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Subsection (c) provides that section 209 does not apply to a special Government employee or to anyone serving the Government without compensation, whether or not he is & special Government employee.
Subsection (d) provides that the section does not prohibit the payment or acceptance of contributions, awards or other expenses under the terms of the Government Employees Training Act (72 Stat. 327, 5 U.S.C. 2301-2319). STATUTORY EXEMPTIONS FROM CONFLICT OF
INTEREST LAWS Congress has in the past enacted statutes exempting persons in certain positionsusually advisory in nature—from the provisions of some or all of the former conflict of interest laws. Section 2 of the Act grants corresponding exemptions from the new laws with respect to legislative and judicial positions carrying such past exemptions. However, section 2 excludes positions in the executive branch, an independent agency and the District of Columbia from this grant. As & consequence, all statutory exemptions for persons serving in these sectors of the Government ended on January 21, 1963.
responsibility. Although included in a section dealing largely with postemployment activities, this provision is not directed to the postemployment situation.
The paragraph at the end of section 207 also pertains to individuals in a partnership but sets forth no prohibition. This paragraph, which is of importance mainly to lawyers in private practice, rules out the possibility that an individual will be deemed subject to section 203, 205, 207(a) or 207(b) solely because he has a partner who serves or has served in the Government either as a regular or a special Government employee.
New 18 U.S.C. 208. This section forbids certain actions by an officer or employee of the Government in his role as a servant or representative of the Government. Its thrust is therefore to be distinguished from that of sections 203 and 205 which forbid certain actions in his capacity as a repre. sentative of persons outside the Government.
Subsection (a) in substance requires an officer or employee of the executive branch, an independent agency or the District of Columbia, including a special Government employee, to refrain from participating as such in any matter in which, to his knowledge, he, his spouse, minor child or partner has & financial interest. He must also remove himself from a matter in which a business or nonprofit organization with which he is connected or is seeking employment has a financial interest.
Subsection (b) permits the agency of an officer or employee to grant him an ad hoc exemption from subsection (a) if the outside financial interest in a matter is deemed not substantial enough to have an effect on the integrity of his services. Financial in. terests of this kind may also be made nondisqualifying by a general regulation published in the FEDERAL REGISTER.
Section 208 is similar in purpose to the former 18 U.S.C. 434 but prohibits a greater variety of conduct than the "transaction of business with • * • (a) business entity" to which the prohibition of section 434 was limited. In addition, the provision in section 208 including the interests of a spouse and others is new, as is the provision authorizing exemptions for insignificant interests.
New 18 U.S.C. 209. Subsection (a) prevents an officer or employee of the executive branch, an independent agency or the District of Columbia from receiving, and anyone from paying him, any salary or supplementation of salary from a private source as compensation for his services to the Government. This provision uses much of the language of the former 18 U.S.C. 1914 and does not vary from that statute in substance. The remainder of section 209 is new.
Subsection (b) specifically authorizes an oficer or employee covered by subsection (a) to continue his participation in a bona fide pension plan or other employee welfare or benefit plan maintained by a former employer.
RETIRED OFFICERS OF THE ARMED FORCES
Public Law 87-849 enacted a new 18 U.S.C. 206 which provides in general that the new sections 203 and 205. replacing 18 U.S.C. 281 and 283, do not apply to retired officers of the armed forces and other uniformed seryices. However, 18 U.S.C. 281 and 283 contain special restrictions applicable to retired offcers of the armed forces which are left in force by the partial repealer of those statutes set forth in section 2 of the Act.
