Reserve Personnel Ethics Issues

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UNCLASSIFIED

Reserve Personnel Ethics Issues

Art Kaff

Administrative Law Division

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Conflicts of interest Personal and Organizational

Filing financial disclosure reports

Outside

employment and business

enterprises

RC SMs holding

civil office Supplementation of salary

Post-Government employment

restrictions

…and many more we don’t have time to discuss

Potential RC Ethical Issues

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Supplementation

of salary

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•Background

• Applicability of Ethics Rules

• National Guard Status

•Commander Responsibilities

• Screening

• Conflicts of Interest

• Financial Disclosure

• Special Gov’t Employees

•Outside Employment

• Holding Civil Office

• Supplementation of Salary

•Post-Government Employment

• Wartime Gifts

• Conclusion

Agenda

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“DoD Employee”

Active Duty - Regular or Reserve Officers Active Duty enlisted members

DoD civilians (including NG technicians)

Reserve or National Guard on Title 10 active duty (e.g., AT, ADT, AGR program)

Reserve or NG performing official duties or functions under Title 10 or 32, or while engaged in any activity related to the performance of such duties or functions.

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• Civilian

Hat #1

•Title 32

•State Militia/Training Status (Usually IDT, AT, FTNGD)

Hat #2

•Title 10—National Guard of the United States

•Fighting Status (Purely Federal control)

Hat #3

•State Active Duty—Purely State Mission

•Statuses Mutually Exclusive—One Hat at a Time!

•Classic militia status (Purely State control)

Hat #4

National Guard Status

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• Adequate SCREENING is a

necessity • This is usually NOT being accomplished

Commander Responsibilities

Affirmative obligation (JER 5-408)

to refrain from assigning RC SMs duties that could:

give RC SMs access to non-public information

result in an unfair advantage present an actual or apparent

conflict of interest

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RC SMs Screening

Civilian employer information

Reserve duty information -How long performing duty

-Responsibilities

Supervisory review

Conflict of interest

analysis Updated regularly Reviewed by ethics counselor when

necessary

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Conflict of Interest

1) Mobilization / activation dramatically increases the potential for conflicts of interest

2) Conflicts must be resolved in the same manners as with Active service or civilian employees

3) Civilian employment may create organizational conflicts of interest

• FAR 9.500

• Can negatively impact RC SM when he/she returns to civilian job

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Financial Disclosure Reports

OGE 278e

Required when 61 or more days of active duty are performed during reporting period by O-7 or

above

New entrant (15 days from hitting 61) and

annual

VERY DIFFICULT TO TRACK

REQUIREMENT FOR ANG AND AFR GO’s

TO FILE

Nature

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OGE 450

Contracting or procurement, Administering/monitoring grants,

subsidies, licenses, or other financial/operational benefits Regulating/auditing any non-

Federal entity

Special Government Employees

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Special Government Employees

JER 7-300 -OGE 450 Filers

1. Commanding officers and executive officers of:

• Navy shore installations with 500 or more military and civilian DoD employees

• All Army, Air Force, and Marine Corps installations, bases, air stations or activities.

2. Special Government employees, except the following categories of DoD employees who are required to file reports only when specifically requested by supervisors:

• Physicians, dentists, and allied medical specialists;

• Veterinarians;

• Lecturers in educational activities;

• Chaplains;

• Individuals in motion picture or television;

• Reservists on active duty for less than 30 consecutive days during a calendar year;

and

• Members of selection panels for ROTC candidates.

18 U.S.C. § 202 Definition of SGE

• a Reserve officer of the Armed Forces, or an officer of the National Guard of the United States, unless otherwise an officer or employee of the United States, shall be classified as a special Government

employee while on active duty solely for training.

• A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who isvoluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203 and sections 205 through 209 and 218.

• A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who isserving involuntarily shall be classified as a special Governmen¹t⁰ employee.

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Officer vs. SGE

Unclassified

• Officer or employee who is retained, designated, appointed, or employed to perform, with or

without compensation, for not to exceed 130 days during any period of 365 consecutive days

1) 18 U.S.C. § 202(a) definition of “SGE”

• Voluntarily Performing Title 10 Reserve / NG duty 130 days

• While on active duty solely for training (any length of time)

• While involuntarily mobilized (any length of time)

2) Guard and Reserve officers are SGEs when

3) Guard and Reserve officers are “officers”

when on voluntary active duty > 130 days

4) Counting days

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Financial Disclosure Reports

OGE 278e

Required when 61 or more days of active duty are performed during reporting period by O-7 or

above

New entrant (15 days from hitting 61) and

annual

VERY DIFFICULT TO TRACK

REQUIREMENT FOR ANG AND AFR GO’s

TO FILE

OGE Form 450

Contracting or procurement;

Administering/monitoring grants, subsidies, licenses, or other financial/operational benefits;

Regulating/auditing any non- Federal entity

Special Government Employees

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Nature of the Position

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Why do we care?

