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(d) General conduct prejudicial to the Government. Employees must not engage in criminal, infamous, dishonest, immoral or disgraceful conduct, or any other conduct prejudicial to the Government.

(e) Statutory prohibitions relating to gifts and decorations.

(1) Employees must not solicit contributions from other employees for gifts to official superiors or accept gifts from employees receiving less salary than themselves. 5 U.S.C. 7351. However, small voluntary gifts on special occasions such as marriage, illness, death or retirement are permitted.

(2) Employees may not accept gifts, presents or decorations from foreign governments unless authorized by 5 U.S.C. 7342.

(3) Subpart D contains further guidance on gifts, gratuities and entertainment.

§ 3.105 Post-employment restrictions affecting former EPA attorneys.

This section applies where a jurisdiction in which a former EPA employee holds bar membership has adopted Rule 1.11 of the American Bar Association's Model Rules of Professional Conduct dated August 1983, in particular Rule 1.11(d)(2) which provides that the term "matter" includes "any other matter covered by the conflict of interest rules of the appropriate government agency." In such cases, the term "matter" includes participation (in the form of drafting, providing advice or making recommendations) in the development of EPA regulations. Where a former EPA employee participated in the development of an EPA regulation while employed by EPA, he or she may not represent or assist in representing any party or parties as an attorney in any judicial proceeding to contest the validity of the rule. However, this section applies only where the complaint was not filed before the effective date of this regulation or the date when Rule 1.11 became effective in the jurisdiction, whichever occurs later.

[50 FR 39623, Sept. 27, 1985]

§ 3.106 Statutes relating to employee conduct.

Appendix A of this subpart sets out the "conflict of interest" statutes, together with examples of their application, and Appendix B cites other statutory provisions which relate to employees' conduct.

[49 FR 7530, Feb. 29, 1984. Redesignated at 50 FR 39623, Sept. 27, 1985]

APPENDIX A TO SUBPART A-CONFLICT OF INTEREST STATUTES AND EXAMPLES 18 U.S.C. 203

Compensation to Members of Congress, officers, and others in matters affecting the Government.

(a) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receives or agrees to receive, or asks, demands, solicits, or seeks, any compensation for services rendered or to be rendered either by himself or another

(1) At a time when he is a Member of Congress, Member of Congress-elect, Resident Commissioner, or Resident Commissionerelect; or

(2) At a time when he is an officer or employee of the United States in the executive, legislative, or judicial branch of the Government, or in any agency of the United States including the District of Columbia-in relation to any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest before any department, agency, court-martial, officer, or any civil, military, or naval commission, or

(b) Whoever, knowingly, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly gives, promises, or offers any compensation for any such services rendered or to be rendered at a time when the person to whom the compensation is given, promised, or offered, is or was such a Member, Commissioner, officer, or employee

Shall be fined not more than $10,000, or imprisoned for not more than 2 years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.

(c) A special Government employee shall be subject to subsection (a) only in relation to a particular matter involving a specific party or parties (1) in which he has at any time participated personally and substantially as a Government employee or as a special Government employee through deci

sion, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or (2) which is pending in the department or agency of the Government in which he is serving: Provided, that clause (2) shall not apply in the case of a special Government employee who has served in such department or agency no more than 60 days during the immediately preceding period of 365 consecutive days.

Discussion

This provision prohibits employees from accepting fees for representing any outside party in any administrative proceeding before a Federal agency and from sharing in fees earned by others for such activities. For example, an attorney could not share in the partnership income of a law firm to the extent such income is attributable to representational activities before Federal agencies. It does not prohibit receipt of compensation for other than actual appearances as an "agent or attorney" for outside parties; a fee for actual work, such as drafting a brief, is not prohibited. (But see the appearance standards of §§ 3.103 and 3.503). The prohibition covers agreements to receive prohibited fees and requests for such fees. Moreover, the restriction applies even after the employee leaves the Government in that a former employee may not share in fees attributable to representational work before administrative agencies which was performed while the former employee was with the Government.

18 U.S.C. 205

Activities of officers and employees in claims against and other matters affecting the Government.

Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Government or in any agency of the United States, including the District of Columbia, otherwise than in the proper discharge of his official duties

(1) Acts as agent or attorney for prosecuting any claim against the United States, or receives any gratuity, or any share of or interest in any such claim in consideration of assistance in the prosecution of such claim,

or

(2) Acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or any civil military, or naval commission in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy, change, accusation, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest

Shall be fined not more than $10,000, or imprisoned for not more than 2 years, or both.

A special Government employee shall be subject to the preceding paragraphs only in relation to a particular matter involving a specific party or parties (1) in which he has at any time participated personally and substantially as a Government employee or as a special Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, or (2) which is pending in the department or agency of the Government in which he is serving: Provided, That clause (2) shall not apply in the case of a special Government employee who has served in such department or agency no more than 60 days during the immediately preceding period of 365 consecutive days.

Nothing herein prevents an officer or employee, if not inconsistent with the faithful performance of his duties, from acting without compensation as agent or attorney for any person who is the subject of disciplinary, loyalty, or other personnel administration proceedings in connection with those proceedings.

Nothing herein or in section 203 prevents an officer or employee, including a special Government employee, from acting, with or without compensation, as agent or attorney for his parents, spouse, child, or any person for whom, or for any estate for which, he is serving as guardian, executor, administrator, trustee, or other personal fiduciary except in those matters in which he has participated personally and substantially as a Government employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, or which are the subject of his official responsibility provided that the Government official responsible for appointment to his position approves.

Nothing herein or in section 203 prevents a special Government employee from acting as agent or attorney for another person in the performance of work under a grant by. or a contract with or for the benefit of, the United States provided that the head of the department or agency concerned with the contract shall certify in writing that the national interest so requires.

Such certification shall be published in the FEDERAL REGISTER.

Nothing herein prevents an officer or employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.

Discussion

This provision generally forbids employees to act as "agent or attorney" (that is, communicate with intent to influence) on

behalf of outside parties before Federal agencies or courts in matters in which the United States is a party or has a direct and substantial interest. The prohibition applies to both paid and unpaid representation.

Examples

1. An EPA employee has received permission to work as a consultant to a firm which has been awarded a contract by the Department of Defense. A controversy arises concerning the scope of work of the contract, and the firm asks the EPA employee to discuss the matter with the contracting officer to seek additional compensation for an alleged change in the scope of work.

Answer: The employee may not do so, since he would be acting as agent for an outside party in a claim or controversy to which the Government is a party. (Moreover, under the appearance standards of § 3.502(c) the employee should not assist the firm in preparing its claim.)

2. An employee is an officer in an environmental organization and has been asked to present testimony on behalf of the organization at an EPA rulemaking proceeding.

Answer: Although the statute does not apply to testimony under oath, the activity nonetheless violates the appearance standards of §§ 3.103 and 3.503. However, it would be proper for the employee to appear as a concerned individual rather than as a representative of an outside group.

3. Several years ago, an employee received approval for outside employment as a consultant to an architect/engineer firm which is now competing for a subagreement under an EPA construction grant. The firm has asked the employee to present its proposal to EPA's grantee.

Answer: The statutory restriction does not apply, since the representational activity would not be before EPA or any other Federal agency. Such activity would nonetheless violate the appearance standards of §§ 3.103 and 3.502. Moreover, under the appearance standards, Deputy Ethics Officials would be justified in refusing to approve outside employment involving work projects funded by EPA.

Exceptions

on

1. With the approval of the appropriate Deputy Ethics Official, an employee may act as agent or attorney before a Federal court or agency, for his or her parents, spouse, child or any person for whom, or for any estate for which, the employee is serving as guardian, executor, administrator, trustee or other personal fiduciary except where the employee has participated in the same matter on behalf of the Government or where the matter is the subject of the employee's official responsibility.

2. Nothing in the statute prevents an employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt. However, this exception does not apply to acting as an expert witness for an outside party in a Government matter.

