2007 Ethics Training Presented by the NRCS Ethics Office August 27, 2007 Corpus Christi, TX Caryl J. Butcher NRCS Ethics Officer NRCS Employees Sponsor: AIANEA Audience: NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 1

“Ethics risks are much higher [in NRCS] than in most Agencies” In 2004, you heard . . . “Ethics risks are much higher [in NRCS] than in most Agencies” “Employees become so active in supporting the partnership that they become, essentially agents of the partners.” Areas of particular concern: Partnering Agreements Relationships between employees and non-Federal entities Etc. NRCS Ethics Office August 27, 2007 - AIANEA Conference

2002 Farm Bill In 2004, you heard . . . Demands greater transparency Increased $ = Greater Scrutiny Avoid Conflicting Interests Protect integrity of NRCS Programs and services NRCS Ethics Office August 27, 2007 - AIANEA Conference

Conflicting Interests COI and Impartiality Prohibited Representation AIANEA Conference: Conflicting Interests COI and Impartiality Prohibited Representation Misuse of Position Participation with Non-Federal Organizations Official Participation Personal Participation Fundraising 2004 Statutory Authority -- What NRCS may do Ethics Laws & Regulations -- What employees may and may not do NRCS Ethics Office August 27, 2007 - AIANEA Conference

Relations with Non-Federal Organizations General Session Review the Basics Conflicting Interests Participation with Non-Federal Entities Case Study Liaison Session Appointment of Agency Liaison Gifts from Tribes 2:00 - 3:00 pm 3:15 - 4:30 pm Sign the sign-in sheet for each course to receive credit. NRCS Ethics Office August 27, 2007 - AIANEA Conference

Employee may not, as part of their Government job Actual Conflict of Interests - Recap Employee may not, as part of their Government job work personally and substantially on any particular matter involving specific parties in which the employee* has a financial interest … If the matter will affect* that interest To make it simple, I am leaving out detail the ethics advisor must consider in deciding whether a situation really presents a conflict of interest…, like 1. … personally and substantially 2. … if the particular matter will have a direct and predictable effect on that interest. Prohibition also applies if someone with whom the employee has certain personal or business relations has an interest. NRCS Ethics Office August 27, 2007 - AIANEA Conference

Interests & Relationships that Trigger Disqualification Imputed Interests Employee Spouse or minor child General partner Outside employer or prospective employer Non-Federal organization in which employee is an officer, director, trustee, or general partner Covered Relationships Person with whom employee has or seeks a business, contractual or other financial relationship Member of household or close relative Employer of spouse, parent or dependent child Non-Fed employer within past 1 year; Non-Fed organizations in which the employee is active; Person or Org for whom the spouse, parent or dependent child is an employee, officer, director, consultant, contractor, agent, etc NRCS Ethics Office August 27, 2007 - AIANEA Conference

Impartiality Recap Must disqualify IF: The matter1 is likely to affect the financial interest a person2 with whom the employee has a covered relationship;3 AND The employee’s involvement would cause a reasonable person with knowledge of all relevant facts to question the employee’s impartiality? 1 Applies to "particular matters" involving "specific parties". 2 Person includes any legal entity other than the US (Federal) Government. 3 Or, if the matter is likely to affects interests of a person represented by one with whom the employee has a covered relationship. NRCS Ethics Office August 27, 2007 - AIANEA Conference

Let's look at some examples. Disqualification Recap The employee tells his/her supervisor and does not perform official duties unless given written ethics authorization by the DCH MGT. Required to avoid COI1 Responsibility of the employee Impacts NRCS duties, not outside interest Let's look at some examples. 1Any employee's reputation for honesty and integrity is not relevant. NRCS Ethics Office August 27, 2007 - AIANEA Conference

A Let's see what we have learned so far... What's the correct Answer? Example: Can a DC work on: Her own EQIP application? Her father's EQIP application? Application of the family farm? Pre-contract functions for other operations competing for the same EQIP funds? "A" "B" "C" No No Yes No Yes The Correct Answer is "__" A NRCS Ethics Office August 27, 2007 - AIANEA Conference

Let's see what we have learned so far... Examples Can Joe, the DC, write the plan for his sister's operation? If Sis was a TSP, could Joe do the CCC 1245 for a practice she had done? Answers: No - - The conservation plan and the CCC 1245 are particular matters involving specific parties, and [sister] is a relative with whom Joe has a close personal relationship. NRCS Ethics Office August 27, 2007 - AIANEA Conference

Would the answer be the same if it was: Example Jack's father is on the Executive Board of an Organization. Can Jack serve as the Technical Rep for a cooperative agreement with that organization? Answer: No - The cooperative agreement is a particular matter which affects the interest of the Organization. The father is on the Board, and is a relative with whom Jack has a close personal relationship. (covered relationship) Example Would the answer be the same if it was: (a) Contribution agreement? (b) Professional Society? Yes NRCS Ethics Office August 27, 2007 - AIANEA Conference

2007 Ethics Training Case Study #1   Case Study #1 Susan has been doing a great job for NRCS as a Tribal Liaison. She is responsible for activities related to issue resolution with the [Tribe]. The work has increased so in the last several years that she is now a full-time Tribal Liaison. Susan feels so fortunate to have gotten this job as Tribal Liaison. Now, she lives within driving distance of her family. To top it off, she has just been offered the chance to serve as Member-at-Large on the Executive Committee of the [Tribe]. QUESTION: What should Susan do? NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 13

2007 Ethics Training Group Exercise Time: ____   Group Exercise Time: ____ Case Study #1 - What should Susan do? Any Ethics issues? (Y or N) Can Susan do it without NRCS approval? Can the STC allow her to do it? Can NRCS prohibit Susan from serving on the Committee? If so, could she have to choose between the Committee and her NRCS job? - Could her supervisors request an exception? - Is there a provision that relates to an employee's birthright in an Indian nation that would make it okay? Can Susan get in trouble if she does it anyway? Yes NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 14

2007 Ethics Training Case Study #1 Can Susan do it without NRCS approval? No. The Assignment of Liaison policy reflects that a Liaison must not: Serve as an officer, board member, or employee; or act as agent or representative, of the [Non-Federal], or Actively participate in [Non-Federal's] activities in your personal capacity unless you receive written clearance from [STC] to do so. [Does not prohibit membership . . ] Additionally, there is a requirement for approval of outside employment that only applies to a financial disclosure report filer with an activity that meets the following definition from 5 CFR 8301: (b) Definition of employment. For purposes of this section, ``employment'' means any form of non-Federal employment or business relationship or activity involving the provision of personal services by the employee for direct, indirect, or deferred compensation other than reimbursement of actual and necessary expenses. It also includes, irrespective of compensation, the following outside activities. (1) Providing personal services as a consultant or professional, including service as an expert witness or as an attorney; and (2) Providing personal services to a for-profit entity as an officer, director, employee, agent, attorney, consultant, contractor, general partner, or trustee, which involves decision making or policymaking for the non-Federal entity, or the provision of advice or counsel. [Emphasis added.] The Liaison Session will address questions about whether the Liaison policy should apply to Tribal Liaisons. NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 15

Case Study #1 2007 Ethics Training Can the STC allow Susan to do it? Can NRCS prohibit her from serving on the Committee? In an official capacity? In a personal capacity? What if no compensation? No. The STC lacks authority to do so. Yes (She can not so it.) Yes. (She still can not do it.) Could Susan have to choose between serving on the Committee and her NRCS job? Yes. NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 16

Why Susan cannot do it and remain the Tribal Liaison: 2007 Ethics Training Why Susan cannot do it and remain the Tribal Liaison: CAN NOT in an official capacity Department of Justice Opinions by the Office of Legal Counsel, DOJ, have determined that service as a member of the Committee in an official capacity would violate the conflict of interests statute, 18 U.S.C. 208, unless the agency has specific statutory authority to have an employee serve on the governing board of that specific organization. Statutory authority to have an NRCS employee serve in an official capacity on the governing body of a non-Federal entity is limited to: SARE Administrative Councils Rural Development Boards NRCS statutory authority to have someone serve on the governing body of a non-Federal entity is limited to: SARE Administrative Councils -- in CSREES appropriations law Rural Development Boards. -- in the 2002 Farm Bill NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 17

