Content created by Office of the General Counsel (OGC)
Dear Ethics Colleagues,
Like you, the OGC Ethics Division has received questions about the ethics-related implications of deferred resignation. To ensure that all HHS employees participating in OPM’s deferred resignation program receive the same general guidance, the OGC Ethics Division has prepared the following discussion. Unless the list of participating employees of your component is available to you, please distribute it to all of your component employees in a manner that makes it clear that it is meant for those who have decided to participate in OPM’s program. Although we are aware that employees leaving federal service under other programs or initiatives may be placed in non-duty status prior to final separation, neither DAEO Supplemental Instruction 25-01 nor the attached guidance apply to these other employees.
Please ensure that all employees participating in OPM’s deferred resignation program know how to reach you and that they may seek guidance at any time during or after their federal service.
Should you become aware that any employee participating in OPM’s deferred resignation program will be or has been recalled to duty status, please contact our office to determine whether DAEO Supplemental Instruction 25-01 still applies in the individual case.
Applicable Rules
As indicated in the information received from OPM.gov, employees who have accepted OPM’s deferred resignation offer are expected to be placed on Administrative (or other) Leave not later than Feb. 28, 2025. To be clear, while you are on administrative leave, you are still an HHS employee and must comply with federal ethics laws and regulations, including the criminal conflict of interest statutes and the Hatch Act. Then, after you separate from HHS, you will be subject to the criminal post-employment restrictions at 18 U.S.C. § 207.
However, the HHS Designated Agency Ethics Official (DAEO) has waived the HHS supplemental ethics regulations requiring prior approval for outside employment and outside activities and prohibiting certain activities, whether paid or unpaid, for all employees who have accepted OPM’s deferred resignation offer and are thus on Administrative Leave.
Therefore, until you separate from HHS you may not:
- represent someone else, including any non-federal entity, back to the executive or judicial branch of the United States in any matter in which the United States is a party or has a substantial interest;
- accept compensation for representational services involving the United States that you or someone else provides;
- use your HHS title or authority for your personal benefit or the benefit of others;
- accept gifts that are given because of your HHS position or from a prohibited source (anyone doing business with or regulated by HHS) unless an exception applies;
- share non-public information, including deliberative or attorney-client privileged information; or
- engage in non-political fundraising on behalf of a non-federal entity to seek contributions from subordinates or HHS prohibited sources.
Although you may seek and accept non-federal employment after you are placed on Administrative (or other) Leave, you still will be subject to the rule that prohibits you from engaging in employment and other outside activities that violate law or regulation, and also from accepting compensation for teaching, speaking, or writing that relates to your official duties because the information to be conveyed draws substantially on ideas or official data that are nonpublic or the subject matter deals in significant part with matters to which you were assigned within the past year or any ongoing or announced policy, program or operation of the agency, as outlined in 5 C.F.R. § 2635.802 and 5 C.F.R. § 2635.807, respectively. Additionally, you may not serve as an expert witness in proceedings before any federal court or agency if the United States is a party or has a direct and substantial interest without the DAEO’s approval. If you are a public financial disclosure filer, note that even after you are placed on Administrative (or other) Leave you must file a statement notifying your agency ethics official of any negotiation for, or agreement of, future employment or compensation with a non-federal entity no more than three business days after commencement of the negotiation or agreement. Notification of Future Discussions or Agreement and Recusal Statement.
Prohibited Holdings: The DAEO has determined that the NIH-specific holding restriction does not apply to employees placed on Administrative (or other) Leave because they are participating in OPM’s deferred resignation program. If you are an FDA employee who is subject to component-specific regulatory restrictions on certain investments, you will continue to be subject to those restrictions while you are on Administrative Leave, unless the acting FDA Commissioner or designee waives these restrictions. See 5 C.F.R. 5501.104.
Hatch Act: Until you separate from HHS, you must comply with the Hatch Act, which governs your personal political activity (i.e. any activity directed at the success or failure of a candidate for partisan election, a political party, or political group).
The following prohibitions apply to all employees, all the time, even while you are on administrative leave. These are 24/7 restrictions. You must never:
- solicit, accept, or receive political contributions (even in personal social media);
- run for partisan political office;
- use your HHS affiliation or title in connection with political activity;
- engage in political activity in a federal workplace including telework locations (during work
- hours); coerce subordinates to engage in political activity;
- accept volunteer services from a subordinate;
- use your official authority to interfere with the outcome of an election; or
- solicit or discourage political activity of anyone with business before HHS.
Career members of the senior executive service (SES), administrative law judges, and administrative appeals judges are further restricted under the Hatch Act and have additional restrictions on their ability to actively participate in political campaigns. More information for these employees can be found at Hatch Act – further restricted. Uniformed members of the US Public Health Service Commissioned Corps are not governed by the Hatch Act, but they have comparable restrictions to those for further restricted employees at USPHS Commissioned Corps restrictions. Additional Hatch Act information for all others, known as lesser restricted employees, is available at Hatch Act – most employees. Additional general information is available at HYPERLINK "https://osc.gov/Services/Pages/HatchAct.aspx"Hatch Act, including Hatch Act FAQs. The social media FAQs for federal employees are particularly helpful. Hatch Act FAQs. The social media FAQs for federal employees are particularly helpful.
Financial Disclosure Filers: If you are a confidential financial disclosure report (OGE Form 450) filer, your annual 2024 OGE Form 450 was due February 18, 2025 unless you received a due date extension.
If you are a public financial disclosure report (OGE Form 278e) filer, your annual 2024 OGE Form 278e is due May 15, 2025, and you must continue to file Periodic Transaction Reports (OGE Form 278-T) until you separate from HHS. Your termination OGE Form 278e will be due within 30 days after your departure, but can be filed 15 or fewer days prior to your separation provided you agree to update the report with any changes between your filing date and termination date. Your termination report will cover 2025 through your last day of federal service.
If you need a due date extension for any financial disclosure or transaction report, please contact your agency ethics official. A late fee of $200 is required by law for any 278e report filed more than 30 days after it was due.
If you are a public financial disclosure report filer who files using the Integrity system or an agency filing system, ask your agency ethics official to update your system profile to include personal contact information before you are placed on Administrative Leave.
Potential Personal Financial Conflicts of Interest Upon Recall to HHS: If you are recalled to at least some of your current HHS duties after being placed on administrative leave, depending on the personal employment, business, or financial decisions you have made while on leave, you may run the risk of being in violation of the criminal law governing personal financial conflicts of interest, 18 U.S.C. § 208. To address any such concerns, please contact your ethics official immediately upon your return to HHS. A list of all HHS lead ethics officials is available at HHS Ethics Officials on the public-facing HHS.gov website.
Additional Ethics Information Available: The Ethics Division has developed Ethics Q&As on the public-facing HHS.gov website for current and former HHS employees.
Contact Information: You can contact your HHS ethics official with questions about this ethics guidance either before or during your resulting administrative leave. HHS ethics officials are also available to answer questions about the criminal post-government employment conflict of interest restrictions at 18 U.S.C. § 207, even after you have separated from HHS.
A list of all HHS lead ethics officials is available at HHS Ethics Officials on the public-facing HHS.gov website. If you are not able to access that list, please call the OGC Ethics Division main number at 202-690-7258.