Last week, it was reported that Anthony Fauci, the director of the United States government’s National Institute of Allergy and Infectious Diseases (NIAID) and the chief medical advisor for President Joe Biden, was chosen to receive a Dan David Prize. Included in the award is a one million dollars payment, ten percent of which is set aside for scholarships to be given out at Fauci’s direction while the rest is available for Fauci to use as he pleases. As made clear in the announcement of Fauci’s selection for the prize associated with Tel Aviv University in Israel, Fauci was chosen for the prize because of his decades of “public health” work, including related to coronavirus, as a US government employee.
Upon hearing about the prize awarded to Fauci, an obvious question arises: Is it legal for Fauci to accept it? There must be some strict rules governing third parties giving money to US government employees, especially when that money is given because of how a US government employee does his job. Such payments can be used to reward an employee for taking actions the third party desires or to encourage the employee to take certain actions in the future. A big concern is that third party payments to government employees can buy influence.
Fauci, over the last year, has been the most prominent US government employee stirring up fear of coronavirus and support for clamping down on freedom in the name of countering coronavirus. All the while he has been paid by the US government. In fact, Fauci, who has been receiving US government paychecks as an NIAID employee since 1968, has a yearly salary of over 400 thousand dollars. That salary ranks Fauci as the highest paid employee of the entire US government.
Even considering Fauci’s high level of pay, the Dan David Prize money is a big deal, coming in at over twice Fauci’s yearly pay. If a third party really wanted to buy influence from Fauci, payment of the amount of money that comes with the Dan David Prize would be a logical way to attempt it.
Buying influence is not the reason that has been offered for why the prize was awarded. Still, an assurance that everything is on the up and up is not sufficient to satisfy government rules regarding third party payments to US government employees.
While there are additional statutes and regulations that pertain to third parties giving gifts to US government employees, a good place to start in examining how the legality of Fauci receiving the Dan David Prize would be to look at the Standards of Ethical Conduct for Employees of the Executive Branch provisions in the Code of Federal Regulations.
It should be kept in mind, though, that there are plenty of additional laws and regulations that may be relevant in scrutinizing the legality of Fauci receiving the large monetary award. This is made clear when the following is stated in the employee ethical conduct provisions:
Related statutes. In addition to the standards of ethical conduct set forth in this part, there are conflict of interest statutes that prohibit certain conduct. Criminal conflict of interest statutes of general applicability to all employees, 18 U.S.C. 201, 203, 205, 208, and 209, are summarized in the appropriate subparts of this part and must be taken into consideration in determining whether conduct is proper. Citations to other generally applicable statutes relating to employee conduct are set forth in subpart I and employees are further cautioned that there may be additional statutory and regulatory restrictions applicable to them generally or as employees of their specific agencies. Because an employee is considered to be on notice of the requirements of any statute, an employee should not rely upon any description or synopsis of a statutory restriction, but should refer to the statute itself and obtain the advice of an agency ethics official as needed.The provisions further note that a US government employee must also “comply with any supplemental agency regulations issued by his employing agency under this section.”
The first thing stated in the employee ethical conduct provisions is the following:
Public service is a public trust. Each employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.This statement puts forward a basic standard that carries through the provisions: US executive branch employees are restricted in their pursuit of private gain when it conflicts with doing their jobs ethically and in compliance with US law. They are also directed to follow the guidelines detailed in the remainder of the employee ethical conduct provisions. Notably, the purpose given of promoting “complete confidence in the integrity of the Federal Government” suggests a concern also about the appearance of impropriety that can arise even when nobody is intending to take a wrongful action.
The provisions next list several “general principles.” Listed general principles that may be relevant in the consideration of the propriety of Fauci receiving the Dan David Prize include principle seven (“Employees shall not use public office for private gain.”), principle eight (“Employees shall act impartially and not give preferential treatment to any private organization or individual.”), and principle ten (“Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.”).
Principle 14 deals with the appearance of improper conduct. It states:
Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.The fourth general principal seems on point for an examination of Fauci’s receipt of the Dan Davis Prize. That principle is stated as follows:
An employee shall not, except as permitted by subpart B of this part, 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.This principle indicates that an important determination to make in considering the acceptability of Fauci receiving the Dan David Prize is the nature of the interests and activities of the people and entities behind both the prize and the decision to award the prize to Fauci.