3. Employees may act without compensation as agent or attorney for anyone who is the subject of disciplinary, loyalty or other personnel proceedings, provided the employee's official duties do not conflict with such representation. Employees are encouraged to seek the advice of the Designated Agency Ethics Official or Deputy Ethics Official before engaging in such representation.

4. The restriction does not apply to special Government employees to the same extent as to employees. Restrictions applicable to such employees are discussed in § 3.604.

18 U.S.C. 207

Disqualification of former officers and employees; disqualification of partners of current officers and employees.

(a) Whoever, having been an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, including a special Government employee, after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (except the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral or written communication on behalf of any other person (except the United States) to

(1) Any department, agency, court, courtmartial, or any civil, military, or naval commission of the United States or the District of Columbia, or any officer or employee thereof, and

(2) In connection with any judicial or other preceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties in which the United States or the District of Columbia is a party or has a direct and substantial interest, and

(3) In which he participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, while so employed;

or

(b) Whoever, (i) having been so employed, within two years after his employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, any other person (except the United States), in any formal or informal appearance before, or, with the intent to influence, makes any oral

or written communication on behalf of any other person (except the United States) to, or (ii) having been so employed as specified in subsection (d) of this section, within two years after his employment has ceased, knowingly represents or aids, counsels, advises, consults, or assists in representing any other person (except the United States) by personal presence at any formal or informal appearance before

(1) Any department, agency, court, courtmartial, or any civil, military or naval commission of the United States or the District of Columbia, or any officer or employee thereof, and

(2) In connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties in which the United States or the District of Columbia is a party or has a direct and substantial interest, and

(3) As to (i), which was actually pending under his offical responsibility as an officer or employee within a period of one year prior to the termination of such responsibility, or, as to (ii), in which he participated personally and substantially as an officer or employee; or

(c) Whoever, other than a special Government employee who serves for less than sixty days in a given calendar year, having been so employed as specified in subsection (d) of this section, within one year after such employment has ceased, knowingly acts as agent or attorney for, or otherwise represents, anyone other than the United States in any formal or informal appearance before, or with the intent to influence, makes any oral or written communication on behalf of anyone other than the United States, to

(1) The department or agency in which he served as an officer or employee, or any officer or employee thereof, and

(2) In connection with any judicial, rulemaking, or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter, and

(3) Which is pending before such department or agency or in which such department or agency has a direct and substantial interest-shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

(d)(1) Subsection (c) of this section shall apply to a person employed

(A) At a rate of pay specified in or fixed according to subchapter II of chapter 53 of title 5, United States Code, or a comparable or greater rate of pay under other authority;

(B) On active duty as a commissioned officer of a uniformed service assigned to pay grade of 0-9 or above as described in section 201 of Title 37, United States Code; or

(C) In a position which involves significant decision-making or supervisory responsibility, as designated under this subparagraph by the Director of the Office of Government Ethics, in consultation with the department or agency concerned. Only positions which are not covered by subparagraphs (A) and (B) above, and for which the basic rate of pay is equal to or greater than the basic rate of pay for GS-17 of the General Schedule prescribed by section 5332 of title 5, United States Code, or positions which are established within the Senior Executive Service pursuant to the Civil Service Reform Act of 1978, or positions of active duty commissioned officers of the uniformed services assigned to pay 0-7 or 0-8, as described in section 201 of Title 37, United States Code, may be designated. As to persons in positions designated under this subparagraph, the Director may limit the restrictions of subsection (c) to permit a former officer or employee, who served in a separate agency or bureau within a department or agency, to make appearances before or communications to persons in an unrelated agency or bureau, within the same department or agency, having separate and distinct subject matter jurisdiction, upon a determination by the Director that there exists no potential for use of undue influence or unfair advantage based on past Government service. On an annual basis, the Director of the Office of Government Ethics shall review the designations and determinations made under this subparagraph and, in consultation with the department or agency concerned, make such additions and deletions as are necessary. Departments and agencies shall cooperate to the fullest extent with the Director of the Office of Government Ethics in the exercise of his responsibilities under this paragraph.

