ALCOAST 475/22 - DEC 2022 CHANGE TO STANDARDS OF ETHICAL CONDUCT IMPLEMENTING DHS REGULATIONS RELATING TO OUTSIDE ACTIVITIES

R 012112Z DEC 22 MID200080541496U
FM COMDT COGARD WASHINGTON DC
TO ALCOAST
BT
UNCLAS
ALCOAST 475/22
SSIC 5370
SUBJ: CHANGE TO STANDARDS OF ETHICAL CONDUCT IMPLEMENTING DHS
REGULATIONS RELATING TO OUTSIDE ACTIVITIES
A. Standards of Ethical Conduct, COMDTINST M5370.8B
B. Supplemental Standards of Ethical Conduct for Employees of the
Department of Homeland Security, 5 C.F.R. Part 4601
C. DHS Memorandum: Exemption for Requirements to Receive Prior
Approval for Certain Outside Employment/Activities dated 28 Jan 2022
D. Standards of Ethical Conduct for Employees of the Executive
Branch, 5 C.F.R. Part 2635 Subpart H
E. Military Civil and Dependent Affairs, COMDTINST M1700.1
1. This ALCOAST announces an update to REF (A) as required by
REF (B). REF (B) announced Department of Homeland Security (DHS)
supplemental regulations on Outside Employment and Outside
Activities. REF (C) established certain exemptions for prior
approval but still requires notice to the supervisory chain.
REF (B), in conjunction with REF (D), requires employees to obtain
approval prior to engaging in outside activities and employment,
unless approval is exempted by REF (C). Military members remain
subject to the notice and approval requirements in REF (E)
whether or not the activity is exempted by REF (C). Civilian
employees are subject to the notice and approval requirements
as described below, which incorporates all cited references. This
ALCOAST only updates REF (A). Other existing policies that may
affect outside employment activities, such as those relating to
military housing, remain in effect.
2. The following changes to REF (A) are effective immediately:
a. Paragraph 2.I.1.a is replaced in its entirety with the
following: What is the basic rule? You shall not engage in outside
employment or any other outside activity that conflicts with
your official duties or creates the appearance of a conflict of
interest, an actual or apparent impartiality in the performance of
official duties, or an actual or apparent misuse of your Federal
position.
b. The following is added as a new Paragraph 2.I.1.a.1:
Who must provide notice and seek prior approval before
engaging in outside employment? DHS regulations and Coast
Guard instructions require all active duty military and civilian
employees, including non-appropriated fund employees
(hereinafter "civilian employees") to provide notice to their
supervisory chain prior to engaging in outside employment.
Active Duty military members have a duty to notify their Command of
all proposed outside activities and employment per Military Civil
and Dependent Affairs, COMDTINST M1700.1 because they are subject to
recall at all times. Civilian employees are exempted from seeking
supervisory chain approval for certain positions that, due to the
nature of the position, are not considered to pose a conflict of
interest or other ethics concern as discussed in REF (C) and
Paragraph 2.I.1.c.2.v. Active Duty members shall continue to notify
their Command and seek Command approval of outside employment and
outside activities as currently set forth in Military Civil and
Dependent Affairs, COMDTINST M1700.1. Civilian employees shall
notify their Command as set forth in paragraph 2.I.1.b.
c. The following is added as a new Paragraph 2.I.1.a.2:
What about military members of the Reserve Component? All Coast
Guard Reserve Component Members (RC members) serving on voluntary
active duty orders in excess of 130 days or more are treated the
same as active duty military personnel for the purposes of all
ethics laws and regulations; however, RC members are not required
to seek permission to engage in their civilian occupation or outside
activities unless they are currently serving on active duty (for any
period of time) and they are personally and substantially involved
in Coast Guard duties that may have a financial impact on
themselves, their civilian employer, or one of the following: a
non-federal organization that they are involved in, a member of
their family or their household, a close personal relative or
friend, the employer of a member of their family or their household,
or a non-federal person or organization with whom they are
affiliated in a nongovernmental capacity. RC members on orders for
more than 60 days within the previous 365 days also may not
represent their non-federal employer or any non-federal entity to
the Department of Homeland Security or any DHS component on any
particular matter that the member has, at any time participated
personally and substantially as a Government employee through
decision, approval, disapproval, recommendation, the rendering of
advice, investigation or otherwise. Accordingly, RC members who
are unsure of whether their civilian employment might create an
actual or apparent conflict of interest or other ethics concern
with their military position should notify their Command as set
forth in Military Civil and Dependent Affairs, COMDTINST M1700.1
and consult with their servicing legal office.
d. The following is added as a new Paragraph 2.I.1.a.3:
What if I am a Special Government Employee (SGE) (e.g. assigned to a
Coast Guard Federal Advisory (FACA) Committee)? SGEs are similar to
RC members and should follow the rules in 2.I.1.a.2 above, except
that their Command is considered their Designated Federal Official
(DFO) if they are FACA committee members. Additionally, as part of
their routine onboarding process, SGEs submit a Confidential
Financial Disclosure Report and professional resume that allows
Coast Guard ethics officials to ensure compliance with Federal law
and regulation. SGEs shall keep their DFO apprised of any changes in
their employment and continue filing their annual Confidential
Financial Disclosure Report. Other than routine filings and reports
that are part of the SGE approval process, SGEs do not have to seek
authorization to engage in employment or activities outside of the
Federal Government, except where those activities might create an
actual or apparent conflict of interest, impartiality in the
performance of official duties, or misuse of position concern.
All SGEs shall receive ethics training before engaging in their
federal responsibilities. All questions relating to ethics and SGEs
should initially be referred to the cognizant DFO who will
coordinate with the FACA Program Manager and the Office of General
Law (CG-LGL).
e. Current 2.I.1.d is renumbered as 2.I.1.f.
f. Current 2.I.1.b is renumbered as 2.I.1.d.
g. The following is added as a new Paragraph 2.I.1.b:
What must an employee do to gain Command approval for outside
employment or outside activities?
(1) ACTIVE DUTY MILITARY: Active duty military members and RC
Members on active duty orders longer than 130 days shall follow the
procedures outlined in Military Civil and Dependent Affairs,
COMDTINST M1700.1 for notifying their Command and gaining prior
approval of outside employment or outside activities. Military
members should use DHS Form 480 for the notification and approval
process. Military members considering outside employment may
initiate the DHS 480 in advance of seeking an outside position to
ensure timely approval before an anticipated start date. Use of the
DHS Form 480 and the opportunity for advance approval applies to
Active Duty military members seeking to participate in the
SkillBridge Program per Transition of Service Members with Job
Training Opportunities and Employment Skills under the Department of
Defense (DOD) Skillbridge Voluntary Employment Skills Training
Program, COMDTINST 1040.7.
(2) CIVILIAN EMPLOYEES: Civilian employees shall notify their
Commanding Officer/Office Chief through their supervisory chain in
writing of their prospective outside employment and outside
activities using DHS Form 480. Employees should complete sections 1
through 5. If the outside employment/activity is exempt pursuant to
REF (C) the supervisory chain should annotate "outside activity is
exempt pursuant to DHS and Coast Guard regulations" in the
supervisor's comment block in Section 6 and no further action is
required. Where the supervisory chain concurs that the activity is
exempt pursuant to REF (C), the supervisory chain shall forward the
form to their Servicing Legal Office for reporting purposes. If the
supervisory chain is unsure, or disagrees that the activity is
exempt pursuant to REF (C), the supervisory chain shall complete
Section 6 of DHS Form 480 and forward the form to their Servicing
Legal Office for review. The ethics attorney assigned to the
Servicing Legal Office will complete Section 8 of the DHS Form 480
and return the completed form to the supervisory chain with ethics
advice, if required. Supervisory Chain approving officials for
civilians may be the first GS-14/O5 in the supervisory chain of
command and must be approved by at least one grade higher than the
requesting employee. The supervisory chain should normally act on a
request for review within 10 business days but may take longer where
advice is sought from the servicing legal office. Civilian employees
considering outside employment may initiate the DHS 480 in advance
of seeking an outside position to ensure timely approval before an
anticipated start date. Permission to engage in the outside
employment or activity will normally be granted unless the conduct
is prohibited by law or regulation; however, nothing in this policy
is intended to unduly restrict a Commanding Officer /Office Chief /
Supervisors in the exercise of their discretionary authority.
