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In section 8126 of the FY 2006 Defense Appropriations Act, Pub L 109-148, Congress formally determined that assisting youth organizations provides the Armed Forces an opportunity to train. Support to these organizations simulates the preparation, logistics, and leadership required for defense and combat. Congress expressed its approval of this training opportunity and its intent to allow designated youth organizations the full support of Federal Agencies. This support includes use of property to hold meetings and camping events, hosting any official event, loaning equipment, and providing personnel services and logistical support. Congress provided a list of youth organizations to which the law applies.
Congress also included in section 8127 of the Appropriations Act, approval for gift acceptance by service members who suffer an illness or injury while in a combat operation or combat zone. Wounded service members and their families may accept unsolicited gifts from sources outside the Department of Defense, but not from foreign governments and their agents. Congress included a retroactive clause that applies to gifts accepted since September 11, 2001. DoD has drafted regulations to implement the legislation. The draft is currently being reviewed with the Department, including the military services. The new regulations will constitute change 6 of the JER. We will promulgate its implementation directions on the SOCO website as soon as we receive final approval. The change applies to active duty military and reservists serving on active duty, it does not address civilian employees.
Section 374 of the FY 2006 Defense Authorization Act, Pub L. 109-163, grants to the Secretary of Defense and the Service Secretaries the authority to accept, hold, administer, and spend any gift, devise, or bequest of real property, personal property, or money made on the condition it be used in connection with the establishment, operation, or maintenance of any institution or organization under the jurisdiction of the Secretary. Congress granted to the Secretaries additional authority to accept gifts of property, money, or services for the benefit of the members, civilian employees, and their dependents or survivors of the members or civilian employees wounded, injured, or incur illness while in the line of duty.
Senator Barbara Mikulski endorsed a request from the National Security Agency for GAO to reconsider its opinion prohibiting government agencies from collecting conference fees. Instead GAO forcefully reiterated its prior opinion. The CompGen opinion (B-306663, January 4, 2006) relies heavily on the Miscellaneous Receipts Statute, which requires the Government to deposit to the Treasury any moneys it receives without deduction for any charge or claim. GAO cites both its own and Federal judicial decisions that the Miscellaneous Receipts Statute stands for the proposition that an agency is precluded from diverting to a contractor any amounts the contractor receives on behalf of the Government. GAO reiterated its position that an agency may not charge an attendance fee, nor permit its contractor to do so. In its reply to Senator Mikulski GAO suggests that if Congress wants to change the law it is certainly in the best position to do so. Pending new legislation, the prohibition stands.
Employees seeking post Government employment are disqualified from taking any official action that affects their prospective employers. The disqualification is an individual's best tool to guard against any future claims of improper representation to a potential employer. It is simple and fully within the control of the employee. Simply 1) inform your supervisor and subordinates, 2) identify a decision authority to act in your stead when issues concerning the prospective employer arise, and 3) maintain a permanent copy of the disqualification letter for record purposes. Section 2-204 of the JER describes this requirement. The letter remains active until rescinded. SOCO has posted a model disqualification letter on its website.
The Honorable Kenneth Krieg, Under Secretary of Defense for Acquisition, Technology and Logistics sent a letter to the leadership of the 100 Top Defense Contractors. In the letter Mr. Krieg conveyed his philosophy on appropriate ethical behavior for senior leadership and issued a challenge to the defense companies to place ethics at the forefront of their business decisions in an effort to make the defense acquisition system a model of integrity. Every ethics official needs to echo the words of the Secretary of Defense - it is everyone's responsibility to place integrity at the center point of our daily lives and to make integrity an intrinsic part of our everyday decision-making processes and practices.
We received several inquiries and comments regarding the last SOCO Advisory's reminder that it is virtually impossible for military personnel on terminal leave to work as a contractor in the Federal workplace without improperly "representing" the contracting company in violation of 18 USC 205. Recent feedback confirmed our suspicion that the "contractor on terminal leave" scenario is the perfect ethics trap for the unwary. There are at least four reasons why people are surprised:
Leaving Government and returning as a contractor doing the same job while on terminal leave used to be a common practice (and still may be in some places.) It is permissible as long as the employee on terminal leave is not interacting with Federal personnel. This, of course, is almost impossible to do if physically located in the Federal workplace.
Generally, Federal personnel (including lawyers) are unaware of the prohibitions of 18 USC 205 and 203, that prohibit Federal personnel (by definition does not include enlisted personnel) from acting as an agent for someone else before the Government. An employee acting within the scope of his duties is an agent for his employer.
Even personnel who know of 18 USC 205, tend to forget that it still applies to those on terminal leave.
The old view that "merely performing a contract" is not a representation was shot down by OGE in their opinion 99 x 19. OGE later advised that their logic in that opinion also applies to 18 USC 203 and 205. Hence, an Intelligence Analyst, preparing a report under an XCorp Government contract, represents XCorp to the Government when he submits his report. Regardless of whether the report is accurate, timely, useful, responsive, understandable, and comprehensive, it is the representation that is prohibited according to OGE.
Bottom line: It is almost impossible for personnel on terminal leave to be working for a contractor in the Federal workplace. If they can't work behind the scenes while on terminal leave, we suggest that they advance their retirement date and sell back their leave, or delay starting work until after they actually retire.
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.