Ethics Advisor's Desk Reference

A Summary of Ethics Laws and Regulations for USDA Employees

For printing purposes, note that some of the material referenced in this "Desk Reference" points to content located in other places of the USDA/Ethics website (e.g., Appendices C, D and F). The links contained in this Desk Reference will redirect you to these documents, and - when this is the case - annotations have been made in the Desk Reference Text.

CONTENTS

PART I — GENERAL

PART II — AUTHORITIES

PART III — GIFTS

PART IV. — ETHICS AT THE OFFICE

PART V. — ETHICS OFF THE JOB

PART VI. — PROHIBITED FINANCIAL INTERESTS

Farm Service Agency (5 CFR § 8301.103)

PART VII. — POST-EMPLOYMENT ETHICS

APPENDICES

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PART I. — GENERAL

A. DEFINITIONS

“Agency” or “component” refers to all distinct USDA sub-components and offices.

“Agency designee” means an employee who has been delegated authority to make any determination, give any approval, or take any other action required or permitted under 5 CFR Part 2635 with respect to another employee.

“Designated Agency Ethics Official (DAEO)” means the Assistant Secretary for Administration. The Alternate DAEO means the Director, Office of Ethics.

“Federal agency” means an executive agency as defined at 5 U.S.C. § 105. This would include the Department of Agriculture (also referred to as “Department” or “USDA”), but not a component thereof (e.g., Rural Development).

B. SCOPE AND APPLICABILITY

Except for the provisions of 18 U.S.C. § 201, applicable to “public officials,” the ethics laws and regulations apply strictly to Federal employees. The degree to which those provisions apply depends upon the type of employee.

1. EMPLOYEES

Definition. The term “employee” refers to those persons possessing Federal employment status under 5 U.S.C. § 2105 which requires all of the following: (1) appointment to a position in the Federal civil service by a Federal official; (2) performance of a Federal duty; and (3) supervision by a Federal officer or employee.

Applicability. The full measure of ethics statutes and regulations apply to all Federal employees other than Special Government Employees (see 3, below). Statutes applicable to “public officials” apply to Federal employees, as well.

2. PUBLIC OFFICIALS

Definition. The phrase “public official” includes all Federal employees, as well as persons “acting for or on behalf of” any Federal agency or branch.

Applicability. For purposes of this guide, this applies only to the prohibitions in 18 U.S.C. § 201.

USDA “Public Official” examples (in addition to all USDA “employees”) may include:

FSA county/community committee members.
FSA county office employees.
State Extension Agents.
State employees on loan to USDA.

Personal service contractors.
“Checkoff” Fund members and employees.
Advisory committee members appointed as “Industry representatives.”

3. SPECIAL GOVERNMENT EMPLOYEES

Definition. A “Special Government Employee (SGE),” as defined under 18 U.S.C. § 202(a), is a Federal employee within the Executive branch retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any period of 365 consecutive days.

Applicability. SGEs are subject to the same ethical restrictions imposed upon other Federal employees with the following exceptions:

18 U.S.C. §§ 203 and 205. The prohibitions on “representing” apply solely as to:

A “particular matter involving a specific party” in which: (1) the SGE “participated personally and substantially”; or (2) Any “particular matter” pending before the SGE’s agency if the SGE has served 60 or more days during the preceding 365-day period.
18 U.S.C. § 207(c). The 1-year “cooling off’ bar on post-employment representation does not apply to SGEs who serve less than 60 days in the preceding 365-day period.
18 U.S.C. § 208(a). SGEs serving on advisory boards may seek a specific waiver, under 18 U.S.C. § 208(b)(3), to participate in a matter where the need for their services outweighs any conflict of interest.
18 U.S.C. § 209. This statute does not apply to those SGEs who are not compensated for their services.
5 CFR § 2635.805. Restrictions on serving as an expert witness apply only if:

The SGE participated in the proceeding or matter as an employee; or

The SGE is appointed by the President, serves on statutory commissions, or expects to serve more than 60 days AND the employing agency is a party or has a direct and substantial interest in the matter.
5 CFR § 2635.807(a)(2)(1)(E)(4). SGEs may receive compensation for teaching, speaking, and writing about agency policies, programs, and operations, so long as they were not assigned to those matters during the previous year.

USDA SGE Examples. Members of the following Boards of Directors are SGEs:

Alternative Agricultural Research and Commercialization Corporation.
Federal Crop Insurance Corporation.
Rural Telephone Bank.
Advisory committee members that are not appointed as “industry representatives.”

C. PENALTIES

Conflict of Interest Statutes (18 U.S.C. §§ 203-209). Penalties cited in 18 U.S.C. § 216.

Criminal penalties: Imprisonment of up to 1 year or up to 5 years for wilful violation and criminal fine of up to $50,000.
Civil penalties: For each violation, up to $50,000 or the amount of compensation received or offered, whichever is greater.
Administrative penalties: Full range of administrative discipline.

Standards/Anti-nepotism Statute/Gambling Restrictions.

Administrative penalties: Full range of administrative discipline.

Political Activity (5 U.S.C. §§ 7324-7327).

Administrative penalties: Removal (may be reduced only to a 30-day suspension).

Foreign Gifts Act (5 U.S.C. § 7342).

Civil penalty: Retail value of the gift plus $5,000.

Anti-lobbying Statute (18 U.S.C. § 1913).

Criminal Penalty: Imprisonment of up to 1 year and criminal fine of up to $50,000.
Administrative penalties: Removal from office.

Procurement Integrity Act (41 U.S.C. § 423).

Criminal penalties for obtaining/disclosing source selection/bidder information: Imprisonment of up to 5 years and criminal fine of up to $50,000.
Civil penalties for all violations: $50,000 per violation AND twice the compensation offered or received.

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Part II. — AUTHORITIES

A. BRIBERY AND CRIMINAL CONFLICT OF INTEREST STATUTES

The statutory prohibitions are found at 18 U.S.C. §§ 201-209. They serve as the basis for most standards of conduct prohibitions.

18 U.S.C. § 201 — BRIBERY AND ILLEGAL GRATUITIES

RULE: You may not accept a bribe or offer a bribe to a “public official;” accept an illegal gratuity (“gift”), offer an illegal gift to a “public official,” or promise a “public official” that you will give a gift to another, where the gift is offered or received in return for carrying out a specific official duty by that official.

This statute applies to gifts:

A bribe is distinguished from an illegal gratuity in that it is offered or received with an element of corruption.

Giving includes offering and promising.

“Public official” includes a person selected to become a public official. With regard to gifts received for acts performed, it includes a former public official, as well.

Receiving includes demanding, seeking, accepting, or agreeing to receive.

Related authorities:
18 U.S.C. § 209.
Gifts from Outside Sources

Received either:
with intent to influence official acts, defraud the Federal Government, or violate one’s official duties; or

for a specific official act performed/to be performed either by the donor or the “public official.”
Accepted directly and indirectly.

Example: Bill recently was nominated to serve as FSIS Agency Administrator. During Senate consideration, he received a call from Sam, President of Cluckers Poultry. Sam offers Bill a free trip for his wife, a Thai national, to Thailand if Bill will loosen certain poultry inspection requirements. Sam has violated the statute and, if Bill accepts the offer, he will also. Note: If the trip is not clearly offered in return for the sought official action, this statute might not apply. However, Bill still must be concerned with the following prohibitions: 18 U.S.C. § 205 (if he presses Sam’s position before his agency); 18 U.S.C. § 203 (if he works behind the scenes in support of someone else who is representing Sam's position); 18 U.S.C. § 209 (if this trip is in payment for an official act); and the regulatory restrictions on gifts, losing impartiality, and using his official position for Sam’s benefit.

18 U.S.C. § 203 — COMPENSATED REPRESENTATIONAL ACTIVITIES

RULE: You may not accept or solicit compensation for “representational activities” if in relation to a “particular matter” in which the government is involved or has an interest.

This statute applies:	“Representing” includes not only acting as another person's attorney or agent, but also includes knowingly making, with the intent to influence, any communication (oral or written) to or appearance before any officer or employee of a Federal agency. “Representational activities” are compensated activities in direct support of another person or organization who is “representing” before any Federal agency. "Particular matter" includes any matter that involves deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. It includes not only particular matters that involve the legal rights of specific parties (e.g., judicial proceediings, applications, requests for rulings and determinations, claims, contracts, grants, controversies, charges and accusations, investigations, etc.), but also matters such as legislation or policy-making where narrowly focused on the interests of such a discrete and identifiable class of persons). See “Special Government Employee” rules. Related authorities: 18 U.S.C. § 205. Service in Outside Organizations. Example 1: Compensation for your representational efforts. Ralph, a program analyst with FNS, also works as a contract manager for Data Associates (Data), a research firm. He is responsible for preparing proposals and bids for contracts. Data plans to bid on a Request for Proposals from the Food and Drug Administration (FDA). Even though the President of Data will sign the bid, Ralph’s work is directly tied to this representational effort. Ralph cannot be compensated for work in preparing Data’s bid to FDA.
To direct and indirect compensation (e.g., payment to one’s spouse); To acts undertaken in support of representing another even if actual representation was done by another (e.g., “behind-the-scenes” assistance); To partnership shares based on fees or profits based on services that the employee provided in support of representation to or before the Federal government.
This statute does NOT apply:
To compensation simply resulting from successful representation where the employee did not actually perform services in support of the representation. To representation in connection with the accomplishment of official duties.

Example 2: Compensation for representations made by others through partnership shares.
Don, who also works at FNS, is a Data Senior Vice President. His duties with Data have nothing to do with Data’s bid to FDA. However, his compensation from Data is partially derived from shares tied to company profits. He would not violate this statute by accepting that portion of his salary or benefits directly attributable to company profits based upon representations by Data to FDA, because his receipt of compensation was not related to services that he provided in support of representation.

18 U.S.C. § 205 — REPRESENTATION

RULE: You are prohibited from “representing” another person before a Federal court or Federal agency in a “particular matter” in which the United States is a party or has an interest.

This statute applies:	See “Special Government Employee” rules. Related Authorities: 18 U.S.C. § 203. Conflicting Financial & Personal Interests (Examples 2 & 5). Nepotism (Example 1). Testifying on Official Matters. Service in Outside Organizations. Example 1: Outside Business Interest. Allison, an AMS employee, prepares income tax reports for others in her spare time. If a tax report she prepared is audited by the IRS, 18 U.S.C. § 205 would prohibit her from representing her client during that audit. However, she could represent herself or an immediate family member before the IRS. Example 2: Outside Volunteer Activity. Randall, Forest Ranger at White Mt. National Forest (NF), is on the board of trustees of Redwood Foundation, a non-profit, tax exempt corporation operating informational sales booths on nearby Big Trees NF. Redwood uses the sales to support nature programs at Big Trees NF. Redwood seeks to enter a cooperative agreement with Big Trees NF to create two new trails. On behalf of Redwoods, Randall wants to discuss terms of the cooperative agreement with the Forest Ranger at Big Trees NF. He may not do so.
To paid and unpaid representation. Both on and off duty.
This statute does NOT apply:
To unpaid representation of one subject to disciplinary, loyalty, or other personnel administration proceedings. To representation of immediate family members in matters not under your official responsibility, or in which you have not “participated personally and substantially.” To representation in connection with the proper discharge of official duties. To unpaid representation of non-profit organizations comprised mostly of current Federal employees, spouses, or dependent children (e.g., An employee recreation association). To representation of one’s self. Absent an element of control or agency relationship.

18 U.S.C. § 208 — CONFLICTING FINANCIAL INTERESTS

RULE: You may not “participate personally and substantially” in your official capacity in any “particular matter” in which you have a direct or “imputed financial interest.”

