Modernization Updates to Standards of Ethical Conduct for Employees of the Executive Branch, 43686-43731 [2024-10339]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2635
RIN 3209–AA43
Modernization Updates to Standards of
Ethical Conduct for Employees of the
Executive Branch
Office of Government Ethics.
Final rule.
AGENCY:
ACTION:
The U.S. Office of
Government Ethics (OGE) is issuing this
final rule updating the Standards of
Ethical Conduct for Employees of the
Executive Branch (Standards). The final
rule updates the Standards based on
OGE’s experience gained from
application of the regulation since its
inception. The final rule also
incorporates past interpretive guidance,
adds and updates regulatory examples,
improves clarity, updates citations, and
makes technical corrections.
DATES: This final rule is effective August
15, 2024.
FOR FURTHER INFORMATION CONTACT:
Kimberly L. Sikora Panza, Senior
Associate Counsel, or Christie Chung,
Assistant Counsel, U.S. Office of
Government Ethics, 250 E Street SW,
Suite 750, Washington, DC 20024–3249;
Telephone: 202–482–9300; TTY: 800–
877–8339; FAX: 202–482–9237.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Rulemaking History
Pursuant to a provision of the Ethics
in Government Act of 1978, 5 U.S.C.
13122, the Director of the U.S. Office of
Government Ethics (OGE) is responsible
for periodically reviewing, evaluating,
and updating the rules and regulations
that pertain to ethics in the executive
branch. On February 21, 2023 (88 FR
10774), OGE published for public
comment a proposed rule setting forth
various modernization updates to the
Standards of Ethical Conduct for
Employees of the Executive Branch
(Standards), which serve as the primary
regulatory guidance on the standards of
ethical conduct for officers and
employees of the executive branch of
the Federal Government (Government).
Prior to publishing the proposed rule,
OGE consulted with the Department of
Justice and the Office of Personnel
Management pursuant to section 201(a)
of Executive Order 12674, as modified
by Executive Order 12731, and the
authorities contained in 5 U.S.C.
chapter 131, subchapter II. Additionally,
OGE solicited and considered the views
of executive branch agency ethics
officials. OGE’s proposed updates
pertained only to subparts A through I
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of the Standards; separate from the
present rulemaking, OGE engaged in a
comprehensive rulemaking that added
to the Standards new subpart J, which
relates to the creation and operation of
legal expense funds, and the acceptance
of pro bono legal services for certain
legal matters. See 88 FR 33799 (May 25,
2023).
The proposed rule provided for a 60day comment period, which ended on
April 24, 2023. During this period, OGE
received nineteen responsive comment
submissions regarding the proposed
rule: fourteen from the public and five
from Federal agencies. OGE also
received two comment submissions
from the public that do not relate to the
proposed rule and address unrelated
matters. After carefully considering all
comments and making appropriate
modifications, and for the reasons set
forth below and in the preamble to the
proposed rule at https://
www.govinfo.gov/content/pkg/FR-202302-21/pdf/2023-02440.pdf, OGE is
publishing this final rule.
II. Discussion of Comments and
Changes to Proposed Rule
The twenty-one comments that OGE
received during the comment period are
publicly accessible on OGE’s website at
this address: https://www.oge.gov/web/
OGE.nsf/All+docs+By+Cat/08C3B
547690B7675852589AA00556758. OGE
has reviewed and considered all
comments submitted by each
commenter. OGE is not addressing the
two comments that pertain to matters
unrelated to the rulemaking. The
following discussion addresses all other
comments in the context of the specific
subparts or sections to which they
relate.
A. General Provisions (Subpart A)
OGE received nine comments from
individuals who expressed concerns
about the proposed revisions to
§§ 2635.101(b)(13) and 2635.106. In
§§ 2635.101(b)(13) and 2635.106, OGE
proposed to add the words ‘‘(including
pregnancy, gender identity, and sexual
orientation)’’ after ‘‘sex’’ to reflect
protected characteristics identified by
the Equal Employment Opportunity
Commission (EEOC) as covered by
Federal employment discrimination
laws. Towards this same end, OGE also
proposed adding ‘‘genetic information’’
in these two sections and updating the
word ‘‘handicap’’ to ‘‘disability.’’ These
commenters specifically criticized the
inclusion of ‘‘gender identity’’ and
‘‘sexual orientation’’ in
§§ 2635.101(b)(13) and 2635.106; no
commenter referenced or objected to the
other updates to these provisions
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relating to pregnancy, genetic
information, or disability. Commenters
perceived that the inclusion of ‘‘gender
identity’’ and ‘‘sexual orientation’’
would result in an expansion of civil
rights, and objected to the revisions
either categorically or without
observance of appropriate protections
for religious organizations and religious
conscience.
The revisions to §§ 2635.101(b)(13)
and 2635.106 do not effectuate any
expansion of, or other change to, civil
rights laws. Significantly, OGE does not
have the authority to promulgate
regulations expounding on the scope of
categories protected by equal
employment laws and regulations, or
other civil rights laws and regulations.
The updated language merely
modernizes the regulatory text to
include characteristics that the EEOC
already recognizes as protected under
the laws enforced by the Commission.
See, e.g., Employees & Applicants, U.S.
Equal Emp. Opportunity Comm’n,
https://www.eeoc.gov/employees (last
visited May 17, 2023). It is both
necessary and appropriate that
provisions in the Standards that refer to
‘‘laws and regulations that provide
equal opportunity’’ list the
characteristics protected by Federal
laws prohibiting employment
discrimination and enforced by the
EEOC.
Additionally, OGE received one
comment from an individual who
expressed concern that the addition of
‘‘gender identity’’ and ‘‘sexual
orientation’’ infringes on executive
branch employees’ First Amendment
and other constitutional rights. As noted
above, these revisions are merely
technical updates referencing types of
discrimination already recognized by
the EEOC. Acknowledgement of the fact
that sex-based discrimination includes
gender identity and sexual orientation
in §§ 2635.101(b)(13) and 2635.106
neither results in any change to existent
equal opportunity laws or regulations,
nor impacts the interaction between
such laws and the constitutional rights
of employees.
For the above reasons and for the
reasons stated in the preamble to the
proposed rule, OGE therefore is
adopting the proposed updates to
subpart A without further revisions.
B. Gifts From Outside Sources (Subpart
B)
Subpart B Examples
OGE received four suggestions
regarding additional examples or
clarifications that could be made in
subpart B. Specifically, one agency
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commenter suggested that OGE add an
example of a ‘‘non-traditional’’
prohibited source, such as an entity that
enters into a cooperative research and
development agreement with a Federal
agency, as well as an example involving
a lottery ticket as a gift; the same agency
suggested that OGE add an example to
§ 2635.204(d) involving a Department of
Defense or other Federal school; and a
member of the public suggested that
OGE clarify gift acceptance limits and
issues relating to entities like the
Kennedy Center where events might be
hosted by a corporate donor.
The examples requested by these
commenters involve illustration of fairly
specific situations. It would not be
feasible for OGE to provide examples
addressing application of the regulation
in all of the scenarios that may give rise
to subpart B considerations. In light of
the extensive revisions made to subpart
B in 2016, which included
modernization changes and examples,
and OGE’s determination that the
current rule provides appropriate
guidance, OGE declines these
suggestions.
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Gift Exclusion and Exception for
‘‘Opportunities and Benefits’’
One individual commenter requested
that OGE reconcile the difference
between the opportunities and benefits
excluded from the definition of ‘‘gift’’ in
§ 2635.203(b)(4) and the opportunities
and benefits excepted from the gift
prohibitions by § 2635.204(c)(2).
Specifically, the commenter noted that
the opportunities and benefits excluded
from the ‘‘gift’’ definition by
§ 2635.203(b)(4) include ‘‘favorable rates
and commercial discounts,’’ while the
opportunities and benefits excepted
from the subpart B gift prohibitions by
§ 2635.204(c)(2) include ‘‘favorable
rates, commercial discounts, and free
attendance or participation.’’ The ‘‘free
attendance or participation’’ language
that distinguishes these two provisions
was added to § 2635.204(c)(2) when
OGE substantially revised subpart B in
2016. See 81 FR 81641 (Nov. 18, 2016).
OGE notes that the ‘‘opportunities and
benefits’’ listed in the § 2635.203(b)(4)
gift exclusion are preceded by the word
‘‘including,’’ indicating that the list is
not intended to be exhaustive. As such,
one could consider free attendance or
participation under the gift exclusion, if
the appropriate facts presented
themselves. However, to clear up any
confusion, OGE will add the words
‘‘free attendance or participation’’ to
§ 2635.203(b)(4) to harmonize the
language in §§ 2635.203(b)(4) and
2635.204(c)(2).
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Free Attendance Gift Exclusion
Section 2635.203(b)(8) excludes from
the definition of ‘‘gift’’ free attendance
to an event provided by the sponsor of
the event to certain individuals,
including an employee who is assigned
to present information on behalf of the
agency at the event (on any day when
the employee is presenting), and ‘‘[a]n
employee whose presence on any day of
the event is deemed to be essential by
the agency to the presenting employee’s
participation in the event,’’ if the
employee is accompanying the
presenting employee. One agency
opined that it is unclear whether
multiple personnel supporting a
presenting employee may accept free
attendance pursuant to this exclusion.
Specifically, the commenter requested
that ‘‘an employee’’ in the above-quoted
language in § 2635.203(b)(8)(ii) be
changed to ‘‘any employee’’ to clarify
that multiple supporting personnel may
accept free attendance under this
exclusion.
OGE notes that it has previously
issued guidance making clear that
§ 2635.203(b)(8)(ii) can be applied to
multiple agency personnel. See OGE
DAEOgram DO–10–003, at 2 (Feb. 18,
2010) (‘‘The number and types of
personnel necessary, if any, to the
speaker’s participation will vary
depending upon who the speaker is and
the nature of the event.’’). Nonetheless,
to further address the commenter’s
concern, OGE is updating example 2 to
paragraph (b)(8) to reflect that guidance
and eliminate any doubt that multiple
supporting personnel may accept free
attendance under this exclusion.
Specifically, OGE is changing ‘‘another
employee’’ to ‘‘other employees’’ and
‘‘accompanying employee’’ to
‘‘accompanying employees’’ in the
example.
De Minimis Gift Exception
Three commenters—two individuals
and one agency—recommended that
OGE increase the monetary thresholds
for the de minimis gift exception at
§ 2635.204(a), noting the effects of
inflation in the intervening years since
the exception was first adopted. Two
other commenters made a similar
suggestion in 2016 as part of OGE’s
comprehensive rulemaking revising
portions of subpart B.
After carefully considering this
recommendation in 2016, OGE noted its
concern that ‘‘raising the de minimis
would encourage employees to accept,
and private citizens to give, more
expensive and more frequent gifts than
employees are currently able to accept.’’
81 FR 81641, 81645 (Nov. 18, 2016).
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Although OGE acknowledged at that
time—and continues to acknowledge—
the effect of inflation on the relative
value of the de minimis threshold, OGE
continues to believe that $20 is a
workable amount that serves the narrow
purpose of the exception, which is to
permit only the infrequent acceptance of
inexpensive and innocuous gifts. Id.; see
also 57 FR 35006, 35016 (Aug. 7, 1992).
It also continues to be the fact that ‘‘no
compelling argument has been made to
support a conclusion that raising the
cap on the blanket de minimis
exception, in order to allow employees
to accept more expensive and more
frequent gifts, would strengthen the
integrity of the executive branch’s
operations.’’ 81 FR 81645.
Independent of these substantive
reasons, OGE also declines to adopt the
suggestion to increase the de minimis
threshold in this particular rulemaking,
the primary focus of which is on
technical, non-substantive updates. OGE
does not think it would be appropriate
to adjust the § 2635.204(a) dollar value
in this final rule without having
announced in the proposed rule that it
was contemplating such an increase,
thereby providing the public an
opportunity to reflect on such a
proposal and share their input regarding
the same.
Widely Attended Gatherings Exception
To improve readability, OGE is
making a technical amendment to the
structure of § 2635.204(g)(2), which
defines when a gathering is widely
attended for purposes of the widely
attended gathering (WAG) exception.
Specifically, OGE is organizing the
components of the WAG definition at
§ 2635.204(g)(2) into new separate
paragraphs (g)(2)(i) through (iii). This
update involves no substantive changes
to the WAG exception.
In response to the proposed rule, one
agency recommended removing the
requirement in the WAG exception in
§ 2635.204(g) that an employee attend
the event on their own time in their
personal capacity rather than in their
official capacity. Section 2635.204(g)
provides that an employee could attend
a qualifying event either on their own
time or, if authorized by their agency,
on excused absence pursuant to
applicable guidelines for granting such
absence, or otherwise without charge to
the employee’s leave account. The
commenter questioned the rationale for
this requirement that the employee
attend on their own time, noting that an
agency determination that attendance is
in the agency’s interest would suggest
the event is related to the employee’s
official duties.
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OGE notes that the requirement that
the employee attend in their personal
capacity is based on appropriations
considerations that OGE documented in
the preamble to the final rule for 5 CFR
part 2635. See 57 FR 35006, 35019–20
(Aug. 7, 1992). The 1992 preamble
explains that the WAG exception was
designed to allow agencies that do not
have agency gift acceptance authority to
permit their employees to accept a gift
of free attendance at events in which the
agency has an interest in the employee
attending. However, due to
appropriations requirements, in order
for the gift to be accepted by an
employee rather than by the agency, the
employee must attend the event in their
personal capacity ‘‘off the clock.’’
Specifically, this requirement ‘‘is
imposed of necessity to ensure that the
gift is made to the employee rather than
to the agency and, thus, that it does not
improperly augment agency
appropriations available for payment of
expenses of attendance at training,
meetings or similar events.’’ Id. at
35019. For these reasons, OGE declines
to follow the agency’s recommendation.
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C. Gifts Between Employees (Subpart C)
Gifts to Superiors
One individual commented that the
proposed new language in
§ 2635.302(a)(1), which clarifies that ‘‘an
official superior may not knowingly
accept’’ an improper gift from a
subordinate, is inconsistent with the
controlling statutory authority at 5
U.S.C. 7351. The commenter also
suggested that the knowledge element in
this provision is unclear.
As discussed in the preamble to the
proposed rule, the premise that official
superiors have a responsibility to not
knowingly accept improper gifts from a
subordinate is logically consistent with
and complements the restrictions
articulated in 5 U.S.C. 7351 governing
gift giving from a subordinate to a
superior. The proposed changes to
§ 2635.302(a)(1) appropriately
emphasize that superiors should not
knowingly accept gifts that are improper
for employees to give.
Regarding the knowledge element
relating to a superior’s acceptance of a
gift, it is included in recognition of the
fact that the regulation covers gifts given
‘‘indirectly’’ by an employee—e.g., ones
given by an employee’s parent, sibling,
spouse, child, or dependent relative
with the employee’s knowledge and
acquiescence. See § 2635.303(b)(1).
Section 2635.302(a) is structured in
such a way that knowledge is required
on the part of both the giver and
receiver for indirect gifts. For example,
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an employee will not be in violation of
the rule if their sibling gives a gift to the
employee’s superior without the
employee’s knowledge and
acquiescence. Similarly, a superior will
not be in violation of the rule if they
accept a gift that unbeknownst to them
was given by the sibling of an employee
with the employee’s knowledge and
acquiescence.
For the reasons explained in the
preamble to the proposed rule, OGE
declines the commenter’s suggestions,
and will adopt the revisions to
§ 2635.302(a)(1) as set forth in the
proposed rule.
Gifts From Employees Receiving Less
Pay
One individual commenter requested
clarification regarding the meaning of
‘‘less pay’’ in § 2635.302(b) and
suggested that the rule be amended to
specify ‘‘base pay.’’ OGE is unable to
adopt this change. The language in
§ 2635.302(b), referring to ‘‘employees
receiving less pay’’ incorporates the
language of the underlying statute. See
5 U.S.C. 7351 (referring to ‘‘an employee
receiving less pay’’). Given this statutory
basis, OGE is constrained in its ability
to revise the regulation to specify ‘‘base
pay’’ or ‘‘rate of basic pay.’’
Another individual commenter
opposed the new language OGE
proposed to add to § 2635.302(b)(2),
which clarifies that the restriction on
accepting a gift from an employee
receiving less pay does not apply when
the employee giving the gift is the
official superior of the employee
receiving the gift. The commenter
expressed concern that this rule could
provide for unequal treatment among
the higher paid employees who are now
allowed to receive gifts from their
superiors, although the commenter also
recognized that gifts from superiors to
subordinates are not generally restricted
by subpart C.
OGE disagrees with the commenter
that the updated language is ripe for
‘‘favoritism and impropriety.’’ As a
threshold matter, OGE notes that in the
status quo, subpart C does not restrict
most gifts from superiors to their
employees because superiors do not
typically receive less pay than their
employees. This structure does not seem
to have elicited much concern among
ethics officials. Furthermore, as OGE
noted in the proposed rule, ‘‘OGE does
not believe that 5 U.S.C. 7351, the
statute underlying the restriction
articulated in § 2635.302(b), either
contemplated or intended that
subordinate employees would be
restricted from accepting a gift from an
official superior who, because of the
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nature of modern compensation
systems, receives less pay.’’ 88 FR
10774, 10775 (Feb. 21, 2023).
