# Presentation: 200924

## USDA Ethics Issues for Scientists

- New Packaging for What You (Should) Already Know

## USDA Ethics Office’s Draft Issuance

- A work in progress
- Not through final clearance
- Nothing new in terms of ethics rules and guidelines for outside activities
- Gathers up rules and guidelines from other documents and consolidates them for employees of science agencies
*In this presentation, editorial comments by HDD and/or SRS will be in italics.*

## Draft Ethics Issuance Number 07-1Section 1.  Purpose

- “...establishes _guidelines_*** for applying the Standards of Ethical Conduct for Employees of the Executive Branch......” (and other standards and statutes)
- “...the _rules_*** discussed herein are applicable to all employees....”
- 						**(emphasis added by HDD)*
*Which are they?**  *

## “....science is a collaborative profession.”
“Our scientists must interact closely with other members of the scientific community, both inside and outside the Federal Government, in order to attain and maintain their professional standing and reputation as scientists.”
“....agencies seek opportunities to partner with non-Federal entities in order to accomplish Agency scientific projects and goals.”
“Federal scientist clearly have a professional obligation to improve the level of science in their chosen field and, in doing so, bring credit not only upon themselves, but also upon their Agency and upon the Federal Government as a whole.”

- “Our scientists must interact closely with other members of the scientific community, both inside and outside the Federal Government, in order to attain and maintain their professional standing and reputation as scientists.”
- “....agencies seek opportunities to partner with non-Federal entities in order to accomplish Agency scientific projects and goals.”
- “Federal scientist clearly have a professional obligation to improve the level of science in their chosen field and, in doing so, bring credit not only upon themselves, but also upon their Agency and upon the Federal Government as a whole.”

- Section 3.  General *Some important acknowledgements*

## Section 3.  General

- “.... the Federal scientist within a large, multi-mission Federal department such as USDA may face a more restrictive interpretation of these laws and regulations than may be faced by Federal scientists at small, purely science-oriented agencies such as the National Institutes of Health or National Science Foundation.”
- 		*Implication:  Since scientists are only a small **	**part of USDA, ethics considerations for non-**	**science agencies, e.g., regulatory or commodity **	**payment programs, apparently must apply to **	**scientists (?)*

## Section 4.  Definitions

- 4.3  “ ‘Adjunct Professor’ is a generic title with no specific meaning.”
- Contextually dependent on what each specific university means by it in terms of rights, duties, responsibilities.
- Whether it creates ethics problems depends on what the university expects in return for bestowing the title
*In other words, any problems arise from activities, not the title itself.*

## Section 4.  Definitions

- 4.5.  “Official Capacity” – activity is:
- Conducted on official time
- Through the expenditure of Agency funds
- Conducted in a manner that indicates the employee is participating on behalf of the Agency
- Consistent with employee’s position description and Agency’s mission

## Section 4.  Definitions

- 4.6.  “Outside Employment”
- “irrespective of compensation, the providing of personal services as a consultant or professional...”
- 4.7.  “Personal Capacity”
- Not directly related to Agency mission
- On employee’s own time and cost (i.e., evenings, weekends, leave)

## Section 4.  Definitions

- 4.15.  “University Employee”
- “....a relationship recognized in law between the individual and the University wherein the University has a right to control and direct the individual in the performance of services for the University.”
- “The fact that services are provided without compensation does not mean that an employment relationship does not exist.”
- “...in situations where an individual provides uncompensated services to the university, the individual could be deemed a university employee....”

## Section 5.  Official Versus Personal Capacity

- 5.1.  Presumption of Official Capacity
- Managers should presume that activities undertaken by employees at a university are in the employee’s official capacity.
- Burden of proof is on the employee to show that the activity is NOT under Official Capacity and/or does not create an ethical problem.

## Section 5.  Official Versus Personal Capacity

- 5.3.  Employee Responsibility
- “Where conflict exists between one’s status as a scientist and one’s status as a Federal employee, by statute and regulation, the employee’s obligations as a Federal employee take precedence.”
*Remember who your employer is.*

## Section 5.  Official Versus Personal Capacity

- 5.4.  Accepting Compensation From the University
- “The Agency scientist may not accept any form of _compensation_ from the University, or from other non-Federal sources, for the performance of official duties related to the University.”

