Keeping our Eyes on Ethics

Ethics

     As part of the Naval Supply Systems Command Office of Counsel’s continuing series of “Eye on Ethics”, our office recently addressed participation in military associations such as the Supply Corps Foundation.  We received several good questions which are addressed in this column.

     Question … May a military member accept a gift of travel from a Non-Federal Entity (NFE) in which the member holds a position?  For example, if I am President of a local chapter of the Supply Corps Foundation, may the Foundation pay for my travel to an annual Board of Director’s Meeting?

     BLUF … Yes, in some circumstances.  In this instance, you might be able to accept the travel under one of the gift exceptions that applies for “outside employment.”  Consult with Counsel prior to accepting any gift of travel.

     Discussion … A gift may not be accepted from a prohibited source unless an exception applies.  For example, “gifts based on outside business or employment relationships” may be accepted if “it is clear” the gift has not been offered or enhanced because of the military member’s official status.  Thus, your “employment” as an officer of the Supply Corps Foundation might provide a basis to accept the travel, but this determination can be complicated and should only be done after consulting with your command Ethics Counselor.  Also, don’t forget that if you do accept a gift, it must be reported on your OGE-278 or OGE-450.

     Question … How does someone know that they are not being offered an NFE position because of their official status?

     BLUF … Inquire about how the selection was made, and consult with Counsel before accepting.  One general area of concern relates to whether officers were selected by a superior officer or elected from the overall membership.

     Discussion … An NFE may select their officers in any way it chooses.  Usually, the selection procedure is set forth in the NFE’s bylaws.  The burden is upon Government personnel to ensure that they do not improperly accept a position offered because of their official position or status.  The totality of the circumstances has to be considered.  For example, a general election is usually neutral as to official position or status.  But, if only Captains, or only Lieutenants, or only Executive Officers, etc. …, are eligible to run for election, the selection is based upon official status because the eligibility is based upon official status.

     Question … Are there any reporting requirements that apply when someone serves in a management position of an NFE?

     BLUF … Both SF-278 and OGE-450 filers have a duty to report outside positions in their annual filing.

     Discussion … In general, financial disclosure reports shall identify all positions held at any time by the filer during the reporting period, as an officer, director, trustee, general partner, proprietor, representative, executor, employee, or consultant of any corporation, company, firm, partnership, trust, or other business enterprise, any nonprofit organization, any labor organization, or any educational or other institution other than the United States.  Exceptions to this general rule are limited to positions held in any religious, social, fraternal, or political entity; and positions solely of an honorary nature, such as those with an emeritus designation.

     Question … If a Commanding Officer is also an NFE officer, or has been an active participant in an NFE during the previous 12 months, who may approve requests from that same NFE for support from the command?

     BLUF … The request must be forwarded through the chain of command to a disinterested superior.

     Discussion … In such cases, the interests of the NFE are attributed to the Commanding Officer who must recuse himself and refer the request to a superior in the Chain of Command, or another independent Department of Defense (DoD) authority who is not an officer, director, partner, employee, or active participant of the NFE.  A common problem is, DoD personnel who are active participants in an NFE may not take an official action involving that NFE.  This restriction prevents such personnel from approving requests from subordinates to attend meetings, to speak at an event, or to prepare papers for a meeting of the NFE.

     Question … What’s the definition of “active participation?”

     BLUF … Active participation involves more than paying dues.  It’s a judgment call, but be conservative in your assessment.

     Discussion … Participation is active if, for example, it involves service as an official of the organization or in a capacity similar to that of a committee or subcommittee chairperson or spokesperson, or participation in directing the activities of the organization.  In other cases, significant time devoted to promoting specific programs of the organization, including coordination of fundraising efforts, is an indication of active participation.  Payment of dues or the donation or solicitation of financial support does not, in itself, constitute active participation.  The restrictions against active participants taking official action regarding NFEs continue for a one year period after active participation ceases.

     Question … What’s the restriction against representing an NFE?

     BLUF … Military personnel cannot represent an NFE back to the Navy at meetings, requests for support, etc. …

     Discussion … A criminal statute provides that Federal personnel may not act as an agent for, or represent, an NFE before Federal agencies or courts on particular matters in which the Government is a party or has a direct and substantial interest.  The statute applies to all DoD employees except enlisted personnel.

     Question … How does the appearance of impropriety come into play in interactions with the Supply Corps Foundation?

     BLUF … DoD personnel cannot give, or appear to give, preferential treatment to a NFE.

     Discussion … DoD personnel may not (in their official capacity) give an NFE preferential treatment, and they must ensure that they do not create an appearance that they are using their public office to assist the NFE in any way.  Additionally, Federal personnel are prohibited from taking positions when to do so would create an appearance of a conflict of interest with his or her federal employment.

     Question … Is prior approval required for outside “employment” and activities?

     BLUF … Generally, prior approval is NOT required, BUT read the rules!

     Discussion … Generally, DoD personnel may engage in outside employment, including service as an officer, employee, board member, or active participant of an NFE.  There are, however, several limitations.  The following should be kept in mind as relating to NFE participation.  First, DoD personnel may not engage in outside activities that interfere with performance of military duties, are prohibited by statute or regulation, or would require the employee’s disqualification from matters critical to the office (essentially, this is a prohibition against being on both sides of the equation).  Second, financial disclosure filers must obtain prior written approval from their “Agency Designee” before working for a prohibited source; and third, when required by agency regulation, an employee shall obtain prior approval before engaging in outside employment or activities.

     Question … Can military members — either in or out of uniform — solicit donations for the benefit of an NFE?  For example, solicitation for door prizes for the Supply Corps Foundation scholarship fund raffle.

     BLUF … Without exception, military members cannot solicit donations for the benefit of a NFE while in uniform.

     Discussion … Additionally, whether in or out of uniform, solicitations may not be made of entities that are prohibited sources, such as any DoD contractor.  Furthermore, in the case of making solicitations on behalf of the Supply Corps Foundation, due to potential confusion and appearance that the Foundation is an official military organization, solicitations out of uniform must be undertaken with extreme caution.

     Question … Can the Supply Corps Foundation (or other NFEs) conduct fundraising activities in Navy work spaces?

     BLUF … Fundraising to support the Supply Corps Foundation (or other NFEs) is not official business, and therefore should not be conducted on duty time, by government personnel, in work spaces.

     Discussion … The Combined Federal Campaign and the Navy Marine Corps Relief Society fundraisers are generally the only authorized solicitations of Government personnel in Navy workspaces on behalf of charitable organizations.

     Questions … If you have questions, please contact your local OGC attorney or NAVSUP Counsel, Sandra Jumper.

By Sandra Jumper; Headquarters, Naval Supply Systems Command General Counsel