Proposed Rule2023-11772
Supplemental Standards of Ethical Conduct for Employees of the Department of Veterans Affairs
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 9, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs ("VA" or "Department"), with the concurrence of the Office of Government Ethics (OGE), is issuing this proposed rule for Department of Veterans Affairs employees. This document supplements the Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) issued by OGE and is necessary because it addresses ethical issues unique to the Department of Veterans Affairs. The proposed rule requires employees to seek prior approval for outside employment with a prohibited source, with or without compensation. Prior approval would also be required for serving, with or without compensation, as an officer, director, trustee, general partner, employee, consultant, or contractor for a Veteran-centric organization. Attorneys in the Department of Veterans Affairs Office of General Counsel (OGC) would be subject to additional requirements regarding the outside practice of law.
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[Federal Register Volume 88, Number 111 (Friday, June 9, 2023)]
[Proposed Rules]
[Pages 37800-37805]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11772]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 111 / Friday, June 9, 2023 / Proposed
Rules
[[Page 37800]]
DEPARTMENT OF VETERANS AFFAIRS
5 CFR Part 10501
RIN 3209-AA64
Supplemental Standards of Ethical Conduct for Employees of the
Department of Veterans Affairs
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (``VA'' or ``Department''),
with the concurrence of the Office of Government Ethics (OGE), is
issuing this proposed rule for Department of Veterans Affairs
employees. This document supplements the Standards of Ethical Conduct
for Employees of the Executive Branch (OGE Standards) issued by OGE and
is necessary because it addresses ethical issues unique to the
Department of Veterans Affairs. The proposed rule requires employees to
seek prior approval for outside employment with a prohibited source,
with or without compensation. Prior approval would also be required for
serving, with or without compensation, as an officer, director,
trustee, general partner, employee, consultant, or contractor for a
Veteran-centric organization. Attorneys in the Department of Veterans
Affairs Office of General Counsel (OGC) would be subject to additional
requirements regarding the outside practice of law.
DATES: Comments must be received on or before August 8, 2023.
ADDRESSES: Comments may be submitted through <a href="http://www.Regulations.gov">www.Regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. VA will not post on
<a href="http://Regulations.gov">Regulations.gov</a> public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm
the individual. VA encourages individuals not to submit duplicative
comments. We will post acceptable comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking.
FOR FURTHER INFORMATION CONTACT: Bruce Barnett, Deputy Ethics Official/
Staff Attorney, Ethics Specialty Team, VA Office of General Counsel,
Department of Veterans Affairs, 810 Vermont Ave. NW, Washington, DC
20420, (202) 503-8435. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published the OGE Standards. See 57 FR
35006-35067, as corrected at 57 FR 48557, 57 FR 52483, and 60 FR 51167,
with additional grace period extensions for certain existing provisions
at 59 FR 4779-4780, 60 FR 6390-6391, and 60 FR 66857-66858. The OGE
Standards, codified at 5 CFR part 2635, effective February 3, 1993,
established uniform standards of ethical conduct that apply to all
executive branch personnel.
Section 2635.105 of the OGE Standards authorizes an agency, with
the concurrence of OGE, to adopt agency-specific supplemental
regulations that are necessary to properly implement its ethics
program. The Department of Veterans Affairs, with OGE's concurrence,
has determined that the following supplemental regulations are
necessary for successful implementation of its ethics program in light
of the unique programs and operations of the Department.
II. Analysis of the Regulation
Pursuant to Section 2635.803 of the OGE Standards, where it is
determined to be necessary or desirable for the purpose of
administering its ethics program, an agency shall by supplemental
regulation require employees or any category of employees to obtain
approval before engaging in specific types of outside activities,
including outside employment. Additionally, under Section 2635.403(a)
of the OGE Standards, an agency may, by supplemental regulation,
prohibit its employees from having outside employment or other
financial interests when the agency determines such outside employment
or financial interests would cause a reasonable person to question the
impartiality and objectivity with which agency programs are
administered. Outside employment and activities prohibited by an
agency's supplemental regulation would be considered ``conflicting
outside employment'' or ``conflicting outside activities'' and
therefore barred by 2635.802(a) of the OGE Standards.
