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October 3, 2011

NOTES -- DEC/EC Meeting
Monday, October 3, 2011

Items for Discussion/Presentations:

1. Open FOIA Request:

  • 278s for CY 05 - CY 10
    Be sure to send final (corrected) copy of reports
  • (b)(1)(3) waivers
    • Ethics Offices supply copies of (b)(1) waivers
    • CMOs supply copies of (b)(3) waivers

2. Awards:

  • Turnaround time – NEO is receiving awards packages very late. Please get packages to NEO sooner. Also, stress to employees to send ethics office notice of receipt of awards immediately.
  • Honor vs. gifts –
    • The issue is almost always whether the employee can accept the gifts associated with the awards (trophy or medal made from precious or semi-precious materials; cash; and/or meals and travel for guests).
    • The honor of being named the award recipient and giving a lecture on current research is usually not an issue. In this case, IC can accept travel under 348 mechanism.
    • Occasionally, an award can be treated as an outside activity request.; NOTE: awarding organization may be a prohibited outside employer (SAO or SRI) under the supplemental regulations.; Also, topic of lecture may become an issue; with a 520, cannot talk about current research.
  • How are the new award procedures working for ICs
    • Send notification letter to NEO immediately – please note that you are sending letter pursuant to this procedure
    • Consolidate IC/NEO contact with organization, where possible – again, let NEO know as soon as possible if you have an issue (perhaps lecture associated with award, or 204(d) criteria).
  • Drafting an awards process overview to send to organizations – FYI; working with OIR to send information to awarding organizations to help educate them on the process and 204(d) requirements.
  • Analysis sheet – helpful?
    • When sending award package to NEO, MUST include IC determination whether award can be approved, and if not, why not (e.g., written criteria missing or lacking; issue with associated lecture)

3. Outside Activities and Part-Time Employees (P-T):

  • Supplemental regulations apply to P-T employees, so 520 may be needed in order for them to engage in activity that is their “day job,” i.e., where they work full-time.
  • Ask about their day jobs – so when meeting P-T employees, inquire into other employment.  Remind AOs and supervisors of 520 requirement for P-T staff.

4. Whistleblowers:

  • FYI – a big topic at OGE conference; two sessions: 1) Session 34: How Free Speech Intersects with Whistleblowing (pdf, 9 slides, 2-page handout), and 2) Session 52: Whistleblower Disclosures: Reporting Allegations of Wrong-Doing to the Office of Special Counsel (pdf, 26 slides).
  • Not necessarily an ethics issue; all employees have an obligation to report waste, fraud and abuse on a variety of topics.

5. The WAG Exception vs. Use of 348 Authority:

  • “Own time and dime” vs. official time and travel
  • WAG is an exception that allows an employee to personally accept a gift; therefore, employee must be on his/her own time when attending a WAG, and if travel is involved, pay that expense personally.
  • Occasionally, there may be an agency interest in an employee attending a gathering in his/her official capacity (e.g., Lasker Award Luncheon when NIH is being honored). In that unusual case, employee does not need to take leave, NIH pays travel expenses, and NIH accepts gift of attendance under 348 mechanism.

6. Anti-Lobbying Act:

  • Ok to educate – similar to giving an official duty speech at a fundraising event without making a solicitation for funds, an employee can present information at a lobbying event (e.g., a training session for grassroots lobbyists to provide substantive information on a topic) and not violate the Anti-Lobbying Act.
  • Anti-Lobbying Act bars the use of appropriated funds (i.e., official duty time and resources) for lobbying activities. Dissemination of information to lobbyists for educational purposes is not a violation.

7. Emoluments Clause (EC) and Foreign Gifts and Decoration Act (FGDA):

  • When they might apply –
    • EC prohibits employees (FTEs and some SGEs) from accepting emoluments (compensation), presents (gifts), titles (knight) and offices (adjunct professor; trustee) from a foreign governmental entity.  Note:  NIH may accept gifts (travel reimbursement, for example) in connection with an employee’s official duty activities.  EC applies in employment and gift-giving situations.
    • FGDA permits employees (FTEs and SGEs) to accept certain gifts from a foreign governmental entity.  FGDA applies only in gift giving situations.
  • Relationship between the two – FGDA has a two-fold application
    • As an exception to the EC’s prohibition against gifts – allows employees subject to the EC to personally accept certain gifts from foreign governmental entities.
    • As an independent ban against gifts from foreign governmental entities except for the gifts specifically permitted by the statute even if the EC does not apply.  Gifts permitted under the FGDA may include items valued at less than $350; travel originated wholly outside the U.S.; decoration (medals, ribbons); and educational scholarships.

8. Comments regarding the Ethics Conference:

Posted 12/14/11