This statute applies:	You “*participate personally and substantially” if your involvement is direct and significant. It includes involvement by decision, approval, disapproval, recommendation, rendering of advice, and investigation. “Imputed financial interest” includes those of: your spouse or minor child(ren); general partners; an organization in which you serve as an officer, trustee, general partner, or employee; and any person or organization with whom you are negotiating or arranging for employment. See* “Special Government employee” waiver. Related authorities: Conflicting Financial & Personal Interests (Example 2). Service in Outside Organizations. Seeking Non-Federal Employment.
Whether or not the financial interest actually affects your performance of official duties; Irrespective of amount or value; To the interests of your spouse’s employer or the employer of your minor child;
This statute does NOT apply if:
The interest is waived in writing by the agency, or by regulation; or The affect on the interest is speculative, or is not direct and predictable.

WAIVERS: If you have a conflict of interest, above, you still may be allowed to participate in otherwise prohibited official matters where the conflict of interest is waived under 18 U.S.C. § 208(b). The following bases for waiver exist under this statute:

Individual Waiver. You make full disclosure of the interest and receive, in advance, a written determination from the official who appointed you that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from you.
Regulatory Waiver. The interest is exempted pursuant to regulations issued by the Office of Government Ethics as too remote to affect integrity See 5 CFR Part 2640.

SGE Waiver. SGE serves on a Federal Advisory Committee and the need to have the employee serve is deemed to outweigh any potential conflict.
Indian/Alaskan Native Interests. The conflicting interest results solely from your birthrights in an Indian tribe, Band, nation, etc., Indian allotment, or Indian claim fund.

Example 1: Outside Business Interests.
On her own time, Ann is an officer in a professional organization which submitted a financial report to her agency. Ann's supervisor has asked her to review the report and make recommendations. She should advise her supervisor that she may not do so under the conflict of interest prohibitions which prohibit her from making decisions, recommendations, or taking an official action that can affect the financial interests of an organization in which she serves as an officer.

Example 2: Negotiating for Non-Federal Employment.
Ned, a contract administrator with RHS , wishes to negotiate for non-Federal employment with Textel, an onsite contractor. In the course of his duties, he may not participate in decisions or recommendations pertaining to Textel while he is negotiating. He must recuse (disqualify) himself from participation in official matters involving Textel while he is negotiating with that company. He must inform his supervisor and should also advise coworkers involved with him on Textel contracts of his disqualification. See also Seeking Non-Federal Employment.

Example 3: Scientific Peer Review.
Sarah, an ARS scientist, currently serves as a paid, part-time professor at State University. She has collaborated with scientists at the university in preparing a research grant application for submission to ARS. As the financial interests of the university are imputed to her, she may not participate in peer review of any applications submitted as part of the competitive process, serve on any recommendation or selection panels for awarding funds as part of that process, or serve as a formally-designated university investigator on the grant application.

Example 4: Service on Outside Boards in Official Capacity.
Toni, as Deputy Administrator for Food Programs at FNS , has been invited by Mothers & Babies, Inc. , a non-profit organization concerned with child nutrition, to serve on its board of directors in order that she may provide FNS perspectives and input. Absent statutory authority requiring such service, or a waiver, she may not do so. She possesses the financial interests of the organization at the same time that she is representing the interests of FNS . However, she may attend organizational meetings as an agency representative, or liaison. See Service in Outside Organizations.

Example 5: Indirect and Speculative Interests.
Bill, an employee of the National Agricultural Library, has been asked to serve on the technical evaluation panel to review proposals for a new computer system. His wife is president of DEF Corporation which often bids on agency computer projects. DEF does not bid on the contract, but EFG Corp., DEF’s main competitor in the area, is one of six bidders. Technically, Bill may still serve on the panel as any impact of such service on his financial interests is speculative and indirect. However, Bill still may well be advised to forego service on the panel due to the close competitive relationship between DEF and EFG in that area. It is quite possible that his actions or inactions on matters involving EFG may be seen as using his official position to benefit DEF by affecting EFG, negatively.

18 U.S.C. § 209 — DUAL COMPENSATION

RULE: You may not accept compensation or anything of value from an outside source for doing or not doing your government job.

This statute does NOT apply:	Related authorities: 18 U.S.C. § 201. Gifts from Outside Sources (Example 2). Conflicting Financial & Personal Interests (Example 4). Gambling (Example 2). Teaching, Speaking & Writing (Example 2).
To gifts from relatives and close friends; To a “Special Government Employee” serving without compensation; To compensation contributed out of the treasury of any state, county, or municipality.

Example 1: Gift
As part of her duties for RHS, Fran handled a problem with a lease application. In gratitude, the applicant sent her a $100 gift certificate. She may not accept this gift because it would be considered dual compensation. (It also could violate 18 U.S.C. § 201, or be an impermissible gift from a prohibited source).

Example 2: Honorarium for Speaking
Harold, an ARS botanist, is invited to speak at the Annual Conference of the National Plant and Vegetable Association. He will discuss ARS efforts in creating disease-free soybeans. He is being sent to the conference by ARS on official travel. Since he presents his speech as part of his official duties, he may not accept the Association’s offer to pay him $500 for speaking. This honorarium would constitute dual compensation since he is drawing Federal pay for making the speech.

Example 3: “Golden Parachute.”
Doug has just accepted a post as Associate General Counsel. His duties will encompass issues directly affecting his former employer, Contiguous Land Co. Contiguous wants to offer Doug a special "golden parachute" compensation package for going to work for the government. If Doug accepts this package after being appointed, he will violate 18 U.S.C. § 209. If he accepts the package before appointment, he would not violate this statute, but must be careful not to give the appearance of losing impartiality in dealings with Contiguous. See Conflicting Financial and Personal Interests, (Example 4).

B. GOVERNMENT-WIDE GUIDANCE

EXECUTIVE ORDER NO. 12674 PRINCIPLES.
This sets forth the 14 fundamental principles of ethical service. It is the foundation for the following ethics regulations. See: Rules of the Road.

5 CFR PART 2634 — FINANCIAL DISCLOSURE.
Procedures for filing public and confidential financial disclosure reports, creating qualified trusts, trust certificates, trustee approvals, ethics agreements, and certificates of divestiture.

5 CFR PART 2635 — STANDARDS OF ETHICAL CONDUCT.
Government-wide ethics guidance covering gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of official position, and outside activities.

5 CFR PART 2636, — SUBPART C EARNED INCOME LIMITATION.
Rules governing receipt of outside income by non-career employees (“15 percent” limitation), compensation and use of name relating to professions involving fiduciary relationships, compensation for service as officer or board member of an outside organization, and compensation for teaching without prior authorization.

5 CFR PART 2637 — POST-EMPLOYMENT PROHIBITIONS (I).
Guidance concerning post-employment restrictions under 18 U.S.C. § 207. Applicable to all employees, except for Senior Employees who terminated Federal service on or after January 1, 1991.

5 CFR PART 2638 — ETHICS PROGRAM DUTIES.
Procedures concerning Office of Government Ethics (OGE) direction and leadership of the government-wide ethics program, as well as the duties of and responsibilities of the DAEO for departmental ethics programs.

5 CFR PART 2640 — WAIVERS UNDER 18 U.S.C. § 208(b).
Standards for granting administrative and individual waivers for conflicting financial interests.

5 CFR PART 2641 — POST-EMPLOYMENT RESTRICTIONS (II).
Amendments to 5 CFR Part 2637 as a result of the Ethics Reform Act amendments to 18 U.S.C. § 207(c). Applicable to Senior Employees terminating Federal service subsequent to January 1, 1991.

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PART III. — GIFTS

A. GIFTS FROM OUTSIDE SOURCES — 5 CFR PART 2635, SUBPART B

RULE: Generally, you may not solicit or accept gifts: (1) from prohibited sources; or (2) based upon your official position. This rule applies: (1) whether ON or OFF duty; (2) to direct & indirect acceptance.

1. GENERAL DEFINITIONS. 5 CFR §§ 2635.201-.203.

"Prohibited source" includes any person, company, or organization that:

Has business with USDA or any of its agencies (see definition of "Agency" or "component");
Seeks to do business with USDA or any of its agencies;
Conducts operations regulated by USDA any of or its agencies;
Has interests that may be affected by your performance or nonperformance of official duties; or
Is a professional, technical, trade association, or other organization, a majority of whose members are prohibited sources.

The term "prohibited source" also may include an outside organization which seeks to influence USDA or a newspaper/media reporter.

"Gift" includes any tangible or intangible item, favor, gratuity, loan or forbearance, discount, entertainment, hospitality, travel, or travel-related expense obtained for less than market value.
"Vendor promotional training means" training provided by any person for the purpose of promoting its products or services. It does not include training provided under a government contract or by a contractor to facilitate use of products or services it furnishes under a government contract.
"Market value" means the retail cost that the employee would incur to purchase the item. Where actual market value cannot be ascertained, the employee may estimate it by reference to the retail cost of other similar items of like quality. The market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit, shall be the face value of the ticket.

2. GIFT EXCLUSIONS AND EXCEPTIONS. 5 CFR §§ 2635.203(b),.204.

EXCLUSIONS: Under 5 CFR § 2635.203(b), the following are NOT "gifts":

Coffee, donuts, and modest food items not offered as part of a meal;
Greeting cards and presentational plaques, certificates, and trophies;
Commercial loans on terms generally available to the public;
Commercial discounts/rates available to the general public or to a class of all government employees or all within a region;
Prizes in contests open to public;

Pensions/benefits from your involvement in former employer’s employee welfare & benefit plan;
Anything paid for/secured by the government;
Gifts accepted by the Government;
Travel expenses under 31 U.S.C.
§ 1353;
Anything for which you paid “market value.”

EXCEPTIONS: Under 5 CFR § 2635.204, the following are “gifts” that may be accepted:

Unsolicited gifts worth $20 or less (“market value”) per occasion from a single prohibited source. However, gifts from any single prohibited source may not exceed $50 per calendar year. DO NOT accept cash or other monetary instruments in any circumstances.
Speaking/Widely-attended gatherings: Waiver of conference fees & free meals when speaking or attending widely-attended gatherings in official capacity.
Discounts/similar benefits offered to the public, groups you belong to, or a widely diverse group of government employees.
Gifts based on outside business or employment relationships (e.g., because of your outside affiliations, work, etc.)

Gifts given by friends or relatives where the gift is based on the personal relationship. However, gifts given for business reasons or paid for by a prohibited source are not permitted by this exception.

NOTE: You should decline an otherwise proper gift from friends or relatives if you make significant decisions or make recommendations about that person's business or financial interests. To accept could still give the appearance of a loss of impartiality on your part.
Awards and honorary degrees. Requires Ethics Official’s approval both if award of cash, investment interest, or a tangible item is valued at over $200, and for honorary degrees.
Gifts to PAS employees from a political organization.

3. OUTSIDE EVENTS 5 CFR § 2635.204(g).

a. ACTIVE OFFICIAL PARTICIPATION. 5 CFR § 2635.204(g)(1).

YOU MAY accept free attendance at an event on the day of the presentation IF:

Provided by the event sponsor; AND

You are assigned to participate as speaker, panel member or to present information for the agency at a conference or other event.

NOTE: Your participation in such circumstances is a customary and necessary part of the performance of the assignment. It is not a gift to you or your agency.

b. WIDELY-ATTENDED EVENTS. 5 CFR § 2635.204(g)(2).

YOU MAY accept an unsolicited gift of free attendance at all or appropriate parts of a widely-attended gathering where the agency has determined that attendance is in the interest of the agency (attendance will further agency programs and operations) and either of the following conditions are met:

SPONSOR INVITATION

You are invited by the sponsor of the event; AND
A large number of persons are expected to attend and persons with a diversity of views/interests will be present (e.g., it is open to members from an interested industry/profession or attendees represent a range of persons interested in a given matter).

NON-SPONSOR INVITATION

You are invited by someone other than the sponsor of the event; AND BOTH
Over 100 attendees are expected; AND
The gift of free attendance has a “market value” of $250 or less.

DETERMINATION OF AGENCY INTEREST. 5 CFR § 2635.204(g)(2).

The determination shall be made by the agency designee. It may be made orally or in writing.

