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(c) “Personal involvement". "Person- strictions are restrictions on representally involved” is short for the follow- ing private parties in dealing with NSF ing statutory language:

officials or other Federal officials. The

dealings covered are encompassing. "Participated personally and substantially as an officer or employee through decision,

They include any formal appearance approval, disapproval, recommendation, the before an official; any meeting with an rendering of advice, investigation or other official; and any letter, phone call, or wise".

other communication with an official. In other words:

(b) Intent to influence and potential (1) You may have “participated" and controversy required. Contacts as a so have been “personally involved" representative without intent to influeven though you actually made none ence the officials contracted are not of the important decisions. You "par- prohibited. Nor are contacts as a repticipated” if you made recommenda resentative in connection with a routions, rendered advice, conducted an tine request not involving a potential investigation, or otherwise contribut

controversy. For example, you may ed. Moreover, "approval" is specifical

ask a question about the status of a ly covered. Giving a required approval,

particular matter, as long as there is however perfunctorily, is covered if

no implicit attempt to influence the the action could not have been taken

outcome. You may request publicly over your objection.

available documents. You may com(2) On the other hand, there is a dis

municate with an official to impart tinction between personal involvement

purely factual information as long as and official responsibility. If you could

the communication has no connection have intervened in the matter because

with an adversary proceeding. of your position, but in fact did not, you were not “personally involved”. Example: While an NSF employee you

(3) You must have participated “per helped write the current contract for the sonally”. You participated personally

Kitt Peak National Observatory, with which if you gave directions or instructions

you are now a staff scientist. You are asked

to make a scientific presentation to NSF ofabout the matter to a subordinate who

ficials at the annual review of the Kitt Peak participated directly. If a subordinate

program. You may do so. You may not, participated without any direction or

however, participate in or support any instruction from you about that par appeal for more funds for Kitt Peak during ticular matter, and you did not other the review. Indeed, it would be better for wise participate, you did not partici you to not be present at all when funding pate personally.

and other contractual subjects are dis(4) You must have participated "sub

cussed. If you were not a staff scientist at stantially”. That requires more than

Kitt Peak, but only a user, that would not

change things for this purpose. knowledge of what was going on, perfunctory involvement, or involvement (c) Assisting without appearing or on an administrative or peripheral communicating with officials. You are issue. Your participation was “sub- not prohibited from helping those who stantial" if it was significant to the are representing a private party with outcome or would have seemed so to a Federal officials, as long as you do not reasonable outside observer, consider yourself make an appearance or othering not only the effort you devoted to wise communicate with the officials. the matter but the influence of your You may advise officials or representaeffort on the outcome. A single act of tives of the party, may make suggesa critical step, such as an approval, tions about whom they should contact may be substantial. A series of time and what they should say, and may consuming peripheral involvements, even draft documents and letters, as such as review solely for compliance long as you do not personally sign or with administrative or budgetary con transmit them. CAUTION: What is trols, may be insubstantial.

permitted under Federal law may be

prohibited by rules of professional 8 682.12 Representation covered.

ethics, particularly if you are a lawyer. (a) Representational dealings. All (d) Assisting by personal presence at four of the basic representational re- an appearance or meeting. A former

yourself. Even they, however, would not apply to:

(1) Any expression of your views on policy issues, where the circumstances make obvious that you are only speaking as an informed and interested citizen, not representing any financial or other interests of your own or of any other person or institution with whom you are associated;

(2) Any appearance or communication concerning matters of a personal and individual nature, such as your income taxes; your salary, benefits, or rights as a Federal employee; or the application of conflict-of-interests rules to something you propose to do; or

(3) Any appearance on your own behalf in any litigation or administrative proceeding. They do apply, though, to contacts seeking grants or business, except for discussions about employment with an agency as a consultant or otherwise and to scientific or technical proposals, presentations, or communications. See $ 682.20.

high-ranking employee (SES, GS-17, or above) who had official responsibili. ty for a matter or was personally in volved while a Federal employee may violate the criminal statutes by being present to assist others at a meeting with Federal officials or an appearance before them, even though the former employee never speaks with the Federal officials. The NSF goes further and asks that (whether highranking or not) if you would be barred from directly representing anyone in connection with any matter, you refrain from being personally present while others are meeting with NSF of. ficials. In rare cases where there are special circumstances the General Counsel or the Director may waive this restriction to the extent consistent with the Government-wide law and regulations.

(e) Dealings with officials of the legislative branch not covered. Where the basic representational restrictions refer to dealings with "Federal officials”, that covers officials of a Federal Executive-branch or administrative agency and officials of Federal courts or administrative tribunals. It does not, however, encompass Members of Congress, their staffs, or other officials of the legislative branch.

(f) Representing the United States. During your Government service, you may naturally represent your office, the NSF, or the Government (or anyone else, for that matter) with other Federal officials if the representation is part of your official duties. After your Government service, moreover, you may represent an office or agency of the Government in dealings with officials of another office or agency any time you are asked to do so.