The former 18 U.S.C. 284, which contained a 2-year disqualification against postemployment activities in connection with claims against the United States, applied by its terms to persons who had served as commissioned officers and whose active service had ceased either by reason of retirement or complete separation. Its replacement, the broader 18 U.S.C. 207, also applies to persons in those circumstances. Section 207, therefore applies to retired officers of the armed forces and overlaps the continuing provisions of 18 U.S.C. 281 and 283 applicable to such officers although to a different extent than did 18 U.S.C. 284. VOIDING TRANSACTIONS IN VIOLATION OF THE
CONFLICT OF INTERESTS OR BRIBERY LAWS
Public Law 87-849 enacted a new section, 18 U.S.C. 218, which did not supplant a preexisting section of the criminal code. However, it was modeled on the last sentence of the former 18 U.S.C. 216 authorizing the President to declare a Government contract void which was entered into in violation of that section. It will be recalled that section 216 was one of the two statutes repealed without replacement.
The new 18 U.S.C. 218 grants the President and under presidential regulations, an agency head the power to void and rescind any transaction or matter in relation to which there has been a "final conviction" for a violation of the conflict of interest or bribery laws. The section also authorizes the Government's recovery, in addition to any penalty prescribed by law or in a contract, of the amount expended or thing transferred on behalf of the Government.
Section 218 specifically provides that the powers its grants are “in addition to any other remedies provided by law." Accordingly, it would not seem to override the de. cision in United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961), a case in which there was no "final conviction."
BIBLIOGRAPHY Set forth below are the citations to the legislative history of Public Law 87-849 and a list of recent material which is pertinent to a study of the Act. The listed 1960 report of the Association of the Bar of the City of New York is particularly valuable. For a comprehensive bibliography of earlier material relating to the conflict of interest laws, see 13 Record of the Association of the Bar of the City of New York 323 (May 1958). LEGISLATIVE HISTORY OF PUBLIC LAW 87–849
(H.R. 8140, 87TH CONG.) 1. Hearings of June 1 and 2, 1961, before the Antitrust Subcommittee (Subcommittee No. 5) of the House Judiciary Committee, 87th Cong., 1st sess., ser. 3, on Federal Conflict of Interest Legislation.
2. H. Rept. 748, 87th Cong., 1st sess. 3. 107 Cong. Rec. 14774.
4. Hearing of June 21, 1962, before the Sen. ate Judiciary Committee, 87th Cong., 2d sess., on Conflicts of Interest.
5. S. Rept. 2213, 87th Cong., 2d sess.
6. 108 Cong. Rec. 20805 and 21130 (daily ed., October 3 and 4, 1962).
OTHER MATERIAL 1. President's special message to Congress, April 27, 1961, and attached draft bill, 107 Cong. Rec. 6835.
2. President's Memorandum of February 9, 1962, to the heads of executive departments and agencies entitled Preventing Conflicts of Interest on the Part of Advisers and Consultants to the Government, 27 F.R. 1341.
3. 42 Op. A.G. NO. 6, January 31, 1962.
4. Memorandum of December 10, 1956, for the Attorney General from the Office of Legal Counsel re conflict of interest statutes, Hearings before the Antitrust Subcommittee (Subcommittee No. 5) of House Judiciary Committee, 86th Cong., 2d sess., ser. 17, pt. 2, p. 619.
5. Staff report of Antitrust Subcommittee (Subcommittee No. 5) of House Judiciary Committee, 85th Cong., 2d sess., Federal Conflict of Interest Legislation (Comm. Print 1958).
6. Report of the Association of the Bar of the City of New York, Conflict of Interest and Federal Service (Harvard Univ. Press 1960). [28 F.R. 985, Feb. 1, 1963]
CHAPTER 1-SUBVERSIVE ACTIVITIES CONTROL
Employee responsibilities and conduct.
PART 200EMPLOYEE RESPONSI
BILITIES AND CONDUCT Sec. 200.735–101 Adoption of regulations. 200.735–102 Review of statements of em
ployment and financial in
terests. 200.736–103 Disciplinary and other remedial
action, 200.735–104 Gifts, entertainment, and fa
vors. 200.735–105 Miscellaneous statutory provi
sions. 200.735–106 Specific provisions of agency
regulations governing special
Government employees. 200.735–107 Employee's complaint on filing
requirement. 200.735–108 Supplementary statements.
