Commissioned Officers and Ethics

The following is a summary of a presentation by Captain Denise Canton, Senior Personnel Policy Specialist, Division of Commissioned Personnel, DHHS, at the December 17, 1997, meeting of the NIH Ethics Coordinators. Background materials provided by Captain Canton are referenced at the end of the summary.  This document is updated as rules and regulations change.  

Note changes as of August 2004 regarding activities during terminal leave.

BACKGROUND ON LEAVE STATUS (1)

When Ethics Coordinators (ECs) deal with Outside and Official Duty Activities, questions about the use of leave by Commissioned Officers (COs) can arise. The following section on Leave Status is intended as general background for EC review of ethics related activities.

• 24-Hour Service. Leave for COs is related to the military system and is governed by the Commissioned Corp (CC) personnel manual. COs are considered to be available to serve 24 hours a day, 7 days per week, and are either "on duty" or on approved leave. Actual working time is considered "on duty" time. If an officer is requested to work more than 8 hours a day and/or more than 5 days a week, he or she is expected to do so. Unlike civilian government employees, COs cannot receive overtime or compensatory leave. Technically, COs do not participate in maxi/flexi scheduling; however, work hours can be arranged to meet program needs. Officers cannot accumulate compensatory time (credit hours), but supervisors have the discretion to give officers time off in the form of Station Leave.
   
• Annual Leave. Officers earn 2 1/2 days per month, use a total of 30 days of Annual Leave per calendar year, and carry over 60 leave days to the next year. Any carry over leave in excess of the 60 days is lost; there is no provision for using excess leave after the end of the calendar year.

  Annual Leave must be taken in whole day increments (if the officer must leave the duty station for less than a whole day, then the supervisor may grant Station Leave). Annual Leave must be approved in writing ahead of time, whenever possible.

  Any time nonwork days are surrounded by Annual Leave days, then those nonwork days must be taken as Annual Leave, as shown in Example 4 below.

  When an officer is on temporary duty, such as at a meeting, and takes additional days beyond the duty time, the extra time is normally taken as Annual Leave. However, this can be situation specific; officers and/or supervisors should consult the Division of Commissioned Personnel (DCP) for an assessment.

• Station Leave. Station Leave is any leave taken from the duty station that is less than a full day, or any leave taken during a nonwork day such as Saturday or Sunday (see the Examples above). This type of leave is granted at the discretion of the supervisor and can be used for medical appointments and other activities that must be done away from the duty station. Time off can be authorized as Station Leave; however, it cannot be routinely used to decrease an officer's duty hours.
   
• Terminal Leave. Terminal Leave is the amount of Annual Leave requested and approved before the officer submits the paperwork for separation from active duty. Terminal Leave is taken after the officer submits the separation papers and may be taken in one or several segments. An officer is still considered on active duty during Terminal Leave.
   
• Other Types of Leave.

  Sick Leave is only to be used for the officer's personal illness, and may not be used for taking care of sick relatives. It is not unlimited, and may not be accrued. The officer should notify the supervisor and complete a leave slip; the leave slip should be sent to the CC Medical Branch. Maternity Leave is the same as sick leave and covers post partum recovery, but not subsequent child care time.

  Court Leave is for jury duty or service as a witness for official/government business. It may not be used for private testimony; Annual or Station Leave must be used instead.

  Administrative Leave is used at the supervisor's discretion for job related activities, such as a change of duty station, taking an exam, attending a professional meeting, or attending a professional education session. It must be approved in writing, taken in whole days, up to a limit of 5 days per year. Administrative Leave may not be used for separation or retirement.

  Leave Without Pay (LWOP) cannot be granted by the OP/DIV; it can only be authorized by an official personnel order from DCP. LWOP is usually applied when an officer is detailed to a State or nonprofit organization; it may not be used for personal reasons.

  Absent Without Leave (AWOL) means the officer receives no pay nor medical care privileges and is automatically terminated from the Corp after 30 days of AWOL.

OUTSIDE ACTIVITIES

• Approval. Officers should request approval of Outside Activities via the HHS-520 and such requests should undergo the same ethics analysis as those of other employees. The appropriate use of government resources is outlined in the DCP annual memorandum regarding the Standards of Conduct (2). There is some latitude for the limited use of government resources for Outside Activities, but their use must be approved by the supervisor in advance. Each officer should send a copy of the approved HHS-520 to DCP (Parklawn Building, Room 4-35) for inclusion in his/her personnel folder.
   