## 6.1.  Acceptance of Tenure
Tenure consists of an employer-employee relationship with the University .....creates a conflicting financial interest....
An Agency scientist may not accept tenure from a University that is in any way related to his or her official duties with the University.

6.2.  Participation in Tenure Decisions
Presume that this is done under official capacity
SY’s statement concerning tenure for a university faculty member:
must follow the University’s request to the Agency for such a statement
The Agency must authorize the SY to provide a statement
SY’s statement is a factual evaluation of scientific credentials, based only on the SY’s knowledge under official duties as a Federal employee
MAKE NO SPECIFIC RECOMMENDATION
SY may NOT participate in any tenure deliberations
SY may NOT serve on a tenure committee

- Tenure consists of an employer-employee relationship with the University .....creates a conflicting _financial interest_....
- An Agency scientist may not accept tenure from a University that is in any way related to his or her official duties with the University.
- 6.2.  Participation in Tenure Decisions
- Presume that this is done under official capacity
- SY’s statement concerning tenure for a university faculty member:
- must follow the University’s request _to the Agency_* *for such a statement
- The Agency must authorize the SY to provide a statement
- SY’s statement is a factual evaluation of scientific credentials, based only on the SY’s knowledge under official duties as a Federal employee
- MAKE NO SPECIFIC RECOMMENDATION
- SY may NOT participate in any tenure deliberations
- SY may NOT serve on a tenure committee

- Section 6.  Specific Duties and Activities Involving the University

## 6.3.  Teaching Courses
May result in the scientist being deemed a university employee under state law
If it furthers the mission of the Agency
it may be done under Official Capacity
no compensation to the scientist
If NOT in furtherance of Agency mission
must be done under Personal Capacity
scientist must recuse him/herself from official duties that affect financial interests of the University, e.g., ADODR 

- May result in the scientist being deemed a university employee under state law
- If it furthers the mission of the Agency
- it may be done under Official Capacity
- no compensation to the scientist
- If NOT in furtherance of Agency mission
- must be done under Personal Capacity
- scientist must recuse him/herself from official duties that affect financial interests of the University, e.g., ADODR

- Section 6.  Specific Duties and Activities Involving the University

## 6.4.  Serving as a Guest Lecturer
Official Capacity – opportunity to inform the public of relevant research
No compensation
No non-public information
Self-identification as USDA
Personal Capacity
Compensation = outside employment
Recusal from official activities affecting financial interests of the University (e.g., ADODR)

- Official Capacity – opportunity to inform the public of relevant research
- No compensation
- No non-public information
- Self-identification as USDA
- Personal Capacity
- Compensation = outside employment
- Recusal from official activities affecting financial interests of the University (e.g., ADODR)

- Section 6.  Specific Duties and Activities Involving the University

## 6.5.  Service on or with University Committees or Other Bodies
Presume this is related to official duties as ARS personnel
OK for committees that directly affect Agency needs but do NOT deal with university “business”, e.g.:
Space, facilities, equipment
Curriculum
Graduate student thesis/dissertation committees
NOT OK for committees that are responsible primarily for internal University matters, e.g.:
Budget, Finance
Tenure
Faculty/Academic Senate
Employee/Faculty Search committees
Liability issues arising from candidates not selected
Assessment of credentials but no specific recommendation?

- Presume this is related to official duties as ARS personnel
- OK for committees that directly affect Agency needs but do NOT deal with university “business”, e.g.:
- Space, facilities, equipment
- Curriculum
- Graduate student thesis/dissertation committees
- NOT OK for committees that are responsible primarily for internal University matters, e.g.:
- Budget, Finance
- Tenure
- Faculty/Academic Senate
- Employee/Faculty Search committees
- Liability issues arising from candidates not selected
- Assessment of credentials but no specific recommendation?

