212 FW 5
Outside Employment or Activity

Supersedes 212 FW 5, FWM 421, 04/03/2003

Date: March 3, 2016

Series: General Administration

Part 212: Ethics

 

 

PDF Version


 

TABLE OF CONTENTS

General Topics

Sections/Questions

Overview

5.1 What is the purpose of this chapter?    

5.2 What is the Service’s policy on outside employment and activities?

5.3 What are the authorities for this chapter?

5.4 What terms do you need to know to understand this chapter?  

Responsibilities

5.5 Who is responsible for ensuring employees avoid conflicts of interest as described in this chapter?

Approval Process

 

5.6 What steps must be taken before you may engage in any outside employment or activities?

5.7 What requirements should you understand before you engage in outside employment or activities with a prohibited source or any other entity?

 

Overview

 

5.1 What is the purpose of this chapter? This chapter:

 

A. Establishes U.S. Fish and Wildlife Service (Service) policy and approval procedures when an employee proposes to engage in outside employment or activities, with or without compensation, for a prohibited source; and

 

B. Assists employees in avoiding potential conflicts of interest when they are considering engaging in any outside employment or activities. 

 

5.2 What is the Service’s policy on outside employment and activities?

 

A. It is our policy that employees may engage in outside employment or activities within the limits of this chapter and by complying with its requirements.

 

B. All employees who plan to engage in outside employment or activities with any entity must review and understand the ethics laws and regulations listed in section 5.7 of this policy and contact their servicing Ethics Counselor if they have questions. 

 

C. Employees must receive their supervisor’s recommendation and servicing Ethics Counselor’s approval before they engage in outside employment or activities with a prohibited source.

 

D. No supervisor or ethics approval is required to conduct outside employment or activities with an entity that is not a prohibited source

 

E. If an employee is unsure whether the entity is a “prohibited source,” he/she should contact his/her servicing Ethics Counselor.

 

5.3 What are the authorities for this chapter?

 

A. Standards of Ethical Conduct for Employees of the Executive Branch, Outside Activities, 5 CFR 2635.801 et seq.

 

B. Supplemental Standards of Ethical Conduct for Employees of the Department of the Interior, Outside Employment and Activities, 5 CFR 3501.105.

 

5.4 What terms do you need to know to understand this chapter?

 

A. Outside employment or activities are any form of relationship where an employee provides personal services, with or without compensation, to a non-Federal entity.

 

(1) Outside employment or activities include, but are not limited to:

 

(a)   Personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner, trustee, teacher, or speaker for a non-Federal entity. (See 212 FW 4 for requirements related to service as a board member or officer of a non-Federal organization. See 212 FW 11 for requirements related to service in an adjunct or affiliate role with a university or research institute.)

 

(b)   Writing conducted under an arrangement with a non-Federal source for production or publication.

 

(2) Participation in the activities of a nonprofit charitable, religious, social, fraternal, educational, recreational, public service, or civic organization, are not covered in this chapter as “outside employment or activities” unless the organization is a prohibited source or the employee is compensated beyond reimbursement of actual expenses.

 

B. A prohibited source is any person, company, or organization that has business with the Service, is seeking to do business with the Service, conducts operations that are regulated by the Service, or has any interests that may be substantially affected by the performance or non-performance of an employee’s official duties, or is an organization a majority of whose members are described above (see 5 CFR 2635.203(d)).

 

Responsibilities

5.5 Who is responsible for ensuring employees avoid conflicts of interest as described in this chapter? See Table 5-1.

 

Table 5-1: Responsibilities for avoiding conflicts of interest related to outside employment

These employees…

Are responsible for…

A. The Director (required by Secretarial Order to serve as the Service Ethics Counselor)

(1) Ensuring that policies and procedures are in place to help employees avoid conflicts of interest, and

 

(2) Approving or disapproving proposed Service policy.

B. Directorate members

 

Ensuring that employees for whom they are responsible follow the policy in this chapter.

 

C. The Service Deputy Ethics Counselor and Associate Ethics Counselor

(i.e., “servicing Ethics Counselors” for Directorate

members)

(1) Providing employees with guidance to help them avoid conflicts of interest,

 

(2) Advising Regional and Headquarters Assistant Ethics Counselors on conflict of interest issues,

 

(3) Approving or disapproving Directorate members’ requests regarding outside employment or activities with prohibited sources, and

 

(4) Developing and keeping this policy up-to-date.

D. Regional and Headquarters Assistant Ethics Counselors

(i.e., “servicing Ethics Counselors” for all employees except Directorate members)

 

(1) Working with employees and supervisors in their Regions and Headquarters to help them comply with this chapter, and

 

(2) Approving or disapproving Regional and Headquarters employees’ requests regarding outside employment or activities with prohibited sources.

 

E. Supervisors

(1) Recommending approval or disapproval of employees’ requests for outside employment or activities with prohibited sources, 

 

(2) Discussing with the employee the requirements listed in section 5.7 before recommending approval of an employee’s request for outside employment or activities with a prohibited source, and

 

(3) Sending such requests to their Regional or Headquarters Assistant Ethics Counselor for approval or disapproval.

F. Employees

(1) Reviewing and understanding the ethics laws and regulations described in section 5.7 of this policy if they plan to engage in outside employment or activities with any entity. 

 

(2) Completing FWS Form 3-2441, Request for Approval to Engage in Outside Employment or Activity with a Prohibited Source, to obtain required approvals before engaging in such activities with a prohibited source;

 

(2) Seeking counsel from their supervisor and servicing Ethics Counselor if they are unsure whether the outside source is a “prohibited source;” and

 

(3) Consulting with their servicing Ethics Counselor for questions related to potential conflicts of interest.

 

Approval Process

 

5.6 What steps must be taken before you engage in any outside employment or activities? 

 

A. You must look at the definition of “prohibited source” to determine if the entity offering you the outside employment or activity meets the definition.

 

(1) If you are unsure whether the entity is a “prohibited source,” you should contact your servicing Ethics Counselor for assistance.

 

(2) If the entity is not a “prohibited source,” then no supervisor or ethics approval is required. However, it’s still possible that the outside employment or activity could conflict with your job with the Service, so you should review section 5.7 of this policy and contact your servicing Ethics Counselor with any questions.

 

(3) If the organization is a “prohibited source,” you must complete FWS Form 3-2441, Request for Approval to Engage in Outside Employment or Activity with a Prohibited Source.

.

B. Following is the review process for FWS Form 3-2441:

 

(1) Your supervisor must review the form and make a recommendation to the servicing Ethics Counselor.

 

(2) You and your supervisor should discuss the requirements in section 5.7.

 

(3) The servicing Ethics Counselor must review the information on the form to determine whether the proposed outside employment or activity is prohibited by the ethics laws or regulations (see regulation 5 CFR 3501.105):

 

(a)   If allowed, the servicing Ethics Counselor will approve the employment/activity by signing the form.

 

(b)   If not allowed, the servicing Ethics Counselor will contact you and explain why you cannot engage in the outside employment/activity while working for the Service. 

 

(4) The servicing Ethics Counselor retains the original, signed form and sends a copy to you and your supervisor, regardless of whether he/she approves or disapproves the proposed outside employment or activity. 

 

5.7 What requirements should you understand before you engage in outside employment or activities with a prohibited source or any other entity? Following are summaries of the key ethics statutes and regulations that you should understand prior to engaging in outside employment or activities with any non-Federal entity. If the entity is a prohibited source, you should discuss the following with your supervisor:

 

A. You are prohibited from participating in any official matter (including providing recommendations or advice) that could affect the financial interests of any non-Federal entity with which you engage in outside employment or activities. You should consult with your servicing Ethics Counselor for advice if it appears that your official actions may impact the financial interests of the non-Federal entity, or if the non-Federal entity is a party to any matter in which you are performing official duties.

 

Example: An employee with the Service’s Migratory Bird grant program volunteers for the Northeast Bird Sanctuary (Sanctuary) on evenings and weekends. The Sanctuary asks the employee to write grant applications to be submitted to the Service and other organizations for funding. The Sanctuary is a “prohibited source” because it receives grants from the Service, so the employee must complete FWS Form 3-2441. The servicing Ethics Counselor will not approve the request for the employee to write grant applications for the Sanctuary because the employee is involved with the grant program as part of her official Service work. However, the employee may be approved to conduct other volunteer activities for the Sanctuary. 

 

B. You must disqualify (i.e., recuse) yourself from participation in official matters if the outside employment or activity would give the appearance of a lack of impartiality toward the non-Federal entity. 

 

Example: A biologist with the Service’s Endangered Species program worked on regulations listing a bird as threatened under the Endangered Species Act. The biologist has moved to a position with the Service’s International Affairs division and is no longer involved with the bird listing. A private company offers the biologist a paid consulting job assisting the company in complying with these new Service bird regulations. The company is a “prohibited source” because it conducts operations that are regulated by the Service, so the biologist must complete FWS Form 3-2441. The servicing Ethics Counselor will not approve the request because, even though the consulting work would not conflict with the biologist’s current responsibilities, it would create an appearance that the employee had used his official position to obtain the consulting job, and it also may create the appearance of him using his public office for the private gain of the company.   

 

C. If the outside employment or activity prevents you from accomplishing your Federal job, you may be required to stop the outside employment or activity.

 

Example: In a volunteer capacity, a Refuge employee has been assisting a county park non-profit organization with developing policy positions on a variety of issues unrelated to the Service. The employee is promoted to a new Service job. Her principal duty in this new position is to write regulations regarding fire management. The non-profit organization plans to submit comments to the Service on these regulations and would like the Service employee to help develop their policy position. Her continued service in assisting the non-profit would require her to disqualify herself from duties critical to the performance of her official duties on a basis so frequent that it would materially impair her ability to perform her official duties. Because of this, she must resign her Service job or significantly change her role with the non-profit.

