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Ethics Guide for DOI Employees
Revised November 2011
This publication is a “plain English” guide to the ethics laws and regulations that apply to Department of the Interior (DOI) employees. It is not meant to cover every ethics situation or all of the details of the ethics statutes and regulations. Furthermore, this Guide is not intended to replace the advice of DOI or bureau ethics counselors. It is intended to give a basic framework and help in your everyday ethics questions. However, changes in the ethics rules occur regularly and often quickly. If you have an ethics question, you should contact an appropriately designated ethics counselor before taking action, provide him or her with all the relevant facts, and receive advice as to the course of action to take.
The DOI ethics program is administered by the Departmental Ethics Office and managed by the Designated Agency Ethics Official, the principal ethics official for DOI. Working with the assistance of a network of bureau and DOI ethics personnel, the Departmental Ethics Office implements the statutory and regulatory ethics requirements of the Federal Government and the Department of the Interior.
Employees who have ethics questions are encouraged to contact an ethics counselor in their respective bureau or office. Contact information for Departmental Ethics Office personnel and bureau ethics counselors is at the end of this Guide and at www.doi.gov/ethics/personnel.html.
TABLE OF CONTENTS
Basic Obligations of Public Service
Government-wide Ethics Laws
Ethics Prohibitions Unique to DOI Employees
Outside Work and Activities
Use of your Public Office
Use of Government Property, Time, and Information
Gambling Activities are Prohibited
Serving as an Expert Witness
Seeking Non-Federal Employment
Restrictions on Post-Government Employment
Disclosure of Financial Interests
BASIC OBLIGATIONS OF PUBLIC SERVICE
Executive Order 12674: The Foundation for Ethical Behavior
To ensure public confidence in the integrity of the Federal Government, Executive Order 12674 (as amended) forms the framework for the ethical behavior required and expected of all Federal employees. As a condition of public service, you are expected to adhere to these fundamental principles of ethical behavior:
- Public service is public trust, requiring you to place loyalty to the Constitution, the laws, and ethical principles above private gain.
- You shall not hold financial interests that conflict with the conscientious performance of duty.
- You shall not engage in financial transactions using non-public Government information or allow improper use of such information to further any private interest.
- You shall not, except pursuant to such reasonable exceptions as are provided by regulation, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by your agency, or whose interests may be substantially affected by the performance or nonperformance of your duties.
- You shall make no unauthorized commitments or promise of any kind purported to bind the Government.
- You shall put forth honest effort in the performance of your duties.
- You shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with your official Government duties and responsibilities.
- You shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
- You shall satisfy in good faith your obligations as citizens, including all just financial obligations, especially those such as Federal, state, or local taxes that are imposed by law.
- You shall adhere to all laws and regulations that provide equal opportunities for all Americans regardless of race, color, religion, gender, sexual orientation, age, or disability.
- You shall not use your public office for private gain.
- You shall act impartially and not give preferential treatment to any private organization or individual.
- You shall protect and conserve Federal property and shall not use it for other than authorized activity.
- You shall endeavor to avoid any actions creating the appearance that you are violating the law, the Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635), DOI supplemental ethics regulations, or Executive Order 12674.
GOVERNMENT-WIDE ETHICS LAWS
These laws apply to all Federal employees and each carry criminal penalties for noncompliance. They also serve as a basis for the ethics regulations known as the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. Part 2635.
18 U.S.C. § 201 – Bribery of Public Officials Prohibited
This statute prohibits a Government employee from directly or indirectly receiving or soliciting anything of value in exchange for being influenced in the performance or non-performance of any official act, including giving testimony, or in exchange for committing fraud.
18 U.S.C. § 203 – Restrictions on Compensated Representational Activities
This statute prohibits a Government employee from seeking or accepting compensation for representational services (rendered either personally or by another) before a Federal court or Government agency in a particular matter in which the United States is a party or has a direct and substantial interest. Representational services include any communications on behalf of another party with the intent to influence the Government. There are limited exceptions, such as for representing oneself or one’s immediate family or a person or estate for which the employee acts as a fiduciary, but not where the employee has participated officially or has official responsibility.
18 U.S.C. § 205 – Restrictions on Acting as an Agent or Attorney
This statute prohibits a Government employee from acting as an agent or attorney for anyone before a Federal court or Government agency, whether compensated or not. There are limited exceptions, such as for representing other Federal employees in personnel matters; representing a not-for-profit organization in certain matters, if a majority of its members are current Federal employees or their spouses or dependent children; representing oneself or one’s immediate family or a person or estate for which the employee acts as a fiduciary, but not where the employee has participated officially or has official responsibility; or acting as an agent or attorney, in certain matters, for a tribal organization or inter-tribal consortium to which the employee is assigned under the Intergovernmental Personnel Act or 25 U.S.C. § 48, after advising the Government, in writing, of any personal and substantial involvement the employee has had in connection with the matter.
18 U.S.C. § 207 - Post-Government Employment Restrictions
This statute does not bar an individual, regardless of rank or position, from accepting employment with any private or public employer. It does impose restrictions on certain communications that employees may make as a representative of a third party back to the Federal Government. These restrictions are covered more fully in the “Restrictions on Post-Government Employment” section of this Guide.
18 U.S.C. § 208 - Conflicts of Interest
This statute prohibits a Government employee from participating personally and substantially, on behalf of the Federal Government, in any particular matter in which he or she has a financial interest. In addition, the statute provides that the interests of certain other “persons” are the same as if they were the employee’s. These include the employee’s spouse, minor child, general partner, an organization in which he or she serves as an officer, trustee, partner or employee, and any person or organization with whom the employee is negotiating or has an arrangement concerning future employment. There are limited regulatory exemptions authorized by the Office of Government Ethics, an exception for certain financial interests arising solely out of Native American birthrights, and a very limited waiver authority.
18 U.S.C. § 209 – Supplementation of Federal Salary Prohibited
This statute prohibits a Government employee from receiving any salary, or any contribution to or supplementation of salary; or anything of value from an outside source as compensation for services he or she is expected to perform as a Government employee.
5 C.F.R. § 2635.502 – Impartiality in Performing Official Duties Due to Personal or Business Relationships
You must take appropriate steps to avoid any appearance of loss of impartiality in the performance of your official duties. Beyond the conflict of interest law, discussed above, ethics regulations require all employees to recuse themselves from participating in an official matter if their impartiality would be questioned. The regulations identify three circumstances where employees should carefully considered whether their impartiality is subject to question: where the financial interests of a members of the employee’s household would be impacted, if a party or party representative in an official matter has a “covered relationship” with the employee, and any other time the employee believes his or her impartiality may be subject to questions. The term “covered relationship” includes a wide variety of personal and business relationships that an employee or his family members may have with outside parties. Employees who find that a party or representative of a party is a person with whom the employee or a family member has a personal or business relationship should consult with your ethics counselor before taking official action in a particular matter.
ETHICS PROHIBITIONS UNIQUE TO DOI EMPLOYEES
A summary of DOI-specific and bureau-specific restrictions are listed below. If you are not certain if you are covered by one or more of the restrictions below, check with an ethics counselor from your office or bureau.
43 U.S.C. § 11, 43 C.F.R. § 20.401, and 5 C.F.R. § 3501.105 – Bureau of Land Management Employees
Bureau of Land Management (BLM) employees are prohibited from voluntarily acquiring direct (owned by the BLM employee) or indirect (owned by the spouse or minor child of a BLM employee) financial interests in Federal lands. Prohibited interests include stocks, bonds, and sector mutual funds in oil, gas, geothermal, and mining companies that hold leases or other property rights on Federal lands. Prohibited interests also include companies that hold substantial Rights-of-Way on Federal lands. A BLM employee may not be a member or employee of a business which has interests in Federal lands, nor serve as a private sector real estate agent. Additionally, BLM employees may not occupy or use Federal lands (other than on the same terms as use of Federal lands is available to the general public), or take any benefits from Federal lands, based upon a contract, grant, lease, permit, easement, rental agreement, mineral rights, grazing rights, or other holdings which the BLM issues or regulates.
43 U.S.C. § 31(a), 43 U.S.C. § 20.401, and 5 C.F.R. § 3501.104 – U.S. Geological Survey (USGS) Organic Act
USGS employees are prohibited from holding financial interests in the mineral wealth of the United States and from executing any surveys or examinations for private parties. Prohibited interests include stocks and bonds in oil, gas, and other mining companies that hold significant leases on Federal lands. Annually, the USGS publishes a list of prohibited financial holdings in a Financial Guide for USGS Employees. Additionally, the USGS Conflict of Interest Policy sets limits on investments in energy sector mutual funds and entities engaged in mining activities on private land in the United States.
5 C.F.R. § 3501.103(b) – Minerals Management Service and Certain Office of the Secretary Employees
This regulation applies to all Minerals Management Service (MMS) employees, certain employees within the Office of the Secretary (OS) and other Departmental offices that report directly to a Secretarial officer who are in positions classified at GS-15 and above (contact an ethics counselor from your bureau or refer to 5 C.F.R. § 3501.103 (b) (ii) to see a list of affected offices). Employees in these offices may not acquire or hold any direct or indirect financial interest in Federal lands or resources administered or controlled by the Department. This generally includes stock or bond interests in most oil, gas, and mining companies that hold leases on Federal lands to conduct their operations.
30 U.S.C. § 1211(f), 30 C.F.R. Part 706, 43 C.F.R. 20.402, and 5 C.F.R. 3501.104(a) – Office of Surface Mining Reclamation and Enforcement Employees and Certain Other Federal Employees
This law prohibits all Office of Surface Mining Reclamation and Enforcement (OSMRE) employees and any other Federal employee who performs functions and duties under the Surface Mining Control and Reclamation Act of 1977 from having any financial interests in surface or underground coal mining operations. If you don’t work for the Office of Surface Mining Reclamation and Enforcement but have responsibilities connected with mining and reclamation operations, contact an ethics counselor from your bureau or office to determine whether you are covered by this law. Prohibited financial interests under this law include companies that are involved in developing, producing, preparing, or loading coal or reclaiming the areas upon which such activities occur.
30 U.S.C. § 1267(g) applies a similar prohibition to employees of state regulatory authorities performing any function or duty under the Surface Mining Control and Reclamation Act of 1977. (See also 30 C.F.R. Part 705)
5 C.F.R. § 3501.103(c) – All DOI Employees
This regulation prohibits, with limited exceptions, all DOI employees, their spouses, and their minor children from acquiring or retaining any claim, permit, leases, small tract entries, or other rights that are granted by the Department in Federal lands. This prohibition does not restrict the recreational or other personal or noncommercial use of Federal lands by an employee, or the employee’s spouse or minor child, on the same terms available to the general public.
Gifts from Domestic and Private Sources
As a general rule, you may not, directly or indirectly, solicit or accept a gift:
(1) From a prohibited source; or
(2) If it is given because of your official position.
A “prohibited source” includes any person, company, or organization that has business with your agency, is seeking to do business with your agency, conducts operations that are regulated by your agency, or has any interests that might be affected by the performance or non-performance of your official duties. For the purposes of these rules, the Department is broken down into the following components:
- Bureau of Indian Affairs (including the Office of Indian Education Programs) (BIA)
- Bureau of Land Management (BLM)
- Bureau of Reclamation (BOR)
- Bureau of Ocean Energy Management (BOEM)
- Bureau of Safety and Environmental Enforcement (BSEE)
- National Indian Gaming Commission (NIGC)
- National Park Service (NPS)
- Office of Surface Mining Reclamation and Enforcement (OSMRE)
- Office of the Special Trustee for American Indians (OST)
- U.S. Fish and Wildlife Service (FWS)
- U.S. Geological Survey (USGS)
- The remainder of the Department (including the Office of the Secretary, Office of the Solicitor, Office of the Inspector General, and the immediate office of each Assistant Secretary)
If you work for a named component (e.g., Bureau of Indian Affairs, etc.), then your “agency,” for purposes of the gift rules, is your component within DOI. For instance, a company whose only involvement with the Department and its employees is that it conducts activities regulated by BLM would only be a prohibited source for a BLM employee—not an employee of any other named agency component.
For employees of the remainder of the Department, your “agency” for purposes of the gift rules is the entire Department. For example, that same company that only conducts activities regulated by BLM would be a prohibited source for an employee of the Office of the Solicitor, the Office of the Inspector General, etc.
A gift may include, but is not limited to, a gratuity, favor, discount, cash, gift certificate, entertainment, hospitality, loan, forbearance, or other item having monetary value. It also applies to services, training, transportation, travel, lodging, and meals.
Some Things Just Aren’t Gifts
Certain items are excluded from the definition of gift and you may accept them pursuant to certain specific regulatory exemptions.
- Snacks (coffee, donuts, other modest food items not offered as part of a meal)
- Greeting cards, plaques, certificates or trophies (items of little intrinsic value intended solely for presentation)
- Prizes in contests open to the general public
- Commercial discounts available to the general public
- Commercial loans, pensions, and similar benefits
- Anything for which you pay fair market value
- Anything which is paid for by the Government.
Exceptions to the Gift Prohibition There are some limited circumstances when you can accept gifts given because of your official position or from prohibited sources. Of course, you may never solicit such a gift. And, it is never inappropriate and frequently prudent to decline a gift even if an exception applies.
Gifts valued at $20 or less (retail market value), per occasion from a single source. Gifts offered from a prohibited source or because of your official position may not exceed $20 per occasion or $50 from a single prohibited source in any given calendar year. You may not accept cash or checks made out to you under any circumstance. Also, if the gift is valued over $20, you may not pay the difference in order to accept the gift; you must pay the full market value of the gift in order to accept it.
Widely Attended Gatherings. Acceptance of free attendance at widely attended gatherings is permissible as long as certain prior approval requirements are met. Employees must receive approval prior to the event using the DI-1958 form which is available on the DOI Ethics homepage at http://www.doi.gov/ethics. An event is widely attended if it is expected that a large number of persons will attend and that persons with a diversity of views or interests will be present. For example, an event may be considered a widely attended gathering if it is open to members from throughout the interested industry or profession or if those in attendance represent a range of persons interested in a given matter. If someone other than the sponsor of the event invited you and is paying for your attendance (such as if a corporation or friends group invited you to sit at their table), you may accept free attendance only if more than 100 persons are expected to attend, the gift of your attendance has a market value of $335 or less, and your attendance is approved as being in the interest of DOI. The allowance may be changed periodically by the Office of Government Ethics. Please verify the current allowance with your ethics counselor.
Free attendance may include waiver of all or part of a conference or other fee or the provision of food, refreshments, entertainment, instruction, and materials furnished to all attendees as an integral part of the event. It does not include travel expenses, lodging, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. (Under certain circumstances, DOI or your bureau may be able to accept travel expenses from outside sources to these events as described below in the “Traveling on Official Business” section of this Guide.)
Speaking Engagements. If you are assigned to participate as a speaker or panel participant or otherwise to present information on behalf of DOI at a conference or other event, you may accept free attendance at the event on the day of your presentation if it is provided by the sponsor of the event. For speaking engagements, free attendance has the same meaning as for widely attended gatherings. As with a widely attended gathering, you must receive approval prior to the event using the DI-1958 form.
If the event is longer than one day, and you are offered free attendance for any day(s) on which you are not assigned to present information on behalf of DOI or your bureau, waiver of the conference fee for those non-speaking days may be acceptable under the widely attended gathering exception to the gift rules.
Discounts and similar benefits that are offered to the public, other groups that you belong to, or to all Government employees. This exception includes favorable rates offered to all Government employees even when you are off duty. It also includes favorable rates and commercial discounts offered to members of a group or class in which membership is unrelated to Government employment.
Gifts based on the outside business or employment relationships (e.g., because of your outside affiliations, outside work, or other relationships and those of your spouse, if they are not enhanced due to your official position).
Awards and honorary degrees. Employees may accept awards (but not cash or investments) with an aggregate value of $200 or less given as a bona fide award for meritorious public service by a person who does not have interests affected by the employee’s performance or nonperformance of official duties. Awards valued at more than $200 require prior Departmental Ethics Office or bureau ethics counselor approval for honorary degrees, awards of cash of any amount, or items (including travel expenses).
Gifts from a political organization (given in connection with political activities permitted by the Hatch Act as amended, 5 U.S.C. §§ 7321 through 7326).
Gifts based on a personal relationship. You may accept a gift given under circumstances which make it clear that the gift is motivated solely by a family relationship or personal friendship rather than your position. If the gift is given for business reasons or is paid for by a prohibited source, it is not covered under this exception.
If there is no exclusion or exception available for an employee to accept a gift, the Department or bureau may be able to accept the tem as a gift to the Government using its statutory gift acceptance authority. Employees should consult with the Office of the Solicitor and the Departmental Ethics Office or an ethics counselor from their bureau in such cases, particularly if refusal to accept the gift would cause offense or embarrassment.
Gifts from Foreign Governments
In accordance with the Emoluments Clause of the U.S. Constitution, you may not accept anything of value from a foreign government, unless specifically authorized by Congress. This rule applies whether you are on or off duty. Any unit of a foreign government, whether it is national, state, local, or municipal level is covered. It also applies to gifts from international or multinational organizations comprised of government representatives. It also may apply to gifts of honoraria, travel, or per diem from foreign universities which are often considered as part of the foreign government. Spouses and dependent children of Federal employees are also banned from accepting gifts from foreign governments. The following gifts from foreign governments are authorized under the Foreign Gifts and Decorations Act:
- Gifts of minimal value ($335 or less, as of January 2008, but this amount is revised periodically)
- Transportation taking place entirely outside the U.S.
- Educational scholarships
- Medical treatment
In certain circumstances, particularly if refusal of a gift would cause embarrassment either to the United States or the foreign government offering the gift, the gift may be accepted on behalf of the Department. Employees should consult with the Departmental Ethics Office or ethics counselor from their Bureau regarding such gifts.
Gifts Between Employees
General Rules: You can’t give a gift to a person above you in your supervisory chain. You can’t solicit donations to buy a gift for a superior. You can’t accept a gift from an employee that receives less pay than yourself. However, there are some exceptions. Gifts are permissible if:
- There is a personal relationship between you and the other employee that would justify the gift and there is no subordinate-official superior relationship.
- The gift is personal hospitality provided at a residence, which is of a type and value you customarily provide to personal friends.
- The gift (bottle of wine, bouquet of flowers, etc.) is given in connection with the receipt of personal hospitality if of a type and value customarily given on such occasions.
- The gift (other than cash) has an aggregate market value of $10 or less per occasion, and is given on an occasion when gifts are normally exchanged.
- The gift is leave transferred under an approved agency leave sharing plan (but not to your immediate supervisor).
- There is a special and infrequently occurring occasion of personal significance, such as marriage, illness, the birth or adoption of a child; or an occasion that terminates a subordinate-official superior relationship, such as retirement, resignation or transfer. On such occasions, an employee may give a suitable and appropriate gift and may request donations of nominal amounts within the office for contributions toward the gift. Donations should be entirely voluntary. Employees must be free to contribute a suggested amount, a lesser amount, or nothing at all.
Traveling on Official Business
Generally, your official travel must be paid for with appropriated funds. However, under certain circumstances, DOI or your bureau may be reimbursed for your travel expenses by a non-Federal source. The authorities that permit this are explained below:
Travel Expense Acceptance Pursuant to 31 U.S.C. § 1353
This law allows Executive Branch agencies to accept reimbursement or in-kind donations from non-Federal sources for an employee’s transportation expenses (including per diem and registration costs) to certain functions related to the employee’s official duties.
Acceptance of travel expenses from non-Federal sources is only permitted when the employee’s travel is for attendance at a conference, meeting, seminar, training course, speaking engagement, or similar event for the exchange of information that takes place away from the employee’s official duty station. Travel under this authority may not be used for events required to carry out DOI’s statutory and regulatory functions such as investigations, inspections, audits, or site visits. In addition to an approved travel authorization, the employee must also have an approved ethics form DI-2000 (available on the DOI Ethics homepage at www.doi.gov/ethics) in advance of travel. Approval for accepting travel expenses is also subject to conflict of interest considerations. Acceptance of travel expenses from outside sources will not be approved if it would cause a reasonable person with knowledge of all the relevant facts to question the integrity of the programs or operations of the Department or bureau.
It is not permissible for the employee to personally accept reimbursement from an outside source. All checks must be made out to the Department of Interior or to the employee’s bureau. Employees may, however, accept “in kind” items such as airline tickets, meals, or hotel accommodations. In addition to accepting travel expenses for an employee, DOI may accept travel for a spouse to accompany the employee to the same event where the spouse’s presence is in the interest of DOI.
Other Authorities to Accept Travel Expenses
31 U.S.C. § 1353 is the preferred authority to use if reimbursement or in-kind donation of for travel expenses to a meeting or similar function is offered by an outside source. There are additional statutes which authorize acceptance of employees’ travel expenses for other than meetings or similar functions.
The authority under 5 U.S.C. § 4111 to accept travel expenses from non-profit organizations described by section 501(c)(3) of the Internal Revenue Code (with the approval of the Designated Agency Ethics Official or bureau ethics counselor), still exists when it is reasonably impractical for the agency to accept travel under 31 U.S.C. § 1353. Employees may also continue to accept travel expenses under the Intergovernmental Personnel Act when the employee is attending an event other than a conference or a meeting.
Other provisions which remain in effect are (1) the authority under 5 U.S.C. § 3343 for employees to accept travel expenses in connection with details to foreign governments and public international organizations, (2) the authority under 5 U.S.C. § 5751 for employees and agencies to accept travel expenses when summoned or assigned to provide official testimony on behalf of parties other than United States, and (3) the authority under 15 U.S.C. § 3710a to carry out agreements under the Federal Technology Transfer Act.
Finally, there are statutory authorities which allow bureaus to accept gifts of travel, food, and lodging, in connection with programs for the advancement of the Bureau of Indian Affairs, the National Park Service, the Fish and Wildlife Service, or other Bureau-specific programs that are not covered under 31 U.S.C. § 1353. Assistance in using these authorities is provided by the Departmental Ethics Office, ethics counselors from your bureau, and your Solicitor’s office.
Frequent Flyer Benefits
Federal employees may retain for personal use promotional items, including frequent flyer miles, earned on official travel.
OUTSIDE WORK AND ACTIVITIES
Outside work or activities are permitted unless they are prohibited by statute or regulation, or would require (to avoid a conflict of interest) the employee’s disqualification from matters central or critical to the performance of his or her official duties.
DOI regulations require all Department employees to seek prior written approval from a Departmental or bureau ethics counselor before engaging in paid or unpaid work with a prohibited source. For the purposes of these regulations, the definition of prohibited source and the components within the Department are the same as in the previous section on Gifts from Domestic and Private Sources. USGS employees must obtain prior written approval from the USGS Ethics Office for all outside work or activities (paid or unpaid) that are related to their USGS job duties or the USGS mission. Check with your bureau ethics counselor for any bureau-specific procedures or restrictions that may apply to your situation.
Presidentially appointed, Senate confirmed employees may pursue certain outside activities, but may not receive outside earned income for engaging in any such activity. Non-career SES employees may not, in any calendar year, receive outside earned income which exceeds 15% of the annual rate of basic pay for level II of the Executive Schedule.
All outside work must take place outside official duty hours or while you are on authorized leave.
In your official capacity –The Combined Federal Campaign (CFC) is the only authorized solicitation of employees for charitable fundraising in the Federal workplace. The rules governing acceptable fundraising activities by Federal employees are described in 5 C.F.R. Part 950. Generally, CFC fundraising activities that can be considered “gambling” are prohibited in Government-owned or leased buildings. Raffles and lotteries are prohibited in Government-owned or leased buildings and facilities except for very limited CFC activities permitted by 5 C.F.R. § 950.602(b).
In your personal capacity – An employee may generally engage in fundraising in a personal capacity outside the Federal workplace provided he or she does not:
- Personally solicit funds or other support from a subordinate or from any person the employee knows is a prohibited source (see Gifts from Domestic and Private Sources section above for definition of prohibited source)
- Use or permit the use of his or her official title, position, or any authority associated with his or her public office to further the fundraising effort
- Engage in any action that would otherwise violate the ethics laws or regulations
Employees and other persons are prohibited from selling or soliciting for personal gain within any building or on any lands occupied or used by DOI. Exception is granted for Department-authorized operations including, but not limited to, the Interior Department Recreation Association, the Indian Arts and Crafts store, and for cafeteria, newsstand, snack bar, and vending machine operations which are authorized by DOI for the benefit of employees or the public.
Teaching, Speaking, and Writing
Generally, you may not receive compensation, other than travel expenses, for outside teaching, speaking, or writing that relates to your official duties.
For purposes of this regulation, a teaching, speaking, or writing activity relates to your official duties if any one of the following criteria are met:
- The activity is undertaken as part of your official duties;
- The circumstances indicate that the invitation to engage in the activity was extended to you primarily because of your official position rather than your expertise on the particular subject matter;
- The invitation to engage in the activity or the offer of compensation for the activity was extended to you by a person who has interests that may be substantially affected by the performance or nonperformance of your official duties;
- The information conveyed through the activity draws substantially on nonpublic information; or
- The subject of the activity deals in significant part with:
1. A matter to which you are presently assigned or to which you have been assigned during the previous year; or
2. Any ongoing announced policy, program or operation of DOI.
Exception for Teaching Certain Courses – Even if the subject matter deals with your official duties, you may accept compensation for teaching a course requiring multiple presentations offered as the regularly established curriculum of an accredited institution of higher education, a secondary school, an elementary school, or a program of education sponsored and funded by the Federal Government or by a state or local government. You may only receive compensation under these circumstances for outside teaching, not for teaching carried out as part of your official responsibilities. If the class involves providing services to prohibited sources, prior approval is required.
Reference to Official Position – If you are engaged in teaching, speaking, or writing as an outside activity, you may not use or permit the use of your official title or position except:
- You may include your title or position as one of several biographical details when such information is given to identify you, provided that it is not given more prominence than other significant biographical details;
- You may use your title or position in connection with an article published in a scientific or professional journal, provided that it is accompanied by a disclaimer that the views expressed do not necessarily represent the views of DOI or the United States Government; and,
- If you are ordinarily addressed using a general term of address such as “The Honorable,” or a rank, such as a military or ambassadorial rank, you may use that term of address or rank.
Prior Approval Requirements – Before engaging in outside teaching, speaking, or writing for compensation, make sure that you comply with Department and bureau prior approval requirements for outside activities and employment.
Serving as an Officer or Member of a Board of Directors of an Outside Organization
Service as an officer or member of a board of directors of a non-Federal entity has the potential to undermine the fairness of our acquisition and administrative processes, and otherwise to call into question the integrity of our Department. Before entering into such a relationship, you must consult with the Departmental Ethics Office or your bureau ethics counselor.
Official Capacity – Service as an officer or member of a board of directors in one’s official capacity is generally considered a conflict of interest and violates the criminal conflict of interest statute (18 USC 208), unless a waiver is granted or there is specific Federal statutory authority to sit on the board in an official capacity. Any employee who wishes to serves on a board or as an office of a non-Federal organization in his or her official capacity should consult a serving ethics counselor for advice. As an alternative to serving as an officer or member of a board of directors, a DOI employee may be appointed to serve as a DOI liaison to a non-Federal entity. Liaisons serve as part of their official duties and represent DOI interests to the non-Federal entity in an advisory capacity only. Appointment as a liaison requires a written determination by the employee's supervisor that there is a significant and continuing DOI or bureau interest to be served by such representation and the approval of the employee's servicing ethics counselor. A liaison may not be involved in matters of management or control of the non-Federal entity. A liaison may officially represent DOI in discussions of matters of mutual interest with non-Federal entities provided it is made clear to the non-Federal entities that the opinions expressed by the liaison do not bind DOI or any bureau or office to any action.
Personal Capacity – A DOI employee who serves as an officer or member of a board of directors or as an advisor to a non-Federal entity in their personal capacity must also adhere to all conflict of interest statutes and standards of conduct regulations. Personnel may not accept such a position in their personal capacity if it is offered to them because of their official position. Such service in a personal capacity also increases the risk that DOI personnel may inadvertently violate, or appear to violate, the standards of conduct or engage in conduct that calls into question the employee’s impartiality.
Political Activities - DO's and DON’Ts The Hatch Act, 5 U.S.C. §§ 7321-7326, restricts Federal employee involvement in partisan political activity. Violation of the Hatch Act may result in removal from Federal employment or a suspension, without pay, of not less than 30 days. There are four different classes of employees under the Hatch Act:
- Career SES, Administrative Law Judges, Administrative Appeals Judges, and those that serve on the Contract Appeals Board are the most restricted group.
- GS or WG employees are in the lesser restricted group. • Non-career SES, Schedule C, and most other employees are in the moderately restricted group. This group may participate in certain partisan political activity, but only in a purely private capacity.
- Presidentially appointed, Senate-confirmed Personnel (PAS) are the least restricted group. PAS employees are subject to some restrictions, but they are less constrained in terms of where and when they can engage in political activity because of their 24-hour duty status.
Hatch Act Rules - see www.osc.gov for additional information and guidance
Off Duty, Off Premises Rule: Applies to everyone but PAS employees. “Off duty” means you may only engage in political activity while on annual leave or during non-duty hours. “Off premises” means you may not engage in political activity in buildings owned or leased by the Federal Government. No campaign buttons or posters for current political candidates may be displayed by Federal employees in a Government building. However, you may display a political bumper sticker on your personal car, even if parked in a Government garage. PAS employees may engage in political activity during work hours, but the campaign must pay for all their expenses.
No Use of Subordinates Rule: You may not solicit the participation of subordinates in political activity. For example, if a non-career SES employee is invited to a political event but cannot go, he or she should not request a subordinate employee to attend on his or her behalf.
No Use of Title Rule: You may not allow your title or your affiliation with DOI to be used in conjunction with any partisan political activity.
No Fundraising Rule: You may not solicit others to contribute to candidates for political office. You may attend fundraising events and may even speak, provided neither your title nor your affiliation is used, but you can’t say the words, “please give money” either verbally or in writing. Also, you may not collect, accept, or receive political contributions on behalf of a partisan candidate.
No Uniform/No Government Vehicle Rule: Applies to everyone but PAS employees. You may not engage in political activity while wearing an official uniform or using a Government vehicle. You may not display a political bumper sticker on a Government vehicle.
USE OF YOUR PUBLIC OFFICE
Use of Official Position for Private Gain
As a DOI employee, you may not use your public office for your own private gain or for the private gain of friends, relatives, business associates, or any other entity, no matter how worthy. Except as provided by law or regulation, you may not use or permit the use of your Government position or title or any authority associated with your public office in a manner that could reasonably be construed to imply that DOI or the Government sanctions or endorses any of your personal activities or the activities of another.
You may not use or permit the use of your Government position or title or any authority associated with your public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to yourself or to friends, relatives, or persons with whom you are affiliated in a nongovernmental capacity.
A DOI employee shall not use or permit the use of his Government position or title or any authority associated with his public office to endorse any product, service or enterprise except: (1) in furtherance of statutory authority to promote products, services, or enterprises; (2) as a result of documentation of compliance with agency requirements or standards; or (3) under an agency program in recognition for accomplishment in support of DOI’s mission.
You may endorse an outside program in your private capacity; however, your endorsement may not make reference to your official title or position within DOI or your bureau.
Letters of Recommendation – You may sign a letter of recommendation using your official title only in response to a request for an employment recommendation or character reference based upon personal knowledge of the ability or character of a person with whom you have dealt in the course of Federal employment or whom you are recommending for Federal employment.
NEPOTISM: GIVING PREFERENTIAL TREATMENT TO RELATIVES
Nepotism, or showing favoritism on the basis of family relationships, is prohibited. The Department’s policy on nepotism is based directly on the nepotism law in 5 U.S.C. § 3110. A public official may not appoint; employ; promote; advance; or advocate for the appointment, employment, promotion, or advancement of a relative in or to any civilian position in the agency in which the public official serves, or over which he or she exercises jurisdiction or control. This restriction encompasses all of DOI (in addition to all DOI bureaus). An individual appointed, employed, promoted or advanced in violation of the nepotism law is not entitled to pay.