VA has determined that it is necessary and desirable for the
purposes of administering its ethics program to impose on its employees
the prior approval requirements described below. VA also has determined
that certain employment or activities by attorneys in the Office of
General Counsel involving the outside practice of law would cause a
reasonable person to question the impartiality and objectivity with
which VA programs are administered, necessitating additional
restrictions for those employees.
Proposed Section 10501.101 General
Section 10501.101 explains that these regulations apply to VA
employees and supplement the OGE Standards.
Proposed Section 10501.102 Prior Approval for Certain Outside
Employment and Other Outside Activities
Paragraph (a) requires a VA employee, other than a special
Government employee, to obtain written approval before engaging in
certain outside employment or other outside activities. The prior
approval requirement will be an integral part of VA's ethics program.
VA believes this requirement is necessary to ensure that an employee's
participation in outside employment or other outside activities does
not adversely affect VA operations or place the employee at risk of
violating applicable statutes and regulations governing employee
conduct.
Paragraph (a)(i) requires prior written approval before engaging,
with or without compensation, in outside
[[Page 37801]]
employment, as defined in paragraph (b)(2) below, with a prohibited
source (an entity that seeks official action by VA, does business or
seeks to do business with VA, conducts activities regulated by VA, has
interests that may be substantially affected by performance or
nonperformance of the employee's official duties, or is an organization
a majority of whose members fit into one or more of those categories).
For example, VA spends millions of dollars on contracts with
corporations and other entities for pharmaceuticals, medical devices,
services, and other items in support of Veteran health care, engages in
cooperative research and development agreements with pharmaceutical and
medical device companies, and affiliates with medical schools whose
physician and researcher employees also have appointments at VA.
Requiring approval prior to engaging in outside employment with these
and other prohibited sources is critical to protect against questions
arising regarding the administration of VA programs and the
impartiality and objectivity of VA employees. Because of the definition
of outside employment in paragraph (b)(2), the prior approval
requirement in paragraph (a)(i) does not attach to participation in
activities of a nonprofit charitable, religious, professional, social,
fraternal, educational, recreational, public service or civic
organization, unless the participation involves the provision of
professional services or advice for compensation.
Paragraph (a)(ii) captures activities with certain nonprofit
organizations that would not be captured by paragraph (a)(i) because of
the definition of employment under paragraph (b)(2). It requires prior
written approval before serving, with or without compensation, as an
officer, director, trustee, general partner, employee, consultant, or
contractor for a Veteran-centric organization, such as a Veteran
Service Organization or other organization, business, corporation, or
charity with a mission focused on Veterans. Requiring prior approval
for these activities is critical to protect against questions arising
regarding the administration of VA programs and the impartiality and
objectivity of VA employees. For example, some Veteran-centric
organizations receive agency-provided office space and office
facilities in accordance with 38 U.S.C. 5902, have representatives that
prepare, present, and prosecute claims under laws administered by the
VA, are engaged in public-private partnerships with VA, or have other
ties to VA regulated by Department law, regulation, or policy. They are
prohibited sources, yet they typically also are nonprofits with a
mission that is charitable, public service, or civic in nature. As
such, prior approval for activities with many Veteran-centric
organizations would not generally be required under paragraph (a)(1)
because the definition of ``employment'' under paragraph (b)(2)
excludes participation in the activities of certain nonprofits., The
additional prior approval requirement of paragraph (a)(ii) is intended
to address potentially serious ethical issues stemming from personal
capacity leadership in, or other activities with, these organizations.
The smaller universe of activities with Veteran-centric organizations
requiring prior approval compared to what is required in paragraph
(a)(i) for prohibited sources reflects the Department's historical
experience with ethical issues arising from Veteran-centric
organizations and the types of positions that are more likely to be
potentially problematic.
