[Federal Register Volume 59, Number 54 (Monday, March 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5975]
[[Page Unknown]]
[Federal Register: March 21, 1994]
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DEPARTMENT OF DEFENSE
32 CFR Part 84
[DoD 5500.7-R]
Joint Ethics Regulation
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule and request for comments.
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SUMMARY: This part is designed to prescribe standards of ethical
conduct required of all DoD personnel and certain former DoD officers
and employees, regardless of assignment. It also provides guidance and
procedures to implement the regulations promulgated by the U.S. Office
of Government Ethics for the entire Executive Branch, especially
concerning gifts and conflict of interest. It covers matters related to
activities with non-Federal entities, travel benefits, political
activities, financial and employment disclosure procedures, post-
Government service employment issues, enforcement of ethics rules,
ethics training, and ethical conduct. It will serve as the single,
uniform publication of rules and guidance for ethics and standards of
conduct in DoD with no implementations by DoD components.
DATES: This part is effective August 30, 1993. Comments must be
received by May 20, 1994.
ADDRESSES: Forward comments to DoD Standards of Conduct Office, Office
of General Counsel, 1600 Defense Pentagon, Washington, DC 20301-1600.
FOR FURTHER INFORMATION CONTACT:
Randi Elizabeth DuFresne, DoD Standards of Conduct Office, (703) 697-
5305, FAX (703) 697-1640.
SUPPLEMENTARY INFORMATION: On August 7, 1992, the U.S. Office of
Government Ethics (OGE) published a final rule entitled ``Standards of
Ethical Conduct for Employees of the Executive Branch'' (Standards).
See 57 FR 35006-35067, as corrected at 57 FR 48557 and 52583. The
Standards, codified at 5 CFR part 2635, establish uniform standards of
ethical conduct that are applicable to all Executive Branch personnel.
With the concurrence of OGE, DoD published an interim rule entitled
``Supplemental Standards of Ethical Conduct for Employees of the
Department of Defense'' (Supplement). See 58 FR 47619-47624. The DoD
Supplement appears at 5 CFR chapter XXVI. In addition the Standards and
the Supplement, there are ethics statutes applicable only to 2635 DoD
employees and former employees, matters such as political activities,
activities with non-Federal entities, enforcement, and ethical conduct
which are not addressed by the Standards or the Supplement, and
procedural concerns that require publication of a uniform,
comprehensive DoD regulation.
Certain portions of this part that are marked ``general orders''
apply to all military members without further implementation.
Violations may result in prosecution under the Uniform Code of Military
Justice (UCMJ), as well as adverse administrative action and other
adverse action authorized by the United States Code and Federal
regulations.
Executive Order 12866
It has been determined that this is not a significant rule as
defined under section 3(f)(1) through 3(f)(4) of Executive Order 12866.
Regulatory Flexibility Act
It has been determined under the Regulatory Flexibility Act (5
U.S.C. chapter 6) that this rule will not have a significant economic
impact on a substantial number of small entities because it affects
only DoD employees and certain former DoD employees.
Paperwork Reduction Act
It has been certified that information collection associated with
32 CFR part 84 has been submitted to the Office of Management and
Budget and is currently under review.
List of Subjects in 32 CFR Part 84
Conflict of interests, Government procurement.
Accordingly, Title 32, Chapter I, Subchapter A is amended to add
part 84 to read as follows:
PART 84--JOINT ETHICS REGULATION
Subpart A--General Information
Sec.
84.1 Purpose.
84.2 Definitions.
84.3 General policy.
84.4 General responsibilities.
Subpart B--Standards of Ethical Conduct
84.5 Office of Government Ethics regulation.
84.6 DoD supplement to 5 CFR part 2635.
84.7 DoD guidance.
Subpart C--Activities with Non-Federal Entities
84.8 Office of Government Ethics regulation.
84.9 Official participation in non-Federal entities.
84.10 Personal participation in non-Federal entities.
Subpart D--Travel Benefits
84.11 Acceptance of official travel benefits in kind or payment for
official travel expenses.
84.12 DoD guidance.
84.13 Procedures and responsibilities.
Subpart E--Conflict of Interest
84.14 Office of Government Ethics regulation.
84.15 Guidance on 18 U.S.C. 208.
84.16 Other conflict of interest laws.
Subpart F--Political Activities
84.17 Office of Personnel Management regulation.
84.18 Political activities of civilian DoD employees.
84.19 Political activities of military members.
Subpart G--Financial and Employment Disclosure
84.20 Office of Government Ethics regulation.
84.21 Public financial disclosure report (SF 278).
84.22 Confidential financial disclosure report (SF 450).
84.23 Report of DoD and defense related employment (DD form 1787).
Subpart H--Seeking Other Employment
84.24 General rules.
84.25 Conflict of interest (18 U.S.C. 208).
84.26 Procurement integrity (41 U.S.C. 423(b)).
84.27 Reporting employment contacts (10 U.S.C. 2397a).
84.28 DoD guidance.
Subpart I--Post-Government Service Employment
84.29 Office of Government Ethics regulation.
84.30 Guidance on 18 U.S.C. 207.
84.31 Post-employment counseling and advice.
84.32 Restrictions resulting from procurement activities.
84.33 Restrictions on retired military members.
84.34 Restrictions on former senior appointees.
84.35 Restrictions on dealing with current or former DoD employees.
84.36 Report of DoD and defense related employment (DD form 1787).
Subpart J--Enforcement
84.37 Enforcement of the provisions of the Joint Ethics Regulation.
84.38 Reporting procedures.
84.39 Administrative enforcement procedures.
Subpart K--Training
84.40 Office of Government Ethics regulation.
84.41 DoD guidance.
84.42 Procedures.
84.43 Responsibilities.
Subpart L--Ethical Conduct
84.44 Executive orders.
84.45 Code of ethics for Government service.
84.46 DoD human goals.
84.47 Ethical values.
84.48 Ethical decisionmaking.
Appendix A to Part 84--Digest of Laws
Appendix B to Part 84--Excerpts From DoD Publications
Appendix C to Part 84--DoD Human Goals
Authority: 5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics
in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306; 5 CFR part 2635.
Subpart A--General Information
Sec. 84.1 Purpose.
(a) Single source of guidance. This part provides a single source
of standards of ethical conduct and ethics guidance, including
direction in the areas of financial and employment disclosure systems,
post-employment rules, enforcement, and training.
(b) Disclaimer. A violation of this part does not create any right
or benefit, substantive or procedural, enforceable at law by any person
against the U.S., its agencies, its officers or employees, or any other
person.
Sec. 84.2 Definitions.
(a) Administrative officer. The individual responsible for the
administrative control of personnel within a unit or office, including
assistance with training, travel, or personnel actions for individuals
of the unit or office.
(b) Agency. A DoD component as follows: Department of the Army;
Department of the Navy; Department of the Air Force; Defense Commissary
Agency; Defense Contract Audit Agency; Defense Finance and Accounting
Service; Defense Intelligence Agency; Defense Investigative Service;
Defense Logistics Agency; Defense Mapping Agency; Defense Nuclear
Agency; Defense Information Systems Agency; National Security Agency;
Office of the Inspector General of the Department of Defense (IG, DoD);
and the Uniformed Services University of the Health Sciences. Employees
of DoD components not designated as separate agencies, including
employees of the Office of the Secretary of Defense (OSD), shall be
treated as employees of DoD which shall be treated as a separate
agency.
(c) Agency designee. The first supervisor who is a commissioned
military officer or a civilian above GS/GM-11 in the chain of command
or supervision of the DoD employee concerned. Except in remote
locations, the agency designee may act only after consultation with his
local Ethics Counselor. For any military officer in grade 0-7 or above
who is in command and any civilian Presidential appointee confirmed by
the Senate, the agency designee is his Ethics Counselor.
(d) Alternate Designated Agency Ethics Official (Alternate DAEO).
An employee of a DoD agency who has been appointed by the DoD component
Head to serve in the absence of the DoD component Designated Agency
Ethics Official (DAEO).
(e) Competing defense contractor. See Federal Acquisition
Regulation,\1\ 48 CFR 3.104-4(b) or 41 U.S.C. 423(p)(2).
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\1\For purchase of this Department of Defense document contact
Superintendent of Documents, Congressional Sales Office, U.S.
Government Printing Office, Washington, DC 20402.
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(f) Conduct of a procurement. See 48 CFR 3.104-4(c) or 41 U.S.C.
423(p)(1).
(g) DAEO or designee. This phrase refers to the Designated Agency
Ethics Official, or to the Alternate Designated Agency Ethics Official,
Deputy Designated Agency Ethics Official, or Ethics Counselor who has
been delegated specific written authority by the DoD component DAEO to
perform specific functions on behalf of the DoD component DAEO.
(h) Defense contractor. For purposes of 10 U.S.C. 2397, 2397a, and
2397b, any individual, firm, corporation, partnership, association, or
other legal non-Federal entity that enters into a contract directly
with DoD or a DoD component to furnish services, supplies, or both,
including construction. Subcontractors are excluded unless they are
separate legal non-Federal entities that contract directly with DoD or
a DoD component in their own names. Foreign governments or
representatives of foreign governments that are engaged in selling to
DoD or a DoD component are defense contractors when acting in that
context.
(i) Deputy Designated Agency Ethics Official (Deputy DAEO). An
employee of a DoD agency who has been appointed, in writing, by the DoD
component DAEO and who has been delegated written authority by that DoD
component DAEO to act on his behalf.
(j) Designated Agency Ethics Official (DAEO). A DoD employee
appointed, in writing, by the Head of the DoD agency to administer the
provisions of the Ethics in Government Act of 1978, Public Law 95-521
(5 U.S.C. App.), and this part.
(k) DoD component. OSD; the Military Departments; the Chairman of
the Joint Chiefs of Staff and the Joint Staff; the Unified and
Specified Commands; IG, DoD; the Uniformed Services University of the
Health Sciences; the Defense Agencies; the DoD Field Activities; the
Combined Commands and Agencies; and the Special Activities, including
non-appropriated fund instrumentalities. See paragraph (b) of this
section for those DoD components that are agencies.
(l) DoD employee. (1) Any DoD civilian officer or employee
(including special Government employees) of any DoD component
(including any non-appropriated fund activity).
(2) Any active duty regular or reserve military officer, including
warrant officers.
(3) Any active duty enlisted member of the Army, Navy, Air Force,
or Marine Corps.
(4) Any reserve or National Guard member on active duty under
orders issued pursuant to title 10, United States Code.
(5) Any reserve or National Guard member performing official
duties, including while on inactive duty for training or while earning
retirement points, pursuant to title 10, United States Code, or while
engaged in any activity related to the performance of a Federal duty or
function.
(6) Any faculty member in a civil service position or hired
pursuant to title 10, United States Code, and any student (including a
cadet or midshipman) of an academy, college, university, or school of
DoD.
(7) Consistent with labor agreements and international treaties and
agreements, and host country laws, any foreign national working for a
DoD component except those hired pursuant to a defense contract.
(m) DoD supplement. Section 84.6 contains the cross-reference to
the DoD Supplement of 5 CFR part 2635.
(n) Employment. See 5 CFR 2635.603(a).
(o) Ethics Counselor. The DoD component DAEO, Alternate DAEO,
Deputy DAEO, or a DoD employee appointed in writing by the DoD
component DAEO or designee to generally assist in implementing and
administering the DoD component command's or organization's ethics
program and to provide ethics advice to DoD employees of the DoD
component command or organization in accordance with this part. Except
for a DoD component DAEO, Alternate DAEO, or Deputy DAEO, a DoD
employee appointed as an Ethics Counselor shall only serve as a ``DAEO
or designee'' when he has been delegated specific written authority by
the DoD component DAEO to perform specific functions on behalf of the
DoD component DAEO. Except for a DoD component DAEO, Alternate DAEO, or
Deputy DAEO, a DoD employee appointed as an Ethics Counselor shall be
an attorney. Legal assistance officers (or equivalent) who also serve
as Ethics Counselors must clearly separate these roles. Communications
received in an Ethics Counselor capacity are not protected by the
attorney-client privilege while communications received in a legal
assistance capacity may be. Attorneys who serve as Ethics Counselors
must advise individuals being counseled as to the status of that
privilege prior to any communications. The term ``Ethics Counselor''
includes ``agency ethics official'' as used by the Office of Government
Ethics (OGE). See 5 CFR 2635.102.(c).
(p) Ethics Oversight Committee (EOC). A working group composed of
the DoD component DAEO, or their representatives, and representatives
of the Chairman of the Joint Chiefs of Staff, and the Judge Advocates
General of the Military Departments.
(q) Former DoD employee. Any individual defined in Sec. 84.2(l),
after termination of active duty or termination of DoD service,
including reserve military officers who served on active duty for more
than 130 days and who are no longer on active duty, or who are in an
inactive or retired status.
(r) Gratuity. Gifts as defined in 5 CFR 2635.203(b).
(s) He, his, him, himself. These pronouns include she, hers, her
and herself.
(t) Head of DoD component command or organization. A commander,
commanding officer, or other military or civilian DoD employee who
exercises command authority within a DoD component.
(u) Major defense contractor. Any non-Federal entity which, during
the preceding fiscal year, received defense contracts in a total amount
equal to or greater than $10 million.
(v) Major defense system. For purposes of 10 U.S.C. 2397b, a
combination of elements that will function together to produce the
capability required to fulfill a mission need. Elements may include
hardware, equipment, software, or any combination thereof, but excludes
construction or other improvements to real property. A list is
published in the Federal Register. See 10 U.S.C. 2302. A system shall
be considered a major defense system if:
(1) DoD is responsible for the system and the total expenditures,
for research, development, test, and evaluation for the system, are
estimated to exceed $75 million (based on fiscal year 1980 constant
dollars) or the eventual total expenditure for procurement exceeds $300
million (based on fiscal year 1980 constant dollars); or
(2) The system is designated a ``major system'' by the Head of the
DoD agency responsible for the system.
(w) Majority of working days. More than 50% of days actually
worked, excluding holidays, weekends, sick days, and leave days of the
two-year period in question.
(x) Negotiation. For purposes of 10 U.S.C. 2397b only, the exchange
of views between Federal Government and defense contractor
representatives regarding respective entitlements, liabilities and
responsibilities on a particular defense contract, modification, or
claim over $10 million, including deliberations regarding contract
specifications, terms of delivery, allowability of costs, and pricing
of change orders. Other statutes using this term may define it
differently.
(y) Non-Federal entity. A non-Federal entity is generally a self-
sustaining, non-Federal person or organization, established, operated
and controlled by any individual(s) acting outside the scope of any
official capacity as officers, employees or agents of the Federal
Government. A non-Federal entity may operate on DoD installations if
approved by the installation commander or higher authority under
applicable regulations. See 32 CFR part 212.
(z) Non-public information. Information generally not available to
the public, obtained in the course of one's official DoD duties or
position which would normally not be releasable under the Freedom of
Information Act, 5 U.S.C. 552. The term ``non-public information''
includes ``inside information,'' ``proprietary information,'' and
``source selection information.'' See 5 CFR 2635.703, 32 CFR part 285,
and 48 CFR 3.104-4(j) and (k) and 3.104-5.
(aa) Office of Government Ethics. The Federal Government agency
responsible for overall direction and leadership concerning Executive
Branch policies related to ethics in the Federal Government. See 5 CFR
part 2638.
(bb) Personal and substantial. See 5 CFR 2635.402(b)(4).
(cc) Personal commercial solicitation. Any effort to contact an
individual to conduct or transact matters involving unofficial
business, finance, or commerce. This does not include off-duty
employment of DoD employees employed in retail establishments. See 32
CFR part 43.
(dd) Primary Government representative. For purposes of 10 U.S.C.
2397b, acting as a ``representative'' requires personal and substantial
participation in the matter by personal presence, telephone
conversation, or similar involvement with representatives of a defense
contractor. At any time, more than one individual may act as a primary
representative for a single matter.
(ee) Procurement official. See 48 CFR 3.104-4(h).
(ff) Procurement function. For purposes of 10 U.S.C. 2397b, any
function relating to:
(1) The negotiation, award, administration, or approval of a
contract;
(2) The selection of a defense contractor;
(3) The approval of a change in a contract;
(4) The performance of quality assurance, operational and
developmental testing, the approval of payment, or auditing under a
contract; or
(5) The management of a procurement program.
(gg) Prohibited source. See 5 CFR 2635.203(d).
(hh) Qualified individual. See 5 CFR 2638.702(a)(2).
(ii) Reserve military officer. An individual who currently holds an
appointment in the reserve of a Military Department, or is a military
officer of the National Guard with Federal Government recognition.
(jj) Retired military officer. Any military officer entitled to
receive military retired pay, even though such pay may be waived or
pending.
(kk) Senior DoD official. For purposes of 18 U.S.C. 207, a DoD
employee is defined as stated in 10 U.S.C. 207(c)(2).
(ll) Special Government employee. An individual who is retained,
designated, appointed, or employed to perform, with or without
compensation, for a period not to exceed 130 days during any period of
365 consecutive days, temporary duties either on a full-time or
intermittent basis. The term also includes a reserve military officer
who is serving on active duty involuntarily or for training for any
length of time, and one who is serving voluntarily on active duty for
training for 130 days or less. It does not include enlisted members;
however, for the purposes of this part, enlisted members shall be
considered special Government employees to the same extent that
military officers are included in the meaning of the term.
(mm) Travel benefits. Travel related gifts, including in kind
subsistence and accommodations and payments or reimbursements of
expenses, from non-Federal sources.
Sec. 84.3. General policy.
DoD policy. It is DoD policy that:
(a) A single, uniform source of standards of ethical conduct and
ethics guidance shall be maintained within DoD, and each DoD agency
shall implement and administer a comprehensive ethics program to ensure
compliance with such standards and guidance;
(b) Although OGE regulations, cross-referenced in this part, do not
apply to enlisted members of DoD, the provisions of 5 CFR parts 2634,
2635, 2638, 2639, 2640, and 2641, are determined to be appropriate for
enlisted members and are hereby made applicable to enlisted members as
if the terms ``employee,'' and ``special Government employee,'' as used
in those OGE regulations, include enlisted members to the same extent
that military officers are included within the meaning of those terms.
The following exception applies to certain criminal statutes, 18 U.S.C.
203, 205, 207, 208, 209 and 218, and related provisions of OGE
regulations, do not apply to enlisted members. Provisions similar to
those of 18 U.S.C. 208 and 209 apply to enlisted members as follows:
(1) Except as approved by the DoD component DAEO or designee, an
enlisted member, including an enlisted special Government employee,
shall not participate personally and substantially as part of his
official DoD duties, in any particular matter in which he, his spouse,
minor child, partner, entity in which he is serving as officer,
director, trustee, partner, or employee, or any entity with which he is
negotiating or has an arrangement concerning prospective employment,
has a financial interest;
(2) An enlisted member, except an enlisted special Government
employee, shall not receive any salary or supplementation of his
Federal Government salary, from any entity other than the Federal
Government or as may be contributed out of the treasury of any State,
county, or municipality, for his services to the Federal Government.
(c) DoD employees shall become familiar with all ethics provisions,
including the standards set out in Executive Order 12674, 54 FR 15159,
3 CFR, 1989 Comp., p. 215-218, and comply with them;
(d) DoD employees shall become familiar with the scope of and
authority for the official activities for which they are responsible.
Sound judgment must be exercised. All DoD employees must be prepared to
account fully for the matter in which that judgment has been exercised;
(e) If the propriety of a proposed action or decision is in
question for any reason, DoD employees shall seek guidance from a DoD
component legal counsel, the DoD component DAEO or designee, or Ethics
Counselor, as appropriate;
(f) Individual conduct, official programs and daily activities
within DoD shall be accomplished lawfully and ethically;
(g) DoD employees shall adhere strictly to DoD policy of equal
opportunity, regardless of race, color, religion, gender, age, national
origin, or handicap, in accordance with applicable laws and
regulations.
Sec. 84.4 General responsibilities.
(a) The Head of each DoD component shall:
(1) Exercise personal leadership and take personal responsibility
through the DoD component DAEO for establishing and maintaining the DoD
component's ethics program and be personally accountable for the DoD
component's compliance with every requirement of this part, including
the ethics and procurement integrity training requirements;
(2) When authorized, appoint a DoD component DAEO, through a formal
written delegation of authority, who is qualified to oversee and
supervise the DoD component's ethics programs for DoD employees, both
civilian and military (the GC, DoD, may serve as the DAEO for several
DoD components);
(3) When authorized, appoint a DoD component Atlernate DAEO who
shall serve in the absence of the DoD component DAEO;
(4) Provide sufficient resources (including funding and
investigative, audit, legal, training and administrative staff) to
enable the DoD component DAEO to implement and administer the DoD
component's ethics programs in a positive and effective manner.
(b) Each DoD component Designated Agency Ethics Official (DAEO)
shall:
(1) Be responsible for the implementation and administration of all
aspects of the DoD component ethics program and manage and oversee
local implementation and administration of all matters relating to
ethics covered by this part.
(2) Appoint DoD component Deputy DAEOs and Ethics Counselors and
delegate to them written authority to act on behalf of the DoD
component DAEO;
(3) Ensure that ethics advice (and facts relied upon for such
advice) is in writing, when practicable;
(4) Ensure that written opinions regarding the applicability of 10
U.S.C. 2397b and 41 U.S.C. 423 are provided within 30 days of request
by any DoD employee provided that the requests is accompanied by
complete and full information necessary to render an opinion;
(5) Ensure that proper collection, review, and handling of the DoD
component's financial and employment disclosure reports, including
those submitted by Presidential appointees for confirmation purposes;
(6) Be responsible for the implementation and administration of
ethics and procurement integrity training and ensure that necessary
resources are available to accomplish such training;
(7) Provide periodic ethics and procurement integrity training for
Ethics Counselors;
(8) Certify Qualified Individuals to conduct ethics training;
(9) Assist agency designees, through the chain of command or
supervision, in initiating prompt, effective action to evaluate and
process violations, potential violations, and appearances of violations
of ethics laws or regulations, in accordance with applicable procedures
as discussed in subpart J of this part;
(10) Provide advice and assistance to DoD employees of the DoD
component not otherwise served by a local Ethics Counselor;
(11) Oversee and coordinate local ethics programs through a system
for periodic evaluation and ensure that the DoD component provides and
maintains sufficient funding, staff, space and resources to administer
the DoD component's ethics programs;
(12) Maintain liaison with the DoD EOC, OGE, and the DoD Standards
of Condut Office (SOCO), and provide to SOCO and OGE all information
required by law or regulation;
(13) Represent the DoD component to OGE, Congress, the Executive
Branch and the public on matters relating to ethics and standards of
conduct.
(c) Each DoD component Alternate Designated Agency Ethics Official
(Alternate DAEO) shall serve in the absence of the DoD component DAEO
and, when so serving, is authorized to take any action this part
indicates may be taken only by the DoD component DAEO.
(d) Each DoD component Deputy Designated Agency Ethics Official
(Deputy DAEO) shall serve on behalf of the DoD component DAEO
consistent with written delegation of authority from the DoD component
DAEO.
(e) The head of each DoD component command or organization shall:
(1) Exercise personal leadership and take personal responsibility
for establishing and maintaining the command's or organization's ethics
program in coordination with the command's or organization's Ethics
Counselors;
(2) Be personally accountable for the command's or organization's
ethics program, including its ethics and procurement integrity training
program, and the command's or organization's compliance with every
requirement of this part;
(3) Provide sufficient resources to enable the command's
organization's Ethics Counselors to implement and administer the local
aspects of the command's or organization's ethics program in a positive
and effective manner;
(4) Ensure the prompt resolution of any actual or apparent conflict
of interest involving a DoD employee of the command or organization;
(5) Direct administrative officers (or equivalent) of the command
or organization to ensure that the position descriptions of the DoD
component command or organization indicate if financial disclosure
report filing, annual ethics training or procurement integrity training
is required and ensure the accuracy of personnel data provided by the
director of the DoD component personnel office (or equivalent) on DoD
employees of the command or organization;
(6) Direct administrative officers (or equivalent) of the command
or organization to coordinate with the DoD component DAEO or designee
to develop lists of all DoD employees of the command or organization
who are required to receive ethics and procurement integrity training,
schedule such training, annotate such lists to indicate when required
training was accomplished and retain annotated lists for three years;
(7) Ensure that DoD employees of the command or organization who
are in positions requiring the filing of SF 450,\2\ ``Confidential
Financial Disclosure Report,'' July 1992, do so in a timely manner;
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\2\Copies are available from U.S. Office of Government Ethics,
1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.
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(8) Ensure that DoD employees of the command or organization attend
required ethics and procurement integrity training.
(f) The General Counsel of each DoD component shall:
(1) Serve as the DAEO for the DoD component unless otherwise
delegated;
(2) Support all aspects of the ethics program of the DoD component;
(3) Provide legal guidance and assistance to the DoD component DAEO
or designee.
(g) The Judge Advocate General of each Military Department shall:
(1) Provide legal guidance and assistance to Ethics Counselors
under his supervision;
(2) Support all aspects of the ethics program of the Military
Department.
