NOTES -- DEC/EC Meeting
Monday, February 6, 2012

Introductions:

• NEO Staff
• IC Staff

Items for Discussion/Presentations:

• Questions from last DEC/EC meeting? None.

• Questions on Emoluments Clause/FGDA Chart. None.

• 278 FOIA Request Update – NIH FOIA Office has released 278s from:  CC, NIAMS, NIDCD, NLM, CSR, NCCAM, NIMHD, NICHD, ORS, CIT, AND NIDCR.  Reports that will be released shortly:  NIAAA, NIEHS, AND NEI.  Note:  Senior employees and DECs will be released through the NEO, not with their ICs. 

• 278 Pre-Clearance Process – needed for all 278 positions.  For non-senior employees, IC works directly with OGC.  For senior employee positions, IC works with NEO who in turn will work with OGC.  Remember:  get termination report from any acting employee who will be returning to a 450 position, or from employee who is leaving the NIH.

• NEES Role -- Point of Contact (POC):  Individual in an Ethics Office who forwards (assigns) requests to the proper individual for review.

• IC POC in each IC Ethics Office.
• NEO POC in the NIH Ethics Office

How does the POC know when there is action to assign?  E-mail Notification

• Individuals with the IC POC role will receive an e-mail from NEES notifying them that an employee submitted an action.
• Upon receipt of the e-mail, the IC POC will logon to NEES to assign the request.  Actions pending assignment are located on the “New Reports” tab.

Can an action be reassigned? Actions already assigned are located on the “Assigned Reports” tab, and may be reassigned according to IC Ethics Office policy.

What happens if an employee transfers to another IC after submitting a request?  

• POCs should check the Assigned Reports tab to monitor requests which need to be reassigned due to IC transfer.
• When an employee transfers in from another IC, there will be a message in red above the list notifying the IC POC to reassign the incoming filer's report to an IC reviewer.
• Policy Decision:  OGE 450 reports will be reviewed and certified by the IC in which the filer submitted the report.

For further information on IC POC Roles and other applications, consult the NEES Supervisor & Reviewer User Guide, or contact your NEO Specialist. The NEES User Guide is available via a link at the bottom of the screen, and on the NEES SharePoint site:  https://sps.nees.nih.gov/

• Official Duties w/ Foreign Governments – three actions to take:  1) usual analysis for an official duty activity (would proposed activity create a real or apparent conflict with 208 and 502 interests and relationships); 2) get organization’s concurrence for the US government to sit at the table (most often necessary for a new employee who is continuing an ongoing activity for the first time as a federal employee); and 3) remind staff to consult with FIC’s Division of International Relations regarding the proposed activity.  See http://www.fic.nih.gov/About/Staff/Pages/International-Relations.aspx for the list of FIC regional program officers.

• Section 207(c) Notifications – three different notification methods will be used: 

• section in EAs/EUs for new employees
• notification to current employees
• each IC will soon receive a list of employees who meet the 207(c) salary threshold;
• IC ethics to send notification to these employees
• employees who meet the 207(c) salary threshold will be flagged in HR database to receive notification upon separation from NIH.

• Loans Between Employees – supervisor asked subordinate for a loan, and the subordinate gave the superior the loan.  Permissible?  No.  A loan falls within the definition of a gift.  5 CFR 2635.203(b).  Generally, a subordinate cannot give a gift (here, a loan) to his official superior.  And a superior cannot accept a gift from a subordinate.  5 CFR 2635.302.  From the facts, it appears that both employees may have violated the rules.  Also, the supervisor’s solicitation of a gift from his subordinate violated the rule against using his public office (as supervisor) for his own private gain (the loan money).  5 CFR 2635.702.
  
  
• Outside Activity with a Potential Grantee – Extramural Scientific Review Officer (SRO) wants to serve on the Board of Directors for a non-profit foundation without compensation.  Currently, the Foundation is not a grantee.  Is the activity permissible?
  • Permissible under section 5501.109 because Foundation is not an SAO, SRI, or health care provider/insurer.  While Foundation may become a grantee, it is not an education institution or non-profit independent research institute, so not an SRI.
  • 520 required under section 5501.106(d)(1)(iii) because employee providing advice and counsel as member of Board of Directors. 
  • Pursuant to section 208, employee could not participate in matters (grant applications) that would affect the Foundation’s financial interests.  Also need to determine if recusal from such applications would require employee to recuse from matters that are central or critical to the performance of his duties under section 2635.802.  If yes, outside activity is not permissible.  Assuming recusal is manageable, employee could help Foundation write the grant application.  No issue under section 5501.106(c)(1)-(2) because uncompensated activity.  Also, behind-the-scenes work is permissible under section 205.  Note:  another Board member would have to sign any application submitted to the Executive Branch. 
  • Under section 2635.502, appearance of a conflict of interest if the employee participates in the review of a fellow Board member’s grant application.  Scope of recusal includes both specific applications submitted by a Board member and the entire RFA if Board member submits under that funding opportunity.
  • OER case study regarding the recusal obligation:  http://ethics.od.nih.gov/topics/ODA/CS-7.pdf
    
    
• Awards:  the following gifts are associated with an award sponsored by the ABC Scientific Society.  An NIH employee has been chosen as the 2012 recipient of the Society’s Distinguished Researcher Award.  Can the employee accept each gift, and if yes, what regulatory provision allows her to do so?
  • The honor of being named the 2012 awardee?  No exception or exclusion needed.
  • Awards banquet tickets?      
    • Just two tickets?  Most likely a WAG, 204(g)(2)   
    • Tickets for her whole family?  204(d)(3), but only if 204(d)(1) criteria is met.  No (d)(1) criteria?  Use WAG for two tickets (awardee and another); employee may pay for the other tickets.
    • An entire table (10 seats @ $250/seat)?  204(d)(1).  Note:  while a lab chief (the awardee) can invite his subordinates (his lab staff) to be his guests at the banquet, the lab chief could not offer a ticket to his superior (the SD).  If the organization offered the ticket to the SD (maybe because he nominated the lab chief), then the SD could most likely accept the gift from the organization under the WAG exception.
  • Travel reimbursement?  348 travel, with 204(d)(1) criteria (via 204(d)(3)), or without it (just meeting 348’s criteria)
  • Plaque or trophy?
  • Of modest value ($50)   exclusion for items of little intrinsic value 2635.203(b)(2)
  • Valuable (organization commissioned an artist and paid $1,500 for the trophy)  204(d)(1).  If no 204(d)(1), could the agency accept the gift on behalf of the employee?  Depends on what accomplishment the award is honoring.  If specific to the individual (for his research), probably no.  If for the employee’s leadership, maybe yes.
• Waiver of the Annual Meeting’s Registration Fee (award will be presented at the meeting)?  348 travel if the meeting is out of town.  For local events, a policy call as to whether the agency wants to use general agency gift acceptance authority
• Waiver of Society’s Annual membership fee (value $500)?  204(d)(1) because personal to the employee
• One year’s subscription to Society’s journal (value $250)?  204(d)(1) for the employee to accept the gift; agency gift acceptance for the office or the lab to accept the subscription.
• Research Support?
• To NIH employee’s lab  general agency gift acceptance authority
• To a junior investigator selected by the awardee  204(d)(1) in order for the employee to select a recipient of the additional funding.
• Cash prize?  204(d)(1), ACD and NEAC (if the awardee (top 5) or the prize (>$2,500) meets NEAC’s jurisdiction.