Exceptions to the Nepotism Policy
When necessary to meet urgent needs resulting from an emergency posing an immediate threat to life or property, or a national emergency as defined in 5 C.F.R. § 230.402(a)(1), a public official may employ relatives to meet those needs without regard to the restrictions in 5 U.S.C. § 3110. Such appointments are temporary and may not exceed 30 days, but the agency may extend such an appointment for one additional 30-day period if the emergency need still exists at the time of the extension.
Questions regarding nepotism should be referred to your servicing Human Resources Office.
USE OF GOVERNMENT PROPERTY, TIME, AND INFORMATION
It is your responsibility as an employee to protect and conserve Government-owned or -leased property and vehicles and to use them only for authorized purposes.
You may NOT use Government purchasing authority for personal acquisitions (including your Government charge card) even if you reimburse the Government.
When leaving Government service, you may not remove Government property or files and you may not use Government copiers to make copies of files to take with you.
You are prohibited from using official Government envelopes (with or without applied postage) or official letterhead stationary for personal business. This includes mailing your resumes/applications for Federal or private positions. Violation of the prohibition against using franked (postage paid) envelopes may result in a fine. (18 U.S.C. § 1719)
You must use official time in an honest effort to perform official duties.
You are prohibited from engaging in any financial transaction using “insider” or nonpublic information (information not available to the public), or allowing the improper use of nonpublic information to further your own private interest or that of another.
The Department of the Interior’s limited use policy applies only to personal use of Department-owned or leased computers (and Internet service), telephones, fax machines, and non-color photocopiers. A Bureau or office may not change any part of this policy to relax the restrictions explained below.
This limited personal use policy does not apply to the use of Government-owned or leased motor vehicles, or to the use of Government charge cards. The policy applies to Government equipment used on Government premises. Employees may not, without proper authorization, remove Government equipment from the office for home use.
Use of Computers and the Internet
Employees may use Government computers and the Internet for personal use on their personal time (before and after work; during lunch and other breaks) provided there is no additional cost to the Government. Employees may make personal purchases over the Internet, provided they have the purchased item sent to a non-Government address. The following activities are absolutely prohibited on any Government-owned or leased computer:
- Visiting and downloading material from pornographic web sites
- Lobbying Congress or any Government agency
- Campaigning – political activity
- Online stock trading activities
- Online real estate activities • Online activities that are connected with any type of outside work or commercial activity, including day trading
- Endorsements of any products, services or organizations
- Fundraising for external organizations or purposes (except as required as part of your official duties under applicable statutory authority and bureau policy)
- Any type of continuous audio or video streaming from commercial, private, news, or financial organizations
Use of DOI E-Mail
The Department of the Interior does not place any restrictions on incoming e-mail. Under current policy, employees may send out personal e-mail provided that:
- Personal use of e-mail does not cause congestion, delay, or disruption of service to any Government system or equipment
- Messages are not sent to more then five addresses (no mass mailings)
- The employee does not represent himself or herself as acting in an official capacity
- Messages do not contain partisan political messages It is important to note that any e-mail on any DOI e-mail system may become an official record. Employees have no right to privacy for e-mail transmissions; DOI is often required to release employee e-mails pursuant to Inspector General, court, or congressional orders.
Use of DOI Telephones
Federal Employees may use Government property only as authorized. Employees may use DOI landline telephones for personal calls when they are necessary, provide a benefit to DOI, and do not result in any additional costs to the Government. Such calls are deemed to be in the Interest of the Government to the extent they enable employees to remain at their work stations, thereby increasing Government efficiency. Personal phone calls may not adversely affect the performance of official duties or the employee’s work performance, must be of reasonable duration and frequency, and could not reasonably have been made during non-duty hours. DOI cell phones may be used for personal calls only to the extent that such calls would be authorized on a DOI landline telephone AND so long as no additional costs are imposed on the Government.
Use of Government Transportation Subsidy Program Benefits
Benefits may only be used for qualifying transportation expenses, such as mass transit facilities (subway, rail, bus) or other similar public transportation mode, and are only available for days you actually commute to work. You must deduct any days you are on leave, official travel, or do not commute using qualified modes of transportation when you receive your next quarterly or monthly distribution. Benefits may not be used to pay for parking (for example, at a mass transit facility where you get on a train or a bus) and parking expenses must not be included in your estimated monthly commuting costs. Benefits are not transferable and you are required to return any unused benefits when you leave DOI.
Use of Government Travel Cards While in Official Travel Status
Government Travel Cards may only be used for official travel and may not be used for any personal purchases.
GAMBLING, RAFFLES, LOTTERIES, AND BETTING POOLS
Unless authorized by statute or regulation, all forms of gambling activities are prohibited at all times in facilities owned or leased by the Government. Federal employees may not engage in gambling activities while on duty. Prohibited gambling activities include, but are not limited to, raffles, lotteries, numbers (games), football pools, etc. See 5 C.F.R. § 735.201 and 41 C.F.R. § 102-74.395.
SERVING AS AN EXPERT WITNESS
You may not serve as an expert witness, in your private capacity, in any proceeding before a court or agency of the United States in which the U.S. is a party or has a direct and substantial interest, without prior approval from the head of the Departmental Ethics Office (the Designated Agency Ethics Official (DAEO)).
If you are subpoenaed to testify as an expert in any such matter, you must notify your supervisor and the DAEO immediately and request approval to proceed.
If you receive DAEO approval, you must still comply with DOI and bureau outside activities and work regulations. For instance, all DOI employees must obtain prior approval to work (paid or unpaid) for a prohibited source, and all USGS employees must obtain prior approval for any outside work or activity that is related to their USGS duties or the USGS mission.
PROCUREMENT INTEGRITY ACT - 41 U.S.C. § 423
You may not disclose “contractor bid or proposal information” or “source selection information” other than as provided for by law.
If you participate in a procurement in excess of $100,000, you must report to your supervisor and ethics counselor any contacts regarding potential employment from any contractor that submits an offer on the procurement. You must also reject the possibility of employment by that contractor or disqualify yourself from further participation in DOI matters involving the procurement, unless you obtain approval to participate from your ethics counselor If you are serving in one of seven specified positions (procuring contracting officer, program manager, source selection authority, etc.) or make one of seven specified types of decisions (award a contract, establish overhead rates, approve issuance of a payment, etc.), on a contract over $10 million, you may not accept compensation (as an employee, consultant, officer, or director) from the contractor for one year. Consult your ethics counselor for additional information on the Procurement Integrity Act.
SEEKING NON-FEDERAL EMPLOYMENT
The “seeking employment” rules are more restrictive than most Federal employees realize. The financial interests of any entity with which you are negotiating or have an arrangement concerning future employment are deemed to be the same as your own for purposes of the conflict of interest rules. There are criminal penalties if you participate in any DOI matters that affect the financial interests of a prospective employer. Furthermore, the Office of Government Ethics interprets any form of communication regarding prospective employment with a non-Federal source (other than requesting a job application) to be seeking employment. You must receive a written waiver from an ethics counselor before you participate in any particular matter at DOI that affects the financial interests of a prospective employer. Such waivers are only granted in limited circumstances. You are no longer seeking employment when either you or the prospective employer rejects the possibility of employment.
You are also no longer seeking employment if two months pass after you send an unsolicited resume and you receive no indication of interest. Any response to a prospective employer that defers discussions until the foreseeable future does not terminate employment discussions.
RESTRICTIONS ON POST-GOVERNMENT EMPLOYMENT (AFTER YOU LEAVE FEDERAL SERVICE)
After you leave Federal service, 18 U.S.C. § 207 imposes certain post-employment restrictions that may limit the type of work you may perform for your new employer for certain periods of time. The Procurement Integrity Act (41 U.S.C. § 423 – see above) imposes additional restrictions for certain employees who participated in costly procurement work. Former employees who are carrying out official duties as an employee or as an elected or appointed official of a tribal organization or inter-tribal consortium are not subject to 18 U.S.C. § 207 restrictions if they advise the Government, in writing, of any personal and substantial involvement they had as a Government employee in connection with the matter (see 25 U.S.C. § 450i(j)).
Lifetime Restriction - 18 U.S.C. § 207(a)(1)
If you participated personally and substantially in any particular matter involving specific parties (grants, contracts, licenses, permits, applications, litigation, etc.), involving specific parties, you may never communicate on behalf of any entity, to any Federal department, agency, or court (any Federal agency, not just your bureau or DOI) regarding that same particular matter.
Two-Year Restriction - 18 U.S.C. § 207(a)(2)
For matters under your official responsibility during your last year of Government service, you are restricted for two years after you leave Government service from representing any entity to any Federal department, agency, or court regarding those matters.
One-Year Restriction on Aiding and Advising - 18 U.S.C. § 207(b)
For one year after Government service terminates, you may not aid or advise any entity (other than the United States) concerning any ongoing trade or treaty negotiation in which you participated personally and substantially during your last year of Government service.
ADDITIONAL LAWS THAT APPLY TO FORMER SENIOR EMPLOYEES
(Levels II though V of the Executive Schedule and those paid equal to or greater than 86.5 % of the rate for level II of the Executive Schedule) AND FORMER VERY SENIOR EMPLOYEES (Level 1 of the Executive Schedule)
One Year Restriction on Communication with One’s Former Agency -18 U.S.C. § 207(c) - For one year after leaving senior service, no former “senior” employee may make, with the intent to influence, any communication to or appearance before the department or agency in which he or she served in the one year period prior to termination from senior service. Consult your ethics counselor for certain limited exceptions to this prohibition.
One Year Restriction Relating to Foreign Entities - 18 U.S.C. § 207(f) - For one year after leaving Government service, a former senior employee may not knowingly aid, advise, or represent a foreign entity, with the intent to influence the official actions of any employee of any U.S. agency or department.
Two-Year Restriction for Very Senior Employees - 18 U.S.C. § 207(d) - For two years after service in a very senior position, former Executive Level I employees and certain very senior employees in the Executive Office of the President are prohibited from making, with the intent to influence, any communication to or appearance before: (1) any individual appointed to an Executive Level position; or (2) any employee of a department or agency in which the former very senior employee served during his or her last year of Government service.
DISCLOSURE OF FINANCIAL INTERESTS
All DOI employees, including special Government employees, are subject to conflict of interest restrictions and may be required to file either a public or confidential financial disclosure report. These reports are among the primary tools used by ethics personnel to determine whether employees are in compliance with the ethics and standards of conduct provisions covering a particular position. Depending on your official position, grade, and employment status, you may be required to file either a public financial disclosure report (SF 278) or a confidential financial disclosure report (OGE Form 450).
SF 278 (Public Financial Disclosure Report)
Who files this report?
- Senate Confirmed (PAS) Presidential Appointees
- Senior Executive Service (SES) Employees
- Senior Level (SL) and Scientific and Professional (ST) Employees
- Schedule C Employees
- Certain Special Government Employees (SGEs)
- Certain Intergovernmental Personnel Act (IPA) Employees
What happens if the report is submitted late, is falsified, or is never filed? An employee who files more than 30 days after the statutory deadline (and any extension periods) is subject to a $200 late filing fee. This is a statutory requirement and the Department must enforce the penalty. Only in the rarest of cases may this late fee be waived by the Designated Agency Ethics Official. An employee who willfully falsifies his or her report may be subject to civil penalties and/or criminal prosecution by the Department of Justice. In addition, DOI or bureau disciplinary actions may be imposed if a report is not filed.
OGE Form 450 (Confidential Financial Disclosure Report) and OGE Optional Form 450-A (Certificate of No New Interests)
Who files these reports?
- Employees whose positions are designated by their bureau or office using the criteria in 5 C.F.R.§ 2634.904 because they have certain duties and responsibilities related to contracting, procurement, administering or monitoring grants, licenses, audits, etc. or to avoid a conflict of interest.
- Intergovernmental Personnel Act (IPA) employees and Special Government Employees (SGEs) who are not required to file an SF 278
What happens if the report is falsified, submitted late, or is never filed? An employee who willfully falsifies the information on his or her report, willfully omits information, or willfully fails to file may be subject to civil penalties and/or criminal prosecution under 18 U.S.C. §§ 1001 and 3571. Departmental disciplinary sanctions may also apply, up to and including removal from Government service.
Compliance with financial disclosure requirements is a condition of employment. Employees who are required to file and fail to do so in a timely manner may be subject to disciplinary action up to and including removal from Government service.
Department of Interior Ethics Office
1849 C Street, NW, MS 7346
Washington, DC 20240
202-208-7960 Fax: 202-208-5515
Bureau of Indian Affairs (BIA)
316 North 26th Street
Billings, MT 59101
Bureau of Reclamation (USBR)
P.O. Box 25007
Ethics Office Mail Code 84-50500
Denver Federal Center,Building 67
Denver, CO 80225-0007
Tel: 303-445-2741 Fax: 303-445-6464
Bureau of Safety and Environmental Enforcement (BSEE)
381 Elden Street, Mail Stop 2400
Herndon, VA 20170-4817
Tel: 703-787-1417 Fax: 703-787-1046
National Park Service (NPS)
1201 Eye St., NW, Rm. 1245, MS 2653
Washington, DC 20005
Tel: (202) 354-1981 Fax: (202) 371-5659
Office of the Inspector General (OIG)
12030 Sunrise Valley Drive
Suite 350 Reston, VA 20191
Tel: 703-487-5437 Fax: 703-487-5406
Office of Surface Mining Reclamation and Enforcement (OSMRE)
1951 Constitution Ave, NW
South Interior Building, Room 227
Washington, DC 20240
Tel: 202-208-2704 Fax: 202-219-3106
U.S. Fish and Wildlife Service (USFWS)
Regional Assistant Ethics Counselors:
Contact information on FWS Ethics webpage below
Ethics Program Manager/Deputy Ethics Counselor:
620 S.W. Main St. ,
Portland, OR 97205
Phone: (503) 326-2008 Fax: (503) 326-2494
U.S. Geological Survey (USGS)
12201 Sunrise Valley Drive, MS 603
Reston, VA 20192
Tel: 703-648-7474, 7422, and 7439
Bureau of Land Management (BLM)
200 M St., SE,
Room 2134 WO-700
Washington, D.C. 20003
Tel: 202-912-7486 Fax: 202-912-7172
National Indian Gaming Commission (NIGC)
1441 L Street, NW
Washington, DC 20005
Tel: 202-513-0344 Fax: 202-208-5515
Office of the Special Trustee (OST)
4400 Masthead Street, NE
Albuquerque, NM 87111
Tel: 505-816-1368 Fax: 505-816-1319
Disclaimer: Please note the codes in our collection might not necessarily be the most recent versions. Please contact the individual organizations or their websites to verify if a more recent or updated code of ethics is available. CSEP does not hold copyright on any of the codes of ethics in our collection. Any permission to use the codes must be sought from the individual organizations directly.
Standards of Ethical Conduct for Employees of the Executive Branch
Final Regulation Issued by the U.S. Office of Government Ethics Codified in 5 C.F.R. Part 2635
TABLE OF CONTENTS
SUBPART A - GENERAL PROVISIONS
§ 2635.101 Basic obligation of public service.
§ 2635.102 Definitions.
§ 2635.103 Applicability to members of the uniformed services.
§ 2635.104 Applicability to employees on detail.
§ 2635.105 Supplemental agency regulations.
§ 2635.106 Disciplinary and corrective action.
§ 2635.107 Ethics advice.
SUBPART B - GIFTS FROM OUTSIDE SOURCES
§ 2635.201 Overview.
§ 2635.202 General standards. § 2635.203 Definitions.
§ 2635.204 Exceptions.
§ 2635.205 Proper disposition of prohibited gifts.
SUBPART C - GIFTS BETWEEN EMPLOYEES
§ 2635.301 Overview.
§ 2635.302 General standards.
§ 2635.303 Definitions.
§ 2635.304 Exceptions.
SUBPART D - CONFLICTING FINANCIAL INTERESTS
§ 2635.401 Overview.
§ 2635.402 Disqualifying financial interests.
§ 2635.403 Prohibited financial interests.
SUBPART E - IMPARTIALITY IN PERFORMING OFFICIAL DUTIES
§ 2635.501 Overview. § 2635.502 Personal and business relationships.
§ 2635.503 Extraordinary payments from former employers.
SUBPART F - SEEKING OTHER EMPLOYMENT .
§ 2635.601 Overview.
§ 2635.602 Applicability and related considerations.
§ 2635.603 Definitions.§ 2635.604 Disqualification while seeking employment.
§ 2635.605 Waiver or authorization permitting participation while seeking employment.
§ 2635.606 Disqualification based on an arrangement concerning prospective employment or otherwise after negotiations.
SUBPART G - MISUSE OF POSITION
§ 2635.701 Overview.
§ 2635.702 Use of public office for private gain.
§ 2635.703 Use of nonpublic information.
§ 2635.704 Use of Government property.
§ 2635.705 Use of official time.
SUBPART H - OUTSIDE ACTIVITIES
§ 2635.801 Overview.
§ 2635.802 Conflicting outside employment and activities.
§ 2635.803 Prior approval for outside employment and activities.
§ 2635.804 Outside earned income limitations applicable to certain Presidential appointees and other noncareer employees.
§ 2635.805 Service as an expert witness.
§ 2635.806 Participation in professional associations. [Reserved]
§ 2635.807 Teaching, speaking and writing.
§ 2635.808 Fundraising activities.
§ 2635.809 Just financial obligations.
SUBPART I - RELATED STATUTORY AUTHORITIES
§ 2635.901 General.
§ 2635.902 Related statutes.
PART 2635 - STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH
SUBPART A - GENERAL PROVISIONS
§ 2635.101 Basic obligation of public service.
(a) Public service is a public trust. Each employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.
(b) General principles. The following general principles apply to every employee and may form the basis for the standards contained in this part. Where a situation is not covered by the standards set forth in this part, employees shall apply the principles set forth in this section in determining whether their conduct is proper.
(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty.
(3) Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of such information to further any private interest.
(4) An employee shall not, except as permitted by subpart B of this part, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
(5) Employees shall put forth honest effort in the performance of their duties.
(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private organization or individual. (9) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities. (10) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
(12) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as Federal, State, or local taxes—that are imposed by law.
(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
(c) Related statutes. In addition to the standards of ethical conduct set forth in this part, there are conflict of interest statutes that prohibit certain conduct. Criminal conflict of interest statutes of general applicability to all employees, 18 U.S.C. 201, 203, 205, 208, and 209, are summarized in the appropriate subparts of this part and must be taken into consideration in determining whether conduct is proper. Citations to other generally applicable statutes relating to employee conduct are set forth in subpart I and employees are further cautioned that there may be additional statutory and regulatory restrictions applicable to them generally or as employees of their specific agencies. Because an employee is considered to be on notice of the requirements of any statute, an employee should not rely upon any description or synopsis of a statutory restriction, but should refer to the statute itself and obtain the advice of an agency ethics official as needed.
§ 2635.102 Definitions.
The definitions listed below are used throughout this part. Additional definitions appear in the subparts or sections of subparts to which they apply. For purposes of this part:
(a) Agency means an executive agency as defined in 5 U.S.C. 105 and the Postal Service and the Postal Rate Commission. It does not include the General Accounting Office or the Government of the District of Columbia.
(b) Agency designee refers to any employee who, by agency regulation, instruction, or other issuance, has been delegated authority to make any determination, give any approval, or take any other action required or permitted by this part with respect to another employee. An agency may delegate these authorities to any number of agency designees necessary to ensure that determinations are made, approvals are given, and other actions are taken in a timely and responsible manner. Any provision that requires a determination, approval, or other action by the agency designee shall, where the conduct in issue is that of the agency head, be deemed to require that such determination, approval or action be made or taken by the agency head in consultation with the designated agency ethics official.
(c) Agency ethics official refers to the designated agency ethics official or to the alternate designated agency ethics official, referred to in §2638.202(b) of this chapter, and to any deputy ethics official, described in §2638.204 of this chapter, who has been delegated authority to assist in carrying out the responsibilities of the designated agency ethics official.
(d) Agency programs or operations refers to any program or function carried out or performed by an agency, whether pursuant to statute, Executive order, or regulation.
(e) Corrective action includes any action necessary to remedy a past violation or prevent a continuing violation of this part, including but not limited to restitution, change of assignment, disqualification, divestiture, termination of an activity, waiver, the creation of a qualified diversified or blind trust, or counseling.
(f) Designated agency ethics official refers to the official designated under §2638.201 of this chapter.
(g) Disciplinary action includes those disciplinary actions referred to in Office of Personnel Management regulations and instructions implementing provisions of title 5 of the United States Code or provided for in comparable provisions applicable to employees not subject to title 5, including but not limited to reprimand, suspension, demotion, and removal. In the case of a military officer, comparable provisions may include those in the Uniform Code of Military Justice.
(h) Employee means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. It includes employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. For purposes other than subparts B and C of this part, it does not include the President or Vice President. Status as an employee is unaffected by pay or leave status or, in the case of a special Government employee, by the fact that the individual does not perform official duties on a given day.
(i) Head of an agency means, in the case of an agency headed by more than one person, the chair or comparable member of such agency.
(j) He, his, and him include she, hers and her.
(k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society, joint stock company, or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity.
(l) Special Government employee means those executive branch officers or employees specified in 18 U.S.C. 202(a). A special Government employee is retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any consecutive 365-day period.
(m) Supplemental agency regulation means a regulation issued pursuant to §2635.105.
§ 2635.103 Applicability to members of the uniformed services.
The provisions of this part, except this section, are not applicable to enlisted members of the uniformed services. Each agency with jurisdiction over enlisted members of the uniformed services shall issue regulations defining the ethical conduct obligations of enlisted members under its jurisdiction. Those regulations shall be consistent with Executive Order 12674, April 12, 1989, as modified, and may prescribe the full range of statutory and regulatory sanctions, including those available under the Uniform Code of Military Justice, for failure to comply with such regulations.
§ 2635.104 Applicability to employees on detail.
(a) Details to other agencies. Except as provided in paragraph (d) of this section, an employee on detail, including a uniformed officer on assignment, from his employing agency to another agency for a period in excess of 30 calendar days shall be subject to any supplemental agency regulations of the agency to which he is detailed rather than to any supplemental agency regulations of his employing agency.
(b) Details to the legislative or judicial branch. An employee on detail, including a uniformed officer on assignment, from his employing agency to the legislative or judicial branch for a period in excess of 30 calendar days shall be subject to the ethical standards of the branch or entity to which detailed. For the duration of any such detail or assignment, the employee shall not be subject to the provisions of this part, except this section, or, except as provided in paragraph (d) of this section, to any supplemental agency regulations of his employing agency, but shall remain subject to the conflict of interest prohibitions in title 18 of the United States Code.
(c) Details to non-Federal entities. Except to the extent exempted in writing pursuant to this paragraph, an employee detailed to a non-Federal entity remains subject to this part and to any supplemental agency regulation of his employing agency. When an employee is detailed pursuant to statutory authority to an international organization or to a State or local government for a period in excess of six months, the designated agency ethics official may grant a written exemption from subpart B of this part based on his determination that the entity has adopted written ethical standards covering solicitation and acceptance of gifts which will apply to the employee during the detail and which will be appropriate given the purpose of the detail.
(d) Applicability of special agency statutes. Notwithstanding paragraphs (a) and (b) of this section, an employee who is subject to an agency statute which restricts his activities or financial holdings specifically because of his status as an employee of that agency shall continue to be subject to any provisions in the supplemental agency regulations of his employing agency that implement that statute.
§ 2635.105 Supplemental agency regulations.
In addition to the regulations set forth in this part, an employee shall comply with any supplemental agency regulations issued by his employing agency under this section.
(a) An agency that wishes to supplement this part shall prepare and submit to the Office of Government Ethics, for its concurrence and joint issuance, any agency regulations that supplement the regulations contained in this part. Supplemental agency regulations which the agency determines are necessary and appropriate, in view of its programs and operations, to fulfill the purposes of this part shall be:
(1) In the form of a supplement to the regulations in this part; and
(2) In addition to the substantive provisions of this part.
(b) After concurrence and co-signature by the Office of Government Ethics, the agency shall submit its supplemental agency regulations to the Federal Register for publication and codification at the expense of the agency in title 5 of the Code of Federal Regulations. Supplemental agency regulations issued under this section are effective only after concurrence and co-signature by the Office of Government Ethics and publication in the Federal Register.
(c) This section applies to any supplemental agency regulations or amendments thereof issued under this part. It does not apply to:
(1) A handbook or other issuance intended merely as an explanation of the standards contained in this part or in supplemental agency regulations;
(2) An instruction or other issuance the purpose of which is to: (i) Delegate to an agency designee authority to make any determination, give any approval or take any other action required or permitted by this part or by supplemental agency regulations; or (ii) Establish internal agency procedures for documenting or processing any determination, approval or other action required or permitted by this part or by supplemental agency regulations, or for retaining any such documentation; or
(3) Regulations or instructions that an agency has authority, independent of this part, to issue, such as regulations implementing an agency's gift acceptance statute, protecting categories of nonpublic information or establishing standards for use of Government vehicles. Where the content of any such regulations or instructions was included in the agency's standards of conduct regulations issued pursuant to Executive Order 11222 and the Office of Government Ethics concurs that they need not be issued as part of an agency's supplemental agency regulations, those regulations or instructions may be promulgated separately from the agency's supplemental agency regulations.
(d) Employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq., are subject to any requirements, in addition to those in this part, established by a supplemental agency regulation issued under this section to the extent that such regulation expressly provides.
§ 2635.106 Disciplinary and corrective action.
(a) Except as provided in §2635.107, a violation of this part or of supplemental agency regulations may be cause for appropriate corrective or disciplinary action to be taken under applicable Government wide regulations or agency procedures. Such action may be in addition to any action or penalty prescribed by law.
(b) It is the responsibility of the employing agency to initiate appropriate disciplinary or corrective action in individual cases. However, corrective action may be ordered or disciplinary action recommended by the Director of the Office of Government Ethics under the procedures at part 2638 of this chapter.
(c) A violation of this part or of supplemental agency regulations, as such, does not create any right or benefit, substantive or procedural, enforceable at law by any person against the United States, its agencies, its officers or employees, or any other person. Thus, for example, an individual who alleges that an employee has failed to adhere to laws and regulations that provide equal opportunity regardless of race, color, religion, sex, national origin, age, or handicap is required to follow applicable statutory and regulatory procedures, including those of the Equal Employment Opportunity Commission.
§ 2635.107 Ethics advice.
(a) As required by §§2638.201 and 2638.202(b) of this chapter, each agency has a designated agency ethics official who, on the agency's behalf, is responsible for coordinating and managing the agency's ethics program, as well as an alternate. The designated agency ethics official has authority under §2638.204 of this chapter to delegate certain responsibilities, including that of providing ethics counseling regarding the application of this part, to one or more deputy ethics officials.
(b) Employees who have questions about the application of this part or any supplemental agency regulations to particular situations should seek advice from an agency ethics official. Disciplinary action for violating this part or any supplemental agency regulations will not be taken against an employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics official, provided that the employee, in seeking such advice, has made full disclosure of all relevant circumstances. Where the employee's conduct violates a criminal statute, reliance on the advice of an agency ethics official cannot ensure that the employee will not be prosecuted under that statute. However, good faith reliance on the advice of an agency ethics official is a factor that may be taken into account by the Department of Justice in the selection of cases for prosecution. Disclosures made by an employee to an agency ethics official are not protected by an attorney-client privilege. An agency ethics official is required by 28 U.S.C. 535 to report any information he receives relating to a violation of the criminal code, title 18 of the United States Code.
SUBPART B - GIFTS FROM OUTSIDE SOURCES
§ 2635.201 Overview.
This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or given because of the employee's official position unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
§ 2635.202 General standards.
(a) General prohibitions. Except as provided in this subpart, an employee shall not, directly or indirectly, solicit or accept a gift:
(1) From a prohibited source; or
(2) Given because of the employee's official position.
(b) Relationship to illegal gratuities statute. Unless accepted in violation of paragraph (c)(1) of this section, a gift accepted under the standards set forth in this subpart shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).
(c) Limitations on use of exceptions. Notwithstanding any exception provided in this subpart, other than §2635.204(j), an employee shall not:
- (1) Accept a gift in return for being influenced in the performance of an official act;
- (2) Solicit or coerce the offering of a gift;
- (3) Accept gifts from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using his public office for private gain;
Example 1: A purchasing agent for a Veterans Administration hospital routinely deals with representatives of pharmaceutical manufacturers who provide information about new company products. Because of his crowded calendar, the purchasing agent has offered to meet with manufacturer representatives during his lunch hours Tuesdays through Thursdays and the representatives routinely arrive at the employee's office bringing a sandwich and a soft drink for the employee. Even though the market value of each of the lunches is less than $6 and the aggregate value from any one manufacturer does not exceed the $50 aggregate limitation in §2635.204(a) on de minimis gifts of $20 or less, the practice of accepting even these modest gifts on a recurring basis is improper.
(4) Accept a gift in violation of any statute. Relevant statutes applicable to all employees include:
(i) 18 U.S.C. 201(b), which prohibits a public official from seeking, accepting, or agreeing to receive or accept anything of value in return for being influenced in the performance of an official act or for being induced to take or omit to take any action in violation of his official duty. As used in 18 U.S.C. 201(b), the term “public official” is broadly construed and includes regular and special Government employees as well as all other Government officials; and
(ii) 18 U.S.C. 209, which prohibits an employee, other than a special Government employee, from receiving any salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government employee. The statute contains several specific exceptions to this general prohibition, including an exception for contributions made from the treasury of a State, county, or municipality; or
(5) Accept vendor promotional training contrary to applicable regulations, policies or guidance relating to the procurement of supplies and services for the Government, except pursuant to §2635.204(l).
§ 2635.203 Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Agency has the meaning set forth in §2635.102(a). However, for purposes of this subpart, an executive department, as defined in 5 U.S.C. 101, may, by supplemental agency regulation, designate as a separate agency any component of that department which the department determines exercises distinct and separate functions.
(b) Gift includes any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred. It does not include:
(1) Modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal;
(2) Greeting cards and items with little intrinsic value, such as plaques, certificates, and trophies, which are intended solely for presentation;
(3) Loans from banks and other financial institutions on terms generally available to the public;
(4) Opportunities and benefits, including favorable rates and commercial discounts, available to the public or to a class consisting of all Government employees or all uniformed military personnel, whether or not restricted on the basis of geographic considerations;
(5) Rewards and prizes given to competitors in contests or events, including random drawings, open to the public unless the employee's entry into the contest or event is required as part of his official duties;
(6) Pension and other benefits resulting from continued participation in an employee welfare and benefits plan maintained by a former employer;
(7) Anything which is paid for by the Government or secured by the Government under Government contract; Note: Some airlines encourage those purchasing tickets to join programs that award free flights and other benefits to frequent fliers. Any such benefit earned on the basis of Government-financed travel belongs to the agency rather than to the employee and may be accepted only insofar as provided under 41 CFR 301–53.
(8) Any gift accepted by the Government under specific statutory authority, including:
(i) Travel, subsistence, and related expenses accepted by an agency under the authority of 31 U.S.C. 1353 in connection with an employee's attendance at a meeting or similar function relating to his official duties which takes place away from his duty station. The agency's acceptance must be in accordance with the implementing regulations at 41 CFR part 304–1; and
(ii) Other gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute; or
(9) Anything for which market value is paid by the employee.
(c) Market value means the retail cost the employee would incur to purchase the gift. An employee who cannot ascertain the market value of a gift may estimate its market value by reference to the retail cost of similar items of like quality. The market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit shall be the face value of the ticket.
Example 1: An employee who has been given an acrylic paperweight embedded with the corporate logo of a prohibited source may determine its market value based on her observation that a comparable acrylic paperweight, not embedded with a logo, generally sells for about $20.
Example 2: A prohibited source has offered an employee a ticket to a charitable event consisting of a cocktail reception to be followed by an evening of chamber music. Even though the food, refreshments, and entertainment provided at the event may be worth only $20, the market value of the ticket is its $250 face value.
