11 FAM 600
ETHICS and financial disclosure
11 FAM 610
ETHICS and financial disclosure PROGRAMs
(Office of Origin: L/EFD)
11 FAM 611 GENERAL
11 FAM 611.1 Purpose
a. This subchapter summarizes certain requirements, responsibilities, and procedures relating to the Department of State’s ethics and financial disclosure programs. The Secretary of State is responsible for establishing, maintaining, and carrying out the Department’s ethics and financial disclosure programs. A Deputy Legal Adviser is appointed by the Secretary to serve as the designated agency ethics official (DAEO) to coordinate and manage the ethics and financial disclosure programs on behalf of the Secretary. The purpose of the ethics and financial disclosure programs is to ensure that employees are aware of and act in accordance with Federal statutes, regulations, and rules regarding ethics and financial disclosure.
b. This subchapter is intended to alert employees to the requirements, responsibilities, and procedures of the Department’s ethics and financial disclosure programs. While this subchapter is illustrative of certain ethics laws, it is not a comprehensive compendium of every ethics issue that could arise. Employees should review the information presented here as well as the resources provided by the Ethics Office on the intranet and BNET. Consult the Ethics Office with specific questions as needed.
c. Certain additional ethics restrictions may apply to political appointees. For example, the Ethics Pledge (Executive Order 13770) imposes additional restrictions on political appointees in the areas of gifts, post-employment restrictions, and lobbying. Please contact the Ethics Office for further guidance on these additional restrictions.
11 FAM 611.2 Authorities
In the event of any conflict between the provisions of this subchapter and any applicable law, the law prevails:
(1) 18 U.S.C. 201-209;
(2) 5 U.S.C. app. 101-11 (including the Stop Trading on Congressional Knowledge Act of 2012, as amended);
(3) 5 U.S.C. 7353 (Gifts to Federal Employees);
(4) 5 CFR 2634 (Executive Branch Financial Disclosure);
(5) 5 CFR 2635 (Standards of Ethical Conduct for Employees of the Executive Branch);
(6) 5 CFR 2636 (Limitations on Outside Earned Income, Employment and Affiliations for Certain Noncareer Employees);
(7) 5 CFR 2638 (Office of Government Ethics and Executive Agency Ethics Program Responsibilities);
(8) 5 CFR 2640 (Interpretation, Exceptions, and Waiver Guidance Concerning 18 U.S.C.208);
(9) 5 CFR 2641 (Post Employment Conflict of Interest Provisions);
(10) U.S. Const. art. I, s. 9, cl. 8 (Emoluments Clause) and 5 U.S.C. 7342 (Foreign Gifts and Decorations Act);
(11) 5 U.S.C. 7321 through 5 U.S.C. 7326, 5 CFR 733 and 5 CFR 734 (Hatch Act); and
(12) 5 CFR 950 (Combined Federal Campaign).
11 FAM 611.3 Definitions
Confidential filer: An individual who must file a Form OGE-450, and includes, as defined in 5 CFR 2634.904(a):
(1) An employee of the Department or candidate for employment with the Department in a position classified at GS-15 or below or at FS-01 or below (or, in the case of any individual whose pay is not fixed under the General Schedule and who does not serve in the Foreign Service, in a position for which the rate of basic pay is less than 120 percent of GS-15, step 1) if the employee’s management official (or the Ethics Office) determines that:
(a) The duties and responsibilities of the employee’s position require the employee to participate personally and substantially through decision or the exercise of significant judgment, and without substantial supervision and review, in taking government action regarding:
(i) Contracting or procurement;
(ii) Administering or monitoring grants, subsidies, licenses, or other federally conferred financial or operational benefits;
(iii) Regulating or auditing any non-Federal entity; or
(iv) Other activities in which the final decision or action will have a direct and substantial economic effect on the interests of any non-Federal entity; or
(b) The duties and responsibilities of the employee’s position require the employee to file such a report to avoid involvement in a real or apparent conflict of interest. These positions might include those with duties that involve investigating or prosecuting violations of criminal or civil law;
(2) An employee who is not a public filer and is an executive director, management counselor, deputy chief of mission, or economic counselor or who has equivalent duties and responsibilities in a position at a smaller post;
(3) A contracting officer's representative (COR), grants officer representative (GOR), or government technical monitor (GTM) assigned to an active contract or grant;
(4) A special government employee (SGE) who is not a public filer; or
(5) A personal services contractor (PSC) who meets the criteria herein.
Department: The Department of State, unless indicated otherwise.
Designated agency ethics official (DAEO): As defined in 5 CFR 2638.104, the official appointed by the Secretary to coordinate and manage the Department’s ethics and financial disclosure programs. The duties of the DAEO include those listed in 5 CFR 2638.203. The alternate designated agency ethics official (ADAEO) has the same duties and responsibilities as the DAEO in the absence of the DAEO.
Entity: A corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such entity. The term is all inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his or her official capacity on behalf of that agency or entity.
Ethics Office, or L/EFD: Office of the Legal Adviser, Office of the Assistant Legal Adviser for Ethics and Financial Disclosure.
Financial Disclosure Management system (FDM): The secure electronic system, accessible at https://www.fdm.army.mil, used by Department public and confidential filers to complete and submit their new entrant, incumbent, and termination financial disclosure reports.
Form OGE-278, Executive Branch Personnel Public Financial Disclosure Report: The form required for use by executive branch employees for public financial disclosure reporting.
Form OGE-278-T, Executive Branch Personnel Public Financial Disclosure Report: Periodic Transaction Report: The form required for use by executive branch employees for public financial disclosure reporting of qualifying transactions.
Form OGE-450, Confidential Financial Disclosure Report: The form required for use by executive branch employees for confidential financial disclosure reporting.
Initial reviewer or "supervisor": The employee, designated by the management official pursuant to 11 FAM 617.6-3, subparagraph a(2), who must undertake an initial review of OGE-278, OGE-278-T, and OGE-450 reports, as described in 11 FAM 617.7. In FDM, this individual is referred to as the "supervisor," even if he or she may not be the employee's direct supervisor. The initial reviewer should be a senior officer who is familiar with the filer's work requirements and can identify potential conflicts of interest.
Management official: The bureau executive director or, overseas, the management counselor or officer.
Office of Government Ethics (OGE): The executive branch agency responsible for developing and implementing ethics and financial disclosure programs to facilitate compliance with ethics laws in the executive branch.
Public filer: An individual who must file a Form OGE-278, including, as defined in 5 CFR 2634.202:
(1) Each officer or employee in the Department, including a special government employee, whose position is classified above a GS-15, or the basic rate of pay for which is fixed, other than under the GS, at a rate equal to or greater than 120 percent of the minimum rate of basic pay for GS-15 (including Senior Executive Service and Senior Foreign Service employees); or
(2) An employee not otherwise described in subparagraph (1) of this definition who is in a position in the executive branch which is excepted from the competitive service by reason of being of a confidential or policy-making character (NOTE: this includes Schedule C appointees and limited noncareer political appointees), unless otherwise excepted.
Senior Legal Counselor: The member of the ethics office assigned to review a Form OGE-278 in FDM.
Special government employee (SGE): As defined in 18 U.S.C. 202, an ethics designation given to an officer or employee who is retained, designated, appointed, or employed to perform temporary duties (usually for 1 year at a time), with or without compensation, on either a full-time or intermittent basis, for not to exceed 130 days during any period of 365 days.
11 FAM 611.4 Ethics Office
11 FAM 611.4-1 Personnel
a. A Deputy Legal Adviser serves as the Department’s designated agency ethics official (DAEO). The Assistant Legal Adviser for Ethics and Financial Disclosure serves as the alternate designated agency ethics official (ADAEO) and, in the absence of the DAEO, carries out the responsibilities of the DAEO. The duties of the DAEO and the ADAEO include those listed in 5 CFR 2638.203. They are appointed under the authority of the Secretary to establish, maintain, and carry out the Department’s ethics and financial disclosure programs.
b. All ethics staff, other than the DAEO, are assigned to the Ethics Office, except as otherwise determined by the DAEO in consultation with the Department’s Legal Adviser.
c. The DAEO will generally designate one or more employees serving in the Ethics Office to serve as deputy ethics officials, and delegate to them duties under 5 CFR 2638.204. Other Department employees may be assigned to perform duties appropriate to their position and grade relating to the ethics and financial disclosure programs.