- Section 6.  Specific Duties and Activities Involving the University

## 6.5.  Service on or with University Committees or Other Bodies, continued
Official Capacity: Liaison
Attend meetings and provide information on how committee’s decisions could affect Agency
No participation in deliberations or decisions
Personal Capacity
Completely unrelated to official duties
Committee does not deal with university finances, personnel, or administration
Committee’s function has no significant effect on the Agency

- Official Capacity: Liaison
- Attend meetings and provide information on how committee’s decisions could affect Agency
- No participation in deliberations or decisions
- Personal Capacity
- Completely unrelated to official duties
- Committee does not deal with university finances, personnel, or administration
- Committee’s function has no significant effect on the Agency

- Section 6.  Specific Duties and Activities Involving the University

## 6.6.  Activities with Students
Mentoring students in official capacity
Personal capacity – circumstances totally unrelated to official duties  (e.g., ARS Plant Pathologist teaches Underwater Basketweaving on Tuesday nights)

- Mentoring students in official capacity
- Personal capacity – circumstances totally unrelated to official duties  *(e.g., ARS Plant Pathologist teaches Underwater Basketweaving on Tuesday nights)*

- Section 6.  Specific Duties and Activities Involving the University

## 7.4  Factors for Agency Consideration
Teaching, speaking, and writing restrictions.
No compensation if related to Official Duties
Outside employment if totally unrelated to Official Duties (underwater basketweaving)
Conflicting Financial Interests
SY on university committee dealing with university personnel, finances, or administration may not serve as ADODR.

- Teaching, speaking, and writing restrictions.
- No compensation if related to Official Duties
- Outside employment if totally unrelated to Official Duties *(underwater basketweaving)*
- Conflicting Financial Interests
- SY on university committee dealing with university personnel, finances, or administration may not serve as ADODR.

- Section 7.  Outside Employment with the University

## Section 8.  Spousal, Life-Partner, and Other Family Involvement with the University

- “Where the official actions of the Agency scientist can have a direct and predictable effect upon the financial interests of a spouse or minor child, a conflict of interest....may result.”
*4 examples in the document are confusing*
*Divorce is probably the best route*

## Section 9.  Gifts and Supplements to Salary Involving University Privileges and Benefits

- Must directly facilitate SY’s performance of official duties.  These are acceptable:
- Library privileges
- Shuttle or parking privileges *(hunting permits?)* available to non-Federal adjunct faculty
- Some things might be accepted under written agreement or under Agency statutory gift authority.
- Otherwise, consider questions of dual compensation, conflict of interest, impartiality, etc.

## Section 9.  Gifts and Supplements to Salary Involving University Privileges and Benefits

- DO NOT ACCEPT
- Free or reduced tuition or housing, unless your spouse gets offered these things because the SPOUSE is a university employee
- Gifts worth more than $20, or more than $50 aggregate per year
- Anything not available to the public, e.g., reduced cost tickets to events, membership in the Faculty Club, bookstore discounts, etc.
- (It’s OK to accept these if they are offered not because of the Federal employee’s position, but for some other reason, e.g., they are an alumnus.)

## Section 10.  Writing for and Participating in Peer Review of Articles for Publication in Scientific and Professional Journals

- 10.1.  “It is expected...for scientists to write articles...for publication in.....scientific and professional journals.”   *(In ARS, it is *_*required*_*, not merely expected.)*
- 10.2.  “...scientists have a professional responsibility to publish.....”   *(In ARS, scientists are *_*required*_* to do this to stay employed.)*

## Section 11.  Editing Scientific Journals

- 11.2.  Official capacity
- Should be presumed
- Precludes serving at the same time as a member of the society’s board
- Requires prior approval by the Agency
- Requires written agreement between the Agency and the publisher
- No compensation

## 11.3.  Personal Capacity
Outside employment on personal time
If compensated, required employee recusal from any official duties that affect the publisher
No identification of employee as USDA

- Outside employment on personal time
- If compensated, required employee recusal from any official duties that affect the publisher
- No identification of employee as USDA

- Section 11.  Editing Scientific Journals

## 12.1.  “A Federal employee....can encounter several unexpected legal and ethical issues.”
“[E]mployees seeking to participate in grant applications on behalf of non-Federal entities.....should inform Agency managers before participating.”

- “[E]mployees seeking to participate in grant applications on behalf of non-Federal entities.....should inform Agency managers before participating.”

- Section 12.  Participation in Grants on Behalf of Universities and Other Non-Federal Entities

## Section 12.  Participation in Grants on Behalf of Universities and Other Non-Federal Entities

- 12.2.  Presumption of Official Capacity
- 12.3.  Official Capacity Participation: Requirements – several, but among them:
- Explicitly provided for in an appropriate, pre-existing _written agreement__* *_between the Agency and the University
- If the application is successful, the proposed research will be documented in an appropriate _written agreement__* *_(e.g., a cooperative agreement) that meets the legal tests of mutuality of interest...

