There is an important distinction between persons detailed to a federal agency and persons who are appointed to the agency. IPA appointees are considered "employees" of the federal agency for almost all purposes, while IPA detailees are deemed federal employees for only limited purposes [see 5 USC Section 3374(C)(2)]. This remainder of this document pertains primarily to IPA detailees, or those individuals who are not considered to be federal employees. IPA appointees remain subject to the conflict of interest statutes and regulations the same as other federal employees so documents on this web site pertain.
Intergovernmental Personnel Act (IPA) detailees are bound by the criminal statutes and other Federal Regulations very much like Federal government employees. Many of the restrictions are common sense limitations, but others are less obvious. This document discusses ethics requirements for the IPA detailee, including Title 18 of the United States Code, and other topics such as Financial Disclosure, Outside Activities, Representational Activities, Post-Employment Statutes, and Conflict of Interest related to IPA detailees.
TITLE 18 of the USC Criminal Conflict of Interest Statute
Sections 203 and 205 prohibit the IPA detailee from representing an individual or an organization (including the IPA detailee's non-federal home institution), regardless of compensation, in matters before the Federal Government. See "Representational Activities" below.
Section 207 prohibits the former IPA detailees from "switching sides" on matters they worked on or supervised during their detail to HHS. For example, an IPA detailee who developed the specific criteria for awarding a particular HHS contract may not, after leaving HHS, personally apply for that contract on behalf of the non-Federal outside entity for which he/she works. This former detailee may however work "behind the scenes" by advising other persons preparing the entity's contract proposal, subject to the prohibitions on disclosure of certain information. See the "Post-Employment Statutes" section below.
Section 208 prohibits an IPA detailee from participating in a Government matter in which, to the detailee's knowledge, s/he or other entity whose interests are imputed to him/her (i.e., spouse, minor child, partner, or organization in which the detailee serves as an officer, director, trustee, general partner, or employee) has a financial interest. For example, an IPA detailee who has an investment in a health care sector fund would be required to self-disqualify from participating in a particular matter that would affect that investment. See "Conflict of Interest" below.
Section 209 prohibits an IPA detailee from receiving any salary or contribution from other than Federal Government sources for Government service (except if the detail is being paid by the detailee's non-Federal outside entity).
Sections 602 and 603 prohibit an IPA detailee from soliciting political contributions.
Section 1905 prohibits disclosure of confidential information gained during the course of the IPA detail.
Section 1913 prohibits lobbying with appropriated funds (funds used to carry out official Government activities).
Other Statutes
IPA detailees who serve as procurement officials are also subject to the provisions of the Procurement integrity Act, 41 USC Section 423.
IPA detailees are also covered by the Hatch Act Amendments (Public Law No. 103-94) and may, as of February 3, 1994, campaign for or against candidates in partisan elections. For more specific guidance, call the Hatch Act Hotline at 1-800-854-2824.
FINANCIAL DISCLOSURESome IPA detailees are subject to financial disclosure reporting requirements, based on the position that they fill. Depending on the particular position, IPA detailees may need to complete either the Public Financial Disclosure Report (SF 278) or the Confidential Financial Disclosure Report (OGE 450). The IC's Deputy Ethics Counselor (DEC) or Ethics Coordinator will work with IC staff to identify which IPA detailees will be required to complete either financial disclosure report. Those detailees who do not need to complete either form still need to ensure that they have no financial interest or outside activity which conflicts with their federal duties, IPA detailees should discuss financial interests (including stocks, investment funds) and outside activities (including service on boards of directors, activities in professional associations, and consulting) with their Deputy Ethics Counselor to avoid any real or apparent conflicts of interest, preferably before joining the NIH. For more information, see the memorandum (pdf format) from the Office of Government Ethics to the HHS Associate General Counsel, Office of the General Counsel, Ethics Division.
OUTSIDE ACTIVITIESIPA detailees are subject to the prior approval requirement for outside activities, that is, activities with an outside organization which are separate and apart from their regular official duties and responsibilities. Activities which were undertaken prior to beginning the IPA detail may need to be included in the IPA agreement, especially for part-time detailees. Talk with the IC Deputy Ethics Counselor or Ethics Coordinator about these activities before the IPA agreement is finalized.