Paragraph (b) sets forth definitions of the terms used in this
section. Proposed paragraph (b)(1) defines ``agency designee'' by
reference to the definition provided in 5 CFR 2635.102(b) of the OGE
Standards. Paragraph (b)(2) defines ``employment'' to include non-
Federal employment or a business relationship involving the provision
of personal services, whether or not for compensation. The definition
excludes participation in outside activities with the types of
nonprofit organizations that VA deems unlikely to be problematic,
unless such participation involves the provision of professional
services (compensated or not) or advice for compensation or actual
expenses. Paragraph (b)(3) defines ``prohibited source'' in the same
terms as that found in 5 CFR 2635.203(d) of the OGE Standards.
Paragraph (b)(4) defines ``Veteran Service Organization'' to be an
organization that is recognized by the Secretary of Veteran Affairs for
the representation of Veterans under 38 U.S.C. 5902. Paragraph (b)(5)
defines ``Veteran-centric organization'' broadly to be any organization
with a stated purpose of providing services or assistance to Veterans
or their families, or of soliciting donations for veterans or their
families.
Paragraph (c) sets out the procedures for requesting prior approval
to engage in covered outside employment or activities. Pursuant to
these procedures, employees must make a written request directed to
their supervisor no later than fourteen (14) calendar days before
beginning the activity. The employee's supervisor is required to
provide a statement addressing the extent to which the employee's
duties are related to the proposed outside activity and forward both
the request and the supervisor's statement to an agency designee for a
determination on the request.
Paragraph (d) sets out the standard to be applied by the agency
designee in acting on requests for prior approval of outside employment
as broadly defined by paragraph (b)(2) and for prior approval of
outside activities with Veteran-centric organizations as broadly
defined by paragraph (b)(5). Approval will be granted unless it is
determined that the outside employment or other activity is expected to
involve conduct prohibited by statute or Federal regulation, including
5 CFR part 2635.
Under paragraph (e), the DAEO may issue instructions or internal
directives governing the submission of requests for approval of outside
employment and may exempt categories of employment from the prior
approval requirement of this section based on a determination that the
employment within those categories generally would be approved and is
not likely to involve prohibited conduct or create an appearance of
lack of impartiality. The DAEO may also in these instructions establish
a grace period for new employees to file a request for approval.
Paragraph (f) provides that within 14 calendar days of a
significant change in the nature or scope of the outside employment or
activity or in the employee's official Department position or duties,
the employee must submit a revised request for approval. Employment
that began before the effective date of this part is also subject to
this requirement.
Proposed Section 10501.103 Additional Rules for Attorneys in the Office
of the General Counsel
Paragraph (a) requires OGC attorneys to obtain prior written
approval before engaging in the ``outside practice of law,''
compensated or not, as it is defined in that paragraph. OGC attorneys
must obtain the approval in accordance with the procedures in Sec.
10501.102(c) and the standard for approval in paragraph (b).
Paragraph (b) sets out the standard to be applied in reviewing
requests for prior approval for the outside practice of law. Approval
will be granted unless it is determined that the outside practice of
law is expected to involve conduct prohibited by statute, Federal
regulations, including the OGE Standards, or paragraph (c) of this
section. This standard is consistent with
[[Page 37802]]
the standard of approval in proposed Sec. 10501.102(d).
Paragraph (c)(1) prohibits OGC attorneys from engaging in the
outside practice of law where the activity, in fact or in appearance,
may require the assertion of a legal position that conflicts with the
interests of the Department. OGC attorneys are also prohibited from
engaging in any outside law practice that might require the
interpretation of a statute, regulation, or rule administered or issued
by the Department. Attorneys in OGC are also prohibited from engaging
in any outside practice of law where a supervisory attorney determines
that such outside practice of law would conflict with the employee's
official duties or create the appearance of a loss of the attorney's
impartiality as prohibited by 5 CFR 2635.802. Further, as prohibited by
18 U.S.C. 205, OGC attorneys may not act as an agent or attorney in any
matter in which the U.S. Government is a party or has a direct and
substantial interest. Paragraph (c)(2) enunciates certain exceptions
from the prohibitions listed in paragraph (c)(1). Paragraph (c)(3)
outlines the procedures for the use of those exceptions.
Asserting Contrary Legal Positions
Paragraph (c)(1)(i) is consistent with the rules of professional
conduct governing the attorney-client relationship. Precluding any
outside law practice that may require the assertion of legal positions
adverse to VA derives from the unique and sensitive relationship
between an attorney and a client, which for an OGC attorney is VA.
Moreover, the Department has a legitimate interest in maintaining
the consistency and credibility of the Department's positions before
the Federal courts. For the most part, the representational bans
contained in 18 U.S.C. 203 and 205 would preclude outside practice by
OGC attorneys in the Federal courts because nondiversity cases within
Federal court jurisdiction generally involve controversies in which the
United States is a party or has a direct and substantial interest.
However, cases may arise involving the interpretation or application of
Federal statutes or regulations that do not necessarily implicate the
direct and substantial interests of the United States.
Although very unlikely, OGC attorneys representing private clients
might appear in front of the same judges before whom they appear in
their official capacities and argue different interpretations of
Federal statutes or regulations. Depending upon the visibility of the
issues and any attendant controversy, asserting conflicting legal
positions may diminish the persuasiveness of the advocate, erode
judicial confidence in the integrity of the Department's attorneys, and
undermine the credibility of both clients. Section 10501.103(c)(1)(i)
is intended, therefore, to safeguard the interests of the Department as
the primary client to which the attorney employee owes a professional
responsibility.
Interpreting Department of Veterans Affairs Statutes
Paragraph (c)(1)(ii) is intended to effectuate the prohibition on
the use of public office for private gain, to preclude inconsistent
legal positions on core issues affecting the interests of VA, and to
protect the public interest by preventing any public perception that an
attorney's employment with VA signifies extraordinary competency on
agency related issues, or that an OGC attorney's interpretation
implicitly is sanctioned or approved by VA. For the most part, the
outside practice of law involving agency statutes, rules, or
regulations would be precluded as a conflicting activity. If the
subject matter of proposed representation and the assigned duties of
the attorney correlate, the outside activity potentially would require,
under the standards set forth in 5 CFR 2635.402 and 2635.502, the
employee's disqualification from matters so central or critical to the
performance of the employee's official duties that the employee's
ability to perform the duties of the employee's position would be
materially impaired. Similarly, representation on matters involving the
application of agency statutes may implicate direct and substantial
interests of the United States, thus contravening the representational
bans in 18 U.S.C. 203 and 205.
Paragraph (c)(1)(ii) reaches situations not specifically addressed
in proposed Sec. 10501.102, although the regulation to some extent
covers areas that would be subject to those requirements. Absent the
prohibition contained in this section, an OGC attorney conceivably
could obtain outside employment advising, as opposed to representing, a
private client on areas of agency law to which the attorney is not
assigned. In these circumstances, there is considerable risk that the
outside legal employment position held by the individual may convey an
impression of authoritativeness or access to non-public information or
agency experts that may not necessarily be warranted. Moreover, private
clients, and those aware of the OGC attorney's involvement, may assume
incorrectly that the attorney's interpretation is effectively a VA
interpretation as well. Rendering legal services that may require the
interpretation of any statute, regulation, or rule administered or
issued by VA creates an appearance that the employee has used the
employee's official position to obtain an outside business opportunity.
Further, if counsel were engaged in the outside law practice that
involved Department statutes, the potential risk for asserting legal
positions adverse to the interests of the Department would be
heightened. Similarly, as established at 5 CFR 2635.802(b), it would
undermine the effectiveness of the attorney and the attorney's duty of
loyalty to the Department where an employee's supervisory attorney has
determined that the outside practice of law would create a conflict of
interest, or the appearance of a loss of impartiality, requiring the
attorney's Department disqualification from matters central to the
attorney's performance of official duties. In such situations, the
attorney's duty of loyalty to the Department as the attorney's primary
client must take first priority.
Acting as an Agent
Paragraph (c)(1)(iii) highlights the proscription in 18 U.S.C. 205
barring employees from acting as an agent or attorney in any matter in
which the United States Government is a party or where the Government
has a direct and substantial interest.
