Personnel Delegation #58
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Department of the Secretary
Office of the General Counsel
Washington, D.C. 20201
December 17, 2013
Robert G. McSwain
Deputy Director for Management Operations
Deputy Ethics Counselor
Indian Health Service
Edgar M. Swindell /S/ Edgar M. Swindell
Associate General Counsel for Ethics
Designated Agency Ethics Official
Appointment to Position of Deputy Ethics Counselor, Delegation of Authority
Authority to Appoint and Delegate: Pursuant to my authority as the Designated Agency Ethics Official (DAEO) for the Department of Health and Human Services (HHS) under Title I of the Ethics in Government Act of 1978, as amended by the Ethics Reform Act of 1989, 5 U.S.C app.4, and 5 C.F.R Part 2638, Subpart B, as provided in the memorandum of appointment and delegation of authority to the DAEO issued by the Secretary of Health and Human Services, dated November 12, 1997, and subject to my continuing authority to exercise any or all authorities noted herein, I hereby appoint you to be the Deputy Ethics Counselor (DEC) for the Indian Health Service (IHS).
Pursuant to 5 C.F.R. § 2638.204, I hereby delegate to you those authorities, duties, and responsibilities referred to in 5 C.F.R. § 2638.203---except for those functions set forth in 5 C.F.R. § 2634.605(c)(2) and referred to in 5 C.F.R. § 2638.203(b)(3) (certification of nominee financial disclosure statements)---that are more specifically described below, to be exercised within your agency component according to law under the supervision of the DAEO.
Authority Delegated: As a DEC, you have the authority and responsibility for the following ethics program functions within your agency component, subject to such limitations and/or reservations herein described:
(1) Administration of the public financial disclosure system in accordance with regulations at 5 C.F.R. Part 2634 and HHS policies issued by the DAEO, including the certification of completed reports;
(2) Administration of confidential financial disclosure reporting system in accordance with the regulations at 5 C.F.R. Part 2634 and HHS policies issued by the DAEO, including the certification of completed reports;
(3) Management of the outside activity prior approval process, including the annual reporting of outside activities, in accordance with regulations at 5 C.F.R. Part 2635, Subpart H, and Parts 5501 and 5502, and HHS policies issued by the DAEO;
(4) Management of compliance by your agency component with cash or in-kind travel reimbursement authorities and compilation of semi-annual reports to be submitted to the Office of the Assistant Secretary for Administration for reporting to the Office of Government Ethics;
(5) Administration of the procurement integrity ethics provisions prescribed by the General Services Administration in the Federal Acquisition Regulation, including the issuance of procurement integrity advisory opinions described at 48 C.F.R. § 3.104-6;
(6) Dispensing of advice and counsel to managers, supervisors, and individual employees on the statutes and regulations governing conflicts of interest, representational activities, salary supplementation, post-employment, political activity, and related ethics provisions;
(7) Rendering determinations under the Standards of Ethical Conduct with respect to awards, honorary degrees, prohibited gifts, conflicts of interest, impartiality, and other matters requiring a disposition by an "agency ethics official" and/or an "agency designee";
(8) Assessing information provided by employees or others to ascertain the application of the conflict of interest statutes and regulations and resolving actual or potential conflicts or the appearance of a loss of impartiality;
(9) Developing and maintaining an education and training program regarding ethics, political activity, and related topics;
(10) Enforcing ethics laws, standards of ethical conduct, and related provisions through criminal investigatory referrals and/or administrative sanctions; and
(11) Ensuring that ethics requirements are not by any advisory committee and committee managers assigned to your agency component. This includes managing the financial disclosure reporting system, identifying conflicting interests, assessing impartiality concerns, ensuring ethics training, and preparing disqualification statements, waivers, or authorizations for committee members.
For a more complete description of these delegated duties, please refer to the document entitled "Deputy Ethics Counselor, HHS Ethics Program: Statement of Functions, Responsibilities, and Authority, August 15, 2007." A copy of this document is attached and is also online at http://intranet.hhs.gov/ethics/files/dec_ethics_prgm_stmt_of_functions_08152007.doc.
Limitations: Certain authorities may be redelegated to other qualified individuals within your component provided that those individuals are at a high enough level to be consistent with good management practices and their activities are subject to your supervision. However, you may not redelegate the authority to certify Public Financial Disclosure Reports (OGE Form 278s) or to issue the procurement integrity advisory opinions described in 48 C.F.R. § 3.104-6. Consistent with guidance from the Office of Government Ethics, DAEOgram DO-03-011 (June 30, 2003), you may not redelegate inherently government ethics program functions to anyone other than a federal employee. For ease of reference, I have attached a copy of this OGE opinion.
The ability to exercise authorities described above as they relate to officers or employees holding the following positions within your agency component is excepted from this delegation and reserved to the DAEO, the Alternate DAEO, or the DAEO's designee:
(1) Positions designated for appointment by the President by and with the advice and consent of the Senate (PAS);
(2) Positions designated for appointment by the President (PA);
(3) Positions occupied by noncareer appointees described in 5 U.S.C. § 3132(a)(7) (noncareer SES);
(4) Positions of a confidential, policy-determining, policy-making, or policy-advocating character described in 5 C.F.R. § 213.3301 (Schedule C).
Instructions: As a DEC, you are required to have an evaluation element reflecting your ethics program management duties and responsibilities in your performance plan or contract. A member of my staff will contact you regarding this requirement. In addition, a signed copy of your annual performance plan/contract is required to be filed with my office. When midterm and annual evaluations are conducted, my input must be sought and incorporated.
There are three key elements for running a successful ethics program. First, you and/or your staff must acquire the needed skills to discharge properly your ethics duties, including becoming knowledgeable about ethics-related laws and regulations. To begin your training, my staff will be contacting you shortly to arrange for a DEC orientation briefing. Second, you must have an adequate number of staff members dedicated to your program, and they must be sufficiently qualified to help you to satisfy the program needs delineated in this appointment memorandum. I encourage you to assess the staffing resources currently devoted to your program, and to routinely do so, to determine whether your program is adequately staffed. Third, your program must be visible to your employees. Please ensure that an announcement of your appointment is sent to all IHS staff and encourage them to seek guidance concerning ethics questions.
Effective Date: This appointment and delegation is effective immediately and will remain in effect until such time as it is superseded or you leave the management position upon which this appointment is predicated. Please advise me of any personnel change as soon as possible so that I may appoint a successor DEC.
Effect on Existing Appointments and Delegation: This appointment and delegation supersedes any prior DEC appointments and delegations of authority for the IHS.
I look forward to working with you as you assume these added responsibilities. Your support in administering your part of the Departmental Ethics Program is greatly appreciated.