Looking a “Subpart B—Gifts from Outside Sources” that is referenced in the fourth general principle, plenty of details about restrictions on third party payments are found.
Subpart B provides this general prohibition relevant to Fauci receiving the Dan David Prize:
(b) Prohibition on accepting gifts. Except as provided in this subpart, an employee may not, directly or indirectly:This definition is provided for the key term “prohibited source”:
(1) Accept a gift from a prohibited source; or
(2) Accept a gift given because of the employee's official position.
(d) Prohibited source means any person who:And “given because of the employee's official position” is defined as follows:
(1) Is seeking official action by the employee's agency;
(2) Does business or seeks to do business with the employee's agency;
(3) Conducts activities regulated by the employee's agency;
(4) Has interests that may be substantially affected by the performance or nonperformance of the employee's official duties; or
(5) Is an organization a majority of whose members are described in paragraphs (d)(1) through (4) of this section.
(e) Given because of the employee's official position. A gift is given because of the employee's official position if the gift is from a person other than an employee and would not have been given had the employee not held the status, authority, or duties associated with the employee's Federal position.Investigation into the Dan David Prize and the people behind it would need to be conducted to determine if Fauci receiving the award would involve a prohibited source problem. But, it seems that the gift independently falls under the general prohibition because it is being given because of Fauci’s official position as a US government employee.
If the award is, at it seems it is, generally prohibited for Fauci to accept, the next step is to consider if acceptance may be allowable due to receipt of the award fitting in one of several exceptions.
The first listed exception applies only to certain gifts with a market value of less than 20 dollars. Fauci’s award exceeds that limit by a factor of 50,000. So there is no safe harbor there.
The second listed exception involves gifts “motivated by a family relationship or personal friendship rather than the position of the employee.” That also does not seem to apply. The award offered to Fauci appears to not be from friends or family and does appear to be made because of actions Fauci has taken in his employment with the US government.
The third listed exception relates to certain types of discounts a government employee may be offered. Fauci is being offered money, not discounts. So this exception seems to not apply.
The fourth listed exception, though, appears to be relevant to the examination of the propriety of Fauci’s receiving the Dan David Prize. This exception states:
(d) Awards and honorary degrees—(1) Awards. An employee may accept a bona fide award for meritorious public service or achievement and any item incident to the award, provided that:An “established program of recognition” is defined as follows:
(i) The award and any item incident to the award are not from a person who has interests that may be substantially affected by the performance or nonperformance of the employee's official duties, or from an association or other organization if a majority of its members have such interests; and
(ii) If the award or any item incident to the award is in the form of cash or an investment interest, or if the aggregate value of the award and any item incident to the award, other than free attendance to the event provided to the employee and to members of the employee's family by the sponsor of the event, exceeds $200, the agency ethics official has made a written determination that the award is made as part of an established program of recognition.
(2) Established program of recognition. An award and an item incident to the award are made pursuant to an established program of recognition if:It would require investigation into the people behind the Dan David Prize to determine if the first part of this exception is met. Supposing the first part of the exception were satisfied under such an examination, attention would then turn to the second part of the exception, Given that Fauci’s award value is higher, indeed much higher, than 200 dollars, the written approval mentioned in the second part of the exception would then seem to be required under the employee ethical conduct provisions before Fauci could receive the Dan David Prize in accord with the employee ethical conduct provisions.
(i) Awards have been made on a regular basis or, if the program is new, there is a reasonable basis for concluding that awards will be made on a regular basis based on funding or funding commitments; and
(ii) Selection of award recipients is made pursuant to written standards.
Even if such written permission is provided and the award meets all other applicable legal requirements in the employee ethical conduct provisions and elsewhere, there seems to still be a strong argument that Fauci should not accept the award that amounts to over twice his annual salary as a government employee and that is offered because of actions he took as a government employee. That argument is well stated in the employee ethical conduct provisions: “Even though acceptance of a gift may be permitted by one of the exceptions contained in this section, it is never inappropriate and frequently prudent for an employee to decline a gift if acceptance would cause a reasonable person to question the employee's integrity or impartiality.”
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