On February 3, 1993, the Standards of Ethical Conduct for Employees of the Executive Branch, issued by the Office of Government Ethics for codification at 5 C.F.R. Part 2635, replaced the many individual agency standard of conduct regulations with a uniform set of standards applicable to all employees of the executive branch.
Because they are intended to answer questions about the ethical conduct of more than a million individuals employed by more than 100 different Federal agencies, the Standards of Ethical Conduct are detailed. They contain many examples and will readily answer most ethical questions employees will have. This summary is designed to give employees enough familiarity with the contents of the regulations to recognize ethical issues when they arise and to assist in looking up relevant provisions in the regulations.
Because the summary provides only a shorthand reference to lengthier provisions in the regulations, an employee must refer to the regulation itself in resolving ethical issues that actually arise or may seek the advice of an agency ethics official.
Synopsis of Subpart A - General Provisions
The Principles of Ethical Conduct. The following Principles of Ethical Conduct apply to all employees of the executive branch and many form the basis for specific standards set forth in the regulations.
- Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
- Employees shall not hold financial interests that conflict with the conscientious performance of duty.
- Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
- An employee shall not, except pursuant to the exceptions in subpart B, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
- Employees shall put forth honest effort in the performance of their duties.
- Employees shall make no unauthorized commitments or promises of any kind purporting to bind the Government.
- Employees shall not use public office for private gain.
- Employees shall act impartially and not give preferential treatment to any private organization or individual.
- Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
- Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, where there is a conflict with official Government duties and responsibilities.
- Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
- Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those such as Federal, state and local taxes, that are imposed by law.
- Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
- Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or these Standards of Ethical Conduct.
Basic Concepts. Employees shall apply the principles stated above in weighing the propriety of conduct not otherwise addressed in the regulations.
- Employees shall judge whether circumstances will violate the appearance principle, the last principle set forth above, from the perspective of a reasonable person with knowledge of the relevant facts.
- There are special rules for determining which standards apply to employees detailed to other agencies, to other branches of the Federal Government, to state or local governments or to international organizations.
- A violation of the regulatory standards may be cause for corrective action or for disciplinary action against an employee. There are criminal penalties for violations of criminal statutes referred to in the regulations.
- Employees are encouraged to seek the advice of agency ethics officials. Disciplinary action for violation of regulatory standards will not be taken against an employee who relies on such advise.
Definitions. Terms used throughout the Standards of Ethical Conduct, such as "agency designee" and "special Government employee" are defined in subpart A. Terms of more limited applicability are defined in the subparts or sections to which they apply.
Synopsis of Subpart B - Gifts from Outside Sources
Basic Prohibition on Gifts from Outside Sources.
An employee shall not solicit or accept a gift given because of his official position or from a prohibited source. A prohibited source is defined as any person, including any organization more than half of whose members are persons:
- Seeking official action by the employee's agency;
- Doing or seeking to do business with the employee's agency;
- Regulated by the employee's agency; or
- Substantially affected by the performance of the employee's duties.
Definition of a Gift. The term "gift" includes almost anything of monetary value. However, it does not include:
- Coffee, donuts and similar modest items of food and refreshments when offered other than as part of a meal;
- Greeting cards and most plaques, certificates and trophies;
- Prizes in contests open to the public;
- Commercial discounts available to the general public or to all Government employees;
- Commercial loans, pensions and similar benefits;
- Anything paid for by the Government, secured by the Government under Government contract or accepted by the Government in accordance with a statute; or
- Anything for which the employee pays market value.
Exceptions. Subject to the limitations noted below, there are exceptions which will permit an employee to accept:
- Gifts when clearly motivated by a family relationship or personal friendship;
- Commercial discounts and similar benefits offered to groups in which membership is not related to Government employment or, if membership is related to Government employment, where the same offer is broadly available to the public through similar groups;
- Certain awards and honorary degrees;
- Gifts resulting from the outside business activities of employees and their spouses;
- Travel and entertainment in connection with employment discussions;
- Certain gifts from political organizations;
- Free attendance provided by the sponsor of an event for the day on which an employee is speaking or presenting information at the event;
- Free attendance provided by the sponsor of a widely attended gathering of mutual interest to a number of parties where the necessary determination of agency interest has been made;
- Invitations to certain social events extended by persons who are not prohibited sources, provided no one is charged a fee to attend the event; and
- Certain gifts of food and entertainment in foreign areas.