REPRESENTATIONAL ACTIVITIES
The representational statutes (18 USC 203 and 205) prohibit an IPA during the term of the appointment from representing an outside organization or individual other than him/herself and his/her immediate family before the Federal government or in a matter in which the Federal government is concerned except as a part of official Federal duties. This means, for example, that an IPA may not testify in a Federal court matter except on behalf of or as authorized by the government. In addition, an IPA detailee may not represent a friend before a government agency and may not engage in a representational activity with regard to a grant or contract or other application to the Federal government.
- A part-time IPA may maintain his/her status as a Principal
Investigator (PI) on a grant at the home institution as long as such participation is administratively authorized.
This means the holding of grants administered by outside institutions must be
included in the negotiated IPA agreement, i.e., the detailee's part-time role with the home
institution as well as the purpose of the part-time IPA assignment must be stated in the
signed agreement. Without such recognition in the agreement, there is a violation of these
statutes.
Full-time IPA detailees must relinquish PI status as not consistent with a full-time appointment with the US government.
- An IPA may file new grant applications during the IPA
assignment.
A full-time IPA may file grant applications as allowable for Federal employees preparing for post-employment service. Such grants may not be awarded during the time of the IPA appointment.
A part-time IPA detailee may be named as PI on a grant or contract application for scientific purposes provided that s/he makes no representation before a Federal agency with the intent to influence through formal or informal appearance, oral or written communications, or other communications. This means that the detailee can be named on a grant application, may sign the grant application, but may not argue for funding, or represent the organization with respect to site visits, etc. S/He can provide scientific or technical information in response to questions posed by the government. Grant awards may be made during the time of the appointment as is consistent with the time constraints and terms of the IPA agreement. This applies only to the IPA's home institution and not to other organizations because the IPA agreement only recognizes the part-time role of the detailee with the organization that is the co-signer of the IPA agreement.
POST-EMPLOYMENT STATUTES
Just like a Federal employee, an IPA is prohibited after completion of the assignment from representational activities on behalf of any outside organization or person with the intent to influence the Federal government in a particular matter involving specific parties in which the IPA participated personally and substantially as a Federal Employee (18 USC Section 207). This applies to the ability to argue funding, terms of agreement, scope of work on behalf of any institution or organization related to a grant application or other project in which the IPA participated substantially during Federal assignment for the lifetime of that grant or project. An IPA will not be prohibited from being named as a PI for scientific and technical purposes provided that he/she does not make use of non-public information gained through the IPA assignment. If the IPA participates to such an extent that it would be possible to apply only by using non-public information, then not only will the employee be banned from applying, his/her institution will also be banned as is consistent with NIH grant policy.
In addition, under procurement integrity considerations, an IPA detailee identified as a "covered official" will be prohibited for one year from accepting compensation from a contractor for one year from the last involvement in specific contract actions when the value of the contract is $10 million or more. Acquisition regulations do NOT negate post-employment restrictions under 18 USC 207.
CONFLICT OF INTEREST
IPAs must avoid conflict of interest situations, i.e., those situations in which they are asked to act in a Federal capacity in a matter in which the IPA, his/her immediate family, employer, general partner, or organization for which he/she serves as trustee, director, or partner, has a financial interest.
In the advisory process envisioned in the majority of the IPA appointments to assist in the NIH review or strategic planning process, these individuals are asked to suggest research policy or direction affecting general matters and scientific disciplines. These suggestions will apply to their home institutions as a member of a category of organizations rather than as a specific party. This is a role that can be waived under 18 USC Section 208(b)(1) to allow participation in many of these general matters, but the IPAs must be disqualified from participating in any particular matter in which their actions may have a direct and predictable effect on any of their financial interests.
For more information, also see the IPA documents on the Office of Personnel Management IPA web site.
For additional information, contact your IC's Deputy Ethics Counselor or Ethics Coordinator.
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