(h) The General Counsel, DoD (GC, DoD) shall:
(1) Maintain the DoD SOCO and provide sufficient resources to
enable SOCO to oversee and coordinate DoD component ethics programs, to
produce reports required by Congress and maintain report data, and to
manage the DoD EOC;
(2) Represent DoD as a whole to OGE, Congress, the Executive
Branch, and the public when called upon to do so on matters relating to
ethics policy;
(3) Have the authority to incorporate changes to Government-wide
regulations that are reprinted in this part without formal
coordination.
(i) Each agency designee shall:
(1) In accordance with Sec. 84.10(g), provide prior approval or
disapproval of outside activities by DoD employees under his
responsibility;
(2) Receive and appropriately process reports of suspected
violations of ethics statutes or regulations and possible conflicts of
interest;
(3) Receive and appropriately process reports of non-compliance
with the filing requirements of subpart G of this part;
(4) Perform all the other duties of an agency designee established
in this part and in 5 CFR part 2635;
(5) Annually determine those positions under his responsibility
that require the filing of SF 450s, and annual ethics and procurement
integrity training.
(j) The DoD Standards of Conduct Office (SOCO) shall:
(1) Manage the DoD EOC and call periodic meetings to consider
current issues in ethics and standards of conduct;
(2) Coordinate DoD component ethics programs, including providing
uniform guidance and training material;
(3) Collect and publish important written opinions from DoD
components, when practicable, to promote uniformity of ethics opinion
throughout DoD;
(4) Monitor and assist DoD component DAEOs in ensuring effective
corrective action is taken to remedy violations, potential violations
and the appearance of violations of ethics laws or this part;
(5) Certify Qualified Individuals to conduct ethics training who
may be used by DoD components;
(6) Make ethics and procurement integrity training for ethics
trainers available on an ongoing basis to ensure that Qualified
Individuals are uniformly prepared to provide such training;
(7) Distribute ethics and procurement integrity training material
to all DoD component DAEOs for use in all types of ethics and
procurement integrity training;
(8) In the interest of Federal Government efficiency and economy,
establish and maintain a resource center of ethics and procurement
integrity materials (including training materials) developed by DoD
components.
(k) The DoD Ethics Oversight Committee (EOC) shall:
(1) Meet periodically, as necessary;
(2) Consider general ethics issues or current issues and make
recommendations to promote uniformity of ethics opinions throughout
DoD;
(3) Provide recommendations to DoD component DAEOs on particular
ethics matters in accordance with this part;
(4) Provide recommendations for DoD input on proposed ethics
legislation and regulations.
(l) The Director, Washington Headquarters Services shall:
(1) Prepare an annual report listing all the defense contractors
that have been awarded $10 million or more in defense contracts during
the fiscal year and publish the report in the Federal Register not
later than December 15 following the end of the fiscal year;
(2) Prepare an annual report listing all the defense contractors
that have been awarded $25,000 or more in defense contracts during the
fiscal year and distribute to the DoD component DAEOs not later than
December 31 following the end of the fiscal year.
(m) The Under Secretary of Defense for Acquisition shall prepare an
annual report listing all the major defense systems as defined by 10
U.S.C. 2302(5), and the prime defense contractors responsible for each,
that were in progress during the fiscal year and provide the report to
the DoD SOCO for publication in the Federal Register not later than
December 31 following the end of the fiscal year;
(n) Each Ethics Counselor shall:
(1) Provide written and oral advice, counseling, and assistance to
his DoD component command or organization and to the DoD employees of
his DoD component command or organization, on all ethics matters,
particularly areas covered by this part and related statutes and
regulations;
(2) Request assistance, through appropriate channels, from the DoD
component DAEO or designee on any matter than cannot be resolved
locally;
(3) Maintain a current copy of this part, and all changes, for
review by any DoD employee;
(4) Maintain a thorough understanding of current DoD ethics policy
through contact with the DoD component DAEO, attendance at periodic
ethics training courses, and other appropriate methods;
(5) Promptly provide a copy to the DoD component DAEO of
precedental written decisions to assist uniformity throughout the DoD
components;
(6) Perform other duties as assigned by written delegation from the
DoD component DAEO;
(7) Review financial disclosure reports in accordance with subpart
G of this part.
(o) The Inspector General of each DoD component shall:
(1) Investigate ethics matters arising in the DoD component, and
refer any such matters that involve suspected criminal violations to
the appropriate criminal investigative office of the DoD component;
(2) Report to the DoD component DAEO or designee on investigations
that result in referrals to the Department of Justice (DoJ) and on
disciplinary actions that must be reported in response to the OGE
annual ethics survey;
(3) Ensure inspectors and agents are educated in ethics matters to
ensure appropriate handling of ethics related cases and calls;
(p) The director of each DoD component personnel office (or
equivalent) shall:
(1) Provide the DoD component DAEO or designee such personnel data
on DoD employees, both civilian and military, as may be required by the
DoD component DAEO or designee;
(2) Assign personnel action officers the responsibility of
providing the required information at local levels;
(3) In coordination with the DoD component DAEO or designee,
establish procedures to inform new DoD employees of their obligation to
receive ethics and procurement integrity training as required;
(4) In coordination with the DoD component DAEO or designee,
establish out-processing procedures and records to advise DoD employees
of available counseling regarding post-employment and procurement
integrity restrictions prior to departure from DoD;
(5) In coordination with the DoD component DAEO or designee,
establish procedures to advise incoming and outgoing DoD employees of
their financial and employment disclosure reporting obligations.
(q) The administrative officer (or equivalent) of each DoD
component command and organization shall:
(1) Ensure that each position description of the DoD component
command or organization indicates if an SF 278,\3\ ``Public Financial
Disclosure Report,'' January 1991, or SF 450, and annual ethics and
procurement integrity training are required so prospective or new DoD
employees are on notice of such requirements prior to employment;
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\3\Copies are available from U.S. Office of Government Ethics,
1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.
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(2) Upon the request of the DAEO or designee, ensure the accuracy
of personnel data provided by the Director of the DoD component
personnel office on DoD employees of the DoD component command or
organization;
(3) In coordination with the DoD component DAEO or designee,
develop a list of all DoD employees within the DoD component command or
organization who are required to receive ethics and procurement
integrity training;
(4) In coordination with the DoD component DAEO or designee, ensure
that DoD employees of the DoD component command or organization are
scheduled to receive required ethics and procurement integrity
training;
(5) Annotate such list to indicate when required training was
accomplished and retain annotated list for three years.
(r) Each DoD employee shall:
(1) Abide by the ethical principles established by Executive Order
12674, ethics statutes, and the ethics regulations promulgated by OGE
and the DoD thereunder;
(2) Set a personal example for fellow DoD employees in performing
official duties within the highest ethical standards;
(3) Report suspected violations of ethics regulations in accordance
with Sec. 84.38(a);
(4) Perform all official duties so as to facilitate Federal
Government efficiency and economy;
(5) Attend ethics and procurement integrity training as required;
(6) File financial and employment disclosure reports as required.
Subpart B--Standards of Ethical Conduct
Sec. 84.5 Office of Government Ethics regulation.
See 5 CFR part 2635, ``Standards of Ethical Conduct for Employees
of the Executive Branch.'' The following sections of 5 CFR part 2635
are military general orders: Sec. 2635.202(a);
Sec. 2635.202(c)(1),(2),(3),(4), and (5) (excluding example and
paragraphs (c)(4) (i) through (iii)); Sec. 2635.302; Sec. 2635.402(a)
(excluding note); Sec. 2635.502(a) (excluding paragraphs (a)(1)
and(2)); Sec. 2635.503(a) (excluding examples); Sec. 2635.604(a)
(excluding the last sentence and examples); Sec. 2635.606(a) (excluding
the last sentence and example); the first sentence of Sec. 2635.702;
Sec. 2635.702(a) (excluding examples); Sec. 2635.702(b) (excluding
examples); Sec. 2635.702(c) (excluding examples); Sec. 2635.703(a);
Sec. 2635.704(a); Sec. 2635.705(b) (excluding examples); the first
paragraph of Sec. 2635.802; Sec. 2635.802(a); Sec. 2635.802(b)
(excluding sentence beginning ``Employees are cautioned * * *'' and
excluding examples); Sec. 2635.805(a); Sec. 2635.807(a) (excluding
paragraphs (a)(1) and (2)); the first sentence of Sec. 2635.808;
Sec. 2635.808(b) (excluding example); and Sec. 2635.808(c) (excluding
paragraph (c)(3) and examples).
Sec. 84.6 DoD supplement to 5 CFR part 2635.
See 5 CFR 3601.101-3601.108, ``Supplemental Standards of Conduct
for Employees of the Department of Defense.'' The following sections of
5 CFR 3601.101-3601.108 are military general orders: Sec. 3601.104(a)
(excluding paragraphs (a)(1) and (2)); Sec. 3601.104(b);
Sec. 3601.105(a); Sec. 3601.105(b); Sec. 3601.105(c); Sec. 3601.106;
and Sec. 3601.108 (excluding paragraphs (a) through (c)).
Sec. 84.7 DoD guidance.
(a) Gifts--(1) Procurement officials. In addition to the
restrictions on gifts in 5 CFR part 2635, subpart B, procurement
officials are subject to the gift acceptance restrictions of the
procurement integrity statute. See 41 U.S.C. 423 and 48 CFR 3.104.
(2) Gifts from foreign governments. There are special DoD rules
governing gifts from foreign governments. See 5 U.S.C. 7342 and 32 CFR
part 95.
(3) Ship launch and similar ceremonies. A DoD employee may not
accept gifts in connection with a ceremony to mark the completion of a
milestone in shipbuilding, aircraft completion, or similar vehicle
launch or roll-out unless attendance is official and is approved by the
head of the DoD component command or organization and the gifts are
limited to the following (see 5 U.S.C. 7301 note):
(i) Attendance at appropriate functions incident to the ceremony,
such as a dinner preceding the ceremony and reception following it, and
related food, hospitality and entertainment, as long as the function
and related benefits are not lavish, excessive, or extravagant;
(ii) Tangible gifts or mementos in connection with the ceremony to
DoD employees, their spouses, and their dependent children, who are
official participants in the ceremony, as long as the aggregate retail
value does not exceed $100 per family and the cost is not borne by the
Federal Government. When such gifts exceed the $100 limit, the
recipient shall pursue one of the following alternatives:
(A) Return the gift to the donor;
(B) Retain the gift after reimbursing the donor the full value of
the gift; or
(C) Forward the gift to the appropriate DoD component official for
disposition as a gift to the Federal Government in accordance with
statute. See 10 U.S.C. 2601.
(b) Use of Federal Goverment telephone systems. See GSA regulation
41 CFR part 201-21, subpart 201-21.6, on manangement of Federal
Government telecommunications resources.
(1) The use of Federal Government telephone systems (including
calls over commercial systems which will be paid for by the Federal
Government), except as provided in paragraph (b)(2) of this section
shall be limited to the conduct of official business. Such official
business calls may include emergency calls and calls that the DoD
components determine are necessary in the interest of the Federal
Government.
(2) Personal calls (such as calls to speak to spouse/minor children
or to arrange for emergency repairs to residence or automobile) that
must be made during working hours over the commercial local/long
distance network may properly be authorized as being in the best
interest of the Federal Government if the call is consistent with the
following criteria:
(i) It does not adversely affect the performance of official duties
by the DoD employee or the DoD employee's organization;
(ii) It is of reasonable duration and frequency; and
(iii) It could not reasonably have been made at another time;
(iv) And, in the case of long distance calls, is:
(A) Charged to the employee's home telephone number or other non-
Federal Government number (third number call);
(B) Made to an 800 toll-free number;
(C) Charged to the called party if a non-Federal Government number
(collect call);
(D) Charged to a personal telephone credit card; or
(E) When traveling for more than one night on Federal Government
business in the United States, a brief call to his residence to notify
family of a schedule change.
(c) Gambling. (1) [The following is a General Order] A DoD employee
shall not participate while on Federally-owned or leased property or
while on duty (for military members, this means, in this context,
present for duty) for the Federal Government in any gambling activity
prohibited by 5 CFR 735.208 except:
(i) Activities necessitated by a DoD employee's law enforcement
duties;
(ii) Activities by organizations composed of DoD employees or their
dependents when transacted entirely among their own members and
approved by the Head of the DoD component or designee; or
(iii) Private wagers among DoD employees if based on a personal
relationship and transacted entirely within assigned Federal Government
living quarters and within the limitations of local laws [end of
General Order].
(2) Gambling with a subordinate may be a violation of Articles 133
and 134 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. 801-
940).
(3) Gambling may be prohibited by Federal Government building and
grounds regulations, such as 32 CFR part 406 which prohibits gambling
in the Pentagon.
(d) Outside employment and activity. In addition to 5 CFR 3601.107
except to the extent that when procedures have been established by
higher authority for any class of DoD employees (e.g., DoD Directive
6025.7\4\), agency designees may require DoD employees under their
jurisdiction to report any outside employment or activity prior to
engaging in the employment or activity. See Sec. 84.10(g).
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\4\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(1) The commander, head of the organization, or supervisor may
prohibit the employment or activity if he believes that the proposed
outside activity will detract from readiness or pose a security risk.
(2) If action is not taken to prohibit the employment or activity,
the DoD employee is free to engage in the employment or activity in
keeping with other restrictions of this part.
(e) Use of military title by retirees or reserves. Retired military
members and members of reserve components, not on active duty, may use
military titles in connection with commercial enterprises, provided
they clearly indicate their retired or inactive reserve status.
However, any use of military titles is prohibited if it in any way
casts discredit on DoD or gives the appearance of sponsorship,
sanction, endorsement, or approval by DoD. In addition, in overseas
areas, commanders may further restrict the use of titles by retired
military members and members of reserve components.
Subpart C--Activities With Non-Federal Entities
Sec. 84.8 Office of Government Ethics regulation.
See 5 CFR part 2636, ``Limitations on Outside Employment and
Prohibition of Honoraria; Confidential Reporting of Payments of
Charities in Lieu of Honoraria.''
Sec. 84.9 Official participation in non-Federal entities.
(a) Attendance. (1) Agency designees may permit their DoD employees
to attend meetings, conferences, seminars or similar events sponsored
by non-Federal entities in their official DoD capacities at Federal
Government expense if there is a legitimate Federal Government purpose
in accordance with 5 U.S.C. 4101 et seq. and 37 U.S.C. 412, such as
training a DoD employee beyond maintaining professional credentials or
gathering information of value to the DoD.
(2) DoD employees are prohibited from attending events in their
official DoD capacities at Federal Government expense in order to
acquire or maintain professional credentials that are a minimum
requirement to hold the DoD position. See 5 U.S.C. 5946 and 31 U.S.C.
1345.
(b) Membership. DoD employees may serve as DoD liaisons to non-
Federal entities where there is a significant and continuing DoD
interest to be served by such representation. Liaisons serve as part of
their official DoD duties and under DoD component memberships. DoD
employees may not accept DoD component membership in a non-Federal
entity on behalf of DoD except as provided by statute or regulation.
DoD may pay for DoD component memberships in accordance with opinions
of the Comptroller General, such as 24 Comp. Gen. 814 (which may be
purchased from the U.S. Government Printing Office, Washington, DC
20402). DoD is prohibited from paying for individual memberships by 5
U.S.C. 5946. See also 10 U.S.C. 2601.
(c) Management. DoD employees may not participate in their official
DoD capacities in the management of non-Federal entities without
authorization from the Head of the DoD component. However, authorized
DoD employees may officially represent DoD in discussions of matters of
mutual interest with non-Federal entities, may participate in the
determinations and conclusions of non-Federal entities, and may cast a
vote on issues within the scope of the DoD employees' official
responsibilities.
(d) Impartiality of agency designee and travel-approving Authority.
When a DoD employee requests permission to travel to or participate in
activities of a non-Federal entity and the agency designee or travel
approving authority is an active participant in the non-Federal entity,
that agency designee or travel approving authority may not act on the
DoD employee's request but shall defer such action to the next higher
superior or another independent DoD authority. See 5 CFR 2635.402 and
2635.502 and 18 U.S.C. 208.
(e) Impartiality of DoD employees. DoD employees are generally
prohibited from engaging in any official activities in which a non-
Federal entity is a party or has a financial interest if the DoD
employee is an active participant in the non-Federal entity or has been
an officer in the non-Federal entity within the last year. See 5 CFR
2635.402 and 2635.502 and 18 U.S.C. 208.
(f) Endorsement. [The following is a General Order] Endorsement of
a non-Federal entity may be neither stated nor implied by DoD or DoD
employees and DoD employees may not use their titles or positions to
suggest official endorsement or preferential treatment of any non-
Federal entity except those listed in Sec. 84.9(k) [end of General
Order]. Use of military grade as part of an individual's name in
relationship to membership in private organizations is permissible. See
5 CFR 2635.702(c).
(g) Distributing information. In accordance with public affairs
regulations, official channels may be used to notify DoD employees of
events sponsored by non-Federal entities.
(h) Remuneration. DoD employees may not receive any salary or
salary supplement from a non-Federal entity for performance of DoD
duties.
(i) Co-sponsorship. A DoD component is a sponsor or co-sponsor of
an event when that DoD component is one of the organizations holding
the event or in whose name the event is held. Co-sponsorship of events
with a non-Federal entity is prohibited except as follows:
(1) A DoD component may co-sponsor a civic or community activity
where the head of the DoD component command or organization determines
that the activity is unrelated to the purpose or business of the co-
sponsoring, non-Federal entity or the purpose or business of any of its
members. See DoD Instruction 5410.20\5\;
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\5\See footnote 4 to Sec. 84.7(d).
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(2) A DoD component may co-sponsor a conference, seminar, or
similar event with a non-Federal entity when all of the following
requirements are met:
(i) The head of the DoD component command or organization finds
that the subject matter of the conference (or co-sponsored portion) is
scientific, technical or professional issues that are relevant to the
DoD component's mission;
(ii) The head of the DoD component command or organization finds
that the purpose of co-sponsorship is to transfer federally developed
technology or to stimulate wider interest and inquiry into the
scientific, technical or professional issues previously identified;
(iii) The non-Federal entity is a recognized scientific, technical
or professional organization approved by the DoD component DAEO for
this purpose; and
(iv) The DoD component accomplishes the co-sponsorship through a
contract, grant or cooperative agreement as identified in 31 U.S.C.
6303 through 6306; or a Cooperative Research and Development Agreement
(CRDA) as defined in 15 U.S.C. 3710a; or a cooperative agreement or
other transaction identified in 10 U.S.C. 2371.
(3) If the DoD component desires to sponsor an event, but requires
assistance in making the arrangements, the DoD component may arrange,
through normal acquisition procedures, to have a non-Federal entity
provide whatever assistance is necessary. If the event is open to
individuals outside the Federal Government, attendance may not be
limited to members of the supporting non-Federal entity. The supporting
non-Federal entity may be permitted to mention its support in
conference materials, but not in terms which imply that it is
sponsoring or co-sponsoring the event.
(j) Participation in conferences and similar events. Subject to the
provisions of paragraph (l) of this section and in accordance with
public affairs regulations and 31 U.S.C. 1345, DoD employees may
participate in their official DoD capacities as speakers or panel
members at conferences, seminars, or similar events sponsored by non-
Federal entities.
(k) Fundraising and membership drives. (1) [The following is a
General Order] Except as provided in paragraph (l) of this section, DoD
components shall not officially support and DoD employees shall not
officially endorse or officially participate in membership drives or
fundraising for any non-Federal entity except the following
organizations which are not subject to the provisions of paragraph (l)
of this section:
(i) The Combined Federal Campaign (CFC);
(ii) Emergency and disaster appeals approved by the Office of
Personnel Management (OPM);
(iii) Army Emergency Relief;
(iv) Navy-Marine Corps Relief Society;
(v) Air Force Assistance Fund, including:
(A) Air Force Enlisted Men's Widows and Dependents Home Foundation,
Inc.;
(B) Air Force Village;
(C) Air Force Aid Society;
(D) General and Mrs. Curtis E. LeMay Foundation.
(vi) Other organizations composed of DoD employees or their
dependents when fundraising among their own members for the benefit of
welfare funds for their own members when approved by the head of the
DoD component command or organization [end of General Order].
(2) Fundraising by DoD employees is strictly regulated by Executive
Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 139, 5 CFR part 950,
DoD Directive 5035.1\6\, DoD Instruction 5035.5\7\, DoD Directive
5410.18\8\, 5 CFR 2635.808 and by the prohibition against preferential
treatment established in paragraph (d) of this section.
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\6\See footnote 4 to Sec. 84.7(d).
\7\See footnote 4 to Sec. 84.7(d).
\8\See footnote 4 to Sec. 84.7(d).
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(1) Support of non-Federal entity events. (1) The head of a DoD
component command or organization may provide DoD employees in their
official capacities as speakers, panel members or other participants,
or, on a limited basis, the use of DoD equipment (and the services of
DoD employees necessary to make proper use of the equipment), in
support of an event sponsored by a non-Federal entity when the head of
the DoD command or organization determines all of the following:
(i) The support does not interfere with the performance of official
duties and would in no way detract from readiness;
(ii) The sponsoring, non-Federal entity is not affiliated with the
CFC (including local CFC) or, if affiliated with the CFC, the Director,
OPM or designee has no objection to DoD support of the event;
(iii) The community relations with the immediate community and/or
other legitimate DoD interests are served by the support;
(iv) It is appropriate to associate DoD, including the concerned
Military Department, with the event;
(v) The event is of interest and benefit to the local civilian or
military community as a whole;
(vi) The DoD component command or organization is able and willing
to provide similar support to similar events that meet the criteria
sponsored by other non-Federal entities;
(vii) The use is not restricted by other statutes or regulations;
and
(viii) Except for a fundraising event that meets all other criteria
for DoD participation, no admission fee beyond reasonable costs is
charged for the event, no admission fee beyond reasonable costs is
charged for the portion of the event supported by DoD, or DoD support
to the event is incidental to the entire event in accordance with
public affairs guidance.
(2) Involvement of DoD resources in air shows sponsored by non-
Federal entities is approved or disapproved by the Office of the
Assistant Secretary of Defense (Public Affairs).
(3) Speeches by DoD employees at events sponsored by non-Federal
entities are not precluded when the speech expresses an official DoD
position in a public forum in accordance with public affairs guidance.
(m) Relationships governed by other authorities. The provisions of
this Chapter do not restrict activities involving certain organizations
which have a special relationship with DoD or its employees
specifically recognized by law or by other directives. Other
restrictions may apply. These organizations include:
(1) Certain banks and credit unions (32 CFR part 231);
(2) United Service Organization (DoD Directive 1330.12\9\);
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\9\See footnote 4 to Sec. 84.7(d).
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(3) Labor organizations (5 U.S.C. Chapter 71; DoD 1400.25-M\10\,
Chapter 711);
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\10\Written request should be forwarded to: OASD(P&R)/CPP/EEO,
room 3D269, Pentagon, Washington, DC 20301.
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(4) Combined Federal Campaign (Executive Order 10927, 26 FR 2383, 3
CFR, 1959-1963 Comp., p. 508) DoD Directive 5035.1;
(5) Association of Management Officials and Supervisors (DoD
Instruction 5010.30\11\);
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\11\See footnote 4 to Sec. 84.7(d).
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(6) American Registry of Pathology (10 U.S.C. 177); Henry M.
Jackson Foundation for the Advancement of Military Medicine (10 U.S.C.
178); American National Red Cross (10 U.S.C. 2542); Boy Scouts
Jamborees (10 U.S.C. 2544); Girl Scouts International Events (10 U.S.C.
2545); Shelter for Homeless (10 U.S.C. 2546); National Military
Associations; Assistance at National Conventions (10 U.S.C. 2548);
Assistance from American National Red Cross (10 U.S.C. 2602); United
Seaman's Service Organization (10 U.S.C. 2604); Scouting: Cooperation
and Assistance in Foreign Areas (10 U.S.C. 2606); and Civil Air Patrol
(10 U.S.C. 9441-9442).
Sec. 84.10 Personal participation in non-Federal entities.
(a) Participation--(1) Fundraising and other activities. Subject to
other provisions of this part, DoD employees may voluntarily
participate in activities of non-Federal entities as individuals in
their personal capacities provided they act exclusively outside the
scope of their official position. Purely personal, unofficial,
volunteer efforts to support fundraising are not prohibited where the
efforts do not imply DoD endorsement. The head of the DoD component
command or organization may authorize such activities outside the
Federal Government workplace, such as at public entrances, in community
support facilities and in personal quarters. See 5 CFR part 950 and
Executive Order 12353. These activities may be further limited by
Federal Government building and grounds regulations.
(2) Professional associations and learned societies. Agency
designees may permit their DoD employees to voluntarily participate in
the activities of non-profit professional associations and learned
societies without being charged leave and to use Federal Government
equipment or administrative support services to prepare papers to be
presented at such association or society events or to be published in
professional journals, in accordance with FPM 252 and 630\12\ and
related DoD regulations, when:
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\12\For sale by Superintendent of Documents, Congressional Sales
Office, U.S. Government Printing Office, Washington, DC 20402.
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(i) The participation or paper is related to the DoD employee's
official position or to DoD functions, management or mission; and
(ii) The participation or preparation of the paper does not
interfere with the performance of official DoD duties.