11 FAM 611.4-2 Responsibilities
a. Ethics Office staff will perform the duties described in 5 CFR 2638.203 and other duties as assigned, but only the DAEO or ADAEO may certify nominee financial disclosure reports (5 CFR 2634.605); waive a late filing fee (5 CFR 2634.704); or transmit a request for a certificate of divestiture (5 CFR 2634.1005). The DAEO may reserve responsibilities as specified in this chapter or in accordance with ethics staff procedures.
b. Under the supervision of the DAEO, the Assistant Legal Adviser for Ethics and Financial Disclosure is responsible for the overall management and direction of the Ethics Office, including maintenance of the ethics and financial disclosure programs.
c. The Ethics Office maintains the Department’s ethics and financial disclosure programs web site.
d. Ethics Office staff provide advice but do not investigate allegations of violations of law. The Department's Office of Inspector General is utilized when appropriate, including the referral of matters to and acceptance of matters from that Office (see 5 CFR 2638.203(b)(12)).
e. Disclosures made by an employee to the ethics staff are not protected by attorney-client privilege (5 CFR 2635.107(b)).
f. Employees should consult with the Ethics Office with any questions regarding ethics laws or rules.
11 FAM 611.4-3 Funding the Ethics and Financial Disclosure Programs
a. Sufficient funds will be allocated to the Office of the Legal Adviser to administer the ethics and financial disclosure programs, to include resources for personnel, audit, automation, and for training ethics personnel and Department employees.
b. The ethics and financial disclosure programs’ requirements will be submitted in conjunction with the Legal Adviser’s bureau performance plan and annual budget request.
11 FAM 611.4-4 Fourteen Principles of Ethical Conduct
a. Public service is a public trust; employees must place loyalty to the Constitution, the laws, and ethical principles above private gain.
b. Employees shall not hold financial interests that conflict with the conscientious performance of duty.
c. Employees shall not engage in financial transactions using nonpublic government information or allow the improper use of such information to further any private interest.
d. Employees shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the Department, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
e. Employees shall put forth honest effort in the performance of their duties.
f. Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the government.
g. Employees shall not use public office for private gain.
h. Employees shall act impartially and not give preferential treatment to any private organization or individual.
i. Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
j. Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official government duties and responsibilities.
k. Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
l. Employees shall satisfy in good faith their obligations as citizens, including all financial obligations, especially those imposed by law, such as Federal, State, or local taxes.
m. Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, gender identity, sexual orientation, national origin, age, or handicap.
n. Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in the Standards of Ethical Conduct. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
11 FAM 612 Conflicts of Interest and the Standard of Impartiality
11 FAM 612.1 Conflicts of Interest
a. In order to maintain the integrity of the Government, Department employees are prohibited by statute (18 U.S.C. 208) from taking certain official actions that would have an effect on a personal or imputed financial interest. A personal interest is any financial interest held by the employee.
b. An imputed interest is any financial interest held by one of the following:
(1) The employee’s spouse;
(2) The employee’s minor child;
(3) The employee’s general partner;
(4) An organization in which the employee is serving as officer, director, trustee, general partner, or employee; or
(5) An organization or entity with whom the employee is negotiating for, or has an arrangement concerning, prospective employment.
c. A financial interest might arise from ownership of certain financial instruments or investments such as stocks, bonds, mutual funds, trusts, managed accounts, equity accounts, and real estate, among other assets. Underlying investments of trusts, managed accounts, brokerage accounts, sector mutual funds, and other investment vehicles may also give rise to a conflict of interest for beneficiaries, owners, or trustees. Additionally, a financial interest might derive from a salary, indebtedness, job offer, or any similar interest that may be affected by the matter.
d. Some financial interests are exempt from this statute, based on the nature of the financial interest or the amount of the interest (see Subpart B, 5 CFR 2640).
11 FAM 612.2 The Impartiality Standard
a. An employee should not participate in a particular matter involving specific parties which he or she knows is likely to affect the financial interests of a member of his or her household, or in which he or she knows a person or entity with whom he or she has a covered relationship is or represents a party, if a reasonable person with knowledge of the relevant facts would question his or her impartiality in the matter.
b. An employee has a “covered relationship" with the following:
(1) Any person or entity with whom the employee has or seeks a business, contractual, or other financial relationship that involves other than a routine consumer transaction;
(2) A person who is a member of the employee’s household, or who is a relative with whom the employee has a close personal relationship;
(3) A person or entity for whom the employee’s spouse, parent, or dependent child is, to the employee’s knowledge, serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee;
(4) Any person or entity for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee; or
(5) An organization in which the employee is an active participant.
c. An employee who is concerned that these or other circumstances would raise a question regarding his or her impartiality should use the process described in 5 CFR 2635.502 to determine whether he or she should or should not participate in the particular matter.
11 FAM 613 personal GIFTS to employees
See 11 FAM Exhibit 613 for a chart of frequently used exceptions.
11 FAM 613.1 Gifts from Outside Sources
a. Except as permitted under 5 CFR 2635 Subpart B or otherwise by law, an employee shall not directly or indirectly solicit or accept a gift that is either (1) from a prohibited source, or (2) given because of the employee's position.
b. A "gift" includes any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value, including services, meals, travel, and tickets to or free attendance at events.
c. A "prohibited source" generally includes any person or entity seeking official action by the Department; doing business or seeking to do business with the Department; conducting activities regulated by the Department; or having interests that may be substantially affected by the performance or nonperformance of the employee's official duties.
d. The following are some examples of items an employee may typically accept under the gift rules in 5 CFR 2635 Subpart B:
(1) Modest items of food or refreshment offered other than as part of a meal;
(2) Greeting cards and items of little intrinsic value which are intended solely for presentation;
(3) Rewards and prizes given to competitors in contests or events that are open to the public (however, if the employee's entry into the event or contest is required as part of his or her official duties, such as when an employee attending a conference in his or her official capacity is automatically entered into a contest, the reward or prize cannot be kept by the employee);
(4) Anything for which market value is paid by the employee;
(5) Gifts that are "de minimis," i.e., with an aggregate value of $20 or less per occasion, provided that the aggregate value of gifts from that source in a calendar year does not exceed $50;
(6) Gifts that are clearly motivated by a family relationship or personal friendship rather than the position of the employee (new friendships formed in the course of performing official Department business will generally not meet this standard); and
(7) Gifts resulting from the outside business or employment of an employee or an employee's spouse when it is clear that such benefits have not been offered or enhanced because of the employee's official position.
e. Even if acceptance of a gift is permitted by these rules, an employee must not use his or her official position to solicit or coerce a gift, and must not solicit a gift from a prohibited source.
f. Even if acceptance of a gift is permitted by these rules, it is never inappropriate and is frequently prudent for an employee to decline a gift offered by a prohibited source or because of the employee's official position.
g. Even if otherwise permitted by these rules, an employee may not accept any gifts in return for being influenced in the performance of an official act, or accept gifts so frequently that it appears the employee is using public office for private gain.
h. Employees who file financial disclosure reports are reminded that personal gifts may be reportable on financial disclosure reports. See 5 CFR 2634.304 and 5 CFR 2634.907(g).
i. The following sections describe additional circumstances where an employee may be permitted to accept otherwise prohibited gifts.
11 FAM 613.1-1 Widely Attended Gatherings
a. A gift of free attendance at a qualifying "widely attended gathering" may typically be accepted, even if offered from a prohibited source or because of an employee's position. For purposes of the "widely attended gathering" exception to the gift rules in 5 CFR 2635.204(g), "free attendance" includes the provision of food, refreshments, entertainment, instruction, and materials furnished to all attendees as an integral part of the event, as well as the waiver of all or part of a conference or other fee. It does not include travel expenses, lodgings, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees.
b. The officials authorized to approve acceptance by an employee of an unsolicited gift of “free attendance” at an event are:
(1) For employees serving in a bureau:
(a) The bureau head;
(b) A deputy bureau head; or
(c) The responsible executive director; and
(2) For employees serving at a post:
(a) The ambassador/principal officer;
(b) The deputy chief of mission or deputy principal officer; or
(c) The management official.
c. The bureau head or ambassador/principal officer may further limit who may ordinarily exercise the authority in paragraph b of this section. An individual may not approve acceptance of his or her own free attendance.
d. Subject to the additional conditions covered in paragraphs e and f of this section, an employee may accept an unsolicited gift of "free attendance" if the approving official determines that:
(1) A large number of persons with a diversity of views or interests will attend the event (ordinarily more than 20);
(2) The cost of attendance is borne by the sponsor of the event (i.e., the person or organization hosting the event) or, if the cost is borne by other than the sponsor of the event, more than 100 persons are expected to attend the event, and the "free attendance" has a market value of $390 or less (NOTE: this amount changes periodically, and was set at $390 in 2017);
(3) The employee will attend the event on personal time, or will be authorized to attend on excused absence, or otherwise without charge to the employee’s leave account; and
(4) The employee’s attendance is in the interest of the Department because it will further Department programs or operations.
e. If the offered gift extends to free attendance for a spouse or other guest of the invited employee, the approving official must also determine that:
(1) Others in attendance will generally be accompanied by a spouse or other guest;
(2) The offer is from the same person or entity that is bearing the cost of the employee’s attendance; and
(3) If the offer is from a nonsponsor, the aggregate market value of free attendance for the employee and the guest will not exceed $390 (NOTE: this amount changes periodically, and was set at $390 in 2017).
f. If the offered gift is from a person or entity that may be substantially affected by the performance or nonperformance of the invited employee’s official duties (or from an organization where the majority of its members are affected by those duties), the approving official must also determine in writing that the Department’s interest in the employee’s participation in the event outweighs concern that acceptance of the gift of free attendance may or may appear to influence improperly the employee in the performance of his or her official duties. Relevant factors that should be considered by the approving official in making this determination include:
(1) The importance of the event to the Department;
(2) The nature and sensitivity of any pending matter affecting the interests of the person or entity who has extended the invitation;
(3) The significance of the employee’s role in any such matter;
(4) The purpose of the event;
(5) The identity of other expected participants; and
(6) The market value of the gift of free attendance.
g. An employee may not use this exception to accept free admission to an entertainment or sporting event where the employee would be a mere spectator.
11 FAM 613.1-2 Meals, Refreshments, and Entertainment in Foreign Areas (MRE)
a. An employee assigned to duty in or on official travel to a foreign area may accept food, refreshments, or entertainment in the course of a breakfast, luncheon, dinner, or other event, provided that the criteria in this section are met. See 5 CFR 2635.204(i).
b. With supervisor approval, an employee may accept an unsolicited MRE if:
(1) The market value in the foreign area of the food, refreshments, or entertainment provided at the event, as converted to U.S. dollars, does not exceed the per diem rate for that foreign area;
(2) There is participation in the meeting or event by non-U.S. citizens, representatives of foreign governments, or representatives of foreign entities;
(3) Attendance at the meeting or event is part of the employee's official duties to obtain or disseminate information, promote the export of U.S. goods and services, represent the United States, or otherwise further programs or operations of the Department (in general, attendance as a mere spectator will not meet the standard); and
(4) The gift is from a person other than a foreign government (see 11 FAM 613.2 for rules on accepting gifts from foreign governments).
c. A chief of mission should obtain approval from the management official at post.
11 FAM 613.1-3 Solicitation of Upgrades
Travel, transportation, or accommodation upgrades may not be solicited based on an employee's official title or position.
11 FAM 613.1-4 Discounts and Benefits
a. Some discounts on commercial rates and other similar benefits may be accepted, including, for example, those where:
(1) The discount is available to all members of the public;
(2) The discount is available to a class consisting of all government employees or all military personnel, whether or not restricted on the basis of geographic considerations; or
(3) The discount is available to members of a group or class in which membership is unrelated to government employment.
b. Discounts which discriminate among government employees on the basis of their official responsibilities or which favor those of higher rank or rate of pay may not be accepted.
c. An employee may not accept for personal use any benefit to which the Government is entitled as the result of an expenditure of Government funds, except as otherwise provided by law.
11 FAM 613.1-5 Perishable Gifts
a. When it is not practical to return a tangible gift because it is perishable, and no gift exception applies, the gift may be turned over to the employee's management official or supervisor, who will determine whether the gift should be given to an appropriate charity, shared within the office, or destroyed.
b. A "perishable" gift is a gift that is likely to decay or spoil, such as food or flowers. Gifts of alcohol are generally not considered perishable, although they may be accepted as official gifts if there is other authority to accept on behalf of the Department, such as that found in 2 FAM 960.
11 FAM 613.1-6 Awards and Honorary Degrees
11 FAM 613.1-6(A) Awards
a. Employees may accept a bona fide award or a gift incident to a bona fide award (e.g., travel to an award reception), if:
(1) It is given for meritorious public service or achievement;
(2) It is given by a source whose interests are not substantially affected by the performance or nonperformance of an employee's official duties;
(3) It is not cash or an investment interest; and
(4) The aggregate value of the award and gift incident to the award does not exceed $200.
b. Employees may accept a bona fide award and gift incident to a bona fide award when the aggregate value exceeds $200, or when the award is cash or investment interests, upon a written determination from the Ethics Office.
c. For awards that may be accepted under either paragraphs a or b of this section, employees may also accept meals or entertainment given to them or to members of their families at the event where the award is being presented. The value of the meals or entertainment does not count toward the award's aggregate value.
d. For awards or decorations from or on behalf of a foreign government or international organization (i.e., an international or multinational organization whose membership is composed of any unit of foreign government), contact the Ethics Office.
11 FAM 613.1-6(B) Honorary Degrees
a. In order to accept an honorary degree, an employee must request and receive a written determination from the Ethics Office. The Ethics Office will consider whether the degree-granting institution is a qualifying institution and whether the timing of the award or the degree would cause a reasonable person to question the employee's impartiality in a matter affecting the institution.
b. For honorary degrees from foreign public universities, see 11 FAM 613.2, paragraph b.
11 FAM 613.1-7 Tickets and Free Admission to Sporting or Entertainment Events
a. Personal gifts of tickets or admission to sporting or entertainment events from a private outside source should not be accepted unless an exception to the gift rules applies, such as gifts clearly based on a personal or outside business relationship (see 11 FAM 613.1, subparagraphs d(6) and d(7)). Tickets for personal use should never be solicited.
b. For authorities to accept tickets as an official gift to the Department, please see 2 FAM 960 (e.g., Gifts for Representational Purposes Abroad, Gifts for Public Diplomacy Purposes, or Gifts Accepted by the CLO for Health, Morale, and Welfare of Department Employees Abroad).
11 FAM 613.2 Personal Gifts, Decorations, and Awards from Foreign Governments and International Organizations
a. For purposes of this section, the term "employee" includes an employee, his or her spouse, and his or her dependents.
b. An employee may accept a gift from a foreign government or an international organization if its fair-market value does not exceed the "minimal value" as defined periodically by GSA (NOTE: "minimal value" changes periodically and was set at $390 in 2017). Gifts to the employee, the employee's spouse, or the employee's dependents given on the same occasion must remain at or below minimal value in the aggregate (please see 5 U.S.C. 7342(a)(3) for the definition of "gift" for purposes of the Foreign Gifts and Decorations Act).
c. An employee must obtain approval in order to accept a decoration, such as an order, device, medal, badge, insignia, emblem, or award, from a foreign government or an international organization. Such decoration may only be accepted if tendered in recognition of active field service in a time of combat, or awarded for outstanding or unusually meritorious performance. The employee or the employee's management official must obtain approval:
(1) From the Office of Protocol for employees at the rank of Assistant Secretary or above; or
(2) From the bureau Assistant Secretary for employees below the rank of Assistant Secretary.
d. Pursuant to the Foreign Gifts and Decorations Act, an employee who is offered a personal gift of travel or expenses for travel (such as transportation, food, and lodging) from a foreign government or an international organization that exceeds minimal value may not accept if the travel takes place partially or wholly within the United States. Different rules apply regarding travel expenses in connection with an existing employment relationship; please consult the Ethics Office for guidance in such circumstances.
e. In order for an employee to accept a personal gift of travel or expenses for travel (such as transportation, food, and lodging) from a foreign government or an international organization that exceeds minimal value and takes place wholly outside the United States, the travel must be appropriate and consistent with the interests of the United States, and the employee must request and receive approval from his or her management official and from the Under Secretary for Management. The Under Secretary for Management must determine that the Department has a specific interest which may be favorably affected by the employee's travel, or that the proposed travel will be in the best interests of the Department and the U.S. Government.
f. For personal gifts offered pursuant to the Fulbright-Hays Act as amended (22 U.S.C. 2458a), please contact L/PD at email@example.com.
g. Rules and procedures for accepting gifts of travel from foreign governments or international organizations to be used for official travel are found in 2 FAM 962.12.
11 FAM 613.3 Gifts between Employees
a. Employees may not give a gift to, or make a contribution toward a gift for, an official superior, unless it is voluntary and:
(1) The gift is in recognition of an infrequently occurring occasion of personal significance, such as marriage, illness, or the birth or adoption of a child, and is appropriate to the occasion;
(2) The gift is in recognition of an occasion that terminates the superior-subordinate relationship, such as retirement, resignation, or transfer, and is appropriate to the occasion;
(3) The gift is valued at $10 or less and does not include cash;
(4) The gift consists only of food and refreshments to be shared in the office among several employees;
(5) The gift consists of personal hospitality at a residence, is of appropriate type and value, and would customarily be provided by the employee to personal friends;
(6) The gift is given in connection with the receipt of personal hospitality and is of a type and value customarily given on such occasions; or
(7) The gift consists of certain leave transfers.
b. An employee may not accept a gift from an employee receiving less pay than himself or herself unless one of the criteria in paragraph a. of this section is met, or unless:
(1) The two employees are not in a superior-subordinate relationship, and
(2) There is a personal relationship between the employees that would justify the gift.
