volving contracts in which former employees participated is barred. Two-Year Restrictions. Former employees who had "official responsibility" for particular matters involving a specific party or parties but who did not actually participate in them are barred for a period of two years from representing outside parties on such matters. This restriction applies only to particular matters which were under a former employee's official responsibility during his or her final year in the responsible position. The terms of this restriction are the same as those of the permanent restriction. In addition, former Presidential appointees and other employees who have been designated as "senior employees" by the Office of Government Ethics are prohibited for two years from assisting an outside party "by personal presence" in connection with particular matters involving a specific party or parties in which such employees ever participated personally and substantially. This means that a former "senior employee" may not attend a meeting or hearing to assist an outside party's representative where such a matter will be discussed, even if the former employee does not directly communicate with intent to influence. The "senior employee" list is reviewed annually and is published at 5 CFR 737.33. One-Year Restrictions. Former employees who served for more than 60 days in "senior employee" positions (see 5 CFR 737.33) and who left EPA after February 28, 1980, are subject to a one-year “quarantine" which prohibits any communication with EPA with intent to influence on any matter, including rulemaking, regardless of whether such former employees participated in the matter. There are several exceptions to the one-year restrictions, which are set forth in 5 CFR Part 737. Partners of Current Employees. The prohibition of 18 U.S.C. 207(g) bars partners of current regular and special Government employees from acting as "agent or attorney" where the current employee would be barred from doing so under 18 U.S.C. 207(a) or 18 U.S.C. 207(b) after he or she leaves the Government. However, after the employee leaves the Government the statutory restriction on partners does not apply. (Lawyers should be aware that the Code of Professional Responsibility, as implemented by most local bar associations, continues to bar such activity by partners of former employees unless the Agency grants a waiver based on screening the former employee from participation and sharing in fees.) Examples 1. An EPA employee served on a technical evaluation panel for a contract award. After he left EPA, he went to work for the contractor and was assigned to work as project manager for the contract he helped to award. A dispute arises over the meaning of a contract provision and the company's management asks the former employee to present the company's point of view to EPA. Answer: He may not do so because the contractual matter involved a specific party-the offeror-at the time the former employee participated. It is the same particular matter, and presenting the company's position to EPA would amount to communicating with intent to influence. Note, however, that it is proper for the employee to work on the contract. 2. Same situation, except that the company merely asks the former employee to prepare a written submission to EPA for the signature of the company's president. Answer: The former employee may do so because the statute bars only representational activity, not aid and assistance. 3. A former EPA attorney advised the Office of Air Quality Planning and Standards on a draft emission standard. After she leaves, a private client engages her to represent a company in a court proceeding in which the application of the rule is at issue. Answer: She may do so, since rulemaking is not "a particular matter involving a specific party or parties." 4. A former Regional Administrator was responsible for an enforcement proceeding during his final year at EPA, but did not personally participate in the matter. Immediately after his resignation from EPA, the firm which was the subject of the enforcement action asks the former Regional Administrator to discuss settlement with EPA and the Justice Department. Answer: He may not do so during the first two years after leaving EPA. Moreover, since Regional Administrators are "senior employees" they generally may not communicate with EPA with intent to influence on any matter whatever for a period of one year. 18 U.S.C. 208 Acts affecting a personal financial interest. (a) Except as permitted by subsection (b) hereof, whoever, being an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, including a special Government employee, participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which, to his knowledge, he, his spouse, minor child, partner, organization in which he is serving as officer, director, trustee, partner, or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest Shall be fined not more than $10,000, or imprisoned not more than 2 years, or both. (b) Subsection (a) hereof shall not apply (1) if the officer or employee first advises the Government official responsible for appointment to his position of the nature and circumstances of the judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter and makes full disclosure of the financial interest and receives in advance a written determination made by such official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee, or (2) if, by general rule or regulation published in the FEDERAL REGISTER, the financial interest has been exempted from the requirements of clause (1) hereof as being too remote or too inconsequential to affect the integrity of Government officers' or employees' services. Discussion This prohibition applies to rulemaking and policy matters which directly and predictably affect employees' financial interests as well as to grants, contracts and adjudications. For example, an employee who owns stock in a steel company may not participate in the development of new source performance standards for the steel industry. However, the employee may participate in developing ambient air quality standards because such rules would not distinctively affect the steel industry. Moreover, the restriction applies to parent and subsidiary companies of the firm in which an employee holds stock. Unless a waiver is granted under 18 U.S.C. 208(b), the restriction is rigid. The size of the financial interest is irrelevant, as is the employee's level of responsibility. Moreover, it does not matter that the organization in which the employee or the employee's spouse or minor child, etc., has a financial interest is a non-profit or public interest group, since such groups nonetheless have financial interests which the employee's EPA duties may affect. (See Section 3.301 concerning waivers under 18 U.S.C. 208(b)). Retirement plans maintained by a former employer may also amount to a financial interest, depending on the circumstances. For example, a fund managed by a former employer which includes company stock would create a personal financial interest, whereas a pension plan of a State government which is managed by a separate trustee and in which the former employee's right have vested would not create a personal financial interest in the State government in which an EPA employee formerly served. Employees are encouraged to seek the advice of the Designated Agency Ethics Official regarding pension plans. Examples 1. An employee at grade GS-11 owns 10 shares of common stock in a smelting company which will be required to install additional pollution control equipment if a proposed new source performance standard is promulgated. The employee's EPA duties ordinarily include reviewing drafts of regulations and providing comments. Answer: The employee may not comment on the regulation, since this would be participation in a matter in which she has a financial interest. However, the Designated Agency Ethics Official might grant a waiver under 18 U.S.C. 208(b) in such a case. 2. Same as above, except that the financial interest is part of a trust bequeathed by the employee's deceased parents for the benefit of her minor children. Answer: The result is the same, since the prohibition extends to the financial interests of employees' minor children. 3. An employee is the treasurer of an environmental group which has applied to EPA for a grant. The employee receives no pay for this activity. Answer: The employee is barred from participating in any way, even by advice or recommendation, in the EPA decision on the application, since he is an officer of an organization which has a financial interest in the matter. 4. An EPA employee is serving as Project Officer on a contract with a consulting firm to study emission control technologies for the steel industry. The consulting firm approaches the EPA employee to discuss possible future employment with the firm. The employee indicates that she will consider the matter. Answer: Until she rejects the offer or the offer is withdrawn, the employee must disqualify herself from any action as Project Officer, since any such action would be likely to affect the financial interests of an organization with which she is negotiating for employment. 5. An EPA employee works in pesticides registration. As part of a retirement plan, his wife holds stock in a company which manufactures pesticides. Answer: The employee may not participate in processing any application from the firm in which his wife holds stock. 18 U.S.C. 209 Salary of Government officials and employees payable only by United States. (a) Whoever receives any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia, from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or Whoever, whether an individual, partnership, association, corporation, or other organization pays, or makes any contribution to, or in any way supplements the salary of, any such officer or employee under circumstances which would make its receipt a violation of this subsection Shall be fined not more than $5,000 or imprisoned not more than one year, or both. (b) Nothing herein prevents an officer or employee of the executive branch of the United States Government, or of any independent agency of the United States, or of the District of Columbia, from continuing to participate in a bona fide pension, retirement, group life, health or accident insurance, profitsharing, stock bonus, or other employee welfare or benefit plan maintained by a former employer. (c) This section does not apply to a special Government employee or to an officer or employee of the Government serving without compensation, whether or not he is a special Government employee, or to any person paying, contributing to, or supplementing his salary as such. (d) This section does not prohibit payment or acceptance of contributions, awards, or other expenses under the terms of the Government Employees Training Act (Pub. L. 85-507, 72 Stat. 327; 5 U.S.C. 23012319, July 7, 1958). Discussion This provision bars supplementation of a regular employee's Government The restriction does not apply to payments by States, counties or municipalities. For example, an employee on a leave of absence under the Intergovernmental Personnel Act could receive a higher salary from the receiving agency than he or she would have received from the Government. The restriction does not forbid receipt of outside earned or investment income nor does it generally apply to pension or employee welfare or benefit plans maintained by former employers. [49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985] APPENDIX B TO SUBPART A-OTHER 1. House Concurrent Resolution 175, 85th Congress, 2d Session, 72 Stat. B12, "Code of Ethics for Government Service." 