VIII. NOTICES
APPROVAL OF AN OUTSIDE ACTIVITY DOES NOT RELEASE YOU FROM A CONTINUING LEGAL OBLIGATION TO
DISQUALIFY YOURSELF FROM OFFICIAL ASSIGNMENTS AFFECTING YOUR OUTSIDE EMPLOYER OR THE ENTITY
TO WHICH YOU ARE PROVIDING PERSONAL SERVICES. WHILE PERFORMING AN APPROVED OUTSIDE
ACTIVITY, ANY ACTIONS TAKEN IN CONFLICT WITH APPLICABLE ETHICS LAWS MAY SUBJECT YOU TO
CRIMINAL PROSECUTION OR DISCIPLINARY PROCEEDINGS.
Caution. When you consult, teach, speak, write, serve on a board,
or work for a company, organization, or other entity outside your
government job, your relationship with that outside entity has certain
legal and ethical consequences. The approval of an outside activity
does not mean that you are free of conflicts of interest. You must
still follow all substantive ethics requirements after approval is
granted. Consult the ethics regulations at 5 CFR 2635.802 and
5501.106(d)(4) which are reprinted below.
Conflicts Resolution. An approved HHS Form 520 does not
signify that you need not be concerned about conflicts of interest.
Under the law, conflicts of interest arising out of outside employment
or service in a fiduciary position can be resolved in advance in only
three ways: (1) you can inform your supervisor and disqualify
yourself from participating in a conflicting government matter (often
called a recusal); (2) you can seek, if certain legal requirements are
satisfied, a separate legal document from your appointing official or
designee that specifically permits you to work on the government
matter (known as a waiver), or (3) you can resign from either your
government or outside job. Outside relationships that fall short of
actual employment or a fiduciary role pose similar appearance
concerns that must be addressed under procedures in 5 CFR
2635.502.
Effect of Prior Approval. The outside activities prior approval
process has very limited purposes. When a reviewer approves an
HHS Form 520 for your outside activity, two fundamental
assessments are being made, which are discussed below. You
reasonably may rely on these specific determinations only if you
provided all relevant information on the form and the
circumstances under review do not thereafter
change. You remain
responsible for the legal and ethical consequences of any change
in personal or business affairs or a change in your government
duties.
First, based on the information which you provide, the reviewer
determines whether your proposed activity is plainly prohibited by
applicable statutes or regulations, including the provisions of the
ethical standards governing appearances of impropriety. For
example, if you want to lobby Federal agencies on behalf of a non-
profit organization that employs you, prior approval will be denied
because a cr
iminal statute prohibits such representational
activities.
Second, assuming your proposed activity is not specifically
prohibited, the reviewer determines whether, under the circum-
stances, approval should be denied for other reasons specified
under the law. For example, the reviewer may deny approval if the
facts show that you used your government position to obtain an
outside compensated business opportunity or if the activity would
create the appearance that you are violating the law or the ethical
standards. Another common reason for denying approval is that the
outside activity may prevent you from handling work that is expected
of you. Because the outside activity may cause you to have to
disqualify yourself from a broad range of job assignments, or even a
few crucial projects, that will affect your outside employer or the
entity to which you provide personal services, it may be impossible
for you to discharge fully your government duties.
If, however, your outside activity is approved, the reviewer has
determined that the matters in which you will not be allowed to
participate are not “so central or critical to the performance of [your]
official duties” that your ability to perform the duties of your position
would be materially impaired. In other words, you cannot work on a
government matter affecting your outside employer, but the
reviewer expects that you will be able to stay away from these
assignments and still do your job.
Recusal Obligations. When performing your Federal duties, you
must not participate in any government matter that will affect your
own self-interest in continuing your outside job or activity. For
example, you would have to disqualify yourself from participating in
any official matter that might put your outside employer out of
business or seriously affect its finances, either positively or
negatively, so that the odds of your remaining employed are also
affected. In addition, when you work for an outside employer or
serve in a fiduciary role with an organization, the financial interests
of that company or organization are considered to be your own. As
a result, if the company or organization has a financial interest in
how a government matter will be resolved, you cannot work on that
matter. This means that you cannot work on a government matter
that involves or affects your outside employer as a specific party,
such as a contract, grant, audit, investigation, or litigation. The law
also requires you to stay away from government matters that are
larger in scope, such as deliberations and decisions on developing,
implementing, or enforcing statutes, regulations, policies, studies,
or proposals, that will have an effect on a large class of employers
like the one for which you work on the outside. For example, if you
were permitted to have an outside position as an employee of a
hospital, a drug company, or a nonprofit organization, you could not
participate personally in any significant way in a policy decision that
affects the financial interests of the industry or organizational sector
in which these employers operate. Under certain limited
circumstances, a waiver for such “particular matters of general
applicability” can be considered, if you notify your appointing official
in advance and receive a written determination. Outside relation-
ships that fall short of actual employment or a fiduciary role pose
similar appearance concerns, but the recusal obligation is limited to
specific party matters.
Scope of Recusal. Although many employees understand the
need to disqualify themselves from participating in an official matter
that affects their outside employer, they often believe erroneously
that they can pick and choose among the various aspects of a
particular matter and stay away only from the important decisions.
Such incomplete recusals will not protect you from a criminal
conflict of interest violation. Unless a waiver, approved in advance,
identifies specific permitted activities, you must refrain entirely and
absolutely from participating personally and substantially in a
government matter that affects your own financial interest or that of
an outside employer. When you are involved significantly in
proposing, planning, advising, deciding, or implementing some
official action, and you do so individually or by actively directing
subordinates, your participation is personal and substantial.
HHS-520 (1/06) (Previous Editions Obsolete)
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