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Office of Personnel Management and periodically thereafter. In the case of a new employee appointed after the foregoing notification, notification shall be made at the time of his entrance on duty.
(d) In each operating unit a deputy counselor shall advise and counsel each employee concerning any adjustments necessary in his financial interests or activities, or in any contemplated interests or activities, in order to meet the requirements established by or pursuant to this part.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990)
$ 0.735–40 Disciplinary and other re
medial action. (a) Violation of a requirement established in or pursuant to this part shall be cause for appropriate disciplinary action, which may be in addition to any penalty prescribed by law.
(b) When, after consideration of the explanation of the employee provided by $0.735-20(c), the reviewing officer, in cooperation with the responsible supervisory official, decides that remedial action is required, he will take or cause to be taken immediate action to end the conflict or appearance of conflict of interest. Remedial action may include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee of his conflicting interest;
(3) Disciplinary action (including removal from the service); or
(4) Disqualification for a particular assignment. Remedial action, whether disciplinary or otherwise, shall be effected in accordance with applicable laws, Executive orders, and regulations.
(c) No disciplinary or remedial action may be
taken under this section against an employee of another Federal department or agency on detail to the Department of Commerce other than through and with the concurrence of the detailed employee's employing agency.
All requests for authorizations required under this part shall be addressed to the head of the operating unit concerned. In the Office of the Secretary such requests shall be addressed to the Secretary or such person as he may designate. When granted, authorizations will be in writing, and a copy of each authorization will be filed in the employees' official personnel file.
(a) In case of doubt, or upon the request of the employee concerned, cases or questions will be forwarded to the counselor or a deputy counselor. (See $0.735–38.)
(b) Where an activity requested to be authorized can be conducted as official business, it shall not be authorized as a private activity, but shall be conducted as official business.
(c) Where authorizations involve speaking, writing, or teaching, use of the official title of the employee for identification purposes may be authorized, provided the employee makes it clear that his statements and actions are not of an official nature.
(d) If an authorization has been granted for a specific activity or interest, and the activity or interest is subsequently deemed to constitute a violation of the limitations or requirements prescribed in or pursuant to this part, the employee concerned shall be notified in writing of the cancellation of the authorization and shall modify or stop the activity or interest involved, as requested.
$ 0.735–41 Inquiries and exceptions.
(a) Inquiries relating to legal aspects of the limitations set forth in or cited in or pursuant to this part should be submitted to the appropriate deputy counselor. Inquiries relating to other aspects of this part or regulations supplementary thereto should be referred to the appropriate personnel office.
(b) Within the limits of administrative discretion permitted to the Department, exceptions to the requirements of this part may be granted from time to time in unusual cases by the head of the operating unit, whenever the facts indicate that such an exception would promote the efficiency of the service. Each request for such an exception should be submitted in writing to the head of the operating unit concerned, and shall contain a full statement of the justification for the
request. Reports concerning such re- weekend or holiday shall be extended quests, if approved, shall be forwarded to the next working day. to the program Secretarial Officer concerned and to the Assistant Secretary $0.735–43 Report of violations and infor Administration by the head of the vestigation. operating unit concerned.
(a) If an employee has information
which indicates that a former emSubpart H-Disciplinary Actions
Actions ployee has violated any provisions of 18 Concerning Post-Employment U.S.C. 207 or regulations thereunder, Conflict of Interest Violations that employee shall report such infor
mation to the Inspector General. AUTHORITY: 18 U.S.C. 207(1); 5 CFR 737.27.
(b) Upon receiving information as set
forth in paragraph (a) of this section SOURCE: 49 FR 32057, Aug. 10, 1984; 50 FR
from an employee or any other person, 928, Jan. 8, 1985, unless otherwise noted.
the Inspector General, upon a deter$ 0.735–42 Scope.
mination that it is nonfrivolous, shall (a) These regulations establish proce
expeditiously provide the information dures for imposing sanctions against a
to the Director, Office of Government former employee for violating the post
Ethics, and to the Criminal Division, employment restrictions of the conflict
Department of Justice. The Inspector of interest laws and regulations set
General shall coordinate any investigaforth in 18 U.S.C. 207 and 5 CFR Part tion under this subpart with the De737. These procedures are established partment of Justice, unless the Departpursuant to the requirement in 18 ment of Justice informs the Inspector U.S.C. 207(j). The General Counsel is re- General that it does not intend to initisponsible for resolving questions on the ate criminal prosecution. legal interpretation of 18 U.S.C. 207 or (c) All investigations under this subregulations issued thereunder and for
part shall be conducted in such a way advising employees on these provi
as to protect the privacy of former emsions.
ployees. To ensure this, to the extent (b) For purposes of this subpart, (1)
reasonable and practical, any informa“Former employee" means a former
tion received as a result of an invesGovernment employee as defined in 5
tigation shall remain confidential exCFR 737.3(a)(4) who had served in the
cept as necessary to carry out the purDepartment;
poses of this subpart, including the (2) "Lesser included sanctions"
conduct of an investigation, hearing, or means sanctions of the same type but
judicial proceeding arising thereunder, more limited scope as the proposed
or as may be required to be released by sanction; thus a bar on communication
law. with an operating unit is a lesser included sanction of a proposed bar on
(d) The Inspector General shall recommunication with the Department
port the findings of the investigation and a bar on communication for one
to the Director. year is a lesser included sanction of a
$0.735-44 Initiation of proceedings. proposed five year bar;
(3) “Assistant Secretary” means the If the Director determines, after an Assistant Secretary for Administration investigation by the Inspector General, or designee;
that there is reasonable cause to be(4) "Director" means the Director for lieve that a former employee has vioPersonnel and Civil Rights, Office of lated post-employment statutes or regthe Secretary, or designee;
ulations, the Director shall initiate ad(5) "Inspector General" and "General
ministrative proceedings under this Counsel" include any persons des
subpart by proposing sanctions against ignated by them to perform their func
the former employee and by providing tions under this subpart; and
notice to the former employee as set (6) “Days" means calendar days ex
forth in $0.735 45. cept that a dead-line which falls on a
(a) The Director shall notify the former employee of the proposed disciplinary action in writing by registered or certified mail, return receipt requested, or by any means which gives actual notice or is reasonably calculated to give actual notice. Notice shall be considered received if sent to the last known address of the former employee.
(b) The notice shall include: (1) A statement of allegations and the basis thereof sufficiently detailed to enable the former employee to prepare a defense;
(2) A statement that the former employee is entitled to a hearing if requested within 20 days from date of notice;
(3) An explanation of the method by which the former employee may request a hearing under this subpart including the name, address, and telephone number of the person to contact if there are further questions;
(4) A statement that the former employee has the right to submit documentary evidence to the Director if a hearing is not requested and an explanation of the method of submitting such evidence and the date by which it must be received; and
(5) A statement of the sanctions which have been proposed.
aminer. In setting the date, the examiner shall give due regard to the need for both parties to adequately prepare for the hearing and the importance of expeditiously resolving allegations that may be damaging to the former employee's reputation.
(c) Former employee's rights. At a hearing, the former employee shall have the right:
(1) To represent himself or herself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on request.
(d) Procedure and evidence. In a hearing under this subpart, the Federal Rules of Evidence and Civil Procedure do not apply but the examiner shall exclude irrelevant or unduly repetitious evidence and all testimony shall be taken under oath or affirmation. The examiner may make such orders and determinations regarding the admissibility of evidence, conduct of examination and cross-examination, and similar matters which the examiner deems necessary or appropriate to ensure orderliness in the proceedings and fundamental fairness to the parties. There shall be no discovery unless agreed to by the parties and ordered by the examiner. The hearing shall not be open to the public unless the former employee or the former employee's representative waives the right to a closed hearing, in which case the examiner shall determine whether the hearing will be open to the public. (e) Ex-parte
communications. The former employee, the former employee's representative, and the agency representative shall not make any exparte communications to the examiner concerning the merits of the allegations against the former employee prior to the issuance of the initial decision.
(f) Initial decision. (1) The proposed sanctions shall be sustained in an initial decision upon a determination by the examiner that the preponderance of the evidence indicated a violation of post-employment statutes or regulations.
(a) Examiner. (1) Upon timely receipt of a request for a hearing, the Director shall refer the matter to the Assistant Secretary who shall appoint an examiner to conduct the hearing and render an initial decision.
(2) The examiner shall be impartial, shall not be an individual who has participated in any manner in the decision to initiate the proceedings, and shall not have been employed under the immediate supervision of the former employee or have been employed under a common immediate supervisor. The examiner shall be admitted to practice law and have suitable experience and training to conduct the hearing, reach a determination and render an initial decision in an equitable manner.
(b) Time, date, and place. The hearing shall be conducted at a reasonable time, date, and place as set by the ex
(2) The examiner shall issue an initial decision which is based exclusively on the transcript of testimony and exhibits together with all papers and requests filed in connection with the proceeding and which sets forth all findings of fact and conclusions of law relevant to the matter at issue.
(3) The initial decision shall become final thirty days after issuance if there has been no appeal filed under $0.735– 48.
sanction which was proposed in the notice to the former employee or a lesser included sanction.
(b) Sanctions which may be imposed include: (1) Prohibiting the former employee from making, on behalf of any other person except the United States, any formal or informal appearance before or, with the intent to influence, any oral or written communication to the Department or any organizational sub-unit thereof on any matter of business for a period not to exceed five years; and
(2) Other appropriate disciplinary action.
(c) The Director may enforce the sanctions of paragraph (b)(1) of this section by directing any or all employees to refuse to participate in any such appearance or to accept any such communication. As a method of enforcement, the Director may establish a list of former employees against whom sanctions have been imposed.
$ 0.735–47 Decision absent a hearing.
(a) If the former employee does not request a hearing in a timely manner, the Director shall make an initial decision on the basis of information compiled in the investigation, and any submissions made by the former employee.
(b) The proposed sanction or a lesser included sanction shall be imposed if the record indicates a violation of postemployment statutes or regulations by a preponderance of the evidence.
(c) The initial decision shall become final thirty days after issuance if there has been no appeal filed under $0.735– 48.
$ 0.735-50 Judicial review.
Any former employee found to have violated 18 U.S.C. 207, or regulations issued thereunder, by a final administrative decision under this subpart may seek judicial review of the administrative determination.
APPENDIX A TO PART STATUTES GOV
ERNING CONDUCT OF FEDERAL EM-
80.735–48 Administrative appeal.
(a) Within 30 days after issuance of the initial decision, either party may appeal the initial decision or any portion thereof to the Assistant Secretary. The opposing party shall have 20 days to respond.
(b) If an appeal is filed, the Assistant Secretary shall issue a final decision which shall be based solely on the record, or portions thereof cited by the parties to limit issues, and the appeal and response. The Assistant Secretary shall also decide whether to impose the proposed sanction or a lesser included sanction.
(c) If the final decision modifies or reverses the initial decision, it shall state findings of fact and conclusions of law which differ from the initial decision.
There are numerous statutes pertaining to the ethical and other conduct of Federal employees, far too many to attempt to list them all. Consequently, only the more important ones of general applicability are referred to in this appendix.
A. BRIBERY AND GRAFT
.01 Title 18, U.S.C., section 201, prohibits anyone from bribing or attempting to bribe a public official by corruptly giving, offering, or promising him or any person selected by him, anything of value with intent (a) to influence any official act by him, (b) to influence him to commit or allow any fraud on the United States, or (c) to induce him to do or omit to do any act in violation of his lawful duty. As used in section 201, "Public officials" is broadly defined to include officers, employees, and other persons carrying on activities for or on behalf of the Government.
.02 Section 201 also prohibits a public official's solicitation or acceptance of, or agreement to take, a bribe. In addition, it forbids
$0.735 49 Sanctions.
(a) If there has been a final determination that the former employee has violated post-employment statutes or regulations, the Director shall impose, subject to the authority of the Assistant Secretary under $0.735_48(b), the
offers or payments to, and solicitations or receipt by, a public official of anything of value "for or because of". any official act performed or to be performed by him.
.03 Section 201 further prohibits the offering to or the acceptance by a witness of anything of value involving intent to influence his testimony at a trial, Congressional hearing, or agency proceeding. A similar provision applies to witnesses “for or because of: testimony given or to be given. The provisions summarized in this section do not preclude lawful witness fees, travel and subsistence expenses, or reasonable compensation for expert testimony.
B. COMPENSATION TO OFFICERS AND EMPLOYEES
IN MATTERS AFFECTING THE GOVERNMENT
.01 Title 18, U.S.C., section 203, prohibits an officer or employee from receiving compensation for services rendered for others before a Federal department or agency in matters in which the Government is a party or is interested.
.02 Section 203 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department of Commerce more than 60 days during the preceding period of 365 days, section 203 applies to him 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 in his governmental capacity, or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department no more than 60 days during the preceding period of 365 days, section 203 applies to him only in relation to a particular matter involving a specific party or parties in which he has at any time participated personally and substantially in his governmental capacity.
.03 Section 203 does not apply to a retired officer of the uniformed services while not on active duty and not otherwise an officer or employee of the United States.
.02 Section 205 applies to a special Government employee as follows:
a. If the special Government employee has served in the Department more than 60 days during the preceding period of 365 days, section 205 applies to him 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 in his governmental capacity, or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department no more than 60 days during the preceding period of 365 days, section 205 applies to him only in relation to a particular matter involving a specific party or parties in which he has at any time participated personally and substantially in his governmental capacity.
.03 Section 205 does not preclude:
a. An employee, if not inconsistent with 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; or
b. An employee from giving testimony under oath or from making statements required to be made under penalty for perjury or contempt.
.04 Sections 203 and 205 do not preclude:
a. An employee from acting 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 or which are the subject of his official responsibility, provided the head of the operating unit concerned approves; or
b. 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 the head of the operating unit concerned, with the approval of the appropriate program Secretarial Officer, shall certify in writing that the national interest so requires, and such certification shall be published in the FEDERAL REGISTER
.05 Section 205 does not apply to a retired officer of the uniformed services while not on active duty and not otherwise an officer or employee of the United States.
C. ACTIVITIES OF OFFICERS AND EMPLOYEES IN CLAIMS AGAINST AND OTHER MATTERS AF
FECTING THE GOVERNMENT
.01 Title 18, U.S.C., section 205, prohibits an officer or employee, otherwise than in the performance of his official duties, from:
a. Acting as agent or attorney for prosecuting any claim against the United States, or receiving any gratuity, or any share of or interest in any such claim in consideration of assistance in the prosecution of such claims; or
b. Acting as agent or attorney for anyone before any Government agency, court, or officer in connection with any matter in which the United States is a party or has a direct and substantial interest.
D. DISQUALIFICATION OF FORMER OFFICERS AND
EMPLOYEES IN MATTERS CONNECTED WITH FORMER DUTIES OR OFFICIAL RESPONSIBILITIES; DISQUALIFICATION OF PARTNERS
.01 Title 18 U.S.C., section 207:
a. Provides that a former Government officer or employee, including a former special Government employee, shall be permanently