Introduction
Ethics February 2019
The DFPS Ethics Policy incorporates standards of ethical conduct, guidance from statutory law, DFPS Human Resources work rules, DFPS Travel Policy, DFPS Computer Policy, and other relevant sources. Relevant sources are cited and links are provided throughout the policy.
I. Standards of Ethical Conduct for DFPS Employees
Ethics February 2019
The following standards of conduct apply to every employee and form the basis for this policy. When this ethics policy does not specifically cover a situation, employees must apply the principles below to determine whether their conduct is proper.
The Texas Legislature enacted minimum standards of acceptable conduct for all state employees. Those standards are located in Chapter 572 of the Government Code and serve as a basis for disciplinary action, if necessary. In addition to those minimum standards, all DFPS employees must comply with the DFPS Ethics Policy.
- Employees must protect and conserve state property and must not use it for unauthorized activities.
- Employees must act impartially and not give inappropriate preferential treatment to any private organization or individual.
- Employees must comply with all laws and regulations that provide equal opportunity for all people regardless of race, color, religion, sex, national origin, age, or disability.
- Employees must disclose waste, fraud, abuse, corruption, and ethical concerns to appropriate authorities, which may include the Texas State Auditor’s Office, the DFPS ethics advisor, and the Health and Human Services (HHS) Office of Inspector General.
- Employees must not accept or request any gift, favor, or service that might be reasonably expected to influence or appear to influence the employee in the discharge of official duties or that the employee knows or should know is being offered with the intent to influence the employee’s or the agency’s official actions.
- Employees must not accept other employment or engage in a business or professional activity that the employee might reasonably expect would require or encourage him or her to disclose confidential information acquired because of his or her official position.
- Employees must not accept other employment or compensation that could reasonably be expected to impair the employee’s independence of judgment in the performance of his or her official duties.
- Employees must not make personal investments that could reasonably be expected to create a substantial conflict between the employee’s private interests and the public interest.
- Employees must not intentionally or knowingly request, accept, or agree to accept any benefit for having exercised the employee’s official powers or performed the employee’s official duties in favor of another.
- Employees must avoid any conduct that creates the appearance that they are violating a law or the ethical standards in this policy. Whether particular circumstances create an appearance that a law or these standards have been violated must be determined from the perspective of a reasonable person with knowledge of the relevant facts.
A. Related Laws
Ethics February 2019
In addition to the standards of ethical conduct in this section, there are federal and state conflict of interest laws that prohibit certain conduct. Criminal conflict of interest laws that apply to all employees are summarized in the appropriate sections of this policy and must be considered in determining whether conduct is proper. Other laws relating to employee conduct are discussed throughout.
Employees are further cautioned that additional laws and regulations may contain restrictions that apply. Because DFPS considers its employees to be on notice of the requirements of any law, an employee should not rely on any description or synopsis of a legal restriction. Instead, he or she should refer to the law itself and obtain the advice of his or her supervisor or the DFPS ethics advisor in the Office of General Counsel (OGC).
B. Disciplinary Action
Ethics February 2019
Employees must report violations or suspected violations of these provisions promptly, verbally or in writing, to their supervisor. A violation of this policy, related laws, or internal operating manuals addressing ethics may be cause for appropriate corrective or disciplinary action, up to and including dismissal. For example, employees with access to clients’ criminal history information are expected to follow all state and federal policies and procedures related to ethics, including the reporting of fraud, waste, and abuse. In some cases, failure to follow these standards and the DFPS work rules, located in Chapter 4 Employee Conduct of the DFPS Human Resources Manual, violates one of the criminal laws referred to in this policy.
Disciplinary action is based on the expectation that DFPS employees are familiar with the DFPS Ethics Policy. Such action must be consistent with applicable provisions of the DFPS Human Resources Manual and may be in addition to any action or penalty prescribed by law. Employment with DFPS requires compliance with this policy.
C. Ethics Advice
Ethics February 2019
DFPS employees are encouraged to seek advice about the DFPS Ethics Policy, including the Standards of Ethical Conduct in Section I, related laws, and internal agency operating manuals addressing ethics, by contacting their supervisor or a DFPS Ethics Office ethics advisor.
Employees can also access the Ethics Office and related resources by contacting the OGC.
The DFPS ethics officer is a resource in the OGC and is the designated source in the agency for ethics guidance and policy interpretation. Employees may contact the Ethics Office directly about any good faith report or to ask questions about this policy and applicable operating procedures, rules, laws, and regulations. DFPS executive leadership does not tolerate retaliation against a DFPS employee who makes a good faith report of any actual or potential ethics violation or appearance of impropriety.
Disciplinary action will not be taken against an employee who relies in good faith on the advice of an agency ethics advisor and engages in conduct based on that advice, provided that the employee, when seeking such advice, has fully disclosed all relevant facts and circumstances.
II. Acceptance of Benefits
Ethics February 2019
Law generally prohibits public servants from accepting certain gifts or “benefits.” Violations of these laws carry criminal penalties, and local prosecutors handle complaints alleging such violations.
The law defines a “benefit” as “anything reasonably regarded as pecuniary gain or pecuniary advantage, including the benefit of any third party in whose welfare the employee is interested – such as a family member.” (Pecuniary means economic or financial.) This definition does not include benefits received from another governmental entity. For example, the Texas Ethics Commission has stated in its advisory opinions that the following gifts are benefits: a $50 clock, a hotel room, a hunting trip, football tickets, a $160 rifle, and a $60 restaurant meal.
Example: Y works for DFPS and was invited to attend a conference hosted by another state agency. The agency receives federal funds to host the conference every year and has the authority to waive or discount registration for state employees. The discount or waiver is not a benefit within the meaning of the prohibition.
With limited exceptions, DFPS employees may not accept any gift, gratuity, or entertainment whatsoever from a prohibited source.
The term “prohibited source” includes, but is not limited to, the following:
- A vendor or entity that contracts with the agency or is likely to become interested in a contract or other transaction with the agency.
- Lobbying firms or lobbyists.
- A person or entity affiliated with a lobbying firm.
- Anyone employed by or affiliated with a vendor or lobbyist.
- An entity subject to audit, inspection, or investigation by DFPS.
- Legal counsel for a party adverse to DFPS.
This definition does not include independent relationships or a group of entities serving in a collective capacity as sponsors of a conference or public event that agency employees attend. However, employees must keep in mind the potential appearance of impropriety associated with accepting anything of value from such entities.
A. Bribery
Ethics February 2019
Texas law prohibits state employees from offering, requesting, or accepting a gift in return for a decision, opinion, recommendation, vote, or other exercise of official discretion.
A violation of this law is a second-degree felony, punishable by imprisonment for two to 20 years, a fine of not more than $10,000, or both.
An attempt to bribe is an “offer to confer any benefit with the intent of influencing the employee in a specific exercise of official action.” A bribery offense occurs even if a benefit is offered after an employee leaves the agency if the benefit relates back to a discretionary act on the job.
Common sense should raise a question about whether something is a bribe. If you have a question about bribery, please contact the DFPS Ethics Office.
B. Honoraria (Payments for Services)
Ethics February 2019
State law makes it a criminal offense for a public servant to accept an honorarium, that is, money or other monetary compensation, for services that the public servant would not have been asked to provide if he or she were not a public servant.
This prohibition includes a request for or acceptance of a payment of an honorarium to a third party if the speaker agrees to speak in exchange for such payment.
A violation of Section 36.07 is a Class A misdemeanor, punishable by a fine of not more than $4,000, jail confinement for not more than one year, or both.
As a DFPS employee, you may not accept a gift or payment for giving a speech if your official position was a reason for your invitation to speak. By law you may, however, accept meals, transportation, and lodging in connection with a work-related speech, as long as they are not from an entity that your agency intends to audit, examine, or investigate or is auditing, examining, or investigating, and your speech is more than perfunctory.
You may accept a gift that is not a “benefit,” such as a certificate, plaque, or something of minimal value.
Example: If a DFPS employee is invited to speak at a meeting of current or potential vendors to the agency on the topic of contracting with her agency, she cannot accept anything more than transportation, lodging, and meals for speaking at the meeting. However, if the employee’s agency intends to audit, examine, or investigate or is auditing, examining, or investigating the person or entity paying the travel costs, she cannot accept the transportation, lodging, or meals.
C. Exceptions to the Prohibition on Benefits to Public Servants
Ethics February 2019
You may accept a gift, payment, or contribution as long as it fits into any one of the following categories.
No list can be complete, and DFPS employees are expected to be aware of how people may perceive the acceptance of even token gifts from parties with whom the employees conduct public business. Employees are expected to avoid accepting gifts that may create an appearance of impropriety or potential conflict of interest.
Items Worth Less Than $50
You may accept an item with a value of less than $50, which may include food, from someone who is not a prohibited source.
See II. Acceptance of Benefits, above, for an explanation of the term “prohibited source.”
When considering an item’s value, employees should use their best judgment and consult with their supervisors. However, an employee may not accept cash or cash equivalents, such as checks, gift cards, gift certificates, or negotiable instruments, regardless of the value.
Note: The exception for items worth less than $50 does not apply to employees whose primary duties consist of procurement (purchasing) and contracting. Those employees may not accept an item with any value, even less than $50.
Independent Relationship
Exceptions to the general prohibition on accepting benefits, or gifts from a prohibited source, include the following:
- A kinship relationship.
- A personal relationship independent of your official status.
- A professional relationship independent of your official status.
- A business relationship independent of your official status.
Example 1: X and Y are college friends and former roommates. They spend summer vacations together at Y’s cabin in East Texas. X now works in contract management, and Y works for a vendor. They can still vacation together but must be mindful of any potential conflict of interest or appearance of impropriety.
Example 2: X and Y are former business partners. They owned and co-managed a small adoption placement firm. Although they maintained their friendship, Y no longer has any interest in the firm and works at DFPS as an adoption counselor. May Y accept lunch invitations from X, if X is paying? Yes, however, Y must always be mindful of the potential appearance of impropriety.