11 FAM 614 Outside activities and political activities
11 FAM 614.1 The Hatch Act and Political Activities
a. The Department has issued guidance to answer frequently asked questions about restrictions on political activities of Department employees, for:
(1) Presidential and political appointees;
(2) Career Senior Executive Service employees; and
(3) All other employees (including Foreign Service and Senior Foreign Service).
b. Political activities are those activities directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.
c. While certain types of political activity may be permissible on personal time depending on the place of assignment (see 3 FAM 4123.3) or category of employee, there are certain activities that are prohibited at any time, such as:
(1) Fundraising for a political party, candidate for partisan political office, or partisan political group;
(2) Engaging in political activity while on duty, in the Federal workplace, or using government resources; and
(3) Using ones’ official authority or influence for the purpose of interfering with or affecting the result of an election (e.g., using one’s official title while participating in a political activity).
d. Employees are reminded that the Hatch Act and related restrictions extend to political activity taking place online, including via social media, on both personal and official accounts. The Office of Special Counsel has issued guidance on use of social media on both personal and official accounts, which should be consulted in conjunction with the guidance referenced in 11 FAM 614.1, paragraph a.
e. Employees may not engage in political activity on official social media accounts and websites. Political activity includes linking to content (including individual communications like “tweets” or posts) directed at the success or failure of political parties, partisan political groups, or candidates for partisan political office, as well as linking to the websites or social media accounts of such entities. Political activity also includes “liking,” “following,” or “friending” such content, websites, and accounts. The Ethics Office can be consulted for guidance.
11 FAM 614.2 Representation of Third Parties
a. Employees should seek advice from the Ethics Office prior to engaging in outside, nonofficial activities that require communications or interactions with other U.S. Government entities on behalf of third parties. Third parties include private employers, corporations, nonprofit corporations and other non-U.S. Government entities. The following rules apply differently to employees who are SGEs; see 11 FAM 618.1.
b. Subject to limited exceptions, a Federal criminal statute prohibits an employee from acting as agent or attorney for prosecuting any claim on behalf of a third party against the United States, or receiving any gratuity or any share of or interest in any such claim, or acting as agent or attorney for anyone before certain U.S. entities, including any department, agency, or court, on any matter in which the United States is a party or has a direct and substantial interest (18 U.S.C. 205).
c. In addition, a Federal criminal statute prohibits employees from receiving compensation for representational services rendered either personally or by another in relation to matters in which the United States is a party or has a direct and substantial interest, before certain U.S. entities including any department, agency, or court (18 U.S.C. 203).
11 FAM 614.3 Supplementation of Federal Government Salary
Most Federal employees are prohibited by criminal statute from receiving any salary or contribution to or supplementation of salary, as compensation for services as an employee of the U.S. Government from any source other than the U.S. Government. See 18 U.S.C. 209.
11 FAM 614.4 Outside Earned Income Limitations for Presidential Appointees and Covered Noncareer Employees
a. Some employees, such as certain Presidential appointees to full-time positions and covered noncareer employees, are subject to outside earned income bans or limitations.
b. Full-time Presidential appointees, whether or not career employees, may not receive any outside earned income. See Executive Order 12674 as modified by Executive Order 12731.
c. “Covered noncareer employees” (not otherwise described in paragraph b of this section) include noncareer members of the Senior Executive Service and the Senior Foreign Service as well as some employees appointed to a Schedule C position. Additional information regarding covered noncareer employees is located in 5 CFR 2636.303(a):
(1) "Covered noncareer employees" are prohibited from receiving any compensation for practicing a profession which involves a fiduciary relationship; being employed by a firm or other entity which provides professional services involving a fiduciary relationship; serving as an officer or member of the board of any association, corporation, or other entity; or teaching without prior approval (see 5 CFR 2636.305-307).
(2) The outside earned income of “covered noncareer employees” is limited to 15 percent of the annual Executive Schedule Level II pay rate (the amount in 2015 is $27,225.00). See 5 U.S.C. App. 501, 502 and 5 CFR 2636, subpart C.
d. Career members of the Senior Executive Service or the Senior Foreign Service who are appointed to positions below the Assistant Secretary or chief-of-mission level are not considered “covered noncareer employees."
11 FAM 614.5 Outside Speaking, Teaching, and Writing
a. Ethics rules restrict an employee’s ability to receive compensation for certain speaking, teaching, and writing activities. Former employees are also restricted from receiving compensation on certain matters if the writing occurred during U.S. Government employment. As a general rule, employees may not receive compensation for such activities where the subject matter relates to the employee’s official duties, even if undertaken in a personal capacity. Employees should refer to 3 FAM 4170 for rules on public affairs clearance prior to engaging in outside speaking, teaching, or writing.
b. Certain Presidential appointees to full-time positions and "covered noncareer employees" are subject to additional outside earned income bans or limitations. See 11 FAM 614.4.
11 FAM 614.5-1 Compensation for Speaking, Teaching, or Writing in Official Capacity
Employees may not receive a salary or contribution to or supplementation of their salary as compensation from an outside source for work the employee does for the U.S. Government (see 11 FAM 614.3). This rule applies to activities involving speaking, teaching, or writing when done in an official capacity.
11 FAM 614.5-2 Compensation for Speaking, Teaching, or Writing in a Personal Capacity on Matters that "Relate to Official Duties"
a. Even if conducted in a personal capacity, an employee may not accept compensation from an outside source for speaking, teaching, or writing in a personal capacity on matters "related to official duties” except from the U.S. Government.
b. “Compensation” includes any form of consideration, remuneration, or income, including royalties. It does not include free attendance at the event in which the speaking or teaching takes place, or publications that provide a record of the activity. For employees other than covered noncareer employees, compensation also does not include travel expenses, consisting of transportation, lodgings, or meals, incurred in connection with the teaching, speaking, or writing activity. Compensation is further discussed at 5 CFR 2635.807(a)(2)(iii).
c. Unless the subject matter is clearly unrelated to official duties, the employee must determine that the speaking, teaching, or writing does not relate to the employee's official duties using the factors in subparagraphs (1) through (5) of this paragraph. The employee's supervisor will review the employee's determination in consultation with the relevant geographic or substantive bureau's executive director if necessary. The relevant executive director, if necessary, may consult with the appropriate subject matter experts and may consult with the Ethics Office in making the determination as to whether the speaking, teaching, or writing relates to the employee's official duties. Speaking, teaching, or writing is “related to official duties” if:
(1) The activity is undertaken as part of the employee’s official duties;
(2) The circumstances indicate that the invitation to engage in the activity was extended primarily because of the employee’s official position rather than his or her expertise on the particular subject matter;
(3) The invitation to engage in the activity or the offer of compensation was extended by a person or entity whose interests may be substantially affected by the performance or nonperformance of the employee’s official duties;
(4) The information conveyed through the activity draws substantially on ideas or official data that are nonpublic information; or
(5) The subject matter deals in significant part with:
(a) Any matter to which the employee is assigned or has been assigned in the past year; or
(b) Any ongoing or announced policy, program, or operation of the Department; or
(c) In the case of certain noncareer employees, the general subject matter area, industry, or economic sector primarily affected by programs and operations of the Department.
d. For special government employees (SGEs), the restrictions in subparagraphs c(5)(b) and c(5)(c) of this section do not apply. The restriction in subparagraph c(5)(a) of this section applies only during the SGE’s current appointment. Further, for an SGE who has not worked or is not expected to work more than 60 days during each year of his or her appointment, the restriction in subparagraph c(5)(a) of this section applies only to particular matters involving parties in which the SGE has or is participating personally and substantially.
e. Generally, an employee may accept compensation for teaching relating to his or her official duties if he or she teaches a course that is offered as part of the regularly established curriculum at an approved educational institution under 5 CFR 2635.807(a)(3). Covered noncareer employees must receive advance authorization from the DAEO through the Ethics Office prior to engaging in teaching for compensation. Certain Presidential appointees are prohibited from receiving any outside earned income; see 11 FAM 614.4, paragraph b.
f. Employees required to file financial disclosure reports must report the travel expenses received from a source other than the U.S. Government if the travel or travel reimbursements exceed $390 (NOTE: this amount changes approximately every 3 years; see 5 CFR 2635.807(a)(2)(iii); 5 CFR 2634.304 and 5 CFR 2634.907(g)).
11 FAM 615 Seeking Outside Employment and Post-Government Restrictions
a. Federal laws, including criminal statutes, restrict the activities of Department employees who are seeking employment with non-Federal employers, and the activities of former Department employees.
b. The Department has issued guidance on these restrictions, and offers training videos on BNET. 11 FAM 615.1 and 11 FAM 615.2 alert Department employees to certain of these restrictions, but are not a comprehensive description of the applicable laws. Employees who are interested in seeking outside employment or leaving Federal employment should review the resources provided by the Ethics Office, and should consult the Ethics Office as needed.