 

D. You cannot represent an outside entity before the Service, any Federal agency, court, or officer on a matter in which the United States is a party or has a substantial interest.

 

Example: A Service biologist is offered a position with an outside contractor who conducts research studies on Federal lands. The Service employee will be expected to contact U.S. Forest Service employees to conduct the research for the contractor. The contractor is a “prohibited source,” so the employee must receive supervisor and ethics approval prior to beginning the work. The ethics laws prohibit the employee from representing the contractor before the Forest Service, so the biologist must decline the job or change his responsibilities with the contractor.

 

Example: An administrative assistant accepts weekend employment with a publishing company.  He works as a salesperson in the marketing division of the company. The publishing company asks him to contact the local U.S. Veteran’s Administration hospital to sell brochures. The publishing company is not a “prohibited source,” so the Service employee does not need to obtain supervisor or Ethics Counselor approval to accept this job. However, he is prohibited by Federal law from representing the publishing company before the hospital, which is part of a Federal agency. He may not contact the hospital to sell the publishing company’s services.    

 

Example: An External Affairs employee volunteers as the president of a local organization, “Hear Me,” which helps schools develop programs for children with hearing disabilities. The organization is not a “prohibited source”, so she does not need to obtain supervisor or ethics counselor approval to accept the job. Although she may participate as an officer of this organization on his personal time, he may not sign a grant application to be submitted by the organization to the U.S. Department of Education. Someone else in the “Hear Me” organization must sign the grant request.

 

E. You must not use official duty time to perform outside employment or activities.

 

F. You must not use Government facilities, equipment, or supplies to perform outside employment or activities, except as authorized by the Department of the Interior’s limited personal use policies.

 

G. You must not disclose “nonpublic information.” Nonpublic information is information that you gain through Federal employment and that you know or should know has not been made available to the general public. It includes information that you know or reasonably should know is routinely exempt from disclosure by statute, regulations, or agency policy. It also includes information that has not been disseminated to the general public and is not authorized to be made available to the public by request. (See 5 CFR 2635.703 for a definition of “nonpublic information” and examples.) You should ask your supervisor if you are unsure whether information is nonpublic or has been made available to the public.

 

Example: A Service Fisheries employee is very involved as a volunteer for a non-Federal organization whose goals relate to the protection of the environment. The employee may not give anyone, including the organization or a newspaper reporter, nonpublic information on long-range plans for the construction of a new Federal dam that she learned about through her position with the Service.  

 

H. You must not use (or allow an outside employer or entity to use) your official Service title or position in conjunction with the outside employment or activity. However, if you are engaged in outside teaching, speaking, or writing you may:  

 

(1) Include your Service title or position as one of several biographical details as long as it is given no more prominence than other significant biographical details (see 5 CFR 2635.807), and

 

(2) Use your title or position in connection with an article published in a scientific or professional journal if it is accompanied by a disclaimer stating that the views are those of the author and do not necessarily represent the views of the Service or the United States (see 117 FW 1 for details about required disclaimers). 

 

I. You must not receive compensation for teaching, speaking, or writing activities from any source other than the Government if the subject matter relates to your official duties, subject to an exception for teaching certain university courses. For most employees, teaching, speaking, or writing relates to your official duties if:

 

(1) The subject of the activity deals with any matter to which you are presently assigned or to which you had been assigned during the previous 1-year period; 

 

(2) The invitation to speak was extended to you primarily because of your official position, rather than your expertise on the subject;

 

(3) The invitation or the offer of compensation was extended by a person or entity substantially affected by the performance of your duties; or

 

(4) The activity is based substantially on nonpublic information.

 

Example 1: A supervisor in the Service’s Office of Law Enforcement has a keen interest in stamp collecting. He has spent years developing his own stamp collection and studying the field generally. He is asked by an international society of philatelists to give a series of four lectures on how to assess the value of American stamps. Because the subject does not relate to his official duties, he may accept compensation for the lecture series. However, he could not accept a similar invitation from a company that his office is investigating for a wildlife crime.

 

Example 2: A Service Human Resources employee is an acknowledged expert in the field of Federal employee labor relations and participates in Service negotiations with employee unions. She may receive compensation from a private training institute for a series of lectures that describe the decisions of the Federal Labor Relations Authority concerning unfair labor practices if her lectures do not contain any significant discussion of labor relations cases handled by the Service, or the Service’s labor relations policies.

 

J. If there is a significant change in the outside employment or activity with a prohibited source, you must complete a new FWS Form 3-2441.

K. You must understand that your engagement in outside employment or activities does not relieve you of your obligation to comply with conduct and ethics laws, regulations, and policies.

 

For more information about this policy, contact your servicing Ethics Counselor. For more information about this Web site, contact Krista Bibb in the Division of Policy, Performance, and Management Programs.

 

 

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