Slide 1 NRCS Ethics OfficeAugust 27, 2007 - AIANEA Conference NRCS Tribal Liaisons 2007 Ethics...

Slide 1 Slide 1 NRCS Ethics Office August 27, 2007 - AIANEA Conference

NRCS Tribal Liaisons

2007 Ethics Training

Audience:

Presented by the NRCS Ethics Office

Caryl J. ButcherNRCS Ethics Officer

August 27, 2007Corpus Christi, TX

Appointment of Agency Liaison

Gifts from Tribes

Slide 2

For this course . . .

Liaison refers to an NRCS Liaison to a non-Federal entity including:

non-profit corporations; for-profit corporations; partners; State or local government agencies Professional, scientific, employee, civic,

religious or educational organizations corporations created by Federal law that

have been privatized (not subject to USDA management or supervision);

NRCS Ethics Office August 27, 2007 - AIANEA Conference

Includes Tribal

Liaisons

Slide 3


Recap


“Ethics risks are much higher than in most Agencies”

“Employees become so active in supporting the partnership that they become, essentially

agents of the partners.”Yes,

that is a problem

!

Slide 4


[Emphasis added.]

“While the ethics risks for NRCS employees were rated as “High,” Chief Knight has committed to a number of actions that have the potential for reducing those risks.” “One area of particular concern has been the involvement

of NRCS employees in partnering agreements. Traditionally, there has been a risk (not just in terms of NRCS partnerships) for agency employees to become so active in supporting the partnership that they become, essentially, agents of the partners. NRCS is an agency that partners aggressively.

“Grade for “Risk Assessment” downgraded to "High" to “Moderately High.”


Slide 5


Safeguards:

Liaison Designation Cooperative Agreements

Now Required:

USDA Ethics Issuance 00-1

GM Title 110 Part 405.15(b)(1) and (d)


Slide 6


1. Employee must not work on matter in which they have an interest ....

2. Prohibition also applies if someone with whom the employee has certain personal or business relations has an interest.

3. Disqualification is required to avoid COI. Responsibility of the employee.

4. Normally impacts NRCS duties, not outside interest

5. Employee's reputation is not relevant

6. Does not apply if employee is performing clerical duties (but does apply to voucher examiner work)

Recap


Slide 7



Interests & Relationships that Trigger Disqualification Employee Spouse or minor child General partner Outside employer or prospective employer Non-Federal organization in which employee is an

officer, director, trustee, or general partner

Person with whom employee has or seeks a business, contractual or other financial relationship

Member of household or close relative Employer of spouse, parent or dependent child Non-Fed employer within past 1 year; Non-Fed organizations in which the employee is active; Person or Org for whom the spouse, parent or

dependent child is an employee, officer, director, consultant, contractor, agent, etc

Imputed Interests

CoveredRelationships

Slide 8


Affects Liaisons

Statutory authority affects what can be done using official time and other Government resources

Ethics rules affect what employee may be allowed to do officially

Employee's personal activities affect whether he/she can be the NRCS Liaison


Slide 9



Ethics Concerns Include: Appearance of Federal involvement, sanction and/or

endorsement

Conflicting financial interests (fiduciaries)

Loss of impartiality (active members)

Fundraising

Political activity

Lobbying

Representation

Affects Liaisons

Slide 10


Affects Liaisons


Employee is considered an "active" participant in an outside organization if participating in such roles as:

Fiduciary (officer, etc.)

Agent

Attorney

Contractor

Spokesperson

Committee chair

Advisor

Slide 11


Reoccurring questions


Questions arise about certain special statutory exemptions of interest to Tribal Liaisons

COI exemption related to Indian birthright

For present and former Government officials who represent the interests of Indian tribes

Foreign gift rules

Gifts from Tribes

Slide 12


Reoccurring questions


Questions arise about certain special statutory exemptions of interest to Tribal Liaisons

COI exemption related to Indian birthright Does not exempt employee from following the same rules as for all other employees based on seeking non-Federal employment The exemption is at 18 USC 208(b). (b)(4) contains an exemption for financial interests arising solely out of birthrights in an Indian tribe. OGE has stated, "We know of no instance where employment with an Indian tribe would be a birthright and consequently do not think this exemption authority would be applicable. Therefore, an executive branch employee would have had to utilize or qualify under one of the other authorities in subsection (b) prior to the time he or she took official action otherwise prohibited by section 208(a)."