(d) Prohibited source means any person who:
(1) Is seeking official action by the employee's agency;
(2) Does business or seeks to do business with the employee's agency;
(3) Conducts activities regulated by the employee's agency;
(4) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties; or
(5) Is an organization a majority of whose members are described in paragraphs (d) (1) through (4) of this section.
(e) A gift is solicited or accepted because of the employee's official position if it is from a person other than an employee and would not have been solicited, offered, or given had the employee not held the status, authority or duties associated with his Federal position. Note: Gifts between employees are subject to the limitations set forth in subpart C of this part.
Example 1: Where free season tickets are offered by an opera guild to all members of the Cabinet, the gift is offered because of their official positions.
Example 2: Employees at a regional office of the Department of Justice (DOJ) work in Government-leased space at a private office building, along with various private business tenants. A major fire in the building during normal office hours causes a traumatic experience for all occupants of the building in making their escape, and it is the subject of widespread news coverage. A corporate hotel chain, which does not meet the definition of a prohibited source for DOJ, seizes the moment and announces that it will give a free night's lodging to all building occupants and their families, as a public goodwill gesture. Employees of DOJ may accept, as this gift is not being given because of their Government positions. The donor's motivation for offering this gift is unrelated to the DOJ employees' status, authority or duties associated with their Federal position, but instead is based on their mere presence in the building as occupants at the time of the fire.
(f) A gift which is solicited or accepted indirectly includes a gift:
(1) Given with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative because of that person's relationship to the employee, or
(2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee, except as permitted for the disposition of perishable items by §2635.205(a)(2).
Example 1: An employee who must decline a gift of a personal computer pursuant to this subpart may not suggest that the gift be given instead to one of five charitable organizations whose names are provided by the employee.
(g) Vendor promotional training means training provided by any person for the purpose of promoting its products or services. It does not include training provided under a Government contract or by a contractor to facilitate use of products or services it furnishes under a Government contract.
§ 2635.204 Exceptions.
The prohibitions set forth in §2635.202(a) do not apply to a gift accepted under the circumstances described in paragraphs (a) through (l) of this section, and an employee's acceptance of a gift in accordance with one of those paragraphs will be deemed not to violate the principles set forth in §2635.101(b), including appearances. Even though acceptance of a gift may be permitted by one of the exceptions contained in paragraphs (a) through (l) of this section, it is never inappropriate and frequently prudent for an employee to decline a gift offered by a prohibited source or because of his official position.
(a) Gifts of $20 or less. An employee may accept unsolicited gifts having an aggregate market value of $20 or less per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph shall not exceed $50 in a calendar year. This exception does not apply to gifts of cash or of investment interests such as stock, bonds, or certificates of deposit. Where the market value of a gift or the aggregate market value of gifts offered on any single occasion exceeds $20, the employee may not pay the excess value over $20 in order to accept that portion of the gift or those gifts worth $20. Where the aggregate value of tangible items offered on a single occasion exceeds $20, the employee may decline any distinct and separate item in order to accept those items aggregating $20 or less.
Example 1: An employee of the Securities and Exchange Commission and his spouse have been invited by a representative of a regulated entity to a Broadway play, tickets to which have a face value of $30 each. The aggregate market value of the gifts offered on this single occasion is $60, $40 more than the $20 amount that may be accepted for a single event or presentation. The employee may not accept the gift of the evening of entertainment. He and his spouse may attend the play only if he pays the full $60 value of the two tickets.
Example 2: An employee of the Defense Mapping Agency has been invited by an association of cartographers to speak about his agency's role in the evolution of missile technology. At the conclusion of his speech, the association presents the employee a framed map with a market value of $18 and a book about the history of cartography with a market value of $15. The employee may accept the map or the book, but not both, since the aggregate value of these two tangible items exceeds $20.
Example 3: On four occasions during the calendar year, an employee of the Defense Logistics Agency was given gifts worth $10 each by four employees of a corporation that is a DLA contractor. For purposes of applying the yearly $50 limitation on gifts of $20 or less from any one person, the four gifts must be aggregated because a person is defined at §2635.102(k) to mean not only the corporate entity, but its officers and employees as well. However, for purposes of applying the $50 aggregate limitation, the employee would not have to include the value of a birthday present received from his cousin, who is employed by the same corporation, if he can accept the birthday present under the exception at §2635.204(b) for gifts based on a personal relationship.
Example 4: Under the authority of 31 U.S.C. 1353 for agencies to accept payments from non-Federal sources in connection with attendance at certain meetings or similar functions, the Environmental Protection Agency has accepted an association's gift of travel expenses and conference fees for an employee of its Office of Radiation Programs to attend an international conference on “The Chernobyl Experience.” While at the conference, the employee may accept a gift of $20 or less from the association or from another person attending the conference even though it was not approved in advance by the EPA. Although 31 U.S.C. 1353 is the only authority under which an agency may accept gifts from certain non-Federal sources in connection with its employees' attendance at such functions, a gift of $20 or less accepted under §2635.204(a) is a gift to the employee rather than to his employing agency.
Example 5: During off-duty time, an employee of the Department of Defense (DOD) attends a trade show involving companies that are DOD contractors. He is offered a $15 computer program disk at X Company's booth, a $12 appointments calendar at Y Company's booth, and a deli lunch worth $8 from Z Company. The employee may accept all three of these items because they do not exceed $20 per source, even though they total more than $20 at this single occasion.
(b) Gifts based on a personal relationship. An employee may accept a gift given under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history of the relationship and whether the family member or friend personally pays for the gift.
Example 1: An employee of the Federal Deposit Insurance Corporation has been dating a secretary employed by a member bank. For Secretary's Week, the bank has given each secretary 2 tickets to an off-Broadway musical review and has urged each to invite a family member or friend to share the evening of entertainment. Under the circumstances, the FDIC employee may accept his girlfriend's invitation to the theater. Even though the tickets were initially purchased by the member bank, they were given without reservation to the secretary to use as she wished, and her invitation to the employee was motivated by their personal friendship.
Example 2: Three partners in a law firm that handles corporate mergers have invited an employee of the Federal Trade Commission to join them in a golf tournament at a private club at the firm's expense. The entry fee is $500 per foursome. The employee cannot accept the gift of one-quarter of the entry fee even though he and the three partners have developed an amicable relationship as a result of the firm's dealings with the FTC. As evidenced in part by the fact that the fees are to be paid by the firm, it is not a personal friendship but a business relationship that is the motivation behind the partners' gift.
(c) Discounts and similar benefits. In addition to those opportunities and benefits excluded from the definition of a gift by §2635.203(b)(4), an employee may accept:
(1) Reduced membership or other fees for participation in organization activities offered to all Government employees or all uniformed military personnel by professional organizations if the only restrictions on membership relate to professional qualifications; and (
2) Opportunities and benefits, including favorable rates and commercial discounts not precluded by paragraph (c)(3) of this section:
(i) Offered to members of a group or class in which membership is unrelated to Government employment;
(ii) Offered to members of an organization, such as an employees' association or agency credit union, in which membership is related to Government employment if the same offer is broadly available to large segments of the public through organizations of similar size; or
(iii) Offered by a person who is not a prohibited source to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of type of official responsibility or on a basis that favors those of higher rank or rate of pay; provided, however, that
(3) An employee may not accept for personal use any benefit to which the Government is entitled as the result of an expenditure of Government funds.
Example 1: An employee of the Consumer Product Safety Commission may accept a discount of $50 on a microwave oven offered by the manufacturer to all members of the CPSC employees' association. Even though the CPSC is currently conducting studies on the safety of microwave ovens, the $50 discount is a standard offer that the manufacturer has made broadly available through a number of similar organizations to large segments of the public.
Example 2: An Assistant Secretary may not accept a local country club's offer of membership to all members of Department Secretariats which includes a waiver of its $5,000 membership initiation fee. Even though the country club is not a prohibited source, the offer discriminates in favor of higher ranking officials.
Example 3: The administrative officer for a district office of the Immigration and Naturalization Service has signed an INS order to purchase 50 boxes of photocopy paper from a supplier whose literature advertises that it will give a free briefcase to anyone who purchases 50 or more boxes. Because the paper was purchased with INS funds, the administrative officer cannot keep the briefcase which, if claimed and received, is Government property.
(d) Awards and honorary degrees.
(1) An employee may accept gifts, other than cash or an investment interest, with an aggregate market value of $200 or less if such gifts are a bona fide award or incident to a bona fide award that is given for meritorious public service or achievement by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee's official duties or by an association or other organization the majority of whose members do not have such interests. Gifts with an aggregate market value in excess of $200 and awards of cash or investment interests offered by such persons as awards or incidents of awards that are given for these purposes may be accepted upon a written determination by an agency ethics official that the award is made as part of an established program of recognition:
(i) Under which awards have been made on a regular basis or which is funded, wholly or in part, to ensure its continuation on a regular basis; and
(ii) Under which selection of award recipients is made pursuant to written standards.
(2) An employee may accept an honorary degree from an institution of higher education as defined at 20 U.S.C. 1141(a) based on a written determination by an agency ethics official that the timing of the award of the degree would not cause a reasonable person to question the employee's impartiality in a matter affecting the institution.
(3) An employee who may accept an award or honorary degree pursuant to paragraph (d)(1) or (2) of this section may also accept meals and entertainment given to him and to members of his family at the event at which the presentation takes place.
Example 1: Based on a determination by an agency ethics official that the prize meets the criteria set forth in §2635.204(d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.
Example 2: Prestigious University wishes to give an honorary degree to the Secretary of Labor. The Secretary may accept the honorary degree only if an agency ethics official determines in writing that the timing of the award of the degree would not cause a reasonable person to question the Secretary's impartiality in a matter affecting the university.
Example 3: An ambassador selected by a nonprofit organization as recipient of its annual award for distinguished service in the interest of world peace may, together with his wife, and children, attend the awards ceremony dinner and accept a crystal bowl worth $200 presented during the ceremony. However, where the organization has also offered airline tickets for the ambassador and his family to travel to the city where the awards ceremony is to be held, the aggregate value of the tickets and the crystal bowl exceeds $200 and he may accept only upon a written determination by the agency ethics official that the award is made as part of an established program of recognition.
(e) Gifts based on outside business or employment relationships. An employee may accept meals, lodgings, transportation and other benefits:
(1) Resulting from the business or employment activities of an employee's spouse when it is clear that such benefits have not been offered or enhanced because of the employee's official position;
Example 1: A Department of Agriculture employee whose husband is a computer programmer employed by an Agriculture Department contractor may attend the company's annual retreat for all of its employees and their families held at a resort facility. However, under §2635.502, the employee may be disqualified from performing official duties affecting her husband's employer.
Example 2: Where the spouses of other clerical personnel have not been invited, an employee of the Defense Contract Audit Agency whose wife is a clerical worker at a defense contractor may not attend the contractor's annual retreat in Hawaii for corporate officers and members of the board of directors, even though his wife received a special invitation for herself and her spouse.
(2) Resulting from his outside business or employment activities when it is clear that such benefits have not been offered or enhanced because of his official status; or
Example 1: The members of an Army Corps of Engineers environmental advisory committee that meets 6 times per year are special Government employees. A member who has a consulting business may accept an invitation to a $50 dinner from her corporate client, an Army construction contractor, unless, for example, the invitation was extended in order to discuss the activities of the committee.
(3) Customarily provided by a prospective employer in connection with bona fide employment discussions. If the prospective employer has interests that could be affected by performance or nonperformance of the employee's duties, acceptance is permitted only if the employee first has complied with the disqualification requirements of subpart F of this part applicable when seeking employment.
Example 1: An employee of the Federal Communications Commission with responsibility for drafting regulations affecting all cable television companies wishes to apply for a job opening with a cable television holding company. Once she has properly disqualified herself from further work on the regulations as required by subpart F of this part, she may enter into employment discussions with the company and may accept the company's offer to pay for her airfare, hotel and meals in connection with an interview trip.
(4) For purposes of paragraphs (e)(1) through (3) of this section, employment shall have the meaning set forth in §2635.603(a).
(f) Gifts in connection with political activities permitted by the Hatch Act Reform Amendments. An employee who, in accordance with the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in political management or in political campaigns, may accept meals, lodgings, transportation and other benefits, including free attendance at events, when provided, in connection with such active participation, by a political organization described in 26 U.S.C. 527(e). Any other employee, such as a security officer, whose official duties require him to accompany an employee to a political event may accept meals, free attendance and entertainment provided at the event by such an organization.
Example 1: The Secretary of the Department of Health and Human Services may accept an airline ticket and hotel accommodations furnished by the campaign committee of a candidate for the United States Senate in order to give a speech in support of the candidate.
(g) Widely attended gatherings and other events —
(1) Speaking and similar engagements. When an employee is assigned to participate as a speaker or panel participant or otherwise to present information on behalf of the agency at a conference or other event, his acceptance of an offer of free attendance at the event on the day of his presentation is permissible when provided by the sponsor of the event. The employee's participation in the event on that day is viewed as a customary and necessary part of his performance of the assignment and does not involve a gift to him or to the agency.
(2) Widely attended gatherings. When there has been a determination that his attendance is in the interest of the agency because it will further agency programs and operations, an employee may accept an unsolicited gift of free attendance at all or appropriate parts of a widely attended gathering of mutual interest to a number of parties from the sponsor of the event or, if more than 100 persons are expected to attend the event and the gift of free attendance has a market value of $335 or less, from a person other than the sponsor of the event. A gathering is widely attended if it is expected that a large number of persons will attend and that persons with a diversity of views or interests will be present, for example, if it is open to members from throughout the interested industry or profession or if those in attendance represent a range of persons interested in a given matter. For employees subject to a leave system, attendance at the event shall be on the employee's own time or, if authorized by the employee's agency, on excused absence pursuant to applicable guidelines for granting such absence, or otherwise without charge to the employee's leave account.
(3) Determination of agency interest. The determination of agency interest required by paragraph (g)(2) of this section shall be made orally or in writing by the agency designee.
(i) If the person who has extended the invitation has interests that may be substantially affected by the performance or nonperformance of an employee's official duties or is an association or organization the majority of whose members have such interests, the employee's participation may be determined to be in the interest of the agency only where there is a written finding by the agency designee that the agency's interest in the employee's participation in the event outweighs the concern that acceptance of the gift of free attendance may or may appear to improperly influence the employee in the performance of his official duties. Relevant factors that should be considered by the agency designee include the importance of the event to the agency, the nature and sensitivity of any pending matter affecting the interests of the person who has extended the invitation, the significance of the employee's role in any such matter, the purpose of the event, the identity of other expected participants and the market value of the gift of free attendance.
(ii) A blanket determination of agency interest may be issued to cover all or any category of invitees other than those as to whom the finding is required by paragraph (g)(3)(i) of this section. Where a finding under paragraph (g)(3)(i) of this section is required, a written determination of agency interest, including the necessary finding, may be issued to cover two or more employees whose duties similarly affect the interests of the person who has extended the invitation or, where that person is an association or organization, of its members.
(4) Free attendance. For purposes of paragraphs (g)(1) and (g)(2) of this section, free attendance may include waiver of all or part of a conference or other fee or the provision of food, refreshments, entertainment, instruction and materials furnished to all attendees as an integral part of the event. It does not include travel expenses, lodgings, entertainment collateral to the event, or meals taken other than in a group setting with all other attendees. Where the invitation has been extended to an accompanying spouse or other guest (see paragraph (g)(6) of this section), the market value of the gift of free attendance includes the market value of free attendance by the spouse or other guest as well as the market value of the employee's own attendance. Note: There are statutory authorities implemented other than by part 2635 under which an agency or an employee may be able to accept free attendance or other items not included in the definition of free attendance, such as travel expenses.
(5) Cost provided by sponsor of event. The cost of the employee's attendance will not be considered to be provided by the sponsor, and the invitation is not considered to be from the sponsor of the event, where a person other than the sponsor designates the employee to be invited and bears the cost of the employee's attendance through a contribution or other payment intended to facilitate that employee's attendance. Payment of dues or a similar assessment to a sponsoring organization does not constitute a payment intended to facilitate a particular employee's attendance.
(6) Accompanying spouse or other guest. When others in attendance will generally be accompanied by a spouse or other guest, and where the invitation is from the same person who has invited the employee, the agency designee may authorize an employee to accept an unsolicited invitation of free attendance to an accompanying spouse or to another accompanying guest to participate in all or a portion of the event at which the employee's free attendance is permitted under paragraph (g)(1) or (g)(2) of this section. The authorization required by this paragraph may be provided orally or in writing.
Example 1: An aerospace industry association that is a prohibited source sponsors an industrywide, two-day seminar for which it charges a fee of $400 and anticipates attendance of approximately 400. An Air Force contractor pays $2,000 to the association so that the association can extend free invitations to five Air Force officials designated by the contractor. The Air Force officials may not accept the gifts of free attendance. Because the contractor specified the invitees and bore the cost of their attendance, the gift of free attendance is considered to be provided by the company and not by the sponsoring association. Had the contractor paid $2,000 to the association in order that the association might invite any five Federal employees, an Air Force official to whom the sponsoring association extended one of the five invitations could attend if his participation were determined to be in the interest of the agency. The Air Force official could not in any case accept an invitation directly from the nonsponsor contractor because the market value of the gift exceeds $335.
Example 2: An employee of the Department of Transportation is invited by a news organization to an annual press dinner sponsored by an association of press organizations. Tickets for the event cost $335 per person and attendance is limited to 400 representatives of press organizations and their guests. If the employee's attendance is determined to be in the interest of the agency, she may accept the invitation from the news organization because more than 100 persons will attend and the cost of the ticket does not exceed $335. However, if the invitation were extended to the employee and an accompanying guest, her guest could not be authorized to attend for free since the market value of the gift of free attendance would be $670 and the invitation is from a person other than the sponsor of the event.
Example 3: An employee of the Department of Energy (DOE) and his wife have been invited by a major utility executive to a small dinner party. A few other officials of the utility and their spouses or other guests are also invited, as is a representative of a consumer group concerned with utility rates and her husband. The DOE official believes the dinner party will provide him an opportunity to socialize with and get to know those in attendance. The employee may not accept the free invitation under this exception, even if his attendance could be determined to be in the interest of the agency. The small dinner party is not a widely attended gathering. Nor could the employee be authorized to accept even if the event were instead a corporate banquet to which forty company officials and their spouses or other guests were invited. In this second case, notwithstanding the larger number of persons expected (as opposed to the small dinner party just noted) and despite the presence of the consumer group representative and her husband who are not officials of the utility, those in attendance would still not represent a diversity of views or interests. Thus, the company banquet would not qualify as a widely attended gathering under those circumstances either.
Example 4: An employee of the Department of the Treasury authorized to participate in a panel discussion of economic issues as part of a one-day conference may accept the sponsor's waiver of the conference fee. Under the separate authority of §2635.204(a), he may accept a token of appreciation for his speech having a market value of $20 or less.
Example 5: An Assistant U.S. Attorney is invited to attend a luncheon meeting of a local bar association to hear a distinguished judge lecture on cross-examining expert witnesses. Although members of the bar association are assessed a $15 fee for the meeting, the Assistant U.S. Attorney may accept the bar association's offer to attend for free, even without a determination of agency interest. The gift can be accepted under the $20 de minimis exception at §2635.204(a).
Example 6: An employee of the Department of the Interior authorized to speak on the first day of a four-day conference on endangered species may accept the sponsor's waiver of the conference fee for the first day of the conference. If the conference is widely attended, he may be authorized, based on a determination that his attendance is in the agency's interest, to accept the sponsor's offer to waive the attendance fee for the remainder of the conference.
(h) Social invitations from persons other than prohibited sources. An employee may accept food, refreshments and entertainment, not including travel or lodgings, at a social event attended by several persons where:
(1) The invitation is from a person who is not a prohibited source; and (2) No fee is charged to any person in attendance.
Example 1: Along with several other Government officials and a number of individuals from the private sector, the Administrator of the Environmental Protection Agency has been invited to the premier showing of a new adventure movie about industrial espionage. The producer is paying all costs of the showing. The Administrator may accept the invitation since the producer is not a prohibited source and no attendance fee is being charged to anyone who has been invited.
Example 2: An employee of the White House Press Office has been invited to a cocktail party given by a noted Washington hostess who is not a prohibited source. The employee may attend even though he has only recently been introduced to the hostess and suspects that he may have been invited because of his official position.
(i) Meals, refreshments and entertainment in foreign areas. An employee assigned to duty in, or on official travel to, a foreign area as defined in 41 CFR 301–7.3(c) may accept food, refreshments or entertainment in the course of a breakfast, luncheon, dinner or other meeting or event provided:
(1) The market value in the foreign area of the food, refreshments or entertainment provided at the meeting or event, as converted to U.S. dollars, does not exceed the per diem rate for the foreign area specified in the U.S. Department of State's Maximum Per Diem Allowances for Foreign Areas, Per Diem Supplement Section 925 to the Standardized Regulations (GC, FA) available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402;
(2) There is participation in the meeting or event by non-U.S. citizens or by representatives of foreign governments or other foreign entities;
(3) Attendance at the meeting or event is part of the employee's official duties to obtain information, disseminate information, promote the export of U.S. goods and services, represent the United States or otherwise further programs or operations of the agency or the U.S. mission in the foreign area; and
(4) The gift of meals, refreshments or entertainment is from a person other than a foreign government as defined in 5 U.S.C. 7342(a)(2).
Example 1: A number of local businessmen in a developing country are anxious for a U.S. company to locate a manufacturing facility in their province. An official of the Overseas Private Investment Corporation may accompany the visiting vice president of the U.S. company to a dinner meeting hosted by the businessmen at a province restaurant where the market value of the food and refreshments does not exceed the per diem rate for that country.
(j) Gifts to the President or Vice President. Because of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or the Vice President may accept any gift on his own behalf or on behalf of any family member, provided that such acceptance does not violate §2635.202(c) (1) or (2), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.
(k) Gifts authorized by supplemental agency regulation. An employee may accept any gift the acceptance of which is specifically authorized by a supplemental agency regulation.
(l) Gifts accepted under specific statutory authority. The prohibitions on acceptance of gifts from outside sources contained in this subpart do not apply to any item, receipt of which is specifically authorized by statute. Gifts which may be received by an employee under the authority of specific statutes include, but are not limited to:
(1) Free attendance, course or meeting materials, transportation, lodgings, food and refreshments or reimbursements therefor incident to training or meetings when accepted by the employee under the authority of 5 U.S.C. 4111 from an organization with tax-exempt status under 26 U.S.C. 501(c)(3) or from a person to whom the prohibitions in 18 U.S.C. 209 do not apply. The employee's acceptance must be approved by the agency in accordance with part 410 of this title; or
Note: 26 U.S.C. 501(c)(3) is authority for tax-exempt treatment of a limited class of nonprofit organizations, including those organized and operated for charitable, religious or educational purposes. Many nonprofit organizations are not exempt from taxation under this section.
(2) Gifts from a foreign government or international or multinational organization, or its representative, when accepted by the employee under the authority of the Foreign Gifts and Decorations Act, 5 U.S.C. 7342. As a condition of acceptance, an employee must comply with requirements imposed by the agency's regulations or procedures implementing that Act.
§ 2635.205 Proper disposition of prohibited gifts.
(a) An employee who has received a gift that cannot be accepted under this subpart shall, unless the gift is accepted by an agency acting under specific statutory authority:
(1) Return any tangible item to the donor or pay the donor its market value. An employee who cannot ascertain the actual market value of an item may estimate its market value by reference to the retail cost of similar items of like quality. See §2635.203(c).
Example 1: To avoid public embarrassment to the seminar sponsor, an employee of the National Park Service did not decline a barometer worth $200 given at the conclusion of his speech on Federal lands policy. The employee must either return the barometer or promptly reimburse the sponsor $200.
(2) When it is not practical to return a tangible item because it is perishable, the item may, at the discretion of the employee's supervisor or an agency ethics official, be given to an appropriate charity, shared within the recipient's office, or destroyed.
Example 1: With approval by the recipient's supervisor, a floral arrangement sent by a disability claimant to a helpful employee of the Social Security Administration may be placed in the office's reception area.
(3) For any entertainment, favor, service, benefit or other intangible, reimburse the donor the market value. Subsequent reciprocation by the employee does not constitute reimbursement.
Example 1: A Department of Defense employee wishes to attend a charitable event to which he has been offered a $300 ticket by a prohibited source. Although his attendance is not in the interest of the agency under §2635.204(g), he may attend if he reimburses the donor the $300 face value of the ticket.
(4) Dispose of gifts from foreign governments or international organizations in accordance with 41 CFR part 101–49, and dispose of materials received in conjunction with official travel in accordance with 41 CFR 101–25.103.
(b) An agency may authorize disposition or return of gifts at Government expense. Employees may use penalty mail to forward reimbursements required or permitted by this section.
(c) An employee who, on his own initiative, promptly complies with the requirements of this section will not be deemed to have improperly accepted an unsolicited gift. An employee who promptly consults his agency ethics official to determine whether acceptance of an unsolicited gift is proper and who, upon the advice of the ethics official, returns the gift or otherwise disposes of the gift in accordance with this section, will be considered to have complied with the requirements of this section on his own initiative.
SUBPART C - GIFTS BETWEEN EMPLOYEES
§ 2635.301 Overview.
This subpart contains standards that prohibit an employee from giving, donating to, or soliciting contributions for, a gift to an official superior and from accepting a gift from an employee receiving less pay than himself, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.
§ 2635.302 General standards.
(a) Gifts to superiors. Except as provided in this subpart, an employee may not:
(1) Directly or indirectly, give a gift to or make a donation toward a gift for an official superior; or
(2) Solicit a contribution from another employee for a gift to either his own or the other employee's official superior.
(b) Gifts from employees receiving less pay. Except as provided in this subpart, an employee may not, directly or indirectly, accept a gift from an employee receiving less pay than himself unless:
(1) The two employees are not in a subordinate-official superior relationship; and
(2) There is a personal relationship between the two employees that would justify the gift.
(c) Limitation on use of exceptions. Notwithstanding any exception provided in this subpart, an official superior shall not coerce the offering of a gift from a subordinate.
§ 2635.303 Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Gift has the meaning set forth in §2635.203(b). For purposes of that definition an employee will be deemed to have paid market value for any benefit received as a result of his participation in any carpool or other such mutual arrangement involving another employee or other employees if he bears his fair proportion of the expense or effort involved.
(b) Indirectly, for purposes of §2635.302(b), has the meaning set forth in §2635.203(f). For purposes of §2635.302(a), it includes a gift:
(1) Given with the employee's knowledge and acquiescence by his parent, sibling, spouse, child, or dependent relative; or
(2) Given by a person other than the employee under circumstances where the employee has promised or agreed to reimburse that person or to give that person something of value in exchange for giving the gift.
(c) Subject to paragraph (a) of this section, market value has the meaning set forth in §2635.203(c).
(d) Official superior means any other employee, other than the President and the Vice President, including but not limited to an immediate supervisor, whose official responsibilities include directing or evaluating the performance of the employee's official duties or those of any other official superior of the employee. For purposes of this subpart, an employee is considered to be the subordinate of any of his official superiors.
(e) Solicit means to request contributions by personal communication or by general announcement.
(f) Voluntary contribution means a contribution given freely, without pressure or coercion. A contribution is not voluntary unless it is made in an amount determined by the contributing employee, except that where an amount for a gift is included in the cost for a luncheon, reception or similar event, an employee who freely chooses to pay a proportionate share of the total cost in order to attend will be deemed to have made a voluntary contribution. Except in the case of contributions for a gift included in the cost of a luncheon, reception or similar event, a statement that an employee may choose to contribute less or not at all shall accompany any recommendation of an amount to be contributed for a gift to an official superior.
Example 1: A supervisory employee of the Agency for International Development has just been reassigned from Washington, DC to Kabul, Afghanistan. As a farewell party, 12 of her subordinates have decided to take her out to lunch at the Khyber Repast. It is understood that each will pay for his own meal and that the cost of the supervisor's lunch will be divided equally among the twelve. Even though the amount they will contribute is not determined until the supervisor orders lunch, the contribution made by those who choose to participate in the farewell lunch is voluntary.
§ 2635.304 Exceptions. The prohibitions set forth in §2635.302(a) and (b) do not apply to a gift given or accepted under the circumstances described in paragraph (a) or (b) of this section. A contribution or the solicitation of a contribution that would otherwise violate the prohibitions set forth in §2635.302(a) and (b) may only be made in accordance with paragraph (c) of this section.
(a) General exceptions. On an occasional basis, including any occasion on which gifts are traditionally given or exchanged, the following may be given to an official superior or accepted from a subordinate or other employee receiving less pay:
(1) Items, other than cash, with an aggregate market value of $10 or less per occasion;
(2) Items such as food and refreshments to be shared in the office among several employees;
(3) Personal hospitality provided at a residence which is of a type and value customarily provided by the employee to personal friends;
(4) Items given in connection with the receipt of personal hospitality if of a type and value customarily given on such occasions; and
(5) Leave transferred under subpart I of part 630 of this title to an employee who is not an immediate supervisor, unless obtained in violation of §630.912 of this title.
Example 1: Upon returning to work following a vacation at the beach, a claims examiner with the Department of Veterans Affairs may give his supervisor, and his supervisor may accept, a bag of saltwater taffy purchased on the boardwalk for $8.
Example 2: An employee of the Federal Deposit Insurance Corporation whose bank examination responsibilities require frequent travel may not bring her supervisor, and her supervisor may not accept, souvenir coffee mugs from each of the cities she visits in the course of performing her duties, even though each of the mugs costs less than $5. Gifts given on this basis are not occasional.
Example 3: The Secretary of Labor has invited the agency's General Counsel to a dinner party at his home. The General Counsel may bring a $15 bottle of wine to the dinner party and the Secretary may accept this customary hostess gift from his subordinate, even though its cost is in excess of $10.
Example 4: For Christmas, a secretary may give his supervisor, and the supervisor may accept, a poinsettia plant purchased for $10 or less. The secretary may also invite his supervisor to a Christmas party in his home and the supervisor may attend.
(b) Special, infrequent occasions. A gift appropriate to the occasion may be given to an official superior or accepted from a subordinate or other employee receiving less pay:
(1) In recognition of infrequently occurring occasions of personal significance such as marriage, illness, or the birth or adoption of a child; or
(2) Upon occasions that terminate a subordinate-official superior relationship, such as retirement, resignation, or transfer.
Example 1: The administrative assistant to the personnel director of the Tennessee Valley Authority may send a $30 floral arrangement to the personnel director who is in the hospital recovering from surgery. The personnel director may accept the gift.
Example 2: A chemist employed by the Food and Drug Administration has been invited to the wedding of the lab director who is his official superior. He may give the lab director and his bride, and they may accept, a place setting in the couple's selected china pattern purchased for $70.
Example 3: Upon the occasion of the supervisor's retirement from Federal service, an employee of the Fish and Wildlife Service may give her supervisor a book of wildlife photographs which she purchased for $19. The retiring supervisor may accept the book.
(c) Voluntary contributions. An employee may solicit voluntary contributions of nominal amounts from fellow employees for an appropriate gift to an official superior and an employee may make a voluntary contribution of a nominal amount to an appropriate gift to an official superior:
(1) On a special, infrequent occasion as described in paragraph (b) of this section; or
(2) On an occasional basis, for items such as food and refreshments to be shared in the office among several employees. An employee may accept such gifts to which a subordinate or other employee receiving less pay than himself has contributed.
Example 1: To mark the occasion of his retirement, members of the immediate staff of the Under Secretary of the Army would like to give him a party and provide him with a gift certificate. They may distribute an announcement of the party and include a nominal amount for a retirement gift in the fee for the party.
Example 2: The General Counsel of the National Endowment for the Arts may not collect contributions for a Christmas gift for the Chairman. Christmas occurs annually and is not an occasion of personal significance.
