§ 681.31 "Recent employee"; "prospective employee".

(a) "Recent employee”. Any former NSF employee who left the NSF within the year before the affected proposal or other application is filed with the NSF should be considered a recent NSF employee.

(b) "Prospective employee" threshold. As soon as those recruiting have expressed interest in a particular person in connection with a specific opening and have received some indication of reciprocal interest, that person should be considered a prospective NSF employee-even though no actual offer has been made and even though there is substantial doubt that one would be accepted if it were made. More specifically:

(1) NSF officials who have an opening on the horizon often discuss it with persons outside the NSF. If the discussion is just a general effort to make members of the appropriate community aware of the opening in the hope that applicants will appear, it makes no one a prospective employee. But if the discussion is with a particular individual whose candidacy is sought for a particular position, that individual should be considered a prospective employee if (but only if) the candidate expresses some interest. The expression of interest need not be strong. It could amount to no more than a willingness to "think it over" or come in for a talk. After such an expression of interest NSF officials could be influenced in decisions on proposals or other applications by their hopes of getting the candidate to consider the job or to take it.

(2) When a specific vacancy is imminent, the NSF usually solicits and receives applications. Some applications may come from persons in whom there is little or no interest. Others may come from persons the recruiters have never met. Conflicts are unlikely to arise in such cases unless and until the recruiters become sufficiently interested to initiate some direct contact with the applicant, typically by suggesting an interview. At that point the applicant should be considered a "prospective employee". If no direct contact is ever initiated outside the personnel mechanics, the applicant need not be

considered a prospective NSF employ

ee.

§ 681.32 What the recruiting directorate or office should do when a person becomes a "prospective NSF employee”. (a) Special attention and special handling of proposals or other applications in which a prospective NSF employee has an involvement or interest are not required automatically. They are required under § 681.23(a) only if an official handling the proposal or application actually becomes aware that a person involved or interested is a prospective employee. Whether to inform other officials that a person is a prospective employee is within the discretion of a conflicts official of the recruiting directorate or office.

(b) If those who are recruiting determine that a person has become a prospective employee under these guidelines, they are responsible for bringing that fact and subsequent developments to the attention of a directorate or office conflicts official. This should be an official who is not directly involved in the recruitment and does not immediately supervise the position for which the prospective employee is being considered.

(c) The conflicts official is responsible for deciding whether, when, and to what extent proposals or other applications involving the prospect require special attention and special handling. See § 681.44.

§ 681.33 Informing others about incoming employees; "flagging".

(a) When a "prospective employee” becomes an "incoming employee". Each directorate is responsible for informing the Division of Information Systems by memo whenever a prospective employee listed in the NSF PI/PD (principal investigator/project director) file seems likely in fact to become an NSF employee. The memo should be sent at least as soon as the incoming employee enters into discussions of grade and salary with personnel officials. It might be sent sooner should the responsible conflicts official of the recruiting directorate or office find that appropriate. The memo should identify all active NSF awards and

pending NSF proposals with which the prospective employee has an association. This should be checked with the PI/PD file and with the prospective employee.

(b) Informing other divisions. The recruiting directorate is also responsible for sending copies of its memo to each NSF division or office that is responsible for such an active award or pending proposal.

(c) "Signals off". If the prospect does not become an NSF employee after all, the recruiting directorate is responsible for notifying by memo all those who received its original memo.

(d) "Flagging". The Assistant Director for Administration is responsible for "flagging" the PI/PD file to indicate every person listed there who is a current or recent NSF employee or who has been identified in a memo from the recruiting directorate or office as an incoming NSF employee.

Subpart D-Guidance for Directorate Conflicts Officials

§ 681.40 Summary; responsibilities of conflicts officials.

(a) If your directorate or staff office has designated you as a conflicts official, you have three responsibilities under these regulations:

(1) You determine how to handle a proposal or other application when an official who would normally handle it possesses with respect to it an affiliation or relationship listed in § 681.21. The potential conflicts you should be concerned with in such a case are generally apparent from the nature of the affiliation or relationship.

(2) You determine how to handle a proposal, or other application when a prospective, current, or recent NSF employee or a current member of the National Science Board has an involvement or interest in it. Section 681.43 describes the potential conflicts you should be concerned with in such a

case.

(3) You determine whether, when, and to what extent proposals or other applications involving a prospective NSF employee require special attention and special handling. Section 681.44 offers guidance for such determinations.

(b) Section 681.41 describes the underlying considerations you are called upon to accommodate and balance in making these determinations. Section 681.42 describes the disclosure that is required in all cases that come to you for determination and the forms of special handling you might require in such cases. It also explains what you should do when a particular relationship is considered “automatically disqualifying" or "normally disqualifying".

[47 FR 32135, July 26, 1982, as amended at 48 FR 52732, Nov. 22, 1983]

8 681.41 Making determinations: underlying considerations.