Written Determinations.
Required where the person who extended the invitation: Has interests that may be affected substantially by the performance or nonperformance of the employee’s official duties; Is an association or organization the majority of whose members have such interests. Standard. The agency’s interest in attendance must outweigh any concern that acceptance of the invitation may, or may appear to, improperly influence the employee in the performance of the employee’s official duties.	Consider the following factors: Importance of the event to USDA; Nature and sensitivity of any pending matters affecting the interests of the person who has extended the invitation; Significance of the employee’s role in any such matter; Purpose of the event; Identity of other expected participants; and “Market value” of free attendance. A finding may be issued to cover two or more similarly-situated employees.
Blanket Determinations.
A blanket determination of agency interest may be issued to cover all other categories of invitations. Free attendance. May include waiver of all or part of a conference or other fee or the provision of food, refreshments, entertainment, instruction and materials furnished to all attendees as an integral part of the event.	May not include travel expenses, lodgings, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. Spouses’ attendance. “Market value” includes the value of a spouse’s attendance.

4. AWARDS AND HONORARY DEGREES. 5 CFR § 2635.204(d).

AWARD ACCEPTANCE

Without Prior Approval.

YOU MAY accept an award if:

Not cash or investment interests;
The aggregate value is $200 or less;
A bona fide award or incident to such award given for meritorious public service or achievement;

AND
The donor neither:

Has interests that may be substantially affected your performance or nonperformance of official duties; nor

Is an association or organization the majority of whose members have such interests.

Prior Written Approval required.

YOU MAY accept awards in excess of $200, of cash, or of investment interests, for meritorious public service ONLY when subsequent to:

Advanced written approval by the Agency designee finding that:

The donor meets the criteria set forth previously (see “Without Prior Approval”);

The award is part of an established program of recognition under which awards have been made on a regular basis or are funded, at least in part, to ensure continuation on a regular basis; and

recipients are selected pursuant to written standards.
Requests should contain:

Your name, title, and location;

Name of awarding organization;

Whether the organization is a “prohibited source” & if the employee has a working relationship with the donor;

The request for award nominees or information on the award criteria;

Information on the award program.

HONORARY DEGREES

YOU MAY accept when:

Given by an institution of higher education; and
Subsequent to receiving a written determination by an agency ethics official that the timing of the award of the degree would not cause a reasonable person to question the employee's impartiality in a matter affecting the institution.
Your request for a determination in writing should include: Your name, title, and location and name of the institution of higher education.

Example 1: Gift From a Prohibited Source.
The onsite contractor wants to give an outboard motor to the agency contract manager who is retiring. The going away party is to be held after the employee leaves government service. Once the employee leaves government service the gift rules no longer apply, so as long as this is not a gift given because of a specific official act that was taken prior to leaving, the gift is acceptable.

Example 2: Awards.
Bryce, an FS Law Enforcement Officer, has been notified that he is to receive an award from the National Forest Federation. The Federation is neither affected substantially by Bryce’s performance of his official duties, nor a member of an association that is so affected. The award in question is a statuette of a Giant Sequoia Tree valued at $300. It is being presented to him for his contributions in the field of law enforcement. Because the gift is valued at more than $200, his ethics counselor must confirm that the National Forest Federation program has given awards on a regular basis in the past and that selection of award recipients was made pursuant to written standards. If so, it is permissible for him to accept. However, were the award an ad hoc award given for his handling of a recent timber theft case, acceptance may violate 18 U.S.C. § 209.

Example 3: Gift Based Upon Official Position.
Alison , a new ARS Associate Administrator, has been offered free tickets to attend a banquet sponsored by the National Cotton Association. She is not a member of the Association and was not involved with the Association prior to her appointment. She clearly is being invited because of her official position. She may pay for her own ticket or, if the event meets the criteria for a “widely attended event” under the gift rules, she may accept free attendance. Otherwise, she may not accept the invitation.

Example 4: Items Available to the Public.
Bob, a botanist with the National Arboretum, attended a luncheon sponsored by a civic group. He paid for the luncheon out of his personal funds and attended on his own time. There was a door prize/drawing and his name was selected. The prize was for $1,500 worth of advertising in a local publication. He wants to donate the prize to the Friends of the Bonsai. This is acceptable because a gift received in a contest that is open to the general public is not covered under the gift acceptance prohibitions. Since he attended as a private citizen, the prize is his to do with as he pleases. He could not accept, however, if he attended in his official capacity.

Example 5: Perishable Goods.
An Indian Tribal Council sent a dozen lovely yellow roses to Cheryl, Director of Native American Programs, for her birthday. She wanted to take them home since they are perishable and not really returnable. Because the tribe is a prohibited source, and the roses were valued at more than $20, the gift rules apply. Since the roses are perishable, she could leave them at the office in a common area for all to enjoy, donate them to a charitable organization or dispose of them.

B. GIFTS BETWEEN EMPLOYEES. 5 CFR PART 2635, SUBPART C

RULE: You may not give, or donate to, gifts to official superiors; solicit employee donations for a gift to a superior (yours or the solicited employee’s); or accept gifts from employees paid less than you.

This rule applies to:	GENERAL EXCEPTIONS: On an occasional basis, including on occasions on which gifts are traditionally given or exchanged, an official superior may be given and may accept: Items (not cash) worth $10 or less per occasion (aggregate market value); Items to be shared in the office among several employees; Personal hospitality at a residence of a type normally provided to friends; Items customarily given in receipt of personal hospitality; and Leave transferred under an approved agency leave sharing plan. SPECIAL EXCEPTIONS: Suitable gifts may be given/exchanged in relation to: Infrequently occurring occasions of personal significance (e.g., marriage, illness, birth/adoption, etc.) Occasions that end a subordinate-official superior relationship (e.g., retirement, resignation, or transfer).
Direct and indirect gifts; Coercing a gift or donation. Gifts to your superior and the superior of any employee whom you solicit for a donation to such a gift.
This rule does not apply to acceptance of gifts from lesser paid employees where there:
IS a personal relationship; AND IS NO superior/subordinate relationship.

“Official superiors” include officials above you in the chain of command and/or who can affect your performance appraisal, awards, or job assignments.

Example 1: Infrequent Event.
Helen gave her boss a $7 mug for Boss’ Day. The boss may accept the mug because it is worth less than $10.

Example 2: Termination of Subordinate-Official Superior Relationship.
Bill is moving to a new division. Teri, his subordinate, wants to give him a crystal beer stein worth $100. Since the subordinate-official superior relationship is ending, the gift is proper. Teri also may ask other coworkers to donate to the gift. However, she may not recommend a level of donation, nor should she pressure coworkers to give anything.

C. GIFTS FROM FOREIGN SOURCES. 5 U.S.C. § 7342 (Foreign Gifts and Decorations Act)

RULE: You may not accept or encourage the tender of a gift from a foreign government.

This rule applies:

EXCEPTIONS:

Gifts of minimal value (currently $285 or less);
Transportation taking place entirely outside the United States;
Educational scholarships/awards;
Medical treatment; or
Occasions where refusal would cause embarrassment to the United States or to the offering government. In this situation, accept the gift on behalf of the United States. (A gift of more than $285 must be turned over to the appropriate property officer for proper disposition.)

Regulations: 41 CFR Part 101-49 (Disposition of Gifts)

On or Off duty;
To spouses and dependents, even if they are not Federal employees;
To any unit of a foreign government, whether it is at the national, state, local, or municipal level; and
To international or multinational organizations made up of government representatives and the representatives of such organizations.

Example 1: Gift.
While in Australia attending an international conference on agricultural marketing, Sally, an attorney with OGC, was given a handcrafted boomerang valued at $200 by a representative of the Australian government. She may accept because the gift is valued at less than $285.

Example 2: Foreign Travel
Wanda, an FAS official, is invited to travel from Jakarta to several locations in Indonesia. She may accept the transportation taking place entirely outside the United States under the Foreign Gifts and Decoration Act. But if the Indonesian government offers to pay her way from the U.S. to Jakarta, she must request approval under 31 U.S.C. § 1353. (See Travel Gifts From Non-Federal Sources, Example 2).

D. AGENCY-SPECIFIC GIFT PROHIBITIONS

7 U.S.C. § 87(c)

No person licensed or authorized by the Secretary of Agriculture to perform any funtion under the U.S. Grain Standards Act, or employed by the Secretary in carrying out the provisions of that Act shall, during that license, authorization, or employment, accept gratuitites from any business entity owning or operating any grain elevator or warehouse.

7 U.S.C. § 1986

You may not, directly or indirectly receive a fee, commission, gift, etc. beyond your Federal salary for any transaction/business under the Consolidated Farm and Rural Development Act (Act).

Employees within the Office of the Secretary, Rural Development (RD), and the Farm Service Agency (FSA), who perform official duties involving RD and FSA loan programs are covered by this Act.

Criminal Penalties: Up to $2000 fine; imprisonment of not more than 2 years, or both.

7 U.S.C. § 1615(h)(2)

Anyone who serves as a certifying agent under provisions of the Organic Foods Production Act of 1990 is prohibited from accepting payments, gifts, or favors of any kind from the business inspected other than prescribed fees.

EXCEPTIONS: None provided for.

21 U.S.C. § 622. FEDERAL MEAT INSPECTION ACT

Anyone engaged in commerce is prohibited from offering a Federal Meat Inspector, and a Federal Meat Inspector is prohibited from receiving, anything of value given with intent to influence his or her performance of official duties.

Criminal Penalties: Removal; fine of $1000-$10,000; imprisonment of 1-3 years.

Meat inspection officials covered by this Act are inspectors, deputy inspectors, chief inspector, or any other officer or employee authorized to perform duties under the Act.

EXCEPTIONS:

See exception for “friends or relatives.”
See exclusion for “commercial loans.”
Unsolicited advertising/promotional material of clearly trivial value, such as pens, pencils, note pads, and calendars;

See exclusion for “coffee, donuts, etc.”
Food and refreshments of nominal value on infrequent occasions when the interest of the government is served by participation of USDA employees in industry-sponsored activities where: (1) lunch/dinner may be served; and (2) there will be discussion of matters of mutual interest to government and industry will take place.

E. GIFTS TO USDA AND ITS AGENCIES

Gifts made to USDA and its agencies, or received by Federal employees on behalf of USDA and its agencies are augmentations of appropriated funds and, as a result:

They are subject to principles of appropriations law; not to 5 CFR Part 2635;
They may be accepted only under specific statutory authority, and in accordance with the provisions of DR 5200-3.

USDA AGENCY GIFT ACCEPTANCE STATUTES:

Secretary of Agriculture	7 U.S.C. § 2269
Rural Telephone Bank	7 U.S.C. § 942
National Agricultural Library	7 U.S.C. § 2264
U.S. Forest Service
Cradle of Forestry	16 U.S.C. § 471h
Cascade Head Scenic Research Area	16 U.S.C. § 541d
Mono Basin Scenic Area	16 U.S.C. § 543b
Timber Lands	16 U.S.C. § 541d
State/Private Working Lands	16 U.S.C. § 572
National Forest Foundation	16 U.S.C. § 583j
Forest & Rangeland Research	16 U.S.C. § 1643
U.S. National Arboretum	20 U.S.C. § 195**
Animal and Plant Health Inspection
Service (Animal Quarantine)	21 U.S.C. § 135
Food and Nutrition Service
(Breast feeding Promotion)	42 U.S.C. § 1790**

F. TRAVEL COSTS PAID BY “NON-FEDERAL SOURCES” (See Appendix C)

RULE: Whether a “non-Federal source” may pay for an employee’s travel costs depends upon whether the travel is official or personal. A “Non-Federal source” may include individual, private or commercial entities, nonprofit organizations, as well as state, local, or foreign governments.

1. OFFICIAL OR PERSONAL TRAVEL

Factors that indicate official travel are where the travel:

is assigned by an official superior;
occurs during normal working hours while the employee is not on approved leave;
costs normally would be borne by the agency;
is accomplished in uniform; or
otherwise relates to the employee’s official duties or the agency mission.

2. OFFICIAL TRAVEL – AGENCY ACCEPTANCE

SECRETARY’S GIFT AUTHORITY. 7 U.S.C. § 2269
The Secretary MAY accept gifts and bequests on behalf of USDA in furtherance of USDA functions. However, this broad acceptance authority may be subject to limitations found in DR 5200-3, depending upon the recipient agency, value, and state of dealings between USDA and the donor. NOTE: This authority may not be applied to meetings and similar off-site events such as those permissible under 31 U.S.C. § 1353 (see below).
TRAVEL TO CONFERENCES, MEETINGS, SEMINARS. 31 U.S.C. § 1353
RULE: Agencies may accept reimbursement from a non-Federal source (source) for travel subsistence and related expenses for an employee to attend conferences, meetings, seminars, training courses, speaking engagements, or similar events sponsored by outside sources.

Requirements:
- The event relates to the employee’s official duties, but is NOT for: (1) performing statutory/regulatory functions (e.g., audits, inspections, or site visits); or (2) vendor promotional training (see definition in "Gifts from Outside Sources");
- The employee does not solicit the payment;
- The event takes place away from the employee’s duty station; AND
- The authorized agency official finds that acceptance meets the “conflict analysis,” below.
Conflict Analysis 41 CFR § 304-1.5(a)
- Standard: Would a reasonable person with knowledge of all relevent facts question the integrity of the agency programs or operations.
- Relevant factors include:
  - Identity of expected participants;
  - Nature/sensitivity of pending agency matters affecting source’s interests;
  - Purpose of the meeting or function;
  - Employee’s role in such matters;
  - Identity of source; and
  - Value/nature of benefits offered.
- Generally, EMPLOYEES MAY NOT accept payments unless authorized in advance by the agency.
- EMPLOYEES MAY accept additional travel assistance while in travel status when it is offered from the same source if:
  - the assistance offered is comparable in value to that offered to or purchased by other attendees, and
  - the agency did not decline such assistance in advance of the employee's travel.
  Employees in travel status may also accept assistance from a source not authorized by their agency prior to travel when the value of the assistance is within the maximum allowance stated on their travel authorization. Such assistance is limited to meals, lodging and transportation only, and the traveler must request agency authorization for acceptance within 7 working days after the trip ends. Warning: If the agency does not authorize acceptance, it could require the traveler to reimburse the non-Federal source.
- EMPLOYEES MAY accept "payments-in-kind," (e.g., airline tickets, banquet meals, hotel accommodations, etc.). There is no dollar limit to the payment-in-kind that can be accepted.

3. OFFICIAL TRAVEL -- PERSONAL ACCEPTANCE

FOREIGN GIFTS AND DECORATIONS ACT. 5 U.S.C. § 7342
An employee MAY personally accept travel costs from a non-Federal source, in this case, a foreign government, if travel begins and ends entirely outside of the United States. Generally, there is a $285 threshold set for employee acceptance, and gifts exceeding this threshold are the property of the Government. However, an exception to this limit exists for travel, meals, lodging, educational scholarships, and medical treatments.
TRAINING AT A NON-GOVERNMENT FACILITY. 5 U.S.C. § 4111
This authority allows Federal employees to accept reimbursement from non-profit, tax exempt organizations, for transportation expenses to certain training functions related to the employee's official duties. To accept reimbursement, the following conditions must be met:
- The employee must receive prior approval from the employee’s training officer;
- Travel payments must be connected with attendance at a training seminar or conference at a non-government facility; and
- The source of the payment must be a non-profit, tax exempt 501(c)(3) organization, a state or local government, or the District of Columbia.
NOTE: Generally, these organizations have restricted lobbying activities so they may not take actions to substantially influence legislation.

To find out whether a particular non-profit organization is covered, call: IRS Cincinnati Service Center (877-829-5500).

Once your travel is approved, you must keep records in the office file that the travel payment was accepted under the authority of 5 U.S.C. § 4111.

4. ACCEPTANCE OF GIFTS OF PERSONAL TRAVEL. 5 CFR Part 2635, Subpart B

RULE: Generally, as a private individual, you are free to accept travel payments by non-Federal sources for private travel subject to the following restrictions:

TRAVEL GIFTS FROM OUTSIDE SOURCES. 5 CFR PART 2635, SUBPART B

Unless a gift of travel costs is excepted under 5 CFR § 2635.204, you may not accept a gift of travel costs that either is offered based upon your official position, or is offered by one who is a “prohibited source.”

NOTE: Appropriated funds, including funds received by agencies under the aforementioned gift acceptance statutes, may not be used to pay for personal travel for Federal employees.

Example 1: Performance of statutory duties.
A national supermarket chain wants to fly two USDA employees - one from FNS; the other from ARS - to view the "Supermarket of the Future.” Since the supermarket chain accepts food stamps, and thus is an FNS program participant, under DR 5200-3, FNS could not accept the gift; however, ARS could. Were the supermarket chain in litigation with USDA (e.g., for mishandling food stamps, ARS would not be able to accept the gift.

Example 2: Foreign Travel.
Jerry, an FAS official stationed in the Philippines, receives an invitation from the Australian Ministry of Agriculture to attend and participate in a conference on beef exports to the United States to be held in Melbourne. The invitation includes an offer of free travel paid for by the Australian Ministry. Australia, in this context, is a prohibited source. However, Jerry personally may accept the offer. Since the travel occurs wholly outside of the continental U.S., Jerry may accept the offer under the terms of the Foreign Gifts & Decorations Act, despite the fact that the offer is extended by a prohibited source (see Gifts from Foreign Sources, Example 2). NOTE: If the offer was for Jerry to fly from Hawaii to Melbourne, the offer would have to be viewed under 31 U.S.C. § 1353 and, its implementing regulations (41 CFR Part 304). The gift could not be accepted under 7 U.S.C. § 2269 and DR 5200-3, since the travel relates to a conference, a matter that must be addressed under 31 U.S.C. § 1353. If the travel involved a site visit or involved participation in negotiations, the reverse would be true.

5. FREQUENT FLYER (FF ) PROGRAMS

RULES: With the President’s signing of S. 1438, The National Defense Act on December 28, 2001, flight mileage paid for by the government is determined to be the personal property of the Federal traveler. Section 1116 of the Act contains the pertient provision for this determination.

View GSA's Travel Guidance for additional information.

For further information on the use of official frequent flyer miles, contact your agency Financial Officer.

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PART IV. ETHICS AT THE OFFICE

A. CONFLICTING FINANCIAL AND PERSONAL INTERESTS

As a Federal employee, you are to place loyalty to the United States Constitution, Federal laws, and ethical principles above private gain, yours or anyone else’s. An official action that is not a criminal conflict of interest, still may constitute a loss of impartiality or misuse of position.

1. CONFLICTING FINANCIAL INTERESTS. 18 U.S.C. § 208 (5 CFR Part 2635, Subpart D)

RULE: You may not “participate personally and substantially” in a “particular matter” in which you have a financial interest. Your financial interest includes an “imputed financial interest.”

2. LOSS OF IMPARTIALITY. 5 CFR PART 2635, SUBPART E

RULE: You may not give preferential treatment to anyone.

Specifically, you may not:

“Particular matter involving a specific party” is a subset of "particular matter" limited to judicial or other proceedings, applications, requests for a ruling or other determination, contracts, claims, controversies, investigations, charges, accusations, arrests. It normally, however, does not include policymaking.

“Covered relationship” include business and financial relationships; household members; close relatives; organizations in which a spouse, parent, or dependent child serves as a fiduciary; your non-Federal employers in the last year; and organizations (not political parties) in which you are an active participant.

“Extraordinary payment” include items, cash, investments that a former employer offers after learning of your considering or accepting a Federal position; and which probably wouldn’t be offered otherwise.

participate in a “particular matter involving a specific party” that involves:

financial interests of your household members; or

those with whom you have a “covered relationship” if they are, or "represent", a party to that matter.
participate for 2 years in a “particular matter” involving a former employer from whom you received an “extraordinary payment” in excess of $10,000.

3. MISUSE OF POSITION. 5 CFR PART 2635, SUBPART G

RULE: You may not use your official position, title, or authority to benefit yourself or anyone else.

Specifically, YOU MAY NOT:

Endorse any product, service, or enterprise;
Induce/coerce a benefit for anyone; or

Give the appearance of government sanction of private activity.

YOU MAY use your official title if it is customary in social introductions, or as part of a biographical summary if the title is not more prominent than other information about you.

Example 1: Financial Interests of Close Relatives.
Tom is the Contracting Officer on an agency procurement. One bidder, L-Com, employs his 28-year old son, Jim. Tom’s 16-year old son, Andy, owns stock in L-Com. Jim lives on his own; Andy temporarily resides with Jim. Neither is a member of Tom’s household. However, Andy is a minor child and his stock interest is imputed to Tom under 18 U.S.C. § 208. Tom has a conflicting financial interest and should recuse himself from the procurement. NOTE: Even if Andy sells his stock, there remains an impartiality issue given the closeness of the relationship between Tom and his sons.

Example 2: Misuse of Official Position to Benefit a Friend.
Wanda, an Assistant General Counsel, heads the OGC division handling the government claim against Wanatek Inc. Art, who worked closely with Wanda in state politics, is the new president of Wanatek, Inc. He calls Wanda to see if she won’t drop or compromise the claim. There is no conflicting financial interest, or “covered relationship,” but if Wanda compromises the claim, she could be viewed as using her official position to benefit Art. She may violate 18 U.S.C. § 205 if she contacts other officials to present Art's position.

Example 3: Official Title in a Letter of Recommendation
Toni, a Regional Inspector General, is asked by a close friend to send a letter of recommendation to a prospective Federal employer. Toni wants to use official letterhead and her official title in the letter. Since the recommendation is for Federal employment, she may do so.

Example 4: “Golden Parachute.”
Doug accepts a post as Deputy Administrator for RUS . Upon learning of his appointment, North Power, Inc. , Doug’s employer, offers him a real estate package worth $25,000. No one else in North has ever received an offer like this. Doug may accept this, but may not participate in any matters involving North for 2 years from receipt of the package. (Compare with 18 U.S.C. § 209, Example 3).

Example 5: Using Official Position
Sandy, Deputy Administrator at FNS , previously served as Executive Director for Food Fund, a non-profit anti-hunger organization. She receives a call from Jo, the current Executive Director and a long-time friend. Jo tells her how a grant application the organization has pending with FNS seems to be languishing in Jim’s division of FNS . Jo asks Sandy to call Jim to emphasize how important the grant proposal is. The matter is not under Sandy’s authority and Sandy should not make the call to Jim. Not only would she be using her official position for the personal benefit of Food Fund and Jo, she may also be in violation of 18 U.S.C. § 205.

Example 6: Endorsement of an Outside Product.
John, a former RHS Administrator, now works for a lobbying firm representing an association of rural housing developers. The firm wants to produce a reference guide on rural housing development loans for its client. John calls Anne, his former deputy at RHS , who now is the Acting Administrator. John tells her of the project. Anne agrees with John’s assessment that it looks like a “win:win” for RHS and for loan applicants. John asks whether Anne would consent to providing a cover page, signed by her, discussing the importance of the book to rural developers. He also asks whether two specific RHS employees whom he considered experts, could write a couple of chapters for the book. Anne should not consent to issuing the cover page, or to make the employees available to write the chapters. Unless RHS has authority to endorse this enterprise, this endorsement would be impermissible. Further, if John calls within his first year after leaving his Federal post, he may be in violation of 18 U.S.C. § 207(c).

Example 7: Use of Official Title
Off duty, Florence, an employee with the AMS, teaches an introductory public administration class at the local community college. The University is putting out their catalogue and wants to use her government title. They may only do so if it is put in a biographical context, not if they are listing her only by name, title, and government affiliation.

Example 8: Impartiality and Former Employer
Bill, an investigator with OIG , has been assigned to investigate a potential criminal violation of 18 U.S.C. § 201 involving a gratuity provided to a senior USDA official by ABC Corp. Bill previously worked for ABC Corp. in his spare time during the past year. There is no continuing financial tie between Bill and ABC , but a “covered relationship” exists regarding a “particular matter involving specific parties.” However, based on Bill’s expert knowledge of ethics statutes and certain program-related issues involved, the agency designee might determine that the interests of USDA in having Bill apply his expertise on this investigation outweighs the concern that a reasonable person may question the integrity of the investigation. The decision to assign Bill, notwithstanding his “covered relationship,” should be documented in accordance with 5 CFR § 2635.502(d)(6).

B. MISUSE OF GOVERNMENT TIME, EQUIPMENT, AND INFORMATION. 5 CFR PART 2635, SUBPART G

RULE: It is each employee's responsibility to protect and conserve government time, property, and information, and to use them economically and for official purposes only.

GOVERNMENT TIME. YOU MAY NOT:
- Use official time other than in an honest effort to perform official duties.
- Encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties.
NONPUBLIC INFORMATION. YOU MAY NOT:
- Engage in financial transactions using "insider" or nonpublic information, nor allow the improper use of such information, to further your own or another’s private interest.
  See Appendix A for prohibitions on using USDA nonpublic information.
PENALTY/FRANKED MAIL & OFFICIAL STATIONARY. YOU MAY NOT:
- Use official government envelopes (with or without applied postage) or official letterhead stationery for personal business. This includes mailing your job applications.
- Receive personal mail at the office.
THEFT AND EMBEZZLEMENT. YOU MAY NOT:
- Convert government property or equipment to personal use, even temporarily on loan, nor use government purchasing authority for personal acquisitions (including your official Travel Card), even though you reimburse the government
GOVERNMENT EQUIPMENT AND PROPERTY. YOU MAY NOT:
- Remove government property or files upon leaving government service, nor use government copiers to make copies of files to take with you.
- Use government equipment for personal use, except for reasonable limited, non-commercial use which does not interfere with official duties and involves minimal office expense as set forth in appendices to DR 3300-1 (see Appendix E).
GOVERNMENT MOTOR VEHICLES OR AIRCRAFT. YOU MAY NOT:
- Wilfully use or authorize the use of a government-owned or leased passenger motor vehicle or aircraft for other than official purposes.

Example 1: Franked Envelopes.
The local congregation is building a new wing on the church and is trying to raise money. The fundraising chairman sent out a solicitation for donations in official government franked envelopes that he took from the office. He has violated the franking prohibition.

Example 2: Personal Use of Government Credit Card.
Harvey is on travel when he realizes that it's his wedding anniversary. His personal credit cards are already “maxed” so he uses his official government credit card to order flowers. He thinks that because he will pay the bill immediately upon his return home that there will be no problem. Harvey is incorrect. The official government credit card is only for official travel and related expenses. He may not use the card for any personal purchases, even though he is on travel at the time he makes the purchase.

Example 3: Personal Use of Office Equipment.
Ozzie is having trouble figuring out his personal income taxes. He loads a tax software package on his PC at work and does his taxes on his lunch hour and after work. Ozzie’s use would not be in violation of the prohibition against using government property for personal use. However, he would be in violation, should he use his office computer to do the taxes for his outside business.

C. NEPOTISM. 5 U.S.C. § 3110

RULE: You may not show favoritism on the basis of family relationship.

You may not:	Exceptions: A preference eligible (veteran) within reach for selection from an appropriate certificate of eligibles under certain circumstances; To meet urgent needs resulting from an emergency situation posing an immediate threat to life or property; To meet special scientific needs; or At isolated field stations or where there is a shortage of quarters. An employee may supervise a relative when management: Finds that all merit-related provisions of Federal law have been observed; Determines that such supervision would result in a net benefit to the government; and Assigns a non-related individual as manager to conduct performance evaluations and recommend promotions or advancements.
Appoint, employ, promote, or advance your relative. Advocate appointment, employment, promotion, or advancement of your relative to a position in USDA over which have jurisdiction or control (not just your agency or component).
This statute applies:
To your relatives; To relatives of any USDA “public official” if that person has advocated the above action; or To relatives of any “public official” with jurisdiction/control over USDA, your agency or component, if that official has advocated the above action.

“Relative” means an individual who is related to an employee as a father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

Example 1: Advocating Employment.
Bertha, a senior official with the Office of the Secretary, has a new son-in-law who has just graduated from the state university with a degree in literature and is looking for a job. Bertha calls a friend in one of the agencies and asks him to find a job as a writer/editor for the young man. The friend should advise Bertha that she is prohibited from recommending the appointment of her son-in-law.

Example 2: Dropping off an Application.
Dawn, a college sophomore, wants a summer job with ERS where her mom works. Mom offers to drop Dawn's SF -171 off in the personnel office on her way to work. Because Dawn's mother is not advocating that she be hired, it is permissible for her drop off the job application. It would also be permissible for her to pick up blank application forms and other hiring literature for Dawn.

Example 3: Emergencies.
Forest fires, raging out of control in Big Trees National Forest, are threatening a nearby town. Additional fire fighters are needed immediately. Larry, Darrell, and Darrell, sons of a Forest employee, are given an emergency appointment and hired on the spot to help fight the fire. However, as soon as reinforcements are available or the emergency passes, the appointment is terminated.

D. GAMBLING ON GOVERNMENT PREMISES. 5 CFR § 735.201

RULE: You may not gamble (e.g., raffles, lotteries, sports pools) on Federal premises.

Example 1:
Tom, Dick, and Harry, Office of Ethics employees, are running a “March Madness” NCAA college basketball pool out of their office. It is not a very big pool, but they are trying to drum up more interest, so they approach their supervisor to see if he would like to get into it. No, he does not. Not only does his alma mater NEVER get an invitation to the tournament, but, drolly, he also advises the trio to cease this activity on government premises.

Example 2:
Bill, Director of the National Arboretum, is approached by Friends of Bushes (NOTE: not to be confused with the fundraising arm of any G.O.P. presidential candidate, past or present, the wife of any such candidate, or with any commercial distributor of baked beans) to permit that organization to have its annual fundraiser on Arboretum grounds. As part of the event, Friends wants to hold a raffle with the winners to receive rare, miniature Bonsai trees. Even if Arboretum employees do not participate in the raffle, Friends may not hold the raffle on Arboretum grounds. Additionally, if Friends holds the fundraiser off of government property, Federal employees attending in their official capacities still would not be able to participate. The raffle clearly would not be open to the public.

E. TESTIFYING ON OFFICIAL MATTERS

1. ADMINISTRATIVE PROCEDURES. 7 CFR PART 1, SUBPART K

RULE: YOU MAY NOT:

Testify/appear in judicial or administrative proceedings without first notifying your supervisor and receiving appropriate authorization.
FEES: You may accept travel costs up to the level set forth in Agriculture Travel Regulation. Witness fees are collected and remitted to the agency.

For further advice on these requirements, contact the General Law Division, Office of the General Counsel (OGC).

2. EMPLOYEES PROVIDING TESTIMONY. 18 U.S.C. § 205

See above for discussion of this statute.

3. EMPLOYEES PROVIDING EXPERT TESTIMONY. 5 CFR § 2635.805.

Unless authorized by OGC or the DAEO, you generally may not serve as an expert witness, other than on behalf of the United States, before any court or agency of the United States in any matter in which the United States is a party or has a direct and substantial interest.

4. FORMER EMPLOYEES PROVIDING EXPERT TESTIMONY. 18 U.S.C. § 207(j)(6).

Unless pursuant to court order, a former employee who is subject to post-employment restrictions under 18 U.S.C. § 207(a)(1), may not serve as an expert witness for anyone other than the United States as to the particular matter covered under the post-employment restriction.

F. LOBBYING ACTIVITY

1. LOBBYING WITH APPROPRIATED FUNDS. 18 U.S.C. § 1913

RULE: You may not use APPROPRIATED FUNDS to lobby Congress.

See also, SEC. 637, TREASURY AND GENERAL GOVERNMENT APPROPRIATIONS ACT SEC. 303, DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATIONS ACT (1999) – Applies to Forest Service programs/activities.

Appropriated funds MAY NOT BE USED to:

Pay for personal services, telegrams, advertisements, telephones, letters, printed/written matters, or other devices, intended to influence a Member of Congress on matters of personal interest;

Pay for government time, equipment, supplies, space, or salaries to lobby for or or against any bill in which you have a have a personal interest; OR
Unofficially promote or oppose USDA-related legislation.

YOU PERSONALLY MAY:

Petition Congress, individually or collectively, on any subject as long as you do it as a private citizen, on your own time, and with your own supplies or equipment.

Communicate with members of Congress, or respond to requests from Congress on official matters in your official capacity, if responding on behalf of USDA. Here you are expressing the position of USDA; not necessarily your own position.

Example: June, a conservation engineer with NRCS, is Secretary for an intergovernmental association. As part of her official duties, she puts out a quarterly newsletter. She proposes publishing an article in the newsletter encouraging readers to write Members of Congress on pending legislation on dam construction projects. She may be seen as lobbying using appropriated funds.

2. ACTING AS AGENT OF FOREIGN PRINCIPALS. 18 U.S.C. § 219

RULE: A “public official” may not act as an agent of a foreign principal, or as a lobbyist required to register regarding registration of a foreign entity under the Lobbying Disclosure Act of 1995.

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PART V. ETHICS OFF THE JOB

A. OUTSIDE EMPLOYMENT. 5 CFR Part 2635, Subpart H

GENERAL RULE: Outside employment must not keep you from devoting primary attention to official duties or create a direct or apparent conflict of interest between your private interests and your USDA official duties.

1. USDA PRIOR APPROVAL REQUIREMENT. 5 CFR PART 8301 et seq.

All Financial Disclosure “Filers.”

All USDA personnel, other than SGEs, who file a financial disclosure report (OGE 278 or OGE-450, or OGE 450-A).

Certain Additional “Non-filers.”

See the Supplemental Regulations applicable to employees of FSIS, OGC, OIG, FSA, and RD (5 CFR § 8301 et seq.).

“EMPLOYMENT”

In addition to all forms of compensated work, “employment" ALSO includes the following:

Service in a “fiduciary capacity” in an outside for-profit organization;
Professional or consulting services;
Lobbying activities; and
Providing testimony on matters of interest to USDA.

However, it does NOT include:

Participation in professional, religious, recreational, public service, civic, or non-profit charitable organizations IF

Participation does not involve either: professional services or advice; OR compensation (except reimbursement for actual expenses).

2. OUTSIDE INCOME LIMITATIONS

Senate-Confirmed Presidential Appointees to full-time, non-career positions may not receive any outside earned income for employment or activity performed during that appointment. 5 CFR § 2635.804(a).

Senior-level, non-career employees (SES and Schedule C employees paid at SES level) who are not SGEs may not receive compensation over 15% of Level II, Executive Schedule basic pay from, or allow their name used in relation to, a profession involving a fiduciary relationship; for serving as an officer/board member; or for teaching without obtaining advance authorization. See 5 CFR § 2635.804(b); 5 CFR Part 2636, Subpart C.

B. SERVICE IN OUTSIDE ORGANIZATIONS

RULE: Service in outside organizations can result in conflicts of interest in two ways: (1) the very status of your service; or (2) the actions you take on behalf of the organization, or official actions you take that affect the organization.

1. OFFICIAL PARTICIPATION AS A FIDUCIARY

A conflict of interest, under 18 U.S.C. § 208, may arise based simply upon your “official participation” in an outside organization in a “fiduciary capacity.” See 18 U.S.C. § 208, Example 4.

Official Participation. You probably are participating officially in the outside organization if:

participation involves agency funds or is officially assigned (e.g., during official hours; costs paid by the agency; or you’re in official uniform); or
the organization primarily seeks agency involvement through you (e.g., the organization is involved in issues with/ working with your agency on matters of mutual interest; the invitation came to your office or was addressed using your official title; the organization by-laws or charter specify the position as reserved for an agency employee; or you previously had not participated in the organization in a personal capacity).

Fiduciary Capacity.

