June 11, 1997DO-97-027
Designated Agency Ethics Officials
Stephen D. PottsDirector
Waiver consultations under 18 U.S.C. § 208(b)
In a memorandum of November 19, 1996, the Office of Legal Counsel (OLC) determined that, with certain limited exceptions, an employee may not serve on the board of directors of a non-Federal nonprofit entity in his official capacity absent a waiver under 18 U.S.C. § 208(b). See DAEOgram of April 2, 1997 (DO-97-015).1
Under 5 C.F.R. § 2640.303, when practicable, an agency is required to consult with this Office prior to granting a section 208(b) waiver. In situations where a waiver is sought with respect to service in an official capacity as an officer or director of a private organization, the Office of Government Ethics will provide consultation only with respect to whether the procedures set forth under paragraph (a) of § 2640.301 have been followed, and whether the factors set forth under paragraph (b) of that section have been adequately considered.
This Office will not concur with, provide guidance on, or make any determination regarding an agency's decision that it has statutory authority to appoint an employee to an outside board position. This Office also will not concur with, or advise on, issues arising from the employee's authorization to serve on the board, including the legality or propriety of agency payment of dues or other expenses, employee participation in fund-raising, or his use of Government resources in fulfilling board responsibilities.
Accordingly, waiver consultations with respect to employees serving on the boards of directors of non-Federal nonprofit entities will be limited to consideration of requirements described in 5 C.F.R. § 2640.301.
1 A misdated copy of the OLC memorandum was inadvertently attached to the DAEOgram of April 2, 1997. A correctly dated copy of the memorandum is attached hereto.