(3) Community support activities. Agency designees may permit their
DoD employees to voluntarily participate in community support
activities that promote civic awareness and uncompensated public
service such as disaster relief events, without being charged leave in
accordance with FPM 630 and related DoD regulations.
(4) Impartiality of agency designee and travel approving authority.
When a DoD employee requests permission to travel to or participate in
activities of a non-Federal entity and the agency designee or travel
approving authority is an active participant in the non-Federal entity,
that agency designee or travel approving authority may not act on the
DoD employee's request but shall defer such action to the next higher
superior or another independent DoD authority. See 5 CFR 2635.402 and
2635.502 and 18 U.S.C. 208.
(b) Membership and management. DoD employees may become members and
may participate in the management of non-Federal entities as
individuals in a personal capacity provided they act exclusively
outside the scope of their official position. A DoD employee may not
serve in a personal capacity as an officer, member of the Board of
Directors, or in any other similar position in any non-Federal entity
offered because of their DoD assignment or position.
(c) Impartiality of DoD Employees. DoD employees are generally
prohibited from engaging in any official activities in which a non-
Federal entity is a party or has a financial interest if the DoD
employee is an active participant in the non-Federal entity or has been
an officer in the non-Federal entity within the last year. See 5 CFR
2635.402 and 2635.502 and 18 U.S.C. 208.
(d) Interference with employment of local civilians. Enlisted
members on active duty may not be ordered or authorized to leave their
post to engage in a civilian pursuit, business, or professional
activity if it interferes with the customary or regular employment of
local civilians in their art, trade, or profession. See 10 U.S.C. 974.
(e) Competition with civilian musicians. Members of military bands
are very restricted in the degree to which they may compete off base
with civilian musicians. See 10 U.S.C. 3634, 6223 and 8634.
(f) Use of Federal Government resources--(1) Authorized uses. Other
than Federal Government time authorized in paragraphs (a)(2) and (a)(3)
of this section, Federal Government assets, employees, or property may
not be used in support of personal participation in non-Federal
entities, except as follows:
(i) Agency designees may permit occasional use of Federal
Government telephone systems in keeping with GSA rules on personal
calls, provided that such use does not interfere with the performance
of official duties. See Sec. 84.7(b) and 41 CFR 201-21.6;
(ii) Because the cost to the Federal Government is minimal, the use
of office telecommunications equipment for local calls, word processing
equipment, libraries and similar resources and facilities whose use
would not affect Federal Government costs significantly, may be
permitted by the agency designee if:
(A) The non-Federal entity is not a prohibited source;
(B) The agency designee determines that:
(1) A legitimate public interest is served by the use; or
(2) The use would enhance the professional development or skills of
the DoD employee in his current position.
(C) The use of such resources is made only during personal time,
such as excused absence, lunch period, or after duty hours; and
(D) The use does not interfere with the performance of official
duties.
(2) Prohibited uses. (i) [The following is a General Order] Because
of the potential for significant cost to the Federal Government, and
the potential for abuse, DoD employees, such as secretaries, clerks,
and military aides, may not be used to support the unofficial activity
of another DoD employee in support of non-Federal entities except as
provided in paragraph (a)(1) of this section [end of General Order].
(ii) [The following is a General Order] For the same reasons,
copiers and other duplicating equipment may not be used for unofficial
activity in support of non-Federal entities [end of General Order].
(g) Prior approval of outside employment and business activities.
(1) A DoD employee, other than a special Government employee, who is
required to file a financial disclosure report, SF 450 or SF 278, shall
obtain written approval from the agency designee before engaging in a
business activity or compensated outside employment with a prohibited
source, unless general approval has been given in accordance with
paragraph (g)(2) of this section. Approval shall be granted unless a
determination is made that the business activity or compensated outside
employment is expected to involve conduct prohibited by statute or
regulation.
(i) Business activity means any business, contractual or other
financial relationship not involving the provision of personal services
by the DoD employee. It does not include a routine commercial
transaction or the purchase of an asset or interest, such as common
stock, that is available to the general public.
(ii) Employment means any form of non-Federal Government employment
or business relationship involving the provision of personal services
by the DoD employee. It includes, but is not limited to, personal
services as an officer, director, employee, agent, attorney,
consultant, contractor, general partner or trustee.
(iii) Prohibited source has the meaning set forth in 5 CFR
2635.203(d), as modified by the separate agency designations in 5 CFR
3601.102.
(2) The DoD component DAEO or designee may, by a written notice,
exempt categories of business activities or employment from the
requirement of paragraph (g)(1) of this section for prior approval
based on a determination that business activities or employment within
those categories would generally be approved and are not likely to
involve conduct prohibited by statute or regulation.
(3) A copy of the request for prior approval and the written
approval shall be kept with the filed copy of the DoD employee's
financial disclosure report, SF 450 or SF 278, or with the local Ethics
Counselor.
(4) Such DoD employees who have not obtained prior approval and who
are, on the effective date of this supplemental rule, already engaged
in an outside activity that requires prior approval shall have 90 days
from that date to obtain such approval.
(5) Except to the extent that when procedures have been established
by higher authority for any class of DoD employee (e.g., DoD Directive
6025.7\13\, agency designees may require DoD employees under their
jurisdiction to report any outside employment or activity prior to
engaging in the employment or activity.
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\13\See footnote 4 to Sec. 84.7(d).
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(i) The commander, head of the organization, or supervisor may
prohibit the employment or activity if he believes that the proposed
outside activity will detract from readiness or pose a security risk.
(ii) If action is not taken to prohibit the employment or activity,
the DoD employee is free to engage in the employment or activity in
keeping with other restrictions of this part.
(h) Teaching, speaking and writing--(1) Disclaimer for speeches and
writings devoted to agency matters. [The following is a General Order]
A DoD employee who uses or permits the use of his military grade or who
includes or permits the inclusion of his title or position as one of
several biographical details given to identify himself in connection
with teaching, speaking or writing, in accordance with 5 CFR
2635.807(b)(1), shall make a disclaimer if the subject of the teaching,
speaking or writing deals in significant part with any ongoing or
announced policy, program or operation of the DoD employee's agency, as
defined in 5 CFR 3601.102(a), and the DoD employee has not been
authorized by appropriate agency authority to present that material as
the agency's position.
(i) The required disclaimer shall expressly state that the views
presented are those of the speaker or author and do not necessarily
represent the views of DoD or its components.
(ii) Where a disclaimer is required for an article, book or other
writing, the disclaimer shall be printed in a reasonably prominent
position in the writing itself. Where a disclaimer is required for a
speech or other oral presentation, the disclaimer may be given orally
provided it is given at the beginning of the oral presentation [end of
General Order].
(2) Security clearance. A lecture, speech, or writing that pertains
to military matters, national security issues, or subjects of
significant concern to DoD shall be reviewed for clearance by
appropriate security and public affairs offices prior to delivery or
publication.
(3) Honoraria. Compensation for a lecture, speech or writing may be
restricted by the honoraria prohibition of the Ethics in Government Act
(5 U.S.C. App.), 5 CFR part 2636, and by 5 CFR 2635.807.
Subpart D--Travel Benefits
Sec. 84.11 Acceptance of official travel benefits in kind or payment
for official travel expenses.
(a) Acceptance from non-Federal sources--(1) Official travel.
Official travel by DoD employees shall be funded by the Federal
Government except that DoD components may accept official travel
benefits, including in kind subsistence and accommodations and payments
or reimbursements of expenses, from non-Federal sources as provided in
this subpart of this part.
(2) Personal travel. This subpart does not apply to travel benefits
provided to DoD employees in their personal capacities. However, DoD
employees must report such travel expenses when appropriate in
accordance with subpart G of this part. There may be limitations on
acceptance of travel benefits in a personal capacity, including
limitations on acceptance from prohibited sources, because of official
position, and under 41 U.S.C. 423.
(3) Acceptance procedures. Any official travel benefits from non-
Federal sources accepted by the travel approving authority must be:
(i) Approved in writing by the travel approving authority with the
advice of the DoD employee's Ethics Counselor;
(ii) If accepted under the authority granted by 31 U.S.C. 1353,
approved in advance of travel.
(4) Spousal travel. The travel approving authorities for travel of
a spouse accompanying a DoD employee on official travel that is paid
for or provided in kind by a non-Federal source are as follows:
(i) For DoD employees of OSD, Defense Agencies and OSD Field
Activities, the Executive Secretary, OSD;
(ii) For DoD employees of Military Departments, the Secretaries
concerned or their designees;
(iii) For DoD employees of the Chairman of the Joint Chiefs of
Staff and the Joint Staff, the United or Specified Commands, and the
Combined Commands and agencies, the Chairman of the Joint Chiefs of
Staff, or his designee.
(b) Acceptance of travel and related expenses by a DoD component
from non-Federal sources--(1) Attendance at a meeting or similar
function (31 U.S.C. 1353).
(i) In accordance with 31 U.S.C. 1353 and GSA travel regulations,
41 CFR 301-1.2 and part 304, Heads of DoD components may accept travel
benefits from a non-Federal source incurred by DoD employees in
connection with their attendance in an official capacity at a meeting
or similar function. The Joint Federal Travel Regulations\14\ (JFTR),
Chapter 7, part W, Paragraphs U7900-7908 (DoD Uniformed Services) and
Joint Travel Regulations\15\ (JTR), Chapter 4, part Q, Paragraphs
C4900-4908 (DoD Civilian Personnel) implement 41 CFR 301-1.2 and part
304. For detailed guidance as to the applicability and application of
specific authority, these regulations should be consulted directly.
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\14\For sale by Superintendent of Documents, Congressional Sales
Office, U.S. Government Printing Office, Washington, DC 20402
\15\See footnote 14 to Sec. 84.11(b)
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(ii) Where the GSA travel regulations, 41 CFR 301-1.2 and part 304,
are inconsistent with the JFTR and JTR, 41 CFR 301-1.2 and part 304 are
the controlling authorities.
(iii) A DoD component may not accept travel benefits from non-
Federal sources under any other gift acceptance authority if 31 U.S.C.
1353 applies.
(iv) Payment guidelines. DoD employees (or their spouses) shall not
accept cash payments on behalf of the Federal Government.
(A) When travel benefits are paid for rather than provided in kind,
payments from the non-Federal source will be by check or similar
instrument made payable to the United States Treasury. Any such payment
received by the DoD employee (or spouse) shall be submitted with his
travel voucher as soon as practicable.
(B) The DoD employee shall exclude from his travel voucher any
request for reimbursement for travel benefits furnished in kind by a
non-Federal source on the travel voucher to ensure that appropriate
deductions are made in the travel, per diem, or other allowances
payable by the United States.
(v) Reporting. Each travel-approving authority designated by the
DoD component Head to accept travel benefits from non-Federal sources
shall submit a report to the DoD component DAEO or designee
semiannually on April 30 and October 31 to accommodate the required
reporting to OGE on May 31 and November 30 each year. See JFTR,
Paragraph U7908 and JTR, Paragraph C4908 for details on what to report.
(2) DoD component gift acceptance statutes. In accordance with
procedures established by those DoD components with gift acceptance
authority under 10 U.S.C. 2601, travel benefits may be accepted by such
DoD component Heads or their designees.
(i) This authority may not be used to accept travel benefits
covered by 31 U.S.C. 1353.
(ii) This authority may be used to accept, for example,
reimbursement for travel benefits of flight crew members that accompany
Federal Government aircraft to international air shows or the expenses
incurred by the attendance of DoD employees at ceremonial events in
order to enhance a DoD component's public relations. This authority may
also be used to accept travel benefits offered after travel has begun
or has been completed.
(3) DoD component DAEO or designee approval. Acceptance of official
travel benefits from non-Federal sources described in Sec. 84.11(b)(1)
and (2) requires the concurrence of the DoD component DAEO or designee.
(c) Acceptance of contributions, awards and other payments by DoD
employees from tax-exempt organizations (5 U.S.C. 4111)--(1)
Applicability. Military members are permitted to accept contributions,
awards and other payments the same as civilian DoD employees in
accordance with the requirements of this section.
(2) Conditions for acceptance. Except when acceptance is permitted
under 5 CFR 2635.204(d), DoD employees are permitted to accept
contributions, awards and other payments directly from non-Federal
sources only when all of the following conditions are met:
(i) The source is tax-exempt organization described by 26 U.S.C.
501(c)(3) or a State or local government (see 5 CFR part 410, subpart
G);
(ii) The contribution, award, or payment of travel benefits is
incidental to training in non-Federal Government facilities or
attendance at a meeting;
(iii) An appropriate deduction is made from any payment by the
Federal Government to the DoD employee for their official travel
entitlement;
(iv) The contribution, award, or payment is not a reward for
services to the non-Federal source;
(v) Acceptance of the contribution, award or payment would not
reflect unfavorably on the DoD employee's ability to perform his duties
in a fair and objective manner, nor otherwise compromise the integrity
of any Federal Government action; and
(vi) The travel approving authority approves the acceptance of the
contribution, award or payment in writing.
(3) Payments from multiple sources. When more than one organization
participates in making a single contribution, award, or payment, only
the organization that selects the recipient and administers the funds
from which the contribution, award, or payment is made will be
considered the source.
(4) Reporting. (i) Financial disclosure reporting individuals must
report acceptance of these travel benefits if the fair market value of
those benefits reaches the reportable amount.
(ii) Travel benefits accepted under 5 U.S.C. 4111 shall be reported
by the travel-approving authority directly to the DoD component DAEO or
designee within 30 days after completion of travel. These reports shall
include, at a minimum, the information required for the semiannual
reports by the JFTR, Paragraph U7908 and JTR, Paragraph C4908.
(d) Receipt and disposition of foreign gifts and decorations (5
U.S.C. 7342). DoD employees may accept travel and travel-related
expenses from a foreign government in accordance with 32 CFR part 95.
Sec. 84.12 DoD guidance.
(a) Acceptance of incidental benefits. There are two basic
principles DoD employees must consider in determining whether they may
accept benefits offered incident to their official travel. See DoD
travel rules (e.g., DoD Directive 4500.9\16\).
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\16\See footnote 4 to Sec. 84.7(d).
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(1) Federal Government property. Anything that does not fall within
a gift exception or exclusion under 5 CFR part 2635, subpart B, or 5
CFR 3601.101-3601.108, which is received by a DoD employee as a result
of official travel, belongs to the Federal Government, regardless of
the source of the funding.
(i) Travel coupons, tickets, promotional items of more than nominal
value, frequent flyer mileage credits, and most other benefits received
by DoD employees from non-Federal sources (e.g., airlines, rental car
companies, hotels) incident to their official travel belong to the
Federal Government. They may not be used for personal purposes.
(ii) If possible, such benefits will be turned over to the
appropriate official. See JFTR, Paragraph U2010B, JTR, Paragraph C1200,
41 CFR part 301 and 41 CFR 101-25.103.
(2) Gifts from outside sources. Benefits offered to a DoD employee
from a non-Federal source incident to official travel that cannot be
used for official purposes must be treated as gifts to the DoD
employee. DoD employees may not accept such gifts if acceptance would
violate 5 CFR part 2635, subpart B.
(b) Examples of benefits considered Federal Government property--
(1) Frequent flying mileage credits. Frequent flyer mileage credits
earned as a result of official travel are the property of the Federal
Government. They shall not be used except in connection with official
travel. Credits are used in connection with official travel either by
redeeming them for airline tickets which are used for official travel
or by using them for travel upgrades while on official travel (e.g.,
airline seat upgrades, rental car upgrades, hotel upgrades). First
consideration should be given to the former. When mileage credits for
official and personal travel have been commingled in the same account,
only those credits or points that clearly can be shown to have been
derived from personal travel may be used for future personal travel.
All other points in the account belong to the Federal Government.
(2) Other awards to users of travel services. Travel companies
sometimes give away merchandise, or award points toward merchandise or
other prizes, to users of their services. If the travel services used
are paid for by the Federal Government, any resulting award belongs to
the Federal Government (e.g., if a DoD employee renting a car for
official business is offered either a calculator or points toward a
larger prize, both would belong to the Federal Government).
(c) Examples of benefits treated as gifts to an individual--(1)
Travel upgrades. Travel upgrades are commonly offered for such travel
accommodations as airline seats, rental cars, and hotel rooms. Some
travel upgrades are given on the spot without any prearranged
entitlement. Others are provided pursuant to some prearranged
entitlement, such as a coupon. DoD employees on official travel may
accept benefits such as an airline seat upgrade to first class, a
luxury rental car in place of a compact, or a hotel room with a view
instead of an interior room, for official use as long as there is no
extra charge to the Federal Government to obtain the upgrade (see 5 CFR
2635.204(c)), subject to the following:
(i) On the spot upgrades. DoD employees may accept an upgrade
offered on the spot under circumstances in which such upgrades are
generally available to the public or at least to all Federal Government
employees or all military members. For example, a travel company may
provide upgrades to remedy overbooking or overcrowding, due to a
shortage of smaller cars, or simply for customer relation purposes; or
upgrades may be offered to all military members in uniform. No upgrade
may be accepted, however, if it is provided on the basis of the DoD
employee's grade or position. Upgrades resulting from involuntary
``bumping'' while on official travel may not be used for personal
travel. See 5 CFR 2635.202(a)(2);
(ii) Use of upgrade certificates (other than those obtained for
frequent flyer miles). Some travel companies distribute coupons for
free travel upgrades as a promotional offer. DoD employees may accept
and use such coupons if they are realistically available to the general
public (e.g., widely available coupons usable by bearer) or to all
Federal Government employees or all military members (e.g., coupons
available to any Federal Government employee for official travel). DoD
employees may not use coupons provided on the basis of their grade or
position.
(2) ``Gold card'' and similar memberships. Certain airlines offer
special benefits, including free upgrades, to members of their traveler
incentive programs (e.g., Gold card, Key Club, etc.). Membership in
these programs ordinarily is earned by accumulating a large number of
travel miles during the current calendar year, or in some cases,
memberships may be purchased. DoD employees who obtain eligibility
under these circumstances (i.e., by purchasing a membership with their
personal funds or by accumulating the necessary miles, even by official
travel) may accept the membership and resulting benefits, including
travel upgrades. If membership in the program is offered to DoD
employees who have not met the usual requirements for membership,
however, primarily because of the DoD employee's grade or position,
neither the membership nor its benefits may be accepted.
(3) Prizes in ``open'' and ``closed'' contest. When travel
companies and related organizations offer prizes in a competition that
is open to the general public, so that no one must perform official
travel to win, a DoD employee may keep any prize he wins, even if he
happened to enter the contest only because of official travel (e.g., a
DoD employee flying on official business receives the winning entry
blank in an airline's contest while on the flight, but individuals not
using the airline will be given the entry blank on request). Some
travel companies and related organizations offer prizes in connection
with official travel. The prize usually is given as a result of a
drawing or some kind of contest. If competition for a prize is limited
to individuals using a certain kind of travel accommodation, which in
the case of the DoD employee is paid for by the Federal Government, any
prize won belongs to the Federal Government (e.g., an airline provides
contest entry blanks only to passengers on its planes, and the DoD
employee receives the winning entry blank while flying on official
travel).
(4) Incentives for voluntary surrender of flight reservations. DoD
employees may keep payments or free tickets received from a carrier for
voluntarily giving up a seat on an overbooked flight. DoD employees on
official travel may not voluntarily surrender their seats if the
resulting delay would interfere with the performance of duties. The
delay may not increase the cost to the Federal Government. Therefore,
travel vouchers should disclose the voluntary surrender and resulting
delays and leave must be taken as appropriate.
Sec. 84.13 Procedures and responsibilities.
(a) The travel-approving authority shall:
(1) Approve or disapprove acceptance of travel benefits in kind or
payments of travel expenses from non-Federal sources in accordance with
Sec. 84.11 (c) and (d);
(2) Acquire the concurrence of the DoD component DAEO or designee
when approving travel benefits in accordance with the conflict of
interest analysis required by 41 CFR 304-1.5;
(3) Prepare and submit a report to the DoD component DAEO or
designee reporting all travel benefits over $250 accepted in accordance
with the authority granted under 31 U.S.C. 1353 as implemented in
Sec. 84.11(b);
(4) Prepare and submit a report to the DoD component DAEO or
designee within 30 days after completion of travel during which travel
benefits have been paid by non-Federal sources under 5 U.S.C. 4111. See
Sec. 84.11(c)(3).
(b) Each DoD component DAEO or designee shall:
(1) Prepare and submit semiannual reports to OGE on acceptance of
payments under 31 U.S.C. 1353 due May 31 and November 30 each year. See
Sec. 84.11(b)(1)(v);
(2) Retain reports from the travel-approving authority under 5
U.S.C. 4111 for two years. See Sec. 84.11(c)(4);
(3) Provide written concurrence for the approval of travel benefits
in accordance with the conflict of interest analysis required by 41 CFR
304-1.5.
(c) Each traveling DoD employee shall:
(1) Provide all necessary information to the travel approving
authority for a semiannual report to the DoD component DAEO;
(2) Turn in any merchandise, frequent flyer miles or other benefits
as required under Sec. 84.12(a).
Subpart E--Conflicts of Interest
Sec. 84.14 Office of Government Ethics Regulation.
(a) See 5 CFR part 2639, ``Interpretation of 18 U.S.C. 209''
(b) See 5 CFR part 2640, ``Interpretation of 18 U.S.C. 208''
Sec. 84.15 Guidance on 18 U.S.C. 208.
(a) Conflicts and appearance of conflicts under 18 U.S.C. 208. See
5 CFR part 2635, subpart D and subpart E, OGE opinions (which are
available for purchase from the U.S. Office of Government Ethics, 1201
New York Avenue, NW., suite 500, Washington, DC 20005-3917), and 5 CFR
3601.105 for provisions on conflicts of interest under 18 U.S.C. 208.
(b) Applicability to enlistees. The provisions of 18 U.S.C. 208 and
related provisions of OGE regulations do not apply to enlisted members.
However, provisions similar to 18 U.S.C. 208 do apply to enlisted
members as follows: [The following is a General Order] except as
approved by the DoD component DAEO or designee, an enlisted member,
including an enlisted special Government employee, shall not
participate personally and substantially as part of his official DoD
duties, in any particular matter in which he, his spouse, minor child,
partner, entity in which he is serving as officer, director, trustee,
partner or employee or any entity with which he is negotiating or has
an arrangement concerning prospective employment, has a financial
interest [end of General Order].
(c) Waiver of 18 U.S.C. 208(a). Pursuant to 18 U.S.C. 208(b),
application of 18 U.S.C. 208(a) may be waived.
(1) The regulatory waivers for DoD under 18 U.S.C. 208(b)(2) have
been preserved and are reprinted as follows (see 5 CFR 2635.402(d));
(i) For civilian DoD components, such waivers appear in Appendix B
to this part;
(ii) For the Department of the Army, such waivers appear in
Appendix B to this part;
(iii) For the Department of the Air Force, such waivers appear in
Appendix B to this part;
(iv) For the Department of the Navy, such waivers appear in
Appendix B to this part.
(2) Application of 18 U.S.C. 208(a) may be waived for individuals
when a financial interest is not so substantial as to be likely to
affect the integrity of the services that the Federal Government may
expect from the DoD employee. Considerations in determining whether the
interest is not so substantial as to be deemed likely to affect the
integrity of the services that the Federal Government may expect from
the DoD employee include:
(i) The extent to which the DoD employee's exercise of authority
and responsibility can affect his interest;
(ii) The relative importance of the interest in the DoD employee's
life or finances;
(iii) The potential for harm to the Federal Government and to the
DoD employee if the DoD employee's interests influence his decision-
making;
(iv) How the situation would appear to an informed public;
(v) The nature of the relationship between the DoD employee and the
individual who has the interest concerned.
(3) In order to pursue an individual waiver under 18 U.S.C.
208(b)(1) the following steps are mandatory:
(i) Before a waiver is requested, consideration should first be
given to alternative resolutions, such as disqualification,
divestiture, reassignment, or rearrangement of duties. Individual
waivers are to be considered only when all alternatives have been
exhausted. The supervisor should also consider, with the advice of the
Ethics Counselor, whether a potential violation of 18 U.S.C. 208(a)
exists. See paragraph (d) of this section. Even if the interests are
insubstantial, consideration should be given to whether the particular
matter will have a direct and predictable effect on the financial
interest. See 5 CFR 2635.402(b)(1);
(ii) A request for a waiver shall be forwarded through the chain of
command or supervision to the DoD component DAEO. The DoD component
DAEO shall consult, if practicable, on the action with OGE;
(iii) Pending the approval of the waiver, the DoD employee shall be
disqualified from participation in the particular matter that will have
an effect on the financial interest;
(iv) The waiver request shall include the Ethics Counselor's
findings of fact on the following:
(A) The manner in which the financial interest was acquired;
(B) The purpose behind the DoD employee's acquisition of the
interest;
(C) The dollar value of the interest;
(D) The potential amount by which the DoD employee's official
actions may affect the financial interest;
(E) The degree to which the DoD employee has control over official
actions which may affect the non-Federal entity;
(F) The size of the non-Federal entity and the degree to which
official actions may affect the non-Federal entity;
(G) The value of the financial interest in relation to the DoD
employee's net worth and income from other sources;
(H) The degree to which the DoD employee has control over the
financial interest, and whether it is capable of being divested.
