DO-94-003: Ethics Training Regulation Update

January 18, 1994


TO: Designated Agency Ethics Officials

FROM: Stephen D. Potts

SUBJECT: Ethics Training Regulation Update

The Office of Government Ethics (OGE) will soon be publishing
in the Federal Register interim rule amendments to the ethics
training regulation, with request for comments. The interim rule,
which will be published after OGE has consulted with the Office of
Personnel Management, will amend subpart G of 5 C.F.R. part 2638,
entitled "Executive Agency Ethics Training Programs" (training
regulation). After seeking and receiving feedback from the ethics
practitioner community, OGE has elected to make various amendments
to subpart G in order to provide agencies with greater flexibility
in administering their ethics training programs. These amendments
will be published as an interim rule, with a retroactive effective
date of January 1, 1994, to allow agencies to take advantage of the
greater flexibility provided by the interim rule in conducting
their 1994 ethics training programs. The interim rule will amend
the training regulation as follows: (1) the materials required for
the initial ethics orientation will be modified; (2) the categories
of employees who must receive annual ethics training from their
agencies will be clarified; (3) the nature and extent of the
minimum course content requirements for annual ethics training, and
their effect upon the diversity of the annual ethics training from
year to year, will be clarified; and (4) the requirement that a
qualified individual be physically present during and immediately
following the annual ethics training will be deleted. Each of
these amendments is described in more detail below. The interim
regulation also will make certain minor corrections and deletions
to the training regulation to remove outdated language.

Materials Required for the Initial Ethics Orientation (5 C.F.R.

As an initial matter, the interim regulation will amend
2638.703(a) by deleting part I of Executive Order 12674 from the
materials that must be provided as part of the initial ethics
orientation. Requiring both part I of Executive Order 12674 and
the Standards of Ethical Conduct to be included in the initial
ethics orientation is redundant, as the fourteen principles of
ethical conduct contained in part I of the Executive order are
restated in subpart A of the Standards of Ethical Conduct.

Since the publication of the training regulation, a variety of
factors has led OGE to reevaluate the training regulation's
requirement that agencies provide their employees with a copy of
the actual text of the Standards as part of the initial ethics
orientation. OGE has concluded that the current requirement does
not provide agencies with the flexibility that they need to ensure
that their employees achieve the best understanding of the rules
that govern their conduct in an efficient and cost-effective
manner. The interim regulation will therefore further amend

2638.703 to allow agencies to substitute materials that summarize
part I of Executive Order 12674, as modified, and the Standards of
Ethical Conduct for the actual text of the Standards. Under the
interim regulation, agencies will be able to use OGE publications,
such as the pamphlets "Do It Right" and "Take the High Road," or
may develop their own materials designed to the specific needs of
their employees and ethics training program. In order to ensure
that employees continue to have access to the actual text of these
materials, an agency using substitute materials will be required to
ensure that copies of the complete text of part 2635 are retained
and readily accessible in the employees' immediate office.

Employees Who Must be Provided Annual Agency Ethics Training
(5 C.F.R. 2638.704(b))

The training regulation, at 5 C.F.R. 2638.704(b), sets forth
the categories of employees to whom agencies must provide annual
ethics training. This section is taken virtually word for word
from section 301(c) of Executive Order 12674, as modified. Some
agencies have been interpreting part of this provision in an overly
broad fashion, and thus have increased the number of employees to
whom they are providing annual ethics training beyond the number
strictly required by the training regulation. The category that
has been subject to misinterpretation is that of procurement offi-
cials, found at § 2638.704(b)(6). This confusion seems to arise,
in part, from the distinction between acting as a procurement
official and an employee's certification that he or she is aware of
the procurement integrity restrictions.

Section 2638.704(b)(6) of the training regulation states that
procurement officials "within the meaning of 41 U.S.C. 423(p)(3)"
are covered by the annual training requirement. Both the
procurement integrity statute and the implementing regulations, at
48 C.F.R. 3.104-4(h), make it clear that a civilian or military
official or employee does not become a "procurement official" until
that individual participates personally and substantially in one or
more of the activities set forth in the definition. Before an
official or employee may serve as a procurement official, the
procurement integrity statute requires him or her to certify that
he or she is familiar with various procurement integrity restric-
tions, and that he or she will report a violation of these restric-
tions to the contracting officer. 41 U.S.C. 423(l)(2); 48 C.F.R.
3.104-12(a)(2). Because of some uncertainty over the breadth of
the term "procurement official," and also for administrative rea-
sons, the policy of some agencies has been to have all employees
who have even a remote chance of becoming involved in a procurement
complete the procurement integrity certification for procurement
officials. While the reasons for having officials and employees
complete the certifications are generally sound, it has caused some
confusion for agencies as they plan their annual ethics training.
Some agencies have incorrectly assumed that they are required to
provide annual ethics training for all officials and employees who
have completed the procurement integrity certification.

As stated above, both section 301 of Executive Order 12674 and
the training regulation cross reference the definition of
"procurement official" contained in the procurement integrity
statute. It is important to note that mere completion of the
procurement integrity certification for procurement officials,
without more, does not constitute personal and substantial
involvement in a procurement and therefore is not sufficient to
make an official or employee a "procurement official" within the
meaning of the statute. An agency is thus not required to provide
annual ethics training to an employee just because he or she has
completed the procurement integrity certification for procurement
officials. While an agency may for policy or administrative
reasons choose to provide annual ethics training for a broader
category of officials or employees, it is not obliged by
2638.704(b)(6) to provide annual ethics training to a person who
has completed a procurement integrity certification unless the
individual actually serves as a procurement official.

