Imágenes de páginas
PDF
EPUB

instrumentality of a state or local government, (ii) an accredited degree-granting institution of higher education, or (iii) a non-profit hospital or medical research organization, acting on behalf of such organization(s).

VII. OTHER IMPORTANT FEATURES

A. Fair Notice. There is a "fair notice" provision which ensures that employees who continue in Government employment in reliance on the regulations will not suddenly be made subject to any future changes. Changes which create greater restrictions do not become applicable to an employee unless he or she remains with the Government longer than 5 months after the new rule is first published in final form.

B.

Effective Dates. The broadening of the provisions applicable to all employees became effective July 1, 1979. The new provisions applicable to Senior Employees took effect as to Executive level civilian employees and uniformed service officers of the grade of 0-9 and above on July 1, 1979. Those civilians at GS-17 or above, or in the Senior Executive Service and uniformed service officers in grades 0-7 and 0-8 designated by the Director, OGE, are subject to the Senior 'Employee restrictions effective February 28, 1980.

Authority: Title, V, Ethics in Government Act of 1978 (Pub. L. 95-521) 5 C.F.R. Part 737.

PART 737-REGULATIONS CONCERN

ING POST EMPLOYMENT CONFLICT OF INTEREST

Subpart A-General Provisions

Sec. 737.1 Purpose and policy. 737.3 Definitions.

Subpart B-Substantivo Provisions

737.5 Restrictions on any former Govern.

ment employee's acting as representative as to a particular matter in which the employee personally and substan.

tially participated. 737.7 Two-year restriction on any former

Gayernment employee's acting as representative as to a particular matter for which the employee had official respon.

sibility. 737.9 Two-year restriction on a former

senior employee's assisting in represent. ing as to a matter in which the employ. ee participated personally and substan.

tially. 737.11 One-year restriction on a former

senior employee's transactions with former agency on a particular matter,

regardless of prior involvement. 737.13 Limitation of restrictions of 18

U.S.C. 207(c) to less than the whole of a

department or agency. 737.15 Exemption for scientific and tech

nological information. 737.17 Exemption for persons with special

qualification in a technical discipline. 737.19 Testimony and statements under

oath or subject to penalty of perjury. 737.21 Partners of present or former Gov.

ernment employees. 737.23 Officials of a State; officials of cor

porations created by an Act of Congress

and public international organizations. 737.25 Standards and procedures for desig.

nating senior employee positions pursu.

ant to 18 U.S.C. 207(d). 737.27 Administrative enforcement pro

ceedings.

Sec. 737.29 Effective date of restrictions. 737.31 Separate statutory agencies: Desig.

nations. 737.32 Separate components of agencies or

bureaus: Designations. 737.33 "Senior Employee" designations.

AUTHORITY: Pub. L. 95-521, 92 Stat. 18621863 (5 U.S.C. Appendix), 92 Stat. 1864-1867 (18 U.S.C. 207), unless otherwise noted.

SOURCE: 45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12, 1980, unless otherwise noted.

EDITORIAL NOTE: The following index of paragraphs is provided for the convenience of the reader:

Subpart A-Gonorol Provisions

Sec.
737.1 Purpose and policy.

(a) Authority.
(b) Consultation with the Attorney Gener-

al.
(c) Policy and limitations.
737.3 Definitions.

(a) Statutory definitions.
(b) Interpretative definitions.

Subpart B-Substantivo Provisions

Sec. 737.5 Restrictions on any former govern

ment employee's acting as representative as to a particular matter in which the employee personally and substantially

participated. (a) 18 U.S.C. 207(a). (b) Representation. (1) Attorneys and agents. (2) Others. (3) Appearances; communications made

with intent to influence. (4) Government visits to other premises. (5) Elements of "influence" and potential

controversy required. (6) Assistance. (7) Project responses not included. (c) “Particular matter involving a specific

party or parties". (1) Specific matters vs. policy matters. (2) Technical matters. (3) Relationship of personal participation

to specificity. (4) The same particular matter must be

involved. (5) United States must be a party or have

an interest. (d) “Participate personally and substan.

tially". (1) Basic requirements. (2) Participation on ancillary matters. (3) Role of official responsibility in deter

mining substantial participation. (e) Agency responsibility in complex cases.

421 422 423

737.7 Two-year restriction on any former

government employee's acting as representative as to a particular matter for which the employee had official respon.

sibility. (a) 18 U.S.C. 207(b)(1). (b) Official responsibility. (1) Definition. (2) Determining official responsibility. (3) Ancillary matters and official responsi.

bility. (4) Knowledge of matter pending re

quired. (5) Self-disqualification. (c) "Actually pending." (d) Other essential requirements. (e) Measurement of two-year restriction

period. 737.9 Two-year restriction on a former

senior employee's assisting in represent. ing as to a matter in which the employee participated personally and substantial.

ly. (a) 18 U.S.C. 207(b)(ii). (b) Limitation to "representational" as

sistance by "personal presence" at an

appearance. (c) Managerial and other off-scene assist.

ance. (d) Representational assistance. (e) Measurement of restriction period. (1) Other essential requirements.

(g) General examples. 737.11 One-year restriction on a former

senior employee's transactions with former agency on a particular matter,

regardless of prior involvement (a) 18 U.S.C. 207(c). (b) Transactions exempted from 18 U.S.C.

207(c). (c) No prior involvement required. (d) Specific parties unnecessary. (e) Element of controversy or influence re.

quired. (1) Agency activity or interest in matter. (g) Application or proposals for funding of

research. (h) Personal matters. (i) Statements based on special knowledge. (1) Measurement of one-year restriction

period. 737.13 Limitation of restrictions of 18

U.S.C. 207(c) to less than the whole of a

department or agency. (a) Authority. (b) Distinctions between 18 U.S.C. 207(e)

and 207(d)(1)(C). (c) Separate Statutory Components. (1) Procedure. (2) Standards. (3) Effect of designation. (d) Separate nonstatutory components. (1) Procedure. (2) Standards.

(3) Effect of determination. 737.15 Exemption for scientific and lech.

nological information.

(a) Exemption.
(b) Necessary information.
(c) Intent to influence.
(d) Expert testimony.

(e) Agency responsibility for procedures. 737.17 Exemption for persons with special

qualifications in a technical discipline. (a) Applicability. (b) When appropriate. (c) Certification authority.

(d) Agency registry. 737.19 Testimony and statements under

oath or subject to penalty of perjury. (a) Statutory basis. (b) Applicability.

(c) Statements under penalty of perjury. 737.21 Partners of present or former gov

ernment employees. (a) Scope.

(b) Imputation. 737.23 Officials of a state; officials of cor.

porations created by an act of Congress

and public international organizations. 737.25 Senior employee designations.

(a) Definitions. (b) Designation procedures. (1) Positions at GS-17 and 18 level, SES

and pay grades 0-7 and 0-8. (2) Standards for designation and exemp.

tion. (3) Senior Executive Service. (4) “Rate of pay". (c) Differential designation. (d) Fair notice of designation. (e) “Acting" or temporary positions. (1) Special Government Employee. (g) Publication. (h) Computation of time. (i) Position Shifting.

(j) Revocation of designations. 737.27 Administrative enforcement pro

ceedings. (a) Basic Procedures. (1) Delegation. (2) Initiation of administative disciplinary

hearing. (3) Adequate notice. (4) Presiding official. (5) Time, date and place. (6) Hearing rights. (7) Burden of proof. (8) Hearing decision (9) Administrative sanctions. (10) Judicial review.

(11) Consultation and review. 737.29 Esfective date of restrictions.

(a) Persons affected.

(b) Fair notice of substantive changes. 737.31 Separate statutory agencies: desig

nations. 737.32 Separate components of agencies or

bureaus: designations. 737.33 "Senior Employee"designations.

Subpart A-General Provisions

§ 737.1 Purpose and policy.

(a) Authority. Title IV of the Ethics in Government Act of 1978 (“the Act“) established the Office of Government Ethics within the Office of Personnel Management (“OPM"). Section 402(a) of the Act provides in part that the Director, Office of Government Ethics (“the Director") shall provide, under the general supervision of OPM, overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency as defined in section 105 of title 5, United States Code, and shall propose, in consultation with the Attorney General, rules and regulations to be promulgated by the President or by OPM. The purpose of this part is to issue regulations recommended by the Director which give content to the restrictions on post employment activity estab. lished by title V of the Act (18 U.S.C. 207) for administrative enforcement with respect to former officers and employees of the executive branch; generally to guide agencies in exercising the administrative enforcement authority reflected in section 18 U.S.C. 207(j); to set forth the procedures to be employed in making certain determinations and designations pursuant to the Act; and to provide guidance to individuals who must conform to the law. Criminal enforcement of the provisions of 18 U.S.C. 207 remains the exclusive responsibility of the Attorney General.

(b) Consultation with the Attorney General. In proposing these regulations, the Director consulted with the Attorney General as to the content of regulations governing substantive prohibitions as well as other matters. The Attorney General has advised that such regulations are consistent with his opinion as to the interpretation of the Act.