(4) By statute, authority to grant 18 U.S.C. 208(b)(1) waivers
rests with the DoD official responsible for the DoD employee's
appointment. By Executive Order 12674, that authority shall not be
exercised without prior consultation, if practicable, with OGE. The DoD
component DAEO shall consult with OGE regarding the waiver on behalf of
the DoD official responsible for the DoD employee's appointment.
(d) Resolution of conflicts. Resolution of actual or apparent
conflicts of interest is the responsibility of the head of the DoD
component command or organization. An Ethics Counselor should be
consulted about alternatives for resolution. See subpart J of this part
for enforcement information.
Sec. 84.16 Other conflict of interest laws.
(a) Bribery and graft. (1) [The following is a General Order] All
DoD employees are prohibited from, directly or indirectly, giving,
offering, promising, demanding, seeking, receiving, accepting, or
agreeing to receive anything of value to influence any official act, to
influence commission of fraud on the United States, to induce
committing or omitting any act in violation of a lawful duty, or to
influence testimony given before an individual or non-Federal entity
authorized to hear evidence or take testimony [end of General Order].
See 18 U.S.C. 201(b).
(2) [The following is a General Order] DoD employees are also
prohibited, except as provided by law for the proper discharge of
official duties, from, directly or indirectly, giving, offering,
promising, demanding, seeking, receiving, accepting, or agreeing to
accept anything of value for or because of any official act performed
or to be performed, or for or because of any testimony given or to be
given before an individual or non-Federal entity authorized to hear
evidence or take testimony [end of General Order]. See 18 U.S.C.
201(c).
(3) These prohibitions do not apply to the payment or receipt of
witness fees authorized by law, certain travel and subsistence expenses
to appear as a witness and value of time lost in attendance at a trial,
hearing, or proceeding. Other prohibitions may apply. See 18 U.S.C.
201(d); 5 U.S.C. 5515 and 5751 and paragraph 66 of part IV, MCM, 1984
(10 U.S.C. 801-940).
(b) Compensation related to matters pending Government decision.
OGE interpretation of prohibitions under 18 U.S.C. 203 appear in 5 CFR
2635.801(d)(3). These prohibitions do not apply to enlisted members. A
DoD employee whose salary is not tied to the profitability of the non-
Federal entity's Federal Government contracts does not violate this
statute. See OGE opinion 86x9\17\ (informal). This statute prohibits
receiving compensation for any representation, including those where
there is no intent to be corrupted or to provide preferential
treatment. Representations can be either oral or written.
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\17\Copies are available from Office of Government Ethics, 1201
New York Avenue, NW., suite 500, Washington, DC 20005-3917
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(1) The prohibition does not apply to a DoD employee's
representation of himself, but this exception does not extend to the
representation of a distinct, legal, non-Federal entity as a
corporation, a partnership, or even a sole proprietorship. 18 U.S.C.
203(a)(2) prohibits an offer or payment of compensation, the
solicitation or receipt of which is otherwise barred.
(2) The prohibitions apply to special Government employees but only
in relation to a particular matter involving a specific party or
parties in which the special Government employee participated
personally and substantially or, absent such participation, if he
served more than a total of 60 days in the preceding 365 days, in
relation to any particular matter pending in the DoD agency.
(3) 18 U.S.C. 203 does not prohibit giving testimony under oath or
making statements required to be made under penalty of perjury.
(4) 18 U.S.C. 203 does not prohibit representation, with or without
compensation, of one's parents, spouse, child, or any person or estate
the DoD employee serves as administrator, guardian or other personal
fiduciary. This exemption is permitted only if approved by the DoD
official responsible for appointing the DoD employee to his DoD
position. The exemption may not be extended to the DoD employee's
representation of any such person in matters in which the DoD employee
has officially participated personally and substantially or in matters
which, even absent such participation, are the subject of his official
responsibility.
(5) The head of a department or agency may authorize a special
Government employee to represent his regular employer or other outside
organization in the performance of work under a Federal Government
grant or contract if the department or agency head certifies and
publishes the certification in the Federal Register that the national
interest requires such representation.
(c) Contracts with DoD employees. Contracts for the procurement of
goods and services between the Federal Government and its employees are
prohibited unless the needs of the Federal Government cannot otherwise
be met. See 48 CFR 3.601 and 3.602.
(d) Representation of others--(1) Prohibition under 18 U.S.C. 205.
18 U.S.C. 205 prohibits DoD employees, other than enlisted members,
whether or not they are employed for compensation, from personally
acting as an agent or attorney for anyone else before a department,
agency, or court in connection with any covered matter in which the
United States is a party or has a direct and substantial interest or
from prosecuting any claim against the Federal Government or receiving
any gratuity or interest in such claim for assistance in prosecuting
the claim. Covered matter means any judicial or other proceeding,
application, request for a ruling or other determination, contract,
claim, controversy, investigation, charge, accusation, arrest, or other
particular matter.
(2) Exceptions. The following are excluded from the scope of 18
U.S.C. 205:
(i) Giving testimony under oath or making statements required to be
made under penalty of perjury or representing another person, with or
without compensation, in a disciplinary, loyalty, or other personnel
administration proceeding;
(ii) Representing, with or without compensation, one's parents,
spouse, child, or a person estate the DoD employee serves as a
fiduciary, but only if approved by the DoD official responsible for
appointing the DoD employee to this DoD position. This exception does
not apply to matters in which the DoD employee has participated
personally and substantially or which, in the absence of such
participation, are the subject of his official DoD responsibility;
(iii) The head of a department or agency may allow a special
Governmental employee to represent his regular employer or other
outside organization in the performance of work under a Federal
Government grant or contract if the department or agency head certifies
and publishes the certification in the Federal Register that the
national interest requires such representation;
(iv) For special Government employees, the prohibitions apply only
to covered matters in which they participated personally and
substantially as a special Government employee. Absent such
participation, the prohibitions apply only if he served more than a
total of 60 days during the preceding 365 days and the covered matter
was pending in the DoD agency during that period.
(e) Compensation from other sources. (1) The provisions of 18
U.S.C. 209 and related provisions of OGE regulations do not apply to
enlisted members. However, provisions similar to 18 U.S.C. 209 do apply
to enlisted members as follows: [The following is a General Order] an
enlisted member, except an enlisted special Government employee, shall
not receive any salary or supplementation of his Federal Government
salary, from any entity other than the Federal Government or as may be
contributed out of the treasury of any State, county, or municipality,
for his services to the Federal Government [end of General Order].
(2) 18 U.S.C. 209 prohibits DoD employees from receiving pay or
allowances or supplements of pay or benefits from any source other than
the United States for the performance of official service or duties
unless specifically authorized by law. Note that a task or job that is
performed outside normal working hours does not necessarily allow
acceptance of payment for performing it. If the undertaking is part of
one's official duties, pay for its performance may not be accepted from
any source other than the United States regardless of when it was
performed.
(3) A DoD employee may continue to participate in bona fide
pension, retirement, insurance, bonus, or other employee welfare or
benefit plan maintained by his former employer. See 18 U.S.C. 209(b).
(4) Reserve military officers and certain temporarily commissioned
military officers who are ordered to active duty may continue to
receive compensation from individuals who furnished compensation to
them prior to being ordered to active duty. See 10 U.S.C. 1033 and 50
U.S.C. App. 454(f).
(f) Additional pay or allowances. [The following is a General
Order] DoD employees may not receive additional pay or allowances for
disbursement of public money or for the performance of any other
service or duty unless specifically authorized by law. See 5 U.S.C.
5536 [end of General Order].
(1) 5 U.S.C. 5536 precludes extra pay from the Federal Government
for the performance of official duties. Subject to certain limitations,
civilian DoD employees may hold two distinctly different Federal
Government positions and receive the salaries of both if the duties of
each are performed. Absent specific authority, however, military member
may not do so because any arrangement by a military member for
rendering services to the Federal Government in another position is
incompatible with the military member's actual or potential military
duties. That a military member may have leisure hours during which no
official duty is performed does not alter the result. See 52 Comp. Gen.
471 and 22 Comp. Gen. 127, 149.
(2) 5 U.S.C. 5536 applies to enlisted members and precludes
enlisted members from supplementing their official salaries from
outside sources for performing their official duties.
(g) Interference with military duties. Military officers on active
duty (except while on terminal leave) may not accept employment if it
requires separation from their organization, branch, or unit, or
interferes with the performance of military duties. See 10 U.S.C.
973(a).
(h) Civil office prohibition. Regular military officers on the
active duty list and retired regular military officers on active duty
from more than 180 days may not hold civil office, unless expressly
authorized by law. See 10 U.S.C. 973(b).
(i) Assignment of reserves for training. (1) Personnel who assign
reserves for training shall not assign them to duties in which they
will obtain information that they or their private employers may use to
gain unfair advantage over competitors. Reservists must disclose to
superiors and assignment personnel information necessary to ensure that
no conflict exists between their duty assignment and their private
interests.
(2) Commanders, or their designees, shall screen Reservists
performing training to ensure that no actual or apparent conflict
exists between their private interests and their duty assignment. While
Reservists have an affirmative obligation under this rule to disclose
material facts in this regard, receiving commands cannot assume
compliance and shall independently screen incoming personnel to avoid
conflicts of interests.
(j) Commercial dealings involving DoD employees. [The following is
a General Order] A DoD employee shall not knowingly solicit or make
solicited sales to DoD personnel who are junior in rank, grade or
position, or to the family members of such personnel, on or off duty.
In the absence of coercion or intimidation, this does not prohibit the
sale or lease of a DoD employee's non-commercial personal or real
property or commercial sales solicited and made in a retail
establishment during off-duty employment. The posting of an
advertisement in accordance with Federal Government building management
policies does not constitute solicitation for purposes of this section
[end of General Order].
(1) [The following is a General Order] In the absence of coercion
or intimidation, this does not prohibit the sale or lease by an
individual of one's non-commercial personal property or real estate,
and commercial sales made in a retail establishment during off-duty
employment. Solicitation does not include advertisements posted in
accordance with Federal Government building management policies [end of
General Order].
(2) [The following is a General Order] This prohibition includes
the solicited sale of insurance, stocks, mutual funds, real estate,
cosmetics, household supplies, vitamins, and other goods or services
[end of General Order].
(3) [The following is a General Order] Both the act of soliciting
and the act of selling as a result of soliciting are prohibited. In
both cases, however, a solicitation is necessary for a violation to
occur. While the standard prohibits a senior from making a solicited
sale to a junior or to the junior's family, sales made because a junior
approaches the senior and requests the sale to be made are not
prohibited, absent coercion or intimidation by the senior [end of
General Order].
(4) Personal commercial solicitations by the spouse or other
household member of a DoD employee to those who are junior in rank,
grade, or position to the DoD employee, may give rise to the appearance
that the DoD employee himself is using his public office for personal
gain. When a spouse or household member of a DoD employee engages in
such activity, the supervisor of the DoD employee must consult an
Ethics Counselor, and counsel the DoD employee that such activity
should be avoided where it may:
(i) Cause actual or perceived partiality or unfairness;
(ii) Involve the actual or apparent use of rank or position for
personal gain; or
(iii) Otherwise undermine discipline, morale, or authority.
(k) Related rules. (1) There is a prohibition on holding
conflicting financial interests. See 5 CFR 2635.403, 18 U.S.C. 208, and
5 CFR part 2640.
(2) There are requirements regarding seeking outside employment.
See 5 CFR 2635.601-2635.606 and subpart H of this part.
(3) There is a prohibition on engaging in outside employment or
activities that conflict with official duties. See 5 CFR 2635.802.
(4) There are limitations on certain outside activities such as
receipt of outside earned income by certain DoD Presidential appointees
or non-career DoD employees, service as an expert witness,
participation in professional associations, teaching, writing,
speaking, or fundraising. See 5 CFR 2635.804-2635.808.
(5) There is a prohibition on the receipt of honoraria. See 5 CFR
part 2636.
(6) There are prohibitions on the misuse of official position such
as improper endorsements or improper use of non-public information. See
5 CFR 2635.701-2635.705.
(7) There are prohibitions on certain post-Government service
employment. See subpart I of this part.
Subpart F--Political Activities
Sec. 84.17 Office of Personnel Management regulation.
See 5 CFR part 733, ``Political Activities of Federal Employees.''
Sec. 84.18 Political activities of civilian DoD employees.
(a) Policy. (1) The policy governing the political activities of
civilian DoD employees is derived from the Hatch Act, 5 U.S.C. 7321
through 7327, and 5 CFR part 733.
(2) Primary enforcement responsibility under the Hatch Act lies
with the Office of Special Counsel; however, DoD components have
responsibility to investigate allegations of prohibited political
activity by excepted service employees of the DoD component.
(3) It is DoD policy to encourage civilian DoD employees and
members of the Armed Forces to carry out the obligations of citizenship
to the maximum extent possible consistent with the restrictions imposed
by law and by this part.
(b) Applicability--(1) Covered DoD employees. Sections 84.17 and
84.18 apply to DoD employees who are:
(i) Competitive service employees;
(ii) Excepted service employees;
(iii) Non-appropriated fund employees as specified in the FPM,
Chapter 334, and DoD 1401.1-M.\18\
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\18\See footnote 4 to Sec. 84.7(d)
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(2) DoD Employees not covered. The provisions of the Hatch Act and
of this subpart of this part do not apply to civilian DoD employees
appointed to their office by the President, by and with the advice and
consent of the Senate (e.g., Secretary of Defense, Secretaries of the
Military Departments, etc.). Nevertheless, as a matter of longstanding
DoD policy, such DoD employees may not engage in activities that could
be interpreted as associating DoD with any partisan political cause or
issue. Military members are covered by Sec. 84.19.
(c) Permissible activities. Subject to paragraphs (d) and (e) of
this section, civilian DoD employees are free to:
(1) Register and vote in any election;
(2) Express an opinion as an individual privately and publicly on
political subjects and candidates;
(3) Display a political picture, sticker, badge, or button;
(4) Participate in a personal capacity in the non-partisan
activities of civic, community, social, labor, professional, or similar
organizations except as proscribed in Sec. 84.10 (a) through (g);
(5) Be a member of a political party or other political
organization and participate in its activities to the extent consistent
with law;
(6) Attend, in an individual capacity, a political convention,
rally, fundraising function or other political gathering;
(7) Sign a political petition as an individual;
(8) Make a financial contribution to a political party or
organization, except as proscribed in Sec. 84.18(e)(3);
(9) Take an active part, as an independent candidate or in support
of an independent candidate, in a partisan election covered by 5 CFR
733.124;
(10) Take an active part, as a candidate or in support of a
candidate, in a non-partisan election;
(11) Participate in an individual capacity in connection with a
question which is not specifically identified with a political party,
such as a constitutional amendment, referendum, approval of a municipal
ordinance or any other question or issue of similar character;
(12) Serve as an election judge or clerk, or in a similar position
to perform non-partisan duties as prescribed by State or local law;
(13) Otherwise participate fully in public affairs, except as
prohibited by law, in a manner which does not materially compromise the
efficiency or integrity as a DoD employee or the neutrality,
efficiency, or integrity of DoD or other Federal Government agency; and
(14) Participate in non-partisan voter registration drives.
(d) Limitations. Paragraph (e) of this section does not authorize a
DoD employee to engage in political activities in violation of law,
while on duty, or while wearing anything that identifies him as a DoD
employee. The Head of a DoD component may, in appropriate cases,
prohibit or limit participation in the permitted activity of a DoD
employee or class of DoD employees if participation in the activity
would interfere with the efficient performance of official duties, or
create a conflict or apparent conflict of interest.
(e) Prohibited activities. Civilian DoD employees may not:
(1) Use official authority or influence for the purpose of
interfering with or affecting the result of an election; or
(2) Except as specified in 5 CFR 733.124, take an active part in
political management or in a political campaign, including but not
limited to:
(i) Serving as an officer of a political party, a member of a
national, State, or local committee of a political party, an officer or
member of a committee of a partisan political club, or being a
candidate for any of these positions;
(ii) Organizing or reorganizing a political party organization or
political club;
(iii) Directly or indirectly soliciting, receiving, collecting,
handling, disbursing, or accounting for assessments, contributions, or
other funds for a partisan political purpose;
(iv) Organizing, publicizing, selling tickets to, promoting, or
actively participating in a fundraising activity of a candidate in a
partisan election or of a political party, or political club;
(v) Taking an active part in managing the political campaign of a
candidate for public office in a partisan election or a candidate for
political party office;
(vi) Becoming a candidate for, or campaigning for, an elective
public office in a partisan election;
(vii) Soliciting votes in support of, or in opposition to, a
candidate for public office in a partisan election or a candidate for
political party office;
(viii) Acting as recorder, watcher, challenger, or similar officer
at the polls on behalf of a political party or a candidate in a
partisan election;
(ix) Driving voters to the polls on behalf of a political party or
a candidate in a partisan election;
(x) Endorsing or opposing a candidate for public office in a
partisan election or a candidate for political party office in a
political advertisement, broadcast, campaign, literature, or similar
material;
(xi) Serving as a delegate, alternate, or proxy to a political
party convention;
(xii) Addressing a convention, caucus, rally, or similar gathering
of a political party in support of, or in opposition to, a partisan
candidate for public office or political party office;
(xiii) Initiating or circulating a partisan nominating petition;
(xiv) Soliciting, paying, collecting, or receiving a contribution
in the Federal Government workplace for any political party, political
fund, or other partisan recipient;
(xv) Paying a contribution in the Federal Government workplace to
any political party, political fund, or other partisan recipient.
(3) Contribute to the political campaign of another Federal
Government employee who is in his chain of command or supervision or
who is his employing authority, including the political campaign to re-
elect the President or Vice President.
(f) Exemptions. (1) The Hatch Act does not prohibit all activities
associated with a partisan election. The restrictions only apply where
the DoD employee's activity involves active participation in organized
activities where the organizing group is partisan. For example, writing
letters in support of a particular candidate for publication or
contributing to a newsletter with editorials or columns opposing one
candidate and supporting another does not violate the Act. See Blaylock
v. MSPB, 851 F.2d 1348. The activities must be in coordination with the
partisan activity. Even fundraising for political action does not
violate the activity if the fundraising organization is not associated
with a partisan group. See Biller v. MSPB, 863 F.2d 1079.
(2) DoD employees who reside in municipalities or other political
subdivisions designated by OPM in 5 CFR 733.124 are partially exempt
from the above restrictions.
(3) DoD employees in some areas of high Federal Government
employment are excepted from certain aspects of the Hatch Act as to
local elections. OPM regulations, 5 CFR part 733 should be consulted
for a list of the areas for which these exceptions apply. However, the
District Court for the District of Columbia has ruled that the
exception granted by the regulations for the District of Columbia is
incorrect and the Office of Special Counsel has chosen to support this
ruling. See Ward Three Democratic Committee v. U.S., 609 F.2d 10 and
Memorandum Opinion No. 78-853. Therefore, District of Columbia
residents are subject to the provisions of the Hatch Act without
exception.
(4) A DoD employee who works on an irregular or occasional basis is
exempt from the above restrictions on the days that he performs no
services.
Sec. 84.19 Political activities of military members.
See DoD Directive 1344.10\19\, ``Political Activities by Members of
the Armed Forces on Active Duty,'' June 15, 1990.
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\19\See footnote 4 to Sec. 84.7(d)
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Subpart G--Financial and Employment Disclosure
Sec. 84.20 Office of Government Ethics regulation.
See 5 CFR part 2634, ``Financial Disclosures, Qualified Trusts, and
Certificates of Divestiture for Executive Branch Employees''.
Sec. 84.21 Public financial disclosure report (SF-278).
(a) Individuals required to file--(1) Covered positions. For
purposes of this section, the following individuals are in ``covered
positions'' and are required by the Ethics in Government Act of 1978,
Public Law 95-521 (5 U.S.C. App.) to file an SF 278, with their DoD
component DAEO or designee as set out in paragraph (f) of this section:
(i) Civilian Presidential appointees;
(ii) Regular and reserve military officers whose pay grade is 0-7
or above;
(iii) Members of the Senior Executive Service;
(iv) Other civilian DoD employees, including special Government
employees, whose positions are classified above GS/GM-15 prescribed by
5 U.S.C. 5332 or whose rate of basic pay is fixed at or above 120% of
the minimum rate of basic pay for a GS/GM-15;
(v) DoD employees in the excepted service in positions that are of
a confidential or policy-making character unless they have been
excluded by the Director, OGE. See paragraph (a)(4) of this section;
(vi) Individuals serving by appointment under the Intergovernmental
Personnel Act, from State or local governments, institutions of higher
education or other eligible organizations. See 5 U.S.C. 3371-3376;
(vii) Civilian individuals who are detailed to positions described
in paragraphs (a)(1)(iii) through (a)(1)(v) of this section;
(viii) DoD component DAEOs.
(2) Waiver. An individual otherwise required to file an SF 278 but
who now is expected to perform the duties of a covered position for
less than 130 days in a calendar year, may request a waiver of any or
all reporting requirements from the Director, OGE, in accordance with 5
CFR part 2634.
(3) Exception. An individual who is nominated to or assumes a
covered position is not required to file an SF 278 if the Secretary
concerned or the DoD component DAEO determines that the individual is
not reasonably expected to perform the duties of the position for more
than 60 days in a calendar year. If such individual performs the duties
of the position for more than 60 days in a calendar year, an SF 278
shall be filed within 15 days after the 61st day of duty.
(4) Exclusion. The Director, OGE, may exclude an individual who is
in a covered position under paragraph (a)(1)(v) of this section from
the requirement to file an SF 278 in accordance with 5 CFR 2634.203.
(b) Information on covered positions. The directors of DoD
component personnel offices are responsible for providing the following
information to their DoD component DAEOs or designees:
(1) The name, position, grade, organization and entrance-on duty or
termination date of each individual assigned to the DoD component who
is required to file a new entrant or termination SF 278 immediately
upon the appointment of the individual to a position requiring filing,
or upon receipt of an SF 52, ``Request for Personnel Action,'' August
1988, requesting approval of the retirement, resignation, or removal of
the individual from such a position;
(2) By January 10 of each year, the name, position, grade, and
organization of each individual assigned to the DoD component who is
required to file an annual SF 278.
(c) Notification of requirement to file. Each DoD component DAEO or
designee shall provide appropriate notices and instructions to all
reporting individuals to ensure the timely preparation of the reports
and submission to supervisors and Ethics Counselors for review and
filing.
(d) Time of filing--(1) Nomination reports. (i) Any time after
public announcement but within five days after transmittal by the
President to the Senate of the nomination of an individual to a
civilian DoD position that requires the advice and consent of the
Senate, the DoD component DAEO shall ensure the nominee's SF 278 is
filed with the appropriate authorities.
(ii) The report shall contain the information prescribed in the
``Instructions for Completing SF 278'' attached to the SF 278. These
reports shall be certified by the DoD component DAEO, and processed as
prescribed by OGE regulation, 5 CFR part 2634.
(iii) Unless otherwise required by the Senate, nomination reports
are not required of individuals nominated to positions as military
officers. Such individuals must file new entrant reports as prescribed
in the following.
(2) New entrant reports. (i) Within 30 days of assuming a covered
position, a reporting individual shall submit an SF 278.
(ii) The report shall contain the information prescribed for new
entrant reports in the ``Instructions for Completing SF 278'' attached
to the SF 278.
(iii) No new entrant report is necessary if the reporting
individual has, within 30 days prior to assuming a new position, left
another covered position for which the reporting individual filed an SF
278.
(iv) Notwithstanding paragraph (a)(3) of this section, reserve
military officers shall file a new entrant report within 30 days of
promotion to grade O-7, regardless of whether they are expected to
perform active duty for more than 60 days.
(3) Annual reports. Any time after January 1 but not later than May
15, a reporting individual who served in a covered position for more
than 60 days during the preceding calendar year shall file an annual SF
278. For reserve military officers, only service pursuant to orders
issued under title 10, United States Code, is counted.
(4) Termination reports. Not sooner than 15 days before but not
later than 30 days after termination from a covered position, a
reporting individual shall submit an SF 278. A termination report is
not required of a reporting individual who, within 30 days of such
termination, assumes another covered position. A termination report is
not required of a reserve military officer in the grade of O-7 or above
who did not serve more than 60 days on active duty during the calendar
year in which the military officer is transferred to the Retired
reserve.
(5) Extension of filing deadlines. The DoD component DAEO, in the
case of civilian Presidential appointees, and the DoD component DAEO or
designee in other cases, may grant, for good cause, a filing extension
up to 45 days. All requests for extensions shall be provided, in
writing, by the reporting individual to the DoD component DAEO or
designee. The request shall contain a clear statement of the reasons
for the request and shall be submitted in advance of the original
filing deadline. Requests for additional time beyond the initial 45 day
extension shall be forwarded by the appropriate DoD component DAEO or
designee with his comments to the Director, OGE, who may grant an
additional 45 days extension. The reporting individual shall notify his
supervisor of any extension granted.
(6) Combined annual and termination reports. Reporting individuals
who anticipate terminating their DoD employment before June 30 may
request an extension from the appropriate DoD component DAEO or
designee of up to 45 days in order to file one consolidated annual and
termination report. Combined annual and termination reports must be
filed within 30 days after termination of employment or service but not
later than July 15.