Example 3: Subordinates may not take up a collection for a gift to an official superior on the occasion of the superior's swearing in or promotion to a higher grade position within the supervisory chain of that organization. These are not events that mark the termination of the subordinate-official superior relationship, nor are they events of personal significance within the meaning of §2635.304(b). However, subordinates may take up a collection and employees may contribute $3 each to buy refreshments to be consumed by everyone in the immediate office to mark either such occasion.
Example 4: Subordinates may each contribute a nominal amount to a fund to give a gift to an official superior upon the occasion of that superior's transfer or promotion to a position outside the organization.
Example 5: An Assistant Secretary at the Department of the Interior is getting married. His secretary has decided that a microwave oven would be a nice gift from his staff and has informed each of the Assistant Secretary's subordinates that they should contribute $5 for the gift. Her method of collection is improper. Although she may recommend a $5 contribution, the recommendation must be coupled with a statement that the employee whose contribution is solicited is free to contribute less or nothing at all.
SUBPART D - CONFLICTING FINANCIAL INTERESTS
§ 2635.401 Overview.
This subpart contains two provisions relating to financial interests. One is a disqualification requirement and the other is a prohibition on acquiring or continuing to hold specific financial interests. An employee may acquire or hold any financial interest not prohibited by §2635.403. Notwithstanding that his acquisition or holding of a particular interest is proper, an employee is prohibited in accordance with §2635.402 of this subpart from participating in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest. See also part 2640 of this chapter, for additional guidance amplifying §2635.402.
§ 2635.402 Disqualifying financial interests.
(a) Statutory prohibition. An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest.
Note: Standards applicable when seeking non-Federal employment are contained in subpart F of this part and, if followed, will ensure that an employee does not violate 18 U.S.C. 208(a) or this section when he is negotiating for or has an arrangement concerning future employment. In all other cases where the employee's participation would violate 18 U.S.C. 208(a), an employee shall disqualify himself from participation in the matter in accordance with paragraph (c) of this section or obtain a waiver or determine that an exemption applies, as described in paragraph (d) of this section.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Direct and predictable effect.
(i) A particular matter will have a direct effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A particular matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effects on the general economy does not have a direct effect within the meaning of this subpart.
(ii) A particular matter will have a predictable effect if there is a real, as opposed to a speculative possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.
Note: If a particular matter involves a specific party or parties, generally the matter will at most only have a direct and predictable effect, for purposes of this subpart, on a financial interest of the employee in or with a party, such as the employee's interest by virtue of owning stock. There may, however, be some situations in which, under the above standards, a particular matter will have a direct and predictable effect on an employee's financial interests in or with a nonparty. For example, if a party is a corporation, a particular matter may also have a direct and predictable effect on an employee's financial interests through ownership of stock in an affiliate, parent, or subsidiary of that party. Similarly, the disposition of a protest against the award of a contract to a particular company may also have a direct and predictable effect on an employee's financial interest in another company listed as a subcontractor in the proposal of one of the competing offerors.
Example 1: An employee of the National Library of Medicine at the National Institutes of Health has just been asked to serve on the technical evaluation panel to review proposals for a new library computer search system. DEF Computer Corporation, a closely held company in which he and his wife own a majority of the stock, has submitted a proposal. Because award of the systems contract to DEF or to any other offeror will have a direct and predictable effect on both his and his wife's financial interests, the employee cannot participate on the technical evaluation team unless his disqualification has been waived.
Example 2: Upon assignment to the technical evaluation panel, the employee in the preceding example finds that DEF Computer Corporation has not submitted a proposal. Rather, LMN Corp., with which DEF competes for private sector business, is one of the six offerors. The employee is not disqualified from serving on the technical evaluation panel. Any effect on the employee's financial interests as a result of the agency's decision to award or not award the systems contract to LMN would be at most indirect and speculative.
(2) Imputed interests. For purposes of 18 U.S.C. 208(a) and this subpart, the financial interests of the following persons will serve to disqualify an employee to the same extent as if they were the employee's own interests:
(i) The employee's spouse;
(ii) The employee's minor child;
(iii) The employee's general partner;
(iv) An organization or entity which the employee serves as officer, director, trustee, general partner or employee; and
(v) A person with whom the employee is negotiating for or has an arrangement concerning prospective employment. (Employees who are seeking other employment should refer to and comply with the standards in subpart F of this part).
Example 1: An employee of the Department of Education serves without compensation on the board of directors of Kinder World, Inc., a nonprofit corporation that engages in good works. Even though her personal financial interests will not be affected, the employee must disqualify herself from participating in the review of a grant application submitted by Kinder World. Award or denial of the grant will affect the financial interests of Kinder World and its financial interests are imputed to her as a member of its board of directors.
Example 2: The spouse of an employee of the Food and Drug Administration has obtained a position with a well established biomedical research company. The company has developed an artificial limb for which it is seeking FDA approval and the employee would ordinarily be asked to participate in the FDA's review and approval process. The spouse is a salaried employee of the company and has no direct ownership interest in the company. Nor does she have an indirect ownership interest, as would be the case, for example, if she were participating in a pension plan that held stock in the company. Her position with the company is such that the granting or withholding of FDA approval will not have a direct and predictable effect on her salary or on her continued employment with the company. Since the FDA approval process will not affect his spouse's financial interests, the employee is not disqualified under §2635.402 from participating in that process. Nevertheless, the financial interests of the spouse's employer may be disqualifying under the impartiality principle, as implemented at §2635.502.
(3) Particular matter. The term particular matter encompasses only matters that involve deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered by this subpart even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interests of such a discrete and identifiable class of persons. The term particular matter, however, does not extend to the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons. The particular matters covered by this subpart include a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation or arrest.
Example 1: The Internal Revenue Service's amendment of its regulations to change the manner in which depreciation is calculated is not a particular matter, nor is the Social Security Administration's consideration of changes to its appeal procedures for disability claimants.
Example 2: Consideration by the Interstate Commerce Commission of regulations establishing safety standards for trucks on interstate highways involves a particular matter.
(4) Personal and substantial. To participate personally means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the matter. To participate substantially means that the employee's involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. Personal and substantial participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation or the rendering of advice in a particular matter.
(c) Disqualification. Unless the employee is authorized to participate in the particular matter by virtue of a waiver or exemption described in paragraph (d) of this section or because the interest has been divested in accordance with paragraph (e) of this section, an employee shall disqualify himself from participating in a particular matter in which, to his knowledge, he or a person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest. Disqualification is accomplished by not participating in the particular matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee's disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter from which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
Example 1: An Assistant Secretary of the Department of the Interior owns recreational property that borders on land which is being considered for annexation to a national park. Annexation would directly and predictably increase the value of her vacation property and, thus, she is disqualified from participating in any way in the Department's deliberations or decisions regarding the annexation. Because she is responsible for determining which matters she will work on, she may accomplish her disqualification merely by ensuring that she does not participate in the matter. Because of the level of her position, however, the Assistant Secretary might be wise to establish a record that she has acted properly by providing a written disqualification statement to an official superior and by providing written notification of the disqualification to subordinates to ensure that they do not raise or discuss with her any issues related to the annexation.
(d) Waiver of or exemptions from disqualification. An employee who would otherwise be disqualified by 18 U.S.C. 208(a) may be permitted to participate in a particular matter where the otherwise disqualifying financial interest is the subject of a regulatory exemption or individual waiver described in this paragraph, or results from certain Indian birthrights as described in 18 U.S.C. 208(b)(4).
(1) Regulatory exemptions. Under 18 U.S.C. 208(b)(2), regulatory exemptions of general applicability have been issued by the Office of Government Ethics, based on its determination that particular interests are too remote or too inconsequential to affect the integrity of the services of employees to whom those exemptions apply. See the regulations in subpart B of part 2640 of this chapter, which supersede any preexisting agency regulatory exemptions.
(2) Individual waivers. An individual waiver enabling the employee to participate in one or more particular matters may be issued under 18 U.S.C. 208(b)(1) if, in advance of the employee's participation:
(i) The employee:
(A) Advises the Government official responsible for the employee's appointment (or other Government official to whom authority to issue such a waiver for the employee has been delegated) about the nature and circumstances of the particular matter or matters; and
(B) Makes full disclosure to such official of the nature and extent of the disqualifying financial interest; and
(ii) Such official determines, in writing, that the employee's financial interest in the particular matter or matters is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such employee. See also subpart C of part 2640 of this chapter, for additional guidance.
(3) Federal advisory committee member waivers. An individual waiver may be issued under 18 U.S.C. 208(b)(3) to a special Government employee serving on, or under consideration for appointment to, an advisory committee within the meaning of the Federal Advisory Committee Act if the Government official responsible for the employee's appointment (or other Government official to whom authority to issue such a waiver for the employee has been delegated):
(i) Reviews the financial disclosure report filed by the special Government employee pursuant to the Ethics in Government Act of 1978; and
(ii) Certifies in writing that the need for the individual's services outweighs the potential for a conflict of interest created by the otherwise disqualifying financial interest. See also subpart C of part 2640 of this chapter, for additional guidance.
(4) Consultation and notification regarding waivers. When practicable, an official is required to consult formally or informally with the Office of Government Ethics prior to granting a waiver referred to in paragraph (d)(2) or (3) of this section. A copy of each such waiver is to be forwarded to the Director of the Office of Government Ethics.
(e) Divestiture of a disqualifying financial interest. Upon sale or other divestiture of the asset or other interest that causes his disqualification from participation in a particular matter, 18 U.S.C. 208(a) and paragraph (c) of this section will no longer prohibit the employee's participation in the matter.
(1) Voluntary divestiture. An employee who would otherwise be disqualified from participation in a particular matter may voluntarily sell or otherwise divest himself of the interest that causes the disqualification.
(2) Directed divestiture. An employee may be required to sell or otherwise divest himself of the disqualifying financial interest if his continued holding of that interest is prohibited by statute or by agency supplemental regulation issued in accordance with §2635.403(a), or if the agency determines in accordance with §2635.403(b) that a substantial conflict exists between the financial interest and the employee's duties or accomplishment of the agency's mission.
(3) Eligibility for special tax treatment. An employee who is directed to divest an interest may be eligible to defer the tax consequences of divestiture under subpart J of part 2634 of this chapter. An employee who divests before obtaining a certificate of divestiture will not be eligible for this special tax treatment.
(f) Official duties that give rise to potential conflicts. Where an employee's official duties create a substantial likelihood that the employee may be assigned to a particular matter from which he is disqualified, the employee should advise his supervisor or other person responsible for his assignments of that potential so that conflicting assignments can be avoided, consistent with the agency's needs.
§ 2635.403 Prohibited financial interests.
An employee shall not acquire or hold any financial interest that he is prohibited from acquiring or holding by statute, by agency regulation issued in accordance with paragraph (a) of this section or by reason of an agency determination of substantial conflict under paragraph (b) of this section.
Note: There is no statute of Government wide applicability prohibiting employees from holding or acquiring any financial interest. Statutory restrictions, if any, are contained in agency statutes which, in some cases, may be implemented by agency regulations issued independent of this part.
(a) Agency regulation prohibiting certain financial interests. An agency may, by supplemental agency regulation issued after February 3, 1993, prohibit or restrict the acquisition or holding of a financial interest or a class of financial interests by agency employees, or any category of agency employees, and the spouses and minor children of those employees, based on the agency's determination that the acquisition or holding of such financial interests would cause a reasonable person to question the impartiality and objectivity with which agency programs are administered. Where the agency restricts or prohibits the holding of certain financial interests by its employees' spouses or minor children, any such prohibition or restriction shall be based on a determination that there is a direct and appropriate nexus between the prohibition or restriction as applied to spouses and minor children and the efficiency of the service.
(b) Agency determination of substantial conflict. An agency may prohibit or restrict an individual employee from acquiring or holding a financial interest or a class of financial interests based upon the agency designee's determination that the holding of such interest or interests will:
(1) Require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired; or
(2) Adversely affect the efficient accomplishment of the agency's mission because another employee cannot be readily assigned to perform work from which the employee would be disqualified by reason of the financial interest.
Example 1: An Air Force employee who owns stock in a major aircraft engine manufacturer is being considered for promotion to a position that involves responsibility for development of a new fighter airplane. If the agency determined that engineering and other decisions about the Air Force's requirements for the fighter would directly and predictably affect his financial interests, the employee could not, by virtue of 18 U.S.C. 208(a), perform these significant duties of the position while retaining his stock in the company. The agency can require the employee to sell his stock as a condition of being selected for the position rather than allowing him to disqualify himself in particular matters.
(c) Definition of financial interest. For purposes of this section:
(1) Except as provided in paragraph (c)(2) of this section, the term financial interest is limited to financial interests that are owned by the employee or by the employee's spouse or minor children. However, the term is not limited to only those financial interests that would be disqualifying under 18 U.S.C. 208(a) and §2635.402. The term includes any current or contingent ownership, equity, or security interest in real or personal property or a business and may include an indebtedness or compensated employment relationship. It thus includes, for example, interests in the nature of stocks, bonds, partnership interests, fee and leasehold interests, mineral and other property rights, deeds of trust, and liens, and extends to any right to purchase or acquire any such interest, such as a stock option or commodity future. It does not include a future interest created by someone other than the employee, his spouse, or dependent child or any right as a beneficiary of an estate that has not been settled.
Example 1: A regulatory agency has concluded that ownership by its employees of stock in entities regulated by the agency would significantly diminish public confidence in the agency's performance of its regulatory functions and thereby interfere with the accomplishment of its mission. In its supplemental agency regulations, the agency may prohibit its employees from acquiring or continuing to hold stock in regulated entities.
Example 2: An agency that insures bank deposits may, by supplemental agency regulation, prohibit its employees who are bank examiners from obtaining loans from banks they examine. Examination of a member bank could have no effect on an employee's fixed obligation to repay a loan from that bank and, thus, would not affect ++- an employee's financial interests so as to require disqualification under §2635.402. Nevertheless, a loan from a member bank is a discrete financial interest within the meaning of §2635.403(c) that may, when appropriate, be prohibited by supplemental agency regulation.
(2) The term financial interest includes service, with or without compensation, as an officer, director, trustee, general partner or employee of any person, including a nonprofit entity, whose financial interests are imputed to the employee under §2635.402(b)(2) (iii) or (iv).
Example 1. The Foundation for the Preservation of Wild Horses maintains herds of horses that graze on public and private lands. Because its costs are affected by Federal policies regarding grazing permits, the Foundation routinely comments on all proposed rules governing use of Federal grasslands issued by the Bureau of Land Management. BLM may require an employee to resign his uncompensated position as Vice President of the Foundation as a condition of his promotion to a policy-level position within the Bureau rather than allowing him to rely on disqualification in particular cases.
(d) Reasonable period to divest or terminate. Whenever an agency directs divestiture of a financial interest under paragraph (a) or (b) of this section, the employee shall be given a reasonable period of time, considering the nature of his particular duties and the nature and marketability of the interest, within which to comply with the agency's direction. Except in cases of unusual hardship, as determined by the agency, a reasonable period shall not exceed 90 days from the date divestiture is first directed. However, as long as the employee continues to hold the financial interest, he remains subject to any restrictions imposed by this subpart.
(e) Eligibility for special tax treatment. An employee required to sell or otherwise divest a financial interest may be eligible to defer the tax consequences of divestiture under subpart J of part 2634 of this chapter.
SUBPART E - IMPARTIALITY IN PERFORMING OFFICIAL DUTIES
§ 2635.501 Overview.
(a) This subpart contains two provisions intended to ensure that an employee takes appropriate steps to avoid an appearance of loss of impartiality in the performance of his official duties. Under §2635.502, unless he receives prior authorization, an employee should not participate in a particular matter involving specific parties which he knows is likely to affect the financial interests of a member of his household, or in which he knows a person with whom he has a covered relationship is or represents a party, if he determines that a reasonable person with knowledge of the relevant facts would question his impartiality in the matter. An employee who is concerned that other circumstances would raise a question regarding his impartiality should use the process described in §2635.502 to determine whether he should or should not participate in a particular matter.
(b) Under §2635.503, an employee who has received an extraordinary severance or other payment from a former employer prior to entering Government service is subject, in the absence of a waiver, to a two-year period of disqualification from participation in particular matters in which that former employer is or represents a party.
Note: Questions regarding impartiality necessarily arise when an employee's official duties impact upon the employee's own financial interests or those of certain other persons, such as the employee's spouse or minor child. An employee is prohibited by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he, his spouse, general partner or minor child has a financial interest, if the particular matter will have a direct and predictable effect on that interest. The statutory prohibition also extends to an employee's participation in a particular matter in which, to his knowledge, an organization in which the employee is serving as officer, director, trustee, general partner or employee, or with whom he is negotiating or has an arrangement concerning prospective employment has a financial interest. Where the employee's participation in a particular matter would affect any one of these financial interests, the standards set forth in subparts D or F of this part apply and only a statutory waiver or exemption, as described in §§2635.402(d) and 2635.605(a), will enable the employee to participate in that matter. The authorization procedures in §2635.502(d) may not be used to authorize an employee's participation in any such matter. Where the employee complies with all terms of the waiver, the granting of a statutory waiver will be deemed to constitute a determination that the interest of the Government in the employee's participation outweighs the concern that a reasonable person may question the integrity of agency programs and operations. Similarly, where the employee meets all prerequisites for the application of one of the exemptions set forth in subpart B of part 2640 of this chapter, that also constitutes a determination that the interest of the Government in the employee's participation outweighs the concern that a reasonable person may question the integrity of agency programs and operations.
§ 2635.502 Personal and business relationships.
(a) Consideration of appearances by the employee. Where an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or knows that a person with whom he has a covered relationship is or represents a party to such matter, and where the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency designee of the appearance problem and received authorization from the agency designee in accordance with paragraph (d) of this section.
(1) In considering whether a relationship would cause a reasonable person to question his impartiality, an employee may seek the assistance of his supervisor, an agency ethics official or the agency designee.
(2) An employee who is concerned that circumstances other than those specifically described in this section would raise a question regarding his impartiality should use the process described in this section to determine whether he should or should not participate in a particular matter. (b) Definitions. For purposes of this section: (1) An employee has a covered relationship with:
(i) A person, other than a prospective employer described in §2635.603(c), with whom the employee has or seeks a business, contractual or other financial relationship that involves other than a routine consumer transaction; Note: An employee who is seeking employment within the meaning of §2635.603 shall comply with subpart F of this part rather than with this section.
(ii) A person who is a member of the employee's household, or who is a relative with whom the employee has a close personal relationship;
(iii) A person for whom the employee's spouse, parent or dependent child is, to the employee's knowledge, serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
(iv) Any person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
(v) An organization, other than a political party described in 26 U.S.C. 527(e), in which the employee is an active participant. Participation is active if, for example, it involves service as an official of the organization or in a capacity similar to that of a committee or subcommittee chairperson or spokesperson, or participation in directing the activities of the organization. In other cases, significant time devoted to promoting specific programs of the organization, including coordination of fundraising efforts, is an indication of active participation. Payment of dues or the donation or solicitation of financial support does not, in itself, constitute active participation.
Note: Nothing in this section shall be construed to suggest that an employee should not participate in a matter because of his political, religious or moral views.
(2) Direct and predictable effect has the meaning set forth in §2635.402(b)(1).
(3) Particular matter involving specific parties has the meaning set forth in §2637.102(a)(7) of this chapter.
Example 1: An employee of the General Services Administration has made an offer to purchase a restaurant owned by a local developer. The developer has submitted an offer in response to a GSA solicitation for lease of office space. Under the circumstances, she would be correct in concluding that a reasonable person would be likely to question her impartiality if she were to participate in evaluating that developer's or its competitor's lease proposal.
Example 2: An employee of the Department of Labor is providing technical assistance in drafting occupational safety and health legislation that will affect all employers of five or more persons. His wife is employed as an administrative assistant by a large corporation that will incur additional costs if the proposed legislation is enacted. Because the legislation is not a particular matter involving specific parties, the employee may continue to work on the legislation and need not be concerned that his wife's employment with an affected corporation would raise a question concerning his impartiality.
Example 3: An employee of the Defense Logistics Agency who has responsibilities for testing avionics being produced by an Air Force contractor has just learned that his sister-in-law has accepted employment as an engineer with the contractor's parent corporation. Where the parent corporation is a conglomerate, the employee could reasonably conclude that, under the circumstances, a reasonable person would not be likely to question his impartiality if he were to continue to perform his test and evaluation responsibilities.
Example 4: An engineer has just resigned from her position as vice president of an electronics company in order to accept employment with the Federal Aviation Administration in a position involving procurement responsibilities. Although the employee did not receive an extraordinary payment in connection with her resignation and has severed all financial ties with the firm, under the circumstances she would be correct in concluding that her former service as an officer of the company would be likely to cause a reasonable person to question her impartiality if she were to participate in the administration of a DOT contract for which the firm is a first-tier subcontractor.
Example 5: An employee of the Internal Revenue Service is a member of a private organization whose purpose is to restore a Victorian-era railroad station and she chairs its annual fundraising drive. Under the circumstances, the employee would be correct in concluding that her active membership in the organization would be likely to cause a reasonable person to question her impartiality if she were to participate in an IRS determination regarding the tax-exempt status of the organization.
(c) Determination by agency designee. Where he has information concerning a potential appearance problem arising from the financial interest of a member of the employee's household in a particular matter involving specific parties, or from the role in such matter of a person with whom the employee has a covered relationship, the agency designee may make an independent determination as to whether a reasonable person with knowledge of the relevant facts would be likely to question the employee's impartiality in the matter. Ordinarily, the agency designee's determination will be initiated by information provided by the employee pursuant to paragraph (a) of this section. However, at any time, including after the employee has disqualified himself from participation in a matter pursuant to paragraph (e) of this section, the agency designee may make this determination on his own initiative or when requested by the employee's supervisor or any other person responsible for the employee's assignment.
(1) If the agency designee determines that the employee's impartiality is likely to be questioned, he shall then determine, in accordance with paragraph (d) of this section, whether the employee should be authorized to participate in the matter. Where the agency designee determines that the employee's participation should not be authorized, the employee will be disqualified from participation in the matter in accordance with paragraph (e) of this section.
(2) If the agency designee determines that the employee's impartiality is not likely to be questioned, he may advise the employee, including an employee who has reached a contrary conclusion under paragraph (a) of this section, that the employee's participation in the matter would be proper.
(d) Authorization by agency designee. Where an employee's participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee's participation outweighs the concern that a reasonable person may question the integrity of the agency's programs and operations. Factors which may be taken into consideration include:
(1) The nature of the relationship involved;
(2) The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;
(3) The nature and importance of the employee's role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;
(4) The sensitivity of the matter;
(5) The difficulty of reassigning the matter to another employee; and
(6) Adjustments that may be made in the employee's duties that would reduce or eliminate the likelihood that a reasonable person would question the employee's impartiality.
Authorization by the agency designee shall be documented in writing at the agency designee's discretion or when requested by the employee. An employee who has been authorized to participate in a particular matter involving specific parties may not thereafter disqualify himself from participation in the matter on the basis of an appearance problem involving the same circumstances that have been considered by the agency designee.
Example 1: The Deputy Director of Personnel for the Department of the Treasury and an attorney with the Department's Office of General Counsel are general partners in a real estate partnership. The Deputy Director advises his supervisor, the Director of Personnel, of the relationship upon being assigned to a selection panel for a position for which his partner has applied. If selected, the partner would receive a substantial increase in salary. The agency designee cannot authorize the Deputy Director to participate on the panel under the authority of this section since the Deputy Director is prohibited by criminal statute, 18 U.S.C. 208(a), from participating in a particular matter affecting the financial interest of a person who is his general partner. See §2635.402.
Example 2: A new employee of the Securities and Exchange Commission is assigned to an investigation of insider trading by the brokerage house where she had recently been employed. Because of the sensitivity of the investigation, the agency designee may be unable to conclude that the Government's interest in the employee's participation in the investigation outweighs the concern that a reasonable person may question the integrity of the investigation, even though the employee has severed all financial ties with the company. Based on consideration of all relevant circumstances, the agency designee might determine, however, that it is in the interest of the Government for the employee to pass on a routine filing by the particular brokerage house.
Example 3: An Internal Revenue Service employee involved in a long and complex tax audit is advised by her son that he has just accepted an entry-level management position with a corporation whose taxes are the subject of the audit. Because the audit is essentially complete and because the employee is the only one with an intimate knowledge of the case, the agency designee might determine, after considering all relevant circumstances, that it is in the Government's interest for the employee to complete the audit, which is subject to additional levels of review.
(e) Disqualification. Unless the employee is authorized to participate in the matter under paragraph (d) of this section, an employee shall not participate in a particular matter involving specific parties when he or the agency designee has concluded, in accordance with paragraph (a) or (c) of this section, that the financial interest of a member of the employee's household, or the role of a person with whom he has a covered relationship, is likely to raise a question in the mind of a reasonable person about his impartiality. Disqualification is accomplished by not participating in the matter.
(1) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter involving specific parties to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee's disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a particular matter involving specific parties from which he is disqualified.
(2) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is specifically asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
(f) Relevant considerations. An employee's reputation for honesty and integrity is not a relevant consideration for purposes of any determination required by this section.
§ 2635.503 Extraordinary payments from former employers
. (a) Disqualification requirement. Except as provided in paragraph (c) of this section, an employee shall be disqualified for two years from participating in any particular matter in which a former employer is a party or represents a party if he received an extraordinary payment from that person prior to entering Government service. The two-year period of disqualification begins to run on the date that the extraordinary payment is received.
Example 1: Following his confirmation hearings and one month before his scheduled swearing in, a nominee to the position of Assistant Secretary of a department received an extraordinary payment from his employer. For one year and 11 months after his swearing in, the Assistant Secretary may not participate in any particular matter to which his former employer is a party.
Example 2: An employee received an extraordinary payment from her former employer, a coal mine operator, prior to entering on duty with the Department of the Interior. For two years thereafter, she may not participate in a determination regarding her former employer's obligation to reclaim a particular mining site, because her former employer is a party to the matter. However, she may help to draft reclamation legislation affecting all coal mining operations because this legislation does not involve any parties.
(b) Definitions. For purposes of this section, the following definitions shall apply:
(1) Extraordinary payment means any item, including cash or an investment interest, with a value in excess of $10,000, which is paid:
(i) On the basis of a determination made after it became known to the former employer that the individual was being considered for or had accepted a Government position; and
(ii) Other than pursuant to the former employer's established compensation, partnership, or benefits program. A compensation, partnership, or benefits program will be deemed an established program if it is contained in bylaws, a contract or other written form, or if there is a history of similar payments made to others not entering into Federal service.
Example 1: The vice president of a small corporation is nominated to be an ambassador. In recognition of his service to the corporation, the board of directors votes to pay him $50,000 upon his confirmation in addition to the regular severance payment provided for by the corporate bylaws. The regular severance payment is not an extraordinary payment. The gratuitous payment of $50,000 is an extraordinary payment, since the corporation had not made similar payments to other departing officers.
(2) Former employer includes any person which the employee served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee.
(c) Waiver of disqualification. The disqualification requirement of this section may be waived based on a finding that the amount of the payment was not so substantial as to cause a reasonable person to question the employee's ability to act impartially in a matter in which the former employer is or represents a party. The waiver shall be in writing and may be given only by the head of the agency or, where the recipient of the payment is the head of the agency, by the President or his designee. Waiver authority may be delegated by agency heads to any person who has been delegated authority to issue individual waivers under 18 U.S.C. 208(b) for the employee who is the recipient of the extraordinary payment.
SUBPART F - SEEKING OTHER EMPLOYMENT
§ 2635.601 Overview.
This subpart contains a disqualification requirement that applies to employees when seeking employment with persons whose financial interests would be directly and predictably affected by particular matters in which the employees participate personally and substantially. Specifically, it addresses the requirement of 18 U.S.C. 208(a) that an employee disqualify himself from participation in any particular matter that will have a direct and predictable effect on the financial interests of a person “with whom he is negotiating or has any arrangement concerning prospective employment.” See §2635.402 and §2640.103 of this chapter. Beyond this statutory requirement, it also addresses the issues of lack of impartiality that require disqualification from particular matters affecting the financial interests of a prospective employer when an employee's actions in seeking employment fall short of actual employment negotiations.
§ 2635.602 Applicability and related considerations.
To ensure that he does not violate 18 U.S.C. 208(a) or the principles of ethical conduct contained in §2635.101(b), an employee who is seeking employment or who has an arrangement concerning prospective employment shall comply with the applicable disqualification requirements of §§2635.604 and 2635.606 if particular matters in which the employee will be participating personally and substantially would directly and predictably affect the financial interests of a prospective employer or of a person with whom he has an arrangement concerning prospective employment. Compliance with this subpart also will ensure that the employee does not violate subpart D or E of this part.
Note: An employee who is seeking employment with a person whose financial interests are not affected directly and predictably by particular matters in which he participates personally and substantially has no obligation under this subpart. An employee may, however, be subject to other statutes which impose requirements on employment contacts or discussions, such as 41 U.S.C. 423(c), applicable to agency officials involved in certain procurement matters.
(a) Related employment restrictions —
(1) Outside employment while a Federal employee. An employee who is contemplating outside employment to be undertaken concurrently with his Federal employment must abide by any limitations applicable to his outside activities under subparts G and H of this part. He must also comply with any disqualification requirement that may be applicable under subpart D or E of this part as a result of his outside employment activities.
(2) Post-employment restrictions. An employee who is contemplating employment to be undertaken following the termination of his Federal employment should consult an agency ethics official to obtain advice regarding any post-employment restrictions that may be applicable. Regulations implementing the Governmentwide post-employment statute, 18 U.S.C. 207, are contained in parts 2637 and 2641 of this chapter. Employees are cautioned that they may be subject to additional statutory prohibitions on post-employment acceptance of compensation from contractors, such as 41 U.S.C. 423(d).
(b) Interview trips and entertainment. Where a prospective employer who is a prohibited source as defined in §2635.203(d) offers to reimburse an employee's travel expenses, or provide other reasonable amenities incident to employment discussions, the employee may accept such amenities in accordance with §2635.204(e)(3).
§ 2635.603 Definitions.
For purposes of this subpart:
(a) Employment means any form of non-Federal employment or business relationship involving the provision of personal services by the employee, whether to be undertaken at the same time as or subsequent to Federal employment. It includes but is not limited to personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner or trustee.
Example 1: An employee of the Bureau of Indian Affairs who has announced her intention to retire is approached by tribal representatives concerning a possible consulting contract with the tribe. The independent contractual relationship the tribe wishes to negotiate is employment for purposes of this subpart.
Example 2: An employee of the Department of Health and Human Services is invited to a meeting with officials of a nonprofit corporation to discuss the possibility of his serving as a member of the corporation's board of directors. Service, with or without compensation, as a member of the board of directors constitutes employment for purposes of this subpart.
(b) An employee is seeking employment once he has begun seeking employment within the meaning of paragraph (b)(1) of this section and until he is no longer seeking employment within the meaning of paragraph (b)(2) of this section.
(1) An employee has begun seeking employment if he has directly or indirectly:
(i) Engaged in negotiations for employment with any person. For these purposes, as for 18 U.S.C. 208(a), the term negotiations means discussion or communication with another person, or such person's agent or intermediary, mutually conducted with a view toward reaching an agreement regarding possible employment with that person. The term is not limited to discussions of specific terms and conditions of employment in a specific position;
(ii) Made an unsolicited communication to any person, or such person's agent or intermediary, regarding possible employment with that person. However, the employee has not begun seeking employment if that communication was:
(A) For the sole purpose of requesting a job application; or
(B) For the purpose of submitting a resume or other employment proposal to a person affected by the performance or nonperformance of the employee's duties only as part of an industry or other discrete class. The employee will be considered to have begun seeking employment upon receipt of any response indicating an interest in employment discussions; or (iii) Made a response other than rejection to an unsolicited communication from any person, or such person's agent or intermediary, regarding possible employment with that person.
