Appendix H: Additional Legal References for Conduct and Ethics

This appendix provides more formal legal references for conduct and ethics practices in the Forest Service and USDA.

Working in an Official Capacity with Non-Federal Organizations (NFOs)

Conflicts of Interest/Impartiality

Forest Service Employees May:

  • Serve in any non-fiduciary, non-employee position that is reasonably required to accomplish the agency mission such as a Forest Service liaison, technical advisor, committee chairman, or member. (If there are any conflict or interest or impartiality concerns they need to have been addressed or waived in advance.)

Forest Service Employees May Not:

  • Participate as a fiduciary (officer, director, or trustee) or as an employee of the NFO unless specifically authorized by statute or a departmental waiver (18 USC 208.) Requests for Departmental Waivers must be submitted through the Mission Area Ethics Advisor in the Washington Office.
  • Participate in any other official capacity if you already:
    • Serve in your personal capacity as a fiduciary or employee of that organization (see 18 USC 208); or
    • Participate actively in your personal capacity such as committee chair, fundraiser, or spokesperson (see 5 CFR 2635, Subpart E). (Note: This doesn’t include simple membership.)

Internal Issues

Forest Service Employees May:

  • Participate in discussions on issues related to Forest Service interests and the specific official purposes underlying your assignment.

Forest Service Employees May Not:

  • Participate in internal non-federal organization issues such as budgets, fundraising, membership, by-laws, office space considerations, political action committees, or for-profit activities.

Lobbying/Representing before the Federal Government

Forest Service Employees May:

  • Present NFO proposals and ideas that relate to your official duties with the organization to appropriate Forest Service and other federal officials for consideration.
  • Provide Congress with official information requested with regard to matters under your official duties with the NFO, where it is appropriate for you to do so and through proper agency channels.

Forest Service Employees May Not:

  • Represent the interests of the NFO before any federal employee, agency, or court in connection with a matter in which the United States is a party or has an interest IF the matter is not related to the official duties that you perform with them (18 USC 205).
  • Seek or accept compensation from the NFO or anyone else for services performed behind the scenes in connection with such an improper representation (18 USC 203).
  • Perform services in support of grass roots efforts by the NFO to lobby Congress (18 USC 1913).

Compensation, Honoraria, and Gifts

Forest Service Employees May Not:

  • Seek or accept compensation (including honoraria) from any non-federal party for official duties that you perform in connection with the non-federal organization (18 USC 209).
  • Seek or accept anything of value from the NFO given for your personal benefit or for the personal benefit of anyone else unless permitted under 5 CFR 2635.204. (An NFO with which USDA partners is a prohibited source to USDA.1) Gifts given for the benefit of the agency are treated separately.
  • Personally accept travel and subsistence costs provided by the NFO in connection with your official duties other than as permitted by law. 31 USC 1353 (travel costs paid by Non-Federal Sources); DR 5200-3 (Agency Gift Acceptance Directives), 5 USC 4111 (Training Act), or 5 USC 7342 (Foreign Gifts and Decorations Act).

Recognition/Endorsement of Non-Federal Partners

Forest Service Employees May:

  • Officially promote employee official participation in the joint venture.
  • Co-sponsor a non-fundraising “kick off” event.
  • Erect a plaque or memorial honoring the NFO’s contribution to the project. For example, the Forest Service could erect a small plaque by the trailhead stating “The Pinecone Trail was reconstructed with contributions donated by XYZ Equipment Company in partnership with the Forest Service.”
  • Issue a factual announcement publicizing successful completion of the project and the non-federal organizations role in that completion.

Forest Service Employees May Not:

  • Officially encourage or require employees to become members of NFOs.
  • Raise funds for or on behalf of the NFO, even if related to a joint venture;
  • Erect a billboard or sign that serves more as an advertisement for the NFO than a memorial to a joint venture;
  • Issue a statement aimed primarily at promoting the NFO's programs or products. For example, the Forest Service cannot recommend ABC Equipment Company for trail maintenance work based on its volunteer assistance in maintaining the Pinecone Trailhead.
  • Otherwise endorse the products or services of the NFO (5 CFR 2635, subpart G). For example, Jane Firefighter may not appear in a TV commercial stating that she uses DEF drops whenever she’s fighting fires and feels a cold coming on.

Appropriated Funds

The Agency May:

  • Use appropriated funds to purchase an NFO membership for use by the agency. The agency then has the power to select whom it will assign to perform official duties under that membership.

Forest Service Employees May:

  • Attend NFO meetings and provide information about what can be done with additional funds that may be raised through a partnership.
  • Attend national conferences and meetings on official travel and time for professional development when it is part of the employee’s official training plan.

Forest Service Employees May Not:

  • Use appropriated funds to purchase or renew an NFO membership for a specific agency employee.
  • Use appropriated funds to pay for official training accomplished through an NFO of which you may also be a member in your personal capacity.
  • Utilize appropriated funds to accomplish, through NFO personnel, anything that Forest Service employees cannot be assigned to perform.

Fundraising/Fundraising Events

Forest Service Employees May:

  • Attend an event in an official capacity only to the extent permitted by 5 CFR part 2635, including giving an official speech.
  • If the agency approves of the content and your status as the appropriate speaker, deliver an appropriate official speech on a subject appropriate to the event. As a speaker, the employee’s name may appear on the invitation but not their title. Neither the employee nor the Forest Service may be shown as a sponsor or shown in a manner that implies endorsement.
  • Permit use of agency properties and sites for fundraising events only in accordance with departmental directives.

Forest Service Employees May Not:

  • Participate in planning a fundraiser by or on behalf of the NFO.
  • Directly or indirectly solicit or receive donations for or on behalf of the NFO.
  • Make a donation of appropriated funds to the NFO as part of a fundraising effort.
  • Actively participate in any fundraising event through such actions as standing in a receiving line, serving drinks, sitting at the head table, or making a speech soliciting funds.

Working in a Personal Capacity with Non-Federal Organizations

Forest Service Employees May (amongst other lawful activities and in conformity with conflict of interest laws):

  • Serve in any lawful position or role with the NFO, subject to the conflict of interest laws.
  • Participate in all internal matters relating to the NFO.
  • Participate, in a personal capacity, in lobbying efforts by the NFO before Congress.
  • Accept compensation from the NFO, subject to USDA regulations concerning prior agency approval of outside employment (See 5 CFR Part 8301).
  • Participate in all aspects of fundraising subject to the limitations mentioned above.

Forest Service Employees May Not:

  • Participate officially, without waiver or agency approval, in any matter involving the NFO if you are a fiduciary of, employee of, or an active participant in the NFO (other than simply as a member);
  • Represent the NFO, by personal appearance or communication, before any federal agency or court concerning any matter in which the United States has an interest, or accept or seek compensation from anyone for services that you render in support of representations made by another before a federal agency or court on behalf of the NFO;
  • Use your official title, position, or authority in support of fundraising activities by the NFO, or solicit or accept donations from persons whom you have reason to know are (1) prohibited sources to USDA, or (2) your official subordinates.

1. Prohibited sources include any person or entity:

  • That seeks official action from USDA ( e.g., a Special Use Permit applicant)
  • That conducts or seeks to conduct business with USDA (e.g., a logging contractor)
  • That conducts activities regulated by USDA (e.g., a slaughterhouse)
  • That has interests that may be substantially affected by performance or nonperformance of the employee’s official duties (e.g., a litigant with USDA)
  • An organization a majority of whose members are prohibited sources (e.g. a trade association)