(7) Late filing fee. (i) Any reporting individual who is required
to file an SF 278 and does so more than 30 days after the date the
report is required to be filed, or, if an extension is granted, more
than 30 days after the last day of the filing extension period, shall
be subject to a $200 late filing fee. See 5 CFR part 2634. Such fee
shall be collected by the DoD component DAEO or designee for deposit
with the U.S. Treasury.
(ii) If the reporting individual fails to remit the $200 fee within
90 days, the fee shall be subject to DoD component debt collection
procedures.
(iii) If extraordinary circumstances existed that caused the late
submission of the report, a request for a waiver of the fee may be
submitted by the reporting individual with supporting documentation to
the DoD component DAEO or designee. The DoD component DAEO or designee
shall review the request and forward it with a recommendation for
approval or denial to OGE. OGE will grant or deny the waiver.
(e) Content of report. (1) Instructions for completing the SF 278
are attached to the form. See detailed instructions at 5 CFR 2634.301
through 2634.408, for additional guidance or contact the local Ethics
Counselor.
(2) A complete report is required even if no changes have occurred
since the last submission.
(3) Termination reports shall contain information covering the
preceding calendar year, if an annual report was not filed for that
year, and that portion of the present calendar year up to the date of
termination from the covered position.
(4) A reporting individual shall request required information known
only to another person to be submitted by that person to appropriate
reviewing authorities. Such a submission may be made with a request for
confidentiality which shall be honored by DoD reviewing authorities
when appropriate even if it limits disclosure to the reporting
individual.
(f) Chain of submission. A reporting individual shall submit his SF
278 as follows:
(1) A civilian Presidential appointee shall file directly with his
DoD component DAEO or designee;
(2) Any other reporting individual shall submit his SF 278 through
his supervisor and through his Ethics Counselor to the DoD component
DAEO or designee. In some cases, the Ethics Counselor and the DoD
component DAEO or designee are the same person;
(i) A military officer serving in a DoD component or in the Central
Intelligence agency shall submit his report through his supervisor
directly with the DAEOs or designees of those agencies;
(ii) A military officer serving in OSD or for the Chairman of the
Joint Chiefs of Staff and Joint Staff, shall submit his report, through
his supervisor, to the GC, DoD, as the DoD component DAEO;
(iii) A military officer serving in a joint, Unified, Specified or
Combined Commands, other than a Commander in Chief, shall file through
his supervisor directly with his DoD component DAEO or designee. A
Commander in Chief of such command shall file with the Legal Advisor to
the Chairman of the Joint Chiefs of Staff.
(3) A reporting individual who has more than one immediate
supervisor shall submit his report through both supervisors prior to
submitting it to the DoD component DAEO or designee. Such a reporting
individual may submit a copy of his report to one supervisor and the
original to the other in order to expedite processing;
(4) Reporting individuals on detail to other Executive or
Legislative Branch agencies shall follow the filing requirements and
procedures of those agencies.
(g) Review--(1) Initial supervisor review. Upon receipt of an SF
278, the supervisor of the reporting individual shall review the report
to determine if any of the reported financial interests reveal a
conflict of interest with the reporting individual's current and future
official duties. See 5 CFR 2634.605(b). The supervisor shall supplement
the report with any required information or data, including comments on
the existence of actual or apparent conflicts of interest, and forward
the report with all attachments to the Ethics Counselor. If any review
reveals a conflict or apparent conflict, the supervisor shall ensure
that the matter is resolved in accordance with paragraph (g)(2)(vii) of
this section.
(2) Ethics Counselor review. (i) When applicable, the Ethics
Counselor shall review each report to determine that:
(A) Each item is completed; and
(B) No interest or position disclosed on the report violates or
appears to violate;
(1) Any applicable provision of Chapter 11 of title 18, United
States Code;
(2) The Ethics in Government Act of 1978, Public Law 95-521 (5
U.S.C. App.), and implementing regulations;
(3) Executive Order 12674 and implementing regulations; or
(4) Any other related laws or regulations applicable to DoD
employees.
(ii) The reports are to be taken at ``face value'' unless there is
a patent omission or ambiguity or the official has independent
knowledge of matters outside the report. However, to ensure that there
are no omissions, the previous report of each reporting individual, if
applicable, shall be compared to the current submission.
(iii) If the Ethics Counselor believes that additional information
is required, the reporting individual shall be notified of the
additional information required and the date by which it must be
submitted. The reporting individual shall submit the required
information directly to the Ethics Counselor.
(A) When the Ethics Counselor amends or revises a report based on
additional information obtained from the reporting individual, he shall
initial the amendment or revision and make a note of the source of the
information in the comment section of the report. For example, if the
Ethics Counselor adds to a report that a certain fund is an excepted
investment fund based on a telephone conversation with the reporting
individual, he shall number and initial the change on Schedule A and
add a notation in the comment section of the report, such as ``1. per
telecon with Mr. Doe on June 16, 1992'' and initial the comment.
(B) When a substantial amount of information is missing from the
report, it shall be returned to the supervisor for evaluation in
accordance with the standards set forth in paragraph (g)(2)(i) of this
section, with instructions to return it to the Ethics Counselor with
any additional comments or supplementary information.
(iv) If the Ethics Counselor agrees with the supervisor's
evaluation that no item violates, or appears to violate, applicable
laws or regulations, then he shall annotate the report or attach an
endorsement stating that no conflicts of interest under applicable laws
or regulations exist, and forward it to the appropriate DoD component
DAEO or designee.
(v) If the Ethics Counselor disagrees with the supervisor's
evaluation, and concludes that the report does not comply with
applicable laws and regulations, he shall do the following:
(A) Notify the reporting individual in writing of the preliminary
determination;
(B) Afford the reporting individual a reasonable opportunity for an
oral or written response; and
(C) Determine, after considering any response, whether or not the
reporting individual is in compliance with applicable laws and
regulations. If the Ethics Counselor concludes that the report does
fulfill the requirements, he shall annotate the report or attach an
endorsement stating that no conflicts of interest under applicable laws
or regulations exist and dispose of the report in accordance with
paragraph (g)(2)(iv) of this section. If the Ethics Counselor
determines that it does not, he shall:
(1) Notify the reporting individual of the conclusion;
(2) Afford the reporting individual an opportunity for personal
consultation, if practicable;
(3) Determine what remedial action should be taken to bring the
reporting individual into compliance;
(4) Notify the reporting individual, in writing, of the remedial
action required, indicating a date by which that action must be taken;
and
(5) Ensure that the supervisor of the reporting individual is
notified of the required remedial action and date by which that action
must be taken.
(vi) Except in unusual situations, which must be documented fully
to the satisfaction of the Ethics Counselor, remedial action shall be
completed within three months from the date the reporting individual
was notified that the action is required.
(vii) Remedial steps, in accordance with 5 CFR 2634.605-2634.607,
may include the following measures:
(A) Divestiture:
(1) Any reporting individual or the spouse, minor or dependent
child of a reporting individual, may be issued a Certificate of
Divestiture by the Director, OGE, upon a determination that such
divestiture is reasonably necessary to comply with 18 U.S.C. 208, or
any other Federal Government conflict of interest statute, regulation,
rule, or Executive Order, or pursuant to the request of the Senate as a
condition of confirmation;
(2) If obtained before the sale, the Certificate of Divestiture
allows for the non-recognition of capital gains that result upon the
sale of property to comply with conflict of interest requirements if
the property is rolled over into property permitted by OGE. See 5 CFR
2634.1001;
(3) The following items must be submitted to the Director, OGE, by
the DoD component DAEO:
(i) A copy of the written request from the reporting individual to
the DoD component DAEO to seek certification in the case of the
property to be divested;
(ii) A copy of the latest SF 278 or SF 450;
(iii) A detailed description of the specific property for which
divestiture is contemplated;
(iv) A complete statement by the DoD component DAEO or designee of
the facts and circumstances relevant to the requirement for divestiture
and an explanation of the rules that apply to the requirement for
divestiture;
(v) An analysis and recommendation as to whether the certificate
should be granted.
(4) The Director, OGE, will issue a Certificate of Divestiture when
divestiture is a condition for Senate confirmation or is reasonably
necessary to comply with conflict of interest requirements.
(B) Disqualification in accordance with 5 CFR 3601.105;
(C) Limitation of duties;
(D) Transfer or reassignment;
(E) Resignation;
(F) Exemption under 18 U.S.C. 208 (b)(1) or (b)(3);
(G) Establishment of a qualified blind trust.
(viii) When the Ethics Counselor determines that a reporting
individual has complied fully with the remedial measures, a notation to
that effect shall be made in the comment section of the SF 278. The
Ethics Counselor shall then follow the procedures set forth in
paragraph (g)(2)(iv) of this section.
(ix) If steps ensuring compliance with applicable laws and
regulations are not taken by the date established, the Ethics Counselor
shall report the matter to the agency designee for appropriate action,
with an information copy to the DoD component DAEO.
(3) DoD component DAEO review. (i) The DoD component DAEO or
designee shall review the report in accordance with the standards set
forth in paragraphs (g)(2)(i) and (g)(2)(ii) of this section.
(ii) Additional information required by the DoD component DAEO or
designee shall be collected in accordance with paragraph (g)(2)(ii) of
this section.
(iii) The DoD component DAEO or designee shall notify the reporting
individual of any necessary remedial action in accordance with
procedures set forth in paragraph (g)(2)(v) of this section.
(iv) When the DoD component DAEO or designee determines that no
item violates, or appears to violate, any applicable law or regulation,
or when the DoD component DAEO or designee determines that a reporting
individual has complied fully with the remedial measures, the DoD
component DAEO or designee shall sign and date the report.
(v) If steps ensuring compliance with applicable laws or
regulations are not taken by the date established, the DoD component
DAEO or designee shall report the matter to the Head of the DoD
component for remedial action, with an information copy to the
Director, OGE.
(vi) If the DoD component or designee concludes that no item
violates, or appears to violate, any applicable law or regulation, but
that there are financial interests in non-Federal entities doing or
seeking business with DoD, then the DoD component DAEO or designee may
issue a memorandum of caution to the reporting individual.
(vii) All reports shall be reviewed within 60 days after the date
of filing. The DoD component DAEO or designee shall record the date of
the review and ensure that all reports are reviewed within the 60 day
period. After review, the DoD component DAEO or designee may proceed to
obtain addition information, seek remedial action, or sign and date the
report.
(4) Special reviewing requirements of O-9 and O-10 Flag and General
Officer nominees. (i) As part of the process for approving nominees for
appointment to O-9 and O-10 Flag or General officer positions, the
Secretaries of the Military Departments shall ensure that the nominee
has a current SF 278 on file and that the report has been reviewed by
the appropriate DoD component DAEO or designee in relation to the
position for which he is being considered.
(ii) Secretaries of Military Departments shall cause a review of
all relevant systems of records maintained by their departments,
including investigative files, to determine if there is any evidence
that the nominee has violated the rules or standards of conduct.
(iii) Each nomination forwarded to the Secretary of Defense shall
be accompanied by a certification by the Secretary of the Military
Department concerned that the required review has been conducted and
has or has not disclosed a violation of the rules or standards of
conduct.
(h) Disposition--(1) Designation of certifying official. Only the
Head of the DoD component or the DoD component DAEO may certify
nomination reports required to be filed by a reporting individual who
is nominated by the President to a position requiring the advice and
consent of the Senate. For all other reports, the DoD component DAEO
may delegate this responsibility to other officials within the DoD
component.
(2) Disposition. The SF 278 and a complete record of all action
taken thereon shall be retained for a period of six years by the DoD
component DAEO or designee, and a copy of the report shall be forwarded
to OGE, when required. After the six-year period, the report shall be
destroyed, unless needed in an ongoing investigation. In the case of a
reporting individual who filed a report as a nominee and was not
subsequently confirmed by the Senate, the report shall be destroyed one
year after the reporting individual is no longer under consideration by
the Senate.
(i) Public availability of reports. SF 278s must be made available
for public inspection 30 days after the reports are filed unless
otherwise exempted under law. OGE Form 201, ``Request to Inspect or
Receive Copies of SF 278, Financial Disclosure Report,'' shall be filed
by a requestor before inspecting an SF 278.
(j) Penalties--(1) Action within a DoD component. The Head of the
DoD component may take appropriate action, including adverse action, in
accordance with applicable laws or regulations, against any reporting
individual who fails to file an SF 278 or who falsifies or fails to
report required information.
(2) Action by the U.S. Attorney General. The U.S. Attorney General
may bring a civil action in the U.S. District Court against any
individual who knowingly and willfully falsifies or fails to file or
report information required to be reported. The court may assess a
civil penalty. Knowing and willful falsification of information
required to be filed may also result in criminal prosecution under 18
U.S.C. 1001, leading to a fine or imprisonment of not more than five
years, or both.
(3) Misuse of reports. (i) The U.S. Attorney General may bring a
civil action against an individual who obtains or uses an SF 278 filed
under the Ethics in Government Act, Public Law 95-521 (5 U.S.C. App.),
for the following reasons:
(A) Any unlawful purpose;
(B) Any commercial purpose other than by news and communications
media for dissemination to the general public;
(C) Determining or establishing the credit rating of any
individual;
(D) Directly or indirectly, for the solicitation of money for any
political, charitable or other purpose.
(ii) The court in which the action is brought may assess a penalty
against a person in any amount, not to exceed $10,000. This shall be in
addition to any other remedy available under statutory or common law.
Sec. 84.22 Confidential financial disclosure report (SF 450).
(a) Individuals required to file. (1) Covered positions. For
purposes of this section, unless required to file an SF 278 or unless
expressly exempted, the following individuals are in ``covered
positions'' and are required by 5 CFR part 2634 to file initial and
annual SF 450 through their supervisor to their Ethics Counselor as set
out in paragraph (f) of this section:
(i) Commanding officers, heads and deputy heads, and executive
officers of:
(A) Navy shore installations with 500 or more military and civilian
DoD employees (including foreign nationals and indirect personnel
regularly attached but excluding personnel attached for temporary
duty); and
(B) All Army, Air Force, and Marine Corps installations, bases, air
stations or activities.
(ii) Special Government employees, except the following categories
of DoD employees who are required to file reports only when
specifically requested to do so by their supervisor:
(A) Physicians, dentists, and allied medical specialists engaged
only in providing services to patients;
(B) Veterinarians providing only veterinary services;
(C) Lecturers participating only in educational activities;
(D) Chaplains performing only religious services;
(E) Individuals in the motion picture or television fields who are
utilized only as narrators or actors in DoD productions;
(F) Reservists on active duty for less than 30 consecutive days
during a calendar year; and
(G) Members of selection panels for ROTC candidates.
(iii) DoD employees classified at GS/GM-15 or below under 5 U.S.C.
5332 or a comparable pay level under other authority, and members of
the military below the grade of O-7 as follows:
(A) When the official responsibilities of such DoD employees
require them to participate personally and substantially through
decision or exercise of significant judgment in taking an official
action for contracting or procurement, administering or monitoring
grants, subsidies, licenses or other Federally conferred financial or
operational benefits, regulating or auditing any non-Federal entity, or
other activities in which the final decision or action may have a
direct and substantial economic impact on the interests of any non-
Federal entity;
(B) Any DoD employee serving in a position in which his supervisor
determines that the duties and responsibilities of the position require
the DoD employee to file such a report to avoid an actual or apparent
conflict of interest and to carry out the purpose of any statute,
Executive Order, or regulation applicable to or administered by that
reporting individual;
(iv) Individuals who are detailed to positions described in
paragraph (a)(1)(iii) of this section.
(v) Individuals serving on detail under the Intergovernmental
Personnel Act, from State or local governments, institutions of higher
education or other eligible organizations. See 5 U.S.C. 3371-3376.
(2) Exclusion. Any DoD employee or group of DoD employees may be
excluded from all or a portion of the reporting requirements when the
DoD component Head or designee determines that a report is unnecessary
because of the remoteness of any impairment to the integrity of the
Federal Government, because of the degree of supervision and review of
the DoD employee's work, or because the use of an alternative procedure
is adequate to prevent possible conflicts of interest. Any alternative
procedure must be approved in writing by OGE.
(b) Information on covered positions. (1) The directors of
personnel offices are responsible for providing the following
information to their DoD component DAEOs or designees they service:
(i) Immediately upon the appointment of covered DoD employees, the
name, position, organization and entrance-on-duty date of DoD employees
required by their supervisor to file a new entrant SF 450.
(ii) By October 3 of each year, a list of the names, positions and
organizations, when applicable, of DoD employees who are required to
file an annual SF 450.
(2) Coordination is required as follows:
(i) Administrative officers (or equivalent) of each organization
shall coordinate with the supervisors within their organization, in
consultation with the DoD component DAEO or designee, to update the
list of annual reporting individuals in their organization and report
any additions or deletions to the concerned Ethics Counselor by October
31 of each year. In addition, it is the administrative officers'
responsibility to ensure that any new positions are evaluated to
determine whether such reports are required; or
(ii) The directors of personnel offices shall coordinate with
Ethics Counselors and supervisors to ensure that position or billet
descriptions of reporting individuals described in paragraph (a) of
this section contain a statement that an SF 450 must be filed. All new
or revised position or billet descriptions shall be reviewed to
determine whether such reports are required.
(c) Notification of requirement to file. DoD component DAEOs or
designees shall provide appropriate notices and instructions to ensure
the timely preparation of the reports and submission to their
supervisors and their Ethics Counselors for review and filing.
(d) Time of filing--(1) New entrant reports. (i) Except for a
special Government employee, a reporting individual shall submit an SF
450 with information current as of the filing date for the preceding 12
months, through his supervisor to his Ethics Counselor not later than
30 days after assuming duties in a covered position. Upon transfer or
reassignment from one covered position to another, a reporting
individual shall submit a copy of his previous report to the
appropriate supervisor of the new position.
(ii) A special Government employee shall submit an SF 450 with
information current as of the filing date for the preceding 12 months,
through his supervisor to his Ethics Counselor before assuming duties
in a covered position. A special Government employee whose appointment
is renewed shall file a new entrant report for the preceding 12 months
prior to his reappointment. A special Government employee whose
appointment exceeds one year shall file a new entrant report on the
anniversary of his appointment.
(2) Annual reports. A reporting individual (except a special
Government employee) who was employed at least 61 days during the
preceding reporting period must submit an SF 450 to his Ethics
Counselor by November 30 of each year covering the preceding 12 months
(or any portion thereof not covered by a new entrant report), with
information current as of September 30 of that year. A reporting
individual who is reassigned or transferred from one covered position
to another during the reporting period shall file an annual report
whether or not he was employed in that position for 61 days.
(3) Extension of filing deadline. (i) When required by reason of
duty assignment, infirmity, or other good cause affecting a reporting
individual, the DoD component DAEO or designee may grant an extension
of the filing deadline, not to exceed 60 days for annual reports or 90
days for new entrant reports.
(ii) Requests for extensions shall be submitted in writing.
(iii) Each annual reporting individual is automatically granted a
30 day extension by this part to make the reporting deadline November
30 as stated in paragraph (d)(2) of this section. This automatic
extension need not be annotated on an individual report. Any other
extension shall be noted.
(e) Content of report. (1) Instructions for completing the SF 450
are included on the report. See instructions at 5 CFR 2634.907 and
2634.908 for additional guidance or contact the local Ethics Counselor.
(2) A complete report is required even though no changes have
occurred since the last submission.
(3) A reporting individual shall request required information known
only to another person to be submitted by that person to appropriate
reviewing authorities. Such a submission may be made with a request for
confidentiality which shall be honored by DoD reviewing authorities
when appropriate, even if it limits disclosure to the reporting
individual.
(f) Chain of submission. A reporting individual shall submit his SF
450 through his supervisor to his Ethics Counselor. It is the
responsibility of the reporting individual to ensure that an annual
report is filed by November 30.
(g) Review. (1) Upon receipt of an SF 450, the supervisor of the
reporting individual shall provide an initial review of the report
using the criteria set forth in paragraph (g)(2) of this section and
forward it with any comments to the local Ethics Counselor for further
review.
(2) The Ethics Counselor shall review each report to determine
that:
(i) Each item is completed; and
(ii) No interest or position disclosed on the report violates or
appears to violate:
(A) Any applicable provision of Chapter 11 of title 18, United
States Code;
(B) The Ethics in Government Act of 1978, Public Law 95-521 (5
U.S.C. App.), and implementing regulations;
(C) Executive Order 12674 and implementing regulations; or
(D) Any other related laws or regulations applicable to DoD
employees of the agency.
(3) The Ethics Counselor shall not sign and date the report until
the determinations described in paragraph (g)(2) of this section are
made. The reports are to be taken at ``face value'' unless there is a
patent omission or ambiguity or the official has independent knowledge
of matters outside the report.
(4) If the Ethics Counselor believes that additional information is
required, the reporting individual shall be notified of the additional
information required and the date by which it must be submitted. The
reporting individual shall submit the required information directly to
the Ethics Counselor.
(i) When the Ethics Counselor amends or revises a report based on
additional information obtained from the reporting individual, he shall
initial the amendment or revision and make a note of the source of the
information in the comment section of the report. For example, if the
Ethics Counselor adds to a report that a certain fund is an excepted
investment fund based on a telephone conversation with the reporting
individual, he shall number and initial the change on Schedule A and
add a notation in the comment section of the report such as, ``1. per
telecon with Mr. Doe on June 16, 1992'' and initial the comment.
(ii) When a substantial amount of information is missing from the
report, it shall be returned to the supervisor for his evaluation in
accordance with the standards set forth in paragraph (g)(2) of this
section with instructions to return it to the Ethics Counselor with any
additional comments or supplementary information.
(5) If the Ethics Counselor agrees with the supervisor's evaluation
that no item violates, or appears to violate, applicable laws or
regulations, then the Ethics Counselor shall sign and date the report.
(6) If the Ethics Counselor agrees with the supervisor's evaluation
that no item violates, or appears to violate, applicable laws or
regulations, but that there are financial interests in non-Federal
entities doing or seeking business with DoD, then the Ethics Counselor
may issue a memorandum of caution to the reporting individual and shall
sign and date the report.
(7) If the Ethics Counselor disagrees with the supervisor's
evaluation that no item violates or appears to violate applicable laws
or regulations, then the Ethics Counselor shall do the following:
(i) Notify the reporting individual, in writing, of the preliminary
determination;
(ii) Afford the reporting individual a reasonable opportunity for
an oral or written response; and
(ii) Determine, after considering any response, whether or not the
reporting individual is in compliance with applicable laws and
regulations. If the Ethics Counselor concludes that the report does
fulfill the requirements, he shall sign and date the report. If the
Ethics Counselor determines that it does not, he shall:
(A) Notify the reporting individual of the conclusion;
(B) Afford the reporting individual an opportunity for personal
consultation, if practicable;
(C) Determine what remedial action shall be taken to bring the
reporting individual into compliance; and
(D) Notify the reporting individual, in writing, of the remedial
action required, indicating a date by which that action must be taken;
(3) Ensure that the supervisor of the reporting individual is
notified of the required remedial action and date by which that action
must be taken.
(8) Except in unusual situations, which must be documented fully to
the satisfaction of the Ethics Counselor, remedial action shall be
completed within 90 days from the date the reporting individual was
notified that the action is required.
(9) Remedial steps, in accordance with 5 CFR 2634.605-2635.607 may
include the following measures:
(i) Divestiture:
(A) Any DoD employee or the spouse, minor or dependent child of a
DoD employee may be issued a Certificate of Divestiture by the
Director, OGE, upon a determination that such divestiture is reasonably
necessary to comply with 18 U.S.C. 208 or any other Federal Government
conflict of interest statute, regulation, rule, or Executive order;
(B) If obtained before the sale, the Certificate of Divestiture
allows for the non-recognition of capital gains that result upon the
sale of property to comply with conflict of interest requirements if
the property is rolled over into property permitted by OGE. See 5 CFR
2634.1001 for additional guidance;
(C) The following items must be submitted to the Director, OGE, by
the DoD component DAEO:
(1) A copy of the written request from the individual to the DoD
component DAEO to seek certification in the case of the property to be
divested;
(2) A copy of the latest SF 278 or SF 450;
(3) A detailed description of the specific property in which
divestiture is contemplated;
(4) A complete statement by the DoD component DAEO or designee of
the facts and circumstances relevant to the requirement for divestiture
and an explanation of the rules that apply to the requirement for
divestiture;
(5) An analysis and recommendation as to whether the certificate
should be granted.
(D) The Director, OGE, will issue a Certificate of Divestiture when
divestiture is reasonably necessary to comply with conflict of interest
requirements.
(ii) Disqualification in accordance with 5 CFR 3601.105;
(iii) Limitation of duties;
(iv) Transfer or reassignment;
(v) Resignation;
(vi) Exemption under 18 U.S.C. 208(b)(1) or (b)(3);
(vii) Establishment of a qualified blind trust
(10) When the Ethics Counselor determines that a reporting
individual has complied fully with the remedial measures, a notation to
that effect shall be made on the SF 450. The Ethics Counselor shall
then sign and date the SF 450 and dispose of it in accordance with
paragraph (h) of this section.
(11) If steps ensuring compliance with applicable laws and
regulations are not taken by the date established, the Ethics Counselor
shall report the matter to the agency designee for appropriate action,
with an information copy to the DoD component DAEO.
