Academic journal article Journal of Power and Ethics

Conflicts of Interest Outline : 1st Basics for Ethics Counselors Workshop -- the Judge Advocate General's School

Academic journal article Journal of Power and Ethics

Conflicts of Interest Outline : 1st Basics for Ethics Counselors Workshop -- the Judge Advocate General's School

Article excerpt

I. REFERENCES.

a. 18 U.S.C. [section] 201, 202, 203, 205, 206, 207, 208, 209.

b. Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. Part 2635, Subparts D, E, F.

c. Joint Ethics Regulation, DOD 5500.7-R, Chapters 2 and 5.

d. 5 C.F.R. Part 2640, Interpretation, Exemptions and Waiver Guidance Concerning Acts Affecting a Personal Financial Interest; Proposed Rule: 60 Fed. R. 47208, et seq. (11 Sep 95); Final Rule: published 61 Fed. R. 66830, et seq. (18 Dec 96), effective 17 Jan 97. Section 2, Chapter 5, Joint Ethics Regulation. JER Appendix D Rescinded!

e. 62 Fed. Reg. 48746 (17 Sep 97) - technical corrections.

II. INTRODUCTION.

III. DEFINITIONS.

A. What is a "conflict of interest"?

1. A personal interest or relationship as defined by law or regulation

2. That conflicts with faithful performance of official Federal duty.

B. What a conflict is not.

1. Presumption of bad motive

2. Assumption of dishonesty

3. Personal animosity.

C. Conflict of Interests - Multiple Types - Defined by Focus.

1. Internal Focus:

a. Official Federal matters conflicting or appearing to conflict with a private interest as opposed to private interests conflicting with a Federal matter.

b. Three Different Types of Internal Conflicts of Interests

(1) Actual: 18 U.S.C. [section] 208; 5 C.F.R. Part 2635, Subparts D & F; (2) Appearances: 5 C.F.R. Part 2635, Subpart E;

(3) Hybrid: 41 U.S.C. [section] 423(c), FAR Subpart 3.104.

2. External Focus:

a. Private matters conflicting with official Federal interests.

b. Two Different Types of External Conflicts of Interests:

(1) Emoluments of all kinds:

(a) Bribery: 18 U.S.C. [section] 201;

(b) Improper supplementation of Federal pay: 18 U.S.C. [section] 209;

(c) Gifts from outside sources: 5 C.F.R. Part 2635, Subpart B

(2) Representation of others concerning Federal matters:

(a) Improper representation: 18 U.S.C. 205;

(b) Improper sharing in proceeds from representation: 18 U.S.C. [section] 203

IV. INTERNAL FOCUS - Official Federal Matters Conflicting with Private Interests.

A. Actual Conflict of Interests: 18 U.S.C. Sec. 208; 5 C.F.R. Part 2635, Subparts D & F.

1. "An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest."

a. 18 U.S.C. [section] 208 applies to officers and employees.

b. "Employee" in Standards of Ethical Conduct includes enlisted personnel (see JER 1-211c., d., and e.).

c. JER 5-301 applies to enlisted personnel: "[E]xcept as approved by the DoD Component DAEO or designee, an enlisted member, including an enlisted special Government employee, shall not participate personally and substantially as part of his official DoD duties, in any particular matter in which he, his spouse, minor child, partner, entity, in which he is serving as officer, director, trustee, partner or employee or any entity with which he is negotiating or has an arrangement concerning prospective employment, has a financial interest."

2. What does having a conflict of interest mean?

a. If own a stock in a company, disqualified from participating in matters that affect the company, e.g.:

(1) COR on contract with company;

(2) Supervising CORs on same contract.

(3) Working on a contract requirement for which the company is a logical source.

b. Fact that employee does not make final decision is not relevant. …

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