2. Chapter 11 of Title 18, United States Code, relating to bribery, graft, and conflicts of interests. 3. The prohibition against lobbying with appropriated funds (18 U.S.C. 1913). 4. Disloyalty and striking (5 U.S.C. 7311; 18 U.S.C. 1918). 5. Disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783) and disclosure of confidential information (18 U.S.C. 1905). 6. Habitual excessive use of intoxicants (5 U.S.C. 7352). 7. Misuse of Government motor vehicles or aircraft (31 U.S.C. 638a(c)). 8. Misuse of the franking privilege (18 U.S.C. 1719). 9. Deceit in an examination or personnel actions in connection with Government employment (18 U.S.C. 1917). 10. Fraud or false statements in a Government matter (18 U.S.C. 1001). 11. Mutilating or destroying a public record (18 U.S.C. 2071). 12. Counterfeiting and forging transportation requests (18 U.S.C. 508). 13. Embezzlement of Government money or property (18 U.S.C. 641); failing to account for public money (18 U.S.C. 643); embezzlement of money or property (18 U.S.C. 564). 14. Unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285). 15. Proscribed political activities (Hatch Act-5 U.S.C. 7324-7327; 18 U.S.C. 602, 603, 607, and 608). 16. Acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219). 17. Acceptance of excessive honorariums (2 U.S.C. 411i). 18. Outside earned income in excess of 15% of the salaries of Presidential appointees (5 U.S.C. App. I). has violated 18 U.S.C. 207 (a), (b), or (c), as implemented by 5 CFR Part 737. AUTHORITY: 18 U.S.C. 207 (a), (b), (c), as implemented by 5 CFR Part 737. 2. Delegation The Administrator delegates the authority to carry out this Appendix to the Inspector General, with the following exceptions: (a) The Judicial Officer or his designee is the presiding official as provided by paragraph 9(a) of this appendix; (b) The Designated Agency Ethics Official has the authority to designate the Agency Counsel, as provided by paragraph 9(b) of this appendix; (c) The Deputy Administrator has the authority to impose appropriate administrative sanctions, as provided by paragraph 13 of this appendix. 3. Preliminary Review and Referral of The Inspector General receives and reviews written or oral information concerning a possible violation of the post-employment restrictions of 18 U.S.C. 207 (a), (b) or (c) as implemented by 5 CFR Part 737. The Inspector General reviews the information to determine whether the matter is clearly frivoulous and does not merit further action. If the Inspector General determines that the matter merits further action, the Inspector General informs the Director of the Office of Government Ethics and consults with the Criminal Division of the Department of Justice regarding the conduct of an investigation. The purpose of the consultation is to avoid prejudicing any criminal proceeding that the Justice Department may have under consideration. 4. Investigation by the Inspector General If the Criminal Division of the Justice Department agrees that EPA should handle the matter, the Inspector General conducts an investigation of the possible violation of the post-employment restrictions of 18 U.S.C. 207 (a), (b) or (c). 5. Initiating Process To Impose Sanctions: Notice If the Inspector General's investigation establishes that there are reasonable grounds to believe that a former EPA employee has violated the post-employment restrictions of 18 U.S.C. 207 (a), (b) or (c), the Inspector General may initiate the process of imposing sanctions under 18 U.S.C. 207(j). The Inspector General sends the former EPA employee a written notice of charges and a copy of this appendix. The notice of charges describes the allegations against the former employee in sufficient detail to enable the former employee to prepare an adequate defense and contains the following final paragraph: You may request a hearing by mailing or otherwise furnishing written notice of your request to me within 30 days after the date you receive this notice of charges. If you do not request a hearing within 30 days, the Agency may nonetheless determine that you have violated the provisions of 18 U.S.C. 207 (a), (b), or (c) as implemented by 5 CFR Part 737 and impose administrative sanctions set forth in paragraph 15 of the enclosed Appendix to 40 CFR Part 3, Subpart A. You have a right to counsel, at your own expense, at all stages of this administrative enforcement proceeding. The procedures for administrative enforcement of the post-employment restrictions are set forth in the enclosed appendix. 6. Request for a Hearing A former EPA employee must request a hearing within 30 days after receiving the notice of charges. Otherwise, the initial determination of the charges is made without a hearing. 7. Initial Decision Without a Hearing If a former EPA employee fails to make a timely request for a hearing, the Inspector General prepares an initial decision in writing. The Inspector General furnishes this decision to the former employee within 60 days after the time for requesting a hearing expires. The initial decision sets forth the findings of fact and conclusions of law on which it is based. 8. Appeal of an Initial Decision Made A former employee may appeal an initial decision made without a hearing. The appeal must be submitted to the Deputy Administrator in accordance with paragraph 10(b) of this appendix. 9. Initial Decision After a Hearing If the former employee requests a hearing, an initial decision is made after a hearing takes place. (a) The Presiding Official. The Judicial Officer or his designee presides at the hearing. The Presiding Official must be an attorney and an employee of the Environmental Protection Agency. The Judicial Officer must promptly notify the former employee and the Inspector General of the Presiding Official's name, address and telephone number. The Presiding Official shall conduct the hearing in a fair and impartial manner and issue an initial decision as promptly as possible after the record is complete, but in no event later than 60 days after the hearing is completed. No person who has participated in any way in the investigation or in the decision to initiate administrative enforcement, or who is a subordinate of the Agency Counsel, or who has had any connection or dealings with the former employee may serve as Presiding Official. The Judicial Officer may remove a Presiding Official for cause. (b) Appointment of Agency Counsel. The Designated Agency Ethics Official shall designate an attorney to act as Agency Counsel. The Designated Agency Ethics Official notifies the Presiding Official and the former employee (or if the former employee is represented by counsel, his or her attorney) of the name, address and telephone number of the Agency Counsel. (c) Hearings. Hearings will be held at EPA Headquarters in Washington, D.C., or at an EPA regional office or laboratory. After conferring with the parties, the Presiding Official shall set a reasonable time, date and place for the hearing with due regard for the former employee's need for adequate time to prepare a defense and the need to expeditiously resolve allegations which may damage the former employee's reputation. At least 15 days before the date set for the hearing, the Presiding Official notifies the parties of the time, date and place of the hearing. Hearings will be as informal as reasonably possible, consistent with establishing an orderly record. Federal rules of evidence do not control the hearing, although the Presiding Official may use these rules as guidance. The Presiding Official generally will admit evidence unless it is clearly irrelevant, immaterial or unduly repetitious. The parties have the right to: (i) Introduce and examine witnesses; (ii) Offer documentary evidence; (iii) Confront and cross-examine adverse witnesses; and (iv) Present oral argument in the form of brief opening and closing statements. In addition, the former employee has the right: (i) To represent himself or herself or be represented by counsel at all stages of administrative enforcement; and (ii) To require that all persons be excluded from the hearing room except the reporter, the Presiding Official, the Agency Counsel and witnesses during the time they are actually testifying. Witnesses shall testify under oath or affirmation administered by the Presiding Official. The Presiding Official must arrange for a transcript of the hearing through the EPA Procurement and Contracts Management Division using the funds of the Office of Administration. The former employee is entitled to a copy of the transcript at no charge, and the Presiding Official must furnish it as soon as it is received from the reporter. (d) Burden of Proof. The Agency has the burden of proof and must establish a violation by clear and convincing evidence. (e) Initial Decision. The Presiding Official must make an initial decision exclusively on matters of record in the proceeding. The initial decision must be made within 60 days after the hearing and must set forth the findings of fact and conclusions of law on which it is based. The Presiding Official must furnish the decision to the former employee or his/her counsel and to the Agency Counsel and the Inspector General. 10. Appeal of an Initial Decision Made After a Hearing (a) Initial Decision After a Hearing. The initial decision of the Presiding Official becomes the final Agency decision unless, within 30 days after receiving the initial decision, either party appeals by mailing or otherwise furnishing to the Deputy Administrator written notice of appeal, with a copy to the opposing party. The notice of appeal may discuss the reasons why the party contends that the initial decision is erroneous, subject to the right of the opposing party to present a written response to the Deputy Administrator within 30 days after receiving a copy of the notice of appeal. The Deputy Administrator must base his or her decision solely on the record of the proceedings or those portions cited by the parties to limit the issue and the notice of appeal and response. If the Deputy Administrator modifies or reverses the initial decision, he or she must state in writing why the initial decision was erroneous. (b) Initial Decision Without a Hearing. If the former employee did not request a hearing, the initial decision of the Inspector General will become the final Agency decision unless the former employee submits a written notice of appeal to the Deputy Administrator within 30 days after receipt of the initial decision, with a copy to the Inspector General. The notice of appeal may discuss reasons why the initial decision is erroneous, subject to the right of the Inspector General to present a written response to the Deputy Administrator within 30 days after receiving the notice of appeal. The Deputy Administrator's review will be based on an examination of the Inspector General's evidence and any legal arguments which the former employee or the Inspector General presents. 11. Ex Parte Communications Neither a Presiding Official nor the Deputy Administrator will receive from any person any written or oral communication outside the record about the merits of an |