Limitations on Use of Exceptions. An employee may not use any of the exceptions noted above to solicit or coerce the offering of a gift or to accept gifts:
- For being influenced in the performance of official duties;
- In violation of any statute; or
- So frequently as to appear to be using public office for private gain.
Disposition of Gifts Received. When an employee cannot accept a gift, the employee should pay the donor its market value. If the gift is a tangible item, the employee may instead return the gift. Subject to approval, however, perishable items may be donated to a charity, destroyed or shared within the office.
Synopsis of Subpart C - Gifts Between Employees
Basic Prohibition on Gifts Between Employees.
An employee shall not:
- Give or solicit for a gift to an official superior; or
- Accept a gift from a lower-paid employee, unless the donor and recipient are personal friends who are not in a superior-subordinate relationship.
Definition of a Gift. The term "gift" has the same meaning as in subpart B. However, carpooling and similar arrangements are excluded where there is a proportionate sharing of the cost and effort involved.
Definition of an Official Superior. The term "official superior" includes anyone whose official responsibilities involve directing or evaluating the performance of the employee's official duties or those of any other official superior of the employee. The term is not limited to immediate supervisors, but applies to officials up the supervisory chain.
Exceptions. Subject to a limitation on using any exception to coerce a gift from a subordinate, there are exceptions that:
- On an occasional basis, including birthdays and other occasions when gifts are traditionally exchanged, permit giving and accepting:
- Items other than cash aggregating $10 or less per occasion;
- Food and refreshments shared in the office;
- Personal hospitality at a residence; and
- Leave sharing under Office of Personnel Management regulations so long as leave is not donated to an immediate supervisor.
- On infrequent occasions of personal significance, such as marriage, and on occasions that terminate the superior-subordinate relationship, such as retirement, permit giving and accepting gifts appropriate to the occasion; and
- Permit voluntary contributions of nominal amounts to be made or solicited for gifts of food and refreshments to be shared in the office or for group gifts on occasions such as marriage or retirement described in the preceding paragraph.
Synopsis of Subpart D - Conflicting Financial Interests
Disqualifying Financial Interests. Under the criminal conflict of interest statute, 18 U.S.C. § 208, an employee is prohibited from participating in an official capacity in any particular matter in which, to her knowledge, the employee or certain other persons have a financial interest, if the particular matter will have a direct and predictable effect on her own or that person's financial interests.
Applicability. In addition to matters that affect her own financial interests, this prohibition applies to particular matters that affect the financial interests of:
- The employee's spouse, minor child or general partner;
- Any person for whom the employee serves as officer, director, trustee, general partner or employee; and
- A person with whom the employee is negotiating for or has an arrangement concerning future employment. However, this aspect of the statute is addressed more specifically in subpart F.
Disqualification. Disqualification can be accomplished simply by not participating in the matter. Although an employee should notify the person responsible for her assignment of the need to disqualify, a written disqualification statement is necessary only if required by an ethics agreement or requested by an agency ethics official or the person responsible for the employee's assignment.
Solutions Other Than Disqualification. Disqualification is not required if the financial interest is the subject of one of the statutory waivers described in subpart D or the regulatory exemptions in 5 C.F.R. Part 2640. An employee may also divest of the financial interest and may be eligible for special tax treatment.
Synopsis of Subpart E - Impartiality in Performing Official Duties
Consideration of Certain Personal and Business Relationships. Even though his disqualification may not be required under subpart D, an employee should not participate in an official capacity in certain matters without first obtaining specific authorization if persons with knowledge of the relevant facts would question his impartiality in those matters.