11 FAM 615.1 Seeking Outside Employment
a. Department employees must recuse themselves from participating, in an official capacity, in particular matters that would affect a non-Federal entity with which they are seeking, or have an arrangement for, employment (certain unpaid positions, such as unpaid board memberships, qualify as employment for this purpose).
b. An employee who becomes aware of the need to recuse from a particular matter to which he or she has been assigned should notify the person responsible for the assignment. Appropriate oral or written notification of the recusal may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter requiring recusal. An employee may elect to create a record of his or her actions by providing written notice to a supervisor or other appropriate official.
c. Public filers must file Form DS-278-A, Notification of Post-Employment Negotiation or Agreement and Recusal Statement, within 3 days of commencing negotiations with a non-Federal entity for post-government employment or compensation. A negotiation is any two-way communication concerning post-government employment, and is not limited to discussions about specific employment terms and conditions. Filers should file signed or e-signed Forms DS-278-A by emailing them to NegotiationNotice@state.gov.
d. Procurement/contracting officials are subject to additional notification requirements concerning contact with potential non-Federal employers (see 14 FAH-2 H-152).
e. When leaving government employment, public filers must file a termination Form OGE-278 (see 11 FAM 617.4-1, paragraph c, for additional guidance). Arrangements or agreements for non-Federal employment that an employee has at the time of termination should be reported on the termination Form OGE-278.
11 FAM 615.2 Post-Government Restrictions
a. With limited exceptions, all former Department employees (i.e., employees whose government service has terminated) are subject to:
(1) A lifetime ban on representing, with the intent to influence, any other person or entity before certain Federal entities, including any U.S. agency or court, on any particular matter involving specific parties in which the employee personally and substantially participated as a U.S. Government employee;
(2) A 2-year ban on representing, with the intent to influence, any other person or entity, before certain Federal entities, including any U.S. agency or court, on any particular matter involving specific parties that was pending under the employee's official responsibility during the employee's last year of government service; and
(3) A 1-year ban on representing, aiding, or advising any other person or entity, on the basis of nonpublic information, about an ongoing trade or treaty negotiation in which the employee personally and substantially participated during the employee's last year of government service.
b. Additional restrictions, with limited exceptions, apply to "former senior employees," including a 1-year "cooling off period" with respect to communications to and appearances before Department employees on behalf of another person or entity with the intent to influence any official matter, and a 1-year prohibition on representing, aiding, or advising foreign governments and political parties with the intent to influence the executive or legislative branches. "Senior employees" include any employee who holds a position for which the pay is specified in or fixed according to the Executive Schedule, and any employee whose base salary is equal to or exceeds 86.5 percent of the annual rate of basic pay for Level II of the Executive Schedule ($158,554.50 as of January 11, 2015).
c. Political appointees (see 11 FAM 611.1, paragraph c) and employees involved in certain procurement decisions or holding certain positions with respect to a contract worth more than $10 million (see 14 FAH-2 H-152) are subject to additional post-government restrictions.
d. Department employees who seek to work for an international organization in which the United States participates, and whose representations or communications on behalf of the international organization to the United States would be prohibited by provisions in paragraphs a and b of this section, and 18 U.S.C. 207, may be exempted from these provisions by receiving a post-government representation waiver from the Assistant Secretary for International Organization Affairs. Submit waiver requests through the IO/MPR office. Waivers issued under 18 U.S.C. 207 are prospective only.
11 FAM 616 Misuse of position
11 FAM 616.1 Use of Public Office for Private Gain
a. An employee shall not use his or her public office:
(1) For his or her own private gain; or
(2 For the private gain or preference of friends, relatives, or persons or entities with whom the employee is affiliated in a nongovernmental capacity (including but not limited to nonprofit organizations of which the employee is an officer or a member or persons or entities with whom the employee has or seeks employment or business relationships).
b. An employee shall not use or permit the use of his or her Department position, title, or authority in a manner that is intended to coerce or induce another person (including a subordinate) or entity to provide benefits to the employee, the employee's friends or relatives, or persons or entities with whom the employee is affiliated in a nongovernmental capacity.
c. An employee shall not use his or her Department position for the endorsement of any product, service, or enterprise, except where, in consultation with the employee's office, it is determined that it is:
(1) In furtherance of statutory authority to promote products, services, or enterprises;
(2) As a result of documentation of compliance with Department requirements or standards; or
(3) As the result of recognition for achievement given under a Department program of recognition for accomplishments in support of the Department's mission.
d. An employee shall not use or permit the use of his Department position or title or any authority associated with his or her public office in a manner that could be reasonably construed to imply that the Department or the government sanctions or endorses his or her personal activities or those of another.
e. Nothing in this section prohibits employees from participating in official commercial and business advocacy programs such as those which promote, develop, assist, support, or reach out to U.S. companies.
11 FAM 616.2 Letters of Recommendation
a. In general, employees may not use their official Department titles or Department letterhead when writing letters of recommendation or character references in their personal capacity, unless the criteria in this section are met.
b. An employee may sign a personal letter of recommendation or character reference using the employee's official title and/or Department letterhead only in response to a request for an employment recommendation or character reference based upon the employee's personal knowledge of the ability or character of an individual with whom the employee has dealt in the course of Federal employment or whom he or she is recommending for Federal employment. Such letters must include the statement that the views expressed in the letter are the personal views of the employee acting in his or her personal capacity.
c. Even if the criteria in this section are satisfied, the letters above are not mandated. It is never inappropriate and is frequently prudent for an employee to refuse requests for such letters in any case that might give rise to the misperception of the use of public office for private gain, questions of undue preference, or otherwise cause embarrassment to the Department.
d. An employee may not use official Department letterhead or sign with an official title when writing an immigration or visa support letter in his or her personal capacity. A personal capacity immigration or visa support letter on personal letterhead may make only passing reference to the employee's Federal employment, if appropriate (e.g., as one of several biographical details of the employee). Such a personal capacity letter should be drafted in a manner which does not imply it conveys an official Department position or a Department endorsement of the person about whom the letter is written. If any letter of support references an employee's Federal position, the letter must contain a statement that the views expressed in the letter are the personal views of the employee acting in his or her personal capacity.
e. Nothing in this section prohibits an employee from providing visa referral assistance to applicants in furtherance of U.S. Government interests (see 9 FAM 601.8 (U) Nonimmigrant Visa Referral and Priority Appointment Request Programs).
f. The employee should exercise care when writing a personal letter of recommendation or character reference to a U.S. Government entity not to permit the requestor to control the employee in the drafting and submitting of the letter, which would implicate prohibitions on employees communicating or interacting with certain U.S. Government entities on behalf of third parties (see 11 FAM 614.2, 18 U.S.C. 203, and 18 U.S.C. 205).
11 FAM 616.3 Use of Chief-of-Mission Residence (CMR)
a. Apart from appropriate personal use by the ambassador and his or her family, the chief of mission's residence (CMR) may only be used for official purposes and functions. Unless otherwise authorized, it should not be used, with or without payment, by a nongovernmental entity for events that are not co-hosted by the Department.
b. In order to use a chief-of-mission residence for a co-hosted event with a nongovernmental entity, post should ensure that:
(1) If there will be fundraising at the event, it is approved per the procedures in 2 FAM 960;
(2) There is a foreign affairs purpose for co-hosting the event;
(3) No undue preference has been given to the co-host over other similar entities;
(4) Co-hosting the event does not create a real or apparent conflict of interest for the Department or for any employees taking official actions with regard to the event;
(5) Any use of promotional materials by the co-host is appropriate; and
(6) Post retains control of the guest list for any co-hosted events.
11 FAM 617 FINANCIAL DISCLOSURE
11 FAM 617.1 Background
Certain employees in senior or noncareer positions are public filers (see 11 FAM 611.3) who must file the Form OGE-278 and the Form OGE-278-T. Other employees are designated by the Department as confidential filers (see 11 FAM 611.3) who must file the Form OGE-450. Official time may be used by employees to complete a financial disclosure report or to assist others in the completion of a financial disclosure report.
11 FAM 617.2 Financial Disclosure Management (FDM)
Department filers and prospective filers are required to use the FDM system for electronic filing of OGE-278 and OGE-450 reports. Access to FDM requires account set up and log-in information. Account set up will be facilitated by the filer's executive office and log-in credentials are provided by the IT Service Center. OGE-278-T reports are filed on a separate form that may be signed electronically and is accessible via the myData website.
11 FAM 617.3 Public Access to Public Financial Disclosure Reports
The Forms OGE-278 and OGE-278-T may be made available to the public in accordance with 5 CFR 2634.603. To request these forms, fill out the Form OGE-201, Request to Inspect or Receive Copies of OGE Form 278/SF 278s or Other Covered Records, and send it to OGE201Request@state.gov.