Why Susan cannot do it and remain the Tribal Liaison: 2007 Ethics Training Why Susan cannot do it and remain the Tribal Liaison: CAN NOT in a personal capacity 18 USC 208 - Conflict of Interest statute Employee may not work for Government on matter affecting the interest of a non-Federal organization for which the employee serves as an officer. This law makes it illegal for a Tribal Liaison to continue work on matters affecting a Tribe if also on the Tribe's Executive Committee. See 5 CFR 2635.402(a) for the COI rule and 5 CFR 2635.402 (b)(2)(iv) for the fact that imputed interests includes "An organization or entity which the employee serves as officer, director, trustee, general partner or employees; " etc. NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 18

2007 Ethics Training Case Study #1 -   Case Study #1 - Could her supervisors request an exception? It would not be granted. "Given the extent of [a Tribal Liaison's] official duties with the Tribe, an individual waiver under 18 U.S.C. 208(b)(1) would not be justifiable. There is no basis for concluding that the conflicting financial interest (service on the Committee) “is not so substantial as to be deemed likely to affect the integrity of the services which the government may expect from [the employee].” " From USDA Office of Ethics, OE Advisory 2002-2,Conflicting Financial Interests & Impartiality - Tribal Executive Committee. State Ethics Advisors can contact the NRCS Ethics Office for a copy of USDA Office of Ethics, OE Advisory 2002-2,Conflicting Financial Interests & Impartiality - Tribal Executive Committee.] NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 19

2007 Ethics Training Case Study #1 -   Case Study #1 - Is there a provision that relates to an employee's birthright in an Indian nation that makes it okay? No. That waiver authority would not apply in this situation. Waiver authority at 18 U.S.C. 208 (b)(4) permits official participation in matters likely to be affected when interest results solely from the interest of the employee in birthrights in an Indian Tribe, etc. "However, this provision requires that the particular matter at issue must not involve the tribe, band, nation, etc., as a specific party. The Tribe, here, is the specific party with which the [USDA Agency] has assigned the employee to act. Additionally, the financial interests involved are not the employee’s as a matter solely of his birthright, but because of his voluntary membership on the Committee." [OE Advisory 2002-2] Emphasis added. k NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 20

2007 Ethics Training Case Study #1 - What should Susan do?   Case Study #1 - What should Susan do? Can she get in trouble if she does it anyway? Yes. 18 U.S.C. 208 is a criminal statute. NRCS is required to report violations to the Office of Inspector General (OIG). Employees are required to know and comply with the prohibition. k NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 21

2007 Ethics Training Case Study #1 - What should Susan do?   Group Exercise Summary Answer Sheet Case Study #1 - What should Susan do? Any ethics Problems Can Susan do it without NRCS approval? Can the STC allow her to do it? Can NRCS prohibit Susan from serving on the Committee? If so, could she have to choose between the Committee and her NRCS job? - Could her supervisors get an exception? - Is there a provision that relates to an employee's birthright in an Indian nation that would make it okay? Can Susan get in trouble if she does it anyway? Yes No NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 22

. Title 110 – General Manual 405.135 Personal v. Official Participation in Non-Federal Organizations - Quick Reference Flowchart Use NRCS Title Travel Time Equipment No Personal Yes Official Yes No Yes No Board Member No NRCS Liaison NA Yes Use Liaison Designation Template Designation by State Conservationist or Higher Does Not Vote No Lobbying No Involvement in Internal Business (finances, fundraising, membership, elections, etc.) Membership Okay Provided Not “Active” (110-GM, Amend. 2, November 2003) 405.N.135-1 November 2003 Next

Questions? End of General Session Sign the sign-in sheet Satisfies your CY 2007 Training Requirement.* NEXT -- Liaisons Session Today, 3:15 - 4:30 pm * The 2007 Ethics Training Requirement applies to Financial Disclosure Report Filers. NRCS Ethics Office August 27, 2007 - AIANEA Conference Slide 24