Exceptions
Paragraph (c)(2) provides exceptions to the prohibitions set forth
in paragraph (c)(1). Consistent with the exceptions to the
representational bans contained in 18 U.S.C. 203 and 205, nothing in
this regulation precludes representation, if approved in advance by the
appropriate official or supervisor, that is: (1) rendered, with or
without compensation, to specified relatives or an estate for which an
employee serves as a fiduciary; (2) provided, without compensation, to
an employee subject to disciplinary, loyalty, or other personnel
administration proceedings; or (3) rendered, without compensation to a
voluntary employee nonprofit organization or group (such as child care
centers, recreational associations, professional organizations, credit
unions or other similar groups) before the U.S. Government under
certain circumstances (18 U.S.C. 205 restricts employees from
representing an employee organization or group in claims against the
Government, in seeking grants, contracts or funds from
[[Page 37803]]
the Government, or in a judicial or administrative proceeding where the
organization or group is a party). Moreover, paragraph (c)(2)(iv) makes
explicit that neither the ban on asserting contrary positions nor the
prohibition on interpreting agency statutes is intended to proscribe
the giving of testimony under oath. In order to take advantage of the
exceptions to 18 U.S.C. 203 and 205 for representing family members or
an estate, both statutes expressly require the approval of the
Government official responsible for the employee's appointment. See 18
U.S.C. 203(d) and 205(e). To take advantage of the other exceptions set
forth in paragraph (c)(2), the employee's supervisor must determine
that the representations are not ``inconsistent with the faithful
performance of [the employee's] duties.'' See 18 U.S.C. 205(d). These
approval procedures are detailed in paragraph (c)(3).
Pro Bono
Paragraph (d) permits attorneys in OGC, subject to the restrictions
in paragraph (c)(2), to provide outside pro bono legal services through
a non-profit organization, without obtaining prior written approval.
For example, VA attorneys may provide legal services pro bono publico
in areas such as drafting wills or powers of attorney, assisting the
preparation of domestic violence protective orders, and landlord-tenant
disputes. These pro bono activities can generally be undertaken without
detriment to the Department's interests, provided that the employee
adheres to the limitations of this rule. The Department encourages such
volunteer legal activities, if not inconsistent with this supplemental
regulation and the laws and regulations described above. Attorneys in
the OGC who have questions about whether a specific pro bono legal
service would comply with the limitations of this rule are encouraged
to seek advance guidance from the Office of General Counsel's Ethics
Specialty Team.
III. Matters of Regulatory Procedure
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rule is not a significant regulatory action under Executive Order
12866, as amended by Executive Order 14094. The Regulatory Impact
Analysis associated with this rulemaking can be found as a supporting
document at www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule will not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). The provisions in this proposed rule apply to internal
matters of the agency, its employees and do not involve entities
outside of VA. This rule will have no impact on small entities.
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do
not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule will have no such effect
on State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
List of Subjects in 5 CFR Part 10501
Conflict of interests, Government employees.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on May 16, 2023, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
Emory Rounds,
Director, U.S. Office of Government Ethics.
For the reasons set forth in the preamble, the Department of
Veterans Affairs, with the concurrence of the Office of Government
Ethics, proposes to amend title 5 of the Code of Federal Regulations by
adding a new chapter CV, consisting of part 10501, to read as follows:
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER CV--DEPARTMENT OF VETERANS AFFAIRS
PART 10501--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF VETERANS AFFAIRS
Sec.
10501.101 General.
10501.102 Prior approval for certain outside employment and other
outside activities.
10501.103 Additional rules for attorneys in the Office of the
General Counsel.
Authority: 5 U.S.C. 7301, 7353; 5 U.S.C. Ch. 131; 38 U.S.C. 501;
E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by
E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105,
5 CFR 2635.402(c), 5 CFR 2635.403(a), 5 CFR 2635.502, CFR 2635.604,
2635.802, 2635.803; 5 CFR 301; 5 CFR 512.
Sec. 10501.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of Veterans Affairs (VA) and
supplement the Standards of Ethical Conduct for Employees of the
Executive Branch contained in 5 CFR part 2635.
Sec. 10501.102 Prior approval for certain outside employment and
other outside activities.