11 FAM 617.4 Filing Requirements and Deadlines
11 FAM 617.4-1 Public Financial Disclosure Reports (OGE-278s)
11 FAM 617.4-1(A) New Entrant Public Financial Disclosure Reports
a. An individual who assumes a public filer position (including in an acting capacity) and is expected to serve in that position for more than 60 days in a calendar year, or who is promoted to the Senior Foreign Service or Senior Executive Service and is not already a public filer, must file a new entrant Form OGE-278 within 30 days after the date of entry into the position or the promotion.
b. A copy of the filer's position description or work requirements must be attached to the new entrant Form OGE-278 in FDM.
c. An individual who moves from one public filing position to another without a break in service exceeding 30 days does not need to file a new entrant public financial disclosure report, although the hiring bureau or Bureau of Global Talent Management may request a conflicts pre-assignment ethics review based on a review of the most recently filed report (see 11 FAM 617.4-4).
d. It is the responsibility of each new entrant to ensure that he or she files the report on time, or requests an extension prior to the deadline in accordance with 11 FAM 617.9.
11 FAM 617.4-1(B) Annual Incumbent Public Financial Disclosure Reports
a. An individual who has served in a public filer position (including in an acting capacity) for more than 60 days during the previous calendar year must file an annual incumbent Form OGE-278 by May 15, unless the individual:
(1) Terminated from the position prior to the May 15 filing date and will not assume another public filer position within 30 days after termination (in which case the individual must file a termination report, see 11 FAM 617.4-1(C)); or
(2) Intends to terminate within 90 days of May 15, and will file a joint incumbent-termination report (see 11 FAM 617.4-1(C), paragraph b).
b. If a public filer is also a candidate for a Presidential appointment, and files a "nominee" new entrant financial disclosure report, the employee must still file his or her annual incumbent financial disclosure report on the normal cycle. Filing a "nominee" new entrant financial disclosure report does not fulfill the employee's obligation to file an annual incumbent financial disclosure report in that year or in the subsequent year.
11 FAM 617.4-1(C) Termination Public Financial Disclosure Reports
a. An individual who has served in a public filer position (including in an acting capacity) for more than 60 days must file a termination Form OGE-278 within 30 days after terminating from the position, unless the individual will enter another public filer position within 30 days.
b. If an employee terminates within 90 days after May 15, the employee may seek an extension from the Ethics Office on the annual incumbent report and file a combined incumbent-termination report (although it must be filed by August 13, as no further extensions are permitted).
11 FAM 617.4-1(D) Periodic Transaction Reports (Forms OGE-278-T)
a. Public filers must also file a periodic transaction report (Form OGE-278-T) within 30 days of notice of a reportable transaction, and no later than 45 days after the transaction has taken place.
b. A reportable transaction includes any purchase, sale, or exchange by the filer, the filer's spouse, or the filer's dependent child of stocks, bonds, commodity futures, or other securities, including transactions in a managed account or trust, if the amount of the transaction exceeds $1,000. Please note that a reportable transaction does not include the acquisition of an asset through inheritance or marriage because such an event is not considered to be a "purchase, sale, or exchange."
c. The following are not reportable transactions, and need not be reported on a periodic transaction report:
(1) Purchases, sales, or exchanges of mutual funds and other excepted investment funds;
(2) Transactions or deposits in savings accounts, checking accounts, money market accounts, or certificates of deposit;
(3) Purchases, sales, or exchanges of U.S. Treasury bills, notes, or bonds;
(4) Purchases, sales, or exchanges in the Thrift Savings Plan;
(5) Purchases, sales, or exchanges of real property; and
(6) Purchases, sales, or exchanges that are solely between the filer and the filer's spouse or dependent children.
d. Filers must submit completed and signed or eSigned OGE-278-T reports to their initial reviewer, who will review, sign or eSign, and submit the report with the name of the filer in the subject line of the email to L-EFD-278Transactions@state.gov.
11 FAM 617.4-2 Confidential Financial Disclosure Reports (OGE-450s)
11 FAM 617.4-2(A) New Entrant Confidential Financial Disclosure Reports
a. An individual who assumes a confidential filer position (including in an acting capacity) and is expected to serve for more than 60 days in the following 12-month period must file a new entrant Form OGE-450 within 30 days after the date of entry into the position unless the individual has transferred from another confidential filer position within the previous 30-day period (NOTE: a bureau may request a pre-employment clearance due to potential conflicts of interest, per 11 FAM 617.4-4).
b. A copy of the filer's position description or work requirements for the period covered by the report must be attached to the new entrant OGE-450 report in FDM.
11 FAM 617.4-2(B) Annual Incumbent Confidential Financial Disclosure Reports
Except as provided in 11 FAM 618.4 (Financial Disclosure for SGEs), an individual who has served in a confidential filer position (including in an acting capacity) for more than 60 days during the previous calendar year must file an annual incumbent Form OGE-450 by February 15, unless the individual terminated government service in accordance with 5 CFR 2634.903a.
11 FAM 617.4-2(C) Termination Confidential Financial Disclosure Reports
A confidential filer does not file a termination report.
11 FAM 617.4-2(D) Review of Confidential Filer Status
If an individual believes that his or her position has been improperly determined to require submission of a Form OGE-450, the individual should consult with his or her management official. If the employee disagrees with the management official's determination, the individual may seek a determination from the DAEO, ADAEO, or a deputy ethics official. An employee’s request and supporting argument must be directed in writing to the Ethics Office.
11 FAM 617.4-3 Pre-Employment Ethics Review
a. If an employee is a candidate for employment for, or will serve on detail in, a filing position at the Department, the prospective management office should request that the Ethics Office perform a pre-employment ethics review ("pre-clearance"). The purpose of the review is to identify and resolve conflicts of interest prior to employment. In order to request pre-clearance, the prospective management office must request the clearance no less than 30 days prior to the employee's first day at the Department or in the position. The management office must:
(1) Ensure that the position requires a financial disclosure report;
(2) Ensure that the candidate has completed an FDM User Account Request Form (pre-clearance) and forward the completed form to firstname.lastname@example.org; and
(3) Upload a pre-clearance request memo, position description, signed Ethics signature page, and, where appropriate, the Ethics Pledge (Executive Order 13770) into FDM along with this report.
b. The Ethics Office will conduct the pre-clearance review and notify the requesting management office upon completion. The Ethics Office will complete this process within 30 working days, when possible.
c. Candidates who file pre-clearance new entrant reports do not need to file an additional new entrant report within 30 days of arriving at the Department or in the position.
d. If a candidate has not yet been appointed more than 60 days after pre-clearance was issued by the Ethics Office, the prospective management office may request that the Ethics Office revalidate the pre-clearance, based on updated information if applicable.
11 FAM 617.4-4 Pre-Assignment Ethics Review
For employees who are changing positions within the Department, if the duties of the employee's new position are different from the duties of the old position, bureaus should seek pre-assignment ethics review of the employee's prior financial disclosure report to ensure that no conflicts of interest exist with the employee's new position, using the procedures in 11 FAM 617.4-3.
11 FAM 617.4-5 Effective Filing Date
a. All OGE-278 and OGE-450 reports are deemed filed when they are initially e-signed by the employee in FDM.
b. All OGE-278-T reports are deemed filed when they are signed or eSigned and transmitted by the filer to the initial reviewer.
11 FAM 617.5 Filer Responsibilities
a. Each filer will take the action necessary to ensure submission of timely, complete, and accurate financial disclosure reports. Failure of management officials to perform the duties specified in 11 FAM 617.6 does not relieve a filer of the responsibility to file. Penalties for failure to file, filing late, or filing a false or incomplete report are summarized in 5 CFR 2634, Subpart G.
b. Each filer should read the instructions accompanying the reporting form and in FDM and any related guidance prepared for the filer by the Ethics Office and will:
(1) Attach a copy of the filer’s current work requirements or position description to the report in FDM;
(2) Provide requested additional information to the Ethics Office in a timely manner as that office may have specified; and
(3) Complete remedial action (e.g., divestiture) within the designated periods identified in the employee's ethics agreement.
11 FAM 617.6 Management Official Responsibilities
11 FAM 617.6-1 Responsibilities with Regard to New Entrant Filers
With respect to each candidate for employment, an individual who will serve on detail in a filing position at the Department, and a current employee who has been promoted or is transferring from another position, the prospective management official must:
(1) Determine if the individual will assume a public filer or confidential filer position (see 11 FAM 611.3). Management officials may consult the OGE-450 Job Aid for assistance with determining whether an employee should file a confidential financial disclosure report;
(2) Confirm whether a new entrant financial disclosure report must be filed and contact the Ethics Office if exclusion from the public filing requirement may be warranted;
(3) Facilitate access to FDM;
(4) Transmit a request for ethics pre-clearance to the Ethics Office at least 30 days before the individual assumes the position, as needed (see 11 FAM 617.4-3);
(5) Ensure that the individual's position filing status is noted appropriately in GEMS; and
(6) Ensure that new filers are notified of their obligation to complete annual ethics training (see 11 FAM 619.3).