• CC Associations. Officers are encouraged to participate in CC professional associations such as serving as an association officer. However, association activities should be performed as Outside Activities since the associations are separate and apart from the Department and have legislative and lobbying components. Typically, participation in these organizations is not considered part of an officer's duty assignment, but supervisors have the discretion to grant administrative leave for attendance at a CC professional association meeting, for example.
   
• Federal Funds. Officers cannot have any other Federal Government component contribute to his/her CO salary, e.g., serve as a contractor to the VA. Some organizations, such as a clinic, may receive Federal funds through Medicare or Medicaid. Officers may participate in outside activities with such clinics, provided they do not personally receive Medicare or Medicaid funds.
   
• Station vs. Annual Leave. Annual Leave must be used for compensated Outside Activities; Station Leave may not be used. At the discretion of the supervisor, Station Leave may be used for uncompensated Outside Activities that may support the mission of the Public Health Service, e.g., attending a professional meeting.
   
• Terminal Leave. While on Terminal Leave, an officer may conduct an Outside Activity. If an officer accepts a Civil Service position, to be performed while on Terminal Leave, the officer must ensure that the activity is documented with the Division of Commissioned Personnel by submitting the HHS 520 Request for Approval of Outside Activity.  Though this activity technically does not meet the definition of an outside activity (an outside activity for a CO is an activity with a non-government entity, and also a CO may not be paid from other Government funds on an outside activity), this form is used to document the activity.  This situation is the only exception to the outside activity request rule.  Other outside activities continue to require the usual advance approval via the HHS 520 form. This is one situation where the officer is exempted from the Dual Compensation prohibitions. See also the following section on "Post Employment" regarding an Outside Activity with a foreign government.  The use of the HHS 520 for having a government position during terminal leave was reinstated in August 2004.

POST EMPLOYMENT

• Foreign Employment. Officers who are on Terminal Leave, have retired from the Public Health Service, or are on inactive reserve, are still considered to hold a commission in the Corp and must, therefore, seek prior approval through DCP for foreign employment. Officers may work for a foreign government while on Terminal Leave, if they have consulted with DCP and received prior approval which includes official approval from DHHS and the State Department. Officers should seek DCP's or their Agency's Ethics Coordinator's advice when seeking employment with private companies doing business in foreign countries.
   
• Personal Services Contracts (PSCs) (3). It is recommended that retired officers submit PSCs to DPM for review before starting the activity. Active duty officers cannot accept Federal employment or be on a PSC as a consultant. Officers on Terminal Leave cannot accept PSCs or positions funded by DHHS grants. Retired officers who accept a PSC may be subject to dual compensation offset. The offset does not apply to independent contractors.

  The difference between a Personal Services Contract and an independent contractor is that, pursuant to 48 CFR 37.104, Personal Services Contracts are presumed to create an employer-employee relationship. Basically, these are contracts where individuals are contracted to perform duties normally performed by Civil Service employees, such as providing nursing services or pharmacy services. The supervision and equipment are provided by the Government. Thus, each contract has to be evaluated to determine which category applies.

HATCH ACT

• Officer's political activities remain restricted based on the old Hatch Act. The Hatch Act amendments, effective February 3, 1994, do not apply to COs. For example, COs may register to vote, but they may not wear any political buttons on their uniforms, cannot assist at the polls, and cannot participate in a political campaign.

For additional information, contact your Deputy Ethics Counselor(,1 page) or your ICD's Ethics Coordinator(,4 pages).

Footnotes:

(1) A Supervisor's Guide to the Commissioned Personnel System, 1995.

(2) July 3, 1997 Memorandum from Director, DCP to Active-Duty Commissioned Officers of the U.S. Public Health Service regarding Standards of Conduct. [This memorandum is updated and sent annually to all officers].

(3) 48 CFR 37.104 Personal Services Contracts, Title 48 of the Federal Acquisition Regulations System.

For additional information, contact your IC's Deputy Ethics Counselor(,1 page) or Ethics Coordinator(,4 pages).

Updated: 2/19/13