AUTHORITY: The provisions of this Part 200 issued under E.O. 11222; 3 CFR, 19641965 Comp.; 5 CFR 735.101 et seq.
SOURCE: The provisions of this Part 200 appear at 32 F.R. 20809, Dec, 27, 1967, unless otherwise noted. $ 200.735–101 Adoption of regulations.
Pursuant to 5 CFR 735.104(f), the Subversive Activities Control Board (referred to hereinafter as the board or agency or agency head) hereby adopts the following sections of Part 735 of Title 5, Code of Federal Regulations: 735.101735.102 (a)-(f), 735.201a (a)-(f), 735.202 (a) (1)-(3), (d), (e), (f), 735.203 (a) (1)-(2), (b), (c), (e) (2)-(3), 735.204 (a) (1)-(2), (b), 735.205-735.207, 735.208 (a)-(b), 735.209, 735.302, 735.303 (a), 735.304, 735.305 (a), 735.401, 735.403
(a), 735.404 (b), 735.405 (a)-(b), 735.406– 735.411, 735.412 (b), (d). These adopted sections are in addition to those modified and supplemented as set forth in this part. (32 F.R. 20809, Dec. 27, 1967, as amended at 33 F.R. 9256, June 22, 1968) $ 200.735–102 Review of statements of
employment and financial interests. Each statement of employment and financial interests required to be submitted hereunder shall be submitted to the Office of the General Counsel and shall be reviewed by the General Counsel. When this review indicates a conflict between the interests of an employee or special Government employee of the board and the performance of his services for the Government, the General Counsel shall have the indicated conflict brought to the attention of the employee or special Government employee, grant the employee or special Government employee an opportunity to explain the indicated conflict, and attempt to resolve the indicated conflict. If the indicated conflict cannot be resolved, the General Counsel shall forward a written report on the indicated conflict to the board. & $ 200.735–103 Disciplinary and other
remedial action. (a) An employee or special Government employee of the board who violates any of the sections in this part as adopted under $ 200.735–101 may be disciplined. The disciplinary action may be in addition to any penalty prescribed by law for the violation. In addition to or in lieu of disciplinary action, remedial action to end conflicts or appearances of conflicts of interests may include but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government eniployee of his conflicting interests; or
(3) Disqualification for a particular assignment.
(b) Remedial action, whether disciplinary or otherwise, shall be in accordance with applicable laws, Executive orders, and regulations. $ 200.735-104 Gifts, entertainment, and
favors. The board authorizes the exceptions to 5 CFR 735.202(a) set forth in 5 CFR 735.202(b) (1)-(4). & 200.735–105 Miscellaneous statutory
provisions. Each employee shall acquaint himself with each statute that relates to his ethical and other conduct as an employee of the board and of the Government. The attention of each employee is directed to the regulations issued under this part and to the statutory provisions referred to in 5 CFR 735.210. $ 200.735–106 Specific provisions of
agency regulations governing special
Government employees. (a) Special Government employees of the board shall adhere to the standards of conduct applicable to employees as set forth in this part and adopted under $ 200.735–101, except 5 CFR 735.203(b);
(b) Special Government employees of the board may teach, lecture, or write in a manner not inconsistent with 5 CFR 735.203(c);
(c) Pursuant to 5 CFR 735.305(b), the board authorizes the same exceptions concerning gifts, entertainment, and favors for special Government employees as are set forth for employees by 5 CFR 735.202(b) (1)-(4);
(d) Each special Government employee shall acquaint himself with each statute that relates to his ethical and other conduct as a special Government employee of the board and of the Government. The attention of each special Government employee is directed to regula
tions issued under this part and to the applicable statutory provisions referred to in 5 CFR 735.210. 32 $ 200.735–107 Employee's complaint
on filing requirement. Any employee who compains that his position has been improperly included under the adopted provisions of 5 CFR 735.403(a) as one requiring the submission of a statement of employment and financial interests shall have the opportunity to have his complaint reviewed through the board's internal grievance procedure. $ 200.735–108 Supplementary state
ments. Changes in, or additions to, the information contained in an employee's statement of employment and financial interests shall be reported in a supplementary statement as of June 30 each year. If no changes or additions occur, a nega. tive report is required. Notwithstanding the filing of the annual report required by this section, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result, in a violation of the conflict-of-interest provisions of section 208 of Title 18, United States Code, or Subpart B of Part 735 of Title 5, Code of Federal Regulations, as adopted herein.
