SAMPLE 208(B)(1) WAIVER

OUTSIDE ORGANIZATIONS: SERVICE AS OFFICER

OR DIRECTOR IN OFFICIAL CAPACITY

**\[Date\]**

[MEMORANDUM]{.underline}

TO: **\[Official with Waiver Authority\]**

FROM: **\[Deputy Ethics Counselor\]**

SUBJECT: Conflict of Interest Waiver for **\[Employee\]**

The purpose of this memorandum is to request that you grant **\[name of
employee\]** a waiver of the criminal conflict of interest provisions
that may apply to **\[his or her\]** service in an official capacity as
**\[an officer or a member of the board of directors, or other
position\]** of an outside non-profit organization. The need for a
waiver is discussed below.

The criminal conflict of interest statute, 18 U.S.C. § 208(a), requires
that an employee refrain from participating personally and substantially
in an official capacity in any particular matter that will have a direct
and predictable effect on the financial interests of any organization in
which the individual serves as an officer, director, trustee, or
employee.

In the absence of: (1) specific statutory authority placing a federal
employee in an officer or director position in an *[ex
officio]{.underline}* capacity, (2) a release of fiduciary obligations
by the organization (if permitted by state law), or (3) a waiver of the
requirements of section 208(a), the conflicts statute effectively would
preclude **\[the employee\'s\]** service, as an official duty activity,
as **\[officer, director, or other position\]** of **\[name of
organization\]**.

**\[Describe position and organization.\]** **\[Describe relationship of
organization, if any, to Departmental programs or operations.\]**

Inasmuch as **\[the employee\'s\]** **\[appointment, election, or
selection\]** as **\[officer, director, or other position\]** of
**\[name of organization\]** is not pursuant to a statute or release of
fiduciary obligations, **\[he or she\]** has requested that you, as the
official responsible for **\[his or her\]** appointment to a federal
position or the official to whom waiver authority is delegated,
authorize **\[his or her\]** participation in certain particular matters
that may affect the financial interests of **\[name of organization\]**.
Under section 208(b)(1), a waiver may be granted if the selecting
official or delegatee determines that the disclosed financial interest
is \"not so substantial as to be deemed likely to affect the integrity
of the services which the Government may expect from \... \[the\]
employee.\"

In the course of **\[his or her\]** assigned duties as **\[employee\'s
government title\]**, the following types of particular matters
potentially could come before **\[the employee\]** for **\[his or
her\]** personal and substantial participation: (1) particular matters
of general applicability, such as legislation, regulations, or policy,
that may affect the financial interest of **\[name of organization\]**
as a member of a class of similarly situated entities; (2) matters that
affect one or more of the underlying holdings in the investment
portfolio of **\[name of organization\]**; (3) particular matters
involving specific parties (specific party matters), such as grants,
contracts, application approvals, litigation, investigations, or
enforcement actions, that specifically involve **\[name of
organization\]** or otherwise affect its financial interest; or (4)
other miscellaneous matters involving the conduct of the organization\'s
affairs and Department support.

While performing, as an official duty activity, the usual and customary
duties of the position of **\[an officer or a director or another
position\]** of an outside organization, any actions taken, either in
the federal workplace or at the organization, that affect the financial
interest of the outside organization are deemed official matters to
which section 208(a) may apply. For example, such actions may include:
(1) requesting that official travel funds be spent or other government
resources be utilized for the employee to conduct the affairs of the
organization;

\(2\) signing a training authorization to use agency funds to pay for a
subordinate to attend a seminar or other meeting of the organization;
(3) speaking as an official duty activity, or directing a subordinate to
speak, at any seminar or other meeting of the organization where
attendance fees are charged; (4) participating as an official duty
activity in fundraising activities of the organization; or (5) providing
advice and consultation with respect to, or otherwise conducting, the
business affairs of the organization. While the financial impact of many
of these particular matters on an outside organization may be
insignificant, under well settled precedent, section 208(a) has no de
minimis aspect.

Accordingly, if approved, the requested waiver will apply fully to the
employee\'s participation in an official capacity in any particular
matter that will directly and predictably affect the financial interest
of **\[name of organization\]**, EXCEPT the following particular
matters, as to which **\[the employee\]** **\[has recused or has
committed to recuse\]**:

**\[Identify particular matters to which the waiver is NOT intended to
apply, e.g., grants to or contracts with the outside organization. In
unique circumstances, a waiver might be appropriate for participation in
a grant, contract, or other specific party matter. But absent a strong
justification, such**

**matters are likely to be standard exceptions to this waiver for**

**which a recusal will be required. If no exceptions are intended, state
\"None\" at this point in the document and describe below the
justification in detail.\]**

**\[Select those that apply:**

 **HHS grants, contracts, or other financial support (other that the
use of Government travel and training funds)**

 **regulatory or investigatory matters having a significant financial
impact on the organization**

 **"grass roots" lobbying efforts inducing the public to contact
elected representatives at the Federal or State levels on pending
legislative proposals**

 **fundraising\]**

I believe that a waiver is justified for the following reasons:

First, because **\[the employee\]** would serve in **\[the outside
organization\]** as an assigned official duty activity, there is a
greatly diminished risk that the integrity of the services that the
Government expects would be affected. **\[The employee\'s\]** position
in the outside organization is fully known to the agency. Moreover, the
agency already has determined that, to a significant degree, the
interests of the Department and the interests of **\[the
organization\]** are consonant; the agency expects that the interests of
the Department and the interests of **\[the organization\]** both can be
furthered through the performance of **\[the employee\'s\]** official
duties.

Second, most if not all of the particular matters in which **\[the
employee\]** would participate would not have a significant effect on
the financial interests of **\[the organization\]**. **\[If the employee
will have no involvement in any HHS grants, contracts or other financial
support to the organization\--other than the use of Government travel or
training funds\--and will not be involved in regulatory or investigatory
matters having a significant financial impact on the organization, state
this fact here.\]**

**\[If the employee is expected to be involved in more problematic
matters that involve funding of the organization or regulatory or
investigatory matters that significantly affect the financial**

**interests of the organization, a stronger justification for a waiver
would be needed. Such matters can pose a greater risk of a conflict of
interest, and consequently the justification for a waiver in such cases
would have to be explained in greater detail. Any information bearing on
the magnitude of the financial impact (for example, the size of a grant
or contract) would be relevant. Also, it may help to discuss any limits
on the employee\'s involvement in the matter (for example, whether the
employee is subject to significant supervision or is only involved in a
limited aspect of the matter). Moreover, if the matter involved a
regulation, policy statement or other matter of general applicability,
this should be noted, as such matters typically are less
problematic.\]**

The employee understands and agrees that, as an official duty activity,
no separate compensation may be received from the outside organization
in connection with **\[his or her\]** service as its **\[officer,
director or other position\]**.

**\[State any other facts, commitments, terms, or conditions relevant to
the appointing official\'s assessment of the request.\]**

**DECISION:**

Waiver granted, subject to the terms and conditions stated above, based
on my determination, made in accordance with 18 U.S.C. § 208(b)(1), that
the disclosed financial interests are not so substantial as to be deemed
likely to affect the integrity of the services which the Government may
expect from the employee.

Waiver denied.

> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> **\[Name of selecting official or delegatee\] Date**

**\[Title\]**

Confirmed and Acknowledged:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**\[Name of employee\]** Date