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The Office of Government Ethics (OGE) today (7 March 2013) published a notice in the Federal Register announcing a major change in the implementation of a federal criminal statute that prohibits federal employees from serving on the boards of outside organizations. That statute was interpreted in 1996 by the Department of Justice (DOJ) to prohibit an employee from serving, in an official capacity, as an officer, director or trustee of a private nonprofit organization, even in the absence of an actual conflict of interest. Following the issuance of that statement by DOJ, federal agencies instituted a variety of practices. Some, such as the National Institutes of Health, recognized that the agency benefitted from the active participation of its researchers in the larger scientific community and the recognition of those scientists by their scientific societies. These agencies freely issued waivers. Other agencies – perhaps wanting to avoid having to determine if and when waivers would be appropriate – refused to issue waivers. Some agencies provided no guidance to employees and so many federally employed scientists were unaware of the prohibition and the potential for prosecution. Even in agencies that eventually made efforts to inform employees and then established a waiver process were slow to process waiver requests.
By 1998, the Ornithological Council (OC) and The Wildlife Society (TWS) began to hear from scientists employed by federal agencies that they had been told that they could not serve on the boards of their scientific societies and that they were being discouraged from applying for waivers. Joined by the Society of American Foresters and later by the American Association for the Advancement of Science, the American Statistical Association, the Society for Conservation Biology, and dozens of other scientific societies, OC and TWS met numerous times with the Office of Government Ethics and later the White House Office of Science and Technology Policy (OSTP) and the Office of Personnel Management (OPM). Both OSTP and OPM recognized that these restrictions could make it more difficult to attract and retain the best scientists to federal service. During this time, OGE, having recognized the problems and concerns that arose from this policy, recommended to the President and Congress that the statute be amended ``to specify that the financial interests of an organization are not imputed to an employee who serves as an officer or director of such organization in his or her official capacity.'' In a 2006 Report, OGE recognized that it had ``regulatory authority to exempt financial interests arising from official service on boards of directors,'' but OGE chose at that time to place the issue before Congress first. No legislative changes to the statute were enacted in response to the report. The OGE continued to receive expressions of concern about this matter, both from agencies and from nonprofit organizations.
A 2009 memorandum from President Obama to the heads of executive departments and agencies on the topic of scientific integrity spurred a resolution. The President specifically requested that OSTP provide recommendations to address, among other things, the retention of staff in scientific and technical positions within the executive branch. In response, the Director of OSTP issued a memorandum urging all agencies to establish policies that promote and facilitate the professional development of Government scientists and engineers. The resulting OSTP memorandum specifically called for policies to ``allow full participation in professional or scholarly societies, committees, task forces and other specialized bodies of professional societies, including removing barriers for serving as officers or on governing boards of such societies.''
The new policy announced today reflects OGE’s determination that it was appropriate to exercise its authority exempt the imputed financial interests of nonprofit organizations in which employees serve as officers, directors or trustees in their official capacity. Specifically, OGE found that such financial interests are too remote or inconsequential to affect the integrity of employees' services, for several reasons. As explained in OGE's 2006 Report: ``OGE believes that the conflict identified by OLC [between the employee's duty of loyalty to the Government and the employee's fiduciary duties to the outside organization] may be more theoretical than real, particularly because employees assigned to serve on outside boards remain subject to important Federal controls, such as the authority to review and approve (or deny) the official activity in the first place, and the authority to order the individual to limit the activity, or even resign the position, in the event of a true conflict with Federal interests. In addition, an agency generally approves such activities only where the organization's interests are in consonance with the agency's own interests. In an era when `public/private partnerships' are promoted as a positive way for Government to achieve its objectives more efficiently, ethics officials find it difficult to explain and justify to agency employees why a waiver is required for official board services that have been determined by the agency to be proper.'' In short, the potential for a real conflict of interest is too remote or inconsequential to affect the integrity of an employee's services under these circumstances.
Agencies will, of course, have valid management reasons to restrict the extent of an employee’s participation on the boards of outside organizations. This is particularly true in an era of declining federal budgets and reduced staffing levels. Further, as OGE notes, employees must still adhere to the agency conflict-of-interest policies. Further, there will likely be limits on participation in lobbying, fundraising, regulatory, investigational, or representational activities, as determined by the agency.
The Ornithological Council strongly urges all ornithologists who wish to serve on the boards of ornithological or other scientific societies to contact their agency ethics officers and to submit a written statement that they have reviewed the agency ethics policies and will abide by those policies.
The full Federal Register notice can be found here: http://www.gpo.gov/fdsys/pkg/FR-2013-03-06/html/2013-05243.htm