## Section 12.  Participation in Grants on Behalf of Universities and Other Non-Federal Entities

- 12.4.  Permissible Assistance
- Preparing the grant application
- Signing the grant application as Co-PI, but self-identification as a Fed
- Serving as Program Director *(?????)*
- 12.5.  Impermissible Assistance
- Serve as PI
- Serve as ADODR
- Manage grant funds in any way
- Manage a non-Federal entity’s personnel or assets in conducting the research
- Fail to self-identify as a Fed
- Written defense or advocacy of a proposal before a Federal granting agency

## Participation in Professional and Scientific Associations

- “Reserved” from the draft document
- Too many comments
- Too much confusion
- See Ethics Issuance 00-1, Participation in Non-Federal Organizations
*Clarity is Pending ?*

## Section 14.  Acceptance of Awards from Non-Federal Sources

- 14.  Nominations Based on Performance of Official Duties
- Recognition from the scientific community
- Awards, fellowships related to official work
- 14.1. Prior Agency Approval Considerations
- For-profit?
- Foreign Government or FG-owned corporation or university?
- U.S. Constitution, Article 1, Section 9, Clause 8:
- 	“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
- 	(Webster’s Third New International Dictionary defines “emolument” as profits or perquisites from office, employment, or labor; or (archaic) advantage or benefit)
- 	*Nobel Prize?  Title bestowed by Chinese Academy of Sciences?  Titled professorship accompanying fellowship at a foreign public university?*
- Domestic institution whose interests may be directly affected by the official duties?

## Section 14.  Acceptance of Awards from Non-Federal Sources

- 14.1. Prior Agency Approval Considerations, continued
- Monies awarded
- “Where a monetary award is offered based upon the scientist’s performance of official duties, the funds essentially belong to the Agency and are to be used directly in furtherance of the Agency’s mission.”
- “Funds cannot be used to compensate the Agency scientist for his or her official work as this could constitute dual compensation in violation of [regulation].”
*AND YET-*  “The Agency scientist must be nominated solely in his or her capacity as an Agency employee.  In no way may the nomination indicate or infer that the Agency scientist is seeking or accepting the award either in his or her own personal capacity....”

## Section 15.  Nominations for Other Than for the Performance of Official Duties

- If the scientist gets an award for work or activities that are not connected to official duties, rules related to gifts and conflict of interest must be considered.
- 15.1.  Gift Rules – If the award is to recognize work conducted in the past, it probably should be considered a gift and may not be accepted if:
- The donor or nominating party are “prohibited sources”, i.e., a person or organization composed of a majority of persons who
- Seeks official action by the Agency *(could be ARS)*
- Does business or seeks to do business with the Agency *(could be ARS)*
- Conducts activities regulated by the Agency *(ARS not regulatory)*
- Has interests that may be substantially affected by the employee’s official duties *(this is a likely one for ARS, since we are talking research)*
- The award is based on the scientist’s official position.
- Awards worth more than $200 invoke other considerations.

## Expert Testimony and Consulting

- 18 – Consulting
- If legitimately part of official duties – no compensation permitted
- If done in Personal Capacity on personal time
- Outside employment
- Cannot be based on SY’s official duties and position
- Cannot be matters under the official responsibility of the SY within the past year
- Does not involve non-public Agency information
- May be compensated

## Official Letters of Recommendation and Endorsements

- 21.1  Employment Recommendations
- Based only on personal knowledge of ability and character with whom the Federal employee dealt in the course of Federal employment
- For whom the employee is recommending for Federal employment
- 21.2  Official Endorsements of products, services, etc.
_***NO***_.  *No discussion.*

## To sum up....

- The draft issuance for scientists has not been finalized.
- There is nothing new in terms of rules, etc.
- The document consolidates previously existing information into a single source for scientists and related staff.
- In many cases, we hope clarity is pending.

## FINAL RECOMMENDATION

- We will support you if you have followed the rules and guidelines.
- We will find it hard to defend you if you do *not *follow the rules and guidelines.
*Therefore, always consult the Area Office.*