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stop the activity or interest involved, as requested.
(c) Each operating unit shall notify its employees of the availability of counseling services and of how and where these services are available. This notification shall be given within 90 days after approval of this part by the Civil Service Commission 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. $ 0.735-39 Authorizations.
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
8 0.735-40 Disciplinary and other remedial
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. $ 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
(6) “Days" means calendar days except that a dead-line which falls on a weekend or holiday shall be extended to the next working day.
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 requests, if approved, shall be forwarded to the program Secretarial Officer concerned and to the Assistant Secretary for Administration by the head of the operating unit concerned.
Subpart H—Disciplinary Actions Con
cerning Post-Employment Conflict of Interest Violations
AUTHORITY: 18 U.S.C. 207(j); 5 CFR 737.27.
SOURCE: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless otherwise noted.
(a) These regulations establish procedures for imposing sanctions against a former employee for violating the post-employment restrictions of the conflict of interest laws and regulations set forth in 18 U.S.C. 207 and 5 CFR Part 737. These procedures are established pursuant to the require ment in 18 U.S.C. 207(j). The General Counsel is responsible for resolving questions on the legal interpretation of 18 U.S.C. 207 or regulations issued thereunder and for advising employees on these provisions.
(b) For purposes of this subpart, (1) “Former employee" means a former Government employee as defined in 5 CFR 737.3(a)(4) who had served in the Department;
(2) "Lesser included sanctions” means sanctions of the same type but more limited scope as the proposed sanction; thus a bar on communication with an operating unit is a lesser included sanction of a proposed bar on communication with the Department and a bar on communication for one year is a lesser included sanction of a proposed five year bar; (3) “Assistant Secretary” means the
ant Secretary” means the Assistant Secretary for Administration or designee;
(4) "Director” means the Director for Personnel and Civil Rights, Office of the Secretary, or designee;
(5) "Inspector General” and “General Counsel” include any persons desig. nated by them to perform their functions under this subpart; and
$ 0.735–43 Report of violations and inves
tigation. (a) If an employee has information which indicates that a former employee has violated any provisions of 18 U.S.C. 207 or regulations thereunder, that employee shall report such information to the Inspector General.
(b) Upon receiving information as set forth in paragraph (a) of this section from an employee or any other person, the Inspector General, upon a determination that it is nonfrivolous, shall expeditiously provide the information to the Director, Office of Government Ethics, and to the Criminal Division, Department of Justice. The Inspector General shall coordinate any investigation under this subpart with the Department of Justice, unless the Department of Justice informs the Inspector General that it does not intend to initiate criminal prosecution.
(c) All investigations under this subpart shall be conducted in such a way as to protect the privacy of former employees. To ensure this, to the extent reasonable and practical, any information received as a result of an investigation shall remain confidential except as necessary to carry out the purposes of this subpart, including the conduct of an investigation, hearing, or judicial proceeding arising thereunder, or as may be required to be released by law.
(d) The Inspector General shall report the findings of the investigation to the Director.
$ 0.735–44 Initiation of proceedings.
If the Director determines, after an investigation by the Inspector General, that there is reasonable cause to believe that a former employee has violated post-employment statutes or regulations, the Director shall initiate administrative proceedings under this subpart by proposing sanctions against the former employee and by providing notice to the former employee as set forth in $ 0.735-45.
8 0.735-45 Notice.
time, date, and place as set by the ex(a) The Director shall notify the
aminer. In setting the date, the examformer employee of the proposed disci
iner shall give due regard to the need plinary action in writing by registered
for both parties to adequately prepare or certified mail, return receipt re
for the hearing and the importance of quested, or by any means which gives
expeditiously resolving allegations actual notice or is reasonably calculat that may be damaging to the former ed to give actual notice. Notice shall be considered received if sent to the
(c) Former employee's rights. At a last known address of the former em hearing, the former employee shall ployee.
have the right: (b) The notice shall include: (1) A (1) To represent himself or herself statement of allegations and the basis or to be represented by counsel, thereof sufficiently detailed to enable (2) To introduce and examine witthe former employee to prepare a de nesses and to submit physical evifense;
dence, (2) A statement that the former em (3) To confront and cross-examine ployee is entitled to a hearing if re- adverse witnesses, quested within 20 days from date of (4) To present oral argument, and notice;
(5) To receive a transcript or record(3) An explanation of the method by ing of the proceedings, on request. which the former employee may re (d) Procedure and evidence. In a quest a hearing under this subpart in hearing under this subpart, the Federcluding the name, address, and tele al Rules of Evidence and Civil Procephone number of the person to con dure do not apply but the examiner tact if there are further questions; shall exclude irrelevant or unduly rep
(4) A statement that the former em etitious evidence and all testimony ployee has the right to submit docu shall be taken under oath or affirmamentary evidence to the Director if a tion. The examiner may make such hearing is not requested and an expla orders and determinations regarding nation of the method of submitting the admissibility of evidence, conduct such evidence and the date by which it of examination and cross-examination, must be received; and
and similar matters which the examin(5) A statement of the sanctions er deems necessary or appropriate to which have been proposed.
ensure orderliness in the proceedings
and fundamental fairness to the par8 0.735–46 Hearing.
ties. There shall be no discovery unless (a) Examiner. (1) Upon timely re- agreed to by the parties and ordered ceipt of a request for a hearing, the by the examiner. The hearing shall Director shall refer the matter to the not be open to the public unless the Assistant Secretary who shall appoint former employee or the former eman examiner to conduct the hearing ployee's representative waives the and render an initial decision.
right to a closed hearing, in which (2) The examiner shall be impartial, case the examiner shall determine shall not be an individual who has par whether the hearing will be open to ticipated in any manner in the deci the public. sion to initiate the proceedings, and (e) Ex-parte communications. The shall not have been employed under former employee, the former employthe immediate supervision of the ee's representative, and the agency former employee or have been em representative shall not make any exployed under a common immediate su parte communications to the examiner pervisor. The examiner shall be admit concerning the merits of the allegated to practice law and have suitable tions against the former employee experience and training to conduct the prior to the issuance of the initial decihearing, reach a determination and sion. render an initial decision in an equita (f) Initial decision. (1) The proposed ble manner.
sanctions shall be sustained in an ini(b) Time, date, and place. The hear- tial decision upon a determination by ing shall be conducted at a reasonable the examiner that the preponderance
of the evidence indicated a violation of post-employment statutes or regulations.
(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
(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 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.
8 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 post-employment 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
$ 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-STATUTES GOVERNING CONDUCT OF FEDERAL EMPLOYEES
8 0.735–48 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 of ficial's solicitation or acceptance of, or agreement to take, a bribe. In addition, it forbids offers or payments to, and solicitations or receipt by, a public official of any. thing of value "for or because of" any offi. cial 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.
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.
.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.
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: