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March 4, 2013

NOTES -- DEC/EC Meeting
Monday, March 4, 2013

Recusal Obligation When Seeking Employment

The statute (18 USC § 208) (in relevant part) prohibits “personal and substantial participation” by an employee in “a particular matter” if that matter will have a “direct and predictable effect” on the financial interests of a person with whom the employee is negotiating employment. 

For purposes of this discussion, an IRP employee, Irwin, is seeking employment at Harvard.

In order for participation to be “substantial,” it has to be more than administrative.  So, for example, if Irwin received a call from a Harvard investigator who wanted a knock-out mouse, and Irwin routinely complies with all such requests (because it is NIH policy to always send mice once the results of the research are published), Irwin could take the caller’s name and address and have staff send the mouse.  In doing so, Irwin was simply handling an administrative matter.  Rule of thumb:  when the employee does not have discretion in a matter (because, for example, NIH policy dictates his actions), the employee will not have “substantial” participation as that term is defined within the statute.

Now let’s say that the Harvard investigator wanted the same publicly-available mouse, but also wanted to talk to Irwin about the mouse.  Irwin, however, is not the subject matter expert with respect to that mouse.  Irwin may refer the caller to the content expert even if that expert is a subordinate; such a referral would not violate NIH’s policy of “recusing up.”  Recusing a matter to a superior only applies to matters from which Irwin is recused because the matters are assigned to him, i.e., the matter requires his expertise or authority (like signing a purchase order or reviewing the work of a direct subordinate).  Referring a matter to the correct content expert is a different situation from one that triggers a recusal, and thus, allows for a different course of action.

Outside Activities:  “Can I do it, and if yes, do I need a 520?”

1. Is the activity prohibited?  See general prohibitions under 5 CFR 5501.109(c)(1)

No employment with Supported Research Institution (SRI), Substantially Affected Organization (SAO) or Health Care Provider or Insurer (HCP/I)
No Teaching, Speaking or Writing (TSW) for compensation with SRI, SAO or HCP/I
No employment or self-employment involving the sale or promotion of a product or service of a SRI, SAO or HCP/I

2. If general prohibitions apply, see if a specific exception applies that would permit the activity.  See 5 CFR 5501.109(c)(2)-(3)

Teaching an established course (or presenting one or several lectures of a course) at an educational institution
Engaging in clinical practice
TSW if unrelated to official duties and CME-accredited
Writing or editing if unrelated to official duties and peer-reviewed
Service on a DSMB for a SRI or HCP/I
Grand Round lectures at an educational institution
Service on a grant or scientific review committee
Employment involving manual or unskilled labor, hobbies, artistic endeavors or interests unrelated to NIH research
Employment with religious, fraternal, social, recreational or political organizations

3. If permissible, is a 520 required?  Yes, if the employee engages in one of the following four types of activities.  See 5 CFR 5501.106(d)(1)-(2).

Providing consultative or professional services, including service as an expert witness
Engaging in TSW that relates to your official duties
Providing services to a non-Federal entity as an officer, director, or board member
                NOTE:  mere ownership of a business (and not a board or officer position) does not trigger 520 requirement. 
Engaging in employment with (providing services to) a prohibited source

However, there is an exception to the 520 requirement.  See 5 CFR 5501.106(d)(3).  If the employment is with a religious, fraternal, social, recreational or political organization, no 520 is needed if the activity is uncompensated (except for reimbursement of expenses); and does not involve the provision of professional services (e.g., medical, legal, accounting, or engineering). 
NOTE:  a determination of whether an organization fits within one of these five categories will be made on a case-by-case basis.

Anti-Lobbying Reminder re:  Sequestration (From Ed Swindell, HHS DAEO)

As sequestration begins, employees should be counseled that although they may express their views on the subject on their own time using personal means of communication, federally-funded communications that lobby for legislative or executive actions to resolve the issue are restricted.  Personal communications that invoke official authority or title can also be problematic.  We have drafted language below and request that you convey to the employees within your respective components a reminder:

Federal appropriations cannot be used by employees, grantees, or contractors to urge members of the public to lobby their elected representatives or other government officials with respect to legislative or executive actions to resolve the sequester.  In addition, grantees and contractors cannot use federal funds to engage in direct lobbying on the subject.  Accordingly, federal employees should not use official time or government resources to suggest, for example, that those "who wish to help" should contact Congress.  Any official or personal use of social media, such as "liking" a Facebook page on the topic, that would suggest an official sanction to such lobbying messages should be avoided.



Posted 3/13