Advisory 16-04 November 30, 2016

  1. Direct Acceptance of Gifts by Members of the Armed Forces, Department of Defense Employees and their families and survivors.

    The new FMR provision found here supersedes DTM 14-004 which was issued on April 17, 2014. The new FMR provision permanently implements the authority in 10 U.S.C. § 2601a that permits covered members, covered civilian employees, their family members, and survivors to accept gifts from certain outside sources for injuries and illnesses that are combat-related or incurred under circumstances warranting similar treatment as determined by the Secretary concerned (e.g., the Ft. Hood or Washington Navy Yard shootings). The authority does not apply to gifts: From foreign governments; accepted in return for being influenced in the performance of an official act; solicited or coerced; accepted in violation of statute or regulation; or reflect adversely on DoD. Ethics counselor review and approval is required prior to acceptance. The guidance in JER Sections 3-400 thru 3-406 should no longer be followed.

  2. Determining Reasonable Costs and Incidental Support for JER 3-211(a)(7) (from SOCO Advisory 09-03).

    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/ she 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.

    • Reasonable Costs. The following guidance applies for determining reasonable costs.

      1. Admission fees of $722 per day or less for all attendees are considered reasonable costs worldwide for the purposes of JER 3-211(a)(7). The $722 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 $830 ($722 x 15% = $108 + $722 = $830). No downward adjustment will be required where the per diem rate for the event location is less than that for Washington, DC.

      2. The highest rate charged to any attendee (including late fees) will be used for purposes of the $722 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 $750 per day, the $750 per day fee is the number to use in the evaluation. As this fee is greater than the $722 per day standard, the admission fee for this event would be beyond what would cover the reasonable costs for sponsoring the event.

      3. The $722 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. This change will be announced in a SOCO Advisory.

    • Incidental Support. If the admission fee to an NFE-sponsored event exceeds the $722 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).

      Also, please note that the Department uses 5 C.F.R. § 2635.204(g)(1) when determining whether DoD officials may speak at events in an official capacity. The Office of Government Ethics (OGE) is finalizing revisions to Subpart B of 5 C.F.R. § 2635 that will move this gift exception allowing free attendance for speakers to the gift exclusions listed in § 2635.203(b). These revisions will be published in the Federal Register as a Final Rule later this year. As indicated above, the JER 3-211 is a community relations regulation. It will be removed from the JER in its next revision and addressed in the appropriate public affairs regulation.

  3. Acceptance Date for Termination OGE 278e Filings (see OGE PA-16-06 & 81 FR 69204).

    On September 22, 2016, OGE issued PA-16-06 to clarify the circumstances under which an agency may accept a termination OGE 278e prior to the filer's actual termination date. A proposed revision to 5 C.F.R. § 2634.201(e) has also been issued. The PA provides that a Designated Agency Ethics Official (DAEO) may permit an agency's departing public filers to file termination reports up to 15 days before their termination date, provided that the filers agree to update these reports in the event that there are changes to reportable information before or on their termination dates. OGE notes additional considerations, including that: 1) the report should include a public annotation indicating that the filer has agreed to update the report if there are changes before or on the termination date; and 2) since changes, including (of record) comments and attachments cannot be made following certification in electronic filing systems, reports should not be certified until after the actual termination date.

    FDM Note: FDM currently does not permit termination filers to submit a report prior to the termination date entered by the filer. The FDM Program Management Office is currently working to revise the FDM logic to permit submission up to 15 days prior to termination, as well as providing a popup text addressing the requirement to update the report to reflect any changes occurring between submission and the filer's actual termination date. This is expected to be implemented before the new calendar year. As an interim work around for those wanting to accept early reports, filer notifications should include two items: 1) notification of and agreement to the requirement to update termination reports submitted prior to the filer's actual termination date to reflect any changes occurring between submittal and termination; and 2) notification that the filer must enter a termination date that is 15 days prior to their actual termination date.

    Allowing early submission of reports alleviates issues associated with FDM CAC access for departed filers and enables ethics counselors to obtain clarifications and corrections while the filer is still with DoD. However, DoD DAEOs choosing to permit early submission, should ensure that subordinate ethics offices are aware of the requirements for doing so and have appropriate documentation and processes in place to ensure that filers are aware of the continuing duty to update their reports through their actual termination date.

  4. Mandatory use of AGEAR for officials required to receive opinions.

    The Deputy Secretary of Defense last week signed the DoD SOCO proposed memorandum on mandatory use of the After Government Employment Advice Repository (AGEAR) electronic system for officials required to received opinions under Section 847 of the NDAA of 2008. The memorandum directs covered officials to provide all necessary information by submitting their request electronically in AGEAR. Further, the memorandum directs ethics officials to decline any requests meeting the Section 847 criteria that covered officials submit outside the system. This mandate should satisfy the recommendation of the Office of the DoD Inspector General in its 2015-2016 review of the system.


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.