(2) An employee is no longer seeking employment when:
(i) The employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have terminated; or
(ii) Two months have transpired after the employee's dispatch of an unsolicited resume or employment proposal, provided the employee has received no indication of interest in employment discussions from the prospective employer.
(3) For purposes of this definition, a response that defers discussions until the foreseeable future does not constitute rejection of an unsolicited employment overture, proposal, or resume nor rejection of a prospective employment possibility.
Example 1: An employee of the Health Care Financing Administration is complimented on her work by an official of a State Health Department who asks her to call if she is ever interested in leaving Federal service. The employee explains to the State official that she is very happy with her job at HCFA and is not interested in another job. She thanks him for his compliment regarding her work and adds that she'll remember his interest if she ever decides to leave the Government. The employee has rejected the unsolicited employment overture and has not begun seeking employment.
Example 2: The employee in the preceding example responds by stating that she cannot discuss future employment while she is working on a project affecting the State's health care funding but would like to discuss employment with the State when the project is completed. Because the employee has merely deferred employment discussions until the foreseeable future, she has begun seeking employment with the State Health Department.
Example 3: An employee of the Defense Contract Audit Agency is auditing the overhead accounts of an Army contractor. While at the contractor's headquarters, the head of the contractor's accounting division tells the employee that his division is thinking about hiring another accountant and asks whether the employee might be interested in leaving DCAA. The DCAA employee says he is interested in knowing what kind of work would be involved. They discuss the duties of the position the accounting division would like to fill and the DCAA employee's qualifications for the position. They do not discuss salary. The head of the division explains that he has not yet received authorization to fill the particular position and will get back to the employee when he obtains the necessary approval for additional staffing. The employee and the contractor's official have engaged in negotiations regarding possible employment. The employee has begun seeking employment with the Army contractor.
Example 4: An employee of the Occupational Safety and Health Administration helping to draft safety standards applicable to the textile industry has mailed his resume to 25 textile manufacturers. He has not begun seeking employment with any of the twenty-five. If he receives a response from one of the resume recipients indicating an interest in employment discussions, the employee will have begun seeking employment with the respondent at that time.
Example 5: A special Government employee of the Federal Deposit Insurance Corporation is serving on an advisory committee formed for the purpose of reviewing rules applicable to all member banks. She mails an unsolicited letter to a member bank offering her services as a contract consultant. She has not begun seeking employment with the bank until she receives some response indicating an interest in discussing her employment proposal. A letter merely acknowledging receipt of the proposal is not an indication of interest in employment discussions.
Example 6: A geologist employed by the U.S. Geological Survey has been working as a member of a team preparing the Government's case in an action brought by the Government against six oil companies. The geologist sends her resume to an oil company that is a named defendant in the action. The geologist has begun seeking employment with that oil company and will be seeking employment for two months from the date the resume was mailed. However, if she withdraws her application or is notified within the two-month period that her resume has been rejected, she will no longer be seeking employment with the oil company as of the date she makes such withdrawal or receives such notification.
(c) Prospective employer means any person with whom the employee is seeking employment. Where contacts that constitute seeking employment are made by or with an agent or other intermediary, the term prospective employer includes:
(1) A person who uses that agent or other intermediary for the purpose of seeking to establish an employment relationship with the employee if the agent identifies the prospective employer to the employee; and
(2) A person contacted by the employee's agent or other intermediary for the purpose of seeking to establish an employment relationship if the agent identifies the prospective employer to the employee.
Example 1: An employee of the Federal Aviation Administration has overall responsibility for airport safety inspections in a three-state area. She has retained an employment search firm to help her find another job. The search firm has just reported to the FAA employee that it has given her resume to and had promising discussions with two airport authorities within her jurisdiction. Even though the employee has not personally had employment discussions with either, each airport authority is her prospective employer. She began seeking employment with each upon learning its identity and that it has been given her resume.
(d) Direct and predictable effect, particular matter, and personal and substantial have the respective meanings set forth in §2635.402(b)(1), (3), and (4).
§ 2635.604 Disqualification while seeking employment.
(a) Obligation to disqualify. Unless the employee's participation is authorized in accordance with §2635.605, the employee shall not participate personally and substantially in a particular matter that, to his knowledge, has a direct and predictable effect on the financial interests of a prospective employer with whom he is seeking employment within the meaning of §2635.603(b). Disqualification is accomplished by not participating in the particular matter.
(b) Notification. An employee who becomes aware of the need to disqualify himself from participation in a particular matter to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee's disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter from which he is disqualified.
(c) Documentation. An employee need not file a written disqualification statement unless he is required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is specifically asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
Example 1: An employee of the Department of Veterans Affairs is participating in the audit of a contract for laboratory support services. Before sending his resume to a lab which is a subcontractor under the VA contract, the employee should disqualify himself from participation in the audit. Since he cannot withdraw from participation in the contract audit without the approval of his supervisor, he should disclose his intentions to his supervisor in order that appropriate adjustments in his work assignments can be made.
Example 2: An employee of the Food and Drug Administration is contacted in writing by a pharmaceutical company concerning possible employment with the company. The employee is involved in testing a drug for which the company is seeking FDA approval. Before making a response that is not a rejection, the employee should disqualify himself from further participation in the testing. Where he has authority to ask his colleague to assume his testing responsibilities, he may accomplish his disqualification by transferring the work to that coworker. However, to ensure that his colleague and others with whom he had been working on the recommendations do not seek his advice regarding testing or otherwise involve him in the matter, it may be necessary for him to advise those individuals of his disqualification.
Example 3: The General Counsel of a regulatory agency wishes to engage in discussions regarding possible employment as corporate counsel of a regulated entity. Matters directly affecting the financial interests of the regulated entity are pending within the Office of General Counsel, but the General Counsel will not be called upon to act in any such matter because signature authority for that particular class of matters has been delegated to an Assistant General Counsel. Because the General Counsel is responsible for assigning work within the Office of General Counsel, he can in fact accomplish his disqualification by simply avoiding any involvement in matters affecting the regulated entity. However, because it is likely to be assumed by others that the General Counsel is involved in all matters within the cognizance of the Office of General Counsel, he would be wise to file a written disqualification statement with the Commissioners of the regulatory agency and provide his subordinates with written notification of his disqualification, or he may be specifically asked by an agency ethics official or the Commissioners to file a written disqualification statement.
Example 4: A scientist is employed by the National Science Foundation as a special Government employee to serve on a panel that reviews grant applications to fund research relating to deterioration of the ozone layer. She is discussing possible employment as a member of the faculty of a university that several years earlier received an NSF grant to study the effect of fluorocarbons, but has no grant application pending. As long as the university does not submit a new application for the panel's review, the employee would not have to take any action to effect disqualification.
(d) Agency determination of substantial conflict. Where the agency determines that the employee's action in seeking employment with a particular person will require his disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired, the agency may allow the employee to take annual leave or leave without pay while seeking employment, or may take other appropriate administrative action.
§ 2635.605 Waiver or authorization permitting participation while seeking employment.
(a) Waiver. Where, as defined in §2635.603(b)(1)(i), an employee is engaged in discussions that constitute employment negotiations for purposes of 18 U.S.C. 208(a), the employee may participate personally and substantially in a particular matter that has a direct and predictable effect on the financial interests of a prospective employer only after receiving a written waiver issued under the authority of 18 U.S.C. 208(b)(1) or (b)(3). These waivers are described in §2635.402(d). See also subpart C of part 2640 of this chapter. For certain employees, a regulatory exemption under the authority of 18 U.S.C. 208(b)(2) may also apply (see subpart B of part 2640 of this chapter).
Example 1: An employee of the Department of Agriculture has had two telephone conversations with an orange grower regarding possible employment. They have discussed the employee's qualifications for a particular position with the grower, but have not yet discussed salary or other specific terms of employment. The employee is negotiating for employment within the meaning of 18 U.S.C. 208(a) and §2635.603(b)(1)(i). In the absence of a written waiver issued under 18 U.S.C. 208(b)(1), she may not take official action on a complaint filed by a competitor alleging that the grower has shipped oranges in violation of applicable quotas.
(b) Authorization by agency designee. Where an employee is seeking employment within the meaning of §2635.603(b)(1) (ii) or (iii), a reasonable person would be likely to question his impartiality if he were to participate personally and substantially in a particular matter that has a direct and predictable effect on the financial interests of any such prospective employer. The employee may participate in such matters only where the agency designee has authorized his participation in accordance with the standards set forth in §2635.502(d).
Example 1: Within the past month, an employee of the Education Department mailed her resume to a university. She is thus seeking employment with the university within the meaning of §2635.603(b)(1)(ii) even though she has received no reply. In the absence of specific authorization by the agency designee in accordance with §2635.502(d), she may not participate in an assignment to review a grant application submitted by the university.
§ 2635.606 Disqualification based on an arrangement concerning prospective employment or otherwise after negotiations.
(a) Employment or arrangement concerning employment. An employee shall be disqualified from participating personally and substantially in a particular matter that has a direct and predictable effect on the financial interests of the person by whom he is employed or with whom he has an arrangement concerning future employment, unless authorized to participate in the matter by a written waiver issued under the authority of 18 U.S.C. 208 (b)(1) or (b)(3), or by a regulatory exemption under the authority of 18 U.S.C. 208 (b)(2). These waivers and exemptions are described in §2635.402(d). See also subparts B and C of part 2640 of this chapter.
Example 1: A military officer has accepted a job with a defense contractor to begin in six months, after his retirement from military service. During the period that he remains with the Government, the officer may not participate in the administration of a contract with that particular defense contractor unless he has received a written waiver under the authority of 18 U.S.C. 208(b)(1).
Example 2: An accountant has just been offered a job with the Comptroller of the Currency which involves a two-year limited appointment. Her private employer, a large corporation, believes the job will enhance her skills and has agreed to give her a two-year unpaid leave of absence at the end of which she has agreed to return to work for the corporation. During the two-year period she is to be a COC employee, the accountant will have an arrangement concerning future employment with the corporation that will require her disqualification from participation in any particular matter that will have a direct and predictable effect on the corporation's financial interests.
(b) Offer rejected or not made. The agency designee for the purpose of §2635.502(c) may, in an appropriate case, determine that an employee not covered by the preceding paragraph who has sought but is no longer seeking employment nevertheless shall be subject to a period of disqualification upon the conclusion of employment negotiations. Any such determination shall be based on a consideration of all the relevant factors, including those listed in §2635.502(d), and a determination that the concern that a reasonable person may question the integrity of the agency's decision making process outweighs the Government's interest in the employee's participation in the particular matter.
Example 1: An employee of the Securities and Exchange Commission was relieved of responsibility for an investigation of a broker-dealer while seeking employment with the law firm representing the broker-dealer in that matter. The firm did not offer her the partnership position she sought. Even though she is no longer seeking employment with the firm, she may continue to be disqualified from participating in the investigation based on a determination by the agency designee that the concern that a reasonable person might question whether, in view of the history of the employment negotiations, she could act impartially in the matter outweighs the Government's interest in her participation.
SUBPART G - MISUSE OF POSITION
§ 2635.701 Overview. This subpart contains provisions relating to the proper use of official time and authority, and of information and resources to which an employee has access because of his Federal employment. This subpart sets forth standards relating to:
(a) Use of public office for private gain;
(b) Use of nonpublic information;
(c) Use of Government property; and
(d) Use of official time.
§ 2635.702 Use of public office for private gain. An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.
(a) Inducement or coercion of benefits. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.
Example 1: Offering to pursue a relative's consumer complaint over a household appliance, an employee of the Securities and Exchange Commission called the general counsel of the manufacturer and, in the course of discussing the problem, stated that he worked at the SEC and was responsible for reviewing the company's filings. The employee violated the prohibition against use of public office for private gain by invoking his official authority in an attempt to influence action to benefit his relative.
Example 2: An employee of the Department of Commerce was asked by a friend to determine why his firm's export license had not yet been granted by another office within the Department of Commerce. At a department-level staff meeting, the employee raised as a matter for official inquiry the delay in approval of the particular license and asked that the particular license be expedited. The official used her public office in an attempt to benefit her friend and, in acting as her friend's agent for the purpose of pursuing the export license with the Department of Commerce, may also have violated 18 U.S.C. 205.
(b) Appearance of governmental sanction. Except as otherwise provided in this part, an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another. When teaching, speaking, or writing in a personal capacity, he may refer to his official title or position only as permitted by §2635.807(b). He may sign a letter of recommendation using his official title only in response to a request for an employment recommendation or character reference based upon personal knowledge of the ability or character of an individual with whom he has dealt in the course of Federal employment or whom he is recommending for Federal employment.
Example 1: An employee of the Department of the Treasury who is asked to provide a letter of recommendation for a former subordinate on his staff may provide the recommendation using official stationery and may sign the letter using his official title. If, however, the request is for the recommendation of a personal friend with whom he has not dealt in the Government, the employee should not use official stationery or sign the letter of recommendation using his official title, unless the recommendation is for Federal employment. In writing the letter of recommendation for his personal friend, it may be appropriate for the employee to refer to his official position in the body of the letter.
(c) Endorsements. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office to endorse any product, service or enterprise except:
(1) In furtherance of statutory authority to promote products, services or enterprises; or
(2) As a result of documentation of compliance with agency requirements or standards or as the result of recognition for achievement given under an agency program of recognition for accomplishment in support of the agency's mission.
Example 1: A Commissioner of the Consumer Product Safety Commission may not appear in a television commercial in which she endorses an electrical appliance produced by her former employer, stating that it has been found by the CPSC to be safe for residential use.
Example 2: A Foreign Commercial Service officer from the Department of Commerce is asked by a United States telecommunications company to meet with representatives of the Government of Spain, which is in the process of procuring telecommunications services and equipment. The company is bidding against five European companies and the statutory mission of the Department of Commerce includes assisting the export activities of U.S. companies. As part of his official duties, the Foreign Commercial Service officer may meet with Spanish officials and explain the advantages of procurement from the United States company.
Example 3: The Administrator of the Environmental Protection Agency may sign a letter to an oil company indicating that its refining operations are in compliance with Federal air quality standards even though he knows that the company has routinely displayed letters of this type in television commercials portraying it as a “trustee of the environment for future generations.” Example 4: An Assistant Attorney General may not use his official title or refer to his Government position in a book jacket endorsement of a novel about organized crime written by an author whose work he admires. Nor may he do so in a book review published in a newspaper.
(d) Performance of official duties affecting a private interest. To ensure that the performance of his official duties does not give rise to an appearance of use of public office for private gain or of giving preferential treatment, an employee whose duties would affect the financial interests of a friend, relative or person with whom he is affiliated in a nongovernmental capacity shall comply with any applicable requirements of §2635.502.
(e) Use of terms of address and ranks. Nothing in this section prohibits an employee who is ordinarily addressed using a general term of address, such as “The Honorable”, or a rank, such as a military or ambassadorial rank, from using that term of address or rank in connection with a personal activity.
§ 2635.703 Use of nonpublic information.
(a) Prohibition. An employee shall not engage in a financial transaction using nonpublic information, nor allow the improper use of nonpublic information to further his own private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure.
(b) Definition of nonpublic information. For purposes of this section, nonpublic information is information that the employee gains by reason of Federal employment and that he knows or reasonably should know has not been made available to the general public. It includes information that he knows or reasonably should know:
(1) Is routinely exempt from disclosure under 5 U.S.C. 552 or otherwise protected from disclosure by statute, Executive order or regulation;
(2) Is designated as confidential by an agency; or
(3) Has not actually been disseminated to the general public and is not authorized to be made available to the public on request.
Example 1: A Navy employee learns in the course of her duties that a small corporation will be awarded a Navy contract for electrical test equipment. She may not take any action to purchase stock in the corporation or its suppliers and she may not advise friends or relatives to do so until after public announcement of the award. Such actions could violate Federal securities statutes as well as this section.
Example 2: A General Services Administration employee involved in evaluating proposals for a construction contract cannot disclose the terms of a competing proposal to a friend employed by a company bidding on the work. Prior to award of the contract, bid or proposal information is nonpublic information specifically protected by 41 U.S.C. 423.
Example 3: An employee is a member of a source selection team assigned to review the proposals submitted by several companies in response to an Army solicitation for spare parts. As a member of the evaluation team, the employee has access to proprietary information regarding the production methods of Alpha Corporation, one of the competitors. He may not use that information to assist Beta Company in drafting a proposal to compete for a Navy spare parts contract. The Federal Acquisition Regulation in 48 CFR parts 3, 14 and 15 restricts the release of information related to procurements and other contractor information that must be protected under 18 U.S.C. 1905 and 41 U.S.C. 423.
Example 4: An employee of the Nuclear Regulatory Commission inadvertently includes a document that is exempt from disclosure with a group of documents released in response to a Freedom of Information Act request. Regardless of whether the document is used improperly, the employee's disclosure does not violate this section because it was not a knowing unauthorized disclosure made for the purpose of furthering a private interest.
Example 5: An employee of the Army Corps of Engineers is actively involved in the activities of an organization whose goals relate to protection of the environment. The employee may not, other than as permitted by agency procedures, give the organization or a newspaper reporter nonpublic information about long-range plans to build a particular dam.
§ 2635.704 Use of Government property.
(a) Standard. An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.
(b) Definitions. For purposes of this section:
(1) Government property includes any form of real or personal property in which the Government has an ownership, leasehold, or other property interest as well as any right or other intangible interest that is purchased with Government funds, including the services of contractor personnel. The term includes office supplies, telephone and other telecommunications equipment and services, the Government mails, automated data processing capabilities, printing and reproduction facilities, Government records, and Government vehicles.
(2) Authorized purposes are those purposes for which Government property is made available to members of the public or those purposes authorized in accordance with law or regulation.
Example 1: Under regulations of the General Services Administration at 41 CFR 101–35.201, an employee may make a personal long distance call charged to her personal calling card.
Example 2: An employee of the Commodity Futures Trading Commission whose office computer gives him access to a commercial service providing information for investors may not use that service for personal investment research.
Example 3: In accordance with Office of Personnel Management regulations at part 251 of this title, an attorney employed by the Department of Justice may be permitted to use her office word processor and agency photocopy equipment to prepare a paper to be presented at a conference sponsored by a professional association of which she is a member.
§ 2635.705 Use of official time.
(a) Use of an employee's own time. Unless authorized in accordance with law or regulations to use such time for other purposes, an employee shall use official time in an honest effort to perform official duties. An employee not under a leave system, including a Presidential appointee exempted under 5 U.S.C. 6301(2), has an obligation to expend an honest effort and a reasonable proportion of his time in the performance of official duties.
Example 1: An employee of the Social Security Administration may use official time to engage in certain representational activities on behalf of the employee union of which she is a member. Under 5 U.S.C. 7131, this is a proper use of her official time even though it does not involve performance of her assigned duties as a disability claims examiner.
Example 2: A pharmacist employed by the Department of Veterans Affairs has been granted excused absence to participate as a speaker in a conference on drug abuse sponsored by the professional association to which he belongs. Although excused absence granted by an agency in accordance with guidance in chapter 630 of the Federal Personnel Manual allows an employee to be absent from his official duties without charge to his annual leave account, such absence is not on official time.
(b) Use of a subordinate's time. An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation.
Example 1: An employee of the Department of Housing and Urban Development may not ask his secretary to type his personal correspondence during duty hours. Further, directing or coercing a subordinate to perform such activities during nonduty hours constitutes an improper use of public office for private gain in violation of §2635.702(a). Where the arrangement is entirely voluntary and appropriate compensation is paid, the secretary may type the correspondence at home on her own time. Where the compensation is not adequate, however, the arrangement would involve a gift to the superior in violation of the standards in subpart C of this part.
SUBPART H - OUTSIDE ACTIVITIES
§ 2635.801 Overview.
(a) This subpart contains provisions relating to outside employment, outside activities and personal financial obligations of employees that are in addition to the principles and standards set forth in other subparts of this part. Several of these provisions apply to uncompensated as well as to compensated outside activities.
(b) An employee who wishes to engage in outside employment or other outside activities must comply with all relevant provisions of this subpart, including, when applicable:
(1) The prohibition on outside employment or any other outside activity that conflicts with the employee's official duties;
(2) Any agency-specific requirement for prior approval of outside employment or activities;
(3) The limitations on receipt of outside earned income by certain Presidential appointees and other noncareer employees;
(4) The limitations on paid and unpaid service as an expert witness;
(5) The limitations on participation in professional organizations;
(6) The limitations on paid and unpaid teaching, speaking, and writing; and
(7) The limitations on fundraising activities.
(c) Outside employment and other outside activities of an employee must also comply with applicable provisions set forth in other subparts of this part and in supplemental agency regulations. These include the principle that an employee shall endeavor to avoid actions creating an appearance of violating any of the ethical standards in this part and the prohibition against use of official position for an employee's private gain or for the private gain of any person with whom he has employment or business relations or is otherwise affiliated in a nongovernmental capacity.
(d) In addition to the provisions of this and other subparts of this part, an employee who wishes to engage in outside employment or other outside activities must comply with applicable statutes and regulations. Relevant provisions of law, many of which are listed in subpart I of this part, may include:
(1) 18 U.S.C. 201(b), which prohibits a public official from seeking, accepting or agreeing to receive or accept anything of value in return for being influenced in the performance of an official act or for being induced to take or omit to take any action in violation of his official duty;
(2) 18 U.S.C. 201(c), which prohibits a public official, otherwise than as provided by law for the proper discharge of official duty, from seeking, accepting, or agreeing to receive or accept anything of value for or because of any official act;
(3) 18 U.S.C. 203(a), which prohibits an employee from seeking, accepting, or agreeing to receive or accept compensation for any representational services, rendered personally or by another, in relation to any particular matter in which the United States is a party or has a direct and substantial interest, before any department, agency, or other specified entity. This statute contains several exceptions, as well as standards for special Government employees that limit the scope of the restriction;
(4) 18 U.S.C. 205, which prohibits an employee, whether or not for compensation, from acting as agent or attorney for anyone in a claim against the United States or from acting as agent or attorney for anyone, before any department, agency, or other specified entity, in any particular matter in which the United States is a party or has a direct and substantial interest. It also prohibits receipt of any gratuity, or any share of or interest in a claim against the United States, in consideration for assisting in the prosecution of such claim. This statute contains several exceptions, as well as standards for special Government employees that limit the scope of the restrictions;
(5) 18 U.S.C. 209, which prohibits an employee, other than a special Government employee, from receiving any salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government employee. The statute contains several exceptions that limit its applicability;
(6) The Emoluments Clause of the United States Constitution, article I, section 9, clause 8, which prohibits anyone holding an office of profit or trust under the United States from accepting any gift, office, title or emolument, including salary or compensation, from any foreign government except as authorized by Congress. In addition, 18 U.S.C. 219 generally prohibits any public official from being or acting as an agent of a foreign principal, including a foreign government, corporation or person, if the employee would be required to register as a foreign agent under 22 U.S.C. 611 et seq.;
(7) The Hatch Act Reform Amendments, 5 U.S.C. 7321 through 7326, which govern the political activities of executive branch employees; and
(8) The limitations on outside employment, 5 U.S.C. App. (Ethics in Government Act of 1978), which prohibit a covered noncareer employee's receipt of compensation for specified activities and provide that he shall not allow his name to be used by any firm or other entity which provides professional services involving a fiduciary relationship. Implementing regulations are contained in §§2636.305 through 2636.307 of this chapter.
§ 2635.802 Conflicting outside employment and activities.
An employee shall not engage in outside employment or any other outside activity that conflicts with his official duties. An activity conflicts with an employee's official duties:
(a) If it is prohibited by statute or by an agency supplemental regulation; or
(b) If, under the standards set forth in §§2635.402 and 2635.502, it would require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired.
Employees are cautioned that even though an outside activity may not be prohibited under this section, it may violate other principles or standards set forth in this part or require the employee to disqualify himself from participation in certain particular matters under either subpart D or subpart E of this part.
Example 1: An employee of the Environmental Protection Agency has just been promoted. His principal duty in his new position is to write regulations relating to the disposal of hazardous waste. The employee may not continue to serve as president of a nonprofit environmental organization that routinely submits comments on such regulations. His service as an officer would require his disqualification from duties critical to the performance of his official duties on a basis so frequent as to materially impair his ability to perform the duties of his position.
Example 2: An employee of the Occupational Safety and Health Administration who was and is expected again to be instrumental in formulating new OSHA safety standards applicable to manufacturers that use chemical solvents has been offered a consulting contract to provide advice to an affected company in restructuring its manufacturing operations to comply with the OSHA standards. The employee should not enter into the consulting arrangement even though he is not currently working on OSHA standards affecting this industry and his consulting contract can be expected to be completed before he again works on such standards. Even though the consulting arrangement would not be a conflicting activity within the meaning of §2635.802, it would create an appearance that the employee had used his official position to obtain the compensated outside business opportunity and it would create the further appearance of using his public office for the private gain of the manufacturer.
§ 2635.803 Prior approval for outside employment and activities.
When required by agency supplemental regulation issued after February 3, 1993, an employee shall obtain prior approval before engaging in outside employment or activities. Where it is determined to be necessary or desirable for the purpose of administering its ethics program, an agency shall, by supplemental regulation, require employees or any category of employees to obtain prior approval before engaging in specific types of outside activities, including outside employment.
§ 2635.804 Outside earned income limitations applicable to certain Presidential appointees and other noncareer employees.
(a) Presidential appointees to full-time noncareer positions. A Presidential appointee to a full-time noncareer position shall not receive any outside earned income for outside employment, or for any other outside activity, performed during that Presidential appointment. This limitation does not apply to any outside earned income received for outside employment, or for any other outside activity, carried out in satisfaction of the employee's obligation under a contract entered into prior to April 12, 1989.
(b) Covered noncareer employees. Covered noncareer employees, as defined in §2636.303(a) of this chapter, may not, in any calendar year, receive outside earned income attributable to that calendar year which exceeds 15 percent of the annual rate of basic pay for level II of the Executive Schedule under 5 U.S.C. 5313, as in effect on January 1 of such calendar year. Employees should consult the regulations implementing this limitation, which are contained in §§2636.301 through 2636.304 of this chapter.
Note: In addition to the 15 percent limitation on outside earned income, covered noncareer employees are prohibited from receiving any compensation for: practicing a profession which involves a fiduciary relationship; affiliating with or being employed by a firm or other entity which provides professional services involving a fiduciary relationship; serving as an officer or member of the board of any association, corporation or other entity; or teaching without prior approval. Implementing regulations are contained in §§2636.305 through 2636.307 of this chapter.
(c) Definitions. For purposes of this section:
(1) Outside earned income has the meaning set forth in §2636.303(b) of this chapter, except that §2636.303(b)(7) shall not apply.
(2) Presidential appointee to a full-time noncareer position means any employee who is appointed by the President to a full-time position described in 5 U.S.C. 5312 through 5317 or to a position that, by statute or as a matter of practice, is filled by Presidential appointment, other than:
(i) A position filled under the authority of 3 U.S.C. 105 or 3 U.S.C. 107(a) for which the rate of basic pay is less than that for GS–9, step 1 of the General Schedule;
(ii) A position, within a White House operating unit, that is designated as not normally subject to change as a result of a Presidential transition;
(iii) A position within the uniformed services; or
(iv) A position in which a member of the foreign service is serving that does not require advice and consent of the Senate.
Example 1: A career Department of Justice employee who is detailed to a policy-making position in the White House Office that is ordinarily filled by a noncareer employee is not a Presidential appointee to a full-time noncareer position.
Example 2: A Department of Energy employee appointed under §213.3301 of this title to a Schedule C position is appointed by the agency and, thus, is not a Presidential appointee to a full-time noncareer position.
§ 2635.805 Service as an expert witness.
(a) Restriction. An employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest, unless the employee's participation is authorized by the agency under paragraph (c) of this section. Except as provided in paragraph (b) of this section, this restriction shall apply to a special Government employee only if he has participated as an employee or special Government employee in the particular proceeding or in the particular matter that is the subject of the proceeding.
(b) Additional restriction applicable to certain special Government employees.
(1) In addition to the restriction described in paragraph (a) of this section, a special Government employee described in paragraph (b)(2) of this section shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which his employing agency is a party or has a direct and substantial interest, unless the employee's participation is authorized by the agency under paragraph (c) of this section.
(2) The restriction in paragraph (b)(1) of this section shall apply to a special Government employee who:
(i) Is appointed by the President;
(ii) Serves on a commission established by statute; or
(iii) Has served or is expected to serve for more than 60 days in a period of 365 consecutive days.
(c) Authorization to serve as an expert witness. Provided that the employee's testimony will not violate any of the principles or standards set forth in this part, authorization to provide expert witness service otherwise prohibited by paragraphs (a) and (b) of this section may be given by the designated agency ethics official of the agency in which the employee serves when:
(1) After consultation with the agency representing the Government in the proceeding or, if the Government is not a party, with the Department of Justice and the agency with the most direct and substantial interest in the matter, the designated agency ethics official determines that the employee's service as an expert witness is in the interest of the Government; or
(2) The designated agency ethics official determines that the subject matter of the testimony does not relate to the employee's official duties within the meaning of §2635.807(a)(2)(i).
(d) Nothing in this section prohibits an employee from serving as a fact witness when subpoenaed by an appropriate authority.
§ 2635.806 Participation in professional associations. [Reserved]
§ 2635.807 Teaching, speaking and writing.
(a) Compensation for teaching, speaking or writing. Except as permitted by paragraph (a)(3) of this section, an employee, including a special Government employee, shall not receive compensation from any source other than the Government for teaching, speaking or writing that relates to the employee's official duties.
(1) Relationship to other limitations on receipt of compensation. The compensation prohibition contained in this section is in addition to any other limitation on receipt of compensation set forth in this chapter, including:
(i) The requirement contained in §2636.307 of this chapter that covered noncareer employees obtain advance authorization before engaging in teaching for compensation; and
(ii) The prohibitions and limitations in §2635.804 and in §2636.304 of this chapter on receipt of outside earned income applicable to certain Presidential appointees and to other covered noncareer employees.
(2) Definitions. For purposes of this paragraph:
(i) Teaching, speaking or writing relates to the employee's official duties if:
(A) The activity is undertaken as part of the employee's official duties;
(B) The circumstances indicate that the invitation to engage in the activity was extended to the employee primarily because of his official position rather than his expertise on the particular subject matter;
(C) The invitation to engage in the activity or the offer of compensation for the activity was extended to the employee, directly or indirectly, by a person who has interests that may be affected substantially by performance or nonperformance of the employee's official duties;
(D) The information conveyed through the activity draws substantially on ideas or official data that are nonpublic information as defined in §2635.703(b); or
(E) Except as provided in paragraph (a)(2)(i)(E)(4) of this section, the subject of the activity deals in significant part with:
(1) Any matter to which the employee presently is assigned or to which the employee had been assigned during the previous one-year period;
(2) Any ongoing or announced policy, program or operation of the agency; or
(3) In the case of a noncareer employee as defined in §2636.303(a) of this chapter, the general subject matter area, industry, or economic sector primarily affected by the programs and operations of his agency.
(4) The restrictions in paragraphs (a)(2)(i)(E)(2) and (3) of this section do not apply to a special Government employee. The restriction in paragraph (a)(2)(i)(E)(1) of this section applies only during the current appointment of a special Government employee; except that if the special Government employee has not served or is not expected to serve for more than 60 days during the first year or any subsequent one year period of that appointment, the restriction applies only to particular matters involving specific parties in which the special Government employee has participated or is participating personally and substantially.
Note: Section 2635.807(a)(2)(i)(E) does not preclude an employee, other than a covered noncareer employee, from receiving compensation for teaching, speaking or writing on a subject within the employee's discipline or inherent area of expertise based on his educational background or experience even though the teaching, speaking or writing deals generally with a subject within the agency's areas of responsibility.
Example 1: The Director of the Division of Enforcement at the Commodity Futures Trading Commission has a keen interest in stamp collecting and has spent years developing his own collection as well as studying the field generally. He is asked by an international society of philatelists to give a series of four lectures on how to assess the value of American stamps. Because the subject does not relate to his official duties, the Director may accept compensation for the lecture series. He could not, however, accept a similar invitation from a commodities broker.
