The memorandum from the Department of Veterans Affairs Office of General Counsel addresses the application of 18 U.S.C. § 209, a federal statute that generally prohibits VA employees from receiving compensation for their federal work from non-federal sources. It clarifies updated Department of Justice guidance and focuses on cases where VA research employees seek payment directly from non-federal entities, such as university affiliates or VA-affiliated nonprofits. The memorandum details two key exceptions to this prohibition: the "Without Compensation" (WOC) exception, which allows non-federal payment only if the employee’s sole VA appointment is unpaid (WOC), and the State Treasury exception, which allows payment from a state university or entity, provided it is approved by the Ethics Specialty Team (EST). Notably, these exceptions do not apply in cases involving compensated VA appointments combined with WOC status unless State Treasury criteria are met.
The document also refers to the pending VA Infrastructure Powers Exceptional Research Act of 2021 (VIPER Act), which, if enacted, would provide an additional statutory exemption for VA researchers to receive payment from affiliated nonprofits and universities. Until then, the memorandum instructs that research staff must strictly adhere to the existing exceptions and provides a process for vetting new state entities for the approved payment list. Additionally, the memorandum outlines alternatives, such as facilities compensating employees directly when they receive funds from non-federal sources, which do not violate § 209. The document concludes with resources for further guidance, including a FAQ link and contact information for regional Ethics Specialty Team representatives.
