Thursday, November 14, 2019

Federal Ethics Principles and the Foreign Corrupt Practices Act

Federal Ethics Principles are articulated in Executive Order (EO) 12674, April 12, 1989 (as modified by E.O. 12731).

The U.S. Office of Government Ethicswas established to "provide overall leadership and oversight of the executive branch ethics program designed to prevent and resolve conflicts of interest."

The following 14 general principles apply. People are expected to think and then apply them; it's impossible to use a principle to prescribe an answer to every single situation.

Principle #1: "Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain."

Here is a picture depicting broken trust.
Don't break trust.

Principle #2: "Employees shall not hold financial interests that conflict with the conscientious performance of duty."

Here is a picture depicting the stock market.
If you are a Fed making decisions about a drug, don't hold stock in the company.

Principle #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."

To extend the stock market example…you get the idea.

Principle #4: "An employee shall not, except pursuant to such reasonable exceptions as are provided by regulation, 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, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties."

Funny, that sounds a lot like the Foreign Corrupt Practices Act of 1977.

Indeedy-do!

"The Foreign Corrupt Practices Act of 1977 is a U.S. federal law known primarily for 2 of its main provisions: one that addresses accounting transparency requirements…and another concerning bribery of foreign officials." (Wikipedia)

Let's read (via Wikipedia, and I'm grateful for simple explanations).

"The core aim of the Foreign Corrupt Practices Act (FCPA) is to prohibit companies and their individual officers from influencing foreign officials with any personal payments or rewards."

"The FCPA applies to any person who has a certain degree of connection to the United States and engages in corrupt practices abroad, as well as to U.S. businesses, foreign corporations trading securities in the U.S., American nationals, citizens, and residents acting in furtherance of a foreign corrupt practice, whether or not they are physically present in the U.S. This is considered the nationality principle of the Act."

"Any individuals involved in these activities may face prison time."

"In the case of foreign natural and legal persons, the Act covers their deeds if they are in the U.S. at the time of the corrupt conduct. This is considered the protective principle of the Act."

"Moreover, the FCPA governs not only direct payments to foreign officials, candidates, and parties, but payments made to any other recipient in furtherance of influencing a foreign official, candidate, or party. These payments are not restricted to monetary forms and may include anything of value. This is considered the territoriality principle of the act."

In summary: 

"The anti-bribery provisions of the FCPA make it unlawful for a U.S. person, and certain foreign issuers of securities, to make a payment to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person."

So the FCPA applies to everyone, not just Federal employees.

Principle #5 (back to Federal employees now) "Employees shall put forth honest effort in the performance of their duties."

That means, you don't just mindlessly shuffle papers. 

That also means, you cannot be a Fed at work acting to overthrow the government.

Principle #6: "Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government."

That means (for example) you don't offer or provide foreign assistance without authorization or documentation.

Principle #7: "Employees shall not use public office for private gain."

Principle #8: "Employees shall act impartially and not give preferential treatment to any private organization or individual."

Principle #9: "Employees shall protect and conserve Federal property and shall not use it for other than authorized activities."

Principle #10: "Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities."

Principle #11: "Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities."

Disclosing waste, fraud, abuse, and corruption is not a partisan activity.

Principle #12: "Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those — such as Federal, State, or local taxes — that are imposed by law."

Principle #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."

Principle #14: "Employees shall endeavor to avoid any actions creating the appearance that they are violating the law, or the ethical standards promulgated pursuant to the order."

Neither the President nor the Vice President is considered a Federal employee. (5 CFR § 2641.104)

However, all Americans are subject to the Foreign Corrupt Practices Act, as mentioned before.

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By Dr. Dannielle Blumenthal. All opinions are the author's own. Public domain. Photo credits: 1) ethics sign 2) lightbulb 3) scissor/certificate 4) stock market 5) two men/whispering