Army Ethics Officer Deskbook

The Army Ethics Officer Deskbook is often a good source of information for agencies outside DOD. This discussion of ethics waivers was helpful:

9. Waivers

a. Individual Waiver (18 U.S.C. 208(b)(1) and 5 C.F.R. 2640.301). An agency may determine in an individual case that a disqualifying financial interest in a particular matter or matters is not so substantial as to be deemed likely to affect the integrity of the employee's services to the Government.

(1) Requirements for issuing 18 U.S.C. 208(b)(1) waivers:

(a) The disqualifying financial interest, and the nature and circumstances of the particular matter or matters, must be fully disclosed to the appointing official.

(b) The waiver must be issued in writing by the Government official responsible for appointing the employee to his position.

(c) The waiver should describe the disqualifying financial interest, the particular matter or matters to which it applies, the employee's role in the matter or matters, and any limitations on the employee's ability to act in such matters.

(d) The waiver shall be based on a determination that the disqualifying financial interest is not so substantial as to be deemed likely to affect the integrity of the employee's services to the Government. (Evidence of good character is NOT relevant).

(e) The waiver must be issued prior to the employee taking any action in the matter or matters.

(f) The waiver may apply to both present and future financial interests.

(2) Factors to Consider:

(a) The type of interest that is creating the disqualification (stock, bonds, real estate, other securities, cash payment, job offer, or enhancement of spouse's employment).

(b) The identity of the person whose financial interest is involved and if that interest is not the employee's, the relationship of that person to the employee.

(c) The dollar value of the disqualifying financial interest, if it is known or can be estimated (e.g. the amount of cash payment which may be gained or lost, the salary of the job which will be gained or lost, the predictable change in either the market value of the stock or the actual or potential profit or loss or cost of the matter to the company issuing the stock, the change in the value of real estate or other securities).

(d) The value of the financial instrument or holding from which the disqualifying financial interest arises (e.g. face value of the stock, bond, other security, or real estate) and its value in relationship to the individual's investments.

(e) The nature and importance of the employee's role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter.

(f) Other factors: The sensitivity of the matter; the need for the employee's services in the particular matter; and adjustments that may be made in the employee's duties that would reduce or eliminate the likelihood that the integrity of the employee's services would be questioned by a reasonable person.

(3) When practicable, a Government official is required to consult formally or informally with OGE prior to granting a waiver. A copy of each such waiver is to be forwarded to OGE. A copy of the waiver is publicly available. Note: DoD recommends that you use two memoranda. One is the actual waiver signed by the cognizant official containing the statutory determination language and sufficient supporting facts, which is releasable, and the other is a legal memorandum discussing the facts in more detail for the official, which is not releasable.

(4) In a program review, OGE will review all waivers, so be careful.