When you are called upon to make any of the determinations described in § 681.40, what considerations should influence you in deciding what to do?

(a) The primary purpose of your involvement is to remove or limit the influence of any ties to an applicant institution, investigator, etc. that you think could affect the decisions of an NSF official. Keep in mind that an official may be influenced by such ties without deliberate bias Do not, however, "strain at gnats”.

(b) A secondary purpose is to preserve the trust of the scientific community, the Congress, and the general public in the integrity, effectiveness, and even-handedness of the NSF and its award-review processes. This requires you to be concerned with appearances as well as actualities.

(c) An important countervailing consideration is to avoid distorting NSF judgments on proposals and other applications by disqualifying those who are most competent to make the judgments. So far as possible, you should ensure that those who handle a proposal or other application are competent in the scientific or technical fields involved and are capable of judging the standing of a proposal in comparison with other proposals in the same field.

(d) Occasionally, action on a proposal or other application raises significant policy questions. As far as possible, you should avoid preventing an official who is responsible for the policy

judgments in question from exercising that responsibility.

(e) Finally, you can and should consider the extra paperwork, effort, and expense to the taxpayer required by any special handling you might require.

Except where an interest, affiliation, or relationship is designated "normally disqualifying" or "automatically disqualifying", finding ways to accommodate and balance these competing considerations is left to your ingenuity and judgment.

§ 681.42 Disclosure, disqualification, and other special handling.

(a) Disclosure. In every case brought to you as a conflicts official, you should prepare a simple memo for the file. The memo need not be in any particular format and may be handwritten. It should identify the potential conflicts problem involved and should explain what special handling, if any, you have required. Even if you require no additional special handling, the memo will ensure that the Foundation is open about the potential conflict and attentive to it. It will allow those reviewing the recommended action at higher levels to consider any effect the potential conflict might have had and alert them to scrutinize the action more closely. It will allow meaningful audit and oversight and so protect those involved, including you. And it will help preserve public trust in the NSF and in NSF decisions.

(b) Disqualification. In some cases disclosure alone will be insufficient to protect against distortion of NSF decisions or undermining of public trust in the NSF and NSF decisions. On conflicts considerations alone, disqualification of the official who possesses the potential conflict is the best solution. But if the official has unique scientific or technical competence, is uniquely qualified to judge the competitive standing of a proposal, or has responsibility for policy judgments raised in the decision-disqualification of that official would have serious disadvantages. Although decisions on the kind and degree of special handling that should be required are often left to your discretion, more inflexible dis

qualification rules do apply in the case of certain interests and affiliations.

(1) If an interest or affiliation is labelled "automatically disqualifying" in § 681.22, you must disqualify any official who possesses such an interest or affiliation with respect to the proposal or application concerned. In most cases, the disqualification is required by criminal law. If you were to allow the official to take any part in the handling of the proposal or application, you would place him or her (and conceivably even yourself) in jeopardy of fine or imprisonment.

(2) If an interest or affiliation is labelled "normally disqualifying" in these regulations, you should normally disqualify any official who possesses such an interest or affiliation with respect to the proposal or application concerned. If unusual circumstances require that such an official be allowed to act on the proposal or application, your memo to the file should carefully explain those circumstances and what other precautions you have taken to minimize the potential for bias. Even then, you should not proceed until you have consulted an ethics counselor and the ethics counselor concurs.

(3) Even if an interest or affiliation is not labled "automatically” or “normally" disqualifying, disqualification may be called for. Your judgment should depend heavily on the extent to which someone else who will be able to substitute effectively for the official might be disqualified.

(c) Other special handling. You are not confined to relying either on disclosure only or on complete disqualification. Other, intermediate solutions can also go a long way toward removing or minimizing any potential for bias. For example:

(1) Sometimes you might allow a case to be handled normally, but provide for extra peer reviews or extra review within the NSF.

(2) Sometimes you might have an official perform some functions but not others. The official might be able to supply a list of potential reviewers, for example, without running into serious conflicts. Or the official might be consulted by a substitute official on the competitive range in the program

where the substitute is competent enough to read reviews and judge the merit of a proposal, but ill-prepared to determine where that places the proposal among those competing for funds within the same program.

(3) In some cases scientists from outside the NSF could be relied on to a greater extent than usual. For example, suppose a substitute NSF official has less than optimal technical competence or less than optimal sense of the competitive range in the affected program. Such a substitute might nonetheless be able to stand in if aided by an outsider who is more familiar with the scientific subfield or the affected program or both. The outsider might be a former NSF official, a panel member, a scientist from a sister agency, or in an unusual case, a special consultant.

(4) In any case involving a current member of the National Science Board, you must always require that any proposed award, additional funding for an award, or continuing grant increment be presented to the Board for its information before any final action is taken.

