Official Duty Activities Involving Outside Organizations

Official Duty Activities are those activities performed by an employee as part of, or an extension of, regular official responsibilities.  This discussion refers to official duty activities with an outside organization. The Standards of Ethical Conduct for Employees of the Executive Branch (at 5 CFR 2635) provide the basic guidelines for official duty activities, and the NIH sets the policy for implementing the guidelines at the NIH.  An employee may participate in such activities only with advance approval as indicated below. For questions about specific activities, contact your IC's Deputy Ethics Counselor or Ethics Coordinator.

The activities an employee performs must be related to his/her official duties.  Any official work performed with an outside organization must also be consistent with the authority and mission of the NIH.  There should be compelling agency policy reasons for official duty activities with outside organizations.  The activity must be avoided if the outside organization engages in lobbying or otherwise takes public positions on matters of significant controversy involving the NIH.  Such activity should be limited where it is likely that the outside organization may become involved in legal disputes or other actions (e.g., medical care, personnel) that could subject it to liability.  Because the activities are related to the employee's job, the employee may use non-confidential official information:

• that is available to the public or necessary to the work at hand, including information drawn from his/her current work or any work performed within the last 12-month period;
• associated with previous work (i.e., any matter in which the employee was involved prior to the last 12 months) regardless of whether it has been publicly disclosed; and
• that involves any on-going or announced NIH policy, program, or operation (rather than the outside organization's or the employee's general scientific or professional knowledge).

NIH Official Duty Policy Documents

January 23, 2008, Memo from the NIH Deputy Ethics Counselor notifying ICs about the new policy. The policy consists of 3 primary elements:

• Introductory Statement: Official Duty Policy
• Conflicts Assessment Sheet
• Official Duty Activity table of examples and approval level required (1/23/08).

See also the June 1, 2007, memo from the NIH Deputy Ethics Counselor to the IC Directors implementing the option to use a blanket official duty activity request to obtain permission for several official duty activities together. Blanket Official Duty Activity Guidance and REVISED Blanket ODA Request Memo [Template] is available on the forms page.

Official participation in a leadership position (e.g. officer, director, trustee, or other position or role having the same legal responsibilities or characteristics) of a 501(c) nonprofit professional organization

• NIH Ethics Policy: Official Participation in a Leadership Position of a 501(c) Nonprofit Professional Organization (7/19)
• Employee Guidance Notice: Official Participation in a Leadership Position of a 501(c) Nonprofit Professional Organization (10/14)
• Comparison Chart: NIH Employees’ Participation with 501(c) Nonprofit Professional Organizations (10/14)
• NIH Ethics Procedure: Processing and Reviewing Requests to Participate in a Leadership Position of an Outside Organization as an Official Duty Activity (12/15)
• NIH Ethics Analysis Worksheet: Official Participation in a Leadership Position of a 501(c) Non-profit Organization (7/19)

Pursuant to ethics regulations, and subject to agency approval, an NIH employee may seek advance approval to participate in a leadership position of a nonprofit 501(c) professional organization as an official duty activity. Under the policy, an employee may seek approval to serve in a leadership position of a 501(c) nonprofit that has received tax-exempt status from the IRS. The organization must also be considered “professional,” involving the skills of a profession, defined in  5 C.F.R. 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.”

Per the policy guidance:

• The employee and supervisor should consider the optimal means of participation (e.g. Official Duty, Federal Liaison, Outside Activity). Refer to the side-by-side comparison chart for more information.
• The official work with a 501(c) nonprofit professional organization must be consistent with and further the mission of the NIH.
• Employees assigned to leadership positions of nonprofit professional organizations are subject to restrictions and limitations as outlined in the Employee Guidance Notice.
  • The employee must provide the organization information on the restrictions and limitations applicable to official duty participation.
• Supervisor approval and DEC approval is required prior to participation.

The extramural community has two additional guidance documents applicable to extramural staff only:

• Conflict of Interest Procedures for Extramural NIH Employees in the Conduct of Their Official Duties
• Case Studies:  Extramural Official Duties and Conflicts of Interests includes the following case studies (each individual pdf file):

1. An Extramural Scientist with Significant Intramural Responsibilities
2. Giving Scientific Advice to an IC Director on Extramural Activities
3. Scientific Officers on Cooperative Agreements
4. Intramural & Extramural Scientific Research Collaboration within the Same IC
5. How Collaborative Relationships that Change Over Time can Impact Conflicts of Interests - Giving Lectures
6. IC Directors and Mentorship
7. IC Directors with Intramural Laboratories Collaborating with Extramural Organizations
8. Extramural Science Administrators Reviewing Manuscripts
9. SRAs and Conflicts -- Managing a Workshop
10. Public-Private Partnerships
11. Another Public-Private Partnership
12. Conflicts Emerging from Collaborations with For-Profit Organizations (Does size and structure matter?)

NIH/FAES Memorandum of Understanding Regarding Interactions (2/26/10)

The MOU defines the NIH position which serves as the official NIH Liaison to the Foundation for Advanced Education in the Sciences (FAES) Board of Directors and limits the number of NIH employees who may serve on the Board. Other employees may be considered on a case-by-case basis for Board membership or other activities with FAES in an official capacity. For consideration, the proposed activities with FAES must be consistent with the employee's current official NIH assignments.

Publication Copyright and Public Access Issues : An employee working in an official capacity is working on behalf of the NIH, not in a personal capacity. Without appropriate authority, employees may not sign legal documents which bind the NIH. Employees may NOT sign any forms from publishers or other outside entities, but must use the approved NIH forms and follow the NIH Procedure for Complying with the NIH Public Access Policy, which was distributed by OIR on May 15, 2008. The procedure and public access policy documents are maintained on the NIH Office of Intramural Research Source Book web site. Use the above link for access to the various documents

Presentation Disclosure Form : Some organizations require speakers to sign a form for the organization to confirm the speaker has permission to use copyrighted material in the presentation, or for the speaker to declare financial interests, if any, in a commercial organization with an interest in the topic of the presentation. When giving an official speech, employees must use the NIH Presentation Disclosure Form unless the organization requires the employee to use their own form. In that case, the organization's form must be reviewed by the appropriate official in each IC, often in the Technology Transfer Office, before the employee signs and returns it to the organization.

General Employee Guidance for Official Duty Activities

The following rules generally apply to an NIH employee when engaging in any official duty activity with an outside organization:

• The employee may not make a representation on behalf of another to the executive, legislative, or judicial branch with an intent to influence. Examples of such matters include signing an application such as a request for funding that is submitted to the NIH for a conference grant or contacting the Internal Revenue Service on behalf of the organization in regards to the organization’s tax status or filing. 18 U.S.C. § 205.

• The employee may not participate in any particular matter that will affect his own financial interests as well as those of certain other persons. 18 U.S.C. § 208. 

• The employee may not be paid by anyone other than the United States Government for performing his or her official Government duties. This includes any supplementation of salary, including personal reimbursement of travel expenses. 18 U.S.C. § 209.  

• The employee remains subject to the Standards of Conduct for Employees of the Executive Branch. As such, the employee would generally be prohibited from receiving gifts from a prohibited source or given because of his official position under 5 C.F.R. § 2635.203(d) unless an exception applies. For example, an exception exists for meals valued at $20 or less, per source, per occasion, not to exceed $50 in a calendar year from the same source. 5 C.F.R. § 2635.204(a).

• With limited exceptions, the employee is prohibited from fundraising in his or her official capacity. 5 C.F.R. § 2635.808. 

• The employee remains subject to the Hatch Act. Thus, the employee may not engage in political activity – i.e., activity directed at the success or failure of a political party, candidate for partisan political office, or partisan political group – while the employee is on duty.

• The employee remains subject to the Anti-Lobbying Act and may not lobby any federal, state, or local government official while performing his or her official duties. 5 U.S.C. 7324 and 18 U.S.C § 1913.

Additional Guidelines for Official Duty Activities With Outside Organizations

1. Advance Approval Required:  Official duty activities must be requested and approved before an employee may participate in an activity with an outside organization.  Most activities may be approved by the supervisor, while other activities require approval by the Deputy Ethics Counselor.  The IC may determine whether supervisory permission will be given verbally or in writing (email is acceptable in most cases).

   Note: Please send all official duty actions for IC Directors that require either an ethics OR supervisory review to NEO, and not directly to the NIH DEC's office.

2. Compensation: An employee is compensated by the Federal government for performing his/her official duties. Therefore, an employee may not accept any additional compensation from an outside organization or source for performing his/her official duties. This does not include travel or per diem expenses which may be allowable with prior approval through the HHS-348 sponsored travel process (sponsored travel is a gift to the agency, not to the employee). In appropriate circumstances, acceptance of monetary awards is permissible (see also Acceptance of Awards and Honorary Degrees).

   Note:  If an organization expresses a desire to give an honorarium to an Institute or Center because the employee cannot accept an honorarium for an Official Duty Activity, the organization must be referred to the IC Executive Officer or Budget Officer.  If an employee helps determine to whom the funds are given in lieu of an honorarium, it would be deemed "constructive receipt" of the honorarium on the employee's part, which is prohibited.

3. Official Time: An employee who performs his/her officially assigned duties and responsibilities with outside organizations is working on official time and therefore he/she is not required to take annual leave or leave without pay.
    
4. Use of Government Resources: An employee may use Government equipment, supplies, services, and staff to carry out his/her assigned duties with outside organizations. The employee travels using Government travel orders, and may travel on an approved HHS-348 if applicable.
    
5. Use of NIH Space: An employee may use NIH space and facilities when needed to accomplish official duty work with an outside organization. Meeting rooms and other space must be requested in the same manner as for any internal NIH function.
    
6. Use of Official Titles: Outside organizations may use the official titles of an employee as a reference, identifier, or to promote attendance at public meetings or presentations, when the employee is participating in an official capacity.  (Official title may not be used to imply endorsement of the organization or its products or services, if any.)  See also Use of Official Title in Activities with Outside Organizations.
    
7. Official Duty and Outside Activities with the Same Organization: In most cases, having an approved outside activity requires the employee to recuse from official matters involving the same non-federal entity during the timeframe of the outside activity plus an additional one year after the outside activity ends. In some cases, the recusal is also required in relation to official matters that do not involve, but would affect, the non-federal entity. In either case, employees must obtain separate approval through the employee's Ethics Office before engaging in the official duty activity. 
   
   Example: An employee is an officer in a professional association as an approved outside activity. The employee's abstract is accepted for presentation at the association's annual conference. The topic of the abstract is current official work. Because the employee is recused from all official matters involving the professional association, the employee must obtain separate approval from the Ethics Office before giving the official speech. The Deputy Ethics Counselor may determine that it is in the Government's interest for the employee to give the speech, and may then grant an authorization to manage the appearance of a conflict of interest under 5 CFR 2635.502.
   
   Note: In the event that the employee engages in personal or outside activities while on official travel, any expenses associated with those personal or outside activities are the sole responsibility of the employee. If the employee's decision to engage in the personal or outside activity would increase the cost of the trip (e.g., extra night in a hotel, or more expensive travel), those costs must similarly be borne by the employee. Additional restrictions may apply if sponsored travel is involved.
    

8. Participation in the Business Affairs of Outside Organizations: An employee performing an official duty activity may not participate in making decisions or taking actions that affect the internal business affairs of the organization, including:

   • personnel actions regarding the staff of the organization and/or establishing their compensation and benefits;
   • the financial management of the organization, including sources and disposition of the income of the organization, management of investment portfolios, or other related matters; or,
   • fund-raising activities.

   This type of participation MAY be authorized for employees who serve as officers or directors of outside organizations under compelling conditions AND with a waiver.  Consult with your Deputy Ethics Counselor if this situation applies to you. 

9. Federal Liaison Activities:  For some activities with outside organizations, it is important that an employee formally represent the interests of NIH. When an employee is asked to serve as a spokesperson for NIH policies or programs with an outside organization, he/she is designated as a Federal liaison to the organization
   • A Federal liaison must serve as a non-voting, non-fiduciary agency representative to the outside organization. (In some standard setting organizations, there is authority for the Federal Liaisons to vote.)
   • An employee serving in this capacity must not participate in the internal or business affairs, or fund-raising activities of the outside organization.
   • For all other purposes, the employee is subject to the same provisions that apply to NIH employees engaged in official duty activities.
   • An employee may participate as a Federal liaison on Government time, use Government equipment and services, and travel on Government travel orders.

For additional information, contact your IC's Deputy Ethics Counselor or Ethics Coordinator.