• Limited applicability only to particular matters in which the SGE participated personally and substantially

• Limited to matters pending in the SGE’s agency if >60 days in the last year

18 U.S.C. §§ 203 & 205

• “Cooling-Off” period applies

only to >60 days in the last year

18 U.S.C. § 207(c)

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OGE Form 278 New Entrant Report (What about 61 days of Active Duty?)

Due within 30 days of assuming the duties of a position covered by a public filing requirements

The DAEO determines that the employee is not reasonably expected to perform the duties of the position for more than 60 days in any calendar year.

If an employee has initially been excluded from public filing

but does work more than 60 days in a calendar year, then the

employee must file a New Entrant report within 15 days after

the 60th day

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OGE Form 278 Termination Report (What about 61 days of Active Duty?)

Reports must be filed no later than 30 days

after termination and no earlier than their last day.

This requirement does not apply to individuals who assume another covered position within 30 days.

“Unless you served no more than 60 days during any calendar year”

5 U.S.C. app. §§ 101(d) & (h); 5 C.F.R. §

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OGE Form 278-T

(What about 61 days of Active Duty?)

Periodic transaction reporting - Must report within 30 days of receiving notification of a transaction, but not later than 45 days after the transaction

Applicable “Transactions” - Purchase, sale, or exchange by you, your spouse, or dependent child of stocks, bonds, commodity futures, and other securities if: the amount of the transaction exceeded $1,000

Served or are expected to serve in a covered position for

more than 60 days

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Outside (off-duty) Employment

Includes off-duty business enterprises

Supervisory knowledge enables ID of possible misuse of Government

resources

No conflict with official duties

“Telling their story”

-Not for personal

compensation while on active duty

-“Official duties” test

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Outside (off-duty) Employment

Wrapping up business affairs upon mobilization

May use official resources to wind up affairs

Must be reasonable

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• DoD Directive 1344.10

• If under a call or order to in excess of 270 days, RC SM cannot perform functions of the office (may not hold an elected Federal Office)

• May continue to hold the office unless prohibited by state law or conflicts with official duties

• Some exceptions for nonpartisan offices

• Applicability to FTNGD

Holding Civil Office

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Candidacy

Cannot be candidate for civil

office if on orders for AD for > 270 days

May seek exception from Service Secretary (Secretary CANNOT delegate)

If on AD orders for 270 days or less, Soldier may become a candidate provided…

• There is no interference with military duty

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Candidacy Permitted or Otherwise Not Prohibited

SM may not participate in campaign activities

Direct, control, manage, or

otherwise participate

in their campaign

Make statements

or answer questions in news media re:

political issues or govt. policy

Publish or allow to be

published political articles, literature, documents or

that solicit votes for/against

a party, candidate,

issue, or cause

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Candidacy Permitted or Otherwise Not Prohibited

• The SM Candidate must do the

following: • Take affirmative, documented

steps to inform all staff that the SM candidate may not direct, control, manage, or participate in campaign activities.

• Take all reasonable efforts to prevent current and anticipated advertisements from being

publically displayed in any media…

• This includes freezing websites

devoted to the nomination or

candidacy

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Candidacy Permitted or Otherwise Not Prohibited

• SM Must Complete an

Acknowledgment of Limitations

Acknowledgment must be forwarded through immediate supervisor to the first General Officer

in Chain of Command

Those who do not require permission – Complete acknowledgment within 15 days of becoming a

candidate or entry upon active duty Those who require permission – Complete acknowledgment within 15 days of permission

being granted

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Social Media and Political Activities

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• 18 US Code 209 has four elements:

– (1) receipt of salary or contribution to or supplementation of salary

– (2) as compensation

– (3) for services as an employee of the United States – (4) from any source other than the United States

• JER 5-404 Compensation From Other Sources

Supplementation of Salary

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Supplementation of Salary cont.

• Look at the definition of SGEs in 18 U.S.C. § 202

18 US Code 209

Does not apply to Special Government Employees (SGEs) -- that is, most RC SMs

• Any Reserve who was receiving compensation before being

ordered to AD may continue to

receive compensation while on AD 10 U.S.C. §

12601

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