Example 2: A scientist at the National Institutes of Health, whose principal area of Government research is the molecular basis of the development of cancer, could not be compensated for writing a book which focuses specifically on the research she conducts in her position at NIH, and thus, relates to her official duties. However, the scientist could receive compensation for writing or editing a textbook on the treatment of all cancers, provided that the book does not focus on recent research at NIH, but rather conveys scientific knowledge gleaned from the scientific community as a whole. The book might include a chapter, among many other chapters, which discusses the molecular basis of cancer development. Additionally, the book could contain brief discussions of recent developments in cancer treatment, even though some of those developments are derived from NIH research, as long as it is available to the public.
Example 3: On his own time, a National Highway Traffic Safety Administration employee prepared a consumer's guide to purchasing a safe automobile that focuses on automobile crash worthiness statistics gathered and made public by NHTSA. He may not receive royalties or any other form of compensation for the guide. The guide deals in significant part with the programs or operations of NHTSA and, therefore, relates to the employee's official duties. On the other hand, the employee could receive royalties from the sale of a consumer's guide to values in used automobiles even though it contains a brief, incidental discussion of automobile safety standards developed by NHTSA.
Example 4: An employee of the Securities and Exchange Commission may not receive compensation for a book which focuses specifically on the regulation of the securities industry in the United States, since that subject concerns the regulatory programs or operations of the SEC. The employee may, however, write a book about the advantages of investing in various types of securities as long as the book contains only an incidental discussion of any program or operation of the SEC.
Example 5: An employee of the Department of Commerce who works in the Department's employee relations office is an acknowledged expert in the field of Federal employee labor relations, and participates in Department negotiations with employee unions. The employee may receive compensation from a private training institute for a series of lectures which describe the decisions of the Federal Labor Relations Authority concerning unfair labor practices, provided that her lectures do not contain any significant discussion of labor relations cases handled at the Department of Commerce, or the Department's labor relations policies. Federal Labor Relations Authority decisions concerning Federal employee unfair labor practices are not a specific program or operation of the Department of Commerce and thus do not relate to the employee's official duties. However, an employee of the FLRA could not give the same presentations for compensation.
Example 6: A program analyst employed at the Environmental Protection Agency may receive royalties and other compensation for a book about the history of the environmental movement in the United States even though it contains brief references to the creation and responsibilities of the EPA. A covered noncareer employee of the EPA, however, could not receive compensation for writing the same book because it deals with the general subject matter area affected by EPA programs and operations. Neither employee could receive compensation for writing a book that focuses on specific EPA regulations or otherwise on its programs and operations.
Example 7: An attorney in private practice has been given a one year appointment as a special Government employee to serve on an advisory committee convened for the purpose of surveying and recommending modification of procurement regulations that deter small businesses from competing for Government contracts. Because his service under that appointment is not expected to exceed 60 days, the attorney may accept compensation for an article about the anticompetitive effects of certain regulatory certification requirements even though those regulations are being reviewed by the advisory committee. The regulations which are the focus of the advisory committee deliberations are not a particular matter involving specific parties. Because the information is nonpublic, he could not, however, accept compensation for an article which recounts advisory committee deliberations that took place in a meeting closed to the public in order to discuss proprietary information provided by a small business.
Example 8: A biologist who is an expert in marine life is employed for more than 60 days in a year as a special Government employee by the National Science Foundation to assist in developing a program of grants by the Foundation for the study of coral reefs. The biologist may continue to receive compensation for speaking, teaching and writing about marine life generally and coral reefs specifically. However, during the term of her appointment as a special Government employee, she may not receive compensation for an article about the NSF program she is participating in developing. Only the latter would concern a matter to which the special Government employee is assigned.
Example 9: An expert on international banking transactions has been given a one-year appointment as a special Government employee to assist in analyzing evidence in the Government's fraud prosecution of owners of a failed savings and loan association. It is anticipated that she will serve fewer than 60 days under that appointment. Nevertheless, during her appointment, the expert may not accept compensation for an article about the fraud prosecution, even though the article does not reveal nonpublic information. The prosecution is a particular matter that involves specific parties.
(ii) Agency has the meaning set forth in §2635.102(a), except that any component of a department designated as a separate agency under §2635.203(a) shall be considered a separate agency.
(iii) Compensation includes any form of consideration, remuneration or income, including royalties, given for or in connection with the employee's teaching, speaking or writing activities. Unless accepted under specific statutory authority, such as 31 U.S.C. 1353, 5 U.S.C. 4111 or 7342, or an agency gift acceptance statute, it includes transportation, lodgings and meals, whether provided in kind, by purchase of a ticket, by payment in advance or by reimbursement after the expense has been incurred. It does not include:
(A) Items offered by any source that could be accepted from a prohibited source under subpart B of this part;
(B) Meals or other incidents of attendance such as waiver of attendance fees or course materials furnished as part of the event at which the teaching or speaking takes place;
(C) Copies of books or of publications containing articles, reprints of articles, tapes of speeches, and similar items that provide a record of the teaching, speaking or writing activity; or
(D) In the case of an employee other than a covered noncareer employee as defined in 5 CFR 2636.303(a), travel expenses, consisting of transportation, lodgings or meals, incurred in connection with the teaching, speaking or writing activity.
Note to paragraph(a)(2)(iii): Independent of §2635.807(a), other authorities, such as 18 U.S.C. 209, in some circumstances may limit or entirely preclude an employee's acceptance of travel expenses. In addition, employees who file financial disclosure reports should be aware that, subject to applicable thresholds and exclusions, travel and travel reimbursements accepted from sources other than the United States Government must be reported on their financial disclosure reports.
Example 1 to paragraph(a)(2)(iii): A GS–15 employee of the Forest Service has developed and marketed, in her private capacity, a speed reading technique for which popular demand is growing. She is invited to speak about the technique by a representative of an organization that will be substantially affected by a regulation on land management which the employee is in the process of drafting for the Forest Service. The representative offers to pay the employee a $200 speaker's fee and to reimburse all her travel expenses. She may accept the travel reimbursements, but not the speaker's fee. The speaking activity is related to her official duties under §2635.807(a)(2)(i)(C) and the fee is prohibited compensation for such speech; travel expenses incurred in connection with the speaking engagement, on the other hand, are not prohibited compensation for a GS–15 employee.
Example 2 to paragraph(a)(2)(iii): Solely because of her recent appointment to a Cabinet-level position, a Government official is invited by the Chief Executive Officer of a major international corporation to attend firm meetings to be held in Aspen for the purpose of addressing senior corporate managers on the importance of recreational activities to a balanced lifestyle. The firm offers to reimburse the official's travel expenses. The official may not accept the offer. The speaking activity is related to official duties under §2635.807(a)(2)(i)(B) and, because she is a covered noncareer employee as defined in §2636.303(a) of this chapter, the travel expenses are prohibited compensation as to her.
Example 3 to paragraph (a)(2)(iii): A GS–14 attorney at the Federal Trade Commission (FTC) who played a lead role in a recently concluded merger case is invited to speak about the case, in his private capacity, at a conference in New York. The attorney has no public speaking responsibilities on behalf of the FTC apart from the judicial and administrative proceedings to which he is assigned. The sponsors of the conference offer to reimburse the attorney for expenses incurred in connection with his travel to New York. They also offer him, as compensation for his time and effort, a free trip to San Francisco. The attorney may accept the travel expenses to New York, but not the expenses to San Francisco. The lecture relates to his official duties under paragraphs (a)(2)(i)(E)( 1 ) and (a)(2)(i)(E)( 2 ) of §2635.807, but because he is not a covered noncareer employee as defined in §2636.303(a) of this chapter, the expenses associated with his travel to New York are not a prohibited form of compensation as to him. The travel expenses to San Francisco, on the other hand, not incurred in connection with the speaking activity, are a prohibited form of compensation. If the attorney were a covered noncareer employee he would be barred from accepting the travel expenses to New York as well as the travel expenses to San Francisco.
Example 4 to paragraph (a)(2)(iii): An advocacy group dedicated to improving treatments for severe pain asks the National Institutes of Health (NIH) to provide a conference speaker who can discuss recent advances in the agency's research on pain. The group also offers to pay the employee's travel expenses to attend the conference. After performing the required conflict of interest analysis, NIH authorizes acceptance of the travel expenses under 31 U.S.C. 1353 and the implementing General Services Administration regulation, as codified under 41 CFR chapter 304, and authorizes an employee to undertake the travel. At the conference the advocacy group, as agreed, pays the employee's hotel bill and provides several of his meals. Subsequently the group reimburses the agency for the cost of the employee's airfare and some additional meals. All of the payments by the advocacy group are permissible. Since the employee is speaking officially and the expense payments are accepted under 31 U.S.C. 1353, they are not prohibited compensation under §2635.807(a)(2)(iii). The same result would obtain with respect to expense payments made by non-Government sources properly authorized under an agency gift acceptance statute, the Government Employees Training Act, 5 U.S.C. 4111, or the foreign gifts law, 5 U.S.C. 7342.
(iv) Receive means that there is actual or constructive receipt of the compensation by the employee so that the employee has the right to exercise dominion and control over the compensation and to direct its subsequent use. Compensation received by an employee includes compensation which is:
(A) Paid to another person, including a charitable organization, on the basis of designation, recommendation or other specification by the employee; or
(B) Paid with the employee's knowledge and acquiescence to his parent, sibling, spouse, child, or dependent relative.
(v) Particular matter involving specific parties has the meaning set forth in §2637.102(a)(7) of this chapter. (vi) Personal and substantial participation has the meaning set forth in §2635.402(b)(4). (3) Exception for teaching certain courses. Notwithstanding that the activity would relate to his official duties under paragraphs (a)(2)(i) (B) or (E) of this section, an employee may accept compensation for teaching a course requiring multiple presentations by the employee if the course is offered as part of:
(i) The regularly established curriculum of:
(A) An institution of higher education as defined at 20 U.S.C. 1141(a);
(B) An elementary school as defined at 20 U.S.C. 2891(8); or
(C) A secondary school as defined at 20 U.S.C. 2891(21); or
(ii) A program of education or training sponsored and funded by the Federal Government or by a State or local government which is not offered by an entity described in paragraph (a)(3)(i) of this section.
Example 1: An employee of the Cost Accounting Standards Board who teaches an advanced accounting course as part of the regular business school curriculum of an accredited university may receive compensation for teaching the course even though a substantial portion of the course deals with cost accounting principles applicable to contracts with the Government.
Example 2: An attorney employed by the Equal Employment Opportunity Commission may accept compensation for teaching a course at a state college on the subject of Federal employment discrimination law. The attorney could not accept compensation for teaching the same seminar as part of a continuing education program sponsored by her bar association because the subject of the course is focused on the operations or programs of the EEOC and the sponsor of the course is not an accredited educational institution.
Example 3: An employee of the National Endowment for the Humanities is invited by a private university to teach a course that is a survey of Government policies in support of artists, poets and writers. As part of his official duties, the employee administers a grant that the university has received from the NEH. The employee may not accept compensation for teaching the course because the university has interests that may be substantially affected by the performance or nonperformance of the employee's duties. Likewise, an employee may not receive compensation for any teaching that is undertaken as part of his official duties or that involves the use of nonpublic information.
(b) Reference to official position. An employee who is engaged in teaching, speaking or writing as outside employment or as an outside activity shall not use or permit the use of his official title or position to identify him in connection with his teaching, speaking or writing activity or to promote any book, seminar, course, program or similar undertaking, except that:
(1) An employee may include or permit the inclusion of his title or position as one of several biographical details when such information is given to identify him in connection with his teaching, speaking or writing, provided that his title or position is given no more prominence than other significant biographical details;
(2) An employee may use, or permit the use of, his title or position in connection with an article published in a scientific or professional journal, provided that the title or position is accompanied by a reasonably prominent disclaimer satisfactory to the agency stating that the views expressed in the article do not necessarily represent the views of the agency or the United States; and
(3) An employee who is ordinarily addressed using a general term of address, such as “The Honorable,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank in connection with his teaching, speaking or writing.
Note: Some agencies may have policies requiring advance agency review, clearance, or approval of certain speeches, books, articles or similar products to determine whether the product contains an appropriate disclaimer, discloses nonpublic information, or otherwise complies with this section.
Example 1: A meteorologist employed with the National Oceanic and Atmospheric Administration is asked by a local university to teach a graduate course on hurricanes. The university may include the meteorologist's Government title and position together with other information about his education and previous employment in course materials setting forth biographical data on all teachers involved in the graduate program. However, his title or position may not be used to promote the course, for example, by featuring the meteorologist's Government title, Senior Meteorologist, NOAA, in bold type under his name. In contrast, his title may be used in this manner when the meteorologist is authorized by NOAA to speak in his official capacity.
Example 2: A doctor just employed by the Centers for Disease Control has written a paper based on his earlier independent research into cell structures. Incident to the paper's publication in the Journal of the American Medical Association, the doctor may be given credit for the paper, as Dr. M. Wellbeing, Associate Director, Centers for Disease Control, provided that the article also contains a disclaimer, concurred in by the CDC, indicating that the paper is the result of the doctor's independent research and does not represent the findings of the CDC.
Example 3: An employee of the Federal Deposit Insurance Corporation has been asked to give a speech in his private capacity, without compensation, to the annual meeting of a committee of the American Bankers Association on the need for banking reform. The employee may be described in his introduction at the meeting as an employee of the Federal Deposit Insurance Corporation provided that other pertinent biographical details are mentioned as well.
§ 2635.808 Fundraising activities.
An employee may engage in fundraising only in accordance with the restrictions in part 950 of this title on the conduct of charitable fundraising in the Federal workplace and in accordance with paragraphs (b) and (c) of this section.
(a) Definitions. For purposes of this section:
(1) Fundraising means the raising of funds for a nonprofit organization, other than a political organization as defined in 26 U.S.C. 527(e), through: (i) Solicitation of funds or sale of items; or (ii) Participation in the conduct of an event by an employee where any portion of the cost of attendance or participation may be taken as a charitable tax deduction by a person incurring that cost.
(2) Participation in the conduct of an event means active and visible participation in the promotion, production, or presentation of the event and includes serving as honorary chairperson, sitting at a head table during the event, and standing in a reception line. The term does not include mere attendance at an event provided that, to the employee's knowledge, his attendance is not used by the nonprofit organization to promote the event. While the term generally includes any public speaking during the event, it does not include the delivery of an official speech as defined in paragraph (a)(3) of this section or any seating or other participation appropriate to the delivery of such a speech. Waiver of a fee for attendance at an event by a participant in the conduct of that event does not constitute a gift for purposes of subpart B of this part.
Note: This section does not prohibit fundraising for a political party, candidate for partisan political office, or partisan political group. However, there are statutory restrictions that apply to political fundraising. For example, under the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323(a), employees may not knowingly solicit, accept, or receive a political contribution from any person, except under limited circumstances. In addition, employees are prohibited by 18 U.S.C. 607 from soliciting or receiving political contributions in Federal offices, and, except as permitted by the Hatch Act Reform Amendments, are prohibited by 18 U.S.C. 602 from knowingly soliciting political contributions from other employees.
Example 1: The Secretary of Transportation has been asked to serve as master of ceremonies for an All-Star Gala. Tickets to the event cost $150 and are tax deductible as a charitable donation, with proceeds to be donated to a local hospital. By serving as master of ceremonies, the Secretary would be participating in fundraising.
(3) Official speech means a speech given by an employee in his official capacity on a subject matter that relates to his official duties, provided that the employee's agency has determined that the event at which the speech is to be given provides an appropriate forum for the dissemination of the information to be presented and provided that the employee does not request donations or other support for the nonprofit organization. Subject matter relates to an employee's official duties if it focuses specifically on the employee's official duties, on the responsibilities, programs, or operations of the employee's agency as described in §2635.807(a)(2)(i)(E), or on matters of Administration policy on which the employee has been authorized to speak.
Example 1: The Secretary of Labor is invited to speak at a banquet honoring a distinguished labor leader, the proceeds of which will benefit a nonprofit organization that assists homeless families. She devotes a major portion of her speech to the Administration's Points of Light initiative, an effort to encourage citizens to volunteer their time to help solve serious social problems. Because she is authorized to speak on Administration policy, her remarks at the banquet are an official speech. However, the Secretary would be engaged in fundraising if she were to conclude her official speech with a request for donations to the nonprofit organization.
Example 2: A charitable organization is sponsoring a two-day tennis tournament at a country club in the Washington, DC area to raise funds for recreational programs for learning disabled children. The organization has invited the Secretary of Education to give a speech on federally funded special education programs at the awards dinner to be held at the conclusion of the tournament and a determination has been made that the dinner is an appropriate forum for the particular speech. The Secretary may speak at the dinner and, under §2635.204(g)(1), he may partake of the meal provided to him at the dinner.
(4) Personally solicit means to request or otherwise encourage donations or other support either through person-to-person contact or through the use of one's name or identity in correspondence or by permitting its use by others. It does not include the solicitation of funds through the media or through either oral remarks, or the contemporaneous dispatch of like items of mass-produced correspondence, if such remarks or correspondence are addressed to a group consisting of many persons, unless it is known to the employee that the solicitation is targeted at subordinates or at persons who are prohibited sources within the meaning of §2635.203(d). It does not include behind-the-scenes assistance in the solicitation of funds, such as drafting correspondence, stuffing envelopes, or accounting for contributions.
Example 1: An employee of the Department of Energy who signs a letter soliciting funds for a local private school does not “personally solicit” funds when 500 copies of the letter, which makes no mention of his DOE position and title, are mailed to members of the local community, even though some individuals who are employed by Department of Energy contractors may receive the letter.
(b) Fundraising in an official capacity. An employee may participate in fundraising in an official capacity if, in accordance with a statute, Executive order, regulation or otherwise as determined by the agency, he is authorized to engage in the fundraising activity as part of his official duties. When authorized to participate in an official capacity, an employee may use his official title, position and authority.
Example 1: Because participation in his official capacity is authorized under part 950 of this title, the Secretary of the Army may sign a memorandum to all Army personnel encouraging them to donate to the Combined Federal Campaign.
(c) Fundraising in a personal capacity. An employee may engage in fundraising in his personal capacity provided that he does not:
(1) Personally solicit funds or other support from a subordinate or from any person:
(i) Known to the employee, if the employee is other than a special Government employee, to be a prohibited source within the meaning of §2635.203(d); or
(ii) Known to the employee, if the employee is a special Government employee, to be a prohibited source within the meaning of §2635.203(d)(4) that is a person whose interests may be substantially affected by performance or nonperformance of his official duties;
(2) Use or permit the use of his official title, position or any authority associated with his public office to further the fundraising effort, except that an employee who is ordinarily addressed using a general term of address, such “The Honorable,” or a rank, such as a military or ambassadorial rank, may use or permit the use of that term of address or rank for such purposes; or]
(3) Engage in any action that would otherwise violate this part.
Example 1: A nonprofit organization is sponsoring a golf tournament to raise funds for underprivileged children. The Secretary of the Navy may not enter the tournament with the understanding that the organization intends to attract participants by offering other entrants the opportunity, in exchange for a donation in the form of an entry fee, to spend the day playing 18 holes of golf in a foursome with the Secretary of the Navy.
Example 2: An employee of the Merit Systems Protection Board may not use the agency's photocopier to reproduce fundraising literature for her son's private school. Such use of the photocopier would violate the standards at §2635.704 regarding use of Government property.
Example 3: An Assistant Attorney General may not sign a letter soliciting funds for a homeless shelter as “John Doe, Assistant Attorney General.” He also may not sign a letter with just his signature, “John Doe,” soliciting funds from a prohibited source, unless the letter is one of many identical, mass-produced letters addressed to a large group where the solicitation is not known to him to be targeted at persons who are either prohibited sources or subordinates.
§ 2635.809 Just financial obligations.
Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those such as Federal, State, or local taxes that are imposed by law. For purposes of this section, a just financial obligation includes any financial obligation acknowledged by the employee or reduced to judgment by a court. In good faith means an honest intention to fulfill any just financial obligation in a timely manner. In the event of a dispute between an employee and an alleged creditor, this section does not require an agency to determine the validity or amount of the disputed debt or to collect a debt on the alleged creditor's behalf.
SUBPART I - RELATED STATUTORY AUTHORITIES
§ 2635.901 General.
In addition to the standards of ethical conduct set forth in subparts A through H of this part, there are a number of statutes that establish standards to which an employee's conduct must conform. The list set forth in §2635.902 references some of the more significant of those statutes. It is not comprehensive and includes only references to statutes of general applicability. While it includes references to several of the basic conflict of interest statutes whose standards are explained in more detail throughout this part, it does not include references to statutes of more limited applicability, such as statutes that apply only to officers and employees of the Department of Defense.
§ 2635.902 Related statutes.
(a) The prohibition against solicitation or receipt of bribes (18 U.S.C. 201(b)).
(b) The prohibition against solicitation or receipt of illegal gratuities (18 U.S.C. 201(c)).
(c) The prohibition against seeking or receiving compensation for certain representational services before the Government (18 U.S.C. 203).
(d) The prohibition against assisting in the prosecution of claims against the Government or acting as agent or attorney before the Government (18 U.S.C. 205).
(e) The post-employment restrictions applicable to former employees (18 U.S.C. 207, with implementing regulations at parts 2637 and 2641 of this chapter).
(f) The prohibition on certain former agency officials' acceptance of compensation from a contractor (41 U.S.C. 423(d)).
(g) The prohibition against participating in matters affecting an employee's own financial interests or the financial interests of other specified persons or organizations (18 U.S.C. 208).
(h) The actions required of certain agency officials when they contact, or are contacted by, offerors or bidders regarding non-Federal employment (41 U.S.C. 423(c)).
(i) The prohibition against receiving salary or any contribution to or supplementation of salary as compensation for Government service from a source other than the United States (18 U.S.C. 209).
(j) The prohibition against gifts to superiors (5 U.S.C. 7351).
(k) The prohibition against solicitation or receipt of gifts from specified prohibited sources (5 U.S.C. 7353).
(l) The prohibition against fraudulent access and related activity in connection with computers (18 U.S.C. 1030).
(m) The provisions governing receipt and disposition of foreign gifts and decorations (5 U.S.C. 7342).
(o) The prohibitions against certain political activities (5 U.S.C. 7321 through 7326 and 18 U.S.C. 602, 603, 606 and 607).
(p) The prohibitions against disloyalty and striking (5 U.S.C. 7311 and 18 U.S.C. 1918).
(q) The general prohibition (18 U.S.C. 219) against acting as the agent of a foreign principal required to register under the Foreign Agents Registration Act (22 U.S.C. 611 through 621).
(r) The prohibition against employment of a person convicted of participating in or promoting a riot or civil disorder (5 U.S.C. 7313).
(s) The prohibition against employment of an individual who habitually uses intoxicating beverages to excess (5 U.S.C. 7352).
(t) The prohibition against misuse of a Government vehicle (31 U.S.C. 1344).
(u) The prohibition against misuse of the franking privilege (18 U.S.C. 1719).
(v) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).
(w) The prohibition against concealing, mutilating or destroying a public record (18 U.S.C. 2071).
(x) The prohibition against counterfeiting or forging transportation requests (18 U.S.C. 508).
(y) The restrictions on disclosure of certain sensitive Government information under the Freedom of Information Act and the Privacy Act (5 U.S.C. 552 and 552a).
(z) The prohibitions against disclosure of classified information (18 U.S.C. 798 and 50 U.S.C. 783(a)).
(aa) The prohibition against disclosure of proprietary information and certain other information of a confidential nature (18 U.S.C. 1905).
(bb) The prohibitions on disclosing and obtaining certain procurement information (41 U.S.C. 423(a) and (b)).
(cc) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
(dd) The prohibition against certain personnel practices (5 U.S.C. 2302).
(ee) The prohibition against interference with civil service examinations (18 U.S.C. 1917). (ff) The restrictions on use of public funds for lobbying (18 U.S.C. 1913).
(gg) The prohibition against participation in the appointment or promotion of relatives (5 U.S.C. 3110).
(hh) The prohibition against solicitation or acceptance of anything of value to obtain public office for another (18 U.S.C. 211).
(ii) The prohibition against conspiracy to commit an offense against or to defraud the United States (18 U.S.C. 371).
(jj) The prohibition against embezzlement or conversion of Government money or property (18 U.S.C. 641).
(kk) The prohibition against failing to account for public money (18 U.S.C. 643).
(ll) The prohibition against embezzlement of the money or property of another person that is in the possession of an employee by reason of his employment (18 U.S.C. 654).
Disclaimer: Please note the codes in our collection might not necessarily be the most recent versions. Please contact the individual organizations or their websites to verify if a more recent or updated code of ethics is available. CSEP does not hold copyright on any of the codes of ethics in our collection. Any permission to use the codes must be sought from the individual organizations directly.
Code of Ethics
This code is intended as a guide to the ethical conduct of individual workers in the field of criminalistics. It is not to be construed that these principles are immutable laws nor that they are all-inclusive. Instead, they represent general standards which each worker should strive to meet. It is to be realized that each individual case may vary, just as does the evidence with which the criminalist is concerned, at no set of guides or rules will precisely fit every occasion. A the same time the fundamentals set forth in this Code are to be regarded as indicating, to a considerable extent, the conduct requirements expected of members of the profession and of this Association. A failure to meet or maintain certain of these standards will justifiably case doubt upon an individual’s fitness for this type of work. Serious or repeated infractions of these principles may be regarded as inconsistent with membership in the Association.
Criminalistics is the professional occupation concerned with the scientific analysis and examination of physical evidence, its interpretation, and its presentation in court. It involves the application of principles, techniques and methods of the physical sciences, and has as its primary objective the determination of physical facts which may be significant in legal cases.
It is the duty of any person practicing the profession of criminalistics to serve the interests of justice to the best of his ability at all times. In fulfilling this duty, he will use all of the scientific means at his command to ascertain all of the significant physical facts relative to the matters under investigation. Having made factual determinations, the criminalist must then interpret and evaluate his findings. In this he will be guided by experience and knowledge which, coupled with a serious consideration of his analytical findings and the application of sound judgment, may enable him to arrive at opinions and conclusions pertaining to the matters under study. These findings of fact and his conclusions and opinions should then be reported, with all accuracy and skill of which the criminalist is capable, to the end that all may fully understand and be able to place the findings in their proper relationship to the problem at issue.
In carrying out these functions, the criminalist will be guided by those practices and procedures which are generally recognized within the profession and be consistent with a high level of professional ethics. The motives, methods, and actions of the criminalist shall at all times be above reproach, in good taste, and consistent with the proper moral conduct.
1. Ethics Relating to Scientific Method:
A. The criminalist has a truly scientific spirit and should be inquiring, progressive, logical and unbiased.
B. The true scientist will make adequate examination of his materials, applying those tests essential to proff. He will not, merely for the sake of bolstering his conclusions, utilize unwarranted and superfluous tests in an attempt to give apparent greater weight to his results.
C. The modern scientific mind is an open one incompatible with secrecy of method. Scientific analyses will not be conducted by “secret processes,” nor will conclusions in case work be based upon such tests and experiments as will not be revealed to the profession.
D. A proper scientific method demands reliability of validity in the materials analyzed. Conclusions will not be drawn from materials which themselves appear unrepresentative, atypical, or unreliable.
E. A truly scientific method requires that no generally discredited or unreliable procedure be utilized in the analysis.
F. The progressive worker will keep abreast of new developments in scientific methods and in all cases view them with an open mind. This is not to say that he need not be critical of untried or unproved methods, but he will recognize superior methods if and when they are introduced.
II. Ethics Relating to Opinions and Conclusions
A. Valid conclusions call for the application of proven methods. Where it is practical to do so, the competent criminalist will apply such methods throughout. This does not demand the application of “standard testing procedures,” but, where practical, use should be made of those methods developed and recognized by this or other professional societies.
B. Tests are designed to disclose true facts and all interpretations shall be consistent with that purpose and will not be knowingly distorted.
C. Where appropriate to the correct interpretation of a test, experimental controls shall be consistent with that purpose and will not be knowingly distorted.
D. Where possible, the conclusions reached as a result of analytical tests are property verified by re-testing or the application of additional techniques. E. Where test results are inconclusive or indefinite, any conclusions drawn shall be fully explained.
F. The scientific mind is unbiased and refuses to be swayed by evidence or matters outside the specific materials under consideration. It is immune to suggestion, pressures, and coercions inconsistent with the evidence and hand: being interested only in ascertaining facts.
G. The criminalist will be alert to recognize the significance of a test result as it may relate to the investigative aspects of a case. In this respect he will, however, scrupulously avoid confusing scientific fact with investigative theory in his interpretations.
H. Scientific method demands that the individual be aware of his own limitations and refuse to extend himself beyond them. It is both proper and advisable that the scientific worker seek knowledge in new fields: he will not, however, be hasty to apply such knowledge before he has adequate training and experience.
I. Where test results are capable of being interpreted to the advantage of either side of a case, the criminalist will not choose the interpretation favoring the side by which he is employed merely as a means of justifying his employment.
J. It is both wise and proper that the criminalist be aware of the various possible implications of his opinions and conclusions and be prepared to weigh them. , if called upon to do so. In any such case, however, he will clearly distinguish between that which may be regarded as scientifically demonstrated facts and that which is speculative.
III. Ethical Aspects of Court Presentation
A. The expert witness is one who has substantially greated knowledge of a given subject or science than has the average person. An expert opinion is property defined as “the formal opinion of an expert.” Ordinary opinion consists of one’s thoughts or beliefs on matters, generally unsupported by detailed analysis of the subject under consideration. Expert opinion is also defined as the considered opinion of an expert, or formal judgement. It is to be understood that an “expert opinion” is an opinion derived only from a formal consideration of a subject within the expert’s knowledge and experience.
B. The ethical expert does not take advantage of his privilege to express opinions by offering opinions on matters within his field of qualification to which he has not given formal consideration.
C. Regardless of legal definitions, the criminalist will realize that there are degrees of certainty represented under the single term of “expert opinion.” He will not take advantage of the general privilege to assign greater significance to an interpretation than is justified by the available data.
D. Where circumstances indicate it to be proper, the expert will not hesitate to indicate that while he has an opinion, derived of study and judgment within his field, the opinion may lack the certainty of other opinions he might offer. By this or other means, he takes care to leave no false impressions in the minds of the jurors or the court.
E. In all respects, the criminalist will avoid the use of terms and opinions which will be assigned greater weight then are due them. Where an opinion requires qualification or explanation, it is not only proper by incumbent upon the witness to offer such qualification.
F. The expert witness should keep in mind that the lay juror is apt to assign greater or less significance to ordinary words of a scientist than to the same words when used by a lay witness. The criminalist, therefore, will avoid such terms as may be misconstrued or misunderstood.
G. It is not the object of the criminalist’s appearance in court to present only the evidence that supports the view of the side which employs him. He has a moral obligation to see to it that the court understands the evidence as it exists and to present it in an impartial matter.
H. The criminalist will not by implication, knowingly or intentionally, assist the contestants in a case through such tactics as will implant a false impression in the minds of the jury.
I. The criminalist, testifying as an expert witness, will make every effort to use understandable language in his explanations and demonstrations in order that the jury will obtain a true and valid concept of the testimony. The use of unclear, misleading, circuitous or ambiguous language with a view of confusing the issue in the minds of the court or jury is unethical.
J. The criminalist will answer all questions put to him in a clear, straightforward manner and refuse to extend himself beyond his field of competence.
K. Where the expert must prepare photographs or offer oral “background information” to the jury in respect to a specific type of analytic method, this information shall be reliable and valid, typifying the usual or normal basis for the method. The instructional material shall be of that level which will provide the jury with a proper basis for evaluating the subsequent evidence presentations, and not such as would provide them with a lower standard than the science demands.
L. Any and all photographic displays shall be made according to acceptable practice, and shall not be intentionally altered or distorted with a few to misleading the court or jury.
