AN ETHICS GUIDE FOR CONSULTANTS AND ADVISORY COMMITTEE MEMBERS
AT THE DEPARTMENT OF DEFENSE
At the Department of Defense (DoD), we are fortunate to have many experts and industry leaders from outside of the Government to provide advice to the Secretary as consultants or members of an advisory committee. Because many of you retain extensive links to Defense industries or other organizations related to national security, it is important that you understand potential conflicts of interest that may arise from your appointment to this Department. Recognizing your demanding schedules, this guidance only briefly summarizes those statutes and regulations most likely to affect you, and does not describe each element or exception.
1. Getting Advice
If you believe your situation may be affected by any of the guidance below, please contact the Standards of Conduct Office (SOCO) of the Office of the DoD General Counsel at (703) 695-3422, fax us at (703) 697-1640, or email us at
SOCO@dodgc.osd.mil. We also have considerable guidance, including financial disclosure reporting, on our website at:
http://www.defenselink.mil/dodgc/defense_ethics.
SOCO is available to provide advice on any ethics question you may have, many of which may be answered in a telephone call or by email. Good faith reliance on the ethics advice from an ethics official will, in most cases, protect you from adverse administrative action and dissuade the Department of Justice from criminal prosecution.
2. What Does It Mean to be a Special Government Employee?
In the Department, almost all consultants and all members of advisory committees are appointed as Special Government Employees (SGEs). This means that upon appointment, you assume the responsibilities, obligations, and restrictions that are part of public service. Because SGEs are not full-time employees, several of these restrictions apply to you only in limited circumstances.
Service as an SGE may be compensated or uncompensated, but it is always temporary. In fact, you should not serve for more than 130 days during any period of 365 consecutive days. This 130-day period is an aggregate of all your Federal service, not just your appointment at the Department of Defense. For example, it includes days you have served as an SGE in other Federal agencies or departments, and even days as a military reservist. If you have served in other Federal agencies or departments within the last year, please advise the appropriate committee manager, executive director, or Designated Federal Official (DFO), so that you do not exceed the 130-day period of appointment.
When computing days that you work as an SGE, count each day in which you perform services, even if it does not amount to an entire workday. Brief non-substantive interactions, such as emails or phone calls to set up a meeting, do not have to be counted as a day of duty.
3. Financial Disclosure
You are required to file either a public or confidential financial disclosure report (SF 278 or OGE Form 450) when you are first appointed, and annually thereafter if you are reappointed. As a member of an advisory committee, you may also be required to update the report before each meeting throughout your term of appointment. The purpose of financial disclosure is to protect you from inadvertently violating any of the criminal conflict of interest statutes, discussed below, and to ensure the public and this Department that your advice is free from any real or perceived conflict of interest. The supervisor or DFO, and a DoD ethics official review the reported information, which is not releasable to the public if it is a confidential financial disclosure report, except as authorized by the Privacy Act.
4. Criminal Conflict of Interest Statutes
You are required to comply with various criminal statutes while you are an SGE. These statutes are codified at 18 U.S.C. 201, 203, 205, 207, and 208, and are divided into the following subject areas: (1) financial conflicts of interest; (2) representational activities; and (3) limits on representation after you leave the Government.
Financial Conflicts of Interest
The main financial conflict of interest statute, 18 U.S.C. 208(a), prohibits you from participating personally and substantially in any particular matter that affects your financial interests, as well as the financial interests of your spouse, minor child, general partner, an organization in which you serve as an officer, director, trustee, general partner, or employee, or an organization with which you are negotiating or with which you have an arrangement for prospective employment. The primary reason you are required to disclose your financial interests is to alert the supervisor or DFO, and agency ethics official of any potential conflict of interest prior to your participation in a particular matter involving an entity in which you have a financial interest.
For example, you could have a conflict of interest if you were to participate in an advisory committee meeting that reviews whether a certain weapons program should be continued and:
? you own stock in the prime or subcontractor that supplies the weapon;
? your spouse owns stock in, or works for, the contractor(s);
? you are a consultant to, or employee of, the contractor(s);
? you are a member of the board of directors of the contractor(s), or
? you have a contract with the contractor(s) to provide supplies, parts, or services.
Generally, DoD advisory committees address broad policy matters, not particular matters. This greatly reduces the potential for conflicts of interest. In certain instances, however, the committees may address matters that focus on the interests of specific persons or a discrete and identifiable class of persons. For example, an advisory committee may recommend that the Department purchase more unmanned aerial vehicles (UAVs). Since only two or three companies manufacture UAVs, the committee?s review and recommendation would constitute a particular matter. If any SGEs had financial interests in these companies, they would have a conflict of interest if they participated in the advisory committee discussion.
If you become aware of such a financial conflict of interest, you must disqualify yourself from acting in a governmental capacity in the matter and notify the DFO, committee manager, or supervisor. You should also consult your ethics official, since there are several regulatory exemptions that permit you to have certain financial interests that cause a conflict of interest. For example, employees are permitted to participate in particular matters affecting companies that they own as part of a diversified mutual trust. Employees may also act in particular matters affecting companies in which the aggregate value of the employee?s holdings does not exceed $15,000. Since there are other exemptions, you should contact your ethics official.
The statute and implementing Federal regulations provide for waivers that may allow you to work on matters in which you have a financial conflict of interest. Such waivers must be obtained before you participate in the matter. Since waivers are complex, you should seek advice from your DoD ethics official.
Another Federal statute, 18 U.S.C. 201, commonly known as the bribery statute, prohibits Federal employees, including SGEs, from seeking, accepting, or agreeing to receive anything of value in return for being influenced in the performance of an official act.
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