Commanding Officers / Office Chiefs / Supervisors shall consult
with their servicing legal office ethics official prior to
disapproving a civilian employee's request.
h. Current 2.I.1.c is renumbered as 2.I.1.e.
i. The following is added as a new Paragraph 2.I.1.c:
Do I need to get Command permission to engage in every type of
outside employment or activity and how are those terms defined? Per
Military Civil and Dependent Affairs, COMDTINST M1700.1, military
members shall notify their Command of all outside employment or an
outside activities as defined below. Civilians must notify their
command per REFs (B) and (C).
(1) Outside employment or outside activity is defined in
Supplemental Standards of Ethical Conduct for Employees of the
Department of Homeland Security, 5 C.F.R. Part 4601, as any form
of Non-Federal employment, business activity, business relationship,
or other covered activity as identified in 5 C.F.R. Part 4601,
involving the provision of personal services by the employee,
whether or not for compensation.
(2) Exclusions:
(a) Speaking and Writing Activities. Outside employment
generally does not include speaking and writing activities as long
as those activities are not combined with the provision of other
services that do fall within this definition, such as the practice
of law and other outside employment or activities covered by
paragraph 5 C.F.R. 4601(d)(2)(ii)(A) through (D). Employees who
wish to engage in compensated speaking or writing in a personal
capacity are encouraged to review 5 C.F.R. 2635.807 and Paragraph
2.I.3 of this Manual (REF (A)) and to seek additional guidance from
their servicing legal office ethics official.
(b) Participation in Non-profit and other organizations.
Outside employment does not include participation in the activities
of non-profit charitable, religious, professional, social,
fraternal, educational, recreational, public service, or civic
organizations, unless the participation involves:
(i) Acting in a fiduciary capacity (e.g., Board of
Directors, officer or director),
(ii) Providing professional services for compensation,
(iii) Rendering advice for compensation other than the
reimbursement of expenses, or
(iv) An activity relating to an employee's official
duties as defined in 5 CFR 2635.807(a)(2)(i)(A)-(E), to include
activities relating to any ongoing or announced policy, program, or
operation of the employee's agency as it is defined in 5 CFR
4601.102.
(c) Activities authorized under the Hatch Act. Outside
employment does not include activities otherwise permissible by the
Hatch Act and related regulations relating to partisan political
activities.
(d) Military Service. Outside employment does not include
state or Federal military service protected by the Uniformed
Services Employment and Reemployment Rights Act.
(e) Specific Outside Activities for Civilian Employees:
The following list is inclusive, meaning if the activity is not
listed then prior approval is required. Coast Guard civilian
employees have to provide notice, but do not have to seek approval
from their commands, to engage in the following outside activities
unless the participation involves acting in a fiduciary capacity
as described in 2.I.1.c.2.ii(A) (e.g. the employee is the
non-federal business owner/operator) or the outside activity
relates to the employee's official duties:
(i) Artistic activities, such as being a musician or
dancer and similar work as a performing artist, as well as selling
personally created arts within the United States;
(ii) Beauty/body care services (e.g., hair/nail/skin
services, masseuse/wellness services)
(iii) Amateur athletic positions as sports officials
or coaches;
(iv) Food service industry positions (such as
waiter/waitress, host/hostess, food preparation, etc.);
(v) Driving and Delivery Services: Ride sharing
services (e.g., Uber, Lyft, or similar services); limousine or
taxi driver, food delivery (Uber eats, Grubhub, Doordash, etc.),
and other freelance transportation of goods (e.g., Amazon Flex).