PART 201—RULES OF PROCEDURE Sec. 201.1 Definitions. 201.2 Form of papers. 201.3 Computation of time. 201.4 Service of papers. 201.5 Appearance and practice before the
Board. 201.6 Petitions. 201.7 Answers. 201.8 Amendment of pleadings. 201.9 Notice of hearing. 201.10 Motions. 201.11 Continuances and extensions of time. 201.12 Date for hearing. 201.13 Record. 201.14 Hearing examiners. 201.15 Contumacious conduct. 201.16 Subpenas. 201.17 Witnesses. 201.18 Evidence. 201.19 Depositions. 201.20 Admissions of fact and genuineness
of documents. 201.21 Briefs.
AUTHORITY: The provisions of this part 201 issued under secs. 12, 13, 14, 64 Stat. 977, as amended, 998, 1001, as amended; 50 U.S.C. 791, 792, 793.
SOURCE: The provisions of this part 201 appear at 15 F.R. 7920, Nov. 21, 1950, unless otherwise noted. 8 201.1 Definitions.
The terms used under this part shall have the same meaning as is employed in the Subversive Activities Control Act of 1950. $201.2 Form of papers.
All petitions, answers, briefs, and other papers filed with the Board shall be either printed, or on legal cap and an original and six copies in legible, typewritten form, on one side of the page only, shall be filed with the Executive Secretary of the Board. § 201.3 Computation of time.
In computing any period of time under this part, the day on which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the time of the next day which is neither a Saturday, Sunday, or legal holiday. A one-half holiday shall be considered as other days and not as a holiday. When the period of time is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. Whenever a party has the right or is requested to do some act or take some proceeding within a prescribed period after a service of a notice or a paper upon him and if the service and notice is served by mail, three days shall be added to the prescribed period. $201.4 Service of papers.
All papers, petitions, answers, and other papers other than subpenas may be served personally or by registered mail or by leaving a copy thereof at the principal office or place of business of the person required to be served. The verified return by the individual serving the same, setting forth the manner of such seryice, and the return post-office receipt, when registered and mailed, shall be
proof of service. Proof of service shall be made at the time of filing of papers with the Board, and in any event within twenty-four (24) hours after the return of the post-office receipt or other evidence for such proof of service comes into the possession of the party making the service. 201.5 Appearance and practice before
the Board. (a) Any organization which is a party to any proceeding before the Board may appear by an official or by or with counsel, and any individual who is a party to any proceeding may appear in person or by or with counsel.
(b) Any person who is a member in good standing of the bar of the Supreme Court of the United States or of the highest court of any State, territory, or of the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law, may represent others before the Board.
(c) When a person acting in a representative capacity appears in person or signs a paper in practice before this Board, his personal appearance or signature shall constitute a representation to the Board that under the provisions of this part and the law he is authorized and qualified to represent the particular party in whose behalf he acts. Further proof of a person's authority to act in a representative capacity may be required.
(d) Any attorney, practicing before the Board who, in the judgment of the Board does not possess the requisite qualifications to represent others, or who is lacking in character, integrity, or proper professional conduct, may be suspended from practicing before the Board.
(e) No former Board member, officer, examiner, attorney, clerk, or other former employee of this Board shall appear as attorney or counsel for or represent any party in any hearing, the files of which came to the personal attention of such former Board member, officer, examiner, attorney, clerk, or other former employee during the term of his service or employment with the Board. [23 F.R. 267, Jan. 15, 1958] § 201.6 Petitions.
(a) Proceedings before this Board may be initiated by the filing of a petition in the manner and form as provided in the