Fees for Services
You may accept a payment to which you are lawfully entitled in a capacity other than your official status. In this case, you may accept the offer without restriction. Remember, you may not take an honorarium for a service that you would not have been asked to provide if it were not for your official status.
Example: Y is a singer-songwriter and receives compensation for performing at weddings on the weekends. She is legally entitled to payment for her services.
Political Contributions
You may accept a political contribution as a candidate or officeholder, as defined by Title 15, Election Code.
Government Property
You may accept an item issued by a governmental entity that allows the use of property or facilities that it owns, leases, or operates.
Food and Entertainment
Benefits in the form of food or entertainment are allowed if accepted as a guest at a local reception, event, or gathering of people attending from a variety of organizations, in addition to DFPS. This type of event is sometimes referred to as a widely attended gathering. To qualify as this type of gathering, an event must have 25 or more people in attendance, attendance must be related to work responsibilities, and a sponsor of the event must have issued the invitation.
For most state employees, there is no reporting requirement for this type of event. However, the agency head and board members may be required to report certain gifts on their annual personal financial statement.
Example: An advocacy group offered X complimentary seats at a baseball game. Sporting events do not meet the definition of a widely attended gathering because they do not generally provide an opportunity for a work-related exchange of ideas (as a networking reception or educational event would). Therefore, X should not accept the sports tickets.
Transportation, Lodging, and Meals
You may accept transportation, meals, and lodging, as described in Section II. B. Honoraria.
Gifts to DFPS
DFPS (and its employees acting on its behalf) may accept goods and services from external sources as a result of a negotiation to benefit a program that the agency is authorized to administer. However, DFPS employees should consult with their supervisors and the DFPS ethics advisor before accepting a gift of goods or services from an external source.
Gifts from DFPS
A DFPS employee may receive and accept a gift from the agency, as described in the DFPS HR Manual. See the DFPS Human Resources Manual Chapter 8 Benefits, Section H Employee Award Programs and Section I Service Award Program.
Disaster Response Personnel
Employees working in response to a disaster may accept food, beverages, and small sundries provided during their time of service.
Inspections
If an employee’s job requires the employee to accept something, such as a sample of food at a monitored entity, it is not considered a benefit.
Items of Minimal Value
Goods and services of minimal value (also called de minimis items), such as coffee mugs, coasters, key rings, or other promotional items, are not prohibited benefits as long as they are unsolicited (not requested) and not offered or accepted in exchange for any action or inaction on the part of a DFPS employee.
D. Proper Disposition of Prohibited Benefits
Ethics February 2019
A DFPS employee who receives a prohibited gift may dispose of the gift in one of the following ways:
- If the item is tangible, the employee returns it to the source (at the source’s expense, if possible).
- If it is not practical to return a tangible item because it is perishable, the employee may, at the discretion of his or her supervisor or a DFPS Ethics Office ethics advisor, give the item to a tax-exempt charitable organization.
- If the gift is intangible (such as any entertainment, favor, or service), the employee reimburses the source by paying the market value. Giving a similar or equivalent gift to the source later is not reimbursement.
Employees should keep a record of all actions they take to comply with these provisions, including obtaining receipts for any items donated to charity. An employee who promptly complies with this provision has not improperly accepted an unsolicited (not requested) gift. An employee is considered in compliance with this policy if he or she promptly consults with a DFPS ethics advisor to determine whether acceptance of an unsolicited gift is proper and, on the advice of the ethics advisor, follows these provisions to return or otherwise dispose of the gift.
III. Restrictions on DFPS Purchase of Food
Ethics February 2019
According to state regulations, DFPS is usually not allowed to purchase food, except when one of the following applies:
- A law gives the agency the authority to purchase food.
- The agency is purchasing food for a conference or seminar with funds appropriated under Article IX, §8.07 of the most recent General Appropriations Act.
Except for the provisions cited above, DFPS may not purchase food for conferences or seminars. This restriction applies to both direct purchases of food, as well as indirect purchases through third-party vendors. For example, a purchase of food is still prohibited when the agency contracts with a conference planner to plan the conference or seminar and the cost of food is included in the bill to the agency.
The term “food,” for purposes of this policy, includes beverages.
DFPS may not use appropriated funds to purchase food for internal business meetings.
IV. Group Solicitation of People or Organizations Who Do Business with the Agency
Ethics February 2019
State law places special restrictions on organizations made up of people employed by state regulatory agencies. For details, see §572.055 of the Government Code.
An association or organization of DFPS employees may not request, accept, or agree to accept anything of value from a business or entity that DFPS regulates and that must obtain a permit from DFPS to operate in Texas, or from a person associated with such an entity.
V. Travel
Ethics February 2019
Employees must plan all travel to be as economical and efficient as possible. All expenses submitted for reimbursement (being paid back by the agency or the state) must be directly associated with official state business.
A. Combining State and Personal Business
Ethics February 2019
When traveling on official business, an agency employee may take personal time and return from the business trip later if the combination is cost neutral or saves the state travel money. The employee must detail the savings on the appropriate forms, which the agency travel department provides. The employee lists the off-duty and on-duty times and claims reimbursement only for the on-duty times.