M. By way of conveying information to the court, it is appropriate that any of a variety of demonstrative materials and methods be utilized by the expert witness. Such methods shall not, however, be unduly sensational.
IV. Ethics Relating to the General Practice of Criminalists
A. Where the criminalist engages in private practice, it is appropriate that he set a reasonable fee for his services.
B. No services shall ever be rendered on a contingency fee basis.
C. It shall be regarded as ethical for one criminalist to re-examine scientific materials previously submitted to or examined by another. Where a difference of opinion arises, however, as to the significance of the evidence or test results, it is in the interest of the profession that every effort be made by both analysts to resolve their conflict before the case goes to trial.
D. Generally, the principle of “attorney-client” relationship is considered to apply to the work of a physical evidence consultant, except in a situation where a miscarriage of justice might occur. Justice should be the guiding principle.
E. It hall be ethical for one of this profession to serve an attorney in an advisory capacity regarding the interrogation of another expert who may be presenting testimony. This service must be performed in good faith and not maliciously. Its purpose is to prevent incompetent testimony but not to thwart justice.
V. Ethical Responsibilities to the Profession
In order to advance the profession of criminalistics, to promote purposes for which the Association was formed, and encourage harmonious relationships between all criminalists of the State, each criminalist has an obligation to conduct himself according to certain principles. These principles are no less matters of ethics than those outlined above. They differ primarily in being for the benefit of the profession rather than specific obligations to society. They therefore concern individuals and departments in their relationship with one another, business policies, and similar matters.
A. It is in the interest of the profession that information concerning new discoveries, developments, or techniques applicable to the field of criminalistics be made available to criminalists generally. A reasonable attempt should be made by any criminalist having knowledge of such developments to publicize or otherwise inform the profession of them.
B. Consistent with this and like objectives, it is expected that the attention of the profession will be directed toward any tests or methods in use which appear invalid or unreliable in order that they may be property investigated.
C. In the interest of the profession, the individual criminalist should refrain from seeking publicity for himself or his accomplishments on specific cases. The preparation of papers for publication in appropriate media, however, is considered proper.
D. The criminalist shall discourage the association of his name with developments, publications, or organizations in which he has played not significant part, merely as a means of gaining personal publicity or prestige.
E. The C.A.C. has been organized primarily to encourage a free exchange of ideas and information between members. It is , therefore, incumbent upon each member to treat with due respect those statements and offerings made by his associates. It is appropriate that no member shall unnecessarily repeat statements or beliefs of another as expressed at C.A.C. seminars .
F. It shall be ethical and proper for one criminal ist to bring to the attention of the Association a violation of any of these ethical principles; indeed, it shall be mandatory where it appears that there has been a serious infraction or repeated violations have been commited.
G. This code may be used by any criminalist in justification of his conduct in a given case with the understanding that he will have the full support of the Association.
Adopted: May 17, 1957
Revised: April 11, 1958
Code of Ethics of Engineers
Engineers uphold and advance the integrity, honor and dignity of the engineering profession by:
- using their knowledge and skill for the enhancement of human welfare;
- being honest and impartial, and serving with fidelity the public, their employers and clients;
- striving to increase the competence and prestige of the engineering profession; and
- supporting the professional and technical societies of their disciplines.
THE FUNDAMENTAL CANONS
- Engineers shall hold paramount the safety, health and welfare of the public in the performance of their professional duties.
- Engineers shall perform services only in the areas of their competence.
- Engineers shall issue public statements only in an objective and truthful manner.
- Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.
- Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others.
- Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the profession.
- Engineers shall continue their professional development throughout their careers and shall provide opportunities for the professional development of those engineers under their supervision.
SUGGESTED GUIDELINES FOR USE WITH THE FUNDAMENTAL CANONS OF ETHICS
1. Engineers shall hold paramount the safety, health and welfare of the public in the performance of their professional duties.
a. Engineers shall recognize that the lives, safety, health and welfare of the general public are dependent upon engineering judgments, decisions and practices incorporated into structures, machines, products, processes and devices.
b. Engineers shall not approve nor seal plans and/or specifications that are not of a design safe to the public health and welfare and in conformity with accepted engineering standards.
c. Should the Engineers' professional judgement be overruled under circumstances where the safety, health, and welfare of the public are endangered, the Engineers shall inform their clients or employers of the possible consequences and notify other proper authority of the situation, as may be appropriate.
(c.1) Engineers shall do whatever possible to provide published standards, test codes and quality control procedures that will enable the public to understand the degree of safety or life expectancy associated with the use of the design, products and systems for which they are responsible.
(c.2) Engineers will conduct reviews of the safety and reliability of the design, products or systems for which they are responsible before giving their approval to the plans for the design.
(c.3) Should Engineers observe conditions which they believe will endanger public safety or health, they shall inform the proper authority of the situation.
d. Should Engineers have knowledge or reason to believe that another person or firm may be in violation of any of the provisions of these Guidelines, they shall present such information to the proper authority in writing and shall cooperate with the proper authority in furnishing such further information or assistance as may be required.
(d.1) They shall advise proper authority if an adequate review of the safety and reliability of the products or systems has not been made or when the design imposes hazards to the public through its use.
(d.2)They shall withhold approval of products or systems when changes or modifications are made which would affect adversely their performance insofar as safety and reliability are concerned.
e. Engineers should seek opportunities to be of constructive service in civic affairs and work for the advancement of the safety, health and well-being of their communities.
f. Engineers should be committed to improving the environment to enhance the quality of life.
2. Engineers shall perform services only in areas of their competence.
a. Engineers shall undertake to perform engineering assignments only when qualified by education or experience in the specific technical field of engineering involved.
b. Engineers may accept an assignment requiring education or experience outside of their own fields of competence, but only to the extent that their services are restricted to those phases of the project in which they are qualified. All other phases of such project shall be performed by qualified associates, consultants, or employees.
c. Engineers shall not affix their signatures and/or seals to any engineering plan or document dealing with subject matter in which they lack competence by virtue of education or experience, nor to any such plan or document not prepared under their direct supervisory control.
3. Engineers shall issue public statements only in an objective and truthful manner.
a. Engineers shall endeavor to extend public knowledge, and to prevent misunderstandings of the achievements of engineering.
b. Engineers shall be completely objective and truthful in all professional reports, statements, or testimony. They shall include all relevant and pertinent information in such reports, statements, or testimony.
c. Engineers, when serving as expert or technical witnesses before any court, commission, or other tribunal, shall express an engineering opinion only when it is founded upon adequate knowledge of the facts in issue, upon a background of technical competence in the subject matter, and upon honest conviction of the accuracy and propriety of their testimony.
d. Engineers shall issue no statements, criticisms, nor arguments on engineering matters which are inspired or paid for by an interested party, or parties, unless they have prefaced their comments by explicitly identifying themselves, by disclosing the identities of the party or parties on whose behalf they are speaking, and by revealing the existence of any pecuniary interest they may have in the instant matters.
e. Engineers shall be dignified and modest in explaining their work and merit, and will avoid any act tending to promote their own interests at the expense of the integrity, honor and dignity of the profession.
4. Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.
a. Engineers shall avoid all known conflicts of interest with their employers or clients and shall promptly inform their employers or clients of any business association, interests, or circumstances which could influence their judgment or the quality of their services.
b. Engineers shall not knowingly undertake any assignments which would knowingly create a potential conflict of interest between themselves and their clients or their employers.
c. Engineers shall not accept compensation, financial or otherwise, from more than one party for services on the same project, nor for services pertaining to the same project, unless the circumstances are fully disclosed to, and agreed to, by all interested parties.
d. Engineers shall not solicit nor accept financial or other valuable considerations, including free engineering designs, from material or equipment suppliers for specifying their products.
e. Engineers shall not solicit nor accept gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with their clients or employers in connection with work for which they are responsible.
f. When in public service as members, advisors, or employees of a governmental body or department, Engineers shall not participate in considerations or actions with respect to services provided by them or their organization in private or product engineering practice.
g. Engineers shall not solicit nor accept an engineering contract from a governmental body on which a principal, officer or employee of their organization serves as a member.
h. When, as a result of their studies, Engineers believe a project will not be successful, they shall so advise their employer or client.
i. Engineers shall treat information coming to them in the course of their assignments as confidential, and shall not use such information as a means of making personal profit if such action is adverse to the interests of their clients, their employers, or the public.
(i.1)They will not disclose confidential information concerning the business affairs or technical processes of any present or former employer or client or bidder under evaluation, without his consent.
(i.2)They shall not reveal confidential information nor findings of any commission or board of which they are members.
(i.3)When they use designs supplied to them by clients, these designs shall not be duplicated by the Engineers for others without express permission.
(i.4)While in the employ of others, Engineers will not enter promotional efforts or negotiations for work or make arrangements for other employment as principals or to practice in connection with specific projects for which they have gained particular and specialized knowledge without the consent of all interested parties.
j. The Engineer shall act with fairness and justice to all parties when administering a construction (or other) contract.
k. Before undertaking work for others in which Engineers may make improvements, plans, designs, inventions, or other records which may justify copyrights or patents, they shall enter into a positive agreement regarding ownership.
l. Engineers shall admit and accept their own errors when proven wrong and refrain from distorting or altering the facts to justify their decisions.
m. Engineers shall not accept professional employment outside of their regular work or interest without the knowledge of their employers.
n. Engineers shall not attempt to attract an employee from another employer by false or misleading representations.
o. Engineers shall not review the work of other Engineers except with the knowledge of such Engineers, or unless the assignments/ or contractual agreements for the work have been terminated.
(o.1)Engineers in governmental, industrial or educational employment are entitled to review and evaluate the work of other engineers when so required by their duties.
(o.2)Engineers in sales or industrial employment are entitled to make engineering comparisons of their products with products of other suppliers.
(o.3)Engineers in sales employment shall not offer nor give engineering consultation or designs or advice other than specifically applying to equipment, materials or systems being sold or offered for sale by them.
5. Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others.
a. Engineers shall not pay nor offer to pay, either directly or indirectly, any commission, political contribution, or a gift, or other consideration in order to secure work, exclusive of securing salaried positions through employment agencies.
b. Engineers should negotiate contracts for professional services fairly and only on the basis of demonstrated competence and qualifications for the type of professional service required.
c. Engineers should negotiate a method and rate of compensation commensurate with the agreed upon scope of services. A meeting of the minds of the parties to the contract is essential to mutual confidence. The public interest requires that the cost of engineering services be fair and reasonable, but not the controlling consideration in selection of individuals or firms to provide these services.
(c.1)These principles shall be applied by Engineers in obtaining the services of other professionals.
d. Engineers shall not attempt to supplant other Engineers in a particular employment after becoming aware that definite steps have been taken toward the others' employment or after they have been employed.
(d.1)They shall not solicit employment from clients who already have Engineers under contract for the same work.
(d.2)They shall not accept employment from clients who already have Engineers for the same work not yet completed or not yet paid for unless the performance or payment requirements in the contract are being litigated or the contracted Engineers' services have been terminated in writing by either party.
(d.3)In case of termination of litigation, the prospective Engineers before accepting the assignment shall advise the Engineers being terminated or involved in litigation.
e. Engineers shall not request, propose nor accept professional commissions on a contingent basis under circumstances under which their professional judgements may be compromised, or when a contingency provision is used as a device for promoting or securing a professional commission.
f. Engineers shall not falsify nor permit misrepresentation of their, or their associates', academic or professional qualifications. They shall not misrepresent nor exaggerate their degree of responsibility in or for the subject matter of prior assignments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint ventures, or their past accomplishments with the intent and purpose of enhancing their qualifications and work.
g. Engineers may advertise professional services only as a means of identification and limited to the following:
(g.1)Professional cards and listings in recognized and dignified publications, provided they are consistent in size and are in a section of the publication regularly devoted to such professional cards and listings. The information displayed must be restricted to firm name, address, telephone number, appropriate symbol, names of principal participants and the fields of practice in which the firm is qualified.
(g.2)Signs on equipment, offices and at the site of projects for which they render services, limited to firm name, address, telephone number and types of services, as appropriate.
(g.3)Brochures, business cards, letterheads and other factual representations of experience, facilities, personnel and capacity to render service, providing the same are not misleading relative to the extent of participation in the projects cited and are not indiscriminately distributed.
(g.4)Listings in the classified section of telephone directories, limited to name, address, telephone number and specialties in which the firm is qualified without resorting to special or bold type.
h. Engineers may use display advertising in recognized dignified business and professional publications, providing it is factual, and relates only to engineering, is free from ostentation, contains no laudatory expressions or implication, is not misleading with respect to the Engineers' extent of participation in the services or projects described.
i. Engineers may prepare articles for the lay or technical press which are factual, dignified and free from ostentations or laudatory implications. Such articles shall not imply other than their direct participation in the work described unless credit is given to others for their share of the work.
j. Engineers may extend permission for their names to be used in commercial advertisements, such as may be published by manufacturers, contractors, material suppliers, etc., only by means of a modest dignified notation acknowledging their participation and the scope thereof in the project or product described. Such permission shall not include public endorsement of proprietary products.
k. Engineers may advertise for recruitment of personnel in appropriate publications or by special distribution. The information presented must be displayed in a dignified manner, restricted to firm name, address, telephone number, appropriate symbol, names of principal participants, the fields of practice in which the firm is qualified and factual descriptions of positions available, qualifications required and benefits available.
l. Engineers shall not enter competitions for designs for the purpose of obtaining commissions for specific projects, unless provision is made for reasonable compensation for all designs submitted.
m. Engineers shall not maliciously or falsely, directly or indirectly, injure the professional reputation, prospects, practice or employment of another engineer, nor shall they indiscriminately criticize another's work.
n. Engineers shall not undertake nor agree to perform any engineering service on a free basis, except professional services which are advisory in nature for civic, charitable, religious or non-profit organizations. When serving as members of such organizations, engineers are entitled to utilize their personal engineering knowledge in the service of these organizations.
Engineers shall not use equipment, supplies, laboratory nor office facilities of their employers to carry on outside private practice without consent.
o. In case of tax-free or tax-aided facilities, engineers should not use student services at less than rates of other employees of comparable competence, including fringe benefits.
6. Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the profession.
a. Engineers shall not knowingly associate with nor permit the use of their names nor firm names in business ventures by any person or firm which they know, or have reason to believe, are engaging in business or professional practices of a fraudulent or dishonest nature.
b. Engineers shall not use association with non-engineers, corporations, nor partnerships as 'cloaks' for unethical acts.
7. Engineers shall continue their professional development throughout their careers, and shall provide opportunities for the professional development of those engineers under their supervision.
a. Engineers shall encourage their engineering employees to further their education.
b. Engineers should encourage their engineering employees to become registered at the earliest possible date.
c. Engineers should encourage engineering employees to attend and present papers at professional and technical society meetings.
d. Engineers should support the professional and technical societies of their disciplines.
e. Engineers shall give proper credit for engineering work to those to whom credit is due, and recognize the proprietary interests of others. Whenever possible, they shall name the person or persons who may be responsible for designs, inventions, writings or other accomplishments.
f. Engineers shall endeavor to extend the public knowledge of engineering, and shall not participate in the dissemination of untrue, unfair or exaggerated statements regarding engineering.
g. Engineers shall uphold the principle of appropriate and adequate compensation for those engaged in engineering work.
h. Engineers should assign professional engineers duties of a nature which will utilize their full training and experience insofar as possible, and delegate lesser functions to subprofessionals or to technicians.
i. Engineers shall provide prospective engineering employees with complete information on working conditions and their proposed status of employment, and after employment shall keep them informed of any changes.
ARTICLE B15, LIABILITY AND INDEMNIFICATION
Par. 1 No Trustee, Officer, Employee, Committee Member or other agent appointed by the Trustees of the Society shall incur any personal liability for any acts, omissions or errors in such capacity except for his or her own negligent or willful misconduct. No person shall be liable for the acts, neglect, default, omissions, and errors or misconduct of any fellow trustee, officer, employee, committee member or other agent of the Society in which he or she has not participated, concurred or acquiesced. No person dealing with the Society shall be obliged to see to the application of any money or other property contributed, loaned or otherwise paid or delivered to the Society.
Par. 2 Each Trustee shall be a Volunteer Director as defined in Michigan Law Section 110(2) of 1982 P.A. 162, as amended, and, as such, shall not receive anything of value from the Corporation for serving as a Trustee other than reasonable per diem compensation and reimbursement for actual, reasonable and necessary expenses incurred by a Trustee in his or her capacity as a Trustee.
Par. 3 A Volunteer Trustee of the Corporation shall not be personally liable to the Corporation or its members for monetary damages for a breach of the Trustee's fiduciary duty. This provision shall not eliminate or limit the liability of a Trustee for any of the following:
- A breach of the Trustee's duty of loyalty to the Corporation or its members.
- Acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law.
- A violation of Section 551(1) of said Act.
- A transaction from which the Trustee derived an improper personal benefit.
- An act or omission occurring before the date of filing of this Amendment to the Bylaws.
Par. 4 The Corporation shall assume all liability to any person other than the corporation or its members for all acts or omissions of a Volunteer Trustee occurring after the date of filing of this Amendment to the Bylaws.
Par. 5 The Society shall indemnify any Trustee, Officer, Employee, Committee Member and other agent appointed by the Trustees, or any person formerly in any of the foregoing positions, against any expense actually and necessarily incurred by him or her in connection with the defense of any action, suit or proceeding in which he or she is made a party by reason of being or having been a Trustee, Officer, Employee, Committee Member or other agent appointed by the Trustees of the Society, except as to matters with respect to which he or she shall be adjudged to be liable for negligent or willful misconduct in the performance of his or her duties in such capacities. The Society also shall reimburse any such Trustee, Officer, Employee, Committee Member or other agent appointed by the Trustees for the reasonable costs of settlement of any such action, suit or proceeding, if prior to such settlement it shall be found by a majority of the disinterested members of the Trustees that it is in the best interest of the Society that such settlement be made and that such person was not guilty of negligent or willful misconduct in the performance of the duties which gave rise to such action, suit or proceeding. The Society may insure itself and its Trustees, Officers, Employees, Committee Members and other agents appointed by the Trustees against such risks as may be determined by the Trustees from time to time.
ARTICLE B16, AMENDMENTS
Par. 1 Prior to the closing of a ballot on an amendment to the Constitution, the President shall appoint tellers whose duty it shall be to canvass the votes cast. The terms of office of such tellers shall expire when their report of the canvass has been presented and accepted.
Par. 2 The tellers shall canvass the ballots and certify the results to the presiding officer at the meeting of the Society at which the result is to be announced.
Par. 3 At any regular meeting, the Board of Trustees may, by a two- thirds vote of its membership, enact, repeal, or amend bylaws in harmony with the Constitution, provided that such bylaws or amendments shall have been submitted in writing to each member of the Board of Trustees at least 30 days before the meeting at which action is to be taken. A bylaw or an amendment to a bylaw shall take effect immediately upon its adoption by the Board of Trustees, except that the Board may establish a transition schedule when it considers that a change in practice directed by an amendment may best be effected over a reasonable period of time. The amendment and transition schedule, if any, shall be published in writing to the membership promptly in RESOURCE magazine.
Par. 4 At any regular meeting by a majority vote of its members present, the Board of Trustees may enact, repeal, or amend Rules in harmony with the Constitution and Bylaws. A Rule or an Amendment thereto shall take effect immediately upon its adoption by the Board of Trustees and shall be published by the Executive Officer to all members of the Society.
ARTICLE R16, AMENDMENTS
Rule 1 In voting on an amendment to the Constitution, the voter shall prepare his or her ballot by checking for or against each change listed. He or she shall then enclose the ballot in an envelope and seal it, and shall enclose this envelope in a second envelope and seal it, and he or she shall then write his or her name on the outer envelope for identification.
Rule 2 The tellers shall not receive any ballot after the stated time for closure of the voting.
Rule 3 The Executive Officer shall certify to the eligibility and signature of all voters.
Rule 4 A ballot without the autographic endorsement of the voter on the outside envelope is defective and shall be rejected by the tellers.
Rule 5 Tellers shall consider a ballot as valid provided the intent of the voter is clear, and provided also that he or she conforms with the regulations for voting.
Disclaimer: Please note the codes in our collection might not necessarily be most recent versions. Please contact the individual organizations or their websites to verify if a more recent or updated code of ethics is available. CSEP does not hold copyright on any of the codes of ethics in our collection. Any permission to use the codes must be sought from the individual organizations directly.
Code of Ethics
Code of Ethics
The professional exercise of engineering should be considered as exclusive for engineers having a qualifying university degree in the various specialties according to the effective legislation of each country.
To render professional services involves security and community welfare and has the characteristics of public services. In consequence, control of qualified engineers is needed to be compulsory in each country. Integration and government of those organizations with such purpose must be ruled by engineers, who will have to fulfill the Code of Ethics.
The Members of the Academy Shall:
- Invest their capacities and dedication in achieving superior technical results in the clients', society and environment favor, optimizing the use of resources and minimizing the production of residues or any kind of polluting agents;
- Hold paramount the safety, health and welfare of the public and the protection of the natural environment in accordance with the principles of sustainable development;
- Conduct themselves in an honorable, responsible, ethic and legal way that brightens the honor, reputation and utility of the profession;
- Offer services, advise on or undertake engineering assignments only in areas of their competence and practice in a careful and diligent manner;
- Act as faithful agents of their clients or employers, maintain confidentially and disclose immediately conflicts of interest that could be prejudicial to them,
- Keep themselves informed in order to maintain their competence, strive to advance the body of knowledge within which they practice and provide opportunities for the professional development of their subordinates and fellow practitioners;
- Conduct themselves with fairness, and good faith towards clients, colleagues and other associates, give credit where it is due and accept, as well as give, honest and fair professional criticism;
- Be aware of the consequences of their election of working technologies as well as of their activities and projects on society and biophysics and socioeconomic environment. Make their clients and employers equally aware and make a concerted effort to present objectively and truthfully the technical subjects to the public;
- Promote health and safety within the workplace and of the personnel working under his superivision;
- Present clearly to employers and clients the possible consequences of overruling or disregarding of engineering decisions or judgment and express his recommendations in every situation of conflict of interests that could affect the professional ethics or the integrity of the service hired and that could overcome aspects strictly formal or legal.
- Report to their association and/or appropriate agencies any illegal or unethical engineering decisions or practices of engineers or others.
- Contribute with their professional practice and personal actions to the social awareness and solidarity of all people and nations, and to the eradication of poverty, discrimination and segregation of people.
- Adhere to all the conditions as stated in the Academy's Anti-Corruption Policy, which is attached hereto, and made a part of this Code of Ethics.
Interpretation of the Code of Ethics
The Code of Ethics constitutes a set of underlying principles which form the basis and framework for responsible professional practice. Engineers must interpret the essence of the underlying principles within their decision-making situations in a dynamic manner, responsive to the need of the situation and not interpret it as a set of "rules" of conduct intended for passive observance.
The Code of Ethics expresses the expectations of society and engineers in discriminating engineers' professional responsibilities. The Code is based on broad principles of truth, honesty and trustworthiness, respect for human life and welfare, fairness, openness, competence and accountability. Some of these broader ethical principles or issues deemed more universally applicable are not specifically defined in the Code although they are understood to be applicable as well. Nevertheless, certain ethical principles or issues not commonly considered to be part of professional ethics should be implicitly accepted to judge the engineer's professional performance.
The interpretive articles which follow expand on and discuss some of the more difficult and interrelated components of the Code especially related to the Professional Practice. No attempt is made to expand on all clauses of the Code, nor is the elaboration presented on a clause-by-clause basis. The objective of this approach is to broaden the interpretation, rather than narrow its focus. The ethics of professional engineering is an integrated whole and cannot be reduced to fixed "rules". Therefore, the issues and questions arising from the Code are discussed in a general framework, drawing on any and all portions of the Code to demonstrate their interrelationship and to expand on the basic intent of the Code.
Protection of the Public and the Environment
Professional Engineers shall hold paramount the safety, health and welfare of the public and the protection of the environment. This obligation to the safety, health and welfare of the general public, which includes one's own work environment, is often dependent upon engineering judgments, risk assessments, decisions and practices incorporated into structures, machines, products, processes and devices. Therefore, engineers must control and ensure that what they are involved with is in conformity with accepted engineering practice, standards and applicable codes, and would be considered safe based on peer adjudication. This responsibility extends to include all and any situations which an engineer encounters and includes an obligation to advise the appropriate authority if there is reason to believe that any engineering activity, or its products, processes, etc. do not confirm with the above stated conditions.
The meaning of paramount in this basic tenet is that all other requirements of the Code are subordinate if protection of public safety, the environment or other substantive public interests are involved.
Sustainable Development and Environment
Engineers shall strive to enhance the quality of the biophysical and socioeconomic environment of the urban and natural spaces alike, to promote the principles of sustainable development. They must discuss in particular the consequences of their proposals and actions, direct or indirect, immediate or long term, upon the health of people, social equity and the local system of values. It is the engineers' responsibility to carefully study thoroughly the environment that will be affected, assess all the impacts that might arise in the structure, dynamics and aesthetics of the ecosystems involved, urbanized or natural, as well as in the pertinent socioeconomic systems, and select the best alternative for development that is both environmentally sound and sustainable. He must also promote a clear understanding of the actions required to restore and, if possible, to improve the environment that may be disturbed, and include them in their proposals. The engineer must reject any kind of commitment that involves unfair damages for human surroundings and nature always bearing in mind that the principles of eco-systemic interdependence, diversity maintenance, resource recovery and inter-relational harmony form the basis of humankind's continued existence and that each of these bases poses a threshold of sustainability that should not be exceeded.
Faithful Agent of Clients and Employees
Engineers shall act as faithful agents or trustees of their clients and employers with objectivity, fairness and justice to all parties. With respect to the handling of confidential or proprietary information, the concept of ownership of the information and protecting that party's rights is appropriate. Engineers shall not reveal facts, data or information obtained in a professional capacity without the prior consent of its owner. The only exception to respecting confidentially and maintaining a trustee's position is in instances where the public interest or the environment is at risk as discussed in the preceding section; but even in these circumstances, the engineer should endeavor to have the client and/or employer appropriately redress the situation, or at least, in the absence of a compelling reason to the contrary, should make every reasonable effort to contact them and explain clearly the potential risks, prior to informing the appropriate authority.
Professional Engineers shall avoid conflict of interest situations with employers and clients but, should such conflict arise, it is the engineer's responsibility to fully disclose, without delay, the nature of the conflict to the party/parties with whom the conflict exists.
In these circumstances where full disclosure is insufficient, or seen to be insufficient, to protect all parties' interests, as well as the public, the engineer shall withdraw totally from the issue or use extraordinary means, involving independent parties if possible, to monitor the situation. For example, it is inappropriate to act simultaneously as agent for both the provider and the recipient of professional services. If client's and employer's interests are at odds, the engineer shall attempt to deal fairly with both. If the conflict of interest is between the intent of a corporate employer and a regulatory standard, the engineer must attempt to reconcile the difference, and if that is unsuccessful, it may become necessary to inform.
Being a faithful agent or trustee includes the obligation of engaging, or advising to engage, experts or specialists when such services are deemed to be in the client's or employer's best interests. It also means being accurate, objective and truthful in making public statements on behalf of the client or employer when required to do so, while respecting the client's and employer's rights of confidentiality and proprietary information.
Being a faithful agent includes not using a previous employer's or client's specific privileged or proprietary information and trade practices or process information, without the owner's knowledge and consent. However, general technical knowledge, experience and expertise gained by the engineer through involvement with the previous works may be freely used without consent or subsequent undertakings.
Competence and Knowledge
Professional Engineers shall offer services, advise on or undertake engineering assignments only in areas of their competence by virtue of their training and experience. This includes exercising care and communicating clearly in accepting or interpreting assignments, and in setting expected outcomes. It also includes the responsibility to obtain the services of an expert if required or, if the knowledge is unknown, to proceed only with full disclosure of the circumstances and, if necessary, of the experimental nature of the activity to all parties involved. Hence, this requirement is more than simply to perform within a given standard of care, it also involves acting with honesty and integrity with one's client or employer and one's self.
Professional Engineers have the responsibility to remain abreast of developments and knowledge in their area of expertise, that is, to maintain their own competence. Should there be a technologically driven or individually motivated shift in the area of technical activity, it is the engineer's duty to attain and maintain competence in all areas of involvement including being knowledgeable with the, technical and legal framework and regulations governing their work. In effect, it requires a personal commitment to ongoing professional development, continuing education and self-testing.
In addition to maintaining their own competence, Professional Engineers have an obligation to strive to contribute to the advancement of the body of knowledge within which they practice, and to the profession in general. Moreover, within the framework of the practice of their profession, they are expected to participate in providing opportunities to further the professional development of their colleagues.
This competence requirement of the Code extends to include an obligation to the public, the profession and one's peers, that opinions on engineering issues are expressed honestly and only in areas of one's competence. It applies equally to reporting or advising on professional matters and to issuing public statements. This requires honesty with one's self to present issues fairly, accurately and with appropriate qualifiers and disclaimers, and to avoid personal, political and other non-technical biases. The latter is particularly important for public statements or when involved in a technical forum.
Fairness and Integrity in the Workplace
Honesty, integrity, continuously updated competence, devotion to service and dedication to enhancing the life quality of society are cornerstones of professional responsibility. Within this framework, engineers shall be objective and truthful and include all known and pertinent information on professional reports, statements and testimony. They shall accurately and objectively represent their clients, employers, associates and themselves consistent with their academic, experience and professional qualifications. This tenet is more than 'not misrepresenting'; it also implies disclosure of all relevant information and issues, especially when serving in an advisory capacity or as an expert witness. Similarly, fairness, honesty and accuracy in advertising are expected.
If called upon to verify another engineer's work, there is an obligation to inform (or make every effort to inform) the other engineer, whether the other engineer is still actively involved or not. In this situation, and in any circumstance, engineers shall give proper recognition and credit where credit is due and accept, as well as give, honest and fair criticism on professional matters, all the while maintaining dignity and respect for everyone involved.
Engineers should clearly inform clients about their fees, according to the regulations of the organizations that rule the professional performance. They should not disloyally compete with another engineer. After having knowledge about the quotations presented by other or offers made to another colleague, engineers must not diminish their fees or salary. They must not go into partnership with another engineer that does not fulfill the regulations of the Code of Ethics.
Engineers shall not accept nor offer covert payment or other considerations for the purpose of securing, or as remuneration for engineering assignments. Engineers should prevent their personal or political involvement from influencing or compromising their professional role or responsibility.
Consistent with the Code, and having attempted to remedy any situation within their organization, engineers are obligated to report to their professional association or other appropriate agency any illegal or unethical engineering decisions by engineers or others. Care must be taken not to enter into legal arrangements which compromise this obligation.
Professional Accountability and Leadership
Engineers have a duty to practice in a careful and diligent manner, accept responsibility, and be accountable for their actions. This duty is not limited to design, or its supervision and management, but applies to all areas of practice. For example, it includes construction supervision and management, preparation of shop drawings, engineering reports, feasibility studies, environmental impact assessments, engineering developmental work, etc.
The signing and sealing of engineering documents indicates the taking of responsibility for the work, regardless where or for whom the work is done, including but not limited to, privately and publicly owned firms, crown corporations, and government agencies/departments. There are no exceptions; signing and sealing documents is appropriate whenever engineering principles have been used.
Taking responsibility for engineering activity includes being accountable for one's own work and, in the case of a senior engineer, accepting responsibility for the work of a team. The latter implies responsible supervision where the engineer is actually in a position to review, modify and direct the entirety of the engineering work. This concept requires setting reasonable limits on the extent of activities, and the number of engineers and others, whose work can be supervised by the responsible engineer. The practice of a "symbolic" responsibility or supervision is the situation where an engineer, say with the title of "chief engineer", takes full responsibility for all engineering on behalf of a large corporation, utility or government agency/department, even though the engineer may not be aware of many of the engineering activities or decisions being made daily throughout the firm or department. The essence of this approach is that the firm is taking the responsibility of default, whether engineering supervision or direction is applied or not.
Engineers have a duty to advise their employer and, if necessary, their clients and even their professional association, in that order, in situations when the overturning of an engineering decision may result in breaching their duty to safeguard the public. The initial action is to discuss the problem with the supervisor/employer. If the employer does not adequately respond to the engineer's concern, then the client must be advised in the case of a consultancy situation, or the most senior officer should be informed in the case of a manufacturing process plant or government agency. Failing this attempt to rectify the situation the engineer must advise in confidence his professional association of his concerns.
In the same order as mentioned above, the engineer must report unethical engineering activity undertaken by other engineers or by non-engineers. This extends to include for example, situations in which senior officials of a firm make "executive" decisions which clearly and substantially alter the engineering aspects of the work, or protection of the public welfare or the environment arising from the work.
With the rapid advancement of technology in today's world and the possible social impacts on large populations of people, engineers must endeavor to foster the public's understanding of technical issues and the role of Engineering more than ever before.
Always remember that war, greed, misery and ignorance, plus natural disasters and human induced pollution and destruction of resources, are the main causes of the progressive impairment of the environment and that engineers, as active members of society, deeply involved in the promotion of development, must use their talent, knowledge and imagination to assist society in removing those evils and improving the quality of life for all people.
Disclaimer: Please note the codes in our collection might not necessarily be most recent versions. Please contact the individual organizations or their websites to verify if a more recent or updated code of ethics is available. CSEP does not hold copyright on any of the codes of ethics in our collection. Any permission to use the codes must be sought from the individual organizations directly.
Policy for Expert Witness Testimony and Expert Witness Code of Conduct
Approved by the FPP Board of Directors on July 15, 2007.
Revised by the FPP Board of Directors on December 7, 2004.
Policy for Expert Witness Testimony
The American legal system permits both plaintiffs and defendants to present expert witness testimony. Washington University School of Medicine (WUSM) firmly believes such testimony must be truly expert and impartial. Accordingly, WUSM has established a Code of Conduct, as well as this Policy for Expert Witness Testimony, for faculty members who serve as expert witnesses.
With few exceptions, faculty members who serve as expert witnesses must do so as a personal consulting activity consistant with WUSM's policy on consulting privileges. The faculty member will retain any compensation for this activity, but will also be personally responsible for any expenses associated with the expert witness activity (including travel expenses, legal representation, accounting fees, professional liability, etc.) privileges. The faculty member will retain any compensation for this activity, but will also be personally responsible for any expenses associated with the expert witness activity (including travel expenses, legal representation, accounting fees, professional liability, etc.). The University will be responsible for any expenses associated with the expert witness activity only under the following circumstances: (1) if the University requests that the faculty member serve as an expert and the University retains the fee, or (2) if the faculty member offers to contribute his/her expert fees to the University and the University, through the decision of the Department Head, agrees to such an arrangement.
The purpose of this Policy for Expert Witness Testimony is:
- To ensure the quality, integrity and credibility of faculty expert testimony.
- To assure that the faculty member's service as an expert witness does not infringe upon his/her duties and responsibilities as a WUSM faculty member.
- To identify faculty who can provide expert consultation when claims are filed against the medical school.
Prior to giving expert testimony in any proceeding, WUSM faculty members must:
Review and abide by the WUSM Code of Conduct for Expert Witness Testimony.
- Notify the WUSM Office of Risk Management at 362-6956 and provide basic information, including: (a) a brief description of the matter, (b) whether any care was provided by that witness or by any other WUSM faculty/employee, (c) the name of the defendant, (d) on behalf of which party he/she is testifying, and (e) the attorneys for the parties (if known).
- Annually confirm, via a listing provided by the WUSM Office of Risk Management, his or her expert witness testimony activity for the previous year.
- For purposes of this policy, a preliminary medical chart review and consultation is not considered expert witness testimony. However, at the point that any such engagement proceeds beyond a preliminary chart review and consultation, this policy is triggered.
Because the faculty expert witness's status as a WUSM faculty member will invariably be cited as one of his/her credentials, WUSM has a direct interest in ensuring the quality, integrity and credibility of faculty expert testimony. Therefore, if requested by their Department Head, faculty experts will be expected to submit a copy of their testimony to the Department Head for internal peer review. Department Heads who give expert testimony will be expected, upon request by the Dean, to submit a copy of their testimony to the Dean for internal peer review.
Each Department will determine its own peer review process for this purpose.
- The Department Head and the Dean are the only people who can require peer review of faculty expert witness testimony. The Department Head and Dean need not accede to any request that a faculty member's testimony be subjected to peer review.
- The faculty member must make a reasonable effort to obtain a copy of his/her expert testimony, consistent with any court orders of confidentiality or other restrictions and impediments.
- If a peer review panel determines that the testimony does not meet the standards set forth in the Expert Witness Code of Conduct or the Expert Witness Affirmation, the Department Head may issue a reprimand or other sanction, based upon the seriousness of the violation.
Expert Witness Code of Conduct
The American legal system permits both plaintiffs and defendants to present expert witness testimony. Washington University School of Medicine (WUSM) firmly believes such testimony must be truly expert and impartial. Accordingly, WUSM has established the following Expert Witness Code of Conduct for faculty members who serve as expert witnesses.
1) If the faculty member is testifying in his or her capacity as a clinician, and/or testifying about standards of clinical care, he/she must:
have a current, valid, and unrestricted license to engage in clinical practice in the state in which he or she practices.
possess the specialty/subspecialty training and experience appropriate to the subject matter in the case.
be currently certified by a board recognized by the American Board of Medical Specialties or its equivalency, and be qualified by experience or demonstrated competence in the subject matter of the case.
be actively involved in the clinical practice of the specialty or the subject matter of the case within the five (5) years prior to the time he/she was retained to provide an expert opinion in the matter.
be familiar with the standard of care provided and the available scientific evidence at the time of the alleged occurrence.
testify as to the practice of a prudent clinician giving differing viewpoints, if such exist.
2) The faculty member should be able to demonstrate evidence of continuing medical or scientific education, and/or other continuing education, relevant to the specialty or subject matter of the case.
3) The faculty member should diligently and thoroughly prepare by reviewing the relevant facts of the case and all available information
4) The faculty member should not adopt a position of advocacy except as a spokesperson for the field of special knowledge that they represent.
5) Compensation should be reasonable and commensurate with the time and effort given to the preparation as an expert witness. Contingency fees should not be accepted.
6) The faculty member must submit a signed copy of the WUSM Expert Witness Affirmation form to the WUSM Office of Risk Management. This form need only be executed once, as long as it remains on file with the Office of Risk Management.
WASHINGTON UNIVERSITY SCHOOL OF MEDICINE
Expert Witness Affirmation Form
As a member of the faculty of Washington University School of Medicine (WUSM), I affirm my duty, when giving evidence or testifying as an expert witness, to do so solely in accordance with the merits of the case and with accepted medical and scientific standards. Furthermore, I declare that I will abide by the WUSM Expert Witness Code of Conduct and uphold the following professional principles.
1) I will always be truthful.
2) I will conduct a thorough, fair and impartial review of the facts and/or the medical care provided, not excluding any relevant information.
3) I will provide evidence or testify only in those matters where I have relevant clinical or scientific expertise regarding the medical care or other issues that are the subject of the proceeding.
4) I will evaluate the medical care and/or other facts in light of generally accepted standards, neither condemning performance that falls within generally accepted practice standards nor endorsing or condoning performance that falls below these standards.
5) I will evaluate the medical care and/or other facts in light of the scientific knowledge and generally accepted standards that prevailed at the time of the occurrence.
6) I will provide evidence or testimony that is complete, objective, scientifically based, and helpful to a just resolution of the proceeding.
7) I will make a clear distinction between a departure from accepted practice standards and an adverse outcome.
8) If I am testifying about medical care, I will make every effort to determine whether there is a causal relationship between the alleged substandard practice and the medical outcome.
9) I will submit my testimony to my Department for peer review, if requested by the Department Head. If I am a Department Head, I will submit my testimony to the Dean for peer review, upon request by the Dean.
10) I will not accept compensation that is contingent upon the outcome of the litigation.
Name: ___________________________ Date: ___________________
Signature: ___________________________ Department: ___________________
Disclaimer: Please note the codes in our collection might not necessarily be most recent versions. Please contact the individual organizations or their websites to verify if a more recent or updated code of ethics is available. CSEP does not hold copyright on any of the codes of ethics in our collection. Any permission to use the codes must be sought from the individual organizations directly.
Proposed: Expert Witness Code of Ethics
by Robert Ambrogi - Editor
BullsEye Newsletter: February 2009
A popular perception is that expert witnesses are hired guns - that lawyers shop around until they find an expert willing to say whatever needs to be said. The perception is unfounded, of course. Yet it underscores the need for lawyers and experts alike to be vigilant in maintaining high standards of ethics.
But what are the standards they should maintain? For lawyers, existing ethical rules are all-but silent on the topic of expert witnesses. For experts, there is no formal code applicable to all. A handful of professional associations provide guidelines applicable to their members, but such guidelines are rare and lack uniformity.
In an article we published last month, we sought to address this gap in standards by proposing a code of ethics for lawyers to follow in using expert witnesses. This month, we follow that by proposing a parallel code for experts.
Neither of these proposed codes is intended to suggest that either lawyers or experts are unethical. Rather, they are meant to provide all involved with clearer guidance in an area in which little now exists, and thereby shore up public confidence in the legal system.
As we said last month, we hope these drafts will be the opening salvos that will launch broader discussion and debate among lawyers, experts, academicians and others. Consider these proposals sparks to fuel a larger conversation, one that might result in the legal profession's formal adoption of a clear and concrete set of standards for lawyers and experts to follow in litigation.
Let us know what you think by adding your comments below.
Proposed Code of Ethics for Expert Witnesses
I. Expert Impartiality
A. An expert witness shall at all times serve with independence and objectivity, without regard to the consequences to the client.
B. An expert witness shall impartially assist the court on relevant matters within the expert's area of expertise.
C. An expert should fully cooperate with retaining counsel, but shall remain independent and professional and not become the client's advocate.
D. An expert witness shall present a complete and unbiased picture of the research relevant to the case and to the expert's opinions.
A. An expert witness shall strive to understand the rules of confidentiality applicable to the case and jurisdiction in which the expert is retained.
B. An expert witness should assume that all communications with the client or with retaining counsel may be subject to disclosure through discovery and testimony, unless instructed otherwise by retaining counsel.
A. An expert witness shall be entitled to fair reimbursement for all work performed. An expert may charge fees based on hourly billing and may charge a flat fee provided it is based on the reasonable value of the work.
B. An expert witness shall neither contract for nor accept a fee that is contingent on case outcome.
C. An expert may ethically charge a nonrefundable retainer in cases where the expert may be precluded from accepting other clients.
D. An expert witness shall remain free from any financial inducements that might interfere with the ability to testify truthfully and impartially.
IV. Ex Parte Communications
A. An expert shall not communicate with adverse counsel except through the process of formal discovery and judicial procedure.
B. An expert witness shall not engage in ex parte communications with the judge or jurors in a case.
V. Conflicts of Interest
A. An expert may ethically accept concurrent engagements that are both favorable and adverse to the same party, providing the opinions are logically consistent and can be explained. An expert should not accept conflicting engagements, either concurrently or successively, that are factually related.
B. An expert may not switch sides, even following discharge or release, if to do so would violate the original client's reasonable expectation of confidentiality. This will depend on a number of factors, including the extent of communications between the expert and the original client and the nature and types of information the client provided to the expert.
C. An expert witness should disclose any interests the expert may have in the case or its outcome.
A. An expert shall accept only engagements that are within the expert's area of competence and training. An expert shall not purport to be an expert in matters in which the expert has limited knowledge or experience, or in any matter in which professional peers with the same level of knowledge and experience would not hold themselves out as experts.
B. An expert shall ensure that all tests, analysis and other operations leading to conclusions and opinions are based on adequate and accepted procedures within the profession. An expert who uses procedures that are considered experimental or controversial should so say in rendering any report or conclusions.
C. An expert witness shall be clear about the strength of the expert's conclusion. An expert witness shall indicate when an opinion is inconclusive because of insufficient research or insufficient data.
D. An expert witness shall update an opinion in light of new information if there is continuing reliance on the opinion. If an expert witness changes an opinion on a material matter after providing a report to the client, the expert shall promptly provide the client with a supplementary report explaining the change.
E. An expert should strive to understand the standards applicable in the jurisdiction to the use and admissibility of an expert's opinion.
F. An expert's written report should reflect the expert's independent analysis and opinion. While an expert and the retaining attorney may discuss the contours, scope and subjects of the report, the final product must conform to the expert's findings and conclusions.
G. An expert witness shall not conceal or destroy documents or evidence that are or may be discoverable.
H. An expert shall not knowingly present opinions or testimony that are false or misleading.
I. An expert witness should not accept the client's characterizations or conclusions without exercising due diligence by inquiring into the underlying facts.
J. The expert witness shall provide opinions that are reasoned and based on the expert's own analysis. The expert shall not unreasonably exclude issues that are material to the client's purpose and within the expert's expertise.
IMS Expert Services is the premier expert witness and litigation consultant search firm in the legal industry. IMS is focused exclusively on providing custom expert witness search services. We are proud to be the choice of over 95 of the AmLaw Top 100. Call us at 877-838-8464.
Ethical Guidelines for Statistical Practice
ACEA CODE OF ETHICS
- CODE OF ETHICS - PRINCIPLES
- CODE OF ETHICS - TENETS
- ACTING AS AN EXPERT WITNESS
- PUBLIC COMMENT OR STATEMENTS
- PROCEDURES FOR HANDLING ALLEGED BREACHES OF THE CODE OF ETHICS
This Code of Ethics establishes the standards, including the Standards of Conduct, to be adopted and adhered to by all member firms of the Association of Consulting Engineers Australia and their staff as part of their working habits and relationships with clients, colleagues and the community generally.
A member of the Association of Consulting Engineers Australia, in the context of this code of Ethics, refers to both the firms and their staff individually.
The members are bound by a common commitment to promote technology based intellectual consulting services for the built and/or natural environment and facilitate its practice for the common good, based upon shared values of:
- ethical behaviour;
- competent performance;
- innovative practice;
- excellence in service provision;
- equality of opportunity;
- social justice;
- unity of purpose;
- sustainable development;
- responsible decision making;
- accountability for conduct and behaviour;
- recognition and management of risk; and,
- honesty and integrity.
This Code of Ethics and its obligations and requirements on members was approved by members in accordance with Article 12.1 and By-Law 6.1(b) by a general meeting of the Association held on 28 November 2003.
The members are committed to the Principles of this Code of Ethics. These are:
- to act honestly and with integrity;
- to respect the inherent dignity and privacy of the individual;
- to act on the basis of competence and a well informed conscience;
- to hold paramount the welfare, health and safety of the community; and
- to uphold, at all times, the Tenets as expressed in this Code of Ethics.
The Tenets of the Code of Ethics are the specific principles to which the Association ascribes:
- Members shall at all times place their responsibility for the welfare, health and safety of the community before their responsibility to private interests, or to other members;
- Members shall act with honour, integrity and dignity in order to merit the trust of the community;
- Members shall act only in areas of their competence and shall practise in a careful and diligent manner;
- Members shall act with honesty, good faith and without discrimination towards all in the community, including clients, employers and colleagues;
- Members shall apply their skill and knowledge in the interest of their employer or client for whom they shall act with integrity, without compromising any other obligation to these Tenets;
- Members shall take all reasonable steps to inform themselves, their clients and employers and the community of the social and environmental consequences of the actions and projects in which they are involved;
- Members shall express opinions and recommendations, make public statements or give evidence in an objective and truthful manner and only on the basis of existing and adequate knowledge having regard to their obligations of confidentiality and their responsibility to the safety, health and welfare of the community;
- Members shall continue to develop relevant knowledge, skill and expertise throughout their careers and shall actively assist and encourage those under their direction to do likewise; and
- Members shall not assist, induce or be involved in a breach of these Tenets, shall support those who seek to uphold them, and having knowledge of any alleged violation of this Code of Ethics will raise it with the member and the Association as considered appropriate.
The comments which follow provide interpretation of the Tenets as they apply to practices and situations in which members may find a need for ethical guidance. A breach of the Code of Ethics occurs when a member acts contrary to one of the nine Tenets judged on the circumstances of the case and not on the emphasis of the interpretations.
Members' obligations to the welfare, health and safety of the community involves the application of sound judgement based on experience and relevant analysis to arrive at the appropriate balance of considerations which must apply in a given situation. Protection of the environment is both a short term and long term concern of the community and needs to be considered by members at all times. Members' obligations extend to taking all reasonable steps to understand the consequences of their own actions and the actions of those with or for whom they are working.
- shall work in conformity with accepted environmental standards in a manner which does not jeopardise the public welfare, health or safety;
- shall endeavour at all times to maintain services essential to public health and safety;
- shall use their best endeavours, at all times, to meet the requirements and obligations in relation to the health and safety of employees, colleagues and the workforce;
- shall give due weight to the need to achieve sustainable development and to conserve and restore the productive capacity of the earth;
- shall endeavour to ensure that information provided to the public is relevant and in a readily understood form;
- shall avoid assignments taken on behalf of clients or employers that are likely to create a conflict of interest between the member or their clients or employers and the community;
- shall not use association with other persons, corporations or partnerships to conceal unethical acts
- shall not involve themselves with any practice which they know to be of a fraudulent, dishonest or criminal nature. Successful prosecution before a Court for any such action may be deemed to be a breach of the Code of Ethics ; and
- shall work in accordance with generally accepted professional and engineering standards in a manner which does not jeopardise the safety, health or welfare of the public and the community.
Members should understand the distinction between working in an area of competence and working competently. Working in an area of competence requires members to operate within their qualifications and experience; working competently requires sound judgement. If an error of judgement occurs, the outcome may be construed as negligence, however, it does not necessarily imply that the member has acted unethically.
- shall neither falsify nor misrepresent their own, or their associates', qualifications, experience and prior responsibility;
- shall inform their employers or clients, and make appropriate recommendations on obtaining further advice, if an assignment requires qualifications and experience outside their fields of competence;
- shall only undertake assignments and provide services within the member's area of competence and qualification, and;
- shall not affix their signatures to any plans or documents dealing with subject matter in which the member lacks competence or qualifications.
Members shall practice in an open and informed manner and act in the best interests of the client and/or the employer unless to do so would jeopardise the safety, health or welfare of the public, the community or the environment.
- shall promote the principle of selection of services by clients upon the basis of merit, and shall not compete with other consulting engineers on the basis of fees alone. However, it shall not be a breach of the Code of Ethics for members to provide information as to the basis upon which they usually charge fees for particular types of work. Also, it shall not be a breach of the Code of Ethics for members to submit a proposal for the carrying out of work, which proposal includes, in addition to a technical proposal, an indication of the resources which members can provide and information as to the basis upon which fees will be charged or as to the amount of the fees for the work which is proposed to be done. In this respect it is immaterial whether or not members are aware that others may have been requested to submit proposals, including fee proposals, for the same work;
- shall take reasonable steps to recognise, manage and mitigate the risks associated with each assignment or engagement of work, and, in particular, the risks to the client, the workforce, the community and the environment, and;
- shall, on request prior to engagement, advise existing clients and prospective clients of the relevant insurance maintained by the member. If the member does not maintain professional indemnity insurance this must be disclosed to the existing client or prospective client.
- may use advertising (which includes direct approaches to prospective clients by any reasonable means) which is not misleading, to announce their practice and availability. Information given must be truthful, factual and free from ostentatious or laudatory expressions or implications;
- shall, when acting as administrator of a contract, be impartial as between the parties in the interpretation of the contract. This requirement of impartiality shall not diminish the duty of members to fairly apply their skill and knowledge in the interests of their employers or clients;
- shall keep their employers or clients fully informed on all matters, including financial interests, which are likely to lead to a conflict of interest;
- shall advise their clients or employers when they judge that a project will not be viable, whether on the basis of commercial, technical, environmental or any other such risk which the member might reasonably have been expected to consider;
- shall inform their clients or employers of the possible consequences in the event that a member's judgements are overruled on matters relating to the welfare of the community. Where justified by the consequences which result from the matter continuing, members shall endeavour further to persuade the client or employer to discontinue with the matter. If unsuccessful, members may make the details of the adverse consequences known to the public without incurring a breach of the Code of Ethics.
- shall neither disclose nor use confidential information gained in the course of their employment without express permission, unless permission unduly withheld would jeopardise the welfare, health or safety of the community;
- shall not undertake, nor should they be expected to undertake, professional work where the terms of reference are so restrictive that they are not able to carry out their responsibilities in accordance with recognised professional standards;
- shall not accept compensation, financial or otherwise, from more than one party for services on the same project, nor provide free services, unless the circumstances are fully disclosed to, and agreed to, by all interested parties;
- shall neither solicit nor accept financial or other valuable considerations from material or equipment suppliers for specifying their products;
- shall neither pay nor offer directly or indirectly inducements to secure work, and;
- shall neither solicit nor accept gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with their clients or employers in connection with work for which they are responsible.
Members have an obligation to act in good faith, honestly and with integrity when dealing with colleagues to whom this Code of Ethics applies.
- shall exercise due restraint in explaining their own work, shall give proper credit to those to whom proper credit is due, and shall acknowledge the contributions of subordinates and others;
- shall accept, as well as give, honest and fair professional criticism when commenting on another's work or making public comment;
- shall compete on the basis of merit and not compete unfairly;
- shall neither maliciously nor carelessly do anything to injure, directly or indirectly, the reputation, prospects or business of others:
- shall, where acting as a representative on behalf of an employer, recognise that other members, who are employees, are colleagues to whom the Code of Ethics applies;
- shall uphold the principle of adequate and appropriate remuneration;
- shall neither attempt to supplant another individual or organisation who has been duly appointed by a client or employer nor accept engagement from a client or employer in replacement of another without first ascertaining that the appointment has been terminated by due notice;
- shall examine the circumstances and determine the appropriateness of accepting an engagement from a client if they have evidence that they are to replace another, having first made all reasonable efforts to make the other aware of the situation;
- shall, if asked by a client to review the work of another, proceed only after gaining consent from the client to discuss that review with the other party concerned. Members shall discuss the review with the other person or organisation prior to submitting the review if it is possible to do so; and
- shall not unfairly criticise others for their past work where such work was conducted in accordance with the accepted standards and practices and community values of the time, and in accordance with the needs of the time.
An expert witness provides a special and unique service to legal or quasi-Iegal proceedings established for the purpose of making judgements. Once accepted by the judge or arbitrator, an expert becomes "an officer of the Court or Hearing".
In this capacity the expert witness is normally afforded two important privileges: the freedom to remain in the proceedings at all times and the freedom to express an opinion.
At all times the expert witness owes the proceedings total objectivity. The role of expert witness is to give the tribunal the benefit of his or her special training and experience in order to help the tribunal understand matters which it would not otherwise understand and thus help the tribunal to come to the right decision.
It follows that:
- members' reports, statements or testimony before any tribunal shall be objective and accurate. They shall express an opinion only on the basis of adequate knowledge and technical competence in the area, but this shall not preclude a considered speculation based on experience and wide relevant knowledge;
- members must reveal the existence of any interest, pecuniary or otherwise, including any conflict of interest, that could be taken to affect their judgement about which they are making a statement, giving evidence or providing an opinion. This shall include advising the parties and the court or tribunal of any actual or perceived conflict of interest and any circumstance where the member has previously received payment for any work or services provided to any of the parties involved in the proceedings before the court or tribunal;
- members must ensure that all reports and opinions given to a client prior to a hearing include all relevant matters of which they are aware, whether they are favourable or unfavourable;
- members giving evidence as experts should listen very carefully to the question put, and ensure that each answer is given objectively, truthfully and completely and covers all matters relevant to the question of which they have knowledge; and
- when discharging these responsibilities, members should have regard to the normal practice at the time of the occurrence of the incident which gave rise to the call for advice.
Members should also refer to relevant Practice Notes issued by this Association (and in particular to section 4.0) and also to the document "Guideline for Expert Witnesses in proceedings in the Federal Court of Australia" issued by the Federal Court of Australia.
Members must act in accordance with the requirements for expert witnesses as prescribed by the relevant court or tribunal when providing reports, statements or testimony as an expert witness.
Public comments and statements by members should be made in a way that maintains and enhances the trust of the community and must be made in good faith in an honest and objective manner. Any public comments or statements made by members must not breach the obligation of confidentiality to the client, must not breach the privacy of an individual and must consider the safety, health and welfare of the public, the community and the environment.
It follows that:
- Members may, if they consider that by so doing they can constructively advance the well-being of the community, contribute to public discussion on technical matters in their area of competence;
- in areas outside of a member's area of competence, but those in which a member can demonstrate adequate knowledge, comment may be made on details of a project within that area of knowledge. Adequate knowledge generally applies to a narrow aspect of an area of competence. Adequate knowledge may be acquired from working in a related area of competence or through continued professional development. However, adequate knowledge in a narrow area is not generally a sufficient basis for public comment or advice on the overall solution to a task outside of a member's area of competence; and
- in areas outside of a member's area of competence, and in which the member is not able to demonstrate adequate knowledge, public comment or statements should be limited to enquiries which seek to provide deeper understanding. In this respect, the member may draw on experience in training and analysis as a basis for asking objective questions which may assist the public to evaluate services without the member implying personal competence or knowledge in the area.
In the course of a member's employment, situations may arise concerning the employer, client or external organisation which may present the member with a significant moral and legal problem. This could include criminal behaviour, threats to public safety, threats to the welfare of the community, threats to the welfare of the environment, unethical policies and breaches of this Code of Ethics. Depending on the particular circumstances a member may have responsibility under existing legislation or the provisions of this Code of Ethics to ensure that any such practices are brought to the attention of those with authority to rectify the problem or to raise the matter with the appropriate regulatory authorities.
The following practical and commonsense guidance is set out for the benefit of members who have or are intending to make such disclosure:
- Make any objections to unethical practices promptly so as to avoid any misinterpretation of the motives for doing so;
- Focus on the issues and proceed in a tactful, low-key manner to avoid unnecessary personal antagonism which might distract attention from solving the problem;
- Keep supervisors informed of actions as much as possible, both through informal discussion and formal memoranda;
- Be accurate in observations and claims and keep formal records documenting relevant events;
- Raise the problem initially through normal organisational channels;
- Consult colleagues for advice and avoid isolation;
- Consult with the Association through the Chief Executive on the ethical issues involved, or with other organisations as appropriate; and/or
- Seek legal advice concerning potential legal liabilities.
The members of the Association have approved Articles and By-Laws to govern the investigation and hearing of alleged breaches of the Memorandum & Articles of Association, the By-Laws and this Code of Ethics. The Articles at Part 3 and Part 4 and By-Laws at Part 3 provide for a process to investigate and hear alleged breaches and to reflect the importance which the Board places on all members upholding the ethical standards of the Association and its members. All alleged breaches and complaints will be considered and dealt with in accordance with the Articles of Association, the By-Laws and this Code of Ethics. If a breach of the Memorandum & Articles of Association, the By-Laws or this Code of Ethics is substantiated or held to be the case by the Board of ACEA then the following sanctions may be applied:
- ongoing membership declined; or
- termination of membership.
Code of Ethics
Members of the Society of Pediatric Pathology ("SPP") are expected to abide by the codes of ethics that pertain to the medical profession in general, as well as to adhere to all local and national laws and regulations that govern the practice of medicine. We hold such standards as being self-evident. In addition to these there are specific areas that require vigilant attention:
- Use of SPP for personal financial gain.
- Presentation and publication of scientific information (research and scientific fraud).
- Expert medico-legal testimony.
1. Use of SPP for personal financial gain.
- Members shall not use the SPP, its resources, journals, Website, bulletin boards or meetings to promote any activity from which they will derive personal financial gain. This includes the promotion of books, conferences, seminars, laboratory services, consultation or other goods and services. Members who want to formally advertise these activities will be charged at regular market advertising rates, depending on the medium employed. These 'advertisements' shall not be a part of, or included within, any other professional activities conducted under the auspices of the SPP.
- Any financial conflict of interest must be fully disclosed in a presentation, poster or publication.
- The SPP logo and imprimatur shall not be used in association with any activity, unless SPP Council gives express, prior written permission.
- A portion of the web site may be made available for members to report their recent book publications or other professional activities with links to the commercial site that offers their purchase. However these will be time-limited and will not carry any Society endorsement. Such announcements shall follow the web-site guidelines and the SPP by-laws that are in effect at the time the announcements are published.
2. Presentation and Publication of Scientific Information.
- These standards shall apply to all SPP venues (journals, meetings etc) as well as all public forums for the sharing and dissemination of scientific information.
- Scientific fraud, plagiarism, duplicate publication of data, falsification of information, and the distortion or suppression of data constitutes serious professional misconduct.
- Co-authors are expected to have full knowledge of the entire content of the publication and the research and must attest to such in writing and by signature.
- Members are expected to acknowledge the participation of all individuals involved in a publication. This includes the clinicians who had primary responsibility for the patients or other institutions that may have contributed to the research.
- The Board of Editors of the SPP journal (Pediatric and Developmental Pathology) may establish specific rules and guidelines for the ethical publication of scientific information. All members are expected to abide by these standards.
3. Expert Medical Testimony
The SPP encourages its members to participate fully in the judicial system to ensure that the best possible scientific information be available to courts and jurors for their deliberations. The following standards and guidelines apply to a member who serves as either a testifying or a consulting (non-testifying) expert:
- When possible, experts should use objective, peer-reviewed scientific studies to validate their opinions and not be selective in the studies they elect to present.
- Experts are encouraged to use a rigorous evidence-based approach for the presentation of their opinion.
- The expert witness should be willing to state that there may be no way to prove or disprove something. When scientific evidence is lacking, experts should clearly state that fact and affirm that they are providing an opinion, not proof.
- Experts should have significant familiarity with the issues of the case.
- The expert witness cannot champion a position, a cause or either the plaintiff or the defendant, but must be dedicated to pursuing the truth, as he or she perceives it.
- Experts shall not accept a contingency fee for their services.
- Experts must clearly distinguish between overt negligence and an unfortunate or untoward medical outcome. The latter may be the result of known complications that can occur in the setting of medical uncertainty.
- Experts must be aware of the general standards of practice at the time of the alleged occurrence. They must clearly distinguish between the 'general community standard of practice' and 'expert or optimal practice.'
- Members are reminded that transcripts of depositions and courtroom testimony are public records and subject to independent peer review. This may be performed by any organization granting licensure or credentials. In addition failure to provide truthful testimony also carries the potential for civil suits of negligence, criminal prosecution for perjury and possible loss of professional license to practice medicine, depending on local institutional and state regulation and laws.
4. Policy Notification, and Investigation
- A copy of the Code of Ethics shall be mailed to all new members, together with a copy of the by-laws.
- The web site will maintain an updated copy of the Code of Ethics.
- Adherence to the Code of Ethics is a condition of membership in the Society for Pediatric Pathology.
- Any member in good standing may report a possible ethical violation to the Council of the SPP.
- The Executive committee of the SPP may constitute an ad-hoc Ethics Committee to consider a report of possible ethical violations and submit a recommendation to the Executive Committee of the SPP Council for final disposition.
5. Composition Of The AD-Hoc Ethics Committee
The size and composition of the ad-hoc ethics committee shall be by determined by the Executive Committee. Care will be exercised to ensure that no member of the committee has a conflict of interest and the committee will not include any member from the same institution or market region as the individual involved in the hearing.
6. Procedure For An Investigation
The Chair will contact the member at the outset to inform that person of the receipt of a report of a possible breach of the code of ethics, review the standards and invite the member to explain, change or modify their behavior.
All deliberations will be maintained in strict confidence.
The member whose conduct is being reviewed shall be invited to meet with the ad-hoc Ethics Committee in order to present explanations and justifications for the particular conduct under review. All proceedings will follow standard due-process and the member may be accompanied by counsel, legal or other, if requested. The member has the right to appeal any decision of the ad-hoc Ethics Committee to the entire SPP Council for review.