Slide 13


Slide 13

Employees must not communicate with a Federal Agency on behalf of another person or non-Federal organization on a matter in which the Government has an interest

Simplified…

[18 USC 203 & 205]

Prohibited Representation

Can assist “behind-the-scenes” provided no compensation.

Not officially

Not personally


" "Representation" includes oral and written communications, and mere presence that is intended to influence a Federal official."

Slide 14


Slide 14

Prohibited Representation by current employees.

• Not-for-profit union, cooperative, or professional or recreational association provided a majority of the members are current employees**

• Employee grievance or complaint

• IPA or uncompensated personal representation provided notification requirement is satisfied.

Limited Exceptions* . . . provided no compensation

*Must get specific guidance.

** No exceptions for current employees when dealing with contracts, agreements, grants, etc. that would provide Federal funds to these organizations.


Slide 15


Slide 15


• Intent of the exception regarding representation of Tribes (provided the notification requirement is met) was to allow an employee on an I.P.A. [Intergovernmental Personnel Act] assignment to represent a Tribe, and also to allow former employees to represent a Tribe the types of contracts the law was trying to promote. But, the exception is even broader than that.

Limited Exception for Representation of Tribes


Exception can only apply to current employee provided no compensation.

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Slide 16

Prohibited RepresentationLimited Exception for Representation of Tribes

Notice requirement.

• Must be satisfied in advance.

• The employee must advise the head of the agency (they seek to represent the Tribe to) of any "personal and substantial" involvement he/she may have had in the matter while an employee of the Federal Government.

• If the employee has had no such involvement in the matter, no notice is required.

See OGE 82 x 11(Letter to a Government Official dated 6/30/1982)


Slide 17


Slide 17

Examples of Permissible “behind the scenes” assistance


Official –

RC&D Coordinator assists the Council to write a proposal the Council will submit for an EPA grant. Coordinator must not present the proposal, or be the representative or POC.

Personal –

Sitting at the kitchen table, an employee advises a professional organization seeking a meeting, agreement, conference support, etc. who to contact at NRCS. (without compensation.)


Slide 18


Slide 18 NRCS Ethics Office August 27, 2007 - AIANEA Conference

Except: 1. SARE Advisory Councils

2. Rural Development Councils

Misuse of Position

No favoritismEmployee must not ask another employee to: Look out for the application of a friend or

family member; Keep them informed; Etc.

No endorsement

Official time is not for personal business

See 5 CFR **** Subpart G

Slide 19


Personal v. official business:

Board membership* Committee leadership* Fundraising Political Activity Lobbying Internal business of the organization*

Slide 19

*Except Board Membership, Committee leadership & internal business of:1) Rural Development Councils, and 2) SARE Advisory Committees


Participation with Non-Federal Organizations

Slide 20


Required to be NRCS Liaison to non-Federal Issued by the STC* Protects NRCS & Liaison

*STC, RAC or Division Directors and above. Do not re-delegate.


Liaisons must: Avoid conflicting interests Be clear about lines of loyalty Avoid prohibited activity


[See Handouts]

Liaisons may use official time, etc. for certain activities

Slide 21


Requirement for documentation using the Assignment of Liaisons template is NRCS and USDA policy:

i. NRCS National Instruction Title 110 Part 301 – Appointment of Agency Liaison (May 2005);

ii. NRCS GM Title 110 Part 405.15(b)(1) and (d); and

iii. USDA Ethics Issuance Number 00-1, Participation in Non-Federal Organizations, Documentation of Official Participation (issued May 3, 2001 and updated September 28, 2004).



Slide 22


Partner For-profit or Non-profit University or Other non-Federal organization Agreement or MOU IPA Etc.