(12) All reports shall be reviewed within 60 days after the date of
filing and the Ethics Counselor shall record the date of the initial
review. After the initial review, the Ethics Counselor shall obtain
additional information, as necessary, seek remedial action, or sign and
date the report.
(h) Disposition. The SF 450 and a complete record of all action
taken thereon shall be retained for a period of six years in a central
location within the agency, command or activity to which the reporting
individual was assigned at the time of filing, after which they shall
be destroyed, unless needed in an ongoing investigation.
(i) Privacy Act. The SF 450 is a confidential report. Accordingly,
the reports are protected by the Privacy Act, 5 U.S.C. 552 and are
exempt from being released to the public under the Freedom of
Information Act, 5 U.S.C. 552(b)(3)(A) and (B), (b)(4) and (b)(6).
(j) Status reports. (1) Not later than December 15 of each year,
Ethics Counselors shall prepare a consolidated status report concerning
the annual filing of the SF 450. The status report shall be sent
through the head of the DoD component command or organization to the
respective DoD component DAEO or designee and shall contain the
following information:
(i) The number of individuals required to file an annual SF 450;
and
(ii) The number of individuals who have not filed an SF 450 as of
November 30.
(2) Subsequent to December 15, monthly reports may be required by
the DoD component DAEO to be filed for those organizations which have
not received an SF 450 from all reporting individuals required to file,
until 100% compliance has been achieved. These monthly reports shall be
forwarded as described in paragraph (j)(1) of this section.
(k) Penalties.--(1) Administrative penalties. Anyone failing to
file a report, or falsifying or failing to file required information,
may be subject to disciplinary action by the employing organization,
including such measures as suspension of consideration for appointment,
reassignment of duties and termination of employment.
(2) Criminal liability. Anyone who knowingly or willfully falsifies
information on a report may be subject to criminal prosecution under 18
U.S.C. 1001.
Sec. 84.23 Report of DoD and defense related employment (DD form
1787).
(a) Individuals required to file. Each civilian DoD employee of a
DoD component who meets the statutory criteria is required by 10 U.S.C.
2397 to file a DD Form 1787,\20\ ``Report of DoD and Defense Related
Employment,'' August 1989, with his Ethics Counselor. A DoD employee
meets the criteria if he:
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\20\Copies are available for DoD Standards of Conduct Office,
Office of General Counsel, 1600 Defense Pentagon, Washington, DC
20301-1600.
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(1) Is employed at a pay rate equal to or greater than the minimum
rate for a GS/GM-13;
(2) Within the two-year period prior to the effective date of
service or employment with the DoD component, was employed by a defense
contractor who, during the preceding one-year period, was awarded $10
million or more in defense contracts; and
(3) Was employed by or performed services for the defense
contractor and at any time during that year received compensation of or
was salaried at a rate of $25,000 per year or more at any time during
employment.
(i) Compensation is received by an individual if it is paid to a
business entity with which the person is affiliated in exchange for
services rendered by that individual.
(ii) A rate of $25,000 per year equates to $12 per hour.
(b) Time of filing. DoD employees shall file a DD Form 1787 with
their local Ethics Counselors within 30 days of entering on duty with
the DoD component.
(c) Review. (1) When a report is filed, the Ethics Counselor shall
review the DD Form 1787 to determine whether:
(i) Each item is completed and sufficient information is provided;
and
(ii) Whether the information indicates any violation or apparent
violation of any of the conflicts of interest, standards of conduct,
procurement integrity, or related laws and regulations.
(2) The Ethics Counselor need not audit the report. Disclosures are
to be taken at ``face value'' unless there is a patent omission or
ambiguity or the official has independent knowledge of matters outside
the report. However, it its expected that the Ethics Counselor will
resolve any apparent violations to ensure there are no actual
violations.
(3) If the Ethics Counselor believes that additional information is
required, the reporting individual shall be notified of the additional
information required and the date by which it must be submitted. The
reporting individual shall submit the required information directly to
the Ethics Counselor.
(4) When the Ethics Counselor has completed the review and
accomplished any necessary remedial action, the Ethics Counselor shall
sign and date the report and dispose of it in accordance with
Sec. 84.23(d).
(5) If the Ethics Counselor concludes that the reporting individual
is not in compliance with applicable laws or regulations, the Ethics
Counselor shall:
(i) Notify the reporting individual, in writing, of the preliminary
determination;
(ii) Afford the reporting individual an opportunity for personal
consultation, if practicable;
(iii) Determine what remedial action should be taken to bring the
reporting individual into compliance; and
(iv) Notify the reporting individual of the remedial action
required, indicating a date by which that action must be taken,
normally within 90 days.
(6) When the Ethics Counselor determines that a reporting
individual has complied fully with the remedial measures, a notation to
that effect shall be made in the comment section of the report. The
Ethics Counselor shall sign and date the report as the reviewing
official and dispose of it in accordance with paragraph (d) of this
section.
(d) Disposition. (1) After the Ethics Counselor signs and dates the
report, the Ethics Counselor shall send the original to the DoD
component DAEO or designee, who shall forward it to SOCO not later than
March 15.
(2) The DoD component DAEO or designee shall ensure that
appropriate data from each DD Form 1787 is extracted and sent to the
Defense Manpower Data Center where a consolidated report to Congress is
compiled.
(3) If steps ensuring compliance with applicable laws and
regulations are not taken by the date established, the Ethics Counselor
shall report the matter to the DoD component DAEO and take whatever
other action might be required in accordance with subpart J of this
part.
(4) DD Forms 1787 shall be retained by SOCO for six years from the
date of filing with SOCO.
(e) Public availability of reports. DD Forms 1787 must be available
for public examination upon request after the report is filed with
SOCO, unless exempted pursuant to law. Reporting individuals are
personally responsible for ensuring that their reports are accurate,
complete, and timely.
(f) Penalties--(1) Administrative penalties. Anyone failing to file
a report, or falsifying or failing to file required information, may be
subject to any applicable personnel or other action in accordance with
applicable law or regulation, including adverse action. An
administrative penalty of up to $10,000 may be imposed in accordance
with 10 U.S.C. 2397.
(2) Criminal liability. Any individual who knowingly or willfully
falsifies information on a report may be subject to criminal
prosecution under 18 U.S.C. 1001.
Subpart H--Seeking Other Employment
Sec. 84.24 General rules.
Office of Government Ethics Regulation. 5 CFR part 2635, subpart F
provides rules on seeking other employment that apply to all DoD
employees.
Sec. 84.25 Conflict of interest (18 U.S.C. 208).
(a) Negotiating for employment. See 5 CFR 2635.603 for provisions
on conflicts of interest in employment negotiations under 18 U.S.C.
208. The provisions of 18 U.S.C. 208 and related provisions of OGE
regulations do not apply to enlisted members. However, provisions
similar to 18 U.S.C. 208 do apply to enlisted members as follows: [The
following is a General Order] except as approved by the DoD component
DAEO or designee, an enlisted member, including an enlisted special
Government employee, shall not participate personally and substantially
as part of his official DoD duties, in any particular matter in which
he, his spouse, minor child, partner, entity in which he is serving as
officer, director, trustee, partner or employee or any entity with
which he is negotiating or has an arrangement concerning prospective
employment, has a financial interest [end of General Order]. See 18
U.S.C. 208, Sec. 84.3(a)(2)(i)(A) and Sec. 84.15(b), and 5 CFR
2635.603.
(b) Penalties. Violation of 18 U.S.C. 208 is punishable by a fine
and imprisonment. The full range of administrative sanctions may also
be imposed.
Sec. 84.26 Procurement integrity (41 U.S.C. 423(b)).
(a) Soliciting, accepting, or discussing employment. (1) [The
following is a General Order] During the conduct of a procurement, a
procurement official may not knowingly, directly or indirectly, solicit
or accept from, or discuss with, any officer, employee, representative,
agent, or consultant of a competing contractor, any future employment
or business opportunity [end of General Order]. See 48 CFR 3.104-6.
(2) This prohibition does not apply to a procurement official:
(i) After he leaves Federal Government service;
(ii) Who is employed by a contractor, subcontractor, consultant,
expert, or advisor after he ceases to act on behalf of, or provide
advice to, the procuring agency concerning the procurement;
(iii) Who has been granted recusal, in writing, in accordance with
the provisions of 48 CFR 3.104-6 and paragraph (a)(4) of this action
and who has in fact discontinued participation in the procurement;
(iv) Whose only communication with a competing contractor is to
reject an unsolicited offer of employment or business opportunity or
advise the competing contractor that he must seek recusal prior to any
discussion regarding the unsolicited offer;
(v) Who has made inquiry in good faith of the potential contractor
and been advised that the contractor is not or will not become a
competing contractor on a procurement on which the individual is a
procurement official; or
(vi) Where the procurement official engages in conduct in good
faith reliance upon a written ethics advisory opinion;
(vii) After the procurement has been concluded by the award or
modification of a contract or the cancellation of the procurement.
(3) A procurement official may discuss employment or business
opportunities with a competing contractor only if a written recusal
request was submitted and approved in accordance with the policy and
procedures contained in 48 CFR 3.104-6 (c) through (h). The head of the
contracting activity has the authority to approve or disapprove a
request for recusal; however, he may not approve recusal for a
procurement official who has participated personally and substantially
in certain evaluation functions listed in 48 CFR 3.104-6(c).
(4) Any DoD procurement official or former DoD procurement official
may, by written request, seek advice from his DoD component DAEO or
designee regarding whether he may be precluded by the procurement
integrity rules from engaging in a specified activity. See 48 CFR
3.104-8.
(i) The request must provide the DoD component DAEO or designee
with sufficient information to make a determination.
(ii) The DoD component DAEO shall make his determination, in
writing, within 30 days, or as soon thereafter as practicable.
(iii) A copy of the request and the ethics advisory opinion shall
be retained for six years, in accordance with DoD component procedures.
(b) Penalties. Violation of the provisions of 41 U.S.C. 423 is
punishable by the full range of sanctions, including the following:
(1) Civil penalties. Individual violators may be subject to a civil
fine not to exceed $100,000. Violators, other than individuals, may be
subject to a civil fine not to exceed $1 million.
(2) Administrative sanctions. See Sec. 84.39.
Sec. 84.27 Reporting employment contacts (10 U.S.C. 2397a).
(a) Individuals required to file. The following DoD employees are
required by this part and by 10 U.S.C. 2397a to report, in writing,
their employment contacts to their supervisor and DoD component DAEO or
designee:
(1) Any military officer in grade O-4 or above, or any civilian DoD
employee serving in a position for which the rate of pay is equal to or
greater than the minimum rate of pay for GS/GM-11 who;
(2) At any time during his DoD service, performed a ``procurement
function'' involving a defense contractor which received at least
$25,000 a year in DoD business; and
(3) Who contacts or is contacted by that defense contractor
regarding future employment.
(b) Content of report. Reports of employment contacts shall
include:
(1) The name, title, agency address, and telephone number of the
reporting individual;
(2) The name of the defense contractor concerned;
(3) The date of each contact covered by the report; and
(4) A brief description of the substance of each contact.
(c) Disqualification statement--(1) Individuals required to file
disqualification.
(i) Any DoD employee required to submit a report of an employment
contact shall submit to his supervisor a written statement
disqualifying himself from participating in any ``procurement
function'' involving the defense contractor until such time as the
possibility of future employment with that defense contractor has been
rejected by either party.
(ii) Procurement officials may be required to request recusal
through formal procedures requiring written approval by the head of the
contracting agency. See Sec. 84.26(a).
(2) Distribution of disqualification. The disqualification
statement shall be given to the DoD employee's supervisor and the
Ethics Counselor. It also should be provided to others who might
contact the DoD employee regarding the defense contractor which is the
subject of the disqualification.
(3) Contents of disqualification. The disqualification statement
shall contain:
(i) The name, title, agency address, and telephone number of the
DoD employee submitting the report;
(ii) The extent of disqualification (i.e., a description of duties
affecting the defense contractor the DoD employee may not perform as a
result of the disqualification);
(iii) Identification of the DoD employee or office that will handle
duties during the disqualification period; and
(iv) An explanation of any other steps required to avoid potential
conflicts of interests;
(v) If the statement is necessary only because of a second contact
which was rejected, information in accordance with paragraphs
(c)(3)(iii) and (c)(3)(iv) of this section.
(4) Withdrawal of disqualification. A DoD employee may withdraw a
disqualification if employment discussions conclude with no arrangement
regarding future employment, or if such an arrangement is ended, by
notifying, in writing, the same individuals who received copies of his
disqualification statement.
(5) Review and retention of disqualification. The supervisor, with
the assistance of the Ethics Counselor, shall review the
disqualification statement to make sure it will prevent any conflict of
interest and to determine whether the DoD employee can still carry out
his responsibilities adequately. Both the supervisor and the Ethics
Counselor shall retain a copy of the disqualification statement for
three years.
(d) Exception. A DoD employee need not report the contact or
disqualify himself from officially participating in a particular matter
involving the defense contractor if the first contact was initiated by
the defense contractor and the DoD employee immediately terminates the
discussion and unequivocally rejects consideration of employment
opportunities. If the contact is renewed by either the defense
contractor or the DoD employee, all contacts must be reported.
(e) Penalties. An individual who fails to report an employment
contact or to disqualify himself as required by paragraphs (a) through
(c) of this section may be subject to the following administrative
penalties:
(1) Prohibition of employment with the defense contractor concerned
for up to ten years from the date of separation from DoD; and
(2) An administrative penalty not to exceed $10,000.
Sec. 84.28 DoD guidance.
(a) Appearances. DoD employees shall:
(1) Ensure that the prospect of employment does not affect the
performance or non-performance of their official duties;
(2) Ensure that they do not communicate inside information to a
prospective employer; and
(3) Avoid any activity that would affect the public's confidence in
the integrity of the Federal Government, even if it is not an actual
violation of the law.
(b) Written guidance. DoD employees may obtain counseling and
written advice concerning restrictions on seeking other employment from
their Ethics Counselor:
(1) Although the counseling and advice are given by DoD attorneys
and involve the interpretation of law and regulation and rendering of
legal opinion, no attorney-client or other confidential relationship is
created. Communications made to an Ethics Counselor in seeking such
advice are not privileged.
(2) This counseling and advice is personal to the current or former
DoD employee. It does not extend to the individual's business,
employer, or prospective employer.
Subpart I--Post-Government Service Employment
Sec. 84.29 Office of Government Ethics regulation.
(a) See 5 CFR part 2637, ``Regulations Concerning Post-Employment
Conflict of Interest''.
[5 CFR part 2637 applies only to DoD employees who left Federal
Government service before 1991]
(b) See 5 CFR part 2641, ``Post-Employment Conflict of Interest
Restrictions''.
[5 CFR part 2641 applies to DoD employees who left Federal
Government service on or after January 1, 1991]
Sec. 84.30 Guidance on 18 U.S.C. 207.
(a) OGE guidance. See Office of Government Ethics memorandum,\21\
``Revised Materials Relating to 18 U.S.C. 207,'' November 5, 1992.
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\21\Copies are available from U.S. Office of Government Ethics,
1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.
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(b) DoD guidance. The restrictions imposed by 18 U.S.C. 207(a), (c)
and (d) do not apply to communications made solely to furnish
scientific and technical information that are authorized by the Head of
the DoD component.
(1) To obtain such an authorization in the case of former DoD
employees:
(i) The head of the DoD component command or organization involved
shall submit, in writing, to the Head of the DoD component a request
that the former DoD employee be permitted to participate in a
particular matter from which he would ordinarily be barred under 18
U.S.C. 207;
(ii) The Head of the DoD component or designee may determine in
writing that such participation is appropriate if:
(A) The former DoD employee has outstanding scientific or
technological qualifications;
(B) The national interest of the United States would be served by
such participation;
(C) The former DoD employee has qualifications that are otherwise
unavailable; and
(D) The Head of the DoD component or designee has consulted with
the DoD component DAEO.
(2) In cases involving former Federal Government employees other
than former DoD employees, authorization may be obtained in accordance
with procedures in 18 U.S.C. 207(j)(5).
Sec. 84.31 Post-employment counseling and advice.
(a) Written advice. Current and former DoD employees may obtain
counseling and written advice concerning post-employment restrictions
from the Ethics Counselor of the DoD component command or organization
from which they are leaving, or have left, Federal Government service.
Current and former DoD employees are, by statute, entitled to written
advice from the DoD component DAEO or designee under 10 U.S.C. 2397b
and 41 U.S.C. 423. See Sec. 84.32 (a)(3) and (b)(3).
(1) Although ethics counseling and advice are given by DoD
attorneys and involve interpretation of law and regulation and
rendering of legal opinion, no attorney-client or other confidential
relationship is created. Communications made to an Ethics Counselor in
seeking such advice are not privileged.
(2) Ethics counseling and advice are personal to the current or
former DoD employee. They do not extend to anyone else, including his
business, employer, or prospective employer.
(b) Delegation of authority. The DoD component DAEO may
specifically delegate authority in writing for Ethics Counselors within
the DoD component to provide written advice under 10 U.S.C. 2397b and
41 U.S.C. 423. In any case where the local Ethics Counselor does not
have the authority by written delegation, he shall provide the
counseling and obtain the request for advice and necessary supporting
information from the DoD employee and forward it to the DoD component
DAEO or designee who has been specifically delegated the authority in
writing to issue the written advice.
Sec. 84.32 Restrictions resulting from procurement activities.
(a) 10 U.S.C. 2397b--(1) Restrictions. This statute prohibits the
following three categories of former DoD employees from accepting
compensation from the concerned defense contractor during the two-year
period after separation from DoD:
(i) 0-4s and above, and civilians serving in positions for which
the rate of pay was equal to or higher than the minimum rate of a GS/
GM-13, who:
(A) On a majority of their working days during a two-year period
prior to separation;
(B) Performed a procurement function relating to a defense
contract;
(C) At a site or plant owned or operated by the defense contractor
and which was the DoD employee's principal work location.
(ii) 0-4s and above, and civilians serving in positions for which
the rate of pay was equal to or higher than the minimum rate of pay for
a GS/GM-13, who:
(A) On a majority of their working days during the two-year period
prior to separation;
(B) Performed a procurement function related to a major defense
system and;
(C) In the performance of the procurement function, participated
personally and substantially on any occasion and in a manner involving
decision-making responsibilities with respect to a contract for the
system;
(D) Through contact with the defense contractor; and
(iii) 0-7s and above, and civilians serving in positions for which
the rate of pay was equal to or higher than the minimum rate of pay for
a Senior Executive Service position, who during the two-year period
prior to separation, acted as a ``primary representative of the United
States'' in negotiation of a defense contract in an amount in excess of
$10 million or settlement of an unresolved claim exceeding $10 million.
An unresolved claim is valued by the greater of the amount of the claim
or the amount of the settlement.
(2) Penalties and effective dates. Former DoD employees who
knowingly violate this statute are subject to a civil fine up to
$250,000. Defense contractors who knowingly offer or provide any
compensation to individuals in violation of this statute are subject to
a civil fine up to $500,000.
(i) The effective date of this law was April 16, 1987. The law does
not prohibit the continuation of defense contractor employment begun or
compensation accepted before then. If an employee separated from DoD
prior to April 16, 1987, the statute does not apply. However, former
DoD employees who were still employed or on active duty on or after
April 16, 1987 must comply fully with its provisions, if within its
scope.
(ii) For the period of December 1, 1989 until May 31, 1991, the
statute was suspended and employment or acceptance of compensation
during that period could not violate the statute. Questions about the
effect of the suspension should be referred to the local Ethics
Counselor.
(3) Written opinion. (i) Before accepting compensation from a
defense contractor, a DoD employee or former DoD employee is, by
statute, entitled to a written opinion regarding the applicability of
this statute to his specific circumstances. A request for such written
opinion shall be submitted in writing to the Ethics Counselor serving
the DoD component command or organization the DoD employee is leaving
or from which he has separated. The request shall set forth all
information relevant to the request.
(ii) Ethics Counselors who have not been delegated authority in
writing to issue 10 U.S.C. 2397b written opinions shall promptly
forward the request to the DoD component DAEO or designee who has such
authority.
(iii) Written opinions shall be issued within 30 days of receiving
the request together with all necessary information.
(iv) A written opinion that this statute is not applicable to a
specific situation, if based on a complete disclosure of all relevant
information, creates a conclusive presumption that the receipt of
compensation from a particular defense contractor is not a violation of
the law.
(v) A copy of each 10 U.S.C. 2397b written opinion shall be
retained by the DoD component DAEO or designee for three years.
(4) DoD interpretation of 10 U.S.C. 2397b. (i) If a DoD employee
had been conducting all negotiations with a $10 million defense
contractor on a major defense contract action of $10 million or more,
but a superior DoD employee intervened directly in the negotiating
process, both DoD employees would be considered ``primary''
representatives for that defense contract action.
(ii) 10 U.S.C. 2397b does not prohibit any former DoD employee from
accepting compensation from any defense contractor that, during the
fiscal year preceding the fiscal year in which compensation is
accepted, was not a defense contractor or was a defense contractor
whose contracts totalled less than $10 million.
(iii) 10 U.S.C. 2397b prohibits employment with particular defense
contractors, not subcontractors, but former DoD employees cannot avoid
its consequences merely by forming their own company and then
``subcontracting'' themselves to otherwise prohibited defense
contractors.
(b) 41 U.S.C. 423--(1) Restrictions. This statute restricts a
former DoD employee who was a procurement official with respect to a
particular procurement from knowingly:
(i) Participating in any manner on behalf of a competing contractor
in any negotiations leading to the award or modification of a defense
contract for such procurement; or
(ii) Participating personally and substantially on behalf of the
competing contractor in the performance of such defense contract.
(2) Period of restrictions. Both restrictions apply for a period of
two years from the date of the former DoD employee's last personal and
substantial participation in the procurement on behalf of the Federal
Government. Neither applies unless the individual was a DoD employee of
the Federal Government at the time he served as a procurement official.
(3) Written opinion. (i) A DoD employee or former DoD employee who
is or was a procurement official is, by statute, entitled to a written
opinion regarding the applicability of this statute to his specific
circumstances. A request for such an opinion shall be submitted in
writing to the Ethics Counselor serving the DoD component command or
organization the DoD employee is leaving or from which he has
separated. The request shall set forth all information relevant to the
request. See 48 CFR 3.104-8(e).
(ii) Ethics Counselors who have not been delegated specific
authority in writing to issue 41 U.S.C. 423 written opinions shall
promptly forward the request to the DoD component DAEO or designee who
has such authority.
(iii) Written opinions shall be issued within 30 days of receiving
the request, together with all necessary information.
(iv) Where the DoD employee or former DoD employee relies in good
faith on a written opinion that this statute is not applicable to a
specific situation, the DoD employee or former DoD employee shall not
be found to have knowingly violated the restrictions of the statute.
(v) A copy of each 41 U.S.C. 423 opinion shall be retained by the
DoD component DAEO or designee for three years.
Sec. 84.33 Restrictions on retired military members.
(a) 18 U.S.C. 281(a) and 37 U.S.C. 801. Two statutes restrict the
selling activities of retired officers, 18 U.S. 281(a) and 37 U.S.C.
801.
(1) Restrictions. (i) A criminal statute, 18 U.S.C. 281(a),
provides that for a period of two years after retiring, no retired
military officer may receive compensation for representing any other
individual in the sale of anything to the Federal Government through
the department in which he holds a retired status.
(A) The term ``department'' refers to individual DoD components,
not DoD as a whole, insofar as it concerns retired military officers.
For example, this statute does not prohibit retired Navy and Marine
Corps officers from selling to the Departments of the Army or Air
Force.
(B) The term ``anything'' in the phrase ``sale of anything'' has
been construed by DoJ to encompass both goods and services.
(C) DoD has determined that this statute does not prohibit the sale
of personal services when the retiree is only representing himself.
However, sale of personal services may not include the work product of
a closely held corporation where individuals other than the retiree
contribute to the services provided.
(ii) A civil statute, 37 U.S.C. 801, provides for a loss of
entitlement to retired pay by retired regular military officers if they
engage in certain employment activities involving sales of supplies and
war materials (tangible property) to DoD, the Coast Guard, the National
Oceanic and Atmospheric Administration, or the Public Health Service
during the three years immediately following retirement.
(A) This does not prohibit employment with a particular employer
but does affect a retired regular military officer's direct and
personal involvement in sales to the agencies previously listed.
(B) The prohibition is against engaging, personally or for others,
in selling, or contracting or negotiating to sell, supplies or war
materials.
(C) Unlike the criminal selling statute, however, the sale of
services is not prohibited.
(2) Definition of ``selling.'' (i) For the purpose of these two
statutes, ``selling'' means:
(A) Signing a bid, proposal, or contract;
(B) Negotiating a contract;
(C) Contacting a DoD employee to obtain or negotiate defense
contracts, negotiate or discuss changes in specifications, price, cost
allowances, or other terms of a defense contract, or settle disputes
concerning performance of a defense contract; or
(D) Any other liaison activity with a view toward the ultimate
consummation of a sale although the actual defense contract is
negotiated subsequently by another person.
(ii) Activities which are not considered ``selling'' include:
(A) Purely social contacts, as long as there is an independent
basis for the social relationship and no promotion of a product or
attempt to influence a procurement;
(B) Technical contacts for the purpose of conferring with non-
contracting technical specialists to acquire information this is
available to all prospective defense contractors, provided that these
contacts do not otherwise involve ``selling'' as discussed in paragraph
(a)(2)(i) of this section. See 42 Comp. Gen. 236.241;
(C) Contacts subsequent to the execution of a defense contract
relating to performance or progress, if they do not include
modification of the defense contract or ``selling'' as discussed in
paragraph (a)(2)(i) of this section.
(3) Sale of services. (i) The Comptroller General has ruled that
the sale of services does not require the withholding of retired pay
pursuant to 37 U.S.C. 801 and that the sale of services may include
tangible goods if the primary purpose of the sale is to provide
services. See 42 Comp. Gen. 87,92 (contract to provide television
service where parts and supplies were incidental to the contract does
not run afoul of 37 U.S.C. 801).
(ii) When the restrictions of 18 U.S.C. 281(a) are combined with
those of 37 U.S.C. 801, the one significant area of selling activity
which remains open to military retirees is the sale of services and
other non-tangibles to uniformed services, other than the DoD component
from which the individual retired, for the first two years after
retirement.
(b) 18 U.S.C. 281(b). For a period of two years after terminating
service with the Federal Government, a retired military officer may not
act as an agent or attorney for the prosecution or assist in the
prosecution of any claim against the United States involving the
department in which he holds a retired status or which concerns a
subject with which the military officer was directly connected while on
active duty. A violation on this statute is punishable by a $10,000
fine and one year imprisonment.
(c) Restrictions on Federal Government employment--(1) Dual
compensation laws. A retired member of any uniformed service who holds
a civilian position with the Federal Government is subject to reduction
of retired pay while receiving pay from a Federal Government civilian
position. The term ``retired member'' means anyone, officer or
enlisted, entitled to receive retired pay. The term ``retired pay''
includes both retired and retainer pay. The current law generally
applies to retired regular officers, retired at any time, and to all
former members of the uniformed services who left active duty after
January 11, 1979. See 5 U.S.C. 5532 for exceptions to this general
rule.
(i) The dual compensation reduction formulas. There are two
provisions in the current dual compensation law which may operate to
reduce the retired pay of retired members of the uniformed services who
hold Federal Government civilian positions.
(A) The first reduction provision. The first reduction provision
applies only to retired regular officers who retired at any time. This
provision operates to reduce the retired pay of a retired regular
military officer receiving pay from a Federal Government civilian
position regardless of the amount of salary from that civilian
position. It provides that such retired military officer is entitled to
receive the full pay of the civilian position, but retired pay will be
reduced to an annual rate equal to base amount plus one-half of the
remainder of the retired pay, if any. The base amount is increased
periodically to reflect changes in the Consumer Price Index, See 5
U.S.C. 5532(b).
(B) The second reduction provision. The second reduction provision
applies, in general, to all retired military members who first received
retired pay after January 11, 1979. The reduction depends upon the
amount of pay received from the Federal Government civilian position.
This provision operates to reduce the retired pay of a retired member
when the annual rate of pay for the civilian position combined with the
annual rate of retired pay (reduced in the case of retired regular
officers as discussed in Sec. 84.33(c)(1)(i)(A)) exceeds the annual
rate of basic pay for level V of the Executive Schedule. Reductions are
computed as follows:
(1) If the combination of pay from the civilian position and
retired pay exceeds the amount currently paid for level V of the
Executive Schedule, the retired pay will be reduced to keep the total
at the level V limit.
(2) Reductions to retired pay are made per pay period whenever the
combination of the two salaries for the pay period exceeds the pay for
a level V position for that pay period. Reductions made in such pay
periods are not refundable even when the combined pay amounts for the
total year is less than the annual rate for level V of the Executive
Schedule;
(3) The amount of retired pay may not be reduced to an amount less
than the amount deducted from the retired pay as a result of
participation in any survivor's benefits in connection with retired pay
or veterans insurance programs and no reductions shall be made to
retired pay based, in whole or in part, upon disability incurred in the
line of duty as a direct result of armed conflict or during a period of
war.
(ii) Waivers. (A) A retired member may, in certain limited
circumstances, obtain a waiver so that his retired pay would not be
reduced while holding a Federal Government civilian position. See 5
U.S.C. 5532(g). The circumstances under which a waiver may be granted
are:
(1) On a case by-case basis for a retired member holding a Federal
Government civilian position for which there is exceptional difficulty
in recruiting or retaining a qualified employee; or
(2) For temporary employment that is necessary due to an emergency
involving a direct threat to life or property, or under other unusual
circumstances.
(B) The Director, OPM, may grant a waiver at the request of the
Head of an Executive agency. Additionally, the Director, OPM, may
delegate to an agency the authority to grant waivers for the temporary
employment of retired members during emergencies or other unusual
circumstances, but not for employment necessitated by exceptional
difficulties in recruiting or retaining qualified individuals. The
Director, OPM, has delegated to DoD authority to approve dual
compensation restriction waivers in certain circumstances at
installations scheduled for closure.
(C) Waivers are to be the exception, not the rule. If appropriate,
however, a waiver may be obtained for either or both of the dual
compensation reductions. See 5 CFR part 553 for procedures for
obtaining a waiver.
(2) Post-military service employment in DoD under 5 U.S.C. 3326. As
of November 6, 1992, the suspension of this provision ended. See DoD
Directive 1402.1.\22\ To avoid appearances of favoritism or
preferential treatment, retired military members may not be selected to
fill civil service positions in DoD (including non-appropriated fund
instrumentalities within 180 days following retirement unless:
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\22\See footnote 4 to Sec. 84.7(d).
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(i) The appointment is authorized by the Secretary of a Military
Department or designee, or by OPM if the position is in the competitive
service;
(ii) The minimum rate of basic pay for the position has been
increased under 5 U.S.C. 5305; or
(iii) A state of national emergency exists.
(d) Foreign employment restrictions. (1) Article I, Section 9,
Clause 8, of the Constitution of the United States prohibits any person
holding any office of profit or trust under the Federal Government from
accepting any present, emolument, office, or title of any kind whatever
from any king, prince, or foreign state without the consent of
Congress.
(i) This provision prohibits employment of all retired military
members, both officer and enlisted and both regular and reserve, by a
foreign government unless Congressional consent is first granted. See
44 Comp. Gen. 130.
(ii) Employment by educational or commercial institutions owned,
operated, or controlled by a foreign government is included within the
scope of this restriction.
(iii) The penalty for violation is withholding the retired military
member's retired pay in an amount equal to the foreign salary illegally
received. See 61 Comp. Gen. 306.
(2) Congress has consented to the acceptance of civil employment
with a foreign government by, among others, retired regular military
members and reserve military members, if both the Secretary of the
Military Department and the Secretary of State approve the employment.
See 37 U.S.C. 908. Because approval is prospective only, foreign civil
employment should not be accepted until approval has been obtained.
Retired military members who wish to accept such employment should
submit a written request for approval to the Secretary of their
Military Department through appropriate channels. The request must
fully describe the contemplated employment and the nature and extent of
the involvement with the foreign government.
(3) A former military member desiring employment with a foreign
government or any foreign business interest may be required to register
as an agent of a foreign principal under the Foreign Agents
Registration Act of 1938, 22 U.S.C. 611 et seq. Any person who acts as
an agent of a foreign principal must file a registration statement with
the U.S. Attorney General.
Sec. 84.34 Restrictions on former senior appointees.
Executive Order 12834 (58 FR 5911) requires contractual ethics
commitments regarding post-Government service employment from full-
time, non-career Presidential, Vice-Presidential or agency Head
appointees in an Executive agency whose rate of basic pay is not less
than the rate for level V of the Executive Schedule, except for those
appointed as members of the senior foreign service or solely as
uniformed service commissioned officers. See Executive Order 12834 and
OGE Form 203,\23\ ``Senior Appointee Pledge,'' January 1993, and OGE
Form 204,\24\ ``Trade Negotiation Pledge,'' January 1993.
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\23\Copies are available from U.S. Office of Government Ethics,
1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917.
\24\See footnote 23 to Sec. 84.34.
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Sec. 84.35 Restrictions on dealing with current or former DoD
employees.
(a) General rule. Current DoD employees shall not knowingly deal,
on behalf of the Federal Government, with current or former DoD
employees whose participation in the transaction violates any statute
or DoD directive, regulation or policy.
(b) Terminal leave.
(1) Military members on terminal leave may accept civilian
employment with the Federal Government and are entitled to the pay of
that civilian position in addition to the pay and allowances to which
entitled while on terminal leave. See 5 U.S.C. 5534a.
(2) A military officer on active duty may not accept a civil office
with a State or local government, nor may he perform the duties of such
an office. See 10 U.S.C. 973(b)(3). This applies while the military
officer is on terminal leave. See 56 Comp. Gen 855.
Sec. 84.36 Reports of DoD and defense related employment (DD form
1787).
(a) Individuals required to file. The following former DoD
employees are required by 10 U.S.C. 2397 to file DD Form 1787 with
their former DoD component:
(1) Each former DoD employee of a DoD component who:
(i) Served at a pay rate equal to or greater than the minimum rate
for a GS/GM-13, or served on active duty at least ten years and held
the grade of 0-4 or above at any time during his service;
(ii) Within the two-year period immediately following termination
of service or employment with the DoD component, is employed by a
defense contractor who, during the preceding one-year period, was
awarded $10 million or more in defense contracts; and
(iii) Is employed by or performs services for the defense
contractor and receives compensation of or is salaried at a rate of
$25,000 per year or more from the defense contractor.
(2) Compensation is received by a reporting individual if it is
paid to a business entity with which the reporting individual is
affiliated in exchange for services rendered by that reporting
individual;
(3) A rate of $25,000 per year equates to $12 per hour.
(b) Time of filing. A former DoD employee shall file a report with
his former DoD component DAEO or designee within 90 days of entering on
duty with the defense contractor.
(c) Review. (1) When the report is filed, the DoD component DAEO or
designee shall review the report to determine whether:
(i) Each item is completed and sufficient information is provided;
and
(ii) Whether the information indicates any violation or apparent
violation of any of the conflicts of interest, standards of conduct,
procurement integrity, and related laws and regulations.
(2) The DoD component DAEO or designee need not audit the report.
Disclosures are to be taken at ``face value'' unless there is a patent
omission or ambiguity or the official has independent knowledge of
matters outside the report. However, it is expected that the DoD
component DAEO or designee will resolve any apparent violations to
ensure there are no actual violations.
(3) If the DoD component DAEO or designee believes that additional
information is required, the reporting individual shall be notified of
the additional information required and the date by which it must be
submitted. The reporting individual shall submit the required
information directly to the DoD component DAEO or designee.
(4) When the DoD component DAEO or designee has completed the
review and accomplished any necessary remedial action, he shall sign
and date the report and dispose of it in accordance with paragraph
(d)(2) of this section.
(5) If the DoD component DAEO or designee concludes that the
reporting individual is not in compliance with applicable laws or
regulations, the DoD component DAEO or designee shall:
(i) Notify the reporting individual of the preliminary
determination;
(ii) Afford the reporting individual an opportunity for personal
consultation, if practicable;
(iii) Determine what remedial action should be taken to bring the
reporting individual into compliance; and
(iv) Notify the reporting individual of the remedial action
required, indicating a date by which that action must be taken,
normally within 90 days.
(6) When the DoD component DAEO or designee determines that a
reporting individual has complied fully with the remedial measures, a
notation to that effect shall be made in the comment section of the
report. Then the DoD component DAEO or designee shall sign and date the
report as the reviewing official and dispose of it in accordance with
paragraph (d)(2) of this section.
(d) Disposition.
(1) The DoD component DAEO or designee shall ensure that
appropriate data from each DD Form 1787 is extracted and sent to the
Defense Manpower Data Center where a consolidated report to Congress is
compiled.
(2) After the DoD component DAEO or designee signs and dates the
report, he shall send it to SOCO.
(3) If steps ensuring compliance with applicable laws and
regulations are not taken by the date established, the DoD component
DAEO or designee shall take whatever other action might be required in
accordance with subpart J of this part.
(4) DD Forms 1787 shall be retained by SOCO for six years from the
date of filing with SOCO.
(e) Public availability of reports. DD Forms 1787 must be made
available for public examination upon request after the reports are
filed with SOCO, unless exempted pursuant to law. Reporting individuals
are personally responsible for ensuring that their reports are
accurate, complete, and timely.
(f) Penalties--(1) Administrative penalties. Anyone failing to file
a report or falsifying or failing to file required information, may be
subject to any applicable personnel or other action in accordance with
applicable law or regulation, including adverse action. An
administrative penalty of up to $10,000 may be imposed in accordance
with 10 U.S.C. 2397.
(2) Criminal liability. Any individual who knowingly or willfully
falsifies information on a report may be subject to criminal
prosecution under 18 U.S.C. 1001.
Subpart J--Enforcement
Sec. 84.37 Enforcement of the provisions of the Joint Ethics
Regulation.
Penalties for violation of the rules republished in, and prescribed
by, this part include the full range of applicable criminal, civil and
administrative sanctions for current DoD employees, including
punishment under the UCMJ for military members. Many of the statutes
that regulate the post-Government service employment activities of
former or retired DoD employees also provide for specific criminal and
administrative sanctions. This subpart sets out the requirements for
reporting and inquiry to ensure that ethics-related laws and
regulations are properly enforced and that appropriate administrative
or disciplinary action is taken.
Sec. 84.38 Reporting procedures.
(a) Reporting suspected violations. With the exception of the
provisions of 41 U.S.C. 423 that are addressed in paragraph (c) of this
section, DoD employees who suspect that a violation of this part has
occurred shall report the matter to any of the following:
(1) The DoD employee's agency designee;
(2) The suspected violator's agency designee;
(3) The head of the DoD component command or organization;
(4) Any Ethics Counselor;
(5) The DoD component's IG;
(6) The DoD component's criminal investigative office; or
(7) The DoD hotline or DoD component hotline.
(b) Receipt of report. (1) DoD component investigative offices
shall consult local Ethics Counselors as appropriate to ensure that up-
to-date expertise is applied in the investigation of each suspected
violations of this part in recognition of rapidly changing rules and
statutes in the ethics area.
(2) If a suspected violation is reported to some entity other than
those named in paragraph (a)(4) through (a)(7) of this section, then
the notified person shall promptly report the matter to his Ethics
Counselor.
(3) An Ethics Counselor who receives a report shall review the
facts and, if the facts tend to support a violation, report the
allegation to the appropriate investigative organization or, through
the chain of command or supervision, to the head of the DoD component
command or organization of the suspected violator. In addition, the
Ethics Counselor must ensure that the following is accomplished:
(i) If a violation of 18 U.S.C. 203, 205, 207, 208 or 209 is
suspected, the matter shall be reported to the DoD component's criminal
investigative organization. The investigative organization is
responsible for investigating the allegation and notifying DoJ in
accordance with DoD Directive 5525.7\25\. In addition, the Ethics
Counselor shall:
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\25\See footnote 4 to Sec. 84.7(d)
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(A) Report to the DoD component DAEO as follows:
(1) The name and position (optional) of the informant;
(2) The name and position of the suspect;
(3) The suspected offense;
(4) The facts, as known or believed;
(5) The status of any action being taken.
(B) File periodic follow-up reports with the DoD component DAEO
until a final determination is made;
(C) If the matter is referred to the DoJ or the U.S. Attorney,
include OGE Form 202,\26\ ``Notification of Conflict of Interest
Referral,'' January 1992, in the referral packet and send a copy to the
DoD component DAEO for forwarding to OGE.
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\26\Copies are available from U.S. Office of Government Ethics,
1201 New York Avenue, NW., suite 500, Washington, DC 20005-3917
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(ii) If a violation of 18 U.S.C. 201 or 281 is suspected, it shall
be handled in the same manner as paragraph (b)(3)(i)(A) of this section
except that OGE Form 202 is not used for referrals;
(iii) If a violation of 10 U.S.C. 2397 is suspected, the Ethics
Counselor shall inquire into the matter and, if substantiated, attempt
to obtain compliance. If these efforts fail, the Ethics Counselor shall
forward a written report to the GC, DoD through the DoD component DAEO
with a recommendation for action by the Secretary of Defense pursuant
to 10 U.S.C. 2397(f);
(A) The report need be filed only when the Ethics Counselor
determines that there is sufficient evidence to believe that a
violation has occurred;
(B) The report shall include all relevant facts, a summary of
witness statements, and a justification for the recommendation to refer
or not to refer the violation for enforcement action.
(iv) If a violation of 10 U.S.C. 2397a is suspected, the Ethics
Counselor shall report the matter to the DoD component DAEO in the same
manner as in paragraph (b)(3)(i)(A) of this section. If the Ethics
Counselor believes that the Secretary of Defense should take action
pursuant to 10 U.S.C. 2397a(d), the Ethics Counselor shall forward a
written report to the GC, DoD through the DoD component DAEO with a
recommendation for action;
(A) The report need be filed only when the Ethics Counselor
determines that there is sufficient evidence to believe that a
violation has occurred;
(v) If a violation of 10 U.S.C. 2397b is suspected, the Ethics
Counselor shall report the matter to the DoD component DAEO in the same
manner as in paragraph (b)(3)(i)(A) of this section;
(vi) If it is suspected that an individual is receiving retired pay
contrary to 37 U.S.C. 801, a report of the matter shall be made to the
Defense Finance and Accounting Service. A copy of that report shall be
sent to the DoD component DAEO;
(vii) If a violation of 5 CFR part 2635 involving a loss to the
Federal Government of $5,000 or more is suspected, the Ethics Counselor
shall report the matter to the DoD component DAEO in the same manner as
in paragraph (b)(3)(i)(A) of this section.
(4) In addition, if any of the previous violations fall within a
DoD component's procurement fraud program, the Ethics Counselor shall
ensure that referrals, coordinations, and reports required by that
program are accomplished. If the matter includes a suspected violation
of the Gratuities Clause in a defense contract, the Ethics Counselor
shall report the matter in accordance with DoD component procedures
issued pursuant to 48 CFR 3.203. See paragraph (c) of this section.
(5) For matters not handled within the DoD component's procurement
fraud program, any civil or criminal referrals to DoJ or the local U.S.
Attorney of violations of this part shall be coordinated with the DoD
component DAEO. The DoD component DAEO shall be informed of referrals
of violations of this part handled within the DoD component's
procurement fraud program.
(c) Violations of 41 U.S.C. 423.
(1) Administrative sanctions. Suspected violations of 41 U.S.C. 423
shall be processed in accordance with 48 CFR 3.104-11. See 41 U.S.C.
423(h)(2).
(2) Civil sanctions. Suspected civil violations shall be referred
through the DoD component DAEO to DoJ. See 41 U.S.C. 423(i).
(3) Criminal sanctions. Suspected violations that involve the
improper release of source selection information should be referred to
the appropriate criminal investigative organization. See 41 U.S.C.
423(j).
(4) Reporting. Any suspected violation of the provisions of 41
U.S.C. 423 shall be reported as soon as practicable to the appropriate
contracting officer. See 41 U.S.C. 423(h)(1). Any actions taken as the
result of the above referrals shall be reported to the DoD component
DAEO in accordance with paragraph (b)(3)(i)(A) of this section.
Sec. 84.39 Administrative enforcement procedures.
(a) Statutory authority. 10 U.S.C. 2397 and 2397a provide for
administrative enforcement action and sanctions imposed by the
Secretary of Defense against individuals and non-Federal entities not
in compliance with these statutes.
(b) Procedures for pursuing administrative action. All
recommendations for enforcement of 10 U.S.C. 2397 and 2397a forwarded
to the Secretary of Defense shall be initiated, investigated and
processed in accordance with the requirements of the Administrative
Procedure Act. See 5 U.S.C. 551 et seq.
(c) Hearing examiners. In accordance with 5 U.S.C. 556, DoD shall
appoint hearing examiners from within DoD to preside at the taking of
evidence and provide recommendations to DoD as to final action.
(d) Administrative sanctions. (1) DoD may take appropriate
disciplinary action whenever indicated by the outcome of a case
involving violations of 10 U.S.C. 2397 and 2397a by:
(i) Imposing an administrative penalty, not to exceed $10,000;
(ii) With respect to violations of 10 U.S.C. 2397a, imposing an
additional administrative penalty of a particular amount if the
individual is determined to have accepted or continued employment with
a defense contractor during the ten-year period beginning with the date
of separation from Federal Government service.
(2) DoD may take other appropriate disciplinary action when
indicated by the outcome of a case in accordance with the laws or
regulations violated.
(e) Judicial review. Any individual or non-Federal entity found in
violation as described, and against whom an administrative sanction is
imposed, may seek judicial review of the final administrative
determination.
Subpart K--Training
Sec. 84.80 Office of Government Ethics regulation.
See 5 CFR part 2638, ``Office of Government Ethics and Executive
Agency Ethics Program Responsibilities.''
Sec. 84.41 DoD guidance.
(a) Initial and annual ethics training. (1) Overall responsibility
for initial and annual ethics training programs rests with the Head of
each DoD component acting through his DAEO. The Head of the DoD
component shall ensure that adequate resources are available to
implement the requirements of this subpart. Support shall be provided
by the DoD component legal and personnel offices, as necessary.
(2) In the Military Departments, responsibility for implementation
of ethics training programs rests with the heads of DoD component
commands or organizations who shall ensure that ethics training is
accomplished in accordance with this subpart.
(3) Training shall be accomplished using material authorized by the
DoD component DAEO or designee in meeting the requirements of this
subpart. Ethics Counselors may augment this material with additional
training material needed to address specific ethics issues peculiar to
their organization.
(4) DoD component Heads and DoD component DAEOs have the authority
to require that DoD employees other than the ones covered by 5 CFR part
2638 receive annual ethics training.
(b) Procurment integrity training. (1) Each DoD component shall
establish, or insure that its DoD employees have access to, a
procurement integrity training program. Such program shall be the
responsibility of the DoD component's official in charge of
acquisition, with the assistance of the legal and personnel offices,
under the overall guidance of the GC, DoD. The procurement integrity
training program shall, at a minimum, comply with 48 CFR 3.104-12.
(2) Heads of DoD components shall establish procedures to ensure
that DoD employees receive (or have received) procurement integrity
training and sign the Option Form (OF) 333, ``Procurement Integrity
Training Certificate for Procurement Officials,'' or similar
certificate. Out-processing procedures shall also be established to
ensure that DoD employees who leave an organization verify their status
with regard to the restrictions contained in the Procurement Integrity
Act (41 U.S.C. 423). An original copy of OF 333 or similar certificate
should be placed in the appropriate personnel folder or other permanent
file as determined by the DoD component. The individual executive the
certificate should also retain a copy.
(3) The following DoD employees should receive procurement
integrity training and execute the required certificate:
(i) All DoD employees who are members of the acquisition workforce;
(ii) All DoD employees who are engaged in, or who might become
engaged in, procurement official activities, as set forth in 41 U.S.C.
423 and 48 CFR 3.104.
(4) This requirement may be waived if the head of the DoD component
command or organization determines that the DoD employee will not act
as a procurement official while assigned to the organization.
Sec. 84.42 Procedures.
(a) Combined initial and annual ethics training (CIAET) for
calendar year 1993. (1) By December 31, 1993, all DoD employees,
including those required to receive Annual Ethics Training (AET), non-
appropriated fund instrumentality employees, and enlisted members,
shall receive CIAET.
(2) CIAET shall be accomplished in person by a Qualified Individual
or by recording in the presence of a Qualified Individual, subject to
the following exceptions:
(i) If the DoD component DAEO determines it is impractical to
accomplish CIAET in the presence of a Qualified Individual, DoD
employees who are not required to receive AET may be trained by other
means within the minimum training requirements set out by OGE in 5 CFR
2638.703 provided that, with the exception of enlisted members, such
training was completed by February 3, 1993;
(ii) If the DoD component DAEO determines it is impractical to
accomplish CIAET training in the presence of a Qualified Individual,
then special Government employees and military officers serving on
active duty fewer than 30 consecutive days annually may be trained by
other means within the minimum training requirements set out by OGE in
5 CFR 2638.704;
(iii) If the DoD component DAEO makes, with the approval of OGE, a
written determination that it is impractical to accomplish CIAET
training in the presence of a Qualified Individual, then DoD employees
who are required to receive AET may be trained by other means within
the minimum training requirement set out by OGE in 5 CFR 2638.704. OGE
requires the written determination to identify the particular DoD
employees or groups of DoD employees concerned and the specific
circumstances that make the presence of a Qualified Individual
impractical (mere administrative inconvenience or cost to an agency,
standing alone, shall not justify such determination).
(3) The term ``immediate office'' as used in 5 CFR 2638.703 shall
mean the local Ethics Counselor's.
(4) CIAET shall be a minimum of one hour.
(5) Those DoD employees who are required to receive AET will
satisfy their 1993 annual ethics training obligation if they attended
CIAET in 1992 or 1993.
(b) Initial ethics training (IET) for new DoD employees. (1) Within
90 days of entering on duty, all DoD employees who did not receive
CIAET, including those required to receive AET and enlisted members,
shall receive IET for new DoD employees.
