (and no extension request), pursue $200 late fee
  1. Increase in FDGA minimum to $350 (up from $335).
    • Retroactive to January 1, 2011
    • Increases 450 and 278 reporting threshold for gifts received in 2011 (to be reported in 2012) and 278 term reports gifts received in 2011
    • Increases non-sponsored WAG ceiling to $350, too
    • See Federal Register notice (FR Vol. 76, No. 127, pages 38547-38548, July 1, 2011)
  1. FOIA for all 278s from CY 2005 (filed in 2006) through CY 2011 (filed in 2011).
    • Final (amended, if applicable) reports needed
    • Submit on a rolling basis to IC FOIA coordinator, older reports first
    • Questions should be addressed to IC FOIA coordinator
    • See attached e-mail for further information (pdf, 2 pages)
  1. New awards procedures
    • Send notification letter to NEO immediately
    • Consolidated IC/NEO contact with organization, where possible
    • Drafting an awards process overview to send to organizations

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