Transcript Missile Defense Agency - Federal Bar Association

40th Annual Symposium on
Government Acquisition
ETHICS/PROFESSIONAL
RESPONSIBILITY
Cindy Van Rassen
Associate General Counsel
Missile Defense Agency
Ethics and Mission
Do Ethics Matter?
Darleen Druyun
Michael Sears
James Roche
Phil Condit
AF Dep Sec Acq & Mngt
CFO, Boeing
Sec of AF
CEO, Boeing
Resources
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DoD Standards of Conduct Office (SOCO)
http://www.dod.mil/dodgc/defense_ethics/
Encyclopedia of Ethical Failure
The Alabama Lawyer
http://www.alabar.org/publications/al-lawyerfull/sept2012/index.html
California Bar Journal
http://www.calbarjournal.com/October2012/AttorneyDisc
ipline
Department of Justice News (Press releases)
http://www.justice.gov/opa/pr/2012/November/
Agenda
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Principles of Ethical Conduct
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Encyclopedia of Ethical Failure
ABA Model Rules
Attorney Discipline
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Recent Cases
Selected conflict of interest rules
Executive Order 12674 (as amended) – 14
Principles of Ethical Conduct:
(1) Public service is a public trust, requiring employees to place
loyalty to the Constitution, the laws and ethical principles above
private gain.
(2) Employees shall not hold financial interests that conflict with the
conscientious performance of duty.
(3) Employees shall not engage in financial transactions using
nonpublic Government information or allow the improper use of
such information to further any private interest.
(4) An employee shall not, solicit or accept any gift or other item of
monetary value from any person or entity seeking official action
from, doing business with, or conducting activities regulated by
the employee's agency.
(5) Employees shall put forth honest effort in the performance of
their duties.
(6) Employees shall not knowingly make unauthorized
commitments of any kind purporting to bind the Government.
14 Principles of Ethical Conduct continued:
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential
treatment to any private organization or individual.
(9) Employees shall protect and conserve Federal property and
shall not use it for other than authorized activities.
(10) Employees shall not engage in outside employment or
activities, including seeking or negotiating for employment, that
conflict with official Government duties and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption
to appropriate authorities.
(12) Employees shall satisfy in good faith their obligations as
citizens, including all just financial obligations.
(13) Employees shall adhere to all laws and regulations that
provide equal opportunity for all Americans regardless of race,
color, religion, sex, national origin, age, or handicap.
(14) Employees shall avoid any actions creating the appearance
that they are violating the law or the ethical standards.
2012 Encyclopedia of Ethical Failure
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MISUSE OF GOVERNMENT RESOURCES AND
PERSONNEL
Pointing and Shooting for Personal Gain
An O-5 in communications decided that his day job wasn’t
enough, so he started a side business photographing local
sports events. While on duty, he asked a subordinate to create
photo products for his personal business during official time.
The officer also requested a press pass on behalf of the
Defense Media Activity, which he then used to gain exclusive
entry into sporting events to take pictures in his off-duty time.
Hors D'oeuvres and Wine…On the Taxpayers’ Dime
A member of the SES authorized the use of appropriated funds
for two optional, off-site “teambuilding” events: a wine tasting
event and a hors d'oeuvres-tasting event. The SES member
argued that these events were justified as “necessary
teambuilding” events. The Inspector General found that the SES
had improperly authorized the use of appropriated funds for
these events, which were not necessary.
Encyclopedia of Ethical Failure
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Abuse of Position and Bribery
A military service Captain used his official position as a reservist
to obtain contracts for private sector companies with which he
had an affiliation. In addition, he accepted kickbacks from one
company for his efforts in helping the company obtain
government contract work. For his significant ethical failure, the
Captain was “allowed” to retire at the grade of Commander,
though he had been selected to be an Admiral. In addition, he
was debarred for one year, while two of the affiliated companies
entered into administrative agreements with the military service.
“You obviously don't know who I am.”
The son of a bureau director was denied a rental car because
he was too young. Outraged, his father wrote a scathing letter
(on Agency letterhead) to the president of the rental car
company, and sent it off in a U.S. postage-paid envelope. The
president of the company was not amused and returned his
scathing response to the head of the Agency.
Encyclopedia of Ethical Failure
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One Happy Family Spends Time Together in Jail
A former programs director for the GSA admitted to using his
position at Fort Monmouth to award payments from the
government to himself and his family. The former employee did
this by awarding projects to two contractors who in turn hired the
employee’s personal business enterprise and his daughter as
subcontractors. Over the course of three years, they received
over $800,000 in fees from the government; the only catch,
neither the employee’s personal business nor his daughter
actually performed any services for the government at all. Aside
from the obvious fraud to which the former employee, his wife,
and his daughter pled guilty, federal law also prohibits federal
employees from making decisions concerning matters in which
they or their family members have a personal financial interest.
The former GSA employee and his family were ordered to pay
over $800,000 in restitution, and they each received prison
sentences ranging from 12 to 46 months.
2012 Ethical Failure continued
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ENDORSEMENTS
SES Uses Title to Promote Non-Federal Entity
A SES employee served on the board of directors of a nonFederal entity (NFE). While on the board, he listed his official
position and DoD contact information on the NFE’s Web site.
Prior to this ethical violation, he had failed to request a legal
opinion regarding his ties to the NFE.
TRAVEL VIOLATIONS
A Private Jet? Don’t Mind if I Do…
An O-9 with over 35 years of service in the U.S. military was
scheduled for a command visit to a base. His original C-12 flight
was delayed, so his staff spontaneously arranged a substitute
flight for him: a C-5 that had been previously unscheduled to fly.
Despite his many years of experience and his stated
commitment to confronting travel abuse issues within his
command, he and three members of his staff boarded a nearempty jet to make the command visit on time. The government
incurred $38,000 in additional costs for the special flight.
American Bar Association Model Rules of
Professional Conduct, see also Army
Regulation 27-26
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Client-Lawyer Relationship Rule 1.13
Organization As Client
 AR 27-26 – Rule 1.13 Army as Client (an Army
Lawyer represents the Department of the Army)
(a) A lawyer employed or retained by an organization
represents the organization.
(b) If a lawyer for an organization knows that an officer,
or employee associated with the organization is
engaged in action, intends to act or refuses to act in a
matter that is a violation of a legal obligation, or a
violation of law that reasonably might be imputed to
the organization, and that is likely to result in
substantial injury to the organization, then the lawyer
shall proceed in the best interest of the organization.
National Aeronautics and Space Administration
Advisory Groups
NAC and ASAP
Chief Financial Officer*
Inspector General
Chief Information Officer*
Diversity and Equal
Opportunity
Legislative and
Intergovernmental
Affairs*
Education
Communications*
International and
Interagency Relations
Small Business
Programs
Administrator
Deputy Administrator
Associate Administrator
Chief of Staff
Associate Deputy Administrator
Associate Deputy Administrator for
Chief Scientist
Chief Technologist
Policy Integration
 Assistant Associate Administrator
Chief, Safety and
Mission Assurance
Chief Engineer
Chief Health and
Medical Officer
General Counsel
Mission Support
Directorate
Human Capital Management
Strategic Infrastructure
Aeronautics
Research Mission
Directorate
Science Mission
Directorate
Human Exploration
and Operations
Mission Directorate
Ames Research
Center
Johnson Space
Center
Dryden Flight
Research Center
Kennedy Space
Center
Glenn Research
Center
Langley Research
Center
Goddard Space
Flight Center
Marshall Space
Flight Center
Jet Propulsion
Laboratory
Stennis Space
Center
Headquarters Operations
NASA Shared Services Center
Internal Controls and
Management Systems
Procurement
Protective Services
NASA Management Office
www.nasa.gov
Reporting
Structure
Administrator
Deputy Administrator
Associate
Administrator
Note:
* Center functional office directors report to Agency functional AA. Deputy and below
report to Center leadership.
September 2011
Compare the numbers
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Madison City: 43.6K
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California State Bar: 200K
Washington State Bar: 30K
Alabama State Bar: 17K
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American Bar Association Model Rules
of Professional Conduct, see also Army
Regulation 27-26
Advocate
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made
to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity,
the lawyer shall take reasonable remedial measures, including,
if necessary, disclosure to the tribunal.
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American Bar Association Model Rules
of Professional Conduct, see also Army
Regulation 27-26
Advocate
Rule 3.4 Fairness To Opposing Party And Counsel
A lawyer shall not:
(a) unlawfully obstruct another party' s access to evidence or
unlawfully alter, destroy or conceal a document or other material
having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal
except for an open refusal based on an assertion that no valid
obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail
to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
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Attorney Discipline
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Mishandling of client funds
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Failure to communicate with clients
Negligence (failure to pursue client’s case)
Conflict of interest (having an affair with divorce client)
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Candor toward tribunal (court documents, lying)
Possession of a controlled substance
Acts of moral turpitude
Continued practice of law is likely to cause immediate
and serious injury to the public
CONFLICTS OF
INTEREST
Recent Cases
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10/24/2012 Former Employee of Army Contractor Pleads Guilty
to Bribery for Facilitating Theft by Trucking Contractor in
Afghanistan
Ms. Montes pled guilty to bribery charges for her role in a
scheme to fraudulently bill the U.S. Army for trucking services in
Afghanistan.
From approximately April 2008 through December 2008, Montes
was an employee of Kellogg, Brown and Root (KBR), a private
contractor with operations in Afghanistan. Montes worked at
Bagram Airfield, Afghanistan, where KBR held a contract with
the United States.
According to her plea agreement, in return for her knowingly
handling fraudulent Transportation Movement Requests and
invoices (submitted by another Army contractor), Montes
received approximately $50,000, consisting of $35,000 wired to
her personal bank account in the United States and another
$15,000 in cash paid to her on several occasions in
Afghanistan.
Recent Cases
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10/23/2012 Department of Health and Human Services
Employee Sentenced in North Carolina to Prison for Theft of
Government Funds
Ms. Cover, an employee of HHS was sentenced to six months in
prison for stealing $114,494 in government funds. In addition to
her prison term, Cover was ordered to pay $114,494 in
restitution to HHS and serve three years of supervised release,
including six months of home confinement.
Cover worked as a purchasing agent with the National Institutes
of Health (NIH), National Cancer Institute (NCI), a subdivision of
HHS. Cover’s sole job function involved procuring authorized
items and services for NIH/NCI using assigned government
credit cards.
Between June 2009 and December 2010, Cover, who received
regular training in the proper use of government credit cards,
used NIH/NCI credit cards assigned to her to complete over 250
unauthorized personal transactions totaling approximately
$114,494
Recent Cases
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10/12/2012 Former Sheppard Air Force Base (SAFB)
Employees and Contractors Plead Guilty in Federal Court to
Conspiring to Unlawfully Disclose and Obtain Sensitive
Government Contract Information
Two former government employees pled guilty to one count of
conspiring to defraud the US and conspiring to unlawfully
disclose sensitive source information. Two government
contractors, each pled guilty to one count of conspiring to
defraud the US and conspiring to unlawfully obtain sensitive
source information.
While sentencing dates have not been set, each faces a
maximum statutory sentence of five years in prison, a $250,000
fine and restitution.
From the mid 1990s to 2009 the defendants conspired together
to impair and obstruct the government’s ability to have a
competitive and unbiased selection of contractors — depriving
the government of its exclusive right to use and control sensitive
source selection information.
Recent Cases
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2/14/2011 GOVERNMENT LAWYER Guilty of conflict of interest
and filing false disclosure forms after representing company
seeking federal business
From September 2005 to March 2008, the Consumer Product
Safety Commission employed Williams in the Office of General
Counsel. Williams was required to report all sources of income
and outside employment on an annual government disclosure
form in order for the agency to identify any conflicts of interest.
While Williams worked for the CPSC, he was the managing
partner of the Williams Law Firm. Williams touted his “highvisibility federal government experience” on his law firm’s
website and stated that he offered “an insiders knowledge of ...
Executive Branch decision making ....”
As part of his law practice, Williams helped a foreign
corporation, in its efforts to supply the US Army with batteries for
armored personnel carriers, including meeting with US Army
officials on two occasions to promote the company and its
products.
GIFTS FROM OUTSIDE
ENTITIES
PLATO
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The servants of the nation are to render
their services without the taking of
presents
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The disobedient shall, if convicted, die
without ceremony
GIFTS FROM OUTSIDE ENTITIES
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Unless permitted to by an exception, an employee cannot
solicit or accept gifts:
– From a prohibited source (MDA contractor); or given because of
their official position
• Are support contractors prohibited sources?
– Gifts “imputed” to you
• Parent, spouse, child, dependent relative, designee (charity) –
with your knowledge
WHAT IS A GIFT?
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A “gift” may be any tangible or intangible item of value,
such as:
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Cash
Service
Entertainment, hospitality, gratuity, or favor
Travel or travel-related expenses
A discount, loan, or forbearance (forgiveness) of a loan
WHAT IS NOT A GIFT?
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Gifts do not include:
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Greeting cards and plaques
Coffee and donuts when not part of a meal
Benefits/discounts available to the public
Pension plans from former employer
Anything for which employee pays fair market value (or face value – ex:
tickets)
– Gift to the Government
– Anything paid for by the Government (under contract)
EXCEPTIONS
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Exceptions to gift prohibition
– Gifts of $20 or less per occasion and no more than $50 from one
source in a calendar year
– Gifts motivated by personal or family relationship
– Gifts based on outside business or employment relationship
– Social invitations/gifts from non-prohibited sources
** PROPOSED RULE
Office of Government Ethics (OGE) has proposed a rule that would
PROHIBIT the receipt of any gift (regardless of amount) to include
Widely Attended Gatherings (WAGs) and social invitations IF the
gift is from a registered lobbyist (Lockheed, Boeing, BAE, Raytheon,
Booz Allen Hamilton, etc (all top 100 DoD contractors))
220 comments: http://www.oge.gov/Laws-and-Regulations/FederalRegister-Issuances/Proposed-Rules-and-Comments/Comments-onProposed-Lobbyist-Gift-Ban-Rule-
Remember:
Regardless of any exceptions, it is
always impermissible to:
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Accept a gift, in return for being influenced in
the performance of an official act.