(g) Representing yourself. The “official responsibility” two-year restriction and the “personal involvement" permanent restriction do not apply if you represent only yourself. They would apply, however, if you were to represent yourself and another person, such as an institution or organization with which you are employed or affiliated. The current-employee representational restriction and the one-year NSF restriction would apply even if you were to represent only

8 682.13 “Matters" covered.

(a) Matters involving specific parties. The “official responsibility” twoyear restriction an the “personal involvement” permanent restriction both cover only a “matter involving specific parties”. Generally, such a matter is a specific proceeding affecting the legal rights of the parties to the proceeding or an isolatable transaction or related set of transactions between identifiable parties. A "party" may be either a person or an institution, and one such party other than the Government is enough.

(1) In the context of the NSF a "matter involving specific parties” will usually consist of a proposal or bid, the award-or-declination decision process with respect to it, any award that results, and any subsequent administrative action related to the project. Such “matters” are covered in Subpart B of this part.

(2) Otherwise, typical “matters involving specific parties" include other kinds of contracts or agreements; applications for permits, licenses, or the like; requests for rulings or similar of

ficial determinations; claims; investiga areas, policy issues, and conceptual tions or audits; charges or accusations work done before a program has against individuals or firms; adjudica- become particularized into one or tory hearings; and court cases. These more specific projects. You should not, are relatively uncommon at the NSF, however, rely on this hazy distinction but when current or former NSF em- alone to take you out from under ployees have been officially responsi- either of the representational restricble for such matters or personally in- tions that cover matters not involving volved in them, the representational specific parties without checking with restrictions may apply. If in doubt an ethics counselor in the Office of consult an ethics counselor in the the General Counsel. Office of the General Counsel.

(d) Boundaries of matters not in(b) Same or different matter. The volving specific parties. In connection “official responsibility” two-year re- with the current-employee restriction striction and the “personal involve and the one-year NSF restriction, you ment” permanent restriction cover need not consider whether a “matter” such a matter only if during your NSF is the same as or separate from any service the same matter was under other matter. Those two restrictions your official responsibility or you were cover any “matter", whether or not personally involved in it. Except where you have previously had any responsiguidance is provided in Subpart B of bility for or involvement with it. this part, you should not decide for yourself whether a “matter involving 8 682.14 Restriction on your partners. specific parties” is the same as one for

While you are a Federal official no which you had “official responsibility"

person who is legally your partner in a or with which you were “personally in

business or professional partnership volved" while at the NSF. Consult an

may act as agent or attorney for ethics counselor in the Office of the

anyone in dealings with any other General Counsel.

Federal official on any matter under (c) Other "matters". The current-em

your official responsibility or with ployee restriction and the one-year

which you are or have been personally NSF restriction both cover matters

involved as a Federal official. A partthat do not "involve specific parties"

ner who violates this rule commits a as well as those that do. Such broader

Federal crime punishable by a fine of “matters" include:

up to $5000 or imprisonment for up to (1) Determinations to establish or

one year or both. In general, your disestablish a particular program or

partners may safely steer clear of this set its budget level for a particular

restriction by using the definitions fiscal year;

and guidance in the earlier sections of (2) Decisions to undertake or termi

this Subpart A, treating “act as agent nate a particular project;

or attorney” as equivalent to "repre(3) Decisions to open or not open a

sent” (it may actually be slightly less contract to competitive bidding;

encompassing). They may consult on (4) Decisions on particular NSF rules

this restriction with attorneys in the or formal policy, such as adoption or

Office of the NSF General Counsel. If amendment of a resolution by the Na

they prefer to consult other counsel, tional Science Board, promulgation or

the counsel should be directed to 18 amendment of an NSF regulation or

U.S.C. 207(g). circular, amendment of standard grant or contract terms, or changes to such NSF policy documents as Grants for

Subpart B-Involvement With ProScientific Research and the Grants posals and NSF-Supported Projects Policy Manual; and

During and After NSF Service (5) Agency positions on particular legislative or regulatory proposals.

8 682.20 General; restricted representaOn the other hand, the statutory term

tional activities vs. permitted research is really not just “matter”, but “partic

or educational activities. ular matter”. The word “particular” is (a) Basic representational restricintended to exclude broad technical tions. The same four representational

151

restrictions described in Subpart A of (5) An administrative approval; or this part apply to representational ac- (6) Any other action affecting a protivities involving proposals or projects. posal or project.

(1) Current-employee restriction. (e) Permitted research and educaDuring your Federal employment you tional activities. You do not engage in must not represent anyone (including representational dealings, and so you yourself) in dealings with any Federal violate none of the representational official on any proposal or project. restrictions, by: (2) One-year NSF restriction. For

(1) Participating in research or other one year after you leave NSF employ

work supported under an award from ment you must not represent anyone the NSF or another Federal agency; (including yourself) in dealing with (2) Being listed as an investigator in any NSF official on any proposal or a proposal or award; project.