Matters Covered. The matters covered include a particular matter involving specific parties if the employee knows that it is likely to affect the financial interests of a member of his household or that one of the following persons is a party or represents a party in the matter:
- A person with whom the employee has or seeks a business or other financial relationship;
- A member of the employee's household or a relative with whom the employee has a close personal relationship;
- A person the employee's spouse, parent or child serves or seeks to serve as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
- A person the employee has, in the past year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
- An organization, other than a political party, in which the employee is an active participant.
Disqualification. Disqualification can be accomplished in the same manner as when required under subpart D for disqualifying financial interests.
Authorization to Participate. An agency designee may authorize, in writing, an employee to participate in a matter based on a determination that the Government's interest in the employee's participation outweighs the concern that a reasonable person would question the integrity of agency programs and operations. The authorization permitted by subpart E cannot be given, however, if the employee's disqualification is also required by subpart D.
Extraordinary Payments from Former Employers. An employee is disqualified for two years from participating in any particular matter in which her former employer is a party or represents a party if, prior to entering Federal service, that employer gave her an extraordinary payment in excess of $10,000.
- A routine severance or other payment made under an established employee benefits plan would not be an extraordinary payment.
- There is authority to waive all or part of this disqualification requirement.
Synopsis of Subpart F - Seeking Other Employment
Disqualification While Seeking Employment. An employee is prohibited from participating in an official capacity in any particular matter that, to her knowledge, has a direct and predictable effect on the financial interest of a person with whom he is seeking employment. For this purpose, "employment" means any form of non-Federal employment or business relationship involving the provision of personal services.
Definition of Seeking Employment. The term "seeking employment" includes bilateral negotiations with another, mutually conducted with a view to reaching an agreement regarding possible employment. It also includes conduct short of negotiations, such as sending an unsolicited resume or other employment proposal. It can include employment contacts by or through an agent or intermediary. However, it does not include simply:
- Rejecting an unsolicited employment overture;
- Requesting a job application; or
- Sending an unsolicited resume or other employment proposal to a person affected by performance of the employee's duties only as a member or an industry or other discrete class.
Having once begun, an employee generally continues to be seeking employment until she or the prospective employer rejects the possibility of employment and all discussions end. However, an employee is no longer seeking employment with the recipient of her unsolicited resume or other employment proposal after two months have passed with no indication of interest in employment discussions from the prospective employer.
Disqualification. Disqualification can be accomplished in the same manner as when required under subpart D for disqualifying financial interests.
Solutions Other Than Disqualification. If the employee's conduct in seeking employment amounts to negotiations, the employee may participate in the matter affecting her prospective employer only if granted an individual waiver described in subpart D. If her conduct falls short of negotiations, the employee may be authorized to participate using the procedures set forth in subpart E.
Disqualification Based on an Employment
Arrangement. An employee may not participate in a particular matter that, to her knowledge, has a direct and predictable effect on the financial interest of anyone with whom she has an arrangement concerning future employment. In this case, an employee may be able to participate in a particular matter affecting a prospective employer only if she has received an individual waiver described in subpart D.
Synopsis of Subpart G - Misuse of Position
Use of Public Office for Private Gain. An employee shall not use his public office for his own private gain or for the private gain of friends, relatives or persons with whom he is affiliated in a non-governmental capacity, or for the endorsement of any product, service or enterprise. In particular, an employee shall not use his Government position, title or authority:
- In a manner intended to induce another to provide any benefit to himself or to friends, relatives or affiliated persons;
- In a manner that could be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another, or
- To endorse any product, service or enterprise except in furtherance of statutory authority to do so.
Use of Nonpublic Information. An employee shall not engage in financial transactions using nonpublic information, or allow the improper use of nonpublic information to further his own private interest or those of another. Information that is "nonpublic" includes information the employee knows or reasonably should know:
- Is routinely exempt from disclosure under the Freedom of Information Act or protected from disclosure by statute, Executive Order or regulation;
- Is designated as confidential by an agency; or
- Has not actually been disseminated to the general public and is not authorized to be made available to the public on request.
Use of Government Property. Generally, an employee should be mindful of his responsibility to make an honest effort to use government property for official business. However, Department of Justice employees are authorized to make personal use of most office equipment and library facilities where the cost to the Government is negligible.
Use of Official Time. An employee shall use official time in an honest effort to perform official duties. And, an employee shall not encourage, direct, coerce or request a subordinate to use official time to perform activities other than those required in the performance of official duties.
Synopsis of Subpart H - Outside Activities
Generally. In addition to the standards set forth in subpart H, an employee's outside employment and other activities must comply with all ethical requirements set forth in the subparts A through G of the regulations, including the requirement to avoid even the appearance of using public office for private gain.
Restrictions Imposed by Other Laws. An employee's outside employment and other activities must comply with applicable laws other than the Standards of Ethical Conduct. Several are listed in subparts H and I. Outside activities frequently raise questions about the following:
- The restrictions in 18 U.S.C. §§ 203 and 205 on employees engaging in representational activities before the United States;
- The constitutional prohibition against accepting any office, title or compensation from a foreign government; and
- The Hatch Act, which governs the political activities of employees.
Conflicting Outside Activities. An employee shall not engage in outside employment or activities prohibited by statute or by supplemental agency regulation, or that would materially impair the ability to perform his official duties by requiring his disqualification under subpart D or E.
Prior Approval for Outside Activities. Employees are required to obtain written approval for outside employment and activities that involve the practice of law or matters that relate to the responsibilities of the employee's component.
Restrictions on Outside Activities. Employees may not engage in any outside activity or employment that involves:
- The practice of law, unless uncompensated and in the nature of community service, or unless it is on behalf of himself, his parents, spouse or minor children;
- Any criminal or habeas corpus matter, whether Federal, state or local; or
- Litigation, investigations, grants or other matters in which the Department of Justice is or represents a party, witness, litigant, investigator or grant-maker.
The restrictions stated above may only be waived by the Deputy Attorney General.
Restrictions on Receipt of Compensation. With certain exceptions, Presidential appointees to full-time, non-career positions shall not receive any outside earned income for outside employment or other outside activities performed during that appointment. Higher-level non-career employees may not, in any calendar year, receive outside earned income which exceeds 15 percent of the rate of pay for Level II of the Executive Schedule. These non-career employees also are prohibited from receiving any compensation for teaching without prior approval, serving as officers or board members of outside entities, practicing certain professions or being affiliated with firms or other entities that practice those professions.
Service as an Expert Witness. In the absence of specific authorization, an employee shall not represent anyone other than the United States as an expert witness in any proceeding before a court or agency of the United States if the United States is a party or has a direct and substantial interest. The restriction applies even though no compensation is received. A less restrictive standard applies to special Government employees.
Teaching, Speaking and Writing. An employee shall not receive compensation for teaching, speaking or writing that is related to her official duties.
Definition of Related to Duties. Teaching, speaking or writing is "related to an employee's official duties" if:
- The activity is undertaken as part of her official duties;
- The invitation to engage in the activity was extended primarily because of her official position;
- The invitation or the offer of compensation was extended by a person whose interests may be affected by the employee's official duties;
- The information draws substantially on nonpublic information; or
- For most employees, the subject of the teaching, speaking or writing deals in significant part with any matter presently assigned to the employee, any matter to which the employee had been assigned in the previous one-year period, or to any ongoing or announced policy, program or operation of her agency. Certain non-career employees are subject to additional restrictions and special Government employees are subject to less restrictive standards.
Exception for Teaching. An employee may receive compensation for teaching certain courses, notwithstanding that the subject matter is related to his official duties and notwithstanding that he may have been offered the opportunity because of his official position.
Fundraising. Provided that he does not otherwise violate the Standards of Ethical Conduct, and an employee may engage in charitable fundraising activities in a personal capacity if he does not use his official title, position or authority to further that effort or personally solicit funds or other support from subordinates or from anyone known to him to be a prohibited source for purposes of the gift restrictions in subpart B.
Just Financial Obligations. Employees shall satisfy in good faith all just financial obligations.