You hold a position that triggers a conflict under 18 U.S.C. § 208 if you serve as an officer (e.g., president; vice president; chief executive, administrative, operations, information, or finance officer; secretary; treasurer; counsel); director, or member of a board of directors; trustee; or general partner. The statute also applies to you if you serve as an employee; a lesser position will not normally result in a status conflict.

NOTE: Official participation in non-fiduciary capacity generally will not result in a conflict of interest based on mere participation (e.g., serving as member, moderator, committee chairman, advisory board member, panelist, editor, or agency liaison to the board of directors).

Exceptions: Official participation in a fiduciary capacity is permissible if:

expressly required of the employee by statute; or
pursuant to receipt of an individual waiver under 18 U.S.C. § 208(b)(1)

2. OFFICIAL PARTICIPATION AS NON-FIDUCIARY.

Dual Compensation. You MAY NOT accept outside compensation for your official participation in a non-Federal organization. See 18 U.S.C. § 209.
Lobbying with Appropriated Funds. You MAY NOT participate in efforts to influence legislation through the organization while in official capacity. See Lobbying Activity.
Fundraising. You MAY NOT raise funds for the organization except where specifically authorized. See Fundraising for Non-profit Organizations.

3. PERSONAL PARTICIPATION AS A FIDUCIARY.

RULE: You MAY NOT participate officially in an agency matter affecting the interests of the organization as its financial interests are yours. See 18 U.S.C. § 208.

Also You are subject to all of the rules in 4, below.

4. PERSONAL PARTICIPATION AS A NON-FIDUCIARY.

Impartiality/Misuse of Position. An active member of the organization (fiduciary, committee/subcommittee chair, spokesperson, etc.) has a “covered relationship” with the organization. Official actions that you take regarding your organization, even if not subject to 18 U.S.C. § 208, may result in an appearance of either a loss of impartiality, or that you are using your official position for the benefit of the organization. Additionally, other than as permitted, you may not use office staff or equipment to accomplish organization business.
Representing back to Government. You MAY NOT represent outside organization positions/interests to any Federal agency whether or not such representation is compensated. See 18 U.S.C. § 205. Also, you MAY NOT receive or seek compensation from an outside source for services rendered by you in support of another’s representation to a Federal agency. See 18 U.S.C. § 203.
Fundraising. In your personal capacity, you MAY NOT solicit money on behalf of the organization from either prohibited sources or your subordinates. See Fundraising for Nonprofit Organizations.
Endorsement. You MAY NOT use your official title/position in a manner that benefits or appears to endorse the organization. See Ethics at the Office.

5. PROFESSIONAL ORGANIZATIONS – MIXED CAPACITY

GENERAL RULE: If your agency allows official time for you to attend outside organization events (e.g., conventions, meetings) and also pays for your travel to such meetings, you are in attendance as a Federal employee and are there to obtain information, or to represent the interests of the government.

EXCEPTION: Where an organizational event also involves an adjunct internal organizational activity (e.g., business meeting, election, vote, etc.) AND you are also a member of that organization, YOU MAY participate in the internal activity (including running for and serving in elected office) IF:

The internal activity is not the primary purpose for your attendance at the event.
You do so in your PERSONAL CAPACITY (i.e., you take annual or administrative leave, if necessary, and disclaim any agency authority behind you involvement).

NOTE: Your agency MAY choose to impose additional constraints upon your personal participation as a condition of paying your travel to such meetings. Reasonable additional restrictions might include restraints upon: fundraising; involvement in organizational activities/issues that relate to policies of USDA or your agency; your working on grant applications or other representations to be made to the Federal government.

C. OUTSIDE ACTIVITIES. 5 CFR PART 2635, Subpart H

1. HONORARIA. 18 U.S.C. § 209.

RULE: You may not accept honoraria for the performance of official duties. See 18 U.S.C. § 209, (Example 2).

2. TEACHING, SPEAKING, & WRITING. 5 CFR § 2635.807

RULE: You may not accept compensation from outside sources for teaching, speaking, or writing if it is related to your official duties. Teaching, speaking, and writing is considered “related to your official duties” if:

the invitation was extended directly or indirectly by someone whose interests may be substantially affected by the performance/nonperformance of your official duties;
the invitation was extended primarily because of your official position;
the subject matter deals significantly with an ongoing or announced policy, program, or operation of USDA;

the information presented draws substantially upon nonpublic information; or
the activity is undertaken as part of your official duties.

NOTE: Pursuant to the decision in Sanjour vs. EPA, YOU MAY accept free travel and accommodations in relation to speaking on matters related to your official duties if done in your personal capacity, if you are employed at GS-15 or below.
YOU MAY NOT accept an honorarium for speaking on matters related to your official duties, however.

Example 1:
Harvey wants to write an article to his hometown newspaper criticizing the President. He may write the article and express his personal views. He may not use his official title, reference his position, use any proprietary or nonpublic information.

Example 2:
Marlene has been asked to speak in her official capacity and wants to request an honoraria which she plans to donate to the Red Cross. She may not solicit nor accept the honorarium. Acceptance of the honorarium, even on behalf of another, would violate 18 U.S.C. § 209.

Example 3:
On his own time, Darren, an APHIS inspector, has written an opinion piece for the Christian Science Monitor about the need for improved pepper sprays. He will be paid $200. As an inspector, Darren has used pepper spray in performing animal health inspections. However, the article will not rely substantially upon information specific to his job. He may accept. The Office of Communications should review it to make sure it that he has not used any non-public information. He may use his official title as part of his biographical background information. However, he should ensure that the article makes clear that these are his views, not those of APHIS.

3. FUNDRAISING FOR NON-PROFIT ORGANIZATIONS

OFFICIAL CAPACITY. 5 CFR § 2635.808(b); 5 CFR PART 950.

RULE: You may engage in fundraising in your official capacity only if in accordance with statute, Executive Order, regulation, or otherwise as determined by the agency. Generally, the only fundraising permitted in the Federal workplace is the Combined Federal Campaign.

This prohibition:

“Participation in the conduct of an event” is active and visible participation in promotion, production, or presentation of the event (e.g., serving as honorary chairperson, sitting at the head table, standing in the reception line).

An “official speech” is given in official capacity on a subject related to official duties. It requires an agency determination that the event is an appropriate forum for disseminating the information. It MAY NOT be used to solicit donations.

If participating in official capacity, an employee MAY use official title, position and authority, and may accept a free meal as part of such participation.

Applies both to solicitation of funds and “participation in the conduct of a [fundraising] event.”
Does not apply to mere attendance at an event, making an “official speech,” or seating and participation relative to such a speech.
Does not apply to fundraising for political organizations as defined at 26 U.S.C. § 527(e) for which separate restrictions apply. See Political Activity.

PERSONAL CAPACITY. 5 CFR § 2635.808(c).

RULE: YOU MAY participate in fundraising in your personal capacity subject to the following:

YOU MAY NOT:

Personally solicit a subordinate; or a person you know is a prohibited source.
Use or permit your official title, position, or authority to be used to further the fundraising effort. [You may use official titles that are a customary form of address (e.g., “Honorable” or “Admiral”)].

Otherwise violate 5 CFR Part 2635

Related:

Soliciting Federal agencies to support outside organizations. See 18 U.S.C. 205; misuse of official position.
Soliciting outside entity donations to agency. See Gifts to USDA and Its Agencies

D. POLITICAL ACTIVITY

1. HATCH ACT. 5 U.S.C. §§ 7324-7327

Regulation: 5 CFR PARTS 733 & 734

SEE APPENDIX D: POLITICAL ACTIVITIES QUICK REFERENCE CHART (what you can and can’t do).

GENERAL RULE: Whether, and to what extent, an employee may participate in “partisan” political activity depends upon the nature of the employee's Federal appointment.

The Hatch Act generally restricts an employee’s ability to participate in partisan political activity as follows:

PRESIDENTIAL APPOINTEE WITH SENATE CONFIRMATION (PAS):
PAS employees are accorded the greatest latitude to participate in partisan political activities. Also, because PAS employees are deemed to be on duty 24 hours per day, they may engage in certain partisan political activities as part of their official duties and on Federal premises.
CAREER SENIOR EXECUTIVE SERVICE (SES) EMPLOYEE, ADMINISTRATIVE LAW JUDGE (ALJ), AND CONTRACT BOARD OF APPEALS (CBA) MEMBER:
Career SES employees, ALJs and CBA members generally are not permitted to participate in partisan political activity.

ALL OTHER USDA EMPLOYEES:
While off duty, off government premises, and totally in their personal (non-official) capacity, including those at the Executive level, Schedule C, non-career SES, full-time and part-time, and SGEs generally may participate in partisan political activity.

Political activity is ”partisan” if it relates to the success or failure of a political party, candidate for partisan political office, or partisan political group.
“Partisan political office” means any public office for which any candidate is nominated or elected as representing a political party any of whose candidates for Presidential elector received votes in the last preceding election at which Presidential electors were selected. It does not include offices or positions within a political party or affiliated organization.
A “political contribution” means any gift, subscription, loan, advance, or deposit of money or anything of value, made for any political purpose. It may include:

A contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for any political purpose;

A payment by any person, other than a candidate or political party or affiliated organization, of compensation for the personal services of another person rendered to any candidate or political party or affiliated organization without charge for any political purpose; and

The provision of personal service for any political purpose.

2. GENERALLY-APPLICABLE RULES

ALL EMPLOYEES MAY:

Register and vote in any election;
Express personal opinions, privately or in public, on political subjects and/or candidates, as long as it is clear that it is one’s personal opinion;
Attend a political convention, fund-raising function, or other such event;
Sign a political petition;
Contribute financially to a political party or organization;
Campaign for or against referendum questions, constitutional amendments, municipal ordinances, etc.; or political support or non-support;
Join & hold office in civics and citizen’s organizations interested in good government.

EMPLOYEES MAY NOT:

Run for public office in a partisan election;
Use government funds to support political activity;
Directly or indirectly solicit campaign contributions from the general public;
Solicit/receive campaign contributions in or on Federal buildings or property;
Solicit/accept campaign contributions or support in exchange for a promise to appoint someone to a Federal job;
Promise or withhold Federal benefits (jobs, grants, contracts, etc.) based on political support or non-support;
Penalize employees to induce their making a political contribution or participating in political activity.
Use official authority/influence to interfere with/affect election results;
Solicit/discourage political activity of anyone with an application pending before USDA, or who is a subject or participant in an ongoing USDA audit, investigation, or enforcement action.

3. SPECIFIC PRESIDENTIAL APPOINTEE (PAS) RESTRICTIONS

Using non-PAS assistants, or other staff, to make calls or set up appointments for political campaign or committee activity during duty hours.
Requiring subordinate government employees to work on campaign activities.

4. SPECIAL GOVERNMENT EMPLOYEES (SGEs). 5 CFR 734.601

SGEs and employees who work on an irregular or occasional basis are subject to the same rules as other employees of their type. However, the rules only apply to them when they actually are on duty.

5. ADDITIONAL POLITICAL ACTIVITY RULES.

OPM “LOCALITY” RULES. 5 CFR PART 733

Special rules apply to local elections in the Washington D.C. area and in a few designated municipalities elsewhere in the country where large numbers of voters are Federal employees. Employees in these areas may run as independent candidates for partisan political office in elections for local offices of the municipality or political subdivision and solicit, accept and receive political contributions in connection with such local elections.

“LITTLE” HATCH ACT (State and local employees). 5 U.S.C. §§ 1501-1508

State and local employees whose principal employment is in connection with an activity financed, at least in part, by Federal loans or grants may not use their official authority or influence to interfere with or affect an election or nomination for office, directly or indirectly coerce any State or local employee to contribute for political purposes, or become a candidate for elective office.

FSA COUNTY COMMITTEE RULES. 7 CFR § 7.27

This regulation sets out political activity rules for Farm Service Agency (FSA) county or community committees members and to FSA county employees appointed or employed pursuant to 16 U.S.C. § 590h. As such individuals are NOT Federal employees, the Hatch Act does not apply to them.

