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NPR 1900.3C
Effective Date: December 07, 2020
Expiration Date: December 07, 2025
Printable Format (PDF)

Subject: Ethics Program Management

Responsible Office: Office of the General Counsel

| TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | Chapter5 | Chapter6 | Chapter7 | Chapter8 | AppendixA | AppendixB | AppendixC | ALL |

Chapter 3: Advice and Counseling

3.1 Written Opinions

3.1.1 Opinions on Criminal Statutes. Any written interpretation of a criminal ethics statute is required to be based on a written statement of facts provided to the ethics official by the individual requesting the opinion. The ethics official may determine that an e-mailed statement is sufficient. An ethics official may determine that supplemental information resulting from interviews with witnesses other than the individual requesting the opinion need not be provided in writing. In these cases, the ethics official should reduce any relevant facts gathered from such witnesses to writing in the process of preparing the opinion.

3.1.2 Post Hoc Determination Prohibited for Criminal Statutes. Ethics officials shall not issue an opinion interpreting a criminal statute, including those in Chapter 11 of Title 18 which includes a determination of whether such statutes have been violated by an employee’s prior conduct. All opinions on criminal statutes are required to be prospective.

3.1.3 Opinions on Non-Criminal Statutes and Regulations. Ethics officials should require written or e-mailed statements of facts when providing opinions on non-criminal statutes, regulations, or other directives.

3.1.4 Referral of Conduct to the Inspector General. For standards governing referral of prior conduct to the Office or Inspector General, see NPD 9800.1, NASA Office of Inspector General Programs.

3.2 Post-employment Opinions and Seeking Employment

3.2.1 SES, ST, and SL Employees

For SES, ST, and SL employees, Centers shall obtain Headquarters concurrence on written post-employment opinions. Opinions for SES employees who have been out of the Government for more than one year are subject to Information Copy only.

3.2.2 Non-SES, ST, and SL Employees

Opinions for non-SES, -ST, and -SL employees are subject to Information Copy, unless the opinion involves a sensitive or precedent-setting matter pursuant to section 3.8, where Centers shall seek Headquarters Concurrence.

3.2.3 Nature and Timing of Headquarters Communication

Where Headquarters Action, Concurrence, or Prior Coordination is required, Centers shall notify Headquarters of the action or provide an advance copy of an opinion for review at least one week prior to execution. In the case of post-employment opinions only, concurrence may be verbal where required in the interest of time.

3.2.4 Format

Requests for written post-employment opinions are required to be in writing, with a separate written request regarding each prospective employer. The ethics official processing the request may determine that e-mailed requests are sufficient. All opinions involving a discrete set of facts are required to be in writing.

3.2.5 Exemption for Scientific and Technological Communications

a. When a former Government employee, who is subject to the constraints of post-employment conflict of interest statute 18 U.S.C. § 207, wishes to communicate with NASA under the exemption in section 207(j)(5) to make a communication solely for the purpose of furnishing scientific or technological information, the former employee shall provide the following information to the NASA employee contacted:

(1) That he or she is a former Government employee subject to the post-employment restrictions of 18 U.S.C. § 207 (a), (c), or (d)--specify which;

(2) The name and description of the NASA projects or programs worked on and the level of involvement in each; and

(3) That the communication is solely for the purpose of furnishing scientific or technological information.

b. If the former government employee has questions as to whether the communication comes within the scientific and technological exemption, he or she shall contact an ethics official at Headquarters or the Center at which the person was employed.

3.2.6 Seeking Employment

a. In the event that an employee is seeking employment outside of NASA, he or she shall recuse him or herself from involvement in matters affecting the interests of that outside entity and consult with his or her supervisor and Headquarters or Center ethics official, as appropriate. All recusals are required to be in writing.

b. Under the STOCK Act of 2012, Pub. L. 112–105, 126 Stat. 291, (2012), public financial disclosure filers shall file a written statement notifying the ADAEO at Headquarters or Center Chief Counsel of any negotiation for, or agreement of, future employment or compensation with a non-Federal entity within three business days after commencement of the negotiation or agreement. They are required to recuse themselves if there is a conflict of interest or appearance of a conflict. There is a form available in every legal office for notification and recusal. OGE Form 278e filers should contact their local NASA ethics counselor for advice. The ADAEO and Chief Counsel are required to keep these notifications on file.

3.3 Outside Activity Requests

Pursuant to the Supplemental Standards of Ethical Conduct for Employees of the National Aeronautics and Space Administration, Supplemental Standards of Ethical Conduct for Employees of the National Aeronautics and Space Administration, 5 CFR pt. 6901, approval of outside activity requests for Center Directors, Deputy Center Directors, and Chief Counsel is a Headquarters action. All other requests are subject to General Guidance. The Center Chief Counsel’s office shall review such requests, except that the Counsel for the Inspector General will review requests of the Office of Inspector General employees.

3.4 Statutory Waivers

3.4.1 Prohibition

Employees are prohibited by criminal statute, 18 U.S.C. §208(a), from participating personally and substantially in an official capacity in any particular matter in which, to their knowledge, they, or any person whose interests are imputed to them under the statute, have a financial interest, if the particular matter will have a direct and predictable effect on that interest.