Accordingly, this updated language that
permits all employees to receive gifts
from their superiors in the same manner
is necessary to modernize and equalize
the rule given the situations in the
current Federal pay system in which a
subordinate may earn more than their
official superior. However, it does not
encourage the provision of such gifts in
an unfair or inequitable manner.
De Minimis Gift Exception
Similar to the related suggestions
regarding the subpart B de minimis
exception, two agency commenters
recommended that OGE increase the
monetary threshold in the gift exception
at § 2635.304(a). As is the case with the
de minimis exception in § 2635.204(a),
OGE believes that the current value of
the de minimis exception in subpart C
should remain unchanged. As OGE
noted when issuing the Standards,
while it is ‘‘appropriate to permit
modest exchanges of gifts between
coworkers,’’ it is important to remain
mindful of ‘‘subtle pressures to give gifts
to superiors’’ in an environment ‘‘where
superiors and subordinates interact
daily and where subordinates compete
for advancement.’’ 57 FR 35006, 35022
(Aug. 7, 1992). Notwithstanding
inflation, OGE believes that the $10
amount remains adequate to permit an
exchange of a modest token between
employees and is ‘‘low enough generally
to discourage employees from
purchasing gifts for their superiors.’’ Id.
OGE further echoes its concern noted
above about adjusting a de minimis
value in this final rule when the public
was not apprised of such a potential
change or given the opportunity to
comment on it.
Special Infrequent Occasions Exception
One agency commenter suggested that
OGE add a new example to the
exception for special, infrequently
occurring occasions to illustrate that a
superior’s promotion is not an occasion
of personal significance. OGE declines
to adopt this suggestion. Example 3 to
the exception for voluntary
contributions in § 2635.304(c)
sufficiently illustrates that a superior’s
promotion within the supervisory chain
is not an appropriate time for
subordinates to take up a collection for
a gift to that official superior because
the occasion does not ‘‘mark the
termination of the subordinate-official
superior relationship, nor [is it an]
event[ ] of personal significance within
the meaning of [§ 2635.304(b)].’’
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An individual commenter suggested
that OGE consider adding ‘‘divorce’’ to
the non-exhaustive list of special,
infrequent occasions covered by the
exception at § 2635.304(b)(1), and also
suggested that OGE could add further
detail in the regulation regarding the
application of this exception in other
contexts, such as traditional religious or
cultural rites of passage.
OGE notes that the statute authorizing
OGE to issue regulations exempting
certain gifts contemplates that OGE may
exempt gifts in circumstances ‘‘in which
gifts are traditionally given or
exchanged.’’ 5 U.S.C. 7351(c). The list of
special, infrequent occasions provided
in the regulation is not exhaustive, as it
is preceded by the phrase ‘‘such as.’’
OGE does not endeavor to attempt to list
all occasions that may be covered in the
regulation, nor does it believe it would
be prudent or practicable to articulate
every such occasion. The language of
the exception makes clear that the
exception allows for gifts that are
‘‘infrequently occurring occasions of
personal significance,’’ and this
language should be applied when
considering occasions not included in
the non-exhaustive list.
Regarding this same exception, a
different individual commenter agreed
that adding ‘‘bereavement’’ to
§ 2635.304(b) is a beneficial change; the
individual suggested, however, that
there are issues in practice with OGE’s
inclusion of this term without
limitation. Specifically, the commenter
recommended that OGE establish
‘‘limitations as to which family
members the exception applies.’’ OGE
declines to adopt language qualifying
which bereavements constitute an
infrequently occurring occasion of
personal significance, believing that it is
neither appropriate nor wise to make a
categorical determination about which
losses justify expressions of sympathy.
OGE notes that a gift in recognition of
bereavement must still be ‘‘appropriate
to the occasion,’’ which is a sufficient
limiting factor that appropriately
curtails gift giving and acceptance in the
bereavement context and addresses any
potential for misuse of the narrow
exception at § 2635.304(b).
This same commenter recommended
that OGE add birthdays ending in zero
to the non-exhaustive list of special,
infrequent occasions covered by
§ 2635.304(b)(1). Drawing parallels
between birthdays ending in zero and
occasions enumerated in the regulation,
the individual commented that
exclusion of milestone birthdays is
arbitrary. OGE believes that it would be
inappropriate to except gifts in
connection with birthdays, which
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includes milestone birthdays, from the
general rules governing gifts between
employees, and thus did not revise the
regulation to indicate otherwise. As
noted in the preamble accompanying
the proposed rule, OGE does not
consider milestone birthdays to be
infrequently occurring occasions of the
sort warranting exception under
§ 2635.304(b). Of course, it may be
possible to give a gift in recognition of
any birthday under another exception,
such as the exception for gifts with a
value of $10 or less and the exception
for food and refreshments shared in the
office among several employees. See
§ 2635.304(a)(1) and (2).
Exception for Voluntary Contributions
of Nominal Amounts
One individual commenter suggested
that OGE define the term ‘‘nominal’’ as
it is used in the exception at
§ 2635.304(c) for ‘‘voluntary
contributions of nominal amounts from
fellow employees for an appropriate gift
to an official superior.’’ OGE appreciates
this suggestion, but has not made a
change to the regulation. What
constitutes a ‘‘nominal’’ amount is
necessarily context-specific, for
example, depending on whether the
contribution is for items like food and
refreshments, or for a gift in recognition
of a special, infrequent occasion. In
response to a similar comment when
first issuing the Standards, OGE
explained that it chose to not impose a
specific dollar limit, even though
collections for gifts generally involve
individual contributions less than five
dollars. In doing so, OGE noted that
‘‘[w]here contributions meet the
regulatory requirement that they be
entirely voluntary, higher amounts may
appropriately be contributed in some
cases, as when several senior members
of an office provide an additional
contribution to subsidize a collection
that has come up short of sufficient
funds to purchase a desired gift.’’ 57 FR
35006, 35023 (Aug. 7, 1992). The
regulation makes clear that the
contributions must be for ‘‘an
appropriate gift,’’ which OGE believes
provides a suitable, non-monetary limit
on the use of this exception.
Disposition of Prohibited Gifts
One agency commenter suggested that
OGE add a section in this subpart that
addresses what an employee should do
if they inadvertently accept a gift that is
not permissible under this subpart. In
response to agency inquiries regarding
the disposition of gifts prohibited by
subpart C, OGE has advised that
agencies are free to look to the subpart
B disposition provisions for guidance
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regarding how to handle such gifts. To
provide greater clarity to employees and
ethics officials, OGE will add a new
§ 2635.305 to subpart C that is
consistent with that guidance.
D. Conflicting Financial Interests
(Subpart D)
Analyzing Imputed Interests and MultiEntity Organizations
One agency commenter requested that
OGE add an example in § 2635.402
illustrating the application of 18 U.S.C.
208 where an employee has an imputed
financial interest by virtue of their
outside employment or position with an
organization, and there is a particular
matter that could affect one of the
entity’s campuses, or a parent, affiliate,
or subsidiary organization. OGE
declines to add such an example. As a
threshold matter, OGE notes that the
Standards already provide clear
guidance regarding how imputed
relationships are analyzed. Specifically,
§ 2635.402(b)(2) explains that ‘‘[f]or
purposes of 18 U.S.C. 208(a) and this
subpart, the financial interests of
[certain imputed persons, including an
organization or entity with which an
employee serves as officer, director,
trustee, general partner or employee]
will require the recusal of an employee
to the same extent as if they were the
employee’s own interests.’’ (Emphasis
added.) Regarding related entities such
as parents, subsidiaries, affiliates, etc.,
the Standards generally acknowledge
the potential conflicts that may arise
with respect to the same. See note 2 to
§ 2635.402(b)(1) (recognizing that a
party matter may have a direct and
predictable effect on an employee’s
financial interest in an affiliate, parent,
or subsidiary of that party). Ultimately,
however, OGE is wary of potential
misinterpretation and misapplication
were it to include an example of the sort
requested by this commenter, and
believes that a Legal Advisory is a more
suitable means through which to
provide guidance on the appropriate
analysis.
Example 1 to § 2635.403(b)
One individual commenter
questioned OGE’s proposed inclusion of
a dollar amount in example 1 to
§ 2635.403(b) and suggested that the
value should be removed because it ‘‘is
not . . . important for the rule’s
applicability.’’ OGE intends to retain the
dollar amount in this example. As
explained in the preamble to the
proposed rule, OGE proposed adding a
specific dollar figure to the amount of
stock owned by the employee in the
example ‘‘to make clear that the de
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minimis regulatory exemption in 5 CFR
2640.202 does not apply in this
scenario.’’ Accordingly, as noted in the
example, the agency could determine
that ‘‘the employee could not, by virtue
of 18 U.S.C. 208(a), perform these
significant duties of the position while
retaining stock in the company.’’
Definition of Financial Interest
The same individual commenter
questioned OGE’s proposed update to
the definition of ‘‘financial interest’’ in
5 CFR 2635.403(c)(1), which replaces
the word ‘‘dependent child’’ with
‘‘minor child,’’ and expressed a
preference for retaining ‘‘dependent
child.’’ As stated in the language of
§ 2635.401 that this rulemaking will
adopt, subpart D ‘‘summarizes the
relevant statutory restrictions [of 18
U.S.C. 208] and some of the regulatory
guidance found’’ in 5 CFR part 2640, the
part interpreting and implementing 18
U.S.C. 208. The updated language
referencing ‘‘minor child’’ brings
§ 2635.403(c)(1) into alignment with the
language used throughout subpart D,
and reflects the terminology of the
statute proper and its implementing
regulation. Therefore, OGE declines to
retain the ‘‘dependent child’’ language
in § 2635.403(c)(1) or otherwise
integrate the concept of ‘‘dependent
child’’ in this subpart.
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E. Impartiality in Performing Official
Duties (Subpart E)
Subpart E Examples
OGE received one comment from an
individual concerning the application of
§ 2635.502 to particular matters of
general applicability and requesting the
addition of an example illustrating that
application. As proposed, reorganized
§ 2635.502 articulates the operation of
the regulation with respect to particular
matters involving specific parties in
which a household member has a
financial interest, and particular matters
involving specific parties in which
someone with whom one has a covered
relationship is or represents a party.
Section 2635.502(a)(3) makes clear that
employees who are concerned about
impartiality questions arising from
circumstances other than the party
matters described in the preceding
sentence—which could include
particular matters of general
applicability—should utilize the process
detailed in the regulation, including in
paragraph (d), to determine whether
their participation is appropriate. In
1991, OGE addressed this ‘‘catch-all’’
provision in the preamble to the
proposed rulemaking for the Standards,
explaining that although the section
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focused on specified relationships and
party matters, questions about an
employee’s impartiality could arise from
any number of interests or relationships
they might have, and in connection with
their participation in matters that do not
necessarily involve specific parties. 56
FR 33778, 33786 (July 23, 1991). For
this reason, § 2635.502 ‘‘therefore
provides that an employee should use
the process set forth in that section
when circumstances other than those
specifically described raise questions
about [their] impartiality in the
performance of official duties.’’ Id.
Given this guidance, OGE declines to
add an example illustrating the specific
application of § 2635.502 to particular
matters of general applicability.
For similar reasons, OGE declines to
add a very fact-specific example
suggested by a different individual
regarding how previous litigation
history between an employee and party
to a matter might give rise to
impartiality concerns.
Employee Work Assignments
OGE received two comments from the
public expressing concern that the new
note at § 2635.501 could be viewed as
being in conflict with, or causing
confusion regarding, regulatory
language in §§ 2635.105(a) and 2638.602
regarding how supplemental agency
ethics regulations require OGE’s
concurrence, with co-signature and
publication by the agency and OGE. One
commenter questioned whether the
intent of the note was to indicate that
agencies have unfettered authority to
assign work as they see fit, and whether
a manager’s delegation of work based on
ethics considerations would be contrary
to § 2635.105 if not subject to OGE
review. The second commenter asked
OGE to make clear what triggers the
requirement to memorialize an ethics
requirement in a supplemental
regulation versus merely issuing an
agency policy.
As discussed in the preamble to the
proposed rule, the note is not an
independent source of authority; it
simply reminds agency ethics officials
that supervisors generally have broad
discretion when assigning work to
employees and that there may be a
multitude of factors considered by a
supervisor in doing so, including
appearance or impartiality concerns that
do not fit squarely within the Standards.
OGE has no intention to alter the
requirements relating to supplemental
ethics regulations, nor could it do so in
this rulemaking, as those general
requirements are established by
Executive order. See E.O. 12731, sec.
301(a) (Oct. 17, 1990). Agencies wishing
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to supplement the Standards with
additional ethics obligations still must
follow the requirements of § 2635.105,
as referenced in § 2638.602, and may
rely on prior OGE guidance regarding
what agency ethics policies belong in a
supplemental regulation. See, e.g., OGE
Legal Advisory LA–11–07 (Oct. 31,
2011).
Covered Relationship Stemming From
Certain Familial Relations
One individual commenter stated
their support for the removal of the
‘‘dependent’’ qualifier when discussing
covered relationships relating to certain
business activities of children, noting
that ‘‘[a] non-dependent child is more
likely to have relationships that
implicate impartiality concerns than
dependent children, who, being
dependents as defined at 26 U.S.C. 152
(e.g., minors or students), are relatively
unlikely to have the sorts of business
relationships raising those concerns.’’
An agency commenter disagreed with
OGE’s proposal to remove the
‘‘dependent’’ qualifier, suggesting that
the financial co-dependence of parents
and dependent children is more likely
to raise concerns regarding impartiality.
OGE will adopt as final the change
removing the ‘‘dependent’’ qualifier
before ‘‘child’’ in § 2635.502(b)(1)(iii).
This change appropriately reflects that
there are potential impartiality concerns
relating to certain business relations of
a child regardless of that child’s
dependency, just as long-established
language in § 2635.502(b)(1)(iii)
acknowledges impartiality concerns
relating to certain business relations of
a parent, without any dependency
predicate. The updated language
harmonizes the treatment of parents and
children for purposes of the scope of
certain covered relationships because
both familial relations may raise similar
ethics concerns, irrespective of any
financial connection or perceived
financial impact. In that regard, OGE
notes that nothing in subpart E
contemplates that there need be a
perceived impact on an employee’s
financial interests for there to be
concerns about their impartiality, and
that many of the long-established
covered relationships articulated in
§ 2635.502(b) would not seem to involve
such a perceived impact. Of course, we
note that § 2635.502 does not demand a
specific outcome regarding participation
when an appearance concern arises; it
merely requires that employees engage
in the appropriate analysis under this
subpart before participating. As we
stated in the 1992 preamble to the final
rule for the Standards, ‘‘the importance
of relevant facts must be emphasized.’’
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57 FR 35006, 35027 (Aug. 7, 1992). To
highlight this point as applied to the
revised covered relationship provision,
OGE is updating new example 6 to
§ 2635.502(b) so that the scenario
described involves the employment
relationship of an adult child. This
example now illustrates a situation
where a covered relationship described
in paragraph (b)(1)(iii) exists—a covered
relationship with the employer of an
employee’s adult child—but the
employee could justifiably conclude
that a reasonable person would not be
likely to question their impartiality in
participating in a party matter involving
the child’s employer.
Covered Payments and Qualifying
Programs
OGE received one comment from an
agency regarding the proposed update to
the definition of a ‘‘qualifying program’’
at § 2635.503(b)(2), which requires that
the written program ‘‘not treat
individuals entering Government
service more favorably than other
individuals.’’ The commenter noted that
this language covers the types of
commonly written policies that permit
for the acceleration of benefits or lump
sum payouts for individuals entering
Government service, which can
expedite the transition to Government
service, and expressed concern that this
change would cause unnecessary delays
and conflicts in that transition.
OGE notes that the updated language
in § 2635.503(b)(2) does not affect OGE’s
position that ‘‘when the ownership of
the interest has already vested[,] an
employee may receive an earlier
payment to remediate a conflict of
interest without running afoul of either
18 U.S.C. 209 or 5 CFR 2635.503. This
is because the employee is entitled to
receive the payment and only the timing
is being altered, not the entitlement to
the payment itself.’’ U.S. Off. of Gov’t
Ethics, Conflicts of Interest
Considerations: Corporate Employment
5 (2021), https://www.oge.gov/web/
OGE.nsf/0/EC83872D932E6DCE8525
85B6005A1F8C/$FILE/Corporate%
20Employment.pdf. Accordingly, if an
employee receives accelerated payment
of an already vested equity interest, that
payment still would not implicate
§ 2635.503.
Regarding the revisions to the
definition of ‘‘qualifying program,’’
which OGE will adopt as proposed,
OGE has noted an increase in written
policies and programs favoring
Government employees, which OGE did
not anticipate when it first promulgated
§ 2635.503. OGE therefore intentionally
updated the definition of ‘‘qualifying
program’’ to exclude written plans and
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programs that provide favorable
treatment to employees entering
Government service, such as accelerated
vesting of employment-related interests.