(2) The prohibition of subsection (c) shall not apply to appearances, communications, or representation by a former officer or employee, who is—

(A) An elected official of a State or local government or

(B) Whose principal occupation or employment is with (i) an agency or instrumentality of a State or local government, (ii) an accredited, degree-granting institution of higher education, as defined in section 1201(a) of the Higher Education Act of 1965, or (iii) a hospital or medical research organization, exempted and defined under section 501(c)(3) of the Internal Revenue Code of 1954, and the appearance, communication, or representation is on behalf of such government, institution, hospital, or organization.

(e) For the purposes of subsection (c), whenever the Director of the Office of Government Ethics determines that a separate statutory agency or bureau within a department or agency exercises functions of the department or agency, the Director shall by rule designate such agency or bureau as a separate department or agency; except that such designation shall not apply to former heads of designated bureaus or agencies, or former officers and employees of the department or agency whose official responsibilities included supervision of said agency or bureau.

(f) The prohibitions of subsections (a), (b), and (c) shall not apply with respect to the making of communications solely for the purpose of furnishing scientific or technological information under procedures acceptable to the department or agency concerned with the particular matter, or if the head of the department or agency concerned with the particular matter, in consultation with the Director of the Office of Government Ethics, makes a certification, published in the FEDERAL REGISTER, that the former officer or employee has outstanding qualifications in a scientific, technological, or other technical discipline, and is acting with respect to a particular matter which requires such qualifications, and that the national interest would be served by the participation of the former officer or employee.

(g) Whoever, being a partner of an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, including a special Government employee, acts as agent or attorney for anyone other than the United States before any department, agency, court, court-martial, or any civil, military, or naval commission of the United States or the District of Columbia, or any officer or employee thereof, in connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter in which the United States or the District of Columbia is a party or has direct and substantial interest and in which such officer or employer or special Government employee participates or has participated personally and substantially as an officer or employee through decision, approval, disapproal, recommendation, the rendering of advice, investigation, or otherwise, or which is the subject of his official responsibility, shall be fined not more than $5,000, or imprisoned for not more than one year, or both.

(h) Nothing in this section shall prevent a former officer or employee from giving testimony under oath, or from making state

ments required to be made under penalty of perjury.

(1) The prohibition contained in subsection (c) shall not apply to appearances or communications by a former officer or employee concerning matters of a personal and individual nature, such as personal income taxes or pension benefits; nor shall the prohibition of that subsection prevent a former officer of employee from making or providing a statement, which is based on the former officer's or employee's own special knowledge in the particular area that is the subject of the statement, provided that no compensation is thereby received, other than that regularly provided for by law or regulation for witnesses.

(j) If the head of the department or agency in which the former officer or employee served finds, after notice and opportunity for a hearing, that such former officer or employee violated subsection (a), (b), or (c) of this section, such department or agency head may prohibit that person from making, on behalf of any other person (except the United States), any informal or formal appearance before or with the intent to influence, any oral or written communication to, such department or agency on a pending matter of business for a period not to exceed five years, or may take other appropriate disciplinary action. Such disciplinary action shall be subject to review in an appropriate United States district court. No later than six months after the effective date of this Act, departments and agencies shall, in consultation with the Director of the Office of Government Ethics, establish procedures to carry out this subsection.

Discussion

The foregoing provision establishes four types of restrictions:

Permanent Restrictions. Former employees are forever barred from representing anyone other than the United States before a federal court or agency with respect to "a particular matter involving a specific party or parties" in which they ever participated as Government employees. Participation is broadly defined to include advice and recommendations as well as decision-making. However, the restriction applies only to matters which involve specific parties, such as contracts, grants and adjudications, and it covers only actual representation of another. The restriction does not cover rulemaking, and former employees may represent an outside party in proceedings governed by rules they helped to make.

The restriction does not generally prohibit former employees from seeking contracts with EPA nor does it bar work on contracts with which they were involved while at EPA. Of course, representational activity in

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