(c) Policy and limitations. These regulations bar certain acts by former Government employees which may reasonably give the appearance of making unfair use of prior Government employment and affiliations.

(1) When a former Government employee who has been involved with a

particular matter decides to act as the representative for another person on that matter, such "switching of sides” undermines confidence in the fairness of proceedings and creates the impression that personal influence, gained by Government affiliation, is decisive.

(2) Similarly, when a former highlevel employee assists in representing another by personal presence at an appearance before the Government regarding a matter which is in dispute, such assistance suggests an attempt to use personal influence and the possible unfair use of information unavailable to others. Different consider. ations are involved, however, with respect to assistance given as part of customary supervisory participation in a project funded by a Government contract or grant, since a former employee's knowledge may benefit the project and thus the Government, and regular communications with associates may properly be regarded as inherent in managerial responsibility. Such assistance, when not rendered by personal presence during an appearance, is not covered by the statute.

(3) When a former Senior Employee returns to argue a particular matter to the employee's former agency in the period immediately following the termination of official employment, it appears that Government-based relationships are being used for private ends.

(4) Former officers and employees may fairly be required to avoid such activities in the circumstances specified by statute and in these regulations.

(5) The provisions of 18 U.S.C. 207 do not, however, bar any former Gov. ernment employee, regardless of rank, from employment with any private or public employer after Government service. Nor do they effectively bar employment even a particular matter in which the former Govern. ment employee had major official involvement except in certain circumstances involving persons engaged in professional advocacy. Former Government employees may be fully active in high-level supervisory positions whether or not the work is funded by the United States and includes matters in which the employee was involved while employed by the

on

13-004 0_83_-28

(8) Agencies have the responsibility to provide assistance promptly to former Government employees who seek advice on specific problems. The Office of Government Ethics will provide advice, promptly, upon request, to designated agency ethics officials in such situations, but will first coordi. nate with the Department of Justice on unresolved or difficult issues.

(9) These regulations do not supplant restrictions that may be contained in laws other than 18 U.S.C. 207 and do not incorporate restrictions contained in the code of conduct of a profession of which an employee may be a member.

Government. The statutory provisions are not intended to discourage the movement of skilled professionals in Government, to and from positions in industry, research institutions, law and accounting firms, universities and other major sources of expertise. Such a flow of skills can promote efficiency and communication between the Gov. ernment and private activities, and it is essential to the success of many Government programs. Instead, only certain acts which are detrimental to public confidence in the Government are prohibited.

(6) Departments and agencies have primary responsibility for the administrative enforcement of the post employment restrictions found in the Act. The Department of Justice may initiate criminal enforcement in cases involving aggravated circumstances; agency heads are required to report substantiated allegations of violations of 18 U.S.C. 207 to the Department of Justice and the Director, OGE. It is essential that Title V of the Act be en. forced so as to advance its objectives, which include improvement in government efficiency, equal treatment for equal claims, greater public confidence in the integrity of their government, elimination of the use of public office for private gain, and securing the integrity of the government's policymaking processes. Departments and agencies should avoid enforcement actions that do not advance these objectives but instead frustrate the Govern. ment's ability to employ the skilled persons who are needed to make the programs of the Federal Government succeed. Special attention should be given to the need to preserve the free flow of expertise, especially in scientific, technological and other technical areas, from private activities to the government.

(7) The examples contained in these regulations are intended to give guidance, but are illustrative, not compre. hensive. Each agency may provide additional illustration and guidance in its own regulations, consistent with that contained herein, in order to ad. dress specific problems arising in the context of a particular agency's operations.

or

8 737.3 Definitions.

(a) Statutory definitions. The following are defined terms which largely repeat portions of the text of the statute. They are set out here to permit a simplified presentation of statutory requirements in the regulations which follow. Other definitions, which supplement the statutory language, are listed in paragraph (b) of this section and are set forth in detail in the substantive regulations.

(1) "United States" or "Govern. mentmeans any department, agency, court, court-martial, or any civil, military naval commission of the United States, the District of Columbia, or any officer or employee thereof.

(2) "Agencyincludes an Executive Department, a Government corporation and an independent establishment of the executive branch, which includes an independent commission. (See 18 U.S.C. 6.)

(3) “Government Employee" includes any officer or employee of the Executive Branch (as defined in 18 U.S.C. 202 and, e.g., 5 U.S.C. 2104 and 2105); those appointed or detailed under 5 U.S.C. 3374, and a Special Government Employee, but shall not include an individual performing services for the United States as an independent contractor under a personal service contract.

(4) "Former Government Employee" means one who was, and is no longer, a Government employee.

424

« AnteriorContinuar »