(a) Prior approval requirement. Except as provided in paragraph (e)
of this section, an employee, other than a special Government employee,
must obtain written approval prior to:
(i) Engaging, with or without compensation, in outside employment
with a prohibited source;
[[Page 37804]]
(ii) Serving, with or without compensation, as an officer,
director, trustee, general partner, employee, consultant, or contractor
for a Veteran-centric organization, such as a Veteran Service
Organization or other organization, business, corporation, or charity
with a mission focused on Veterans.
(b) Definitions. For purposes of this section:
(1) Agency designee has the meaning set forth in 5 CFR 2635.102(b).
(2) Employment means any form of non-Federal employment or business
relationship involving the provision of personal services by the
employee, including self-employed business activities, whether or not
for compensation. It includes but is not limited to personal services
as an officer, director, employee, agent, attorney, consultant,
contractor, general partner, trustee, teacher, or speaker. It includes
writing done under an arrangement with another person for production or
publication of the written product. It does not, however, include
participation in the activities of a nonprofit charitable, religious,
professional, social, fraternal, educational, recreational, public
service, or civic organization, unless the participation involves the
provision of professional services (compensated or not) or advice for
compensation other than reimbursement for actual expenses.
(3) Prohibited source has the meaning described in 5 CFR
2635.203(d), and includes any person who:
(i) Is seeking official action by VA;
(ii) Does business or seeks to do business with VA;
(iii) Conducts activities regulated by VA;
(iv) Has interests that may be substantially affected by
performance or nonperformance of the employee's official duties; or
(v) Is an organization a majority of whose members are described in
paragraphs (b)(3)(i) through (iv) of this section.
(4) Veteran Service Organization means an organization recognized
by the Secretary of Veterans Affairs for the representation of Veterans
under 38 U.S.C. 5902.
(5) Veteran-centric organization means an organization with a
stated purpose of providing services or assistance to Veterans or their
families, or of soliciting donations for Veterans or their families, as
indicated by that organization's website, mission statement, charter,
or other written material available to the public.
(c) Submission of requests for approval. An employee seeking to
engage in any activity for which advance approval is required under
paragraph (a) of this section must make a written request for approval
no later than fourteen (14) calendar days before beginning the
activity. The request shall be directed to the employee's supervisor.
The supervisor shall submit the request and a statement addressing the
extent to which the employee's duties are related to the proposed
outside activity to an agency designee who shall make a final
determination on the request. The agency designee may consult with an
Office of General Counsel ethics attorney in making that determination.
(d) Standard for approval. Approval shall be granted unless it is
determined that the outside employment or other outside activity is
expected to involve conduct prohibited by statute or Federal
regulation, including 5 CFR part 2635.
Note 1 to paragraph (d): The granting of approval for an outside
activity does not relieve the employee of the obligation to abide by
all applicable laws and regulations governing employee conduct, nor
does approval constitute a sanction of any violation of any
applicable law or regulation. Approval involves an assessment that
the general activity as described on the submission does not appear
likely to violate any criminal statutes or other ethics rules.
Employees are reminded that during the course of an otherwise
approvable activity, situations may arise, or actions may be
contemplated, that, nevertheless, pose ethical concerns. Employees
are encouraged to contact VA ethics officials for advice.
(e) Issuance of instructions. The designated agency ethics official
(DAEO) may issue written instructions regarding the form, content, and
manner of submission of requests under paragraph (c) of this section.
The DAEO may include in these instructions examples of outside
employment that are permissible or impermissible consistent with this
part and 5 CFR 2635. The instructions also may establish a grace period
for new employees to file a request for approval. The instructions may
exempt categories of employment from the prior approval requirement of
paragraph (a) of this section based on a determination by the DAEO that
employment within those categories of employment will generally be
approved and is not likely to involve conduct prohibited by Federal law
or regulation, including 5 CFR part 2635 and this part.
(f) Requirement to submit revised request. Upon a significant
change in either the nature of the outside employment or activity or in
the employee's official Department position or duties, the employee
must, within fourteen (14) calendar days of the change, submit a
revised request for approval using the procedure in paragraph (c) of
this section. An employee, other than a special Government employee,
who is engaged in outside employment or an outside activity described
in paragraph (a) of this section that began before the effective date
of this part is subject to this requirement.
Sec. 10501.103 Additional rules for attorneys in the Office of the
General Counsel.
