Monday, February 22, 2021

I asked before I wrote you. No good news, but no bad news either. Gretchen reviewed the Dan David package and has some follow up questions about the events surrounding the prize, i.e., award ceremony and symposia. If they are the same as in past years (likely yes except this year’s events will be virtual), then approval should be forthcoming. From: Tabak, Lawrence (NIH/OD) [E] < @nih.gov> Sent: Monday, February 22, 2021 3:57 PM To: Jaffe, Holli Beckerman (NIH/OD) [E] < @od.nih.gov> Cc: Schwetz, Tara (NIH/OD) [E] < @nih.gov> Subject: Re: Request for concurrence -Gustav O. Lienhard Award -A. Fauci Yes please. Have we received any good news to temper this with?

Gretchen shared that OGE disagreed with our argument, and upheld OGC’s determination that Tony cannot receive the cash prize associated with NAM award. Do you want me to draft an email to Tony for you? From: Weaver, Gretchen (NIH/OD) [E] < @od.nih.gov> Sent: Monday, February 22, 2021 3:27 PM To: Jaffe, Holli Beckerman (NIH/OD) [E] < @od.nih.gov> Subject: FW: Request for concurrence -Gustav O. Lienhard Award -A. Fauci My apologies; I thought you were copied on Randy’s note to Larry. Please see below. I am forwarding the string that went. Let me know if you have any questions. Thanks, Gretchen Gretchen H. Weaver, J.D. Supervisory/Senior NIH Ethics Counsel DHHS/OGC/Ethics Division phone: fax: NOTICE: THIS E-MAIL MESSAGE FROM THE OFFICE OF THE GENERAL COUNSEL (OGC), ETHICS DIVISION IS INTENDED FOR THE EXCLUSIVE USE OF THE RECIPIENT(S) NAMES ABOVE AND MAY CONTAIN PROTECTED, PRIVILEGED, OR CONFIDENTIAL INFORMATION THAT SHOULD NOT BE TRANSMITTED TO UNAUTHORIZED ADDRESSEES. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY DISSEMINATION, DISTRIBUTION, OR COPYING IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AT THE ABOVE ADDRESS. EMPLOYEE RECIPIENTS ARE COUNSELED THAT DISCIPLINARY ACTION FOR VIOLATING FEDERAL ETHICS REGULATIONS MAY NOT BE TAKEN AGAINST ANY EMPLOYEE WHO HAS ENGAGED IN CONDUCT IN GOOD FAITH RELIANCE UPON THE PRIOR ADVICE OF ANY AGENCY ETHICS OFFICIAL, PROVIDED THAT THE EMPLOYEE HAS MADE FULL DISCLOSURE OF ALL RELEVANT CIRCUMSTANCES. IF EMPLOYEE CONDUCT IS POTENTIALLY SUBJECT TO CRIMINAL SANCTIONS UNDER CONFLICT OF INTEREST AND RELATED STATUTES, RELIANCE OF THE ADVICE OF AN AGENCY ETHICS OFFICIAL IN INTERPRETING THE SCOPE OF SUCH STATUTES IS A FACTOR THAT MAY BE TAKEN INTO ACCOUNT BY THE DEPARTMENT OF JUSTICE IN EXERCISING PROSECUTORIAL DISCRETION. EMPLOYEES ARE CAUTIONED THAT DISCLOSURES TO AN OGC ATTORNEY ARE NOT PROTTECTED WITHIN THE DEPARTMENT BY ATTORNEY-CLIENT PRIVILEGE. ALL EMPLOYEES, INCLUDING AGENCY ATTORNEYS, ARE REQUIRED TO REPORT CRIMINAL VIOLATIONS TO THE OFFICE OF THE INSPECTOR GENERAL. From: Hall, Randall (HHS/OGC) < @hhs.gov> Sent: Thursday, February 18, 2021 4:47 PM To: Tabak, Lawrence (NIH/OD) [E] < @nih.gov> Cc: Weaver, Gretchen (NIH/OD) [E] < @od.nih.gov> Subject: RE: Request for concurrence -Gustav O. Lienhard Award -A. Fauci Dr. Tabak: Good afternoon. This is to let you know that OGE has responded to our request to consider whether the gift rule exception for awards applies in the case of the Lienhard Award the NAM presented to Dr. Fauci. Unfortunately, OGE has concluded that the NASEM/NAM is/are a “person” under the government-wide rules restricting gifts from outside sources and that they are a person that can be “substantially affected by the performance or non-performance” of Dr. Fauci’s duties. As a result, we are unable to change our prior determination that he cannot accept the $40,000 cash gift associated with the Lienhard Award. Please let us know if you have any questions. Randy Randall J. Hall Acting Associate General Counsel for Ethics Alternate Designated Agency Ethics Official Ethics Division Department of Health and Human Services NOTICE: THIS E-MAIL MESSAGE FROM THE OFFICE OF THE GENERAL COUNSEL (OGC), ETHICS DIVISION IS INTENDED FOR THE EXCLUSIVE USE OF THE RECIPIENT(S) NAMES ABOVE AND MAY CONTAIN PROTECTED, PRIVILEGED, OR CONFIDENTIAL INFORMATION THAT SHOULD NOT BE TRANSMITTED TO UNAUTHORIZED ADDRESSEES. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY DISSEMINATION, DISTRIBUTION, OR COPYING IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AT THE ABOVE ADDRESS. EMPLOYEE RECIPIENTS ARE COUNSELED THAT DISCIPLINARY ACTION FOR VIOLATING FEDERAL ETHICS REGULATIONS MAY NOT BE TAKEN AGAINST ANY EMPLOYEE WHO HAS ENGAGED IN CONDUCT IN GOOD FAITH RELIANCE UPON THE PRIOR ADVICE OF ANY AGENCY ETHICS OFFICIAL, PROVIDED THAT THE EMPLOYEE HAS MADE FULL DISCLOSURE OF ALL RELEVANT CIRCUMSTANCES. IF EMPLOYEE CONDUCT IS POTENTIALLY SUBJECT TO CRIMINAL SANCTIONS UNDER CONFLICT OF INTEREST AND RELATED STATUTES, RELIANCE OF THE ADVICE OF AN AGENCY ETHICS OFFICIAL IN INTERPRETING THE SCOPE OF SUCH STATUTES IS A FACTOR THAT MAY BE TAKEN INTO ACCOUNT BY THE DEPARTMENT OF JUSTICE IN EXERCISING PROSECUTORIAL DISCRETION. EMPLOYEES ARE CAUTIONED THAT DISCLOSURES TO AN OGC ATTORNEY ARE NOT PROTTECTED WITHIN THE DEPARTMENT BY ATTORNEY-CLIENT PRIVILEGE. ALL EMPLOYEES, INCLUDING AGENCY ATTORNEYS, ARE REQUIRED TO REPORT CRIMINAL VIOLATIONS TO THE OFFICE OF THE INSPECTOR GENERAL. From: Weaver, Gretchen (NIH/OD) [E] Sent: Tuesday, February 16, 2021 10:46 AM To: Tabak, Lawrence (NIH/OD) [E] < @nih.gov> Cc: Jaffe, Holli Beckerman (NIH/OD) [E] < @OD.NIH.GOV>; Hall, Randall (HHS/OGC) ( @hhs.gov) < @hhs.gov> Subject: RE: Request for concurrence -Gustav O. Lienhard Award -A. Fauci Dr. Tabak: Good morning. As a quick update on the status of this item, Randy and I talked and we have forwarded your note to OGE with a request that they consider the questions presented. We will keep you apprised of what we hear. That said, we Released have no idea when to expect a response given thatby OGEChairman Rand is heavily involved Paul in working to bring the Biden team members on board across the entire Executive Branch. We will, however, be checking in. I am now turning to focus on the Dan David Prize. Best, Gretchen Gretchen H. Weaver, J.D. Supervisory/Senior NIH Ethics Counsel DHHS/OGC/Ethics Division phone: fax: NOTICE: THIS E-MAIL MESSAGE FROM THE OFFICE OF THE GENERAL COUNSEL (OGC), ETHICS DIVISION IS INTENDED FOR THE EXCLUSIVE USE OF THE RECIPIENT(S) NAMES ABOVE AND MAY CONTAIN PROTECTED, PRIVILEGED, OR CONFIDENTIAL INFORMATION THAT SHOULD NOT BE TRANSMITTED TO UNAUTHORIZED ADDRESSEES. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY DISSEMINATION, DISTRIBUTION, OR COPYING IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AT THE ABOVE ADDRESS. EMPLOYEE RECIPIENTS ARE COUNSELED THAT DISCIPLINARY ACTION FOR VIOLATING FEDERAL ETHICS REGULATIONS MAY NOT BE TAKEN AGAINST ANY EMPLOYEE WHO HAS ENGAGED IN CONDUCT IN GOOD FAITH RELIANCE UPON THE PRIOR ADVICE OF ANY AGENCY ETHICS OFFICIAL, PROVIDED THAT THE EMPLOYEE HAS MADE FULL DISCLOSURE OF ALL RELEVANT CIRCUMSTANCES. IF EMPLOYEE CONDUCT IS POTENTIALLY SUBJECT TO CRIMINAL SANCTIONS UNDER CONFLICT OF INTEREST AND RELATED STATUTES, RELIANCE OF THE ADVICE OF AN AGENCY ETHICS OFFICIAL IN INTERPRETING THE SCOPE OF SUCH STATUTES IS A FACTOR THAT MAY BE TAKEN INTO ACCOUNT BY THE DEPARTMENT OF JUSTICE IN EXERCISING PROSECUTORIAL DISCRETION. EMPLOYEES ARE CAUTIONED THAT DISCLOSURES TO AN OGC ATTORNEY ARE NOT PROTTECTED WITHIN THE DEPARTMENT BY ATTORNEY-CLIENT PRIVILEGE. ALL EMPLOYEES, INCLUDING AGENCY ATTORNEYS, ARE REQUIRED TO REPORT CRIMINAL VIOLATIONS TO THE OFFICE OF THE INSPECTOR GENERAL. From: Tabak, Lawrence (NIH/OD) [E] < @nih.gov> Sent: Friday, February 5, 2021 5:51 AM To: Hall, Randall (HHS/OGC) < @HHS.GOV> Cc: Weaver, Gretchen (NIH/OD) [E] < @od.nih.gov>; Jaffe, Holli Beckerman (NIH/OD) [E] < @od.nih.gov> Subject: Request for concurrence -Gustav O. Lienhard Award -A. Fauci Mr. Hall, I write to request your concurrence that the exception to the gift prohibition at section 2635.204(d) does not prohibit Dr. Anthony Fauci from accepting the cash prize associated with the National Academy of Medicine’s (NAM) 2020 Gustav O. Lienhard Award. Specifically, I ask you to find that: 1) the National Academies of Sciences (NAS), the umbrella organization under which NAM was established, is