11 FAM 617.6-2 Responsibilities with Regard to FDM
Management officials will be responsible for the following actions:
(1) Appointing a point of contact (POC) to assist with the financial disclosure responsibilities of the management official;
(2) Ensuring that each filer completed an FDM User Account Request Form as needed;
(3) Sending completed FDM User Account Request Forms to the Ethics Office promptly for processing;
(4) Monitoring completion of filers' financial disclosure reports in FDM by the applicable filing deadline;
(5) Ensuring that filers' position descriptions or work requirements statements are included with each report in FDM;
(6) Ensuring that filers are assigned to the correct "org unit" in FDM, by:
(a) Moving confidential filers to the appropriate new "org unit" if the filer is transferred within the same bureau;
(b) Notifying the Ethics Office at email@example.com within 10 working days of a filer's departure or arrival if a confidential filer needs to be moved to a new "org unit" in a different bureau; and
(c) Notifying the Ethics Office at firstname.lastname@example.org within 10 working days of a filer's departure or arrival if a public filer needs to be moved to a new "org unit" in any bureau;
(7) Reassigning initial reviewers to the appropriate FDM "org units" as they change positions;
(8) Contacting filers within 5 working days of the applicable reporting deadline if the filers have failed to file the required financial disclosure reports;
(9) Notifying the Ethics Office within 10 working days of the applicable reporting deadline if a filer has failed to file any required financial disclosure reports; and
(10) Monitoring employees who are expected to assume stretch positions for more than 60 days to remind them of their obligation to file financial disclosure reports as required.
11 FAM 617.6-3 Responsibilities with Regard to Ongoing Implementation of the Financial Disclosure Program
a. Prior to December 1 of each year, the management official for each bureau or post must:
(1) Identify all public and confidential filers at the bureau or post (see 11 FAM 611.3);
(2) Identify an initial reviewer for each filer and ensure that the filer is assigned to that initial reviewer's "org unit" in FDM. The initial reviewer should be a senior officer who is familiar with the filer's work requirements and who can identify potential conflicts of interest;
(3) Confirm that each identified filer must file an annual incumbent Form OGE-278 or Form OGE-450, and ensure that they are assigned the correct form in FDM; and
(4) Remind each filer of the deadline and facilitate access to FDM as needed.
b. Management officials will also:
(1) Keep bureau heads and chiefs of mission informed regarding implementation of the financial disclosure program, as needed;
(2) Ensure that initial reviewers carry out their initial review of each report within 30 days of the date of filing;
(3) Remind initial reviewers to take the required Initial Reviewer Training (PA 456) via FSI prior to their first review cycle, and as needed as a refresher on an annual basis in subsequent years;
(4) Ensure that an employee's position filing status is noted appropriately in GEMS; and
(5) Ensure that public filers are aware of their obligation to file Forms OGE-278-T, if needed.
11 FAM 617.6-4 Responsibilities with Regard to Termination Filers
With respect to any employee who is terminating from a public filer position (see 11 FAM 611.3), the management official for each bureau or post must:
a. Confirm with the Ethics Office that a termination Form OGE-278 must be filed.
b. Obtain a completed Form DS-1971, Termination Certification Statement, from the filer (including any filer who is ceasing service in an acting capacity or service in a “stretch assignment”) prior to the filer’s departure from the position and transmit it to the Ethics Office within 30 days of completion, including forwarding contact information.
c. Facilitate access to FDM as needed and ensure that a termination Form OGE-278 has been assigned to the filer.
11 FAM 617.7 Initial Reviewer Responsibilities
a. Initial reviewers are known as "supervisors" in the FDM.
b. Initial reviewers must take the Initial Reviewer Training (PA 456) via FSI before assuming their duties as reviewers, and may take this training as needed as a refresher on an annual basis in subsequent years.
c. The initial reviewer, designated in accordance with 11 FAM 617.6-3, subparagraph a(2), must undertake an initial review of Forms OGE-278, OGE-278-T, or OGE-450, to help the Ethics Office identify actual or potential conflicts of interest within 30 days of receipt of the report. The initial reviewer will review each report to ensure it is complete and to determine if the filer has participated in or could in the future participate in any matter that could potentially have a direct and predictable effect on the financial interests of any entity with which the filer is affiliated or in which the filer has an interest. For example, if a company has business before the filer’s bureau or post or has operations in the post’s host country, and the filer has a financial interest in that company, the initial reviewer should specifically consider whether the filer is required to perform official duties relating to that company.
d. If the initial reviewer identifies a potential conflict of interest, he should make a comment in FDM on the report for the senior legal counselor to review.
e. The initial reviewer may assume that the disclosures on the reporting form are correct and should draw upon personal knowledge of the filer’s duties. No independent fact-finding is required. The initial reviewer is not responsible for making legal judgments concerning the applicability of an ethics law.
f. After reviewing Form OGE-278 or Form OGE-450 in FDM, the initial reviewer must e-sign the completed report. Upon e-Signature, FDM will automatically transmit the report to the appropriate senior legal counselor.
g. After reviewing Form OGE-278-T, the initial reviewer must sign or eSign the completed report within 30 days of receipt of the report. Upon signature or eSignature, the initial reviewer must transmit the report with the name of the filer in the subject line of the email to the Ethics Office at L-EFD-278Transactions@state.gov.
11 FAM 617.8 Office of the Under Secretary for Management Responsibilities
a. The Office of Performance Evaluation (GTM/PE) will promptly provide the Ethics Office, in writing, with the name of any Foreign Service officer who is promoted to a public filer position.
b. The Office of White House Liaison (M/WHL) will provide an FDM User Account Request Form (pre-clearance) to any individual who will assume a noncareer Senior Executive Service or Schedule C position with the Department, and will ensure transmission of the completed FDM User Account Request Form (pre-clearance) to the Ethics Office.
c. The Presidential Appointments Staff (GTM/CDA/PAS) will provide an FDM User Account Request Form (pre-clearance) to any individual who is a prospective candidate to a Department position requiring the advice and consent of the Senate, and will ensure transmission of the completed nominee's FDM User Account Request Form (pre-clearance) to the Ethics Office.
d. GTM/EX/SOD will provide the Ethics Office with a bi-weekly Knowledge Center Personnel Report for appointments/separations, financial disclosure filers, and ethics training dates. The Assistant Legal Adviser for Ethics and Financial Disclosure and the Program Manager for Ethics and Financial Disclosure are authorized access to the AU Console to obtain information on Forms SF-50, as necessary, for current and departed Department employees.
11 FAM 617.9 Extensions
a. The DAEO, ADAEO, or a deputy ethics official may, for good cause shown, grant to any OGE-278 Public Financial Disclosure Filer or class of OGE-278 filers an initial extension of the filing deadline which shall not exceed 45 days. An additional extension may be granted for good cause shown which shall not exceed 45 days in accordance with 5 CFR 2634.201(f).
b. The DAEO, ADAEO, or a deputy ethics official may, for good cause shown, grant to any OGE-450 Confidential Financial Disclosure Filer or class of filers, a filing extension or several extensions totaling not more than 90 days, in accordance with 5 CFR 2634.903(d).
c. Requests for filing extensions must:
(1) Be in writing; and
(2) Set forth facts justifying the extension (e.g., long periods of official travel or significant illness prior to the due date).
d. In the case of an individual who has been sent to a combat zone or required to perform services away from his or her permanent duty station in support of the Department, the Armed Forces, or other governmental entities following the declaration by the President of a national emergency, a financial disclosure due date will be automatically extended for 180 days in the case of a Form OGE-278 or a Form OGE-278-T, or for 90 days in the case of a Form OGE-450, dating from the last day of:
(1) The individual’s service in the combat zone or service away from his or her permanent duty station; or
(2) The individual’s hospitalization as a result of injury received or disease contracted while serving during the national emergency.
e. For OGE-278 termination reports, refer to 11 FAM 617.4-1(C), paragraph b.
11 FAM 617.10 Late Filing Fees
a. If an individual files a Form OGE-278 or Form OGE-278-T more than 30 days past an established deadline, he or she must remit the late filing fee of $200 payable to the U.S. Treasury, in accordance with 5 CFR 2634.704, unless waived. A separate late filing fee is assessed for each late report.
b. To request a waiver of the late filing fee, the employee should contact the Ethics Office at email@example.com, and the DAEO or ADAEO will make a determination.