This approach is consistent with how
OGE has viewed unwritten practices of
treating employees entering Government
more favorably. Whether made pursuant
to a program or a practice, a covered
payment received from a former
employer raises ‘‘a legitimate concern,
and thus an appearance, that the
employee may not act impartially in
particular matters to which the former
employer is a party or represents a
party.’’ 56 FR 33778, 33786 (July 23,
1991). OGE does not have any
indication that this modernized
regulation, which is focused on an
employee’s recusal obligation once
serving the Government, would cause
unnecessary delays and conflicts during
the transition into Federal service.
Inclusion of Former Clients in the
Former Employer Definition
The same agency requested that OGE
revise note 1 to paragraph (b)(3) in
§ 2635.503 to ‘‘clarify that former clients
are those for whom the individual
personally provided services, and not
all clients of a larger firm.’’ Note 1 states
that the ‘‘former employer’’ definition
‘‘includes former clients for whom an
employee may have served as an agent,
attorney, consultant, or contractor.’’
(Emphasis added.) OGE believes that the
Note is clear on its face that the term
‘‘former clients’’ refers to those for
whom the employee personally
provided services, and thus will adopt
the proposed language without
amendment.
F. Seeking Other Employment (Subpart
F)
Subpart F Examples
OGE received one comment from an
individual requesting an additional
example in subpart F to clarify whether
an employee may rely on third-party
information to conclude that a
prospective employer has rejected the
possibility of hiring the employee.
Specifically, the commenter suggested
an example where an employee learns
from a third party that they are no
longer under consideration—for
example, because the position has been
filled by someone else. OGE declines to
make this change for several reasons.
First, OGE in 2016 published
substantive updates to subpart F, which
included several new examples to
illustrate the application of subpart F to
modern job searches. This rulemaking is
only proposing global technical changes
throughout subpart F, which is
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43691
consistent with the purpose of the
modernization project. Second, OGE
notes that the legitimacy of the
information received from third parties
is likely to vary significantly on a caseby-case basis. As such, an example
involving information from a third party
would be unlikely to provide helpful
insight—and worse, could be
misconstrued to imply that all thirdparty information can be relied upon in
the same way. Finally, OGE believes the
current structure of subpart F provides
sufficient guidance to assess scenarios
where the employee receives credible
information that the prospective
employer has rejected the possibility of
employment.
Seeking Employment Definition
This same individual asserted that the
definitions in subpart F do not take into
consideration the possibility that an
employee might seek employment by
posting their interest on social media or
meeting with a recruiter who will
communicate with multiple, potentially
unknown, companies. OGE disagrees
with this commenter. As part of the
2016 updates to subpart F, OGE
modernized the rule and added three
new examples of seeking employment
involving social media. OGE added
these examples to ‘‘clarify that the rules
in this subpart apply regardless of the
method the employee uses when
seeking employment.’’ 81 FR 8008, 8009
(Feb. 17, 2016). As further discussed in
the 2016 preamble, the examples
illustrate that the posting of a profile,
resume, or other employment
information that is not targeted to a
specific person is not considered an
unsolicited communication with an
entity regarding possible employment;
instead such a posting is akin to posting
a resume on a bulletin board. Moreover,
if the employee is using an agent or
other intermediary when seeking
employment, the definition of
‘‘prospective employer’’ is met only ‘‘if
the agent identifies the prospective
employer to the employee.’’ 5 CFR
2635.603(c)(1) and (2) and example 2 to
paragraph (c) (discussing a scenario
involving an online resume distribution
service that sends resumes to recruiters).
Accordingly, OGE is declining to make
further updates.
This individual also suggested that
OGE shorten the two-month timeframe
in § 2635.603(b)(2)(ii), which provides
that, in the absence of a response from
a prospective employer indicating
interest, an employee is no longer
seeking employment—and thus no
longer has a recusal requirement under
subpart F—after two months have
elapsed from their dispatch of an
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unsolicited resume or job proposal. The
commenter recommended truncating
this timeframe given changes in the
mechanisms through which individuals
search for jobs, and potentially quicker
responses from prospective employers
than was the case in years past.
The provision about which this
commenter is providing input was
substantively unchanged by the
proposed rule, which noted that OGE
endeavors to make only global technical
changes to subpart F that are proposed
throughout the Standards. OGE does not
believe that the two-month period
prescribed in § 2635.603(b)(2)(ii) is an
unreasonably excessive period of time
in the modern job market. Even with the
technologies of current day, OGE
continues to view two months as a
realistic period of time within which an
individual may expect a response to an
unsolicited resume or job proposal.
Subpart F addresses lack of impartiality
concerns warranting recusal from
particular matters affecting the financial
interests of a prospective employer with
whom the employee is seeking
employment. In weighing this comment
against the concerns underpinning
subpart F, OGE is not inclined to relax
the recusal requirement in the manner
suggested. Moreover, we note, as we did
in 1992 when issuing the final rule
establishing the Standards, ‘‘that the
two-month period establishes an outside
limit. An earlier response from the
recipient indicating no interest in
pursuing the matter further will
terminate the employee’s
disqualification at that time.’’ 57 FR
35006, 35029 (Aug. 7, 1992). Thus, to
the extent that the timeframe in ‘‘which
an applicant will hear back from a
prospective employer’’ is shorter, as
suggested by the commenter, an
employee who receives a negative
response will be relieved of their
subpart F recusal obligation at that
point.
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G. Misuse of Position (Subpart G)
Letters of Recommendation
OGE received multiple comments
relating to § 2635.702(b), a section in
which OGE did not propose any
substantive changes. One agency
commenter recommended that OGE add
an additional example to § 2635.702(b)
to illustrate that an employee may use
their official title in connection with
providing a recommendation for an
individual with whom they have dealt
in the course of Federal employment
outside of the executive branch—for
example, an individual with whom the
employee worked while assigned to a
Congressional office. OGE declines to
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adopt this suggestion, as it considers the
language in § 2635.702(b) to be
sufficiently clear in its broad phrasing
that an employee’s official title may be
used in connection with a reference for
an individual with whom the employee
has dealt not just in connection with
executive branch employment, but ‘‘in
the course of Federal employment.’’
A different agency requested that the
last sentence of § 2635.702(b) be
updated such that employees may
recommend individuals using their
official title not just for Federal
employment, but also for other
opportunities such as Federal
internships or educational programs.
OGE believes that § 2635.702(b)
appropriately permits recommendations
for Federal employment, and declines to
expand the regulatory language as
suggested by the commenter to cover
other Federally associated
opportunities. As a point of
clarification, however, OGE notes that
some internships and positions
associated with a Federal entity may
qualify as ‘‘Federal employment,’’ see,
e.g., OGE Legal Advisory LA–17–09
(Aug. 14, 2017) (discussing different
hiring authorities for and employment
status of student interns), such that it
would be permissible under
§ 2635.702(b) for an employee to use
their official title to recommend an
individual for the same.
The same agency expressed concern
that example 1 to § 2635.702(b) suggests
that ‘‘it is entirely acceptable for an
employee to recommend a person for
Federal employment (including use of
the employee’s title and official
letterhead) solely because the person is
a personal friend.’’ As a threshold
matter, OGE notes it did not propose to
substantively update this example in
this rulemaking. Furthermore, the
example is consistent with
§ 2635.702(b), which specifically
permits an employee to use their official
title to recommend individuals for
Federal employment, including
personal friends. As explained in the
preamble to the final rule establishing
the Standards, OGE believes that
recommending an individual for Federal
employment serves an ‘‘official
purpose’’ that justifies the use of official
title. See 57 FR 35006, 35031 (Aug. 7,
1992).
Personal Social Media and Use of
Official Photographs
As discussed in the proposed
rulemaking, OGE is adding a new
example of an appearance of
governmental sanction following
§ 2635.702(b), which involves the use of
personal social media by an
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Environmental Protection Agency (EPA)
employee. The example is consistent
with OGE’s Legal Advisory on personal
social media use and illustrates the
factual determination that agency ethics
officials must make in evaluating
whether a reference to an employee’s
official title or position on social media
violates the Standards. See OGE Legal
Advisory LA–15–03 (Apr. 9, 2015). In
particular, the example notes that while
certain facts alone—such as listing the
employee’s Government title under the
‘‘occupation’’ section of their personal
social media account—would not
reasonably be construed as implying
governmental sanction or endorsement,
it would be problematic if the EPA
employee prominently featured the
agency’s seal on their social media
account and made statements asserting
or implying that their opinions on
environmental topics are sanctioned or
endorsed by the Government.
One agency commenter recommended
updating this example to address the
use of an official Government
photograph on personal social media.
Official photographs, displays including
official uniform or insignia, and use of
agency seals must be consistent with all
applicable statutes, regulations, and
agency policies, including the
Standards. Employees who choose to
display official pictures or include
photographs of themselves wearing
agency uniform or insignia should be
mindful that doing so can increase the
possibility of confusion as to whether
their social media account and content
on that account are official or personal;
a prominent disclaimer clarifying that
all content is personal can help obviate
such confusion. However, OGE declines
to update the example to discuss the use
of an official photograph on a personal
social media account. Although the new
example provides an illustration of how
personal social media use might
implicate ethics rules regarding misuse
of position, it is not intended to be
exhaustive of the myriad ways that
employees might engage or post on their
personal social media accounts. Given
the nuance of these issues, OGE believes
that this topic is best addressed through
interpretive guidance, and notes that it
recently issued a Legal Advisory
discussing the application of ethics
rules to employees’ activities on
personal social media accounts,
including the use of official
photographs. See OGE Legal Advisory
LA–23–13, at 2–3 (Sept. 28, 2023)
(discussing the question ‘‘Can I use my
official picture or a picture of me at a
work event as my profile picture [on
social media]?’’).
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Acceptable Personal Use of Government
Resources
As explained in the preamble to the
proposed rule, OGE proposed replacing
example 1 following § 2635.704(b)—
which discussed a General Services
Administration (GSA) regulation that no
longer exists—with an example that
references an agency’s de minimis
policy relating to the personal use of a
Government email account. In response
to this change, one individual
commenter requested that OGE provide
more guidance on acceptable personal
use of Government resources, given the
absence of a GSA regulation and
significant technological changes in
recent years. OGE believes the
Standards and examples set forth and
revised in § 2635.704 are sufficiently
clear and can be applied to Government
property as it continues to evolve with
technological advances. Furthermore,
more specific guidelines about current
technology than what is already in
§ 2635.704 and its examples would run
the risk of quickly becoming outdated.
Finally, OGE notes that agencies have
established more specific policies
regarding acceptable limited personal
use of Government resources by their
employees, and employees’ adherence
to these policies would constitute an
authorized use of Government
resources. See OGE Inf. Adv. Op. 97x3
(Mar. 21, 1997). OGE defers to agencies
to interpret such policies and to
determine whether specific instances of
personal use would amount to a misuse
of Government resources.
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H. Outside Activities (Subpart H)
Teaching, Speaking, and Writing
One individual provided comments
regarding OGE’s proposed ministerial
change to § 2635.807(a), which
emphasizes the timing aspect that an
employee ‘‘may not receive
compensation from any source other
than the Government for teaching,
speaking, or writing that occurs while
the person is a Government employee
and that relates to the employee’s
official duties.’’ (Emphasis added.) The
commenter incorrectly suggests that the
updated language provides for a ‘‘looser
standard’’ than set forth in the original
rule; specifically, the commenter stated
that before this change, § 2635.807 had
a ‘‘broader application . . . [that]
prevents former employees from
gaining, after the fact from’’ their official
duties and that the new language would
‘‘lessen the broad application and lift
the restrictions as they would apply to
former employees.’’
As a threshold matter, OGE reiterates
that the Standards, including subpart H,
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apply only to current executive branch
employees. More specifically regarding
teaching, speaking, and writing covered
by § 2635.807, OGE has been
unequivocal in its guidance that ‘‘ethics
rules do not restrict receipt of
compensation unless the writing occurs
during Government service.’’ OGE
DAEOgram DO–08–006, pt. I, at 8 (Mar.
6, 2008); see also id. (‘‘Section 2635.807
applies to an individual while [they]
serve[ ] as a Government employee.
Therefore, each provision contained in
section 2635.807 restricts compensation
only for writing that occurs while an
individual is in Government service. If
the writing is done either before or after
Government service, none of these
provisions will apply.’’). Accordingly,
OGE declines the commenter’s
suggestion that § 2635.807(a) be phrased
disjunctively, such that compensation
for teaching, speaking, or writing would
be restricted if the writing occurs while
the person is a Government employee or
if the writing relates to an employee’s
official duties.
One agency commenter characterized
§ 2635.807 as addressing teaching,
speaking, or writing ‘‘on ‘official time’
and on personal time,’’ and suggested
that the section be divided into off-duty
and official duty paragraphs ‘‘rather
than housing it all under Outside
Activities.’’ OGE disagrees with the
commenter’s characterization. As noted
in § 2635.801(a), subpart H ‘‘contains
provisions relating to outside
employment, [and] outside activities’’;
§ 2635.807 addresses teaching, speaking,
and writing that an employee does as
outside employment or an outside
activity, and is not intended to address
official duty teaching, speaking, or
writing. To the extent that this section
refers to official capacity teaching,
speaking, and writing, it does so for
limited purposes. First, it refers to
official capacity activities in certain
examples to distinguish between the
scenarios where the requirements of
§ 2635.807 do and do not apply. See,
e.g., § 2635.807(a)(2)(iii), example 4
(describing a scenario where payments
are not prohibited under the rule
restricting compensation for speaking
relating to official duties because the
employee is speaking officially); see
also § 2635.807(b), example 1 (noting
that the restrictions on reference to
official position would not apply to an
employee who is authorized to speak in
their official capacity). Second, it notes
that ‘‘[t]eaching, speaking, or writing
relates to the employee’s official
duties’’—and thus is covered by
§ 2635.807(a)—if ‘‘[t]he activity is
undertaken as part of the employee’s
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43693
official duties.’’ This language simply
‘‘incorporates the . . . prohibition on
supplementation of salary contained in
18 U.S.C. 209,’’ DO–08–006, pt. I, at 19
n.18, and is not intended to provide any
specific guidance regarding official duty
speaking. For these reasons, OGE
declines the commenter’s suggested
reorganization.
The same commenter asked OGE to
address various scenarios relating to the
extent to which an employee could
choose or refuse who they present
agency information to as part of an
outside activity if the presentation
otherwise meets the requirements of
§ 2635.807(a). The scenarios posed by
the commenter are very fact-specific,
and unfortunately it is not feasible for
OGE to include exhaustive examples in
the regulation discussing the
application of § 2635.807 and other
ethics rules. OGE notes, however, that
even if § 2635.807 would not restrict an
employee’s teaching, speaking, or
writing, the employee may not conduct
the activity in a way that violates other
ethics requirements. See, e.g., OGE Inf.
Adv. Op. 94x1 (Jan. 10, 1994) (‘‘If an
employee does not receive any
compensation for [their] participation in
the conference, the speech will not be
prohibited by section 2635.807. In such
an instance, the primary consideration
the employee should keep in mind is
[their] responsibility not to misuse
[their] position, title, Government
property, or nonpublic information.’’).
Finally, OGE declines this
commenter’s suggestion to impose a
disclaimer requirement for official
teaching, speaking, or writing. To the
extent that agencies authorize or require
the use of disclaimers in official
speeches to make clear that the speaker
is sharing their personal views rather
than the views of the agency, OGE
defers to agencies on whether the use of
such a disclaimer is appropriate.
A different agency expressed concern
regarding a minor update OGE proposed
to make to the existing note to 5 CFR
2635.807(a)(2)(iii). Specifically, OGE
proposed to delete the reference to 18
U.S.C. 209 in the reminder that other
authorities in some circumstances may
limit or preclude an employee’s
acceptance of travel expenses. OGE’s
intention in deleting the reference was
not to make a substantive change but
rather ‘‘to avoid unnecessary focus on a
single statute to the potential exclusion
of other applicable authorities.’’ 88 FR
10774, 10780 (Feb. 21, 2023). The
commenter requested that OGE keep the
reference to 18 U.S.C. 209 because ‘‘[i]t
is helpful to employees and legal
practitioners to be reminded in this
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context that a criminal statute in
particular may be triggered.’’
Based on this feedback, OGE will add
back in the reference to 18 U.S.C. 209
in the referenced note. However, OGE
reiterates that other authorities may
limit or preclude an employee’s
acceptance of travel expenses, so to
emphasize that section 209 is one of
several potentially applicable
authorities, OGE has updated the phrase
to read ‘‘other authorities, including but
not limited to 18 U.S.C. 209.’’
One agency commenter asked that
OGE add new language to § 2635.807(b)
permitting ethics officials to apply a
fact-based, ‘‘totality of circumstances’’
test to determine whether an employee
serving as faculty at Federal universities
and schools may include their title or
position in connection with outside
academic or scientific editorial board
service, and for listings of professional
society committee membership. The
commenter’s request for a ‘‘totality of
circumstances’’ test appears to be based
on the commenter’s assertion that, in
the context of Federal employees
serving as faculty at Federal universities
and schools, disclaimers and
biographical sketches required for
teaching, speaking, and writing
activities under § 2635.807(b) ‘‘are not
commonly used by publishers’’ and
professional societies.
As OGE has previously explained,
‘‘[t]he foundation in the Standards
underlying the limitations on use of
official title is 5 CFR 2635.702(b), which
provides ‘an employee shall not use or
permit the use of [their] Government
position or title or any authority
associated with [their] public office in a
manner that could reasonably be
construed to imply that [their] agency or
the [G]overnment sanctions or endorses
[their] personal activities or those of
another.’’’ OGE Inf. Adv. Op. 10x1, at 1
(Mar. 19, 2010). Employees engaged in
outside teaching, speaking, and writing
must also meet the use of title
requirements of § 2635.807(b). OGE has
advised that ‘‘[t]he purpose of section
807(b)(1) and (b)(2), in conjunction with
section 702(b), is to ensure that public
is not misled as to whether the views
expressed by an Executive Branch
employee in uncompensated teaching,
writing, or speaking are those of the
employee or those of the Government.’’
Id. at 2.
OGE believes that the guidance it has
previously issued regarding use of title
in outside activities sufficiently
addresses the commenter’s practical
concerns. See, e.g., id. (emphasizing the
importance of an employee providing
relevant biographical details other than
official title and position in connection
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with teaching, speaking, and writing, as
required by § 2635.807(b)(1), and
discussing how to evaluate whether an
employee has complied in good faith
with this provision); see also OGE Legal
Advisory LA–14–08, at 2 (Nov. 19,
2014) (stressing the importance of
considering the totality of circumstances
in connection with use of title in other
outside activities, such as involvement
with a professional society, to determine
whether a reasonable person could
construe the reference to imply sanction
or endorsement of the organization or
the employee’s personal activities).
Because OGE believes that subparts G
and H and the further guidance on those
provisions provide appropriate
flexibility regarding use of title and
sufficiently address the commenter’s
concerns, OGE declines to make the
commenter’s recommended change.
Fundraising
The same agency recommended that
OGE amend the definition of
‘‘participation in the conduct of an
event’’ at § 2635.808(a)(2) to clarify that
the term includes presenting awards
and being present on stage during the
presentation of awards. OGE declines to
adopt these changes given that the list
of examples to which the commenter
suggests adding is not intended to be
exhaustive. Additionally, it is OGE’s
belief that the current language provides
sufficient guidance for practical
application of the regulation by ethics
officials and employees, without being
unnecessarily proscriptive regarding the
necessarily fact-specific application of
this provision.
The same agency also requested
certain clarifications in the new social
media examples added to § 2635.808(c)
relating to fundraising in a personal
capacity. In particular, the commenter
suggested updating example 5 to note
that the employee’s ‘‘personal
solicitation’’ could be sent by either
official or personal email, and suggested
updating example 6 to note that ‘‘any
person’’ includes subordinates. OGE
believes that the cited examples are
appropriately specific, and therefore
declines to incorporate these changes.
Specifically, the general reference to an
email transmission in example 5 does
not suggest that such a transmission
need be sent by either a personal or an
official email to be problematic.
Similarly, the reference to ‘‘any person’’
in example 6 is appropriately broad
such that it could include a subordinate.
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I. Other
Incorporation of Obligations From
Ethics Pledges
One individual commenter
recommended that OGE implement
certain core provisions of recent
Presidential ethics pledges that impose
additional obligations on certain
noncareer employees. See, e.g., E.O.
13490 (Jan. 21, 2009); E.O. 13770 (Jan.
28, 2017); E.O. 13989 (Jan. 20, 2021).
OGE declines to make such a change,
which is outside the scope of the
modernization updates contemplated by
this rulemaking, and about which
public input was requested. OGE further
notes that it is the prerogative of each
Presidential administration to determine
what, if any, additional ethics
obligations it wishes to impose on its
appointees, and that it would not be
appropriate for OGE to implement such
obligations in a regulation that by
design is intended to extend across
multiple administrations.
Subpart J
As discussed above, OGE recently
engaged in a separate rulemaking
process that culminated in the addition
of subpart J to the Standards. This
rulemaking makes no changes to subpart
J, and revises and republishes only
subparts A through I of the Standards.
III. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Acting Director of the Office of
Government Ethics, I certify under the
Regulatory Flexibility Act (5 U.S.C.
chapter 6) that this final rule will not
have a significant economic impact on
a substantial number of small entities
because it primarily affects current
Federal executive branch employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply
because this regulation does not contain
information collection requirements that
require approval of the Office of
Management and Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this final rule
will not significantly or uniquely affect
small governments and will not result in
increased expenditures by State, local,
and Tribal governments, in the
aggregate, or by the private sector, of
$100 million or more (as adjusted for
inflation) in any one year.
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Executive Orders 12866, 13563, and
14094
In promulgating this rule, the Office
of Government Ethics has adhered to the
regulatory philosophy and the
applicable principles of regulation set
forth in Executive Order 12866,
Regulatory Planning and Review (58 FR
51735, Oct. 4, 1993); Executive Order
13563, Improving Regulation and
Regulatory Review (76 FR 3821, Jan. 21,
2011); and Executive Order 14094,
Modernizing Regulatory Review (88 FR
21879, Apr. 11, 2023). Executive Orders
13563 and 12866 direct agencies to
assess all costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select the regulatory
approaches that maximize net benefits
(including economic, environmental,
public health and safety effects,
distributive impacts, and equity).
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility.
Although the number of substantive
changes to the regulation is not
extensive, the benefits of implementing
these changes are significant. The
existing regulation is not insufficient,
but it has not been significantly updated
since its issuance in 1992. OGE’s
revisions address common questions
received from ethics officials,
incorporate OGE’s experience gained
from applying the regulation since its
inception, modernize existing examples
and add new examples for more useful
reference, provide updated citations
where regulatory provisions or statutes
have changed, and make technical
corrections. These revisions will
provide greater clarity for executive
branch employees and ethics officials.
Further, OGE anticipates that this
additional clarity will increase
compliance and reduce the number of
inadvertent violations.
OGE does not anticipate any
significant increased costs associated
with these changes. However, OGE
notes that there may be an increase in
the time burden during the first year in
which the regulatory updates become
effective, particularly for ethics officials,
due to necessary updates to training
materials and other related ethics
briefings, questions regarding the
interpretation of revised regulatory
provisions, and review of additional
OGE guidance.
This rule has been designated as a
‘‘significant regulatory action’’ under
Executive Order 12866, although not
significant under section 3(f)(1) of
Executive Order 12866. Accordingly,
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this rule has been reviewed by the
Office of Management and Budget.
Executive Order 12988
As Acting Director of the Office of
Government Ethics, I have reviewed this
rule in light of section 3 of Executive
Order 12988, Civil Justice Reform, and
certify that it meets the applicable
standards provided therein.
Executive Order 13175
The Office of Government Ethics has
evaluated this final rule under the
criteria set forth in Executive Order
13175 and determined that Tribal
consultation is not required as this final
rule has no substantial direct effect on
one or more Indian tribes, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes.
List of Subjects in 5 CFR Part 2635
Conflict of interests, Executive branch
standards of ethical conduct,
Government employees.
Approved: May 8, 2024
Shelley K. Finlayson,
Acting Director, U.S. Office of Government
Ethics.
For the reasons set forth in the
preamble, the U.S. Office of Government
Ethics amends 5 CFR part 2635 as
follows:
PART 2635—STANDARDS OF
ETHICAL CONDUCT FOR EMPLOYEES
OF THE EXECUTIVE BRANCH
1. The authority citation for part 2635
is revised to read as follows:
■
Authority: 5 U.S.C. 7301, 7351, 7353; 5
U.S.C. ch. 131; E.O. 12674, 54 FR 15159, 3
CFR, 1989 Comp., p. 215, as modified by E.O.
12731, 55 FR 42547, 3 CFR, 1990 Comp., p.
306.
2. Revise and republish subparts A
through I to read as follows:
■
Subpart A—General Provisions
Sec.
2635.101 Basic obligation of public service.
2635.102 Definitions.
2635.103 Applicability to enlisted 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 and considerations for
declining otherwise permissible gifts.
2635.202 General prohibition on
solicitation or acceptance of gifts.
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2635.203 Definitions.
2635.204 Exceptions to the prohibition for
acceptance of certain gifts.
2635.205 Limitations on use of exceptions.
2635.206 Proper disposition of prohibited
gifts.
Subpart C—Gifts Between Employees
2635.301
2635.302
2635.303
2635.304
2635.305
Overview.
General standards.
Definitions.
Exceptions.
Disposition of prohibited gifts.
Subpart D—Conflicting Financial Interests
2635.401
2635.402
2635.403
Overview.
Disqualifying financial interests.
Prohibited financial interests.
Subpart E—Impartiality in Performing
Official Duties
2635.501 Overview.
2635.502 Personal and business
relationships.
2635.503 Covered payments from former
employers.
Subpart F—Seeking Other Employment
2635.601 Overview.
2635.602 Applicability and related
considerations.
2635.603 Definitions.
2635.604 Recusal while seeking
employment.
2635.605 Waiver or authorization
permitting participation while seeking
employment.
2635.606 Recusal based on an arrangement
concerning prospective employment or
otherwise after negotiations.
2635.607 Notification requirements for
public financial disclosure report filers
regarding negotiations for or agreement
of future employment or compensation.
Subpart G—Misuse of Position
2635.701
2635.702
gain.
2635.703
2635.704
2635.705
Overview.
Use of public office for private
Use of nonpublic information.
Use of Government property.
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.
2635.805 Service as an expert witness.
2635.806 [Reserved]
2635.807 Teaching, speaking, and writing.
2635.808 Fundraising activities.
2635.809 Just financial obligations.
Subpart I—Related Statutory Authorities
2635.901
2635.902
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Related statutes.
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Subpart A—General Provisions
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§ 2635.101
service.
Basic obligation of public
(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
must 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. When
a situation is not covered by the
standards set forth in this part,
employees must 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
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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, for example, race, color, religion, sex
(including pregnancy, gender identity,
and sexual orientation), national origin,
age, genetic information, or disability.
(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 of this part, 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 in this section
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 Regulatory
Commission. It does not include the
Government Accountability Office or
the government of the District of
Columbia.
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(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 will, when the conduct in
issue is that of the head of the agency,
be deemed to require that such
determination, approval, or action be
made or taken by the head of the agency
in consultation with the designated
agency ethics official.
(c) Agency ethics official refers to the
designated agency ethics official, the
alternate designated agency ethics
official, any deputy ethics official, and
any additional ethics official who has
been delegated authority to assist in
carrying out the responsibilities of an
agency’s ethics program. The
responsibilities of agency ethics officials
are described in § 2638.104 of this
chapter.
(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, recusal, 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
§ 2638.104(a) of this chapter.
(g) Disciplinary action includes those
disciplinary actions referred to in Office
of Personnel Management regulations at
5 CFR chapter I 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
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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) 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 an official capacity on behalf of that
agency or entity.
(k) 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.
(l) Supplemental agency regulation
means a regulation issued pursuant to
§ 2635.105.
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§ 2635.103 Applicability to enlisted
members of the uniformed services.
The provisions of this part are not
applicable to enlisted members of the
uniformed services. However, each
agency with jurisdiction over enlisted
members of the uniformed services may
issue regulations defining the ethical
conduct obligations of enlisted members
under its jurisdiction. Such regulations
or policies, if issued, should 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.
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§ 2635.104
detail.
Applicability to employees on
(a) Details to other agencies. Except as
provided in paragraph (d) of this
section, employees on detail, including
uniformed officers on assignment, from
their employing agencies to another
agency for a period in excess of 30
calendar days will be subject to any
supplemental agency regulations of the
agency to which they are detailed rather
than to any supplemental agency
regulations of their employing agencies.
(b) Details to the legislative or judicial
branch. Employees on detail, including
uniformed officers on assignment, from
their employing agencies to the
legislative or judicial branch for a
period in excess of 30 calendar days
will be subject to the ethical standards
of the branch or entity to which
detailed. For the duration of any such
detail or assignment, employees will 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 their employing agencies,
but will 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 (c),
an employee detailed to a non-Federal
entity remains subject to this part and
to any supplemental agency regulation
of their 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
their 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, employees who
are subject to an agency statute which
restricts their activities or financial
holdings specifically because of their
status as an employee of that agency
will continue to be subject to any
provisions in the supplemental agency
regulations of the employing agency that
implement that statute.
§ 2635.105 Supplemental agency
regulations.
In addition to the regulations set forth
in this part, employees must comply
with any supplemental agency
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regulations issued by their employing
agencies under this section.
(a) An agency that wishes to
supplement this part must 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 must 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 must submit its supplemental
agency regulations to the Federal
Register for publication and codification
at the expense of the agency in this title.
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.
(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.
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§ 2635.106
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Disciplinary and corrective
(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 Governmentwide 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 (including pregnancy,
gender identity, and sexual orientation),
national origin, age, genetic information,
or disability is required to follow
applicable statutory and regulatory
procedures, including those of the Equal
Employment Opportunity Commission.
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§ 2635.107
Ethics advice.
(a) As required by § 2638.104(a) and
(d) of this chapter, each agency has a
designated agency ethics official and an
alternate designated agency ethics
official; these are the employees who
have the primary responsibility for
directing the daily activities of an
agency’s ethics program. Acting directly
or through other officials, the designated
agency ethics official is responsible for
providing ethics advice and counseling
regarding the application of this part.
(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. When the
employee’s conduct violates a criminal
statute, reliance on the advice of an
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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. Agency ethics officials are
required by 28 U.S.C. 535 to report any
information they receive relating to a
violation of the criminal code, title 18
of the United States Code.
Subpart B—Gifts From Outside
Sources
§ 2635.201 Overview and considerations
for declining otherwise permissible gifts.
(a) Overview. This subpart contains
standards that prohibit an employee
from soliciting or accepting any gift
from a prohibited source or any gift
given because of the employee’s official
position, unless the item is excluded
from the definition of a gift (see
§ 2635.203(b)) or falls within one of the
exceptions set forth in this subpart.
(b) Considerations for declining
otherwise permissible gifts. (1) Every
employee has a fundamental
responsibility to the United States and
its citizens to place loyalty to the
Constitution, laws, and ethical
principles above private gain. An
employee’s actions should promote the
public’s trust that this responsibility is
being met. For this reason, employees
should consider declining otherwise
permissible gifts if they believe that a
reasonable person with knowledge of
the relevant facts would question the
employee’s integrity or impartiality as a
result of accepting the gift.
(2) Employees who are considering
whether acceptance of a gift would lead
a reasonable person with knowledge of
the relevant facts to question their
integrity or impartiality may consider,
among other relevant factors, whether:
(i) The gift has a high market value;
(ii) The timing of the gift creates the
appearance that the donor is seeking to
influence an official action;
(iii) The gift was provided by a person
who has interests that may be
substantially affected by the
performance or nonperformance of the
employee’s official duties; and
(iv) Acceptance of the gift would
provide the donor with significantly
disproportionate access.
(3) Notwithstanding paragraph (b)(1)
of this section, an employee who
accepts a gift that qualifies for an
exception under § 2635.204 does not
violate this subpart or the Principles of
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Ethical Conduct set forth in
§ 2635.101(b).
(4) Employees who have questions
regarding this subpart, including
whether the employee should decline a
gift that would otherwise be permitted
under an exception found in § 2635.204,
should seek advice from an agency
ethics official.
Example 1 to paragraph (b): An
employee of the Peace Corps is in
charge of making routine purchases of
office supplies. After a promotional
presentation to highlight several new
products, a vendor offers to buy the
employee lunch, which costs less than
$20. The employee is concerned that a
reasonable person may question their
impartiality by accepting the free lunch,
as the timing of the offer indicates that
the donor may be seeking to influence
an official action and the company has
interests that may be substantially
affected by the performance or
nonperformance of the employee’s
duties. The employee concludes that
appearance considerations weigh
against accepting the gift.
§ 2635.202 General prohibition on
solicitation or acceptance of gifts.
(a) Prohibition on soliciting gifts.
Except as provided in this subpart, an
employee may not, directly or
indirectly:
(1) Solicit a gift from a prohibited
source; or
(2) Solicit a gift to be given because
of the employee’s official position.
(b) Prohibition on accepting gifts.
Except as provided in this subpart, an
employee may not, directly or
indirectly:
(1) Accept a gift from a prohibited
source; or
(2) Accept a gift given because of the
employee’s official position.
(c) Relationship to illegal gratuities
statute. A gift accepted pursuant to an
exception found in this subpart will not
constitute an illegal gratuity otherwise
prohibited by 18 U.S.C. 201(c)(1)(B),
unless it is accepted in return for being
influenced in the performance of an
official act. As more fully described in
§ 2635.205(d)(1), an employee may not
solicit or accept a gift if to do so would
be prohibited by the Federal bribery
statute, 18 U.S.C. 201(b).