(3) Preparing a proposal that will be (3) Official responsibilitytwo-year

submitted to the NSF or another Fedrestriction. For two years after you

eral agency (but if you prepare it leave NSF employment you must not

during your NSF tenure, you must do represent anyone else in dealing with

so entirely on your own time); any Federal official on any proposal or

(4) Making a scientific or technical project if the same proposal or project

presentation to officials of the NSF or was active under your official respon

another Federal agency (at a site visit, sibility during your last year at the NSF.

for example) or otherwise communi(4) “Personal involvementperma

cating scientific or technical informanent restriction. You must never rep

tion to them on the work being pro

posed or conducted; or resent anyone else in dealings with any Federal official on any proposal or

(5) Communicating with officials of project if you were personally involved

the NSF or another Federal agency, with the same proposal or project as

with no intent to influence them, to an NSF employee.

request routinely available and non(b) Examples. Examples 1 through 4

controversial information, such as the in § 682.10(b) illustrate the application

status of the decision process on a proof these restrictions.

posal. (c) General effect. These representa Be very careful with these last two actional restrictions do not preclude you tivities particularly; it would be easy from being involved as a researcher or to fall into trying to influence actions educator with proposals submitted to of the officials involved. If you can, let the Government or projects supported someone else make the presentation or by the Government. They do preclude request. If in any doubt, consult an you from negotiating with NSF offi- ethics counselor in the Office of the cials or other Federal officials and General Counsel. from engaging in other representa (f) Specifics on proposals. You may tional activities intended to influence prepare a proposal for submission to their decisions on certain proposals the NSF or another Federal agency and projects.

even though you would be precluded (d) Restricted representational deal. by one of the three post-employment ings. If you write, call, visit, or other restrictions from any representational wise communicate with an official you dealings with agency officials about it. have “dealt” with the official. Those You may sign the cover sheet to signidealings are representational if you fy your agreement to assume responsitry to influence the official to suggest, bility for the scientific and technical recommend, or approve:

direction of the project and for the (1) An award;

preparation of required technical re(2) An award amount, a budget, or ports. You may not, however, sign the particular budget items;

cover sheet as "authorized official" or (3) Particular award terms or condi sign any cover letter submitting the tions;

proposal for the institution. Nor may (4) An award amendment, increase, you call, write, or visit the agency proor extension;

gram officer who is handling the proposal to urge an award, haggle over based on it relate to the same "projbudgets, or the like. You may respond ect". These include: to requests from the program officer (1) The initial peer review and or another NSF official for scientific award-or-declination decision process; and technical information relating to (2) Review and approvals of an the proposal, such as might be needed award recommendation; to respond to reviewer comments. You (3) Negotiation of budget and award must not, however, couple the infor terms; mation you supply with any attempt (4) Negotiation of award amendto influence the decision on the pro- ments; posal other than what inheres in the (5) Consideration of continuingprovision of the information itself. (If grant increments; and possible, have someone else respond.) (6) Consideration of any extensions At the NSF the proposal will receive or administrative approvals. special scrutiny and may require spe- (c) Exceptions. (1) A negotiation or cial handling to avoid conflict of inter- determination on disposition of rights ests, but you have no special responsi. in any invention or publication that bility in that connection.

arises out of an award normally is a (g) Other issues related to represen

separate matter from the processing tation. Section 682.12 covers a number

and monitoring of the award, but not of other issues related to representa

from discussions or negotiations about tion. Among these are assisting in rep

disposition of rights that took place resentation without appearing or com

before the invention was made or the municating with official (generally

publication written. permitted); assisting by personal pres

(2) Separate task orders under a conence at an appearance or meeting

tinuing order agreement or the like (generally prohibited); representating

constitute separate “matters” if the the Government (generally permit

tasks and the negotiations are actually ted); and representing yourself along

separate. (depends). The rules and explanations

(3) An ethics counselor may detergiven there apply to proposals or proj.

mine that other matters arising from a ects just as to other matters. If any

particular proposal or award consticonfusion persists after you read

tute separate "matters” if the circum

stances warrant. them, consult an ethics counselor in

(d) Renewals. An application that inthe Office of the General Counsel.

volves a continuation or outgrowth of 8 682.21 Proposals and projects over

work that the investigators have been which you had official responsibility or

doing under a previous NSF and award with which you were personally in

is part of the same “project” as the volved.

original proposal and project unless:

(1) A complete new proposal and a (a) The "official responsibility” two

new budget are submitted; year restriction applies only if you had

(2) They are subjected to a complete official responsibility for the proposal new competitive peer review or evaluaor project in question during your last tion; and year at the NSF. The “personal in

(3) The review or evaluation involves volvement” permanent restriction ap a new group of reviewers, a substantial plies only if you were personally in- fraction of whom did not review the volved with the proposal or project earlier proposal. while at the NSF. You will therefore (e) "Official responsibility. You need to know: (1) When a project is had “official responsibility” for a prothe same as one proposed or active posal or project if you were personally while you were at the NSF, and (2) responsible for handling it or if you whether you had official responsibility headed a directorate, division, section, for the project or were personally in or program that was responsible for volved with it.

handling it. (The Director has “official (b) When is a project the same proj, responsibility” for every proposal or ect? All usual aspects of handling a project active at the NSF during his or particular proposal and any award her tenure.) You will find further

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