11 FAM 618 SPECIAL GOVERNMENT EMPLOYEES
11 FAM 618.1 Background
a. The special government employee (SGE) category was created by Congress to limit the applicability of certain ethics restrictions to certain employees. It is not an appointment authority. See 18 U.S.C. 202.
b. The designation allows such an employee to work on a temporary basis in a full-time or intermittent position for the Department, while maintaining a broader range of outside employment or activities than other employees.
c. Only employees expected to work no more than 130 days in a 365-day period are eligible to be designated as SGEs.
d. By obtaining the SGE designation, the employee, for example:
(1) May represent third parties before the U.S. Government on a wider range of matters (see 18 U.S.C. 203; 18 U.S.C. 205; NOTE: the determination of days worked for purposes of applying 18 U.S.C. 203 and 18 U.S.C. 205 is backward-looking, rather than prospective);
(2) May speak, teach, and write for compensation on a wider range of topics (see 5 CFR 2635.807);
(3) Is only subject to Hatch Act restrictions on partisan political activities while “on duty" (see 5 U.S.C. 7321, et. seq.); and
(4) Is subject to the post-government ethics restrictions on “former senior employees” only if having served 60 or more days as an SGE during the 1-year period before terminating (see 18 U.S.C. 207).
e. Management officials should weigh these ethics considerations when determining whether to designate an employee as an SGE. If the prospective employee does not intend to maintain outside employment or other outside engagements, then an SGE designation may not be appropriate, unless the employee is required to be designated as an SGE under the terms of his or her appointment authority (e.g., for certain Federal Advisory Boards).
f. Typical types of employees that could be designated as SGEs that are not on Advisory Boards are experts, consultants, or certain reemployed annuitants.
g. “SGE” is not an appointment authority and persons can be hired for part-time work without an SGE designation. Those individuals not designated as an SGE (including WAEs) are subject to the same ethics laws and rules as regular employees.
h. An SGE designation lasts for 1 year and must be renewed annually if the employment extends beyond a year.
i. Ethics restrictions vary depending on whether the employee works 1-60 days or 61-130 days in the 365-day period.
11 FAM 618.2 Responsibilities of Management Officials and Ethics Officials with Regard to SGEs
a. An individual’s prospective management official will:
(1) Make the determination whether an individual should be designated as an SGE before the appointment or reappointment;
(2) Inform each individual before appointment or reappointment of the individual’s designation as an SGE;
(3) Ensure documentation of an individual’s designation as an SGE is in the employee’s personnel file;
(4) Ensure that the SGE receives ethics training upon appointment or reappointment;
(5) Ensure that a tracking mechanism is implemented to document the number of days worked by the SGE;
(6) Ensure that the individual's SGE status is noted with the appropriate remark code(s) on the employee's SF-50; and
(7) Obtain pre-employment clearance from the Ethics Office and ensure that the SGE files a new entrant financial disclosure report, typically an OGE-450 unless the position requires a Form OGE-278 (see 11 FAM 611.3).
b. The prospective management official or designated Federal officer will consult with the Office of the Assistant Legal Adviser for Management (L/M) and the Ethics Office before determining whether Department advisory committee members will serve as representatives or will be designated as SGEs.
c. The management official may refer to the SGE Guidance and Procedures established by HR for further information. Consult the Ethics Office for guidance.
11 FAM 618.3 Counting Days of Service
a. For purposes of counting the 130 days of service during a 365-day period:
(1) Days worked at all Federal agencies during the 365-day period are counted;
(2) Work performed on weekends or holidays counts toward the total; and
(3) A partial day of work counts as an entire day, unless the work performed is uncompensated and is limited to:
(a) Strictly administrative matters (e.g., filling out personnel or security clearance paperwork or scheduling meetings);
(b) One or two brief communications (e.g., a short email to the chair of a committee, even if it touches on a substantive matter);
(c) Brief periods of reading or other preparatory work outside the government workplace; or
(d) General, self-directed background reading on the SGE's own initiative.
b. If an employee is designated as an SGE based on a good-faith estimate of days to be served, but the employee unexpectedly serves for more than 130 days during the ensuing 365-day period, the individual will be deemed an SGE for the remainder of that period. However, at the beginning of the next 365-day period, the management official should reevaluate whether the employee is correctly designated as an SGE.
11 FAM 618.4 Financial Disclosure for SGEs
a. All SGEs file a financial disclosure report, unless excepted. Generally, SGEs will file a new entrant Form OGE-450 prior to designation or annual re-designation, unless required to file a Form OGE-278 (see herein).
b. An SGE whose position requires the filing of Form OGE-278 (see 11 FAM 611.3), and who is expected to serve more than 60 days in the filing position over the next 365 days, will file a new entrant Form OGE-278. If the SGE does serve more than 60 days in that 365-day period, the SGE will file annual and termination OGE-278 and OGE-278-T reports on the normal cycle. If the SGE does not serve more than 60 days in that 365-day period, upon re-designation for the next 365-day period, the SGE will be required to file a new entrant OGE-450. Noting, however, that if the SGE is expected to serve more than 60 days in the next 365-day period, the SGE will file a new entrant Form OGE-278 upon re-designation as an SGE.
c. SGEs who are nominated to a Senate-confirmed Presidential appointment must file a new entrant Form OGE-278, and subsequently must file annual and termination OGE-278 and OGE-278-T reports on the normal cycle, unless the Director of the Office of Government Ethics determines that they may file new entrant OGE-450 reports instead.
11 FAM 619 Ethics Training
11 FAM 619.1 Background
In accordance with 5 CFR 2638 Subpart G, the Department maintains a program of ethics training to ensure that all employees are aware of Federal ethics laws. The training program includes an initial ethics orientation for all new employees and annual training for financial disclosure report filers. The annual ethics training requirement may only be satisfied by completing FSI's distance learning course, PA 454.
11 FAM 619.2 Ethics Office Responsibilities
a. To satisfy the requirements in 5 CFR 2638.703 in relation to training, the Ethics Office will:
(1) Develop and update online training courses, such as PA 451 (for new employees), PA 452 (for special government employees), PA 453 (for locally employed staff), and PA 454 (for annual financial disclosure filers);
(2) Brief new Presidential appointees to positions requiring the advice and consent of the Senate; and
(3) Maintain links on the ethics and financial disclosure programs web site to the Principles of Ethical Conduct for Government Officers and Employees (Executive Order 12731), the Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), and contact information for the Ethics Office.
b. In accordance with a plan for annual training prescribed in 5 CFR 2638.706, the requirements in 5 CFR 2638.704 and 5 CFR 2638.705 will be satisfied by developing and updating online ethics training courses through FSI.
11 FAM 619.3 Management Official Responsibilities
a. Management officials must ensure that all new employees, including locally employed staff, are given at least 1 hour of official time to complete orientation ethics training during the first 90 days of their employment, and will monitor compliance with training obligations.
b. Management officials must also ensure that all employees who are required to receive annual ethics training are given at least 1 hour of official time to complete the training, and will monitor compliance with this training obligation by December 31 of each year via the Knowledge Center Mandatory Training Report. HR will report compliance with this requirement to the Ethics Office annually by January 15.
11 FAM Exhibit 613
Personal Gifts to Employees: General Guidelines and Frequent Exceptions1
GIFTS FROM OUTSIDE SOURCES
Unless an exception applies, an employee may not accept a gift that is EITHER offered because of the employee’s position OR that is from a prohibited source.
a. Prohibited source generally includes any person or entity seeking official action by the Department; doing business with the Department; conducting activities regulated by the Department; or having interests that may be substantially impacted by the performance of the employee’s official duties.
b. If you are unsure if an outside entity is a prohibited source, it would be best for you to simply assume that the entity is a prohibited source.
Gift offered because of recipient’s official position OR gift is from a prohibited source
Gift cannot be accepted (must be refused, returned, or paid for)
The gift involves modest items of food and refreshments, such as coffee and donuts, not offered as part of a meal;
The gift has little intrinsic value such as a greeting card or plaque intended solely for presentation;
The gift has a fair market value in the United States of $20 or less, provided an employee will not have received more than $50 from the source in a calendar year;
The gift is free attendance at a widely attended gathering, either in the United States or abroad, where the conditions of 11 FAM 613.1-1 have been satisfied and attendance is approved per the procedures in that section;
The gift is a gift of meals, refreshments, or entertainment abroad, up to the value of the local U.S. Government per diem, from an individual/organization overseas where the gathering includes non-U.S. citizens, attendance is part of employee’s official duties; and acceptance is approved per the procedures in 11 FAM 613.1-2;
The gift is from a foreign government, and the fair-market value of the gift does not exceed the de minimis value (as of 2017, $390) (see 11 FAM 613.2). If the fair-market value of the gift exceeds the de minimis value, but refusing or returning it would cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, the employee may be able to accept the gift on behalf of the Department (see 2 FAM 962.3);
The gift qualifies as a perishable gift, per 11 FAM 613.1-5; or
The gift is offered by a private individual or organization and the employee is abroad, and it has been determined that refusing or returning the gift would cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States. In this circumstance, the employee may accept the gift on behalf of the Department, and deposit the gift with the management officer for official use or appropriate disposal (see 3 FAM 4120).
Gift is an award or honorary degree
Gift cannot be accepted (must be refused, returned, or paid for)
The gift is for meritorious public service or achievement; is from a source that does not have interests that may be substantially affected by the performance or nonperformance of the employee’s duties; and satisfies the other conditions in 11 FAM 613.1-6.
 This Appendix outlines exceptions most commonly used by Department employees. This Appendix is source not exhaustive. Employees are encouraged to seek guidance in any particular situation from a management official or from the Department’s Ethics Office at EthicsAttorneyMailbox@state.gov.