The interim regulation will also add language to section
2638.704(b)(4) to clarify that any employees who are exempted from
confidential financial disclosure reporting pursuant to OGE-
approved alternative procedures in accordance with 5 C.F.R.
2634.905(c) must also receive annual ethics training from their

Course Content Requirements for Annual Agency Ethics Training
(5 C.F.R. 2638.704(c))

Another change made by the interim regulation concerns the
course content requirements for annual agency ethics training,
contained in the training regulation at section 2638.704(c). Some
agencies have read the training regulation as requiring all
executive branch agencies to provide repetitive training year after
year on the same material. As OGE indicated in the preamble to the
training regulation when it was published, this view misunderstands
the nature of the requirement. Section 2638.704(c) states that
". . . the emphasis and course content of annual agency ethics
training courses may change from year to year . . . ." The section
then goes on to state the minimum requirements, that of a review of
employees' responsibilities under part I of Executive Order 12674,
as amended, and the Standards of Ethical Conduct (and any agency
supplemental regulation) as well as a review of employees'
responsibility under the conflict of interest statutes contained in
18 U.S.C. chapter 11. The preamble to the April 1992 final rule
stated that, after the first session of annual training, this
requirement could be met with a brief overview of the basic
principles. Such an overview, given to employees who are familiar
with their responsibilities under the statute and the regulations,
need serve only as a reminder of the basic principles, and could be
accomplished in a very short period of time. The content of the
rest of the training is entirely at agency discretion.

The structure of the annual ethics training is intended to
allow agencies to vary their approach from year to year to keep the
program interesting and also to best meet the needs of their
employees. OGE encourages innovation by agencies in providing
training to their employees. Some agencies have been very active
in following up on the flexibility provided to them for annual
training. The Department of Justice, for example, is developing an
interactive ethics computer game for use in training their
employees. Several agencies, such as the Department of Defense and
the U.S. Forest Service, are developing videotapes to supplement
the OGE ethics training videotapes or to target the information
provided to their employees. OGE has consistently maintained that
the minimum course content requirement contained in the regulation
is intended to be a starting point from which agencies design and
conduct their training, not a rigid requirement. However, because
of continued misunderstanding regarding the nature of this
requirement, the interim regulation will amend the language
contained in § 2638.704(c) to state that a reminder of employees'
responsibilities under the statute and the regulations will suffice
to meet this requirement.

Availability of a Qualified Individual (5 C.F.R. 2638.704(d)(1))

The interim rule amendment will also delete the general
requirement, contained in 2638.704(d)(1), that annual training be
presented with a qualified individual physically present during and
immediately following the presentation. While 2638.704(d)(1)
uses the term "available," both the text of the regulation and the
preamble at the time of publication made it clear that OGE expected
the qualified individual to be present at the training. 57 Fed.
Reg. 11886, 11889 (April 7, 1992). The reason for this
requirement, as explained in the preamble to the final rule, was to
provide the best means for addressing employee questions and
concerns raised by the training. Some agencies, particularly those
whose duty sites are widely scattered, have voiced concern over
their ability to meet this requirement. The training regulation
provides an exception, at 2638.704(d)(2)(i), that does allow
agencies to train covered employees without a qualified individual
present under limited circumstances. This exception, however, is
narrow in scope. Other limited exceptions are made for training
provided to special Government employees and reserve officers.

Agency concern with this requirement, spurred on by legitimate
concerns over the best use of limited agency resources, has caused
OGE to move away from a strict presence requirement for the annual
ethics training over the past year, so long as the employee retains
some form of access to a qualified individual during and immediate-
ly following the training. OGE has come to conclude that, while in
person training is often the most effective means of providing
training, providing the "best" means of training may not be a
realistic standard for all agencies in these times of fiscal
restraints. The question therefore becomes one of setting a
standard that agencies are able to meet while simultaneously
meeting the goals of the ethics training program.

The interim regulation will meet this standard by deleting the
requirement that a qualified individual be physically present dur-
ing and following annual ethics training. The interim regulation
will continue the requirement that the annual training generally be
provided verbally, either in person or by recorded means. Written
materials, standing alone, generally will not meet this require-
ment. This is necessary to comply with section 301(c) of Executive
Order 12674, as modified by Executive Order 12731, which requires
agencies to provide covered employees with an annual ethics "brief-
ing." For the purposes of the interim regulation, "briefing" will
not require actual physical presence. Agencies will thus be able
to take advantage of technology in meeting this standard. This
could include, but is not limited to, use of videoconferencing,
telephone conferencing, audio or videocassettes, or computer-based
training. Agencies will be required to have "qualified individu-
als" as defined in subpart G develop any materials or lessons used
in the training. Agencies will also be required to remind
employees receiving annual ethics training of the names and phone
numbers of ethics officials at their agency. This will provide
employees with a point of contact should they need to seek
clarification of issues raised in the course of the training or in
their day-to-day work.

Agencies should note that they will not be required to submit
modified training plans for calendar year 1994 to OGE to accommo-
date these amendments.