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Accept gifts from the same or different
sources so frequently that a reasonable
person would think you’re using your office
for private gain.
QUESTION #1
Steve, a Government official, reviews proposals for computer
systems/internet services. He just received an invitation from the CEO of
a major corporation (a DoD contractor – prohibited source) to attend an
intimate dinner at a four-star restaurant to informally share thoughts about
the company’s internet service application.
If you were his Agency Ethics Advisor, would you advise that:
A. Since the Department is expanding its internet capabilities, he
may attend. His spouse may accompany him because others
will be in attendance.
B. He may attend, but should decline for his spouse.
C. He should decline.
D. He could go, but he must pay for his own dinner.
QUESTION #2
What is the maximum dollar amount for a retirement gift from an DoD
contractor to a DoD employee?
A.
B.
C.
D.
$20
$50
$300
More than $300 if gift is uniquely linked to retiring person’s
position or tour of duty and commemorates same.
QUESTION #3
An DoD employee may solicit a gift from a contractor in only one
situation. What is it?
A.
B.
C.
D.
The gift will be for a General Officer.
The gift will be donated to a charity.
The gift will be auctioned off and the proceeds given to CFC.
Hell has frozen over.
Question # 4
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All Executive Branch employees are subject to the general gift
rule (cannot solicit or accept anything of value from a prohibited
source). What do you do when you may not accept a gift?
A.
Pay for the excess over the $20 exception.
Decline acceptance.
Pay full market value and retain.
Don’t tell anybody (no harm no foul).
Two of the above (which two?).
B.
C.
D.
E.
Question # 5
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Facts: A program manager is part of a source selection
purchasing 10M in widgets from a vendor/government
contractor. Afterwards, the vendor asks the PM if he has kids.
The PM responds in the affirmative, and the vendor mentions he
knows the President of a Toy Company. He then asks for the
PM wife’s name and address. A few weeks later, a $1500 laptop
from the vendor and $500-1000 worth of toys from the Toy
Company shows up at the PMs home addressed to his wife.
Prohibited Gifts?
Bribery?
FAR 3.203 (reporting suspected violations of the Gratuities
clause)
GIFTS BETWEEN
EMPLOYEES
GIFTS BETWEEN EMPLOYEES
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Unless there is an exception, the general rule is that an
employee shall not give his official superior a gift/a
supervisor may not accept a gift.
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Exceptions:
– Occasional Basis
– Special Infrequent Occasion
GIFTS BETWEEN EMPLOYEES
--CONTINUED-– Occasional Basis:
• Birthdays/holidays (Items, other than cash, with a value of $10
or less)
– Food and refreshments shared in office
– Personal hospitality at residence
– Items given in connection with receipt of personal
hospitality
GIFTS BETWEEN EMPLOYEES
--CONTINUED-
Special Infrequent Occasion
– Personal significance such as marriage, illness, birth or adoption of
child
– Retirement, resignation or transfer
• Appropriate to the occasion
– Allows you to give a group gift.
• Voluntary
• No more than $10 per person can be requested
• No more than $300 in value
• Contractors may not contribute
QUESTION #1
Bill asks his four co-workers to each pitch in $20 to purchase a
$100 gift for Doreen, their boss, for Christmas. May Doreen accept
this gift?
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Occasional basis or special infrequent occasion?
Voluntary contribution – what’s the limit?
QUESTION #2
Doreen invites her staff to her house for a holiday dinner.
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OK?
May Bill bring a $20 bottle of wine?
May Bill bring a Christmas gift worth $20?
FUNDRAISING
PERSONAL FUNDRAISING
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Fundraising in your personal capacity is OK provided you
do not:
– Personally solicit funds from a prohibited source or from a
subordinate employee;
– Use government time or resources; or
– Use or permit the use of your official title, position or authority.
– Solicit funds in the Federal workplace.
Office Fundraising
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Authorized by Statute-CFC, Military Charities, Toys for
Tots, Emergencies & Disasters (OPM Approval)
“In-kind” items with approval of Agency Head:
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Toys,
Clothing,
Food, or
Household items
Solicitation of Employees for the Benefit of Employees
(through agency approved employee organizations) –
internal “morale and welfare” events.
Questions?