PAS COST ALLOCATION AND REIMBURSEMENT (“HARD TIME”) RULES. 5 CFR § 734.503

Costs associated with political activities engaged in by PAS employees while “on duty” (see APPENDIX D), may not be paid for with appropriated funds. Where a PAS employee engages in “on duty” political activity while performing official duties, costs of “mixed travel” MUST be apportioned based on time spent on political activities and time spent on official duties. Costs related to political activity by PAS employees MUST be repaid to the Treasury by the political entity or organization involved. Use the following process to allocate costs:

Determine the TOTAL ACTIVITY TIME (TAT). TAT = Official Time (OT) [time spent in official meetings, receptions, etc.] AND Political Time (PT) [time spent in political meetings, receptions, rallies, etc.]. DO NOT COUNT: Actual travel time, or private study, rest, or recreation time.
Determine the Percentage of the TAT that is OT (OT%) and the percentage that is PT (PT%). If either percentage is minimal (e.g., less than three percent (3%) of the TAT), the entire trip will be considered as being of the nature of the predominate portion of the trip. If neither percentage is less than 3%, see Step 3, below.
Determine the “Mixed Cost” Allocation (MCA). First, determine the costs that clearly are political and costs that clearly are official. Second, multiply the PT% by the remaining total costs of the trip as if the trip had been entirely political. DO NOT COUNT: the PAS employee’s salary; value of property/or office loaned/leased by the government; compensation of Federal employees required to accompany/assist the PAS as part of their official duties; and cost of special security arrangements, including special transportation vehicles or methods. The result is the MCA to be repaid.

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PART VI. PROHIBITED FINANCIAL INTERESTS

FARM SERVICE AGENCY 5 CFR § 8301.103

Real Estate Purchases. FSA employees, spouses and minor children MAY NOT directly or indirectly purchase real estate held in the FSA inventory, for sale under forfeiture to FSA, or from an FSA program participant.

Exception. A waiver may be granted by the FSA State Executive Director (SED) where:
- Jointly requested in writing by FSA program participant & the FSA employee; and
- Based on a determination by the SED that: (a) the waiver is not inconsistent with 5 CFR Part 2635 or otherwise prohibited by law; and (b) under the circumstances, application of the prohibition is not necessary to avoid appearances of misuse of position or loss of impartiality or otherwise to ensure confidence in the impartiality and objectivity of agency program administration.
Business Transactions. FSA employees, spouses and minor children MAY NOT directly or indirectly: (1) sell real property to; (2) lease real property to or from; (3) sell to, lease to or from, or purchase personal property from; or (4) employ for compensation a person whom the employee knows or reasonably should know is an FSA program participant.

Exception. This prohibition does not apply:
- To a sale, lease, or purchase of personal property involving: (1) goods available to the public at posted prices that are customary and usual within the community; or (2) property obtained at public auction.
- If the appropriate SED determines in advance that the transaction is consistent with 5 CFR Part 2635 and otherwise not prohibited by law.

“FSA employee,” means FSA Federal employees; not county committee members or personnel.

“FSA program participant” means any person who is, or is an applicant to become, an FSA borrower, FSA grantee, or recipient of any other form of FSA financial assistance available under any farm credit, payment or other program administered by FSA.

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PART VII. POST-EMPLOYMENT ETHICS

Ethics statutes and regulations may affect both how you go about seeking future and outside non-Federal employment and the duties that you may perform for your future employer.

A. SEEKING NON-FEDERAL EMPLOYMENT. 5 CFR Part 2635, Subpart F

1. GENERAL RULES. 18 U.S.C. § 208

RULE: You may not participate personally and substantially in any particular matter involving a person (including company) from whom you are seeking non-Federal employment.

An employee:

“SEEKS EMPLOYMENT” when:

Making an unsolicited communication to a prospective employer about a job;
Not immediately rejecting an unsolicited communication about employment from a prospective employer; or
Engaging with a prospective employer in discussions (negotiations) with a view toward employment with that employer.

No longer “SEEKS EMPLOYMENT” when:

The employee or prospective employer rejects the possibility of employment and all discussions have ended; or
Two months after sending an unsolicited resume, the employee receives no positive response.
NOTE: Deferring discussions until the future doesn’t end "seeking employment."

NOTE: These rules apply as well to communications through an agent (e.g., a job search firm) if the employee knows the identity of the prospective employer.

RECUSAL (Self-disqualification).

Obligation To Disqualify. If an employee can affect the financial interests of a prospective employer through performing or not performing official responsibilities, the employee must disqualify himself or herself from those duties.
Documenting Disqualification. The employee must notify the supervisor of the intent to be disqualified and also should notify coworkers. Unless a PAS employee, the employee need not provide a written record of disqualification, but it is a good idea.

POST-NEGOTIATION RECUSAL

Offer Accepted. The recusal should remain in effect until leaving the government.
Offer rejected or not made. The recusal may be rescinded. The DAEO may require an additional period of disqualification to avoid loss of impartiality concerns.

Regulation: 5 CFR Part 2635, Subpart F.

2. NEGOTIATING WITH A COMPETING CONTRACTOR. 41 U.S.C. § 423

An agency official who participates personally and substantially in an agency procurement worth more than $10 million and who wishes to negotiate for employment with a competitive bidder on that procurement (including with an agent or subcontractor to such bidder) MUST:

Report negotiations both to his or her supervisor and to the DAEO; and
Either reject the offer to negotiate; or disqualify him or herself from participating in the procurement.

NOTES:

Negotiation is not limited to discussions of specific terms and conditions of employment in a specific position. However, it does not include communication for the sole purpose of requesting a job application.
While an employee may not be prohibited from negotiating for employment, should self-disqualification preclude the employee from performing duties that are critical or central to his or her position and if the agency does not have the means of accomplishing those duties other than through the employee’s participation, the agency may take adverse action.

Example: Sandy, an attorney with OGC, wishes to negotiate for future employment with Grabbe, DeMonay & Runne, Inc., a company which she deals with in her official capacity. She MUST recuse (disqualify) herself from making decisions or recommendations which pertain to that company or taking any actions that may affect the company. The recusal should remain effective until negotiations are completed and she has no possibility of a job with the company. In the meantime, her supervisor should try not to give her any assignments which would put her in violation of a criminal statute. While her supervisor must permit the recusal, he may take adverse action against her should the recusal mean that she cannot perform duties that are central or critical to her position, or which may not be accomplished without her participation (see also, 18 U.S.C. § 208, Example 2)

2. POST EMPLOYMENT RESTRICTIONS

1. ALL FORMER EMPLOYEES. 18 U.S.C. § 207(a).

All employees are subject to two basic prohibitions that affect representing another before the Federal Government (any Federal agency or official thereof) with regard to a particular matter involving a specific party or specific parties.

PERMANENT BAR
18 U.S.C. §207(a)(1)

If the employee “participated personally and substantially” in the matter at any time that the matter also involved specific parties, he or she is barred permanently from “representing” another before the government on that matter.

THIS APPLIES:

Irrespective of how long ago the employee acted on the matter.
However, only so long as passage of time, changes in parties, facts, have not changed the particular matter or made it different from the one in which the employee participated.

TWO-YEAR BAR
18 U.S.C. §207(a)(2)

If the employee did not participate personally and substantially in the matter, but the matter actually was “pending under the employee’s official responsibility” during his or her last year of service and involved specific parties during that time, the employee is barred from “representing” another before the government for two years from the date of termination.

THIS APPLIES:

Whether any action was taken by the employee or the employee’s subordinates during the last year.

“Pending under the employee’s official responsibility” means that the matter actually was received by the employee or by those assigned under the employee for action during the employee’s last year in Federal service.

Regulation: 5 CFR Part 2637 .

Example 1:
Lorretta was the lead OIG auditor of the 1990 audit of the Beltway Bandit Corporation. Upon leaving government service, Lorretta went to work for Bandit. Her first assignment is to answer the issues raised in the 1990 audit. Lorretta may help the company write their response to the audit, but she may not represent Bandit orally or in writing back to the government. However, she must be careful not to use any nonpublic information gained while she was a Federal employee.

Example 2:
Larry led a multi-agency effort to develop a consolidated database on agency debt collection. At the time of his retirement, a major information technology procurement was envisioned, though no Request for Proposals had been issued at that time. Larry now is President of InfoCom, a bidder on the procurement. As he left Federal service before specific parties (e.g., bidders) were identified to the procurement, he may bid and contract with other Federal agencies involved in the program.

2. EXCEPTIONS TO 18 U.S.C. § 207. 18 U.S.C. § 207(j).

The provisions of 18 U.S.C. § 207 do not apply when:

ANY FORMER EMPLOYEE IS:

Performing official duties for the Federal government/District of Columbia, or for an elected State or local official;
Representing, aiding, or advising an international organization with advance certification by the Secretary of State.
Engaging in communications solely to furnish scientific or technical knowledge under agency-approved procedures.
Testifying under oath (except as an expert witness to one other than the U.S.) on any matter under 18 U.S.C. § 207(a)(1).
Employed by a recognized Indian tribe when communicating for the tribe. 25 U.S.C. § 450i(j)

A FORMER SENIOR EMPLOYEE IS:

Representing in carrying out official duties as an employee of, and made on behalf of an agency or instrumentality of a state or local government, an accredited degree-granting institution of higher learning, or an approved hospital or medical research organization; or
Making a statement based on the employee’s own special knowledge in the particular area and where no compensation is received.

3. SENIOR EMPLOYEES: ADDITIONAL RESTRICTIONS

Pursuant to the passage of the National Defense Authorization Act for FY 2004, Pub. L. No. 108-136, the term “Senior employee (SE)” includes the following:

Terminated service prior to November 23, 2003.
- All Executive Level (EL) officials.
- Senior Executive Service employees at pay levels ES 5 and 6.
Terminated service between November 23, 2003 and January 10, 2004.
- Any Federal employee who, as of November 23, 2004, was paid at the above levels.
Terminated on or after January 11, 2004.
- All Executive Level (EL) officials.
All employees paid at a rate of basic pay that exceeds 86.5 percent of the rate of basic pay for Level II of the Executive Schedule (ES II). This effectively includes all employees who, under the former SES pay scheme, would have been paid at SES levels ES 2-6, as well as all SES employees in San Francisco.

CRIMINAL 1-YEAR ("COOLING OFF") BARS.

CRIMINAL 1-YEAR (“COOLING OFF”) BARS ON USDA SEs (INCLUDING SAs).

Within 1 year of leaving an SE position with USDA (or a USDA agency), a former USDA SE MAY NOT represent another before USDA on a “particular matter” in which he or she seeks official action by USDA

REPRESENTING, AIDING, OR ADVISING A FOREIGN ENTITY BEFORE THE GOVERNMENT.
18 U.S.C. § 207(f).

Within 1 year of leaving any SE position, a former SE MAY NOT knowingly represent, aid, or advise a foreign entity or foreign business entity with intent to influence a Federal employee.

See “Special Government Employee” rules.

Regulation: 5 CFR Parts 2637 and 2641 (depending upon whether the date of termination from the SE position occurred prior to or subsequent to January 1, 1991).

Example: Myra, a former senior employee in the Under Secretary for Natural Resources' Office, left government service six months ago. She was hired to represent a western community in a water dispute and would like to discuss the issue with both the Bureau of Reclamation (Department of the Interior) and NRCS. She was not personally and substantially involved in the matter when she worked for USDA. However, because she was a senior employee when she left USDA, she may not make an appearance before NRCS until one year has passed. However, she could appeal before the Bureau of Reclamation.

4. TRADE NEGOTIATORS AND “FOREIGN ENTITY” EMPLOYMENT

CRIMINAL 1-YEAR BARS.

REPRESENTING, AIDING, OR ADVISING ON ONGOING TRADE/TREATY NEGOTIATIONS.
18 U.S.C. § 207(b).

For 1 year after leaving Federal service, a former employee who participated personally and substantially in any ongoing trade or treaty negotiation on behalf of the government during the last year of the employee’s Federal service and who had access to non-public information [protected by the agency under the FOIA] on such negotiation, MAY NOT knowingly “represent, aid, or advise” another before the government concerning the negotiation.

REPRESENTING, AIDING, OR ADVISING A FOREIGN ENTITY BEFORE THE GOVERNMENT.
18 U.S.C. § 207(f).

Within 1 year of leaving any Senior Employee(SE) position, a former SE MAY NOT knowingly “represent, aid, or advise” a “foreign entity” with intent to influence a Federal employee.

“Foreign entity” means a foreign government, foreign political party, or insurgency.

“Represent, aid, or advise” applies to representation and to in-house advice, as well.

5. PROCUREMENT OFFICIALS 41 U.S.C. § 423

RULE: A former Federal official may not accept compensation from a contractor as an employee, officer, director, or consultant of that contractor, for a period of one year after that official either:

Served as a procurement Contracting Officer; Source Selection Authority; Source Selection Evaluating Board member; Chief of a financial/technical evaluation team; Program Manager; Deputy Program Manager or Administrative Contracting Officer, on a contract to that contractor worth more than $10 million; or
Personally decided for the agency to award a contract, subcontract, or contract action; to establish overhead rates; approve the issuance of a contract payment; or settle a claim worth more than $10 million.

THIS APPLIES:

To competitive and non-competitive procurements;
To direct and indirect compensation, including compensation received as a subcontractor, supplier, representative, consultant, or agent of the contractor;

THIS DOES NOT APPLY:

Where compensation is from an unrelated division or affiliate of the contractor if the products and services of that division or affiliate are different from those required on the procurement or contract.

Example: Estelle heads a procurement division involved in two agency contracts with Company X. On Contract 1, worth over $10 million, she serves as Contracting Officer; on Contract 2, worth $6 million, she plays no direct role, but her subordinates are responsible for handling negotiations for contract modifications. As Contract 1 is awarded on January 1, Estelle’s involvement with that procurement ends. Contract 2 is still pending in her division, but no action takes place between January 1 and July 1 when Estelle retires. She wants to join Company X to head both procurement efforts. Because of her involvement in Contract 1, she may not accept compensation from Company X until the following January 1 (1 year after ending participation in that procurement). Also, she would be permanently barred from representing Company X (or anyone else) back to the Federal government on Contract 1. She would be barred for an additional two years from her retirement date from representing Company X back to the government regarding Contract B.

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APPENDIX A

USDA PROTECTED INFORMATION PROHIBITIONS

7 U.S.C. 222. Packers & Stockyards Act. Unauthorized release of information specified in the Act.

7 U.S.C. 742. Release of information in an employee’s possession concerning cotton standards, estimates, tests, and analysis unless authorized by the Secretary.

7 U.S. 608(2). Release of information acquired from parties to marketing agreements (MA) & from handlers subject to MA orders, except as authorized by the Secretary for purposes of suit/administrative hearings.

7 U.S.C. 610(i). Use/availability of information furnished in connection with MA and orders.

7 U.S.C. 855. Availability of information furnished in connection with MAs and orders, and applicable to MAs for anti-hog-cholera serum and hog-cholera virus.

7 U.S.C. 955. Use/publication of information furnished in connection with the collection of peanut statistics.

7 U.S.C. 1373(c). Disclosure of information furnished in connection with establishment and adjustment of farm marketing quotas except as authorized by the Secretary for purposes of suit/administrative hearing.

7 U.S.C. 2105(c). Unauthorized release of information relating to the production and marketing of cotton.

7 U.S.C. 2426. Unauthorized release of information relating to the production and marketing of eggs.

12 U.S.C. 1141j(d). Unauthorized prediction as to cotton prices in a governmental publication.

18 U.S.C. 217. Acceptance of fees, gifts & other consideration for compromise, adjustment, or cancellation of farm indebtedness.

18 U.S.C. 1902. Willful disclosure of official information that might influence or affect the market value of crops prior to authorized publication. An employee acquiring, through employment, information on market value of agricultural crops, which information is required to be withheld, is prohibited from speculating in such product.

18 U.S.C. 2072. Compilation or issuance of false crop reports.

21 U.S.C. 458. Poultry Inspection Act. Using information to personal advantage or improperly revealing information concerning trade secrets acquired under the Act.

50 U.S.C. App. 2160(f). Use of information obtained in the course of employment to speculate or to aid another in speculating on any commodity exchange.

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APPENDIX B

ADDITIONAL USDA STATUTORY PROHIBITIONS

7 U.S.C. 87(a). U.S. Grain Standards Act
A person licensed or authorized to perform any official function under the Act, or employed by USDA to carry out the provisions of the Act, MAY NOT be financially or otherwise interested in an entity owning or operating a grain elevator or warehouse or engaging in the merchandising of grain, or be employed by or accept gratuities from any such entity.

7 U.S.C. 610(g). Agricultural Adjustment Act
Persons administering activities concerned with cotton option contracts and commodity benefits as provided by the Act, MAY NOT speculate in agricultural commodities or projects to which such contracts or benefits apply, or in contracts relating thereto, or in the stock or membership interests of any association or corporation handling such commodities or products.

7 U.S.C. 1986. Consolidated Farm and Rural Development Act
An officer or employee MAY NOT be the beneficiary of or receive any fee, commission, or gift for or in connection with any transaction or business under the Act other than such salary, fee, or compensation as he or she may receive as an officer or employee. In addition, members of a County Committee are prohibited from making any certification with respect to a loan to purchase any land in which they or any person related to them have any financial interest.

18 U.S.C. 1902.
An employee acquiring, by reason of his or her employment, information as to the market value of agricultural crops, which information is required to be withheld, MAY NOT speculate in such product.

18 U.S.C. 1903. Federal Crop Insurance Act
The prohibition against speculating in agricultural commodities to which the Act applies or in contracts relating to those commodities, or in the stock or membership interests of corporations or associations handling those commodities, by any person administering the Act.

30 U.S.C. 1211(f). Surface Mining Act
The prohibition against performing any function or duty that has a direct or indirect financial interest in underground or surface coal mining operations.

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APPENDIX C

TRAVEL COSTS PAID BY NON-FEDERAL SOURCES (FEBRUARY 2004)

NOTE: For this Appendix, please refer to the USDA Office of Ethics "Rules of the Road" section, under Acceptance of Non-Federal Travel Assistance

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APPENDIX D

POLITICAL ACTIVITIES QUICK REFERENCE CHART

NOTE: For this Appendix, please refer to the USDA Office of Ethics "Rules of the Road" section, under Political Activities Quick Reference Chart

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APPENDIX E

"LIMITED USE" POLICY DR 3300-1 (March 23, 1999)

1. TELEPHONE USE – APPENDIX B (pertinent excerpts)

POLICY

a. Use of Government Telephones
Government telephone systems (including cellular telephones and calls over commercial systems which will be paid for by the government) are in place for the conduct of official business or limited personal use as outlined in this Directive.

Criteria for Authorized Limited Personal Use. Use of government telephone systems for limited personal use may be authorized as being in the interest of the government if such use satisfies the following criteria:
1. It does not adversely affect the performance of official duties by the employee or the employee's organization;
2. It is of reasonable duration and frequency;
3. It reasonably could not have been made at another time, or;
4. It is provided for in a collective bargaining agreement.
Examples of Authorized Use. Some examples of authorized use by employees that are consistent with the previously stated criteria [Section 4, a, (1)] are:
1. Calls to notify family, doctor, etc., when an employee is injured on the job.
2. Calls to notify family of a schedule change while traveling on government business and delays occur due to official business or transportation.
3. While traveling on government business, a brief call to his or her residence (but not more than an average of one call per day).
4. Calls to advise his or her family of the change in schedule or to make alternate transportation or child care arrangements.
5. Brief daily calls to locations within the local commuting area to speak to spouse, minor children, or other family members whose "close association" constitutes a "family relationship" (or those responsible for them, e.g., school or day care center).
6. Brief calls to locations within the local commuting area that can be reached only during working hours, such as local government agencies or physicians, or to arrange for emergency repairs to his or her residence or automobile.
Long Distance Calls. Personal calls that must be made during working hours may be made over the commercial long distance network if the call is consistent with previously stated criteria [Section 4, a, (1)] and is:
1. Charged to the employee's home phone number or other non-Government number (third number call); or
2. Made to an 800, 877, 888, or other toll-free number; or
3. Charged to the called party if a non-Government number (collect call); or
4. Charged to a personal credit card or prepaid debit card.
Prohibitions. Listed below are PROHIBITED practices in accordance with Federal Property Management Regulation (FPMR) 101-35.201 and 5 CFR 735.205. Willful violation may result in criminal, civil, or administrative action, to include suspension or dismissal.
1. Use of the following services, equipment, or facilities for other than official business, except emergency calls and calls which the agency determines are necessary in the interest of the government:
  1. Federal Telecommunications System (FTS2000/2001);
  2. government provided long distance telephone service other than FTS2000/2001; or
  3. A commercial network (e.g., 10-10-321) where the government pays for the call.
2. Use of any government provided telephone service, equipment, or facility for calls which are permitted in the criteria but significantly interfere with the conduct of government business.
3. Making an unauthorized telephone call with the intent to later reimburse the government.
4. Use of "900" calls to include dialing a toll free number which will switch to a A900" call, either on or off the FTS2000/2001 network.

b. Collect Calls.
Collect calls (calls placed from a non-government number to a government number) and third party calls are prohibited except for official business and only when authorized in writing by the Agency Administrator or Staff Office Director. Since a collect surcharge is charged by the telephone company, it is strongly recommended that one of the following efficient and cost-effective methods be used in lieu of collect calls:

Use of FTS2000/2001 Federal Calling Card for employees making frequent long-distance calls;
Use of 1-800, 1-877, or 1-888 Service for mission requirements to satisfy external customers calls or public access to government information; or
Use of FTS contract prepaid debit cards.

2. INTERNET – APPENDIX I (pertinent excerpts)

POLICY

It is the policy of the United States Department of Agriculture to allow and encourage the use of Internet services to support the accomplishment of the various missions of the Department. Users of the Internet must be aware of the following policies regarding the content and management of Internet data and information.

a. Acceptable Use

Federal government telecommunication systems and equipment (including government owned telephones, facsimile machines, electronic mail, interact systems (Internet), and commercial systems (when use is paid for by the Federal government) shall be for official use and authorized purposes. (See GSA Federal Property Management Regulation (FPMR) 41 C.F.R. Subpart 101-35.1)
Authorized purposes may include limited personal use, with supervisor approval, and it is determined that such communications:
1. Do not adversely affect the performance of official duties by the USDA employee or the USDA employee organization;
2. Are of reasonable duration and frequency, and whenever possible, made during the USDA employee's personal time such as after duty hours or lunch periods;
3. Serve a legitimate public interest (such as educating the USDA employee on the use of the telecommunications system; enhancing the professional skills of the USDA employee; job searching in response to Federal government downsizing);
4. Do not put Federal government telecommunications systems to uses that would reflect adversely on USDA or the Agency (such as uses involving pornography; playing online games; for purposes of private business; chain letters; unofficial advertising, soliciting or selling except on authorized bulletin boards established for such use; violations of statute or regulation; inappropriately handled sensitive information; and other uses that are incompatible with public service);
5. Do not overburden the telecommunications system (such as may be the case with broadcasts and group mailings), and create no significant additional cost to USDA or to the Agency; and
6. Follow the policy of the Internet Activities Board (IAB) as stated in RFC 1087.

b. Privacy

USDA employees and contractors shall use Federal government telecommunications systems with the understanding that such use serves as consent to monitoring of any type of use, including incidental and personal uses, whether authorized or unauthorized. In addition, access of such systems is not anonymous. For example, for each use of the Internet over Federal government systems, these systems may capture information transmitted, received or stored on the system.

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APPENDIX F

SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT (5 CFR Part 8301)

NOTE: For this Appendix, please refer to Supplemental Standards of Ethical Conduct