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Subpart G - Misuse of Position

a. General.

Question: Due to recent terrorist threats, my wife pulled an office emergency pack together for me. Since I've brought it to work, several employees have expressed interest with her assembling similar packs for them. She's not currently employed and the possibility of marketing and selling such packs for employees and others appeals to her. Will this create any ethics problems for me?

Answer: Her sale of such products should pose no ethics problems for you as long as you have nothing to do with marketing or selling of them in the workplace. Your involvement could be viewed as misusing your official position under 5 CFR 2635.702 (endorsement of product or service), 2635.704 (misuse of government equipment) and 2635.705 (misuse of official time). In other words, don't bring them to the office to sell them to employees, and don't advertise their sale using government computers and other recourses, including your time and equipment. Suggestion: If she would like to sell products in a Federal facility, suggest that she contact established employee associations such as ESRA here in HQ.

Finally, if she’s feeling charitable, she might supply you with a list of items in your pack, and you in turn, could make that list available to your coworkers at no cost. In such an environment no cautionary measures relating to ethics apply.

b. Use of public office for private gain (Section 2635.702).

Question: What is meant by the phrase "use of public office for private gain"?

Answer: You may not use or permit the use of your position or title to induce or coerce someone to grant a benefit to yourself or another (e.g., don't call a subordinate and tell him/her that he/she has an application from your cousin and that you are most interested in the results of your subordinate's review of the application). You may not use or permit the use of your position or title to sanction or endorse the activities of any other person (e.g., don't make a television advertisement in which you identify your position and title as a nutritionist for the Department and promote sales of a particular brand of margarine). Even when teaching, speaking, or writing, you may refer to your official title or position only in the three limited ways permitted by 5 CFR § 2635.807(b).

c. Use of nonpublic information (Section 2635.703).

Question: You are completing your doctoral degree and need to use information from your Agency. The information is your work product. What do you need to do to be able to use the information?

Answer: You may use the information if it is publicly available. The regulation gives the criteria for deciding what information is publicly available. If you are unsure that it is publicly available, you should request authorization to use the information from an official in your Agency with Ethics Program responsibility for giving such authorization.

Question: You have earned your doctorate using information from your Agency. May you copyright it?

Answer: Yes. The information you used must be publicly available, or you must have received authorization for the disclosure. You must have written the dissertation on your own time.

d. Use of Government property (Section 2635.704).

Question: My office mate is a licensed attorney practicing law in addition to working here in a non-legal position. I have seen him use his Government computer to prepare his private, business-related correspondence and what appears to be legal briefs. I also have seen him bring up his list of clients from the hard drive on his computer. Is he allowed to do this? If not, what should I do?

Answer: His activity is not permitted. Government property, including computers and printers, may not be used to maintain one's legal practice or other private business. You have a duty to report your coworker's conduct to your supervisor or to the Office of Inspector General Hotline (1-800-424-9121 outside Washington, DC; (202) 690-1622 within the Washington Metropolitan Area; or TDD (202) 690-1202).

e. Use of official time (Section 2635.705).

Question: I am running for the local school board in a non-partisan election, and I need to have my secretary at work prepare a flyer for me. If my secretary takes annual leave, can I pay him do it?

Answer: Yes. You must be sure that you pay him adequately, or his performance of the task will be a gift to you in violation of the Standards. You must be sure that the time off is scheduled when it will not interfere with the work of your office. Also, Government equipment should not be used. NOTE: This may appear as coercion based on your superior position, and the conduct poses a greater risk in a race covered by the Hatch Act in which the employee is permitted to participate. It also may appear as favoritism to other employees.

Question: In the same situation as above, will placing my secretary on "excused absence" accomplish the same purpose as having her take leave?

Answer: A person in an excused absence status is not on official time; however, the employee remains in a pay status without charge to leave. If you pay the secretary, he/she could be receiving dual compensation in violation of the criminal statutes. If you did not pay the secretary, his/her service to you is a gift in violation of the Standards. You also have abused your discretion as a supervisor or manager by intentionally circumventing the requirement to use official time for Government business.

Question: Well, in the same situation as above, do I break any rules if I just ask the secretary to prepare the flyer in her spare time at the office?

Answer: Obviously, yes. You have directed the secretary to use official time and resources for a non-Government purpose.

You may not circumvent the requirement to use your own official time and that of your subordinate for official purposes. If you place your secretary in an excused absence category, you have denied his/her services to the Government by removing him/her from official time — putting the Government in the position of paying the secretary's salary without charge to the employee's leave and without receiving the employee's services.