Example: X traveled to Washington, D.C., on official agency business. His meetings began Wednesday, so he flew to Washington on Tuesday night. His meetings ended on Friday afternoon, but he decided to stay in Washington until Sunday to visit family. This is allowed if the state does not pay for any additional hotel nights, travel, or meals. X must also make sure that his return flight does not cost more because of fees or fare increases. X’s travel voucher should reflect that he was on duty from Tuesday night until Friday afternoon and off duty from Friday afternoon until he began his travel back to the office. He may only seek reimbursement for the on-duty times.
B. Conferences and Training Seminars
Ethics February 2019
Travel expenses associated with conferences and seminars can be reimbursed only if the travel clearly involves justifiable state business. All payments for registration fees must follow the established procurement (purchasing) process and must be paid directly to the sponsoring organization.
Conferences and seminars that DFPS sponsors are required to use television, videoconferencing, and phone conferencing technology to the greatest extent possible.
DFPS employees are encouraged to discuss attendance at conferences and seminars that may require travel with their supervisors to make sure that the agency will reimburse expenses for such activities.
DFPS employees attending conferences and seminars that DFPS or outside entities sponsor must keep in mind the potential for conflicts of interest or appearances of impropriety.
Example 1: An information technology (IT) employee should not accept a complimentary registration to attend an industry conference that is sponsored by one organization and dedicated to marketing that organization’s software product. If DFPS is using the product, the facts suggest a potential conflict of interest. If DFPS is not using the product, the facts suggest an appearance of impropriety. In either case, it appears that the complimentary registration is being provided to influence the employee in the exercise of his official duties. Such action violates the DFPS Ethics Policy and may violate criminal laws.
Example 2: X receives approval to attend an educational seminar. One of the sponsors is a major vendor for DFPS. The sponsor invites X to a VIP dinner during the conference that includes a chance to mingle with many of the speakers. X cannot accept the dinner invitation from a vendor. This invitation and the benefit are a gift from a prohibited source. However, if the sponsor provided dinner for all conference attendees, as part of the official conference agenda, X would be able to attend the dinner.
Example 3: You are leading the planning of your division’s regional conference, and you have secured a new hotel as the venue. In exchange for booking the conference and guest rooms, the hotel provided a complimentary suite on the concierge floor. Because you are acting in your official capacity and on behalf of the agency, you cannot accept the suite for personal use. You must inform your division director, who decides how to use the suite. All such decisions must be made with the goal of saving public funds.
C. Frequent Flier Miles, Bonus Points, and Other Travel Benefits
Ethics February 2019
State law allows employees of DFPS and other state agencies traveling on official business to accept frequent flier miles, bonus points, food coupons, and other travel benefits for personal use.
VI. Conflicts of Interest
Ethics February 2019
State law makes it a criminal offense for an employee to engage in conduct that conflicts with the proper performance of his or her official duties. A conflict of interest exists when an employee’s private interest conflicts or interferes with his or her ability to perform his or her public duties.
Examples of a conflict of interest include, but are not limited to, the following:
- Using or attempting to use a DFPS position for advantage in a personal matter.
- Accepting a gift, a service, or a job, or doing a professional activity, that could appear to influence job performance or to disclose confidential information.
A. Pecuniary (Economic) Interest
Ethics February 2019
A DFPS employee may not have an economic or monetary interest in a lobbying firm or a person or entity affiliated with a lobbying firm. This includes serving as an officer, a director, a partner, an owner, an employee, an attorney, a consultant, or an investor.
B. Personal Investments
Ethics February 2019
Provision 8 of the Standards of Ethical Conduct in Section I of this policy states that a public servant must not make personal investments that could reasonably be expected to create a substantial conflict between the public servant’s private interest and the public interest.
DFPS employees are required to be careful in making personal investments and to avoid investments that create a conflict or may appear to create a conflict with their agency duties. DFPS employees should not develop financial interests in organizations that may be regulated by DFPS or that receive or may receive substantial amounts of funding from DFPS.
C. Nepotism
Ethics February 2019
As provided in the DFPS Human Resources Manual, no one may be hired or placed in a position in the direct chain of command of a relative, regardless of whether the relative would be in a subordinate or superior position to that of the applicant.
Exception: An employee hired or placed in a position within the direct chain of command of a relative before May 1, 2004, may remain in his or her position but is not eligible for any type of salary increase (other than an across-the-board salary increase approved by the Legislature or an upgrade resulting from a classification audit) while this situation exists.
A “relative” is a person related to the applicant within the third degree of consanguinity (blood) or the second degree of affinity (marriage).
Termination of marriage by divorce or death terminates the relationship, unless a child of that marriage is living. If a child of that marriage is living, the marriage is treated as continuing to exist as long as a child of that marriage lives.
A step relationship or adoptive relationship is considered the same degree as a biological relationship.
The following table describes the degrees of relationship:
| Relatives within the third degree of consanguinity (blood): |
Relatives within the second degree of affinity (marriage): |
|---|---|
1. Parent or child (first degree) 2. Grandparent, grandchild, or sibling (second degree) 3. Great-grandparent, great-grandchild, aunt, uncle, niece, or nephew (third degree) |
1. Spouse, father-in-law, mother-in-law, son-in-law, or daughter-in-law (first degree) 2. Sister-in-law, brother-in-law, spouse’s grandparent, or spouse’s grandchild (second degree) |
D. Disclosure
Ethics February 2019
All DFPS employees have a duty to immediately disclose any outside employment or activity involving themselves or relatives that could reasonably violate or potentially violate the conflict of interest standards of conduct provided in §572.051 of the Government Code, the conflict of interest provisions of the DFPS Ethics Policy, or both. Employees must disclose this information in writing to their supervisor and the DFPS ethics advisor.
If a conflict of interest develops, DFPS management with oversight over the relevant matter takes immediate action to make sure that business operations do not appear to benefit any employee or employee’s relative.
VII. Vendor References and Endorsements
Ethics February 2019
To ensure fair dealings with all DFPS vendors, DFPS employees may not endorse or provide a reference for any DFPS vendor or for a vendor’s products or services.
In response to such requests, DFPS employees whose supervisor has authorized them to communicate publicly about the relevant contract or procurement (purchase) may only provide factual information, such as that a vendor worked for the agency and the type of work that the vendor performed.
VIII. Contracting
A. DFPS Ethics Requirements for Staff Involved in Entering or Managing Contracts
Ethics February 2019
The nature of purchasing and contracting makes it critical that all involved staff members remain independent and free from the perception of impropriety. Any erosion of public trust or hint of impropriety harms the integrity of the purchasing and contracting process.
All DFPS staff involved in procurement (purchasing) and contracting must act in the best interest of the state and avoid any activity that could potentially impair or give the appearance of impairing their ability to carry out their duties with independence and objectivity. Failing to abide by these rules, or failing to disclose a potential conflict of interest, could result in dismissal or referral to law enforcement.
B. Contracting Personnel Code of Ethics
Ethics February 2019
In addition to the DFPS Ethics Policy, the DFPS Contract Management Handbook, and standards of conduct that apply to all state agency employees, employees involved with contracting must comply with the Contracting Personnel Code of Ethics described in the Texas Administrative Code (linked below).
Management and executive staff should lead by example, setting the standard for ethical behavior and providing guidance to contracting employees. The Contracting Personnel Code of Ethics is as follows:
- Earning and keeping, the public’s trust by maintaining the highest standards of integrity and ethical behavior in the contracting profession, which includes acting as follows:
- With integrity, doing the right thing at all times.
- With honesty and transparency.
- With independence and impartiality.
- As a responsible steward of public funds.
- Avoiding the intent or appearance of any unethical or compromising practices in all relationships, actions, and communications with DFPS program staff, potential contractors, and stakeholders.
- Conducting all procurement and contracting activities in a way that strictly follows all applicable laws, rules, and policies throughout the contract life cycle.
- Ensuring compliance with laws, rules, and policies that prohibit contracts for goods and services where contracting employees or agency officials have a financial interest or could receive a financial benefit.
- Never requesting or accepting money, loans, credits, gifts, favors, services, or any other thing of value from prospective bidders, suppliers, or contractors.
- Identifying, correcting, and, if needed, reporting any potential violations or concerns related to ethical behavior, standards of conduct, and conflicts of interest.
- Promoting positive working relationships with the community of suppliers and contractors by acting with fairness and impartiality throughout the contracting life cycle.
- Promoting an environment where all businesses, from large to small, including historically underutilized businesses (HUBs), have equal opportunity to compete for the state’s business.
- Ensuring protection of DFPS confidential data and information by including required data use agreements in contracts and being accountable for protecting this data and information.
C. Conflicts of Interest in Contracting
Ethics February 2019
Title 1, Part 15, Chapter 391 Subchapter E of the Texas Administrative Code provides the following:
- All contracting employees must do as follows:
- Comply with ethics requirements adopted in rules, ethics policies, and any code of ethics approved by the executive head of the agency.
- Sign and submit all forms related to ethics, disclosure, confidentiality, and other matters that are required in the ordinary course of a procurement and any further administration or management of a contract.
- Contracting employees must disclose, in writing, any potential or actual conflict of interest concerning any contract or procurement in which they are, or may become, engaged.
- To avoid conflicts of interest, contracting employees must not do the following:
- Participate in any work on a contract knowing that the contracting employee, or a member of his or her immediate family, as described in §573.002 of the Texas Government Code, has an actual or potential financial interest in the contract, including, but not limited to, prospective employment. The term “participate” includes, but is not limited to, decision-making, approval, disapproval, recommendation, giving advice, investigation, or similar action.
- Request or accept a benefit from a vendor.
- Be employed by, or agree to work for, a vendor.
- Disclose confidential information.
- Be employed at salary group B9 or higher, as determined by DFPS, if the spouse of that contracting employee is an officer, manager, or paid consultant of a Texas trade association or a business that contracts with DFPS.
