Advisory 09-02 March 23, 2009

  1. New Ethics Pledge.

    President Obama signed an Executive Order, "Ethics Commitments by Executive Branch Personnel," on January 21, 2009. Among other things, this Executive Order requires every full-time, political appointee appointed on or after January 20, 2009 to sign an Ethics Pledge as a condition of employment in the Federal Government.

    "Political appointee" for purposes of the Executive Order includes every full-time, non-career Presidential or Vice-Presidential appointee, non-career appointee in the Senior Executive Service (or other SES type system), and appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C and other positions excepted under comparable criteria) in an executive agency. The Pledge applies without regard to the salary level of the political appointee. It does not apply to Special Government Employees.

    Political appointees appointed to a full-time position prior to January 20, 2009 are not presently required to sign the Pledge. This means individuals appointed during the previous administration are not now covered by the Pledge even if they are continuing in their current position or are serving in an acting capacity under the Vacancies Reform Act, 5 U.S.C. § 3345 et seq. DoD is seeking clarification regarding whether supplemental guidance will be issued by the White House on the applicability of the Pledge to holdover appointees. Individuals appointed to a career position are not required to sign the Pledge.

  2. Use of Digital Signatures with the Confidential Financial Disclosure Form (450).

    The U.S. Office of Government Ethics recently granted Agencies authority to accept digitally signed Confidential Financial Disclosure Reports (OGE Form 450) of the electronically fillable PDF version of the report, as long as the agency's Chief Information Officer (CIO) has approved a digital signature process. (See (link inactive))

    SOCO has initiated review of the feasibility of this with DoD's CIO. Until further guidance is received, DoD Deputy DAEO organizations should continue to require original signatures.

  3. Financial Disclosure Management (FDM) Status Update.

    The Army was recently designated as the Executive Agent to operate, manage, and fund FDM for DoD, an OGE approved system for electronic filing of financial disclosure reports. DoD DAEOs are initiating the steps necessary to coordinate expanded use of FDM at DoD. This designation, in itself, does not mandate FDM use across the DoD enterprise. Your local ethics officials will keep you informed of continuing developments as appropriate.

  4. Federal Court Finds Violation of 18 USC 208 By Federal Employee Who Participated in a Matter Involving a Contract Already In Existence.

    The Federal Court of Appeals for the Ninth Circuit affirmed a jury decision of the US District Court (Oregon) by which a former official at the Bonneville Power Administration (BPA) was convicted of several crimes, including violating 18 USC 208. The Court reaffirmed the lower court's finding that Jane Selby, a former Bonneville Power Administration (BPA) employee, actively participated in agency deliberations that expanded the scope of a preexisting contract between BPA and her husband's employer. In her appeal, Ms. Selby argued that her participation did not violate Section 208 because she only participated in the matter after the initial contract had been signed. In its decision, the Federal Court of Appeals for the Ninth Circuit pointedly addressed the concept that personal and substantial participation can occur both before and after an initial procurement.

  5. GSA Amends Policy on Appraisal of Foreign Gifts.

    The General Services Administration (GSA) amended the Federal Management Regulation (FMR) to revise its policy on appraisals of foreign gifts and decorations, and to now encourage agencies to use various methods in obtaining appraisals, including reliable retail web sites. This rule gives agencies greater flexibility in obtaining appraisals which may now include agency use of reliable retail web sites (e.g., department store web sites, commercial merchandise catalogs) to obtain the retail value in the United States of the items(s). This rule excludes the use of any auction or discount sale offerings that appear on the Internet or written publications (e.g., EBAY, Craig's List, or other non-commercial sites). Also, GSA now requires the employing agency to obtain an appraisal of a gift or decoration that the agency has retained for official use and no longer needs before accepting the agency's report of the item as excess personal property. Additionally, appraisals are required for gifts that are personalized (e.g., books signed by the author, or gifts personally labeled). (See here.)


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.