(a) Additional rules for attorneys in the Office of the General
Counsel regarding the outside practice of law. Any attorney serving
within the Office of the General Counsel shall obtain written approval,
in accordance with the procedures set forth in Sec. 10501.102(c) and
the standard for approval set forth in paragraph (b) of this section,
before engaging in the outside practice of law, whether compensated or
not. For purposes of this section the ``outside practice of law'' means
those activities requiring professional licensure by a state bar as an
attorney and include, but are not limited to, providing legal advice to
a client, drafting legal documents, and representing clients in legal
negotiations or litigation.
(b) Standard for approval. Approval shall be granted by the agency
designee unless it is determined that the outside practice of law is
expected to involve conduct prohibited by statute or Federal
regulation, including 5 CFR part 2635, or paragraph (c) of this
section.
(c) Prohibited outside practice of law applicable to attorneys in
the Office of the General Counsel.
(1) General prohibitions. An employee who serves as an attorney
within the Office of the General Counsel shall not engage in any
outside practice of law that might require the attorney to:
(i) Assert a legal position that is or appears to be in conflict
with the interests of the Department of Veterans Affairs, the client to
which the attorney owes a professional responsibility; or
(ii) Interpret any statute, regulation, or rule administered or
issued by the Department of Veterans Affairs, or where a supervisory
attorney determines that the outside practice of law would conflict
with the employee's official duties or create the appearance of a loss
of the attorney's impartiality, as prohibited by 5 CFR 2635.802; or
(iii) Act as an agent or attorney in any matter in which the U.S.
Government is a party or has a direct and substantial interest, as
prohibited by 18 U.S.C. 205.
(2) Exceptions. Nothing in paragraph (c)(1) of this section
prevents an
[[Page 37805]]
attorney in the Office of the General Counsel from:
(i) Acting, with or without compensation, as an agent or attorney
for, or otherwise representing, the employee's parents, spouse, child,
or any other person for whom, or for any estate for which, the employee
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary to the extent permitted by 18 U.S.C. 203(d) and
205(e), or from providing advice or counsel to such persons or estates;
or
(ii) Acting, without compensation, as an agent or attorney for, or
otherwise representing, any person who is the subject of disciplinary,
loyalty, or other personnel administration proceedings in connection
with those proceedings, or from providing uncompensated advice and
counsel to such person to the extent permitted by 18 U.S.C. 205; or
(iii) Acting, without compensation, as an agent or attorney for, or
otherwise representing any cooperative, voluntary, professional,
recreational, or similar organization or group not established or
operated for profit, if a majority of the organization's or group's
members are current employees of the United States or the District of
Columbia, or their spouses or dependent children. As limited by 18
U.S.C. 205(d), this exception is not permitted for any representation
with respect to a matter which involves prosecuting a claim against the
United States under 18 U.S.C. 205(a)(1) or 18 U.S.C. 205(b)(1), or
involves a judicial or administrative proceeding where the organization
or group is a party, or involves a grant, contract, or other agreement
providing for the disbursement of Federal funds to the organization or
group; or
(iv) Giving testimony under oath or from making statements required
to be made under penalty for perjury or contempt.
(3) Specific approval procedures for paragraph (c)(2) of this
section.
(i) The exceptions to 18 U.S.C. 203 and 205 described in paragraph
(c)(2)(i) of this section do not apply unless the employee obtained the
prior approval of the Government official responsible for the
appointment of the employee to a Federal position.
(ii) The exceptions to 18 U.S.C. 205 described in paragraphs
(c)(2)(ii) and (iii) of this section do not apply unless the employee
has obtained the prior approval of a supervisory official who has
authority to determine whether the employee's proposed representation
is consistent with the faithful performance of the employee's duties.
(d) Pro Bono activity. Subject to compliance with paragraph (c) of
this section, attorneys within the Office of the General Counsel are
permitted to provide outside pro bono legal services (without
compensation other than reimbursement of expenses) to organizations or
individuals through a non-profit organization, without obtaining prior
written approval in accordance with the procedures set forth in Sec.
10501.102(c).
[FR Doc. 2023-11772 Filed 6-8-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on June 9, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.