3.4.2 Specific Waiver Available

A NASA employee may request a waiver of this prohibition. NASA may grant a specific waiver of the prohibition only if the Agency determines that the employee's financial interest is not so substantial as to be deemed likely to affect the integrity of the employee's services. The employee shall not participate in a matter unless the waiver has been obtained.

3.4.3 Procedures for Specific Waiver

a. Format

The employee's request for a waiver is required to be in writing and provide sufficient information for the reviewing official to address the factors set forth in waivers issued pursuant to 18 U.S.C. 208(b)(1), 5 CFR § 2640.301, including a full description of the particular matter involved, the relevant duties of the employee, and the exact nature and amount of the disqualifying financial interest.

b. Process

(1) Statutory waivers (e.g., § 208 waivers) are Headquarters actions. All waivers require the approval of the Administrator.

(2) Headquarters employees will submit their requests to the Official-in-Charge of the Headquarters office in which they are employed and to the General Counsel for concurrence. The Official-in-Charge will then submit the request to the Administrator with recommendations on the proposed waiver.

(3) Center employees will submit their requests to their Center Chief Counsel for concurrence and then to the Director of the Center where they are employed. The Center Director will provide the request, with recommendations, to the appropriate Assistant Administrator and to the General Counsel for review, concurrence, and submission to the Administrator. Headquarters may authorize a Center ethics official to consult directly with OGE on any specific waiver request, or to deem such consultation impracticable, as set forth in Consultation and notification regarding waivers, 5 CFR § 2640.303.

c. Copies

Copies of approved waivers will be forwarded to the General Counsel and OGE.

3.4.4 Cross-References

For regulations governing waivers and exemptions under 18 U.S.C. § 208, see 5 CFR part 2640.

3.5 Impartiality Determinations

Agency Designee determinations under 5 CFR § 2635.502(c) for Center Directors, Deputy Center Directors, or Chief Counsel are subject to Prior Coordination with Headquarters. Other impartiality determinations are subject to General Guidance.

3.6 Widely Attended Gathering (WAG) Determinations

3.6.1 Authority to Issue WAG Determinations Headquarters Events

The ADAEO may determine that any event is a Headquarters Action. Regardless, actions involving predominately Headquarters personnel or affecting personnel Agency-wide will receive Headquarters concurrence. Events Affecting Only One Center

Center Agency Designees or delegates pursuant to Paragraph A.1 in Appendix A have the authority to approve WAG determinations, subject to General Guidance, where the event is in the geographic region of the Center and the NASA invitees are predominantly employees of that Center, even if some invitees are from other Centers or Headquarters. Such Center Agency Designee or delegates may not further delegate this authority; however, an official or attorney acting for such Agency Designee or delegate may sign.

3.6.2 Information Copies

All WAG determinations are subject to Information Copy. Information copies will also be provided to other Centers if personnel from those locations are being, or may be, invited to the event.

3.6.3 Timing of WAG Determinations

WAG determinations are required to be made prior to qualifying events. Although multiple events may be addressed by a single document, each separate event, including each iteration of recurring events, will have a particularized analysis sufficient to support the determination.

3.7 Other Advice and Counseling

For types of advice and counseling that are not otherwise addressed in this NPR, the appropriate level of Headquarters involvement is General Guidance. However, in any case in which an Information Copy is submitted to OGE, an Information Copy is required to be sent to Headquarters also.

3.8 Sensitive Matters Not Specified

3.8.1 Center Chief Counsel's Offices may consult with the General Counsel's Office on any matter. Chief Counsel's Offices shall consult with Headquarters any time the sensitivity of the matter warrants it, considering the following factors:

a. The position(s) of the individual(s) involved.

b. The amount of money or value of assets involved.

c. The likelihood of similar issues arising in the future, and the desirability of setting a precedent or improving consistency in handling similar matters.

d. The potential for criminal investigation arising out of the fact pattern.

e. The level of visibility of the issue outside the Agency.

f. Statutory or regulatory requirements that affect the issue. In particular, when an agency other than NASA is required to be consulted or notified regarding an issue, Headquarters should also be notified prior to notice being provided to the outside agency.

3.9 Criminal Matters

Center Chief Counsel's Offices shall notify Headquarters of all matters referred for potential criminal investigation. When potential criminal matters are referred to the Department of Justice, NASA’s Office of Inspector General will submit OGE Form 202.

3.10 Form of Counseling

3.10.1 Ethics officials should tailor ethics advice to the needs and requirements of each situation. Factors to consider should include the following:

a. The preferences of the employee.

b. The importance of the substantive advice.

c. The need to formally document background factual information.

d. The need to formally document any advice to help protect the Agency and employee with respect to the employee's needs, the preferences of potential outside entities, and against any potential criminal investigation.

e. The need to report information to OGE, the need to document Agency precedent and keep accurate statistics for Agency use, and the need to report information to the Agency ethics team.

3.10.2 While these factors are not exclusive, ethics officials should consider each in reaching a determination on whether to provide written or oral advice, and shall be able to articulate good reasons for the decision made. To the extent practicable, ethics officials should keep some record of oral advice given for all but the most general or informal requests.

| TOC | Preface | Chapter1 | Chapter2 | Chapter3 | Chapter4 | Chapter5 | Chapter6 | Chapter7 | Chapter8 | AppendixA | AppendixB | AppendixC | ALL |
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