- To avoid conflicts of interest, former contracting employees must not represent any person, or receive compensation for services performed on behalf of any person, regarding a particular matter in which the former contracting employee participated while employed. This includes participating either through personal involvement or because the matter was within his or her official responsibility. See Texas Government Code §572.054, Representation by Former Officer or Employee of Regulatory Agency Restricted; Criminal Offense.
- When any DFPS employee discovers a potential violation of this subchapter, he or she must promptly file a written statement about the matter with the DFPS ethics advisor. If the Ethics Office finds that an actual violation has occurred, or an employee has failed to disclose a potential conflict of interest, the contracting employee involved will be disciplined, up to and including possible dismissal or referral to law enforcement.
- Former DFPS employees who were classified at or above salary group B17 are subject to an additional one-year legal requirement prohibiting them from procuring or helping to procure a contract with the agency that relates to a program in which the employee was directly involved while employed.
IX. Restrictions on Employment
Ethics February 2019
Provisions 6 and 7 of the Standards of Ethical Conduct in Section I of this policy provide that a public servant must not accept other employment or engage in a business or professional activity if either of the following apply:
- The activity might reasonably require or encourage the employee to disclose confidential information acquired because of his or her position as a public servant.
- The activity could reasonably be expected to impair the employee’s independence of judgment in the performance of his or her official duties.
A. Dual State Employment
Ethics February 2019
Although state law allows a state employee to work for more than one state agency, there are also state and federal guidelines that may prevent dual employment in certain instances. Government Code, §667.007 requires a state employee to receive approval from the agency where he or she currently works before accepting additional employment with another state agency.
At DFPS, new employees who already work for another state agency must also seek approval from DFPS to continue their previous employment. The DFPS Human Resources Manual Chapter 3: General Employment, Subchapter F. Non-Agency Employment or Activity (Moonlighting) states the conditions for dual state employment and the process for an employee to obtain approval for such employment. If permission is granted, it may be revoked later if any conflict or potential appearance of impropriety arises. In that event, the employee may be asked to resign from one of the agencies.
B. Outside Employment and Volunteer Activity
Ethics February 2019
A DFPS employee may not maintain second employment with a company, or volunteer with an entity, that could benefit from access to confidential information that the employee knows because of his or her official position. A DFPS employee who manages a certain type of contract should not take a second job with a vendor in that same type of business, even if that vendor does not have a current contract with DFPS. The employee might unintentionally disclose information that may be helpful to the vendor in future contract bids.
The DFPS Human Resources Manual, Chapter 3, Subchapter F. Non-Agency Employment or Activity (Moonlighting) describes the restrictions on outside employment and states the approval process that a DFPS employee must complete before accepting outside employment.
Example: A DFPS employee manages a contract with Vendor X for DFPS. The employee should not accept employment from a non-contracting vendor in competition with Vendor X. The outside employment might influence the employee’s objectivity in managing the DFPS contract with Vendor X.
Similarly, agency approval is required before a DFPS employee may engage in non-agency activity, including volunteer activity, that may conflict with, or appear to conflict with, his or her agency duties.
The DFPS Human Resources Manual, Chapter 3, Subchapter F. Non-Agency Employment or Activity (Moonlighting), describes the restrictions on certain volunteer activity and states the required approval process. When considering pursuing a volunteer activity, DFPS employees should not volunteer with any of the following:
- A contractor that the employee monitors as a DFPS employee.
- A facility that the employee monitors as part of his or her work duties.
DFPS employees are required to decline simultaneous outside employment or volunteer activities that might threaten their ability to perform their DFPS duties fairly, honestly, and efficiently.
The DFPS Human Resources Manual, Chapter 3, Subchapter F. Non-Agency Employment or Activity (Moonlighting) states that an employee may volunteer at a state agency if he or she does so willingly and without coercion. However, a Fair Labor Standards Act (FLSA) non-exempt employee may only provide services that meet both of the following requirements:
- Not closely related to the employee’s job duties.
- Physically located away from the employee’s regular workstation.
C. The Revolving Door
Ethics February 2019
State and federal laws restrict former state employees’ ability to work in the private sector while conducting business with the agencies where they were once employed. The legal restrictions on the activities of former state employees are to prevent them from making unfair use of special knowledge, skill, or information obtained during state employment for personal financial gain. This includes information about a particular project or activity, as well as friendships or contacts with current state employees.
Management recognizes that DFPS employees develop portable skills and knowledge they can use in the private sector and that the employees should not be unreasonably prevented from pursuing private sector employment. However, all former DFPS employees should avoid conflicts of interest, improprieties, or the appearance of impropriety after leaving state employment.
Permanent Restrictions
State law permanently prohibits a former state employee who was at or above salary group A17 from representing any person, or receiving compensation for services performed on behalf of any person, regarding a particular matter in which the employee participated during state employment. A person who violates this provision commits a Class A misdemeanor, punishable by a fine of not more than $4,000, jail confinement for not more than one year, or both.
A “particular matter” is “a specific investigation, application, request for a ruling or determination, rulemaking proceeding, contract, claim, charge, accusation, arrest, or judicial or other proceeding.” See Government Code §572.054(h)(2). However, the term does not include a rulemaking proceeding that was finished before the officer or employee’s service or employment ended. See Government Code §572.054(d).