not a “person” under the regulations, and similarly, neither is NAM; or 2) if NAS is a “person,” NAM and NAS are different “persons” because of NAM’s independence from NAS; and/or 3) NAS is not a “person who can be substantially affected by the performance or nonperformance of [Dr. Fauci’s NIH] duties.” If you do not concur, I ask that you forward this discussion to the Office of Government Ethics for their consideration and determination of the applicability of the gift rule to the NAM Lienhard Award. As you likely know, Dr. Fauci is the Director of the National Institute of Allergy and Infectious Diseases (NIAID). He was awarded the Lienhard award from NAM on October 19, 2020. The Lienhard award – a medal and $40,000 – recognizes individuals for outstanding achievement in improving health care services in the United States. NIAID currently funds two Congressionally-mandated studies as well as six other projects including an Action Collaborative, a Board, two Forums and a Roundtable. NIAID contributes to the latter projects typically as one of several NIH Institutes and Centers. It is our understanding that due to a restructuring of NAS, all the business interactions between the Academies and Federal agencies go through NAS. Thus, NIAID has no current financial, contractual, or similar dealings with NAM. In order for Dr. Fauci to accept the cash prize, we reviewed the exception to the gift rules for meritorious public service or achievement at section 2635.204(d) (emphasis added): (1) An employee may accept a bona fide award for meritorious public service or achievement and any item incident to the award, provided that: (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; The definition of “person” is found at section 2635.102(k) and is: (k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity. The “National Academy of Sciences (in this chapter, the “corporation”) is a federally chartered corporation.” 36 USC § 150301. Pursuant to its Mission statement, NAS “is a private, non-profit society [and is] charged with providing independent, objective advice to the nation on matters related to science and technology.” The Act to Incorporate the National Academy of Sciences (aka the Academy Charter) states “the Academy shall, whenever called upon by any department of the Government, investigate, examine, experiment, and report upon any subject of science or art . . . .” Academy Charter at §3. While a corporation is a “person” under section 2635.102(k), I argue that the type of corporation that NAS is – a federally chartered corporation, with its exceptional mission to advise the Federal Government – is not the type of corporation that OGE intended to include in the definition. First, OGE could have, but did not include in the definition of “person” any discussion of federally chartered corporations, perhaps because of their uniqueness. And it’s this uniqueness which makes the application of section 2635.204(d) unnecessary. NIAID works with NAS because it is directed to do so by Congress and because NAS offers NIAID an expertise that cannot be found elsewhere. NAM did not “return the favor” to NIAID when it selected Dr. Fauci as its 2021 Lienhard awardee. Its relationship with NIAID is rooted in legislation and will continue regardless of an unrelated award to NIAID’s Director. Last, OGE stated that “[‘person’] does not include any agency or other entity of the Federal Government . . . .” I concede that NAS is not a part of the Federal Government. However, in 1997, Congress amended the Federal Advisory Committee Act (FACA) to include the National Academy of Sciences under some of FACA’s provisions. See Congressional Research Service report, Congressionally Chartered Nonprofit Organizations ("Title 36 Corporations"): What They Are and How Congress Treats Them (July 14, 2008). There, CSR noted that the FACA amendment was: [T]he first instance in which Congress has made [federally chartered corporations] subject to the provisions of a general management law, and while the action may be supportable on public policy