Ethics Briefing for Special Government Employees Serving on NASA Advisory Committees

Federal Advisory Committee Act (FACA) prescribes the legitimate purposes, membership, and operations of advisory committees comprised wholly or in part of non-US Government employees.

How do advisory committees work? What are “advisory committees” for? Obtain the advice of persons from outside the Government who can offer scientific, technical, and managerial expertise to the Agency. Uses advisory committees to inform Agency managers of the concerns of external organizations that have an interest in NASA activities. Operate in a manner fully consistent with the provisions of the Federal Advisory Committee Act (FACA), which was created to ensure that committee meetings and records are open and accessible to the public. Subcommittees or task forces of NASA advisory committees that may not be subject to the FACA will be established and managed under procedures that ensure the same spirit of openness and public accountability that is embodied in the FACA. NASA advisory committees subject to the FACA: any committee, board, commission, council, conference, panel, task force, or other similar group established by NASA for the purpose of obtaining advice or recommendations on issues within the scope of the NASA Administrator's official responsibilities. NPD 1150.11

What is a FACA Meeting? 41 CFR Parts 101-6 and 102-3 102-3.25: Committee meeting means any gathering of advisory committee members (whether in person or through electronic means) held with the approval of an agency for the purpose of deliberating on the substantive matters upon which the advisory committee provides advice or recommendations. Please make the point here that deliberations via email are considered meeting and as such 1) the DFO needs to be present and 2) minutes have to be taken

FACA & Public Participation Providing the opportunity for reasonable participation by the public in advisory committee activities, subject to GSA FACA regulations, the Freedom of Information Act, specific exemptions of the Government in the Sunshine Act, 5 U.S.C. º 552b(c), section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. º 794, and NASA procedural requirements

Service on NASA Advisory Committees Appointment as Special Government Employee (SGE) Defined at 18 U.S.C. 202(a) Anyone who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for a period not to exceed 130 days out of any 365 days Includes advisory committees

SGE Ethics Rules Ethics Principles: Status as SGE Public service is a public trust May not have conflicting financial interests May not improperly use nonpublic information Avoid even the appearance of impropriety Status as SGE Equivalent to being an insider Subject to civil service ethics rules Subject to post-employment restrictions

Major Criminal Laws Financial Conflicts of Interest 18 U.S.C. 208 & 201 Representational Conflicts of Interest (18 U.S.C 203 & 205) Limits on Representation when you leave the government (18 U.S.C. 207)

Financial Conflicts 18 U.S.C. 208 Prohibits involvement in a particular matter in which the SGE, employer, or spouse or dependent child has a financial interest: An employee is disqualified from participating personally and substantially in any particular matter in which the employee, or anyone whose interests are imputed to the employee, has a financial interest, if the particular matter will have a direct and predictable effect on that interest.

Imputed Interests Spouse Minor Child General Partner Organization which the individual serves as officer, director, trustee, general partner or employee Person or organization with which the employee is negotiating or has an arrangement for prospective employment

Financial Interests Stocks Bonds Employment Consulting arrangments Grants, contracts Interests through ownership, partnership, LLC (limited liability corps.)

Particular Matter Deliberations, decisions, or actions that are focused upon the interests of: Specific persons or entities (EX: contract, grant, agreement) Identifiable class of persons or entities (EX: industry) NOT focused on: Broad policy options or considerations

Financial Disclosure 2 types: Public (SF-278) Confidential (OGE-450) Purpose: Identify potential conflicts of interest to preserve integrity of committee’s work

Conflict of Interest What should you do? Recuse yourself Inform your Executive Director Seek legal advice Some regulatory exemptions (< $15K) Waiver signed by Administrator in special circumstances

Representational Conflicts 18 U.S.C 203 & 205 Prohibits representational activities before the Government Applies to SGEs only if: Matter involves parties (e.g., contracts) SGE was personally and substantially involved in the particular matter as part of Government service, or SGE served more than 60 days in the previous 365, and matter is pending before the same agency

Post-Employment Restrictions 18 U.S.C. 207 Permanently prohibits a former employee from making, with intent to influence, any communication to the United States, on behalf of any other person in connection with a particular matter in which the United States is a party or has a substantial interest, if the employee was personally and substantially involved in the matter.

Post Employment Restrictions (one year “cooling off” period) Subject to 1 year representational “cooling off” period if If you are paid for services as an SGE, and Your basic rate of pay was at or over a certain amount (= or > than $155,440.50 in 2010), and You served 60 days or more as SGE in last year before leaving advisory comm. Restriction on appearances before or communications to NASA (on behalf of another entity)

Standards of Conduct Gift Rules Exceptions Anything having monetary value Prohibited Sources Official Position Exceptions Outside business activities Personal relationships $20/$50 rule

Impartiality Must maintain impartiality Cannot represent 2 entities at the same time and maintain impartiality Apply “Washington Post” test When in doubt, recuse yourself. Seek legal advice.

NASA Ethics Officials Michael C. Wholley, General Counsel Designated Agency Ethics Official Adam Greenstone, Ethics Team Lead Alternate Designated Agency Ethics Official Headquarters Ethics Team Rebecca Gilchrist, Katie Spear, Jim Reistrup, Kathleen Teale, Andrew Falcon (Associate General Counsel for General Law) (202) 358-2465 or ethicsteam@hq.nasa.gov