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A reservist comes on active duty and his civilian employer (for instance) wants to continue to pay him the difference between his civilian salary and his Government salary while the reservist is performing his Government duties.
An 18 U.S.C. § 209 violation? No.
10 U.S.C. § 12601 permits a reservist on active duty who was receiving compensation from any person before being ordered to active duty to continue to receive compensation from that person.
(10 U.S.C .§ 2601). In a memorandum dated February 27, 2009, the Under Secretary of Defense (Comptroller) advised the Department of Defense (DoD) and all component agencies that general gifts accepted under the provisions of 10 U.S.C. § 2601 must adhere to the reporting requirements of the DoD Financial Management Regulation (FMR), Volume 12, Chapter 30.
In short, acceptance authorities must report the acceptance of gifts on a quarterly basis to the relevant Defense Finance and Accounting Service (DFAS) office. As acceptance authorities generally have not been complying with this reporting requirement, DoD Components authorized to accept gifts under 10 U.S.C. § 2601 must report to the appropriate DFAS office by April 10, 2009, the pertinent information in FMR paragraph 300205.A.1 for gifts accepted during the first two quarters of fiscal year 2009. For each gift reported, the memorandum also requires the acceptance authority to identify whether the gift was accepted under 10 U.S.C. § 2601(a) or 10 U.S.C. § 2601(b). Since the memorandum lists additional requirements relevant to all DoD Components, please review it on our website here.
The U.S. Office of Government Ethics (OGE) published an Ethics Official Quick Reference Chart with links to ethics-related statutes, regulations, and frequent matters addressed by ethics officials.
The PDF version of the Chart is at http://www.oge.gov/ethics_docs/office_agency_prog/rfethicsofficial.pdf (link inactive). The Word version, which can be updated as necessary, is found at http://www.oge.gov/ethics_docs/office_agency_prog/rfethicsofficial.doc (link inactive).
OGE recently identified the pay thresholds that implicate commonly-applicable ethics requirements. With regard to the threshold for filing a public financial disclosure report, 120% of the minimum rate of basic pay for a GS-15 is $117,787.20 (effective January 4, 2009). For the threshold requiring application of 18 U.S.C. 207(c), 86.5% of the annual rate of basic pay for level II of the Executive Schedule is $153,105.00 (effective January 4, 2009).
Finally, with regard to the limitation applicable to certain covered non-career employees on outside earned income, 15% of the annual rate of basic pay for level II of the Executive Schedule is $24,830.00. The rate is effective January 1, 2009, pursuant to statute and regulation; thus, this number relies on the 2008 Executive Schedule as pay adjustments occurred on January 4, 2009. Please note that this rate is the one to follow, and that it is different from the number published in SOCO Advisory 09-01.
SOCO addresses the new Ethics Pledge from Executive Order 13490 in some detail in SOCO Advisory 09-02. As you know, the Pledge potentially applies to 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 or other positions excepted under comparable criteria). The Pledge applies without regard to the salary level of the political appointee, but it does not apply to flag/general officers or to those in the Senior Foreign Service. While many DoD agencies have published their own guidance on the Pledge, the guidance drafted by SOCO is available as a resource on the website at: (link inactive).
As a reminder and clarification, please note the rule regarding a $300 limit on gifts to superiors from subordinates has been routinely interpreted to mean that the gift could exceed the $300 limit - only if the gift was appropriate for the occasion that terminated the superior-subordinate relationship, and was uniquely linked to the employee's position or tour of duty and commemorated the same. The exception was often referred to as the "Perry Exception" as it was once used by the subordinates of the former Secretary of Defense to provide him the gift of his government chair upon his departure from office. Because the cited reference to Joint Ethics Regulation (JER) 2-203(a)(3) on which the exception was premised has never been formally approved by OGE, and therefore was never officially enacted, the Perry Exception should no longer be invoked as an exception to the $300 limit.
JER 3-211(a) permits the head of a DoD Component command or organization to provide DoD employees in their official capacities to express DoD policies as speakers, panel members or other participants, or, on a limited basis, the use of DoD facilities and equipment as logistical support for an event sponsored by a non-Federal entity (NFE). The head of the DoD Component command or organization may do so when he makes the required determinations enumerated in JER 3-211, including the determination in JER 3-211(a)(7) that no admission fee (beyond what will cover the reasonable costs of sponsoring the event) is charged for the event, no admission fee (beyond what will cover the reasonable costs of sponsoring the event) is charged for the portion of the event supported by DoD, or DoD support to the event is incidental to the entire event in accordance with public affairs guidance. This section provides information on when admission fees may be deemed reasonable or when logistical support is considered incidental for the purposes of the JER.
Admission fees of $645 per day or less for all attendees are considered reasonable costs worldwide for the purposes of JER 3-211(a)(7). The $645 per day fee may be adjusted upward, but only by the percentage amount by which the per diem rate for the conference location exceeds that for Washington, DC. For instance, if an NFE-sponsored conference will be held in New York City and the per diem rate for New City is 15% higher than that for Washington, DC, the reasonable daily fee for the New York event would be $742 ($645 x 15% = $97 + $645 = $742). No downward adjustment will be required where the per diem rate for the event location is less than that for Washington, DC.
The highest rate charged to any attendee (including late fees) will be used for purposes of the $645 per day reasonable cost determination. For instance, if the NFE-sponsored event in Washington, D.C. has a registration fee of $600 per day, but a late registration fee of $700 per day, the $700 per day fee is the number to use in the evaluation. As this fee is greater than the $645 per day standard, the admission fee for this event would be beyond what would cover the reasonable costs for sponsoring the event.
The $645 per day reasonable fee will be adjusted every three years by the percentage increase/decrease in the minimal value amount established by GSA under the Foreign Gift and Decorations Act.
Incidental Support. If the admission fee to an NFE-sponsored event exceeds the $645 per day standard, logistical support may only be provided if that support is incidental to the entire event in accordance with public affairs guidance. Where the percentage of DoD speakers/participants at the NFE event is 20% or less, that support is deemed incidental for the purposes of JER 3-211(a)(7) and the public affairs guidance (e.g., DoD Directive 5410.18, paragraph E2.1.14; DoD Instruction 5410.19, paragraph E.2.1.59).
DoD personnel, as part of their management responsibilities, may participate (e.g., serve as speakers, panel members, or other participants) in events sponsored by an NFE when a substantial portion of the audience (i.e., greater than 20%) consists of agency (DoD) personnel and when the primary purpose of the participation involves the training or education of agency personnel. For reference, please review DoD Instruction 1430.04 as well as the discussion in the Ethics Counselor Deskbook, Chapter AA (Participation in Conferences), Section III.B.1. Assuming all specified conditions are met, the head of the DoD Component command or organization may provide DoD personnel as participants to such NFE events without regard to the requirements of JER 3-211. [Special thanks to Dave LaCroix for putting together this JER 3-211(a) analysis.]
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.