The Texas Ethics Commission has determined that a “matter” is something that involves the exercise of discretion by a particular agency. See Texas Ethics Advisory Opinion Number 232 (1994). Section 572.054(h)(1) of the Government Code defines the term “participated” as having taken action through decision, approval, disapproval, recommendation, giving advice, investigation, or similar action.
Time-Limited Restrictions
There are time-limited restrictions that apply to former members of a governing body, former heads of regulatory agencies, and former or retired employees of all state agencies.
For example, §572.054 of the Government Code prohibits a former member of a governing body or a former executive head of a regulatory agency from communicating with or appearing before an officer or employee of the agency in which he or she served. This applies until the second anniversary of the last date of service or employment. This prohibition only applies to communications or appearances that have both of the following characteristics:
- Made with the intent to influence.
- Made on behalf of any person in connection with any matter on which the person seeks official action.
Another time-limited restriction applies to any employee who participated in a procurement (purchase) or contract negotiation involving a person. Section 572.069 of the Government Code provides that a former state officer or employee of a state agency who, during the period of state service or employment, participated on behalf of a state agency in a procurement or contract negotiation involving a person may not accept employment from that person. This applies until the second anniversary of the last date of service or employment.
Under the revolving door law, a “person” is an individual or for-profit business entity.
State law prohibits a state agency from making any of the following contracts with a former or retired employee of that agency for one year after the employee separates from the agency:
- An employment contract.
- A professional services contract.
- A consulting services contract.
The term “employment contract” includes a personal services contract regardless of whether the performance of the contract involves the traditional relationship of employer and employee. The term does not apply to an at-will employment relationship that involves the traditional relationship of employer and employee.
A “personal services contract” is a contract for the services of a particular individual.
“Professional services” are services in the following fields, or services provided in connection with the professional employment or practice of a person licensed or registered in these fields: accounting, architecture, landscape architecture, land surveying, medicine, optometry, professional engineering, real estate appraising, or professional nursing.
“Consulting service” means the service of studying or advising a state agency under a contract that does not involve the traditional relationship of employer and employee.
There is an exception, however, for certain professional services contracts. A state agency may make a professional services contract with a business that employs a former or retired agency employee within one year of the employee’s last employment date, if the former or retired employee does not work on projects for the business that he or she worked on during his or her agency employment.
Representation of Nonprofit Organizations or Governmental Bodies
The Texas Ethics Commission has determined that all of the above revolving door laws apply to activity on behalf of a “person.” Under the revolving door law, a “person” is an individual or business. It does not include a nonprofit organization or governmental body. See Ethics Advisory Opinion Number 232 (1994).
Agency-Specific Restriction
DFPS has additional legal restrictions on certain post-employment activity.
Texas Human Resources Code §40.034
For one year from the last date of employment, a former DFPS employee may not directly or indirectly attempt, or aid in an attempt, to procure a contract with his or her former agency that relates to a program or service in which the former employee was directly involved or for which the former employee had administrative responsibility. These restrictions do not apply if the former employee is employed by another state agency or a community center.
A violation of these restrictions is a Class A misdemeanor, punishable by a fine of not more than $4,000, jail confinement for not more than one year, or both.
Contractual Restrictions
DFPS sometimes negotiates contracts with vendors and other entities that include post-employment restrictions that are stricter than the law. Employees are strongly advised to consult with the DFPS Ethics Office and appropriate agency legal counsel about how such provisions may apply to their individual circumstances.
As a rule, DFPS employees should refer to all relevant laws and policies concerning post-state employment. Please consult with the DFPS Human Resources Department and the DFPS Ethics Office if you have any questions.
X. Civic Engagement and Political Activity
Ethics February 2019
DFPS employees are strictly prohibited from using state funds and property for political purposes.
Provisions of the federal Hatch Act (5 U.S. Code Section 7323) strictly prohibit a state or local officer whose salary is completely funded by federal funds from becoming a candidate in a partisan election. However, state law prohibits all DFPS employees from coercing a state or local officer or employee to make a political c ontribution or using official authority or influence to interfere with or affect the result of an election or nomination to office. Employees who violate these provisions risk losing compensation and receiving disciplinary action, up to and including dismissal.
A. Elections
Ethics February 2019
If an employee is a volunteer in a political campaign or other political activity, participation must be outside of work hours, or the employee must take leave while engaged in volunteer work. Leave time must be approved before the employee takes time off.
B. Allowed Political Activities
Ethics February 2019
Employees may participate, on their own time, in certain political activities, such as the following:
- Helping in voter registration drives.
- Expressing opinions about candidates and issues.
- Wearing or displaying political badges, buttons, or stickers.
- Attending, organizing, or managing political rallies and meetings.
- Joining political clubs or parties.
- Signing or circulating nominating petitions.
- Campaigning for or against referendum questions, such as constitutional amendments or city ordinances.
- Collecting contributions or selling tickets to political fundraising events.
- Distributing campaign materials in a partisan election, as long as this happens away from the workplace and complies with the above conditions in this list.
