A WALK THRU THE JER

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A WALK THRU THE JER

• Did You Bring Your Highlighter?
• Presented by
• Al Novotne
• Army Standards of Conduct Office
• Office of The Judge Advocate General
• novotah_at_hqda.army.mil
• 703-588-6713
• DSN 425-6713

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THE DIRECTIVE5500.7

• Dont throw it away!
• Jurisdictionally critical.
• Necessary for drafting UCMJ specifications.
• The Foreword - You need this to harmonize
  with other regulations.

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DefinitionsJER Chapter 1

• 1-202 Agency Designee Look closely at this--
  It could be you!
• 1-214 Ethics Counselor Need your AKC
  registration.
• 1-211 DoD Employee Tied to federal function
• 1-219 Head of DoD Component
• 1-232 SGE Who is that masked man?
• 1-404 Responsibilities--This is a
• command program.

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THE OGE RULES5 C.F.R. 2635

• The JER is a regulation which republishes another
  regulation.
• Be careful to note the bold italic sections for
  UCMJ purposes.
• Do not rely on the JER reprint to be accurate or
  current. When in doubt go to the original source.

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THE OGE RULES5 C.F.R. 2635

• .101 The Executive Order. Use it directly.
• .105 No supplementation of OGE rules.
• .107 The Ethics Magistrate section.
• - Use this with .205, .602 41 USC 423
• - Always be thinking about independent
• authority
• (such as
  operational or military
  necessity under 10 USC)

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GIFTS5 C.F.R. 2635.201 et seq.

• .202 Dont rush past this section.
• Every answer starts here.
• .203 Gift Definitions. Note OGEs peculiar
  drafting style. Substantive law loaded in
  definitions.
• .203(b)(8) Agency gift acceptance authority. At
  a practical level, this is the solution for most
  issues.

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GIFT EXCEPTIONS5 C.F.R. 2635.204

• These are not the gift rules! They are
  exceptions, and as such, their use is always
  subject to your Ethics Magistrate discretion.
  They are not entitlements.
• .204(c), ex. 2 Golf is work. Always.
• .204(g) Do not attempt to apply this
• section without using the deskbook.

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GIFTS BETWEEN EMPLOYEES5 C.F.R. 2635.301 et seq.

• The exceptional nature of this section is also
  overlooked. Gifts to superiors are only allowed
  to express genuine sentiment.
• .303(f) Competitive gift
  giving can lead to
  coercion.

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CONFLICTS OF INTEREST5 C.F.R. 2635.401 et seq.

• Ethics Magistrate role looms large. Be
  conservative and use discretion.
• .402(b)(1) Do you remember In Re Polemis?
• The Polemis drifting
  towards a
• bridge and legal
  immortality
• .402(d) Waivers must
• be coordinated with SOCO and OGE.

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IMPARTIALITY5 C.F.R. 2635.501 et seq.

• .501 Useful language, but a difficult process.
• .502 and .702 cover appearance of impropriety.
• Not sure if the new frat policy covers
• cross-species relationships? Use .502.
• .502(d) Note that these issues
• may be resolved locally.

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MISUSE OF POSITION5 C.F.R. 2635.701 et seq.

• .702(a) Includes solicitation of subordinates
  to provide any benefit.
• .702(c), ex 3 A gray zone. Use your Magistrate
  authority be the honest broker.
• .702(e) OGE re-writes the Officers Guide.

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OUTSIDE ACTIVITIES5 C.F.R. 2635.801 et seq.

• .802 Conscientious performance of duty.
• .807 Outside speaking. This section has been
  savaged by litigation.
• .808 Fundraising. This section is often
  overlooked. It answers many questions.

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DoD SUPPLEMENTATIONJER Chapter 2

• OGE explicitly approved the paragraphs of Chapter
  2 as supplementation to their rules.
• 2-206 is the only JER authority where prior
  approval for outside employment may be required.
• 2-303 However, this section outlines Title 10
  authority for prior approval.
• Never forget our
  mission and
• the
  authority to carry it out.

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NON-FEDERAL ENTITIESJER Chapter 3

• 3-201a. Liaison can accomplish as much, if not
  more, than managing in official capacity.
• 3-210a.(6) A thesis statement for selectivity
  among private organizations.
• 3-305b. Someone in your command will violate
  this section during your tenure.
• Whats your prescription?

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TRAVEL BENEFITSJER Chapter 4

• 4-102a. This section reflects long-standing
  practice--which has always been wrong.
• 4-202 DoDs reaction to the Panetta memo. The
  rules on frequent flyer points and upgrades are
  driven by appearances, but are fiscal in
  application.
• Dont go down in
  flames.

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CONFLICTS OF INTEREST

• Insert 5 C.F.R. 2640. Use this regulation as a
  tool to support government operations. It should
  not be read as creating entitlements.
• 5-302b. This is the book on 18 U.S.C. 208
  waivers. Use it. The package goes all the way
  to the top.

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POLITICAL ACTIVITIESJER Chapter 6

• You have no authority to issue opinions on the
  Hatch Act. Refer all questions to the Office of
  Special Counsel. 1-800-854-2824
• For military personnel, go directly to a current
  version of DoD 1344.10.

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FINANCIAL DISCLSOURESJER Chapter 75 C.F.R. 2634

• .311(a)(1) Be sure to advise your filers of
  this. You will both save time and effort.
• .605(b)(2) This section may help when you
  encounter difficulty.
• .904(a)(1) The greatest service you can perform
  for your command is to reduce the number of 450
  filers.

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POST EMPLOYMENTJER Chapter 918 U.S.C. 207

• Note that 5 C.F.R. 2637 only applies to
  individuals who left federal service before
  January 1, 1991.
• The OGE letter at page 116-1 is a draft that will
  ultimately be codified as 5 C.F.R. 2641.
• You cannot intelligently render an opinion on 18
  U.S.C. 207 until you read this letter.

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ENFORCEMENTJER Chapter 10

• Many JER infractions are trivial and do not
  warrant more than verbal counseling.
• JER 10-201c. has been construed to allow the
  command, the SJA and the Ethics Counselor the
  same degree of prosecutorial discretion as with
  any other UCMJ matter.

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APPENDICES

• Note the OGE Form 202 in Appendix C. A report of
  conflict of interest referral is required by 28
  U.S.C. 535.
• Less than 10 of Army referrals are being
  reported. Reach an understanding with your Chief
  of Criminal Law or DOJ Liaison and start cranking
  them out!

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NECESSARY SOURCES

• The Ethics Counselor Deskbook
• Current extract of 18 U.S.C. 201 thru 209
• JTR/JFTR (SecArmy Travel LOI)
• GAO Red Book, Chapter 4
• Wright-Pat Website
• DoD SOCO Website
• JAGCNet Ethics Forum

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CONCLUSION

• If you are stumped--send me an e-mail.
• Are you on my e-mail distribution list?
• Dont be a sitting duck.
• 
  Get on the horn and
• send that
  message.
• It wont get my goat.