This exemption does not include: any services that require a
Commercial Driver's License (class A, B, or C); driving services
that require crossing international borders; or activities in
support of international carriers;
(vi) Event support: wedding and event planner,
photographer / videographer, florist, graphic art/design,
decoration, catering and / or bartending, and similar jobs.
This exemption does not include event security;
(vii) Officer roles on homeowners' and alumni
associations;
(viii) Personal training / physical exercise
instruction not conducted in federal or General Services
Administration (GSA)-leased facilities;
(ix) Pet care (e.g., grooming, dog-walking,
pet-sitting);
(x) Retail sales positions, not to include
ownership (e.g., working at a grocery store or mall retail shops);
(xi) Substitute teaching for an accredited elementary,
middle, or high school;
(xii) Task-oriented freelance services (e.g.,
TaskRabbit, Instacart, or similar service networks) for personal
services such as childcare, caretaking, in-home cooking, home
improvement, home cleaning, shopping/picking up and delivering
items, and assembling or moving furniture and similar items, etc;
(xii) Trustee positions on personal trusts;
(xiii) Unincorporated rental of non-commercial real
estate (e.g., renting out a personal residence or short-term rental
of investment property);
(xiv) Property-related businesses: appraiser, pest
control, home inspector, and short-term real estate rentals through
a third party such as Airbnb. Real Estate agents, property managers,
and landlords are similarly excluded unless they are involved in a
federal lease (e.g. lease of space through the General Services
Administration) or involved in a real estate dealings (e.g. property
management, landlord, leasing, sales, etc.) with a federal entity,
a federal person or their family;
(xv) Creative writing activities not related to the
Coast Guard's mission or the employees official duties such as,
creative fiction, blogging, writing magazine articles, or books
(however, members should seek advice regarding teaching, speaking,
and writing as discussed in Paragraph 2.I.3 of this Manual);
(xvi) Promotional activities such as sales and
telemarketing, provided they are not directed to the Federal
Government, DHS or DHS sub-component entities, programs, or
specifically directed towards federal people and their family
members;
(xvii) Private tutoring/college preparatory services;
(xviii) Computer services: computer/electronics repair
services, website design, graphic design (e.g., FIVERR,
Freelancer.com), and network setup or maintenance, etc. (not system
security testing/assessment or programming);
(3) Some employees may be Confidential Financial Disclosure
Report (CFDR) or Public Financial Disclosure Report (PFDR) filers.
Authorization to engage in an outside activity or employment does
not eliminate required disclosures for any CFDR or PFDR filers (e.g.
filers must report outside positions and residential real estate
holdings).
3. Management will meet its labor obligation through the statutory
process pursuant to Title 5 U.S. Code, Part III, Subpart F,
Chapter 71 prior to implementing changes impacting conditions of
employment for bargaining unit employees.
4. Refer requests for training on implementation of this ALCOAST
to your servicing legal office. The Agency is currently scheduling
several training opportunities with bargaining unit employees in
accordance with the Memorandum of Understanding between the
U.S. Coast Guard and Council 120 of the American Federation of
Government Employees.
5. Those who currently hold outside positions that require notice or
approval under this ALCOAST, and who have not previously received
command approval, have until 15 February 2023 to comply.
6. These updates will be incorporated into the next revision of
REF (A), which will be released within the next year.
7. This ALCOAST will be canceled on 02 DEC 2023.
8. For additional information regarding these changes or this
ALCOAST, contact Mr. Michael Barton at 202-372-3737 or by email
at Michael.G.Barton@uscg.mil.
9. RADM M. L. Bert, Judge Advocate General & Chief Counsel (CG-094),
sends.
10. Internet release is authorized.