XI. Fraud, Waste, and Abuse
Ethics February 2019
The potential for, or occurrence of, fraud, waste, and abuse is a significant management concern in any organization.
The purpose of this policy section is to do the following:
- Minimize the impact of all potential or actual fraudulent or illegal acts at DFPS by discouraging such activity or detecting it as early as possible.
- Alert all DFPS employees that there is a procedure for reporting allegations of violations under this policy, and that they will be fairly, objectively, and thoroughly investigated.
- Assure DFPS employees that their rights and confidentiality will be protected as much as the law allows.
This policy relates to all potential or actual fraud and other illegal activities within DFPS that involve agency employees in the conduct of their official duties. This includes, but is not limited to, the activities of theft, malfeasance, abuse of power or authority, kickbacks, and embezzlement involving the loss, misappropriation, or theft of any assets belonging to DFPS for which the agency is responsible. These assets include, but are not limited to, cash, checks, intellectual property, property and equipment, information, and other data.
Employees reporting any known, alleged, or suspected fraud or other illegal activities at DFPS must follow the process described below. Employees may do either of the following two options:
- An employee may contact his or her immediate supervisor to report such activities. Contact may be verbal or written, and anyone with knowledge of the activities may make this contact. The supervisor must report all allegations to the DFPS Ethics Office. The Ethics Office conducts a preliminary review and determines whether it is necessary to proceed with an investigation of the reported fraud or illegal activity. If an investigation is warranted, the ethics officer, the reporting employee’s supervisor, or both must report the matter to the inspector general for further action.
- DFPS employees may always make a direct report to the inspector general. An employee can choose to make the report anonymously or not. Reports of fraud or other illegal activities can be made to the inspector general’s integrity line by calling 1-800-436-6184 or by submitting the form located on the website of the Office of Inspector General. Reports can also be submitted to the State Auditor’s Office by calling the Fraud, Waste, and Abuse Hotline at 1-800-TX-AUDIT or by completing the form on the Investigations & Audit Support webpage.
XII. Unauthorized Use of Government Time, Property, and Facilities
Ethics February 2019
Because DFPS resources are intended to support agency business, employees are generally forbidden from using government time, property, facilities, or equipment for purposes other than official business.
However, an employee may use the internet, phone, and his or her state email address for limited personal purposes as long as this use does not result in a cost to the agency.
Examples of unauthorized use include misuse of computers or copiers, personal use of the agency’s long-distance phone service or fax equipment, and conducting an outside business on state time. Misuse of government property could result in disciplinary action, up to and including dismissal.
A. Email
Ethics February 2019
DFPS employees may use the email system for communicating with others on non-official business if such communication does not disrupt or interfere with official state business, takes a minimal amount of time, occurs as rarely as possible, and is not political.
Employees should remain aware that there is no expectation of privacy for anything sent or received through the agency’s email system.
For more information on the proper use of technology in the workplace, please refer to the DFPS Information Security Policy.
B. Disposition of Government Property
Ethics February 2019
All property, equipment, telecommunication devices, and supplies issued to DFPS employees for use in performing their jobs belongs to the agency.
Upon separation from employment, all such property must be returned to DFPS. Work papers, copies of official papers, and notes or diaries of official business are official records and must be returned at the time of separation or on demand. The same rule applies to electronic building access cards, parking permits, keys, credit cards, and all other credentials issued for work purposes.
C. Official Records and Property
Ethics February 2019
All records and documents, including electronic files, are in the custody of agency employees for official purposes only. Disposal or destruction of records and documents must be done in a way that follows the DFPS Records Retention schedule. For more information about this schedule, see the Records Retention Schedules for State Agencies webpage.
Copies of confidential or sensitive personnel or financial information should be disposed of by placing the documents in confidential disposal containers or by following established division procedures.
Employees must promptly report the loss of any agency property to their division director. Employees are held responsible for the loss, improper disposal, or theft of any official documents or agency-owned property when caused by the employee’s actions. Employees are cautioned against leaving DFPS documents and property, including laptops and mobile devices, unprotected in cars, on public transportation, in restrooms, or in any other unsecured location. Specific steps must be taken when reporting lost or stolen electronic devices.
D. Copyrighted Material
Ethics February 2019
Any copyrighted material, including but not limited to commercial publications and computer software, made available to employees is protected by copyright laws and may not be copied for any reason without written permission from the copyright owner.
E. Accounting for Money and Property
Ethics February 2019
Any money, property, or other thing of value that a DFPS employee directly or indirectly receives as part of his or her official duties must be accounted for, deposited, or otherwise disposed of according to established agency procedures.
F. Checks Submitted with Legal Documents
Ethics February 2019
Sometimes an employee receives a check or other payment along with a legal request or order, such as a subpoena to appear as a witness in a court proceeding. If, in responding to the legal request or order, the employee will act in the role of an employee (for example, by testifying about his or her job in a hearing involving the agency), then the employee must give the check or other payment to the appropriate person in the agency. This applies even if the check or other payment is payable to the employee or is in cash. The DFPS OGC must be consulted about any checks or payments associated with a legal request or order.