Example 1 to paragraph (c): A
Government contractor who specializes
in information technology software has
offered an employee of the Department
of Energy’s information technology
acquisition division a $15 gift card to a
local restaurant if the employee will
recommend to the agency’s contracting
officer that the agency select the
contractor’s products during the next
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acquisition. Even though the gift card is
less than $20, the employee may not
accept the gift under § 2635.204(a)
because it is conditional upon official
action by the employee. Pursuant to this
paragraph (c) and § 2635.205(a),
notwithstanding any exception to the
rules in this part, an employee may not
accept a gift in return for being
influenced in the performance of an
official act.
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§ 2635.203
Definitions.
For purposes of this subpart, the
following definitions 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. The term excludes the
following:
(1) Modest items of food and nonalcoholic 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 primarily for presentation;
Example 1 to paragraph (b)(2): After
giving a speech at the facility of a
pharmaceutical company, a Government
employee is presented with a glass
paperweight in the shape of a pill
capsule with the name of the company’s
latest drug and the date of the speech
imprinted on the side. The employee
may accept the paperweight because it
is an item with little intrinsic value
which is intended primarily for
presentation.
Example 2 to paragraph (b)(2): After
participating in a panel discussion
hosted by an international media
company, a Government employee is
presented with an inexpensive portable
music player emblazoned with the
media company’s logo. The portable
music player has a market value of $25.
The employee may not accept the
portable music player as it has a
significant independent use as a music
player rather than being intended
primarily for presentation.
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Example 3 to paragraph (b)(2): After
giving a speech at a conference held by
a national association of miners, a
Department of Commerce employee is
presented with a block of granite that is
engraved with the association’s logo, a
picture of the Appalachian Mountains,
the date of the speech, and the
employee’s name. The employee may
accept this item because it is similar to
a plaque, is designed primarily for
presentation, and has little intrinsic
value.
(3) Loans from banks and other
financial institutions on terms generally
available to the public;
(4) Opportunities and benefits,
including favorable rates, commercial
discounts, and free attendance or
participation 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 the employee’s official duties;
Example 1 to paragraph (b)(5): A
Government employee is attending a
free trade show on official time. The
trade show is held in a public shopping
area adjacent to the employee’s office
building. The employee voluntarily
enters a drawing at an individual
vendor’s booth, which is open to the
public, by filling in an entry form on the
vendor’s display table and dropping it
into the contest box. The employee may
accept the resulting prize because entry
into the contest was not required by or
related to their official duties.
Example 2 to paragraph (b)(5):
Attendees at a conference, which is not
open to the public, are entered in a
drawing for a weekend getaway to
Bermuda as a result of being registered
for the conference. A Government
employee who attends the conference in
an official capacity could not accept the
prize under paragraph (b)(5) of this
section, as the event is not open to the
public.
(6) Pension and other benefits
resulting from continued participation
in an employee welfare and benefits
plan maintained by a current or former
employer;
(7) Anything which is paid for by the
Government or secured by the
Government under Government
contract;
Example 1 to paragraph (b)(7): An
employee at the Occupational Safety
and Health Administration is assigned
to travel away from their duty station to
conduct an investigation of a collapse at
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43699
a construction site. The employee’s
agency is paying for relevant travel
expenses, including airfare. The
employee may accept and retain travel
promotional items, such as frequent
flyer miles, received as a result of this
official travel, to the extent permitted by
5 U.S.C. 5702 note and 41 CFR part
301–53.
(8) Free attendance to an event
provided by the sponsor of the event to:
(i) An employee who is assigned to
present information on behalf of the
agency at the event on any day when the
employee is presenting;
(ii) An employee whose presence on
any day of the event is deemed to be
essential by the agency to the presenting
employee’s participation in the event,
provided that the employee is
accompanying the presenting employee;
and
(iii) One guest of the presenting
employee on any day when the
employee is presenting, provided that
others in attendance will generally be
accompanied by a guest, the offer of free
attendance for the guest is unsolicited,
and the agency designee, orally or in
writing, has authorized the presenting
employee to accept;
Example 1 to paragraph (b)(8): An
employee of the Department of the
Treasury who is assigned 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), the employee
may accept a token of appreciation that
has a market value of $20 or less.
Example 2 to paragraph (b)(8): An
employee of the Securities and
Exchange Commission is assigned to
present the agency’s views at a
roundtable discussion of an ongoing
working group. The employee may
accept free attendance to the meeting
under paragraph (b)(8) of this section
because the employee has been assigned
to present information at the meeting on
behalf of the agency. If it is determined
by the agency that it is essential that
other employees accompany the
presenting employee to the roundtable
discussion, the accompanying
employees may also accept free
attendance to the meeting under
paragraph (b)(8)(ii) of this section.
Example 3 to paragraph (b)(8): An
employee of the United States Trade
and Development Agency is invited to
attend a cocktail party hosted by a
prohibited source. The employee
believes that there will be an
opportunity to discuss official matters
with other attendees while at the event.
Although the employee may voluntarily
discuss official matters with other
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attendees, the employee has not been
assigned to present information on
behalf of the agency. The employee may
not accept free attendance to the event
under paragraph (b)(8) of this section.
(9) 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 the employee’s
official duties which take place away
from the employee’s duty station,
provided that the agency’s acceptance is
in accordance with the implementing
regulations at 41 CFR chapter 304; and
(ii) Other gifts provided in-kind
which have been accepted by an agency
under its agency gift acceptance statute;
and
(10) Anything for which market value
is paid by the employee.
(c) Market value means the cost that
a member of the general public would
reasonably expect to 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 is deemed to be the face
value of the ticket.
Example 1 to paragraph (c): An
employee who has been given a watch
inscribed with the corporate logo of a
prohibited source may determine its
market value based on the observation
that a comparable watch, not inscribed
with a logo, generally sells for about
$50.
Example 2 to paragraph (c): During an
official visit to a factory operated by a
well-known athletic footwear
manufacturer, an employee of the
Department of Labor is offered a
commemorative pair of athletic shoes
manufactured at the factory. Although
the cost incurred by the donor to
manufacture the shoes was $17, the
market value of the shoes would be the
$100 that the employee would have to
pay for the shoes on the open market.
Example 3 to paragraph (c): A
prohibited source has offered a
Government 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.
Example 4 to paragraph (c): A
company offers an employee of the
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Federal Communication Commission
(FCC) free attendance for two to a
private skybox at a ballpark to watch a
major league baseball game. The skybox
is leased annually by the company,
which has business pending before the
FCC. The skybox tickets provided to the
employee do not have a face value. To
determine the market value of the
tickets, the employee must add the face
value of two of the most expensive
publicly available tickets to the game
and the market value of any food,
parking, or other tangible benefits
provided in connection with the gift of
attendance that are not already included
in the cost of the most expensive
publicly available tickets.
Example 5 to paragraph (c): An
employee of the Department of
Agriculture is invited to a reception
held by a prohibited source. There is no
entrance fee to the reception event or to
the venue. To determine the market
value of the gift, the employee must add
the market value of any entertainment,
food, beverages, or other tangible benefit
provided to attendees in connection
with the reception, but need not
consider the cost incurred by the
sponsor to rent or maintain the venue
where the event is held. The employee
may rely on a per-person cost estimate
provided by the sponsor of the event,
unless the employee or an agency
designee has determined that a
reasonable person would find that the
estimate is clearly implausible.
(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 the
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 given because of the
employee’s official position if the gift is
from a person other than an employee
and would not have been given had the
employee not held the status, authority,
or duties associated with the employee’s
Federal position.
Note 1 to paragraph (e): Gifts between
employees are subject to the limitations set
forth in subpart C of this part.
Example 1 to paragraph (e): When
free season tickets are offered by an
opera guild to all members of the
Cabinet, the gift is offered because of
their official positions.
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Example 2 to paragraph (e):
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 positions, 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 the
employee’s parent, sibling, spouse,
child, dependent relative, or a member
of the employee’s household 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 the employee
has not indirectly solicited or accepted
a gift by the raising of funds or other
support for a charitable organization if
done in accordance with § 2635.808.
Example 1 to paragraph (f)(2): 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) Free attendance includes waiver of
all or part of the fee for an event or the
provision of food, refreshments,
entertainment, instruction, or materials
furnished to all attendees as an integral
part of the event. It does not include
travel expenses, lodgings, or
entertainment collateral to the event. It
does not include meals taken other than
in a group setting with all other
attendees, unless the employee is a
presenter at the event and is invited to
a separate meal for participating
presenters that is hosted by the sponsor
of the event. When the offer of free
attendance has been extended to an
accompanying guest, the market value
of the gift of free attendance includes
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the market value of free attendance by
both the employee and the guest.
(h) Legal expense fund has the
meaning set forth in § 2635.1003.
(i) Pro bono legal services has the
meaning set forth in § 2635.1003.
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§ 2635.204 Exceptions to the prohibition
for acceptance of certain gifts.
Subject to the limitations in
§ 2635.205, this section establishes
exceptions to the prohibitions set forth
in § 2635.202(a) and (b). Even though
acceptance of a gift may be permitted by
one of the exceptions contained in this
section, it is never inappropriate and
frequently prudent for an employee to
decline a gift if acceptance would cause
a reasonable person to question the
employee’s integrity or impartiality.
Section 2635.201(b) identifies
considerations for declining otherwise
permissible gifts.
(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 (a)
does not exceed $50 in a calendar year.
The exception in this paragraph (a) does
not apply to gifts of cash or of
investment interests such as stock,
bonds, or certificates of deposit. When
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.
When 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 to paragraph (a): An
employee of the Securities and
Exchange Commission and their spouse
have been invited by a representative of
a regulated entity to a community
theater production, 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. The couple may attend
the play only if the employee pays the
full $60 value of the two tickets.
Example 2 to paragraph (a): An
employee of the National GeospatialIntelligence Agency has been invited by
an association of cartographers to speak
about the agency’s role in the evolution
of missile technology. At the conclusion
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of the speech, the association presents
the employee a framed map with a
market value of $18 and a ceramic mug
that has a market value of $15. The
employee may accept the map or the
mug, but not both, because the aggregate
value of these two tangible items
exceeds $20.
Example 3 to paragraph (a): On four
occasions during the calendar year, an
employee of the Defense Logistics
Agency (DLA) 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 a cousin, who is
employed by the same corporation, if
the cousin’s birthday present can be
accepted under the exception at
paragraph (b) of this section for gifts
based on a personal relationship.
Example 4 to paragraph (a): Under
the authority of 31 U.S.C. 1353 for
agencies to accept payments from nonFederal sources in connection with
attendance at certain meetings or similar
functions, the Environmental Protection
Agency (EPA) has accepted an
association’s gift of travel expenses and
conference fees for an employee to
attend a conference on the long-term
effect of radon exposure. While at the
conference, the employee may accept a
gift basket of $20 or less from one of the
companies underwriting the event even
though it was not approved in advance
by the EPA. Although 31 U.S.C. 1353 is
the authority under which the EPA
accepted the gift to the agency of travel
expenses and conference fees, the gift
basket is a gift to the employee rather
than to the EPA.
Example 5 to paragraph (a): During
off-duty time, an employee of the
Department of Defense (DoD) attends a
trade show involving companies that are
DoD contractors. The employee is
offered software worth $15 at X
Company’s booth, a calendar worth $12
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.
Example 6 to paragraph (a): An
employee of the Department of Defense
(DoD) is being promoted to a higher
level position in another DoD office. Six
individuals, each employed by a
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43701
different defense contractor, who have
worked with the DoD employee over the
years, decide to act in concert to pool
their resources to buy the employee a
nicer gift than each could buy
separately. Each defense contractor
employee contributes $20 to buy a desk
clock for the DoD employee that has a
market value of $120. Although each of
the contributions does not exceed the
$20 limit, the employee may not accept
the $120 gift because it is a single gift
that has a market value in excess of $20.
Example 7 to paragraph (a): During a
holiday party, an employee of the
Department of State is given a $15 store
gift card to a national coffee chain by an
agency contractor. The employee may
accept the card as the market value is
less than $20. The employee could not,
however, accept a gift card that is issued
by a credit card company or other
financial institution, because such a
card is equivalent to a gift of cash.
(b) Gifts based on a personal
relationship. An employee may accept a
gift given by an individual 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 and nature of the relationship
and whether the family member or
friend personally pays for the gift.
Example 1 to paragraph (b): An
employee of the Federal Deposit
Insurance Corporation (FDIC) has been
dating an accountant employed by a
member bank. As part of its ‘‘Work-Life
Balance’’ program, the bank has given
each employee in the accountant’s
division two tickets to a professional
basketball game 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 the invitation to
attend the game. Even though the tickets
were initially purchased by the member
bank, they were given without
reservation to the accountant to use as
desired, and the invitation to the
employee was motivated by their
personal friendship.
Example 2 to paragraph (b): Three
partners in a law firm that handles
corporate mergers have invited an
employee of the Federal Trade
Commission (FTC) 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 the employee has
developed an amicable relationship
with the three partners as a result of the
firm’s dealings with the FTC. As
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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.
Example 3 to paragraph (b): A Peace
Corps employee enjoys using a social
media site on the internet in a personal
capacity outside of work. The employee
has used the site to keep in touch with
friends, neighbors, coworkers,
professional contacts, and other
individuals they have met over the years
through both work and personal
activities. One of these individuals
works for a contractor that provides
language services to the Peace Corps.
The employee was acting in an official
capacity when they met the individual
at a meeting to discuss a matter related
to the contract between their respective
employers. Thereafter, the two
communicated occasionally regarding
contract matters, and later also granted
one another access to join their social
media networks through their respective
social media accounts. However, the
pair did not communicate further in
their personal capacities, carry on
extensive personal interactions, or meet
socially outside of work. One day, the
individual, whose employer continues
to serve as a Peace Corps contractor,
contacts the employee to offer a pair of
concert tickets worth $30 apiece.
Although the employee and the
individual are connected through social
media, the circumstances do not
demonstrate that the gift was clearly
motivated by a personal relationship,
rather than the position of the
employee, and therefore the employee
may not accept the gift pursuant to
paragraph (b) of this section.
(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) A reduction or waiver of the fees
for 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, commercial
discounts, and free attendance or
participation 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
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Government employment if the same
offer is broadly available to large
segments of the public through
organizations of similar size;
(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; or
(iv) Offered to employees by an
established employee organization, such
as an association composed of Federal
employees or a nonprofit employee
welfare organization, because of the
employees’ Government employment,
so long as the employee is part of the
class of individuals eligible for
assistance from the employee
organization as set forth in the
organization’s governing documents.
Example 1 to paragraph (c)(2): A
computer company offers a discount on
the purchase of computer equipment to
all public and private sector computer
procurement officials who work in
organizations with over 300 employees.
An employee who works as the
computer procurement official for a
Government agency could not accept
the discount to purchase the personal
computer under the exception in
paragraph (c)(2)(i) of this section. The
employee’s membership in the group to
which the discount is offered is related
to Government employment because
membership is based on the employee’s
status as a procurement official with the
Government.
Example 2 to paragraph (c)(2): An
employee of the Consumer Product
Safety Commission (CPSC) 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 employee
associations and similar organizations to
large segments of the public.
Example 3 to paragraph (c)(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 4 to paragraph (c)(2): A
nonprofit military relief society
provides access to financial counseling
services, loans, and grants to all sailors
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and Marines. A service member may
accept financial benefits from the relief
society, including to cover legal
expenses, because the benefits are
offered by an employee organization
that was established before the legal
matter arose, and because the benefits
are being offered because of the
employees’ Government employment, as
set forth in the relief society’s governing
documents.
(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,
unless authorized by statute or
regulation (e.g., 5 U.S.C. 5702 note,
regarding frequent flyer miles).
Example 1 to paragraph (c)(3): The
administrative officer for a field office of
U.S. Immigration and Customs
Enforcement (ICE) has signed an 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 ICE funds, the
administrative officer cannot keep the
briefcase which, if claimed and
received, is Government property.
(d) Awards and honorary degrees—(1)
Awards. An employee may accept a
bona fide award for meritorious public
service or achievement and any item
incident to the award, provided that:
(i) The award and any item incident
to the award are not from a person who
has interests that may be substantially
affected by the performance or
nonperformance of the employee’s
official duties, or from an association or
other organization if a majority of its
members have such interests; and
(ii) If the award or any item incident
to the award is in the form of cash or
an investment interest, or if the
aggregate value of the award and any
item incident to the award, other than
free attendance to the event provided to
the employee and to members of the
employee’s family by the sponsor of the
event, exceeds $200, the agency ethics
official has made a written
determination that the award is made as
part of an established program of
recognition.
Example 1 to paragraph (d)(1): Based
on a written determination by an agency
ethics official that the prize meets the
criteria set forth in paragraph (d)(2) of
this section, an employee of the
National Institutes of Health (NIH) 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.
