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November 4, 2013

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

Items for Discussion:

1. CFC

As CFC regulation (attached) notes, special CFC funding raising events, such as raffles, auctions and bake sales, are permissible, but must be “consistent with agency ethics regulations.”  So, for example, employees cannot solicit items to be used in such events from prohibited sources, but they may ask fellow employees to donate items (thus, asking them to make an in-kind donation to CFC). 

Likewise, such events may not be gambling, as that term is defined:

  • A game of chance:
  • Consideration for the opportunity to play the game: and
  • An offering of a prize. 

A CFC raffle would be permissible, however, if an employee was not required to make a donation (consideration for the opportunity to enter into the drawing) in order to participate.  Thus, the event would not be gambling even though the other two elements of the definition (a game of chance and the offering of a prize) are present.  NOTE:  no CFC event may be limited to those who contribute.  All events must be open to all NIH employees.

2. NEAC:  jurisdiction vs. classification of cases

First, determine if outside activity is permissible.  Perhaps an exception to the prohibitions applies.

Next, determine if a 520 is needed.  If it is needed, does the case fall within NEAC’s jurisdiction. 

NEAC’s jurisdiction is:

  • All 520s and awards from or for Senior Employee (“Top 5”);
  • Any award with gifts that will be accepted by the employee, directly or indirectly, with an aggregate value exceeding $2,500;
  • 520s involving biotech or pharma;
  • 520s where total compensation exceeds or expected to exceed $10,000, or any with a future income stream (such as royalties);
  • 520s for which proposed compensation is stock or stock options;
  • 520s which involve consultations with law firms and/or delivery of expert testimony in any administrative or court proceeding;
  • 520s or awards for which a waiver of applicable regulatory provisions are requested;
  • Any 520 or award that NEAC accepts within its jurisdiction.

If you are relying on the “greater than $10,000 in income” factor to send the 520 to NEAC, please verify the amount of past income through the 521 to confirm the income.  Sometimes, the expected income reported on the 520 (and what NEES uses to pre-populate the past income field on the renewal 520) is a lot less than the actual income. 

Once NEAC jurisdiction is confirmed, determine if an exception to that jurisdiction applies because the case falls within the NEAC classification of “Presumed Approved.”  For example, an outside clinical practice with estimated income of $27,000 was reviewed and recommended for approval by NEAC in 2011.  Even though it would fall within NEAC’s jurisdiction in 2012 and 2013 (because of the amount of income received), it can be approved at the IC because clinical practice is classified as a “Presumed Approved” activity.  Applying the exception, the next NEAC review would be in 2014.  See NIH Policy Manual 2400-06 for more information.  https://policymanual.nih.gov/2400-06

NEAC Classification of Cases:

  • Presumed Approved Activities:
    • Teaching a course or giving a single lecture within an established curriculum of an educational institution (elementary, secondary, or higher education);
    • Writing for a peer reviewed journal or textbook, or other publication subjected to a substantially equivalent editorial review process;
    • Editing for a peer reviewed journal or textbook or other publication subjected to a substantially equivalent editorial review process;
    • Clinical practice of medicine, dentistry, pharmacy, nursing, veterinary and animal husbandry or similar healthcare-related professional practice that involves the personal provision of care, treatment, or healthcare-related professional services;
    • Clerical, administrative or retail activities with a prohibited source such as filing, bookkeeping, maintenance or janitorial work;
    • Non-scientific professional services where licensing and/or certification is required such as law, realty, engineering, architecture, fitness and exercise provided the employee’s official duties are in a completely different field, and;
    • Board service for organizations and family-run businesses that are not scientific or healthcare-related, such as community and social organizations or real estate investment companies.
       
  • For Discussion Activities:
    • All outside activity and award requests for IC Directors;
    • All requests to engage in consultation with law firms and/or the delivery of expert witness testimony in administrative or court proceedings;
    • All outside activity requests to engage in consulting activities;
    • All outside activity requests to engage in speaking activities outside an established curriculum of an educational institution such as CME or Grand Rounds;
    • All outside activity requests to engage in board service for scientific organizations and other for profit organizations; and
    • All awards meeting NEAC jurisdiction.

3. Board Meetings as WAGs

  • While members of an organization’s Board of Directors usually hold other positions, those other positions cannot be used when determining if “persons with a diversity of views or interests will be present” at the event.  All Board members, when attending a function in their capacity as members of the Board only represent the views of that organization.  So, for example, if an NIH official is asked to speak at the FNIH monthly Board of Directors meeting, there will be only two views present:  FNIH’s and NIH’s.  The (g)(2) WAG exception cannot be used, but the employee may accept the gift of the meal under (g)(1) because of his/her presentation.  Also, the meal may fall under the $20 rule, so ask the cost.

4. Effects of Windsor:  financial disclosure reports; sections 208 and 2635.502

  • Pursuant to the Supreme Court’s decision in United States v. Windsor, the federal ethics rules now apply to employees in same-sex marriages in the same way that they apply to all married employees. 
  • Some of the rules that are affected by Windsor are those that govern financial disclosure reports. 
    • Re:  450 reports, filers of those reports must include same-sex spouse’s assets and income on their February 2014 reports, and if their spouse’s owned SAOs on August 19, 2013 (the date of the Windsor Legal Advisory), 450 filers should have reported those assets on a new 717 by September 30, 2013.  Future acquisitions needed to be reported as well. 
    • Re:  278 reports, filers of those reports must include same-sex spouse’s assets and income on their May 2014 reports, and if their spouse’s owned SAOs on August 19, 2013 (the date of the Windsor Legal Advisory), 278 filers should have reported those assets on a new 717 by September 30, 2013.  Future acquisitions needed to be reported as well.  Also, a 278-T report is required to be filed if a same-sex spouse makes any purchases or sales that are required to be reported on a 278-T report. 
    • See attached e-mail for additional information on Windsor.
  • Other  ethics provisions that are affected are section 208 (an employee cannot participate in a particular matter if that matter will affect his/her spouse’s financial interests) and section 2635.502 (an employee cannot participate in a specific party matter if he /she knows that his spouse (a person with whom he/she has a covered relationship) is or represents a party to that matter).

Reminders & announcements:

  • OGE 450 Filer List – Never Too Early To Start!
     
  • Equal Classification Determinations
     
  • 2013 All Employee Training
     
  • 2013 Program Questionnaire
     
  • 2014 NEO Program Reviews

 

 

Posted 12/09/13