grounds, it does, to the extent of the applicable provisions, diminish the private character of the affected organizations. As such, it constitutes a precedent with implications. CSR Report at 7. FACA’s partial application to NAS further supports viewing NAS as a different kind of corporate entity that is outside of the regulatory definition of “person.” Therefore, if NAS is not a “person,” NAS’ non-person status extends to NAM, an entity established under NAS’ charter. Consequently, the pending NIAID-NAS matters do not make a gift from NAM a prohibited gift for Dr. Fauci under the applicable regulations. In the alternative, if you find NAS to be a “person” under 2635.102(k), then you should not find it to be the same “person” as NAM. Even though NAM was established in 1970 under the charter of the National Academy of Sciences, the definition of “person” supports a finding that NAM is not a subsidiary of corporate parent NAS. The regulation explains that “for purposes of [Part 2635], a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities.” NAM does not issue voting securities, so NAS cannot control such securities; accordingly, NAM is not a subsidiary of NAS, but rather an independent entity. Furthermore, pursuant to NAM’s Articles of Organization (AoO), adopted May 19, 2015 (copy attached), “the governance of [NAM] shall reside in the President and Council to be elected from among the membership,” AoO Art. III, § 1, “NAM shall be solely responsible for the content of reports on projects that it undertakes, and such reports may be issued in its own name.” AoO Art. VI, § 2. NAM’s governing documents repeatedly show NAM’s independence from NAS. Last, NAM’s AoO gives it its own authority to Released establish awards. AoO Art. V. Thus, by Chairman the Lienhard award Rand and its associated Paul cash prize are from NAM and NIAID’s commissioned studies and other projects from NAS do not make the award an impermissible gift under section 2635.204(d). Finally, if NAS and NAM are a “person,” then they are not persons who are substantially affected by the performance or nonperformance of Dr. Fauci’s duties because both “compensation” in NAS’ charter as well as “substantially” in section 2635.204(d) must have meaning. NAS’ charter states: “[NAS] shall receive no compensation whatever for any services to the Government of the United States.” This is consistent with NAS’ status as a not-for-profit entity. NAS’ charter was codified in Title 36 at Sections 150301-150304, and Section 150303 reiterates that NAS “may not receive compensation for services to the Government, but the actual expense of the investigation, examination, experimentation, and report shall be paid by the Government from an appropriation for that purpose.” If the statutory language means that NAS cannot receive any compensation for its investigations, examinations, experiments or reports commissioned by Federal agencies, but rather only reimbursement of expenses, then NAS is not substantially affected by NIAID’s projects. Furthermore, two of NIAID’s projects with NAS were mandated by Congress. One project was started by another NIH Institute which NIAID later joined. Other collaborations were formed at the agency or department level, and not from the direct action of NIAID. Most importantly, every NAS project in which NIAID is involved is a large-scale project with numerous members. Being one of many means that NIAID’s proportional contribution does not affect NAS substantially. For all of these reasons, Dr. Fauci would not be accepting an award from a person (NAS and/or NAM) who has interest that may be substantially affected by the performance or nonperformance of his official duties. For the reasons provided above, a finding should be made that Dr. Fauci may accept the Lienhard Award and the cash prize associated with it from NAM. If you have any questions, please contact Holli Beckerman Jaffe, cc’d above. Thank you for your consideration. With best wishes, Larry Lawrence A. Tabak, DDS, PhD Principal Deputy Director, NIH Deputy Ethics Counselor, NIH