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Example 2 to paragraph (d)(1): A
defense contractor, ABC Systems, has an
annual award program for the
outstanding public employee of the
year. The award includes a cash
payment of $1,000. The award program
is wholly funded to ensure its
continuation on a regular basis for the
next twenty years and selection of
award recipients is made pursuant to
written standards. An employee of the
Department of the Air Force, who has
duties that include overseeing contract
performance by ABC Systems, is
selected to receive the award. The
employee may not accept the cash
award because ABC Systems has
interests that may be substantially
affected by the performance or
nonperformance of the employee’s
official duties.
Example 3 to paragraph (d)(1): An
ambassador selected by a nonprofit
organization as a recipient of its annual
award for distinguished service in the
interest of world peace may, together
with their spouse and children, attend
the awards ceremony dinner and accept
a crystal bowl worth $200 presented
during the ceremony. However, if the
organization has also offered airline
tickets for the ambassador and the
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 the
ambassador 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.
(2) Established program of
recognition. An award and an item
incident to the award are made pursuant
to an established program of recognition
if:
(i) Awards have been made on a
regular basis or, if the program is new,
there is a reasonable basis for
concluding that awards will be made on
a regular basis based on funding or
funding commitments; and
(ii) Selection of award recipients is
made pursuant to written standards.
(3) Honorary degrees. An employee
may accept an honorary degree from an
institution of higher education, as
defined at 20 U.S.C. 1001, or from a
similar foreign institution of higher
education, 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.
Note 1 to paragraph (d)(3): When the
honorary degree is offered by a foreign
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institution of higher education, the agency
may need to make a separate determination
as to whether the institution of higher
education is a foreign government for
purposes of the Emoluments Clause of the
U.S. Constitution (U.S. Const., art. I, sec. 9,
cl. 8), which forbids employees from
accepting emoluments, presents, offices, or
titles from foreign governments, without the
consent of Congress. The Foreign Gifts and
Decorations Act, 5 U.S.C. 7342, however,
may permit the acceptance of honorary
degrees in some circumstances.
Example 1 to paragraph (d)(3): A
well-known university located in the
United States 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.
(4) Presentation events. An employee
who may accept an award or honorary
degree pursuant to paragraph (d)(1) or
(3) of this section may also accept free
attendance to the event provided to the
employee and to members of the
employee’s family by the sponsor of an
event. In addition, the employee may
also accept unsolicited offers of travel to
and from the event provided to the
employee and to members of the
employee’s family by the sponsor of the
event. Travel expenses accepted under
this paragraph (d)(4) must be added to
the value of the award for purposes of
determining whether the aggregate value
of the award exceeds $200.
(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 to paragraph (e)(1): A
Department of Agriculture employee
whose spouse is a computer
programmer employed by a Department
of Agriculture 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 need to
recuse from performing official duties
affecting the spouse’s employer.
Example 2 to paragraph (e)(1): When
the spouses of other clerical personnel
have not been invited, an employee of
the Defense Contract Audit Agency
whose spouse 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
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board of directors, even though the
spouse received a special invitation
from the company for them to attend as
a couple.
(2) Resulting from the employee’s
outside business or employment
activities when it is clear that such
benefits are based on the outside
business or employment activities and
have not been offered or enhanced
because of the employee’s official status;
Example 1 to paragraph (e)(2): The
members of an Army Corps of Engineers
environmental advisory committee that
meets six times per year are special
Government employees. A member who
has a consulting business may accept an
invitation to a $50 dinner from a
corporate client, an Army construction
contractor, unless, for example, the
invitation was extended in order to
discuss the activities of the advisory
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 recusal requirements of subpart F of
this part applicable when seeking
employment; or
Example 1 to paragraph (e)(3): 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 the employee has properly
recused from further work on the
regulations as required by subpart F of
this part, the employee may enter into
employment discussions with the
company and may accept the company’s
offer to pay for airfare, hotel, and meals
in connection with an interview trip.
(4) Provided by a former employer to
attend a reception or similar event when
other former employees have been
invited to attend, the invitation and
benefits are based on the former
employment relationship, and it is clear
that such benefits have not been offered
or enhanced because of the employee’s
official position.
Example 1 to paragraph (e)(4): An
employee of the Department of the
Army is invited by a former employer,
an Army contractor, to attend its annual
holiday dinner party. The former
employer traditionally invites both its
current and former employees to the
holiday dinner regardless of their
current employment activities. Under
these circumstances, the employee may
attend the dinner because the dinner
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invitation is a result of the employee’s
former outside employment activities,
other former employees have been asked
to attend, and the gift is not offered
because of the employee’s official
position.
(5) For purposes of paragraphs (e)(1)
through (4) of this section, employment
means any form of non-Federal
employment or business relationship
involving the provision of personal
services.
(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, for
the employee and an accompanying
guest, when provided, in connection
with such active participation, by a
political organization described in 26
U.S.C. 527(e). Any other employees,
such as a security officers, whose
official duties require them 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 to paragraph (f): 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) Gifts of free attendance at widely
attended gatherings—(1) Authorization.
When authorized in writing by the
agency designee pursuant to paragraph
(g)(3) of this section, an employee may
accept an unsolicited gift of free
attendance at all or appropriate parts of
a widely attended gathering. For an
employee who is subject to a leave
system, attendance at the event will 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.
(2) Widely attended gatherings. A
gathering is widely attended if it is
expected that:
(i) A large number of persons will
attend;
(ii) 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;
and
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(iii) There will be an opportunity to
exchange ideas and views among
invited persons.
(3) Written authorization by the
agency designee. The agency designee
may authorize an employee or
employees to accept a gift of free
attendance at all or appropriate parts of
a widely attended gathering only if the
agency designee issues a written
determination after finding that:
(i) The event is a widely attended
gathering, as set forth in paragraph (g)(2)
of this section;
(ii) The employee’s attendance at the
event is in the agency’s interest because
it will further agency programs or
operations;
(iii) The agency’s interest in the
employee’s attendance outweighs the
concern that the employee may be, or
may appear to be, improperly
influenced in the performance of official
duties; and
(iv) If a person other than the sponsor
of the event invites or designates the
employee as the recipient of the gift of
free attendance and bears the cost of
that gift, the event is expected to be
attended by more than 100 persons, and
the value of the gift of free attendance
does not exceed $480.
(4) Determination of agency interest.
In determining whether the agency’s
interest in the employee’s attendance
outweighs the concern that the
employee may be, or may appear to be,
improperly influenced in the
performance of official duties, the
agency designee may consider relevant
factors including:
(i) The importance of the event to the
agency;
(ii) The nature and sensitivity of any
pending matter affecting the interests of
the person who extended the invitation
and the significance of the employee’s
role in any such matter;
(iii) The purpose of the event;
(iv) The identity of other expected
participants;
(v) Whether acceptance would
reasonably create the appearance that
the donor is receiving preferential
treatment;
(vi) Whether the Government is also
providing persons with views or
interests that differ from those of the
donor with access to the Government;
and
(vii) The market value of the gift of
free attendance.
(5) Cost provided by person other than
the sponsor of the event. The cost of the
employee’s attendance will be
considered to be provided by a person
other than the sponsor of the event
when such person designates the
employee to be invited and bears the
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cost of the employee’s attendance
through a contribution or other payment
intended to facilitate the 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 guest. When others
in attendance will generally be
accompanied by a guest of their choice,
and when 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 one 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) of this section. The
authorization required by this paragraph
(g)(6) must be provided in writing.
Example 1 to paragraph (g): An
aerospace industry association that is a
prohibited source sponsors an industrywide, two-day seminar for which it
charges a fee of $800 and anticipates
attendance of approximately 400. An
Air Force contractor pays $4,000 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, rather than the association,
provided the cost of their attendance;
the contractor designated the specific
employees to receive the gift of free
attendance; and the value of the gift
exceeds $480 per employee.
Example 2 to paragraph (g): An
aerospace industry association that is a
prohibited source sponsors an industrywide, two-day seminar for which it
charges a fee of $25 and anticipates
attendance of approximately 50. An Air
Force contractor pays $125 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, rather than the association,
provided the cost of their attendance;
the contractor designated the specific
employees to receive the gift of free
attendance; and the event was not
expected to be attended by more than
100 persons.
Example 3 to paragraph (g): An
aerospace industry association that is a
prohibited source sponsors an industrywide, two-day seminar for which it
charges a fee of $800 and anticipates
attendance of approximately 400. An
Air Force contractor pays $4,000 in
order that the association might invite
any five Federal employees. An Air
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Force official to whom the sponsoring
association, rather than the contractor,
extended one of the five invitations
could attend if the employee’s
participation were determined to be in
the interest of the agency and the
employee received a written
authorization.
Example 4 to paragraph (g): 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
$480 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 and the
agency designee provides a written
authorization, the employee may accept
the invitation from the news
organization because more than 100
persons will attend and the cost of the
ticket does not exceed $480. However,
if the invitation were extended to the
employee and an accompanying guest,
the employee’s guest could not be
authorized to attend for free because the
market value of the gift of free
attendance would exceed $480.
Example 5 to paragraph (g): An
employee of the Department of Energy
(DOE) and their spouse 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 their
spouse. The DOE official believes the
dinner party will provide 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
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
spouse 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 6 to paragraph (g): An
Assistant U.S. Attorney is invited to
attend a luncheon meeting of a local bar
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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 gift
exception at paragraph (a) of this
section.
Example 7 to paragraph (g): 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 under
§ 2635.203(b)(8). If the conference is
widely attended, the employee may be
authorized to accept the sponsor’s offer
to waive the attendance fee for the
remainder of the conference if the
agency designee has made a written
determination that attendance is in the
agency’s interest.
Example 8 to paragraph (g): A
military officer has been approved to
attend a widely attended gathering,
pursuant to paragraph (g) of this section,
that will be held in the same city as the
officer’s duty station. The defense
contractor sponsoring the event has
offered to transport the officer in a
limousine to the event. The officer may
not accept the offer of transportation
because the definition of free
attendance set forth in § 2635.203(g)
excludes travel, and the market value of
the transportation would exceed $20.
(h) Social invitations. An employee
may accept food, refreshments, and
entertainment, not including travel or
lodgings, for the employee and an
accompanying guest, at a social event
attended by several persons if:
(1) The invitation is unsolicited and is
from a person who is not a prohibited
source;
(2) No fee is charged to any person in
attendance; and
(3) If either the sponsor of the event
or the person extending the invitation to
the employee is not an individual, the
agency designee has made a written
determination after finding that the
employee’s attendance would not cause
a reasonable person with knowledge of
the relevant facts to question the
employee’s integrity or impartiality,
consistent with § 2635.201(b).
Example 1 to paragraph (h): An
employee of the White House Press
Office has been invited to a social
dinner for current and former White
House Press Officers at the home of an
individual who is not a prohibited
source. The employee may attend even
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if the invitation is because of the
employee’s 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 300–3.1 may accept
unsolicited 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 Rates
of Per Diem Allowances for Travel in
Foreign Areas, Per Diem Supplement,
section 925 to the Standardized
Regulations (GC–FA), available at
www.state.gov;
(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 to paragraph (i): A number
of local business owners in a developing
country are eager for a U.S. company to
locate a manufacturing facility in their
province. An official of the U.S.
International Development Finance
Corporation may accompany the visiting
vice president of the U.S. company to a
dinner meeting hosted by the business
owners at a province restaurant when
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 their
own behalf or on behalf of any family
member, provided that such acceptance
does not violate § 2635.205(a) or (b), 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 when acceptance of the
gift is specifically authorized by a
supplemental agency regulation issued
with the concurrence of the Office of
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Government Ethics, pursuant to
§ 2635.105.
(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 which a statute specifically
authorizes an employee to accept. Gifts
which may be accepted 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. The
employee’s acceptance must be
approved by the agency in accordance
with part 410 of this title; or
(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.
(m) Gifts of informational materials.
(1) An employee may accept unsolicited
gifts of informational materials,
provided that:
(i) The aggregate market value of all
informational materials received from
any one person does not exceed $100 in
a calendar year; or
(ii) If the aggregate market value of all
informational materials from the same
person exceeds $100 in a calendar year,
an agency designee has made a written
determination after finding that
acceptance by the employee would not
be inconsistent with the standard set
forth in § 2635.201(b).
(2) Informational materials are
writings, recordings, documents,
records, or other items that:
(i) Are educational or instructive in
nature;
(ii) Are not primarily created for
entertainment, display, or decoration;
and
(iii) Contain information that relates
in whole or in part to the following
categories:
(A) The employee’s official duties or
position, profession, or field of study;
(B) A general subject matter area,
industry, or economic sector affected by
or involved in the programs or
operations of the agency; or
(C) Another topic of interest to the
agency or its mission.
Example 1 to paragraph (m): An
analyst at the Agricultural Research
Service receives an edition of an
agricultural research journal in the mail
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from a consortium of private farming
operations concerned with soil toxicity.
The journal edition has a market value
of $75. The analyst may accept the gift.
Example 2 to paragraph (m): An
inspector at the Mine Safety and Health
Administration receives a popular novel
with a market value of $25 from a mine
operator. Because the novel is primarily
for entertainment purposes, the
inspector may not accept the gift.
Example 3 to paragraph (m): An
employee at the Department of the
Army is offered an encyclopedia on
cyberwarfare from a prohibited source.
The cost of the encyclopedia is far in
excess of $100. The agency designee
determines that acceptance of the gift
would be inconsistent with the standard
set out in § 2635.201(b). The employee
may not accept the gift under paragraph
(m) of this section.
(n) Legal expense funds and pro bono
legal services. An employee who seeks
legal representation for a matter arising
in connection with the employee’s past
or current official position, the
employee’s prior position on a
campaign of a candidate for President or
Vice President, or the employee’s prior
position on a Presidential Transition
Team may accept:
(1) Payments for legal expenses paid
out of a legal expense fund that is
established and operated in accordance
with subpart J of this part; and
(2) Pro bono legal services provided in
accordance with subpart J of this part.
§ 2635.205 Limitations on use of
exceptions.
Notwithstanding any exception
provided in this subpart, other than
§ 2635.204(j), an employee may not:
(a) Accept a gift in return for being
influenced in the performance of an
official act;
(b) Use, or permit the use of, the
employee’s Government position, or any
authority associated with public office,
to solicit or coerce the offering of a gift;
(c) 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 the
employee’s public office for private
gain;
Example 1 to paragraph (c): A
purchasing agent for a Department of
Veterans Affairs medical center
routinely deals with representatives of
pharmaceutical manufacturers who
provide information about new
company products. Because of a
crowded calendar, the purchasing agent
has offered to meet with manufacturer
representatives during lunch hours
Tuesdays through Thursdays, and the
representatives routinely arrive at the
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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 gifts of $20 or less,
the practice of accepting even these
modest gifts on a recurring basis is
improper.
(d) Accept a gift in violation of any
statute; relevant statutes applicable to
all employees include, but are not
limited to:
(1) 18 U.S.C. 201(b), which prohibits
public officials from, directly or
indirectly, corruptly demanding,
seeking, receiving, accepting, or
agreeing to receive or accept anything of
value personally or for any other person
or entity in return for being influenced
in the performance of an official act;
being influenced to commit or aid in
committing, or to collude in, or allow,
any fraud, or make opportunity for the
commission of any fraud, on the United
States; or for being induced to do or
omit to do any action in violation of
their official duties. 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
(2) 18 U.S.C. 209, which prohibits
employees, other than special
Government employees, 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;
(e) Accept a gift in violation of any
Executive order; or
(f) Accept any gift when acceptance of
the gift is specifically prohibited by a
supplemental agency regulation issued
with the concurrence of the Office of
Government Ethics, pursuant to
§ 2635.105.
§ 2635.206 Proper disposition of
prohibited gifts.
(a) Unless a gift is accepted by an
agency acting under specific statutory
authority, an employee who has
received a gift that cannot be accepted
under this subpart must dispose of the
gift in accordance with the procedures
set forth in this section. The employee
must promptly complete the authorized
disposition of the gift. The obligation to
dispose of a gift that cannot be accepted
under this subpart is independent of an
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agency’s decision regarding corrective
or disciplinary action under § 2635.106.
(1) Gifts of tangible items. The
employee must promptly return any
tangible item to the donor or pay the
donor its market value; or, in the case
of a tangible item with a market value
of $100 or less, the employee may
destroy the item. 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.
Example 1 to paragraph (a)(1): A
Department of Commerce employee
received a $25 T-shirt from a prohibited
source after providing training at a
conference. Because the gift would not
be permissible under an exception to
this subpart, the employee must either
return or destroy the T-shirt or promptly
reimburse the donor $25. Destruction
may be carried out by physical
destruction or by permanently
discarding the T-shirt by placing it in
the trash.
Example 2 to paragraph (a)(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 a speech on Federal lands
policy. To comply with this section, the
employee must either promptly return
the barometer or pay the donor the
market value of the gift. Alternatively,
the National Park Service may choose to
accept the gift if permitted under
specific statutory gift acceptance
authority. The employee may not
destroy this gift, as the market value is
in excess of $100.
(2) Gifts of perishable items. When it
is not practical to return a tangible item
in accordance with paragraph (a)(1) of
this section because the item is
perishable, the employee may, at the
discretion of the employee’s supervisor
or the agency designee, give the item to
an appropriate charity, share the item
within the recipient’s office, or destroy
the item.
Example 1 to paragraph (a)(2): 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) Gifts of intangibles. The employee
must promptly reimburse the donor the
market value for any entertainment,
favor, service, benefit, or other
intangible. Subsequent reciprocation by
the employee does not constitute
reimbursement.
Example 1 to paragraph (a)(3): A
Department of Defense employee wishes
to attend a charitable event for which
they were offered a $300 ticket by a
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prohibited source. Although attendance
is not in the interest of the agency under
§ 2635.204(g), the employee may attend
if they reimburse the donor the $300
face value of the ticket.
(4) Gifts from foreign governments or
international organizations. The
employee must dispose of gifts from
foreign governments or international
organizations in accordance with 41
CFR part 102–42.
(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) Employees who, on their own
initiative, promptly comply with the
requirements of this section will not be
deemed to have improperly accepted an
unsolicited gift. Employees who
promptly consult their agency ethics
official to determine whether
acceptance of an unsolicited gift is
proper and who, upon the advice of the
ethics official, return the gift or
otherwise dispose of the gift in
accordance with this section, will be
considered to have complied with the
requirements of this section on the
employee’s own initiative.
(d) Employees are encouraged to
record any actions they have taken to
properly dispose of gifts that cannot be
accepted under this subpart, such as by
sending an electronic mail message to
the appropriate agency ethics official or
the employee’s supervisor.
Subpart C—Gifts Between Employees
§ 2635.301
Overview.
This subpart contains standards that
prohibit an employee from giving or
contributing to a gift to an official
superior, and official superiors are
prohibited from knowingly accepting
such a gift. Employees also are
prohibited from soliciting a contribution
from another employee for a gift to an
official superior. In addition, employees
are prohibited from accepting a gift from
an employee who receives less pay. The
prohibitions in this subpart apply
unless the item is excluded from the
definition of a gift (see § 2635.303(a)) or
falls within one of the exceptions set
forth in this subpart. Gifts from outside
sources are subject to the limitations set
forth in subpart B of this part.
§ 2635.302
General standards.
(a) Gifts to superiors. Except as
provided in this subpart, employees
may not:
(1) Directly or indirectly, give a gift to
or make a contribution toward a gift for
an official superior, and an official
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43707
superior may not knowingly accept such
a gift; or
(2) Solicit a contribution from another
employee for a gift to either their own
or the other employee’s official superior.
(b) Gifts from employees receiving less
pay. Except as provided in this subpart,
employees may not, directly or
indirectly, accept a gift from an
employee who receives less pay unless:
(1) There is a personal relationship
between the two employees that would
justify the gift and the employee
receiving the gift is not the official
superior of the employee giving the gift;
or
(2) The employee giving the gift is the
official superior of the employee
receiving the gift.
Example 1 to paragraph (b): A GS–13
Department of Homeland Security
(DHS) employee has been close personal
friends with a neighbor, a GS–15
employee in another government
agency, for many years. During their
friendship, the GS–13 employee has
often allowed the neighbor’s family to
use their vacation house rent-free. The
GS–15 employee recently accepted a
position at DHS, and in the new
position will be the direct supervisor of
the GS–13 employee. Although the
personal relationship between the two
employees justified the gift of rent-free
use of the vacation home before they
were both employed at DHS, for the
duration of their supervisor-subordinate
relationship the GS–13 employee may
not allow the GS–15 neighbor to use the
vacation house rent-free or give other
gifts, except as permitted by the
exceptions contained in this subpart.
(c) Limitation on use of exceptions.
Notwithstanding any exception
provided in this subpart, an official
superior may not coerce the offering of
a gift from a subordinate.
§ 2635.303
Definitions.
For purposes of this subpart, the
following definitions apply:
(a) Gift has the meaning set forth in
§ 2635.203(b). For purposes of
§ 2635.203(b) and this paragraph (a) an
employee will be deemed to have paid
market value for any benefit received as
a result of participating in a carpool or
other such mutual arrangement between
employees if the employee bears a 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 the
employee’s parent, sibling, spouse,
child, or dependent relative; or
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(2) Given by a person other than the
employee when circumstances indicate
that 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) Market value has the meaning set
forth in § 2635.203(c), subject to
paragraph (a) of this section.
(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,
employees are considered to be the
subordinates of any of their 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 when 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 must
accompany any recommendation of an
amount to be contributed for a gift to an
official superior.
Example 1 to paragraph (f): A
supervisory employee of the Agency for
International Development has just been
reassigned from Washington, DC, to a
foreign duty location. As a farewell
party, 12 subordinates have decided to
take the supervisory employee out to
lunch at a restaurant. It is understood
that the employees will pay for their
own meals and that the cost of the
supervisor’s lunch will be divided
equally among the 12. 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
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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 an 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) Unless obtained in violation of
§ 630.912 of this title, leave transferred
under subpart I of part 630 of this title
to an employee who is not an immediate
supervisor.
Example 1 to paragraph (a): Upon
returning to work following a vacation
at the beach, a claims examiner with the
Department of Veterans Affairs may give
their supervisor, and the supervisor may
accept, a bag of saltwater taffy
purchased on the boardwalk for $8.
Example 2 to paragraph (a): An
employee of the Federal Deposit
Insurance Corporation whose bank
examination responsibilities require
frequent travel may not bring their
supervisor, and the supervisor may not
accept, souvenir coffee mugs from each
of the cities the employee visits in the
course of performing examination
duties, even though each of the mugs
costs less than $5. Gifts given on this
basis are not occasional.
Example 3 to paragraph (a): The
Secretary of Labor has invited the
agency’s General Counsel to a home
dinner party. The General Counsel may
bring a $15 bottle of wine to the dinner
party and the Secretary may accept this
customary gift from the subordinate,
even though its cost is in excess of $10.
Example 4 to paragraph (a): For the
holidays, an assistant may give their
supervisor, and the supervisor may
accept, a small succulent plant
purchased for $10 or less. The assistant
may also invite the supervisor to a New
Year’s Eve party in their 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
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from a subordinate or other employee
receiving less pay:
(1) In recognition of infrequently
occurring occasions of personal
significance such as marriage, illness,
bereavement, 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 to paragraph (b): 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 to paragraph (b): A
chemist employed by the Food and Drug
Administration has been invited to the
wedding of the lab director who is an
official superior. The chemist may give
the lab director and the lab director’s
spouse, and the couple may accept, a
place setting in the couple’s selected
china pattern purchased for $70.
Example 3 to paragraph (b): Upon the
occasion of the supervisor’s retirement
from Federal service, an employee of the
Fish and Wildlife Service may give the
supervisor a book of wildlife
photographs purchased for $19. The
retiring supervisor may accept the book.
Example 4 to paragraph (b): An
economist at the Consumer Financial
Protection Bureau overhears their
supervisor talking about their upcoming
50th birthday. Although a 50th birthday
may be conventionally seen as a unique
‘‘milestone’’ worthy of additional
celebration, the employee may not give
their supervisor a $25 bottle of wine as
a present because a birthday is not an
infrequently occurring occasion.
(c) Voluntary contributions. (1) 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:
(i) On a special, infrequent occasion
as described in paragraph (b) of this
section; or
(ii) On an occasional basis, for items
such as food and refreshments to be
shared in the office among several
employees.
(2) An employee may accept such
gifts to which a subordinate or an
employee receiving less pay has
voluntarily contributed pursuant to
paragraph (c)(1) of this section.
Example 1 to paragraph (c): To mark
the occasion of retirement, members of
the immediate staff of the Under
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Secretary of the Army would like to
throw a party and provide the Under
Secretary with a gift certificate. They
may distribute an announcement of the
party and list a nominal amount for a
retirement gift as a suggested voluntary
contribution for the party.
Example 2 to paragraph (c): An
employee 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 to paragraph (c):
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 paragraph (b) of this
section. However, subordinates may
take up a collection and employees may
contribute a nominal amount to buy
refreshments to be consumed by
everyone in the immediate office to
mark either such occasion.
Example 4 to paragraph (c):
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 to paragraph (c): An
Assistant Secretary at the Department of
the Interior is getting married. The
Assistant Secretary’s assistant has
decided that a microwave oven would
be a nice gift from the staff and has
informed each of the Assistant
Secretary’s subordinates that they
should contribute $5 for the gift. The
assistant’s method of collection is
improper. Although it is permissible to
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.
§ 2635.305
Disposition of prohibited gifts.
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Section 2635.206(a)(1) through (3)
may be referenced when determining an
appropriate disposition of a gift that
may not be accepted under this subpart.
Subpart D—Conflicting Financial
Interests
§ 2635.401
Overview.
Part 2640 of this chapter interprets
and is the implementing regulation for
18 U.S.C. 208. This subpart summarizes
the relevant statutory restrictions and
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some of the regulatory guidance found
there. Specifically, this subpart contains
two provisions relating to financial
interests. One is a recusal 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 the acquisition or
holding of a particular interest is proper,
an employee is prohibited in accordance
with § 2635.402 from participating in an
official capacity in any particular matter
in which, to the employee’s knowledge,
the employee or any person whose
interests are imputed to the employee
has a financial interest, if the particular
matter will have a direct and predictable
effect on that interest.
§ 2635.402
interests.
Disqualifying financial
(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 the
employee’s knowledge, the employee or
any person whose interests are imputed
to the employee under this statute has
a financial interest, if the particular
matter will have a direct and predictable
effect on that interest.
Note 1 to paragraph (a): 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 the employee is negotiating
for or has an arrangement concerning future
employment. In all other cases when the
employee’s participation would violate 18
U.S.C. 208(a), an employee must recuse from
participating in the particular 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 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
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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 2 to paragraph (b)(1): 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 standards of
this paragraph (b)(1), 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 to paragraph (b)(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 the employee and their spouse
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 the financial
interests of both the employee and the
spouse, the employee cannot participate
on the technical evaluation team unless
this disqualification has been waived.
Example 2 to paragraph (b)(1): Upon
assignment to the technical evaluation
panel, the employee in example 1 to this
paragraph (b)(1) 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 need not recuse
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
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persons will require the recusal of 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 to paragraph (b)(2): 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 the
employee’s personal financial interests
will not be affected, the employee must
recuse 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 the employee as a
member of its board of directors.
Example 2 to paragraph (b)(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 stock or other
direct or indirect ownership interest in
the company. The spouse’s position
with the company is such that the
granting or withholding of FDA
approval will not have a direct and
predictable effect on their salary or
continued employment with the
company. Because the FDA approval
process will not affect the spouse’s
financial interests, this section does not
require the employee to recuse from
participating in that process.
Nevertheless, because the impartiality
principle is implicated as a result of the
employee’s covered relationship with
the spouse’s employer, as identified at
§ 2635.502(b)(1)(iii), the employee must
follow the procedures established in
§ 2635.502 before participating in the
FDA’s review and approval process.
(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
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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 to paragraph (b)(3): 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 to paragraph (b)(3):
Consideration by the Surface
Transportation Board 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) Recusal. 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 must recuse from
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participating in a particular matter in
which, to the employee’s knowledge,
the employee or a person whose
interests are imputed to the employee
has a financial interest, if the particular
matter will have a direct and predictable
effect on that interest. Recusal is
accomplished by not participating in the
particular matter.
(1) Notification. Employees who
become aware of the need to recuse
from participating in a particular matter
to which they have been assigned must
take whatever steps are necessary to
ensure that they do not participate in
the matter. Appropriate oral or written
notification of their recusal may be
made to an agency ethics official,
coworkers, or a supervisor to document
and help effectuate the recusal. Public
filers as defined in subpart F of this part
must comply with additional
notification requirements set forth in
§ 2635.607 regarding negotiations for or
agreement of future employment or
compensation.
(2) Documentation. Employees need
not file written recusal statements
unless they are required by part 2634 of
this chapter to file written evidence of
compliance with an ethics agreement
with the Office of Government Ethics or
a designated agency ethics official, or
are specifically directed by an agency
ethics official or the person responsible
for their assignments to file written
recusal statements. However, it is often
prudent for employees to create a record
of their actions by providing written
notice to an agency ethics official, a
supervisor, or other appropriate official.
In addition, public filers as defined in
subpart F of this part must comply with
the documentation requirements set
forth in § 2635.607 regarding
negotiations for or agreement of future
employment or compensation.
Example 1 to paragraph (c): 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 the
Assistant Secretary’s vacation property
and, thus, the Assistant Secretary must
recuse from participating in any way in
the Department’s deliberations or
decisions regarding the annexation.
Because the Assistant Secretary is
responsible for determining their own
work assignments, they may accomplish
their recusal merely by ensuring that
they do not participate in the particular
matter. Because of the level of their
position, however, the Assistant
Secretary might be wise to establish a
record that they have acted properly by
providing a written recusal statement to
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an official superior and by providing
written notification of the recusal to
subordinates to ensure that they do not
raise or discuss any issues related to the
annexation with the Assistant Secretary.
(d) Waiver of or exemptions from
recusal requirement. An employee who
would otherwise be required to recuse
under 18 U.S.C. 208(a) may be
permitted to participate in a particular
matter if the financial interest that
would otherwise require recusal is the
subject of a regulatory exemption or
individual waiver described in this
paragraph (d), 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 part 2640,
subpart B of this chapter.
(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
relevant 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 part
2640, subpart C of this chapter
(providing 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
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employee pursuant to 5 U.S.C. chapter
131; and
(ii) Certifies in writing that the need
for the individual’s services outweighs
the potential for a conflict of interest
created by the relevant financial
interest. See part 2640, subpart C, of this
chapter (providing 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 would otherwise require the
employee to recuse from participating 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
required to recuse from participating in
a particular matter may voluntarily sell
or otherwise divest the interest that
create the recusal requirement.
(2) Directed divestiture. An employee
may be required to sell or otherwise
divest the disqualifying financial
interest if the 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 part 2634, subpart J, 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. When their official
duties create a substantial likelihood
that they may be assigned to a particular
matter from which they would be
required to recuse, employees should
advise their supervisors or other persons
responsible for their assignments of that
potential so that conflicting assignments
can be avoided, consistent with the
agency’s needs.
§ 2635.403
Prohibited financial interests.
An employee may not acquire or hold
any financial interest that agency
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43711
employees are 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.
(a) Agency regulation prohibiting
certain financial interests. An agency
may, by supplemental agency
regulation, 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.
When the agency restricts or prohibits
the holding of certain financial interests
by its employees’ spouses or minor
children, any such prohibition or
restriction must 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.
Note 1 to paragraph (a): There is no statute
of Governmentwide 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.
(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 to recuse
from particular matters so central or
critical to the performance of the
employee’s official duties that their
ability to perform the duties of their
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 recused
by reason of the financial interest.
Example 1 to paragraph (b): An Air
Force employee who owns $33,778 of
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
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decisions about the Air Force’s
requirements for the fighter would
directly and predictably affect the
employee’s financial interests, the
employee could not, by virtue of 18
U.S.C. 208(a), perform these significant
duties of the position while retaining
stock in the company. The agency can
require the employee to sell the stock as
a condition of being selected for the
position rather than allowing the
employee to recuse from 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 require the employee to
recuse 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, the employee’s
spouse, or minor child, or any right as
a beneficiary of an estate that has not
been settled.
Example 1 to paragraph (c)(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 to paragraph (c)(1): 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 recusal under
§ 2635.402. Nevertheless, a loan from a
member bank is a discrete financial
interest within the meaning of
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paragraph (c) of this section 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 to paragraph (c)(2): 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). BLM may require
an employee to resign from their
uncompensated position as Vice
President of the Foundation as a
condition of a promotion to a policylevel position within the Bureau rather
than allowing the employee to rely on
recusal 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 will be given a reasonable
period of time, considering the nature of
their 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 must not exceed 90
days from the date divestiture is first
directed. However, as long as the
employee continues to hold the
financial interest, all restrictions
imposed by this subpart remain
applicable.
(e) Eligibility for special tax treatment.
Employees required to sell or otherwise
divest a financial interest may be
eligible to defer the tax consequences of
divestiture under part 2634, subpart J, of
this chapter.
Subpart E—Impartiality in Performing
Official Duties
§ 2635.501
Overview.
(a) Scope. This subpart is intended to
ensure that employees take appropriate
steps to avoid an appearance of loss of
impartiality in the performance of their
official duties in circumstances other
than those covered by the criminal
conflict of interest statute, 18 U.S.C.
208(a).
(1) The provisions of § 2635.502 are
designed to help employees identify and
take appropriate steps regarding their
participation in particular matters
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involving specific parties that may
cause a reasonable person with
knowledge of the relevant facts to
question their impartiality. Employees
and agencies should analyze such
appearance issues, and employees may
receive authorization to participate in
such matters, using the procedures in
this subpart.
(2) Under § 2635.503, an employee
who has received a covered payment
from a former employer is subject, in the
absence of a waiver pursuant to
§ 2635.503(c), to a two-year period of
recusal from participating in particular
matters in which that former employer
is or represents a party.