(d) Consolidated handling of related cases. If you anticipate a number of cases that will involve the same person and the same general circumstances, you may make a single determination and issue a single memo covering all of the cases. For example, you might issue a memo indicating that a rotator will be disqualified from handling any proposal or application from his or her home institution, and saying who will handle any such proposal or application instead. A copy of this memo should be placed in the file for each affected proposal or award.

[47 FR 32135, July 26, 1982, as amended at 48 FR 52732, Nov. 22, 1983]

8681.43 Potential conflicts when an NSF employee has an involvement or interest.

(a) When a prospective, current, or recent NSF employee has an involvement or interest in a pending proposal or other application, you should look for and deal appropriately with the five types of potential conflicts described in the rest of this section.

(b) Recruiter's conflicts. These are potential conflicts that could arise if an NSF official who is recruiting a prospective employee were simultaneously to handle a proposal or other application in which the prospective employee has an interest. You should identify those actively interested in recruiting the prospective employee and look for ways to limit their involvement in the handling of the proposal or other application. In particular:

(1) The person who would be the immediate supervisor of the prospective employee usually will have an especially active interest in successful recruiting. You should treat that interest as "normally disqualifying”.

(2) Those directly involved in discussions with the prospective employee will also have an interest in successful recruiting. You should consider their possible conflicts.

(3) Officials at higher echelons who are not directly involved in the particular recruitment may still have an interest in successful recruiting within their organizations. You should consider their possible conflicts.

(c) Superior's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which one of the official's subordinates has an interest. In particular:

(1) The immediate supervisor of an employee usually will have an especially active interest in having the employee happy and in maintaining good relations with the employee. You should treat the immediate supervisor's interest as "normally disqualifying" if the interested employee is a prospective or current employee. You need not do so, however, in the case of a recent employee, for the supervisor's interest diminishes when the employment relationship ends.

(2) Persons at higher echelons might also be influenced by an interest in having the employee happy. You should consider whether their involvement in handling the proposal or application can or should be limited.

(d) Subordinate's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which the official's immediate superior or

someone at a higher echelon in the official's "chain of command" has an interest. In particular:

(1) An NSF official would be placed in a particularly difficult position if asked to act on a proposal or other application in which the official's boss has an interest. Thus you should treat the immediate subordinate of a prospective or current employee as having a "normally disqualifying" relationship and only under the most special circumstances allow him or her to have any part in handling the proposal or application. You need not necessarily disqualify one who was the immediate subordinate of a recent employee, however, since the potential conflict would be substantially diminished once the supervisor-subordinate relationship ends.

(2) You may sometimes have to allow less immediate subordinates at lower echelons to play a role if there is not to be serious loss of technical competence and awareness of competitive range in the program affected. But you should take particular care in involving such lower-echelon subordinates. Disqualification would be preferable if it is workable. One possibility if disqualification is not workable may be to allow the official handling the proposal to stay anonymous, dealing with investigators and the grantee institution through another NSF official-perhaps a senior official or a grants officer. Other types of special handling that might be useful in such a case are described in § 681.42(c).

(e) Professional associate's conflicts. These are potential conflicts that could arise if an NSF official were to handle a proposal or other application in which a close professional associate at the NSF has an interest. In particular:

(1) You may have to consider disqualification of a very close associate of the interested employee, particularly where professional association may have led to personal friendship.

(2) When the degree of professional association and personal acquaintance involved is only what normally arises from service within the same organizational unit, little more than disclosure should normally be required.

(f) Reviewer's conflicts. These are potential conflicts that could arise when reviewers are asked to pass upon a proposal involving the interests of a scientist who will later be passing upon their proposals as an NSF program official. To avoid them:

(1) All files, active and inactive, that involve research or a research group with which the employee was or is associated should be sequestered to protect the anonymity of reviewers.

(2) To the extent possible you may want to provide more protection by selecting as peer reviewers persons who are not supported by any program for which the interested official is responsible.

(a) You may be called upon to determine whether, when, and to what extent proposals or other applications that involve a prospective employee require special attention and special handling. You should be consulted as soon as a person becomes a prospective employee. The procedure for this is described in § 681.32.

(b) Nature of possible conflicts. Actual or potential conflicts of interests can arise in such a situation if any of those who would handle a proposal or other application either is trying to recruit the prospective employee or would be a subordinate, supervisor, or close colleague of the potential employee.

(c) When you should take action. If there is a significant possibility that such actual or potential conflicts could improperly influence decisions on proposals or other applications or awards, you must institute special handling as described in §§ 681.42 and 681.43. In the case of proposals and awards outside your own directorate or office, you should do that by notifying officials of the other directorate. A conflicts official of that directorate or office will determine what special handling may be necessary there.

(d) Avoid premature action. However, you should avoid unnecessarily early disclosure that a person is under consideration for an NSF position, for two reasons: