Ethics Rules During a Lapse in Appropriations

In the event a lapse in appropriations, all HHS employees in a non-pay status, whether required to work or not, continue to be subject to all of the ethics laws and regulations, including the criminal conflict of interest statutes, the government-wide Standards of Ethical Conduct, and the HHS Supplemental Standards of Ethical Conduct (HHS Supplemental Standards).  In addition, the Hatch Act rules regarding political activities continue to apply.  The following information highlights what you need to know in the event of a lapse in appropriations.

Outside Activities

If you wish to engage, with or without compensation, in outside employment or self-employed business activities during a lapse in appropriations, you must obtain prior approval (unless you have already done so) in order to: 

  1. Provide consultative or professional services, including service as an expert witness;
  2. Engage in teaching, speaking, writing, or editing that either relates to your official duties or that was offered by a prohibited source; and
  3. Provide services to a non-Federal entity as an officer, director, or board member, or as a member of a group, such as a planning commission, advisory council, editorial board, or scientific or technical advisory board or panel, which requires the provision of advice, counsel, or consultation.

For example, these activities require prior approval:  Real estate agent, volunteering or working as a physician, nurse, or lawyer, serving as an officer on the board of directors of a non-profit organization, and self-employment as an IT consultant.  These, however, do not:  Working in retail sales, language tutor, coffee shop barista, babysitter, caterer, bartender.

NOTE:  Activities that are prohibited under agency-specific rules remain prohibited.

Even if your outside employment does not require prior approval, the following requirements apply:

  • You cannot represent the interests of anyone else back to the United States, even during the lapse of appropriations;
  • You cannot use your official title or position in connection with the outside activity;
  • You cannot use any HHS equipment or resources in connection with the outside employment; and
  • If the outside employment continues after the lapse in appropriations ends, you still cannot use HHS equipment, time, or resources in connection with the outside employment. There is no de minimis use of government equipment that applies to any compensated outside activity.

Crowdsourced Fundraising

During a lapse in appropriations, some employees may consider seeking financial assistance through electronic “crowdsourced” fundraising efforts, such as a “GoFundMe” campaign, which seek contributions or services from a large group of people, especially from an online community.  These crowdsourced fundraising efforts raise many ethics concerns that employees must consider before launching such campaigns:

  • Employees, or someone on their behalf, may not start a crowdsourcing campaign to raise funds because the employee is in a non-pay status.  An employee (or a person acting on the employee’s behalf, such as a spouse) may not solicit a gift based on the employee’s federal employment.  Therefore, an employee’s agency, title, or status as a federal employee should not be used in any such solicitation.  Additionally, employees cannot generally accept gifts from prohibited sources.  And most political appointees cannot accept gifts from a lobbyist or lobbying organization.  Therefore, an employee would need to be able to identify and reject such prohibited donations.  An employee could accept donations from the employee’s friends or relatives when it is clear that any donations accepted are based on that friendship or family relationship.
  • Employees may accept assistance from a crowdsourcing campaign designed to provide assistance to federal employees in a non-pay status if:
    1. The assistance is offered to a broad class of government employees that does not discriminate based on responsibility, rank, or rate of pay (such as all furloughed federal employees); and
    2. the campaign organizer is not a prohibited source.

Gifts

Gifts/benefits offered only to furloughed federal employees.  Employees may accept gifts offered to a class of government employees that does not discriminate on the basis of official duties or rank (such as all furloughed federal employees) given by an organization or person who is not a “prohibited source” (such as an organization or person that has business or seeks to do business with the employee’s agency, conducts activities regulated by the employee’s agency, or has interests that may be substantially affected by the performance or non-performance of the employee’s official duties).

No interest loan from a bank or credit union.  Employees may accept loans from banks or financial institutions on terms available to the general public or to all federal employees, whether or not restricted by geographic considerations.  If an offer is limited only to furloughed federal employees, the employee may accept as long as the bank or credit union making the offer is not a prohibited source for that employee.

Acceptance of a small gift, other than cash, offered as an individual gesture of goodwill. Employees may accept such offers as long as the offer is unsolicited, the offered gift’s value is $20 or less, the offered gift is not cash or a cash equivalent (such as a VISA or MasterCard gift card), and the employee does not accept more than $50 from the same person in a year.  For example, an employee may accept an unsolicited offer to provide or pay for the employee’s lunch as long as the lunch bill is $20 or less.  However, most political appointees cannot use this exception to accept a gift from a lobbyist or lobbying organization.

Acceptance of financial assistance offered by a friend and/or family member.  Employees may accept gifts that are based on personal relationships as long as the circumstances make clear that the relationship is the motivating factor, rather than the employee’s federal position. Relevant factors include the history and nature of the relationship and whether the family member or friend is personally offering assistance.  For example, an employee may likely accept a $1,000 cash loan offered by a family member or close friend.  However, an employee would generally need to decline a similar offer from a friend who works for an agency’s contractor where the employee’s official duties affect the contractor.

Offer or accept financial assistance from co-workers.  The ethics rules limitations on gifts between employees remain in effect during a lapse of appropriations.  Generally, employees may not give, donate to, or solicit contributions for, an official supervisor, and may not accept gifts from employees receiving less pay.  However, employees may accept the following from subordinates or employees receiving less pay: (1) non-cash gifts with a value of $10 or less, or (2) gifts of personal hospitality of a type and value customarily provided. Additionally, while appropriate gifts may be given on infrequently occurring occasions of personal significance, a lapse in appropriations in itself is not such an occasion.

Hatch Act

The Hatch Act limits certain types of political activities for federal employees.  Officers in the Commissioned Corps are not subject to the Hatch Act, but for political activity, they are subject to the regulatory restrictions under the HHS Code of Conduct, 45 Code of Federal Regulations, Part 73, Subpart F, which mirror the restrictions in the Hatch Act.  Even during a lapse in appropriations, employees (furloughed or not) are prohibited from:

  • Soliciting, accepting, or receiving political contributions;
  • Running for partisan political office;
  • Using the employee’s HHS affiliation or title in connection with political activity;
  • Coercing subordinates to engage in political activity;
  • Accepting volunteer services from a subordinate;
  • Using the employee’s official authority to interfere with the outcome of an election; and
  • Soliciting or discouraging political activity of anyone with business before HHS.

In addition, further restricted employees (including career SES and Commissioned Corps officers) may not:

  • take an active part in partisan political campaigns or act in concert with a partisan campaign; or
  • take an active part in partisan political management.

For additional information on ethics rules and considerations on these topics, employees may check the following additional resources:

Ethics Guidance for Employees in Non-Pay Status During a Lapse in Appropriations:  OGE LA-19-01 Ethics Guidance during non-pay status

FAQs for Employees Engaged in Crowdsourced Fundraising:  OGE LA-20-07 Ethics FAQs for crowdsourced fundraising

NIH Ethics Website:  https://ethics.od.nih.gov/topics

 

Content created by Office of the General Counsel (OGC)
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