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On September 4, 2014, the President extended the National Emergency related to the terrorist attacks on September 11, 2001. A copy of the Federal register notice is here. The practical effect for the ethics community is a continuation (through September 14, 2015) of the suspension of the 180-day waiting period that restricts the appointment of retired military members into civilian positions at DoD as directed by 5 U.S.C. § 3326.
Tired of getting those questions about contractors participating in holiday office parties and about what kind of gifts can be exchanged among employees? Your answers are addressed in the SOCO 2014 Holiday Party Guidance.
Effective October 1, the Joint Federal Travel Regulations, Vol. 1 (JFTR), and the Joint Travel Regulations, Vol. 2 (JTR) are consolidated into one volume titled the Joint Travel Regulations (JTR). The JTR can be found here.
In accordance with the Foreign Gifts and Decorations Act (5 U.S.C. § 7342) and DoDD 1005.13 "Gifts and Decorations from Foreign Governments," gifts from foreign governments that are greater in value than the minimum value (presently $375) may be retained by the employing component of the recipient "for official use." It is not uncommon for employing components to retain gifts such as artwork, clocks, paintings, and rugs in official buildings for display purposes.
SOCO was asked if gifts such as jewelry and watches could also be retained for such "official use." Generally, such personal gifts are not regarded as suitable for "official use." Enclosure 3, E3.1.1.1.2, DoDD 1005.13, prohibits gifts from being retained for the benefit or personal use of any individual. In brief, DoD personnel may not retain a watch or jewelry received as a gift in order to wear it at special events including events in which the donor is expected to attend. This type of use is not considered to be "official use." However, if the watch or jewelry is displayed in a manner or location that will afford employees or the public the maximum opportunity to view (such as in a display case), such use could be considered "official use."
What do you do when you are at a widely attended gathering and all guests are given a gift bag of mementos and other items by the sponsor of the event as they leave? Can you keep the gift bag?
Answer: It depends. Unfortunately, more than one of the gift rules may apply. The first consideration is whether the gift bag may be accepted as part of the widely attended gathering exception. (See 5 C.F.R. § 2635.204(g)(2). This exception can be used when there has been a determination by the employee's supervisor that attendance at an event, which is attended by a large number of people representing a diversity of views, is in the interest of the agency because it will further agency programs or operations. The exception allows Federal personnel to accept "free attendance" at the event, which is defined as (1) waiver of all or part of the conference or other fee; (2) food; (3) refreshments; (4) entertainment, and (5) instruction and materials furnished to all attendees as an integral part of the event. Thus, items such as the gift bag may be accepted under the widely attended gathering exception only if they are integral to the event. We interpret "integral to the event" to mean that the items were intended to be used during the event. For example, a gift bag given at the start of a conference that includes a pen, a pad of paper, and a folio, all of which can be used during the conference, might reasonably be viewed as being integral to the event. On the other hand, it would be difficult to conclude that gift bags delivered to guests as they are departing the event are "integral to the event" and, therefore, may not be accepted under the widely attended gathering exception.
It is possible that the gift bag may be accepted under other exceptions to the gift rule. For example, items of little intrinsic value, including plaques, certificates, and trophies intended solely for presentation, are not considered gifts and may be accepted in accordance with 5 C.F.R. § 2635.203(b). This exception would cover items such as pins, patches, plaques, and paper weights. Alternatively, gifts under $20 may be accepted from any source at a particular occasion in accordance with 5 C.F.R. § 2635.204(a), assuming the employee has not exceeded his or her $50 maximum from that source for the calendar year. This exception would cover, for example, sample bottles of perfume, t-shirts, or carrying bags.
Bottom line: When attending widely attended events, remember that gift bags may not be automatically acceptable.
The Encyclopedia of Ethical Failure now includes updates for 2014. Go here to view only the 2014 updates. These summaries of various ethical misadventures can provide useful teaching aides.
Please remember that 5 C.F.R. § 2640.203(m) is unavailable for DoD personnel. See 78 Fed. Reg. 14,437-14,442 (Mar. 6, 2013). The regulation provides an exemption to the criminal conflict of interest statute, 18 U.S.C. § 208. It permits Government employees to participate in particular matters affecting the financial interests of nonprofit organizations in which they serve, or seek to serve -- or have an arrangement to serve, in their official Government capacity as officers, directors or trustees, not withstanding the employees' imputed financial interest under 18 U.S.C. § 208(a).
This exemption is not available to DoD, because DoD policy specifically prohibits DoD personnel from serving in their official capacity on non-Federal entities except in very limited circumstances. See JER 3-202; see also 10 U.S.C. § 1033 (for military personnel) and § 1589 (for civilian personnel).
Thus, for example, DoD personnel may not serve in their official capacity as the government co-chair on a professional association's working group as it would likely involve day-to-day management activities. DoD personnel may participate in the working group to convey DoD interests, and/or, where merited, employees may receive approval to be designated as DoD's liaison to the professional association. Such a designation must be in writing. See JER 3-201.a.
DISCLAIMER: The purpose of this advisory is to disseminate relevant information and sources of general guidance, policy and law on Government Ethics issues to the Department of Defense ethics community. Advisories are not intended to be and should not be cited as authoritative guidance, DoD policy, or law.