(2) IET shall be accomplished in person by a Qualified Individual
or by recording in the presence of a Qualified Individual, and such IET
shall qualify as AET for the year the new DoD employees entered on
duty, subject to the following exceptions:
(i) If the DoD component DAEO determines it is impractical to
accomplish IET in the presence of a Qualified Individual, DoD employees
who are not required to receive AET may be trained by other means
within the minimum training requirements set out by OGE in 5 CFR
2638.703;
(ii) If the DoD component DAEO determines that it is impractical to
accomplish IET in the presence of a Qualified Individual, then DoD
employees who are required to receive AET may be trained by other means
within the minimum training requirement set out by OGE in 5 CFR
2638.704 provided that such DoD employees receive additional annual
ethics training, either CIAET, IET or AET, if more than three months
remain of the calendar year in which those DoD employees entered on
duty.
(3) The term ``immediate office'' as used in 5 CFR 2638.703 shall
mean the local Ethics Counselor's office.
(4) IET shall be a minimum of one hour.
(c) Annual ethics training (AET). (1) Beginning in calendar year
1994, all DoD employees who file an SF 278 or SF 450, contracting
officers and procurement officials, shall receive ethics training
annually.
(2) AET shall be accomplished in person by a Qualified Individual
or by recording in the presence of a Qualified Individual, subject to
the following exceptions:
(i) If the DoD component DAEO determines it is impractical to
accomplish AET in the presence of a Qualified Individual, then special
Government employees and military officers serving fewer than 30
consecutive days annually, may be trained by other means within the
minimum training requirements set out by OGE in 5 CFR 2638.704;
(ii) If the DoD component DAEO makes a written determination that
it is impractical to accomplish AET in the presence of a Qualified
Individual, then DoD employees other than special Government employees
and military members serving fewer than 30 days annually may be trained
by other means within the minimum training requirement set out by OGE
in 5 CFR 2638.704. OGE requires the written determination to identify
the particular DoD employees or groups of DoD employees concerned and
the specific circumstances that make the presence of a Qualified
Individual impractical (mere administrative inconvenience or cost to an
agency, standing alone, shall not justify such determination).
(3) AET shall be a minimum of one hour.
(d) Annual ethics training plans. DoD agency (see definition of
``agency'') ethics training plans for 1994 and subsequent ethics
training plans in accordance with paragraphs (b) and (c) of this
section shall be submitted by DoD component DAEOs or designees directly
to OGE with copies furnished to SOCO. DoD components that are not
agencies shall submit annual ethics training plans to SOCO for approval
and inclusion in the ethics training plan SOCO submits to OGE.
(e) Ethics training assistance. (1) SOCO shall make available
ethics training for ethics trainers on an ongoing basis to ensure that
Qualified Individuals are uniformly prepared to provide ethics
training.
(2) SOCO shall distribute ethics training material to all DoD
component DAEOs for use in all types of ethics training.
(3) Ethics training material shall include a training video with
accompanying pamphlet, modular ethics training packages with copies of
overhead slides, facilitator scripts, discussion hypotheticals, and
handout material, and a programmed text. Other programmed texts,
correspondence courses, and ethics computer games, and materials
developed by DoD components will be distributed as they are developed.
(4) In the interest of Federal Government efficiency and economy,
DoD components that develop ethics training develop ethics training
material independently shall provide a copy of the material to SOCO for
distribution to other DoD components.
(5) At a minimum, all ethics training shall include a review of
part I of Executive Order 12674, 5 CFR part 2635 and this part.
Sec. 84.43 Responsibilities.
(a) The Head of each DoD component shall:
(1) Exercise personal leadership and take personal responsibility
through the DoD component DAEO for establishing and maintaining the DoD
component's ethics and procurement integrity training program and shall
be personally accountable for the DoD component's compliance with the
ethics and procurement integrity training requirements;
(2) Provide sufficient resources to enable the DoD component DAEO
to implement and administer the DoD component's ethics and procurement
integrity training program.
(b) Each DoD component DAEO shall:
(1) Be responsible for the implementation and administration of
ethics and procurement integrity training and ensure that necessary
resources are available to accomplish such training;
(2) Provide periodic ethics and procurement integrity training for
Ethics Counselors;
(3) Certify Qualified Individuals to conduct ethics training.
(c) The head of each DoD component command or organization shall:
(1) Exercise personal leadership and take personal responsibility
for establishing and maintaining the command's or organization's ethics
and procurement integrity training program;
(2) Be personally accountable for the command's or organization's
ethics and procurement integrity program;
(3) Ensure that DoD employees of the command or organization attend
required ethics and procurement integrity training; and
(4) Direct administrative officers (or equivalent) of the command
or organization to coordinate with the DoD component DAEO or designee
to develop lists of all DoD employees of the command or organization
who are required to receive ethics and procurement integrity training,
schedule such training, annotate such lists to indicate when required
training was accomplished and retain annotated lists for three years.
(d) The DoD SOCO shall:
(1) Make ethics and procurement integrity training for ethics
trainers available on an ongoing basis to ensure that Qualified
Individuals are uniformly prepared to provide such training;
(2) Distribute ethics and procurement integrity training material
to all DoD component DAEOs for use in all types of ethics and
procurement integrity training;
(3) Certify Qualified Individuals to conduct ethics training who
may be used by DoD components.
(e) The director of each DoD component personnel office shall, in
coordination with the DoD component DAEO or designee, establish
procedures in coordination with the DoD component DAEO or designee to
inform new DoD employees of their obligation to receive ethics and
procurement integrity training as required.
(f) The administrative officer (or equivalent) of each DoD
component command and organization shall:
(1) In coordination with the DoD component DAEO or designee,
develop lists of all DoD employees within the DoD component command or
organization who are required to receive ethics and procurement
integrity training;
(2) In coordination with the DoD component DAEO or designee, ensure
that DoD employees with the DoD component command or organization are
scheduled to receive required ethics or procurement integrity training;
(3) Annotate such lists to indicate when required training was
accomplished and retain annotated lists for three years.
(g) The DoD employees shall attend ethics and procurement integrity
training as required.
Subpart L--Ethical Conduct
Sec. 84.44 Executive orders.
(a) See Executive Order 12674.
(b) See Executive Order 12834.
Sec. 84.45 Code of ethics for Government service.
In accordance with 5 U.S.C. 7301 note, each agency shall display,
in appropriate areas of any Federal Government building in which at
least 20 civilians are regularly employed by the agency, copies of the
following Code of Ethics for Government Service:
Code of Ethics for Government Service
Any person in Government service should:
I. Put loyalty to the highest moral principles and to country
above loyalty to persons, party, or Government department.
II. Uphold the Constitution, laws, and regulations of the United
States and of all governments therein and never be a party to their
evasion.
III. Give a full day's labor for a full day's pay; giving
earnest effort and best thought to the performance of duties.
IV. Seek to find and employ more efficient and economical ways
of getting tasks accomplished.
V. Never discriminate unfairly by the dispensing of special
favors or privileges to anyone, whether for remuneration or not; and
never accept, for himself or herself or for family members, favors
or benefits under circumstances which might be construed by
reasonable persons as influencing the performance of governmental
duties.
VI. Make no private promises of any kind binding upon the duties
of office, since a Government employee has no private word which can
be binding on public duty.
VII. Engage in no business with the Government, either directly
or indirectly, which is inconsistent with the conscientious
performance of governmental duties.
VIII. Never use any information gained confidentially in the
performance of governmental duties as a means of making private
profit.
IX. Expose corruption wherever discovered.
X. Uphold these principles, ever conscious that public office is
a public trust.
Sec. 84.46 DoD human goals.
On April 17, 1990, DoD established human goals. See Appendix C of
this part.
Sec. 84.47 Ethical values.
(a) General. Ethics are standards by which one should act based on
values. Values are core beliefs such as duty, honor, and integrity that
motivate attitudes and actions. Not all values are ethical values
(integrity is; happiness is not). Ethical values relate to what is
right and wrong and thus take precedence over non-ethical values when
making ethical decisions. DoD employees should carefully consider
ethical values when making decisions as part of official duties.
(b) Primary ethical values--(1) Honesty. Being truthful,
straightforward and candid are aspects of honesty.
(i) Truthfulness is required. Deceptions are easily uncovered and
usually are. Lies erode credibility and undermine public confidence.
Untruths told for seemingly altruistic reasons (to prevent hurt
feelings, to promote good will, etc.) are nonetheless resented by the
recipients.
(ii) Straightforwardness adds frankness to truthfulness and is
usually necessary to promote public confidence and to ensure effective,
efficient conduct of Federal Government operations. Truths that are
presented in such a way as to lead recipients to confusion,
misinterpretation or inaccurate conclusions are not productive. Such
indirect deceptions can promote ill-will and erode openness, especially
when there is an expectation of frankness.
(iii) Candor is the forthright offering of unrequested information.
It is necessary in accordance with the gravity of the situation and the
nature of the relationships. Candor is required when a reasonable
person would feel betrayed if the information were withheld. In some
circumstances, silence is dishonest, yet in other circumstances,
disclosing information would be wrong and perhaps unlawful.
(2) Integrity. Being faithful to one's convictions is part of
integrity. Following principles, acting with honor, maintaining
independent judgment and performing duties with impartiality help to
maintain integrity and avoid conflicts of interest and hypocrisy.
(3) Loyalty. There are many synonyms for loyalty: fidelity,
faithfulness, allegiance, devotion and fealty. Loyalty is the bond that
holds the nation and the Federal Government together and the balm
against dissension and conflict. It is not blind obedience or
unquestioning acceptance of the status quo. Loyalty requires careful
balancing among various interests, values and institutions in the
interest of harmony and cohesion.
(4) Accountability. DoD employees are required to accept
responsibility for their decisions and the resulting consequences. This
includes avoiding even the appearance of impropriety because
appearances affect public confidence. Accountability promotes careful,
well thought-out decision-making and limits thoughtless action.
(5) Fairness. Open-mindedness and impartiality are important
aspects of fairness. DoD employees must be committed to justice in the
performance of their official duties. Decisions must not be arbitrary,
capricious or biased. Individuals must be treated equally and with
tolerance.
(6) Caring. Compassion is an essential element of good government.
Courtesy and kindness, both to those we serve and to those we work
with, help to ensure that individuals are not treated solely as a means
to an end. Caring for others is the counterbalance against the
temptation to pursue the mission at any cost.
(7) Respect. To treat people with dignity, to honor privacy and to
allow self-determination are critical in a government of diverse
people. Lack of respect leads to a breakdown of loyalty and honesty
within a government and brings chaos to the international community.
(8) Promise keeping. No government can function for long if its
commitments are not kept. DoD employees are obligated to keep their
promises in order to promote trust and cooperation. Because of the
importance of promise keeping, it is critical that DoD employees only
make commitments that are within their authority.
(9) Responsible citizenship. It is the civil duty of every citizen,
and especially DoD employees, to exercise discretion. Public servants
are expected to engage personal judgment in the performance of official
duties within the limits of their authority so that the will of the
people is respected in accordance with democratic principals. Just must
be pursued and injustice must be challenged through accepted means.
(10) Pursuit of excellence. In public service, competence is only
the starting point. DoD employees are expected to set an example of
superior diligence and commitment. They are expected to be all they can
be and to strive beyond mediocrity.
Sec. 84.48 Ethical decisionmaking.
(a) General. Virtually every one in Federal Government service
makes job-related decisions. Some of these decisions may seem more
important than others, but all should be preceded by a consideration of
ethical ramifications. In some cases, the ethical element of decision-
making will go no further than to consciously acknowledge that there
are no significant ethical ramifications to consider. In other cases,
in-depth ethical analysis is called for in addition to application of
ethics rules. The following plan for decision-making ensures careful
review of ethical consequences when there are alternative solutions
that seem proper under existing laws and regulations. DoD employees
should consider incorporating the following plan in official
decisionmaking.
(b) Ethical decisionmaking plan.
(1) Define the problem. Proceed from a general statement of the
problem to specific statements of the decisions to be made. As you take
the following steps, such as identifying goals and naming stakeholders
new problems or needed decisions may become apparent. Be willing to add
these to your problem list as you go.
(2) Identify the goal(s). Proceed from a general statement of an
end result both long term and short term. Be prepared to add to this
list as you take the following steps. Goals are something to strive
toward. They are statements of the best possible results. The very best
is not always achieved for everyone. Many problems do not allow for
``win/win'' outcomes. Be prepared to fall somewhat short of some goals
for the sake of ethics and other considerations.
(3) List applicable law or regulations. Laws and regulations are
basic constraints within which official decisions are made. Until all
relevant laws and regulations are considered, ethical decision-making
is impossible. Although it is conceivable that an ethical decision
could violate a law or regulation, such circumstances are rare.
(4) List the ethical values at stake. Listing the ethical values at
stake can awaken you to problems and goals that you may not have
otherwise considered. It may alert you to stakeholders you may not have
recognized. Listing the values reminds you of your commitment to them
at a time when stress of the problem may cause you to forget.
(5) Name all the stakeholders: A stakeholder is anyone who is
likely to be affected by a decision. Many stakeholders will be apparent
because of the previous steps you already followed. More will occur to
you as you give the matter a few minutes of thought. Do not forget to
include yourself and the people who may depend on you for support, both
at work and at home. As you list the stakeholders, try to note the way
your decision could affect them. In other words, name what is at stake
for the stakeholder.
(6) Gather additional information. This step is frequently
overlooked. The stress from the problem urges speedy solutions.
However, hasty decisions usually create problems of their own. Take the
time to gather all necessary information. Ask questions, demand proof
when appropriate, check your assumptions.
(7) State all feasible solutions. By this time, some feasible
solutions will have presented themselves. Others may be found by
sharing the lists and information you have pulled together and ``brain
storming.'' As you state the feasible solutions, note which
stakeholders could be affected and what might be gained or lost.
(8) Eliminate unethical options. There may be solutions that seem
to resolve the problem and reach the goal but which are clearly
unethical. Remember that short term solutions are not worth sacrificing
our commitment to ethics. The long term problems of unethical solutions
will not be worth the short term advantages. Eliminate the unethical
solutions.
(9) Rank remaining solutions. Other solutions may not be clearly
unethical but may be questionable. You may have to rely on intuition or
``gut feelings'' to weed out these solutions. Put these possible
solutions at the bottom of your list. Rank the remaining solutions,
which are all ethical ones, in order of how close they bring you to
your goal and solve the problem.
(10) Commit to and implement the best ethical solution. Commitment
and implementation are vital to the ethical decision-making process.
Determining which solution is the best ethical one is a meaningless
exercise unless implementation of the ethical solution follows. If the
right decision is not implemented, the door is left wide open for
others to implement unethical solutions.
Appendix A to Part 84--Digest of Laws
Section 1. DoD-specific Statutes
(a) Synopsis of laws. DoD employees and former DoD employees are
cautioned that the descriptions of the laws and regulations in this
part should not be the only source relied upon to make decisions
regarding their activities. Although the descriptions do provide
general guidelines, the descriptions are not exhaustive and
restrictions are dependent on the specific facts in a particular
case. Accordingly, DoD employees and former DoD employees are
encouraged to discuss specific cases with a DoD component Ethics
Counselor (no attorney-client privilege) or with private counsel.
(b) 10 U.S.C. 2397a, ``Requirements Relating to Private
Employment Contacts Between Certain DoD Procurement Officials and
Defense Contractors.''
(1) This statute applies to civilian DoD employees at pay rates
of GS/GM-11 or above and to military officers in grades 0-4 or
above. If such an individual has participated in the performance of
a procurement function in connection with a DoD awarded defense
contract and is contacted by the defense contractor to whom the
defense contract was awarded regarding future employment
opportunities with the defense contractor, the individual must:
(i) Promptly report the contact to his supervisor and to the DoD
component DAEO; and
(ii) Disqualify himself from all participation in the
performance of procurement functions relating to contracts of the
defense contractor.
(2) A DoD employee is not required to report an initial contact
with a defense contractor or disqualify himself if he terminates the
contact immediately and rejects any offer of employment. The
individual must make a report and disqualify himself, however, if
subsequent contacts are made.
(c) 10 U.S.C. 2397, ``Employees or Former Employees of Defense
Contractors: Reports.'' This statute requires all former civilian
DoD employees GS/GM-13 or above, or military officers 0-4 or above,
to file DD Form 1787\1\ for a period of two-years after leaving
Federal Government service, if the former DoD employee is employed
with a defense contractor who had been awarded $10 million in
defense contracts during the year preceding employment of the former
DoD employee, and the former DoD employee receives at least $25,000
a year ($12 per hour) from the defense contractor.
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\1\Copies are available from DoD Standards of Conduct Office,
Office of General Counsel, 1600 Defense Pentagon, Washington, DC
20301-1600
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(d) 10 U.S.C. 2397b, ``Certain Former DoD Procurement Officials:
Limitations on Employment by Contractors''. This statute imposes a
two year prohibition on former civilian DoD employees GS/GM-13 and
above, and former military officers 0-4 and above, from accepting
more than $250 in payment, gift, benefit, reward, favor, or gratuity
(i.e., compensation) from defense contractors who had defense
contracts in a total amount greater than $10 million during the
fiscal year preceding the fiscal year that such compensation was
accepted, if the individual:
(1) Spent the majority of his working days during the two-year
period prior to leaving Federal Government service performing a
procurement function at a site or plant owned or operated by the
defense contractor; or
(2) Performed procurement functions relating to a major system,
on a majority of the individual's working days during the two-year
period prior to leaving Federal Government service, and in the
performance of those functions participated personally and
substantially in a manner involving decision-making
responsibilities, through contact with the defense contractor; or
(3) In the case of former DoD employees, Senior Executive
Service and above, and former military officers 0-7 and above, acted
as a primary representative of the United States during the two-year
period prior to leaving Federal Government service, in the
negotiation of a defense contract in an amount in excess of $10
million with the defense contractor, or in the negotiation of an
unresolved claim in excess of $10 million.
(e) 18 U.S.C. 281, ``Restriction on Retired Military Officers
Regarding Certain Matters Affecting the Government.'' (1) This
statute prohibits a retired military officer of the Armed Forces
from accepting any compensation, for a period of two-years after
release from active duty, for the representation of any individual
in the sale of anything to the United States through the Military
Department from which the military officer is retired.
(2) The statute also prohibits a retired military officer,
during the two-year period following the military officer's release
from active duty, from prosecuting or assisting in the prosecution
of any claim against the United States involving the Military
Department from which the military officer is retired, or involving
any subject matter with which the military officer was directly
connected while in an active duty status.
(f) 37 U.S.C. 801, ``Restriction on Payment to Certain
Officers''. This statute prohibits the Federal Government from
paying any retired officer, for a period of three years after such
military officer's name is placed on a retired list of the regular
Army, Navy, Air Force or Marine Corps, who is engaged for himself or
others in selling, or contracting or negotiating to sell, supplies
or war material to an agency of DoD, the Coast Guard, the Public
Health Service, or the National Oceanic and Atmospheric
Administration.
Section 2. Other Laws Related to Standards of Ethical Conduct
(a) OGE digest. Other ethics statutes are summarized in 5 CFR
2635.801(d) and 902.
(b) Related statues. Engaging in the following activities may
subject current and former DoD employees to criminal and/or other
penalties:
(1) Aiding, abetting, counseling, commanding, inducing, or
procuring another to commit a crime under any criminal statute (18
U.S.C. 2);
(2) Concealing or failing to report to proper authorities the
commission of a felony under any criminal statute if the individual
knew of the actual commission of the crime (18 U.S.C. 4);
(3) Conspiring with one or more persons to commit a crime under
any criminal statute or to defraud the United States, if any party
to the conspiracy does any act to further the object of the
conspiracy (18 U.S.C. 371);
(4) Misuse of a Federal Government vehicle (31 U.S.C. 1344 and
1349(b));
(5) Interference in an examination or personnel action in
connection with Federal Government employment (18 U.S.C. 1917);
(6) Conversion of Federal Government property (18 U.S.C. 641);
(7) Private use of public money (18 U.S.C. 653), embezzlement of
the money or property of another individual in the possession of a
DoD employee by reason of his Federal Government employment (18
U.S.C. 654);
(8) Certain political activities (5 U.S.C. 7321-7327, 18 U.S.C.
600-603 and 606-607 apply to civilian DoD employees, and DoD
Directive 1344.10\2\ applies to military members);
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\2\Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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(9) Failing to register under the Foreign Agents Registration
Act of 1983 and acting as an agent of a foreign principal when
required to register (18 U.S.C. 219);
(10) Soliciting contributions for gifts or giving gifts to
superiors, or accepting gifts from subordinates (5 U.S.C. 7351)
applies to civilians; regulations set out in 5 CFR 2635.301 through
2635.304 apply to both military and civilian DoD employees;
(11) Accepting, without statutory authority, any present,
emolument, office or title, or employment of any kind, from any
king, prince, or foreign state without the consent of the Congress;
this restriction applies to any person holding any office or profit
in or trust of the Federal Government, including all retired
military members and regular enlisted members (Article I, Section 9,
Clause 8, of the Constitution of the United States; exceptions to
this restriction are at 37 U.S.C. 908);
(12) Union activities of military members (10 U.S.C. 976);
(13) Violating merit system principles (5 U.S.C. 2301).
Appendix B to Part 84--Excerpts From DoD Publications
Section 1. Department of Defense Waiver in Accordance With 18
U.S.C. 208(b)
18 U.S.C. 208(b) permits agencies to grant an exemption in
writing from 18 U.S.C. 208(a) if the outside financial interest is
deemed in advance not substantial enough to affect the integrity of
Government services. Categories of financial interests may also be
made nondisqualifying by a general regulation published in the
Federal Register. Shares of a widely held, diversified mutual fund
or regulated investment company have been exempted as being too
remote or inconsequential to affect the integrity of the services of
Government personnel.
Section 2. Department of the Army Waiver in Accordance With 18
U.S.C. 208(b)
A conflict does not exist when [Department of the Army] DA
personnel hold shares of a widely held, diversified mutual fund or
regulated investment company. In accordance with the provisions of
18 U.S.C 208b(2), such holdings are exempted as being too remote or
inconsequential to affect the integrity of the services of
Government personnel.
Section 3. Department of the Navy Waiver in Accordance With 18
U.S.C. 208(b)
(b) Under 18 U.S.C. 208(b)(2), [Department of the Navy] DON
personnel need not be disqualified from participating in matters in
which they have the following financial interests:
(1) Shares of widely held and diversified mutual, money market,
trust, or similar funds offered for sale by a financial institution
or by a regulated investment company;
(2) Deposits in and loans from banks or other financial
institutions, provided they are at customary and generally available
terms and conditions; and
(3) Federal, State, municipal, or local government bonds,
regardless of the value of such interests.
(b) DON personnel who are members or officers of non-
governmental associations or organizations must avoid activities on
behalf of such groups that are incompatible with their official
Government positions. Under certain circumstances, holding a
position in a private association or organization or undertaking
activities on its behalf could conflict with one's official duties.
Holding, however, a position in a private, non-profit association or
other organization that fosters and promotes the general interests
of the naval service and which depends, in part, upon the voluntary
efforts of DON personnel acting in their private capacities for
leadership, is unlikely to affect the integrity of the services of
such personnel. Under 18 U.S.C. 208(b)(2), such individuals are not
disqualified from rendering advice or making recommendations within
their chains of command on particular matters affecting such
organizations if:
(1) They disclose their interest or affiliation to their
supervisor prior to rendering advice or making recommendations;
(2) The final decision is made by higher authority; and
(3) The individual's commander does not determine that
disqualification is otherwise required by the best interest of DON
or of the United States.
Section 4. Department of the Air Force Waiver in Accordance With 18
U.S.C. 208(b)
Non-Disqualifying Financial Interest. Air Force personnel need
not disqualify themselves if the financial holdings are in shares of
a widely held diversified mutual fund or regulated investment
company. The indirect interests in business entities of these
financial holdings come from ownership by the fund or investment
company of stocks in business entities. They are hereby exempted
from the requirements of 18 U.S.C. 208(a), according to 18 U.S.C.
208(B)(2), as too remote or inconsequential to affect the integrity
of the government officers' or employees' services.
Appendix C to Part 84--DoD Human Goals
Department of Defense, Human Goals, The Attainment of These Goals
Requires That We Strive
To attract to the Department of Defense people with ability,
dedication, and capacity for growth;
To provide opportunity for everyone, military and civilian, to
rise to as high a level of responsibility as possible, dependent
only on individual talent and diligence;
To assure that equal opportunity and safety programs are an
integral part of readiness;
To make military and civilian service in the Department of
Defense a model of equal opportunity for all regardless of race,
color, sex, religion, or national origin;
To provide equity in civilian employment for older persons and
disabled individuals and to provide a safe environment that is
accessible to and usable by them;
To hold those who do business with or receive assistance from
the Department to full compliance with its policies of equal
opportunity and safety;
To help each service member in leaving the service to readjust
to civilian life;
To provide a safe and healthful work environment, free from
recognized occupational hazards for all personnel; and
To contribute to the improvement of our society, including its
disadvantaged members, by greater utilization of our human and
physical resources while maintaining full effectiveness in the
performance of our primary mission.
Dated: March 10, 1994.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-5975 Filed 3-18-94; 8:45 am]
BILLING CODE 5000-04-M
