A 1996 Department of Justice (DOJ) memorandum concluded that criminal conflict of interest laws (18 USC Section 208) prohibit federal government employees from serving in their official capacities on the board of directors of a non-federal nonprofit organization unless 1) such service is authorized by statute; or 2) the board member is relieved of fiduciary responsibility for the nonprofit; or 3) a waiver of Section 208(a) is granted pursuant to 208(b).
Because the statute authorizing the VA nonprofit research corporations authorizes the affiliated medical center director, chief of staff and associate chiefs of staff for research and education to serve on the board of any nonprofit established under this authority, these personnel have a statutory waiver and are not at risk of violating conflict of interest laws contained in Section 208.
However, several corporations have asked whether other VA personnel - such as physicians and PhD investigators - serving on the board of a research and education corporation are at risk. In the past, the Office of General Counsel has determined that service by VA employees in their personal capacities on non-federal boards is acceptable and does not invoke the criminal conflict of interest statute. However, such personal business must be conducted during personal time. This opinion is currently undergoing review.
To clearly delineate between official and personal capacities for VA personnel serving on the board, NAVREF recommends that board meetings and other board business involving non-statutory VA personnel should be conducted outside normal VA duty hours; that is, before 8:30 a.m., after 4:30 p.m. or during a normal lunch break (30-60 minutes consistent with local medical center policy).
Alternatively, non-statutory VA board members may take annual leave the day of a board meeting or may obtain an approved irregular tour of duty that extends their work day by the same number of hours as the board meeting. Holding NPC board meetings outside of normal working hours and obtaining an approved irregular tour of duty are the most commonly exercised solutions for these situations.