Planning for Partnerships
2. Do Interior bureaus have authority to create a non-profit group to support their missions, such as a friends group or cooperating association? What are some sources of Department funds that can be used for seed money to help establish partnerships and leverage funds?
3. If a bureau is involved in a partnership with others who "have authority" to take particular actions, can it participate financially with them in those actions even if it have no clear authority to do so by itself?
4. In these days of uncertain budgets, how does a bureau play a consistent role as an effective and dependable partner from year to year? If the bureau has provided funds one year to implement certain kinds of projects, and builds partnerships to make those projects happen, how does it maintain momentum and involvement - even if the funds disappear?
6. Are there any restrictions on a bureau forming a partnership with an entity that it regulates? Can the agency form partnerships with individual entities in situations where it inspects their operations and audits their financial records?
1. Who can be partners with Department of the Interior bureaus? (top)
Almost any individual, organization, entity, or state, local, tribal, or federal government agency can be a partner with a DOI bureau. When contemplating a partnership with a particular entity, the bureau must identify legal authority both to support the proposed partnership activity and to determine whether there are any limitations on the bureau's ability to enter into the partnership with that potential partner. Such limitations may include whether the potential partner or partnership activity would create an improper appearance for the Department. The Solicitor's Office can help with this process.
Bureaus also must fully consider the ethical implications of a proposed partnership. For example, agencies generally may not accept benefits from "prohibited sources." Prohibited sources can include those who: 1) the agency regulates; 2) have business relationships with the agency; and 3) are in litigation with the agency. The Department's Ethics Office can assist agencies in identifying prohibited sources and other ethical considerations relating that may arise in the context of partnership proposals.
2. Do Interior bureaus have authority to create a non-profit group to support their missions, such as a friends group or cooperating association? What are some sources of Department funds that can be used for seed money to help establish partnerships and leverage funds? (top)
Bureaus can actively encourage the formation of support organizations, e.g., friends groups, cooperating associations, etc., to assist them in attaining their mission objectives. But bureaus and their employees are prohibited from actually forming support organizations. Support organizations must be formed by members of the public and their formation must comply with the requirements of applicable state and federal law regarding incorporation, charitable status, etc.
A bureau may be able to provide certain resources to help in establishing a support organization, depending on the authorities and appropriations available to it. For example, the bureau may transfer funds through grants or cooperative agreements, permit the use of federal property such as office space, and provide technical assistance. To determine potential specific sources of funds for these purposes, consult the bureau's budget office.
3. If a bureau is involved in a partnership with others who "have authority" to take particular actions, can it participate financially with them in those actions even if it have no clear authority to do so by itself? (top)
A bureau may only provide financial contributions to a partnership project when permissible under the bureau's legal authority. If a bureau clearly lacks authority to provide funds in support of a partnership, it may not 'borrow' another agency's authority to do so. When the authority is unclear, the Solicitor's Office can help define its limits.
4. In these days of uncertain budgets, how does a bureau play a consistent role as an effective and dependable partner from year to year? If the bureau has provided funds one year to implement certain kinds of projects, and builds partnerships to make those projects happen, how does it maintain momentum and involvement - even if the funds disappear? (top)
It is important for bureaus and their potential partners to understand the benefits and constraints that each brings to the partnership. The general requirement that federal agencies spend their appropriated funds on a yearly basis is one of those constraints. Bureaus and their partners should recognize and discuss the risks inherent in funding long-term projects, and to structure their relationships accordingly. For example, the partnership activity may be divided into discrete attainable segments that are funded on an annual basis. Long-term projects, such as capital construction, should either be funded with available "no-year" or "multi-year" money, or be organized to have sufficient other sources of funding to ensure that it will be completed.
Bureaus should also recognize that being a dependable partner does not necessarily hinge on its ability to provide funds to partners annually. The bureau should be willing to commit to a partnership those resources that it is confident it will have available, e.g. personnel support, equipment, etc., and, of course, follow through on that commitment. This would encompass, for example, bureaus helping reduce operating costs for partners by allowing them to use government equipment or space, and by providing them with technical assistance and training.
In terms of selecting a partner, the bureau should consider whether the partner is appropriate for the proposed activity, including the length of the proposed relationship. Ideally, a long-term partner will not be completely financially dependent on the government. The government can foster financial independence by supporting partner fundraising activities. For example, bureaus can generally provide information about their programs, resources, and needs at partner fundraising events, and can provide means for making partner fundraising materials available to the public. It should be remembered, however, that bureaus and their employees generally may not fundraise directly. Bureaus should remember as well that partners may help it sustain long-term partnership activities. A partner may pay for part of a given project, known as "cost-sharing." It may also be possible for the partner to donate funds for the bureau's use in support of the partnership, should that be necessary.
5. Can appropriated funds be provided to a partner to purchase an interest in lands for conservation purposes? (top)
In appropriate circumstances, funds may be provided to a partner for acquisition of land or other property interests for conservation purposes. Such funding transfers are made under either a grant or cooperative agreement when the bureau has specific statutory authority to do so and the requisite funds are available. That is, under the cost principles for federal grants and cooperative agreements, the acquisition of real property interests may be an allowable cost. However, a bureau may award the grant or cooperative agreement only after approving a partner's proposed budget and the corresponding proposed scope of work. The bureau may only approve a proposed budget and scope of work that includes property acquisition if there is a legal basis or authority supporting acquisition, funds are available, and the agency determines that the acquisition of property is necessary and appropriate to meet the public purpose articulated in the authorizing legislation.
6. Are there any restrictions on a bureau forming a partnership with an entity that it regulates? Can the agency form partnerships with individual entities in situations where it inspects their operations and audits their financial records? (top)
The presumptive answer is that bureaus should not form partnerships with entities it regulates. This is because bureau employees, and therefore the bureaus they work for, are bound to adhere to the criminal conflict of interest laws and the Standards of Conduct regulations. Bureaus must consider potential issues related to: 1) an appearance of loss of impartiality; 2) inappropriately endorsing an entity that it regulates; and 3) placing employees in harm's way by expecting them to regulate, audit, or inspect the partner entity on the one hand, while receiving money or other things of value to further our mission on the other hand.
To engage in partnerships of this type is also ill-advised because of restrictions on the Department's endorsing one entity over another. Other entities the Department regulates within the same industry may see it partnering with one of their number and might reasonably wonder what preferential treatment the partner might be receiving in exchange for having provided the agency with money or other valuable items.
7. Can a bureau accept donations? If so, what are the prohibited sources for such donations? Can an agency say no to a donation if it comes with problematic conditions? (top)
A bureau must have statutory authority to accept donations. Most of the Department's bureaus have individual gift acceptance authorities, discussed elsewhere in these FAQ's. The Department also has the Take Pride in America authority, which allows it to receive donations under certain circumstances. Donations should only be accepted in accordance with a stated authority allowing donations and internal Department or bureau guidance regarding how such authority is exercised.
A bureau can always refuse a donation for any reason. The bureau may say no to a donation if it comes with problematic conditions, e.g., it requires inappropriate donor recognition or inappropriate donor participation in decision making, or it requires a bureau to perform actions it lacks authority to do. The bureau also must weigh the reasons for accepting the donation against the appearance of the loss of impartiality; inappropriate endorsement of the donor; or general appearances of accepting a donation from an entity with whom the agency does not want to be associated. Additionally, factors such as whether the prospective donor has a reputation for sub-standard performance or for questionable dealings would certainly tilt the scale in favor of declining the donation. If acceptance of a donation would in any way taint the bureau's and its employees' judgment, then the donation should be declined.
Agencies may generally accept gifts of payment for travel expenses, under 31 U.S.C. ' 1353 and 41 C.F.R. Part 304, from a non-Federal source for employees to attend meetings or similar functions, such as to participate as a speaker or panelist, or to receive training. Note, however, that the agency may not accept such a gift if the purpose of the travel is to perform the employee's official duties. Therefore, an agency should not use this authority to accept travel expenses for an employee to perform official duties relating to the partnerships. Employees must get approval for acceptance of payment of travel expenses and document the payment on the DI 2000.
8. Does an Interior bureaus have the authority to expend appropriated funds on lands beyond the boundaries of lands managed by the bureau? (top)
Yes, in certain circumstances. Expending funds on activities and/or improvements on lands beyond the boundaries of land managed by the bureau requires either: 1) specific legislative authority to undertake the expenditure, or 2) the expenditure must be necessary to achieve the legislatively established obligations of the agency. An example of the second category is the expenditure of funds on interpreters who sometimes perform duties outside a park or refuge boundary. The Solicitor's Office can assist in determining whether a proposed expenditure falls within either of these categories.
Generally, appropriated funds may not be used to make permanent capital improvements to property not owned in whole or part by the federal government. Of course, such expenditures are permissible when authorized by Congress. Further, such expenditures may be allowable in the absence of specific congressional authority if the expenditure meets certain criteria noted in opinions of the Comptroller General. A primary criteria is that the capital improvement must be for the principal benefit of the government. Another is that the interests of the Government in the improvement must be protected. The Solicitor's Office and bureau Finance Officers can assist in reviewing the proposed expenditure for capital improvements.
Possible expenditures outside bureau boundaries include a lease of land outside the bureau's boundaries, when authorized. The General Services Administration may also enter into leases on behalf of a bureau.
Finally, in some situations, bureau boundaries may be administratively modified when needed to carry out a proposed action, thereby making expenditure of funds on the proposed action legally possible. The Solicitor's Office can assist in identifying whether and how a bureau can make such boundary modifications.
9. Can bureaus form a group of non-Federal entities to advise it on setting up partnerships or in which activities partnerships can engage in? (top)
Yes, as long as the bureau complies with the Federal Advisory Committee Act (FACA). Basically, a group of non-Federal partners that the bureau either establishes or utilizes may not provide group-based recommendations respecting partnership opportunities unless the FACA's requirements are fulfilled. These requirements include creating a charter for the group and holding public meetings. The Solicitor's Office can assist in evaluating whether a FACA committee is needed and explain how to comply with FACA. Though advisory committees are sometimes needed, they can be difficult and time-consuming to form. Often the same information can be obtained by soliciting individual, as opposed to group, advice through less formal forums, such as roundtable discussion groups. The Solicitor's Office can also provide suggestions on alternatives regarding how a bureau might accomplish its goals without triggering FACA.
Both a grant and a cooperative agreement are ways that the federal government provides assistance, usually funds, to an outside entity to accomplish a public purpose. The difference between a grant and a cooperative agreement is the degree of federal involvement associated with the assistance. A grant does not involve substantial federal involvement after the assistance is provided, while a cooperative agreement does involve substantial federal involvement. The Office of Management and Budget (OMB) explained the meaning of "substantial involvement" in 43 Federal Register 36860 (Aug. 18, 1978). Examples of substantial involvement include: 1) agency and recipient collaboration or joint participation; 2) substantial, direct agency operational involvement or participation during the assisted activity; and 3) highly prescriptive agency requirements prior to award that limit recipient discretion with respect to scope of services offered, organizational structure, staffing, mode of operation, and other management processes, coupled with close agency monitoring or operational involvement during performance.
Federal agency involvement that is not substantial, according to OMB guidance, includes: 1) agency approval of recipient plans prior to award; 2) agency review of performance after completion; 3) unanticipated agency involvement to correct deficiencies in project or financial performance; and 4) general administrative requirements, such as those listed in the OMB Circulars (A-21, A-95, A-102, and A-110).
Guidance on developing grants and cooperative agreements may be obtained from the Department's assistance regulations at 43 CFR Part 12 and the OMB Circulars noted in the preceding paragraph. Department bureaus also have grants and agreements specialists that will be able to help explain the process, and the Solicitor's Office can help as well.