There are restrictions on:

Who can be the NRCS Liaison

What an NRCS Liaison can do


Slide 23


“During your service as Agency Liaison, you are, at all times, to act as a representative solely of the interests of the Agency and the United States; you shall not (1) serve as an officer, board member, or employee, or (2) act as agent or representative, of the Association. Your service as Agency Liaison is to conform to the requirements of 18 U.S.C. 201-209 and to the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. part 2635. …”

Communicates Restrictions and Where Lines of Loyalty Must Run

Liaisons must: Avoid conflicting interests Be clear about lines of loyal Avoid prohibited activity


[Emphasis added.]

Slide 24


The NRCS Liaison must not:

Vote on matters before the Association Board of Directors*;

Serve on committees or task groups unrelated to the “purpose statement” for your service as Agency Liaison in the Liaison Assignment letter.

Participate in issues related solely to the business or internal interests of the Association (e.g., finances, fundraising, membership, etc.);

* Except for SARE and Rural Development Councils


Slide 25


The NRCS Liaison must not: (continued)

Engage in lobbying efforts or representation of the Association’s interests before the Federal Government

[This does not preclude presenting to the Agency the positions or views of the Association on matters directly related to the interests of the Agency being served through your service as Agency Liaison];

Actively participate in Association activities in your personal capacity unless you receive written ethics clearance to do so

[Does not preclude membership; however, refrain from active participation (e.g., fundraising, holding office or board membership, employment, committee activities, lobbying, etc.)].

Supervise their employees*


* Except for Rural Development Councils

Slide 26


1. Required in all MOUs and Agreements where money or personnel are exchanged.

2. A Liaison Assignment letter must also be issued to any employee named in an Agreement or MOU

Relationship to Liaison Issue:

Required for Ethics Clearance

Ethics Provision for Agreements


Slide 27


Example: Employees of NRCS shall participate in efforts under this agreement solely as representatives of the United States. To this end, they shall not participate as directors, officers, employees, or otherwise serve or hold themselves out as representatives of, NARC&DC, or any member RC&DCs. They also shall not assist NARC&DC, or any member RC&DCs with efforts to lobby Congress, or to raise money through fundraising efforts. Further, NRCS employees shall report to their immediate supervisor any negotiations with NARC&DC, or any member RC&DC, concerning future employment and shall refrain from participation in efforts regarding such party until approved by the agency.

Cooperative Agreement Provision


Slide 28


You may not:

Can you be the Liaison if: an officer, board member*, trustee?

committee or subcommittee chairperson?

spouse of an employee or officer?

parent of employee?

general partner of an officer or employee?

have an easement or other contract?

member**

Work for NRCS on a particular matter involving a specific party if you have an outside interest …

Therefore

N

N

N

N

N

N

Y

… unless written waiver from DCH MGT

• * Except for SARE and Rural Development Councils.•** Except member of a conservation district or association.


Exercise

Slide 29


When Liaison Must Disqualify

Management Options Appoint different employee to serve as Liaison

If employee elects to divest:

Allow employee to continue as Liaison after divesture

Or, continue disqualification up to one-year.

If the appointing official thinks disqualification is not required or should be waived, request a determination from the DCH Mgt.

Substantial Conflict Determination, as appropriate

*See 5 CFR 2635.403(b)NRCS Ethics Office August 27, 2007 - AIANEA Conference

Slide 30


For Liaison to a non-Federal Entity

Protects NRCS

Assists the Liaison to understand key do’s and don’ts

Issued by a senior official*

STC

RAC

NHQ Div Dir. or above

Liaison Designation Agreement*

Requirements to issue are in: USDA EI 00-1, Participation in Non-Federal Organizations NRCS NI Title 110 Part 301 NRCS GM Title 110, Part 405.15(d) NRCS Grants and Agreements Handbook, 600.26 C (1) (vii) NRCS Contribution Agreements Handbook, 610.24 C (1) (iv)

Slide 31


Official business does not include:

Lobbying or Political Activity Fundraising Prohibited representation Misuse of position Voting on matters before the Organization Internal business of the organization

membership finances registration fees

Liaisons must:

• Avoid conflicting interests

• Be clear about lines of loyal

• Not be on committees unrelated to purpose of Agreement

• Avoid prohibited activity

Slide 32


What should you do?

1. The STC asks you to be the Black Emphasis SEPM:

a) NOPBNRCSE Officer?

b) NOPBNRCSE Committee Chair?

c) NOPBNRCSE Officer in State Chapter?

d) Organizing a NOPBNRCSE fundraiser?

Answer:

Disqualify.

Slide 33


What should you do?

1. You are the Indian/Alaska Native Special Emphasis Program Manager.

a) You win as a write in candidate to be an AIANEA Officer?

b) You are asked to chair an AIANEA Committee?

Answer:

Disqualify (Stop working matters affecting the interests of AIANEA or a majority of its members); and

Seek specific ethics guidance from the Ethics Officer, Washington, DC.

Slide 34

2007 Ethics TrainingWhat should you do?

2. You are the Tribal Liaison. This has been a good assignment for you and your family but your spouse has been getting a bit bored. When you returned home from a recent Conference you learned your spouse got a job with the Tribal District.

Answer:

Disqualify. You can not work on matters likely to affect the Tribes interest. Either:

Spouse voluntarily resigns from the job with the Tribe.

STC reassigns you to another position.

DCH MGT instructs you to have your spouse resign.

Slide 35


What should you do?

3. You have been a member of SWCS for years. You used to be more active, even serving as Chair of the Conference Committee in past years. In recent years, however, you have been willing to serve on a committee but not as committee or subcommittee chairperson. The STC asks you to work with SWCS to coordinate matters dealing with the Agency’s involvement with their upcoming training conference, including the list of employees to be approved to attend.

Answer:

You can accept the assignment. Tell STC which Committee you are on. If it raises a concern about your service as Liaison, STC will not appoint you if you remain a committee member.

Slide 36


What should you do?

5. The STC asks you to be the Tribal Liaison. You are:

a) AIANEA Officer?

Answer:

Disqualify.

Slide 37


What should you do?

4. You are the Tribal Liaison. The Tribe asks you to serve on the Tribe's Executive Committee.

a) Accept, no problem?

b) Accept if the STC says it is okay?

c) Mention it to the Chief and accept if he congratulates you?

d) Ask the American Indian/Alaska Native Emphasis Program Manager and State Ethics Advisor - okay if they say so?

e) Ask the National Civil Rights Committee if you can do it?

f) Request an ethics waiver?

g) Disqualify until you say "No"?

Answer: Disqualify until you say 'No'.

Slide 38


Whether Tribes have special status.

That is not an issue when it comes to Ethics.

Issues are Tribal Liaisons and are about Federal employees, not about Tribes.

Tribes are not part of the U.S. Federal Government. Therefore, the policy provides for NRCS Tribal Liaisons to be issued the form along with other NRCS liaisons to non-Federal entities.

Tribes are not Foreign Governments for purpose of the foreign gift rules.

Issues related to gifts from Tribes should be referred to the NRCS Ethics Office for handling under the Secretary's Gift Authority.

Reoccurring issues


Slide 39

2007 Ethics TrainingSelf-Test

Can an employee be NRCS liaison to an organization if: Officer or member of the board of directors? Committee or subcommittee chairperson? Leading an activity for the organization? Member? No*

NoNoYes**

* Except for SARE and Rural Development Councils** Except if member of Conservation District or association.

Employee’s spouse (or parent) is Board member? Consultant? Employee?

No. No. No.

Can NRCS funds be used to attend aBoard meeting? For a Board member? For a Liaison? No.

Yes.

Slide 40


Agency Gift Acceptance Requires Ethics Approval (DCH MGT) See DR 5200-3

Slide 41


Sign the sign-in sheet

Satisfies Filer's CY 2007 Training Requirement

Slide 41 NRCS Ethics Office August 27, 2007 - AIANEA Conference

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