(3) An employee is prohibited by 18
U.S.C. 208(a) from participating
personally and substantially in an
official capacity in any particular matter
in which, to the employee’s knowledge,
the employee has a personal or imputed
financial interest, if the particular
matter will have a direct and predictable
effect on that interest. Section 208(a), its
interpreting and implementing
regulations under part 2640 of this
chapter, and the regulations at subparts
D and F of this part, apply when the
particular matter would affect the
financial interests of one of these
persons.
(b) Distinction between authorizations
under this subpart and waivers and
exemptions under the criminal conflict
of interest law. (1) When an employee’s
participation in a particular matter
involving specific parties would raise a
question in the mind of a reasonable
person about the employee’s
impartiality, but would not violate 18
U.S.C. 208(a), the agency designee may
make a determination, as explained in
§ 2635.502(d), and authorize the
employee to participate in the matter.
(2) When the employee’s participation
in a particular matter would affect any
one of the financial interests described
in 18 U.S.C. 208(a), 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 specific requirements
for regulatory exemptions and statutory
waivers are contained in part 2640,
subparts B and C, of this chapter.
(3) An applicable waiver or
exemption under part 2640 of this
chapter also authorizes an employee’s
participation in particular matters that
would otherwise be restricted by
§ 2635.502. Specifically, if an employee
meets all prerequisites for the
application of one of the regulatory
exemptions set forth in part 2640,
subpart B, of this chapter, that
constitutes a determination that the
interest of the Government in the
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employee’s participation in a particular
matter outweighs the concern that a
reasonable person may question the
integrity of agency programs and
operations. Similarly, if the employee
complies with all terms of a statutory
waiver granted pursuant to part 2640,
subpart C, of this chapter, that also
constitutes a determination that the
interest of the Government in the
employee’s participation in a particular
matter outweighs the concern that a
reasonable person may question the
integrity of agency programs and
operations. In such cases, the employee
is not required to recuse under
§ 2635.502(e) or request authorization to
participate under § 2635.502(d).
Note 1 to § 2635.501: Even if the employee
or agency designee determines that this
subpart is not applicable, the employee’s
supervisor or other individuals responsible
for assigning work to the employee may
decide not to assign certain work to the
employee for other reasons, including to
address appearance and impartiality
concerns not covered by this subpart.
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§ 2635.502 Personal and business
relationships.
(a) Consideration of appearances by
the employee. In considering whether
any of the following would cause a
reasonable person to question their
impartiality, employees may seek the
assistance of their supervisor, an agency
ethics official, or the agency designee.
(1) When 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 the employee’s
household, and the employee
determines that the circumstances
would cause a reasonable person with
knowledge of the relevant facts to
question the employee’s impartiality in
the matter, the employee should not
participate in the matter unless the
employee has received a determination
from the agency designee regarding the
appearance problem in accordance with
paragraph (c) of this section or received
an authorization from the agency
designee in accordance with paragraph
(d) of this section.
(2) When an employee knows that a
person with whom the employee has a
covered relationship is or represents a
party to a particular matter involving
specific parties, and the employee
determines that the circumstances
would cause a reasonable person with
knowledge of the relevant facts to
question their impartiality in the matter,
the employee should not participate in
the matter unless the employee has
received a determination from the
agency designee regarding the
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appearance problem in accordance with
paragraph (c) of this section or received
an authorization from the agency
designee in accordance with paragraph
(d) of this section.
(3) Employees who are concerned that
circumstances other than those
specifically described in paragraphs
(a)(1) and (2) of this section would raise
a question regarding their impartiality
should use the process described in this
section to determine whether they
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 1 to paragraph (b)(1)(i): An employee
who is seeking employment within the
meaning of § 2635.603 must 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 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.
(2) Direct and predictable effect has
the meaning set forth in
§ 2635.402(b)(1).
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43713
(3) Particular matter involving specific
parties has the meaning set forth in
§ 2640.102(l) of this chapter.
Example 1 to paragraph (b): An
employee of the General Services
Administration (GSA) 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 the lease of office space.
Under the circumstances, the GSA
employee would be correct in
concluding that a reasonable person
would be likely to question their
impartiality if they were to participate
in evaluating that developer’s or its
competitor’s lease proposal.
Example 2 to paragraph (b): 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. The employee’s
spouse 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 the
spouse’s employment with an affected
corporation would raise a question
concerning the employee’s impartiality.
Example 3 paragraph (b): An
employee of the Bureau of Land
Management (BLM) is studying
environmental problems created by the
use of hazardous substances on a
particular section of public land. BLM
has a contract with an environmental
services company to produce a water
quality study of the groundwater under
this section of land along with a
recommendation about how to
remediate any problems that are found.
The BLM employee will use the study
to help determine the extent of the
damage and to recommend a solution to
any problems that are revealed. The
employee’s parent has accepted a job
with this environmental services
company and will be signing and
submitting the report of the company’s
findings. Under these circumstances,
the employee would be correct in
concluding that a reasonable person
would be likely to question their
impartiality if they were to continue
participating in the study related to this
parcel of public land.
Example 4 to paragraph (b): An
engineer has just resigned from a
position as vice president of an
electronics company in order to accept
employment with the Federal Aviation
Administration (FAA) in a position
involving procurement responsibilities.
Although the employee did not receive
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a covered payment in connection with
the resignation and has severed all
financial ties with the firm, under the
circumstances the employee would be
correct in concluding that this former
service as an officer of the company
would be likely to cause a reasonable
person to question their impartiality if
they were to participate in the
administration of an FAA contract for
which the firm is a first-tier
subcontractor.
Example 5 to paragraph (b): An
employee of the Internal Revenue
Service (IRS) is a member of a private
organization whose purpose is to restore
a Victorian-era railroad station, and
chairs its annual fundraising drive.
Under the circumstances, the employee
would be correct in concluding that this
active membership in the organization
would be likely to cause a reasonable
person to question their impartiality if
they were to participate in an IRS
determination regarding the tax-exempt
status of the organization.
Example 6 to paragraph (b): An
employee of the Department of Defense
(DoD) has responsibility for testing
avionics produced by a large Air Force
contractor. The employee just learned
that their adult child accepted a staff
position in the human resources
division of that contractor. Although the
DoD employee has a covered
relationship with the contractor that
employs their child, the employee could
justifiably conclude that a reasonable
person would not be likely to question
their impartiality because the child’s
work is unrelated to the avionics
contract.
Example 7 to paragraph (b): An
employee of the Department of Defense
(DoD) leads the office that is testing a
new type of jet engine produced by a
multinational conglomerate’s aviation
division. The employee’s lifelong best
friend is the head of the conglomerate’s
aviation division and is responsible for
presenting and promoting the new jet
engine. Although the DoD employee
does not have a covered relationship
under paragraph (b)(1) of this section,
the employee is concerned that, under
paragraph (a)(3) of this section,
questions regarding their impartiality
could be raised. Here, the employee
could justifiably conclude that a
reasonable person would be likely to
question their impartiality if they were
to continue performing duties related to
this jet engine.
(c) Determination by agency designee.
(1) When the agency designee has
information concerning a potential
appearance problem arising from either
the financial interest of a member of the
employee’s household in a particular
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matter involving specific parties or a
particular matter involving specific
parties in which a person with whom
the employee has a covered relationship
is a party or represents a party, 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 an employee
has recused from participating in a
particular matter pursuant to paragraph
(e) of this section, agency designees may
make this determination on their own
initiative or when requested by the
employee’s supervisor or any other
person responsible for the employee’s
assignment.
(2) If the agency designee determines
that the employee’s impartiality is likely
to be questioned, the agency designee
must then determine, in accordance
with paragraph (d) of this section,
whether the employee should be
authorized to participate in the matter.
If the agency designee determines that
the employee’s participation should not
be authorized, the employee must
recuse from participating in the
particular matter in accordance with
paragraph (e) of this section.
(3) If the agency designee determines
that the employee’s impartiality is not
likely to be questioned, the agency
designee 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.
When 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 the
employee’s 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.
(1) Factors which may be taken into
consideration include:
(i) The nature of the relationship
involved;
(ii) The effect that resolution of the
matter would have upon the financial
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interests of the person involved in the
relationship;
(iii) 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;
(iv) The sensitivity of the matter;
(v) The difficulty of reassigning the
matter to another employee; and
(vi) 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.
(2) Authorization by the agency
designee will 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 recuse from participating in
the matter on the basis of an appearance
problem involving the same
circumstances that have been
considered by the agency designee.
Example 1 to paragraph (d): 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 their supervisor, the
Director of Personnel, of the
relationship upon being assigned to a
selection panel for a position for which
the 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 because 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 their general partner. See
§ 2635.402.
Example 2 paragraph (d): A new
employee of the Securities and
Exchange Commission is assigned to an
investigation of insider trading by the
brokerage house where they have
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 participate in the review of
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a routine filing by the particular
brokerage house.
Example 3 paragraph (d): An Internal
Revenue Service employee involved in
a long and complex tax audit learns that
their child has just accepted an entrylevel 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) Recusal. Unless the employee is
authorized to participate in the matter
under paragraph (d) of this section, an
employee may not participate in a
particular matter involving specific
parties when the employee 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 the
employee has a covered relationship, is
likely to raise a question in the mind of
a reasonable person about the
employee’s impartiality. Recusal is
accomplished by not participating in the
matter. When the covered relationship
is with a former employer, this recusal
requirement is for a period of one year
after the date of the employee’s
resignation from the position with the
former employer.
(1) Notification. Employees who
become aware of the need to recuse
from participating in a particular matter
involving specific parties to which they
have been assigned must take whatever
steps are necessary to ensure that they
do not participate in the matter.
Appropriate oral or written notification
of their recusal may be made to an
agency ethics official, coworkers, or a
supervisor to document and help
effectuate the recusal.
(2) Documentation. Employees need
not file written recusal statements
unless they are required by part 2634 of
this chapter to file written evidence of
compliance with an ethics agreement
with the Office of Government Ethics or
a designated agency ethics official, or
are specifically directed by an agency
ethics official or the person responsible
for their assignments to file written
recusal statements. However, it is often
prudent for employees to create a record
of their actions by providing written
notice to an agency ethics official, a
supervisor, or other appropriate official.
(f) Irrelevant considerations. An
employee’s reputation for honesty and
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integrity is not a relevant consideration
for purposes of any determination
required by this section.
Note 2 to § 2635.502: Nothing in this
section should be construed to suggest that
employees should not participate in a matter
because of their political, religious, or moral
views.
§ 2635.503 Covered payments from former
employers.
(a) Recusal requirement. Except as
provided in paragraph (c) of this
section, an employee must recuse for
two years from participating in any
particular matter involving specific
parties in which the employee’s former
employer is a party or represents a party
if the employee received a covered
payment from that person. The two-year
period of recusal begins to run on the
date that the covered payment is
received.
Example 1 to paragraph (a):
Following confirmation hearings and
one month before their scheduled
swearing in, a nominee to the position
of Assistant Secretary of a department
received a covered payment from their
employer. For one year and 11 months
after their swearing in, the Assistant
Secretary may not participate in any
particular matter to which the former
employer is a party.
Example 2 paragraph (a): An
employee received a covered payment
from their former employer, a coal mine
operator, prior to entering on duty with
the Department of the Interior. For two
years thereafter, the employee may not
participate in a determination regarding
the former employer’s obligation to
reclaim a particular mining site, because
the former employer is a party to the
matter. However, the employee may
help to draft reclamation legislation
affecting all coal mining operations
because this legislation does not involve
any parties.
Example 3 to paragraph (a): An
architect accepts a position with the
Army Corps of Engineers and resigns
from a private architecture partnership.
One month after beginning this new
position, the architect receives a
covered payment from the partnership.
The architect may not participate in any
particular matter involving specific
parties in which the former partnership
is a party until two years after receipt of
the covered payment, which will be 25
months after beginning service with the
Corps. Because the payment was not
received before the architect became an
executive branch employee, agency
ethics officials must also review the
payment to determine whether it
constituted a supplementation of salary
under 18 U.S.C. 209.
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(b) Definitions. For purposes of this
section, the following definitions apply:
(1) Covered 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 a
qualifying program.
(2)(i) A qualifying program is:
(A) A compensation, partnership, or
benefits program that is contained in
bylaws, a contract, or other written
form, and does not treat individuals
entering Government service more
favorably than other individuals; or
(B) A program that is not contained in
written form, but is demonstrated by a
history of similar payments made to
others not entering Government service.
(ii) When a program is established in
written form, any history of making
similar payments to others not entering
Government service that is contrary to
an express provision of the written plan
is not relevant to the evaluation of
whether it is a qualifying program.
Example 1 to paragraph (b)(2): The
vice president of a small corporation is
nominated to be an ambassador. In
recognition of service to the corporation,
the board of directors votes to pay the
departing vice president $50,000 upon
confirmation in addition to the regular
severance payment provided for by the
corporate bylaws. The regular severance
payment is not a covered payment
because it was made pursuant to a
qualifying program. The gratuitous
payment of $50,000 is a covered
payment, because the corporation had
not made similar payments to other
departing officers.
(3) Former employer includes any
person which the employee served as an
officer, director, trustee, general partner,
agent, attorney, consultant, contractor,
or employee. Payments from an officer,
employee, or agent of a former employer
will be considered to be payments from
the former employer.
Note 1 to paragraph (b)(3): The definition
of former employer includes former clients
for whom an employee may have served as
an agent, attorney, consultant, or contractor.
(c) Waiver of recusal. The recusal
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 must be
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in writing and may be given only by the
head of the agency or, when the
recipient of the payment is the head of
the agency, by the President or the
President’s designee. Waiver authority
may be delegated by the head of an
agency 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
covered payment.
Subpart F—Seeking Other
Employment
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§ 2635.601
Overview.
This subpart contains a recusal
requirement that applies to employees
when seeking non-Federal 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 not participate
personally and substantially in any
particular matter that, to the employee’s
knowledge, will have a direct and
predictable effect on the financial
interests of a person with whom the
employee is negotiating or has any
arrangement concerning prospective
employment. See § 2635.402 and
§ 2640.103 of this chapter. Beyond the
statutory requirement in 18 U.S.C.
208(a), this subpart also addresses
issues of lack of impartiality that require
recusal 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. In
addition, this subpart contains the
statutory notification requirements that
apply to public filers when they
negotiate for or have agreements of
future employment or compensation.
Specifically, it addresses the
requirements of section 17 of the
Representative Louise McIntosh
Slaughter Stop Trading on
Congressional Knowledge Act (STOCK
Act), Public Law 112–105, 126 Stat. 303,
that a public filer must submit a written
statement identifying the entity
involved in the negotiations or
agreement within three business days
after commencement of such
negotiations or agreement and must
submit a notification of recusal
whenever there is a conflict of interest
or an appearance of a conflict of
interest.
§ 2635.602 Applicability and related
considerations.
(a) Applicability. (1) To ensure that an
employee does not violate 18 U.S.C.
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208(a), section 17 of the STOCK Act, 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 must comply with the
applicable recusal requirements of
§§ 2635.604 and 2635.606 if particular
matters in which the employee will be
participating personally and
substantially would, to the employee’s
knowledge, directly and predictably
affect the financial interests of a
prospective employer or of a person
with whom the employee 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. In addition, a public filer
who negotiates for or has an agreement
of future employment or compensation
must comply with the requirements of
§ 2635.607.
(2) An employee who is seeking
employment with a person whose
financial interests are not, to the
employee’s knowledge, affected directly
and predictably by particular matters in
which the employee participates
personally and substantially has no
obligation to recuse under this subpart.
In addition, nothing in this subpart
requires an employee, other than a
public filer, to notify anyone that the
employee is seeking employment unless
a notification is necessary to implement
a recusal pursuant to § 2635.604(b). A
public filer who negotiates for or has an
agreement of future employment or
compensation must comply with the
notification requirements in § 2635.607.
An employee may, however, be subject
to other statutes that impose
requirements on employment contacts
or discussions, such as 41 U.S.C. 2103,
which is applicable to agency officials
involved in certain procurement
matters. Employees are encouraged to
consult with their ethics officials if they
have any questions about how this
subpart may apply to them. Ethics
officials are not obligated by this
subpart to inform supervisors that
employees are seeking employment.
Example 1 to paragraph (a): Recently,
an employee of the Department of
Education submitted a resume to the
University of Delaware for a job
opening. The employee has begun
seeking employment. However, because
the employee is not participating in any
particular matters affecting the
University of Delaware, there is no
requirement that anyone be notified that
the employee has begun seeking
employment.
Example 2 to paragraph (a): The
employee in example 1 to this
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paragraph (a) has been approached
about an employment opportunity at the
University of Maryland. Because the
University of Maryland has applied for
grants on which the employee has been
assigned to work in the past, the
employee wants to make certain that
they do not violate the ethics rules. The
employee contacts an ethics official to
discuss the matter. The employee
informs the ethics official that they are
not currently participating in any
particular matters affecting the
University of Maryland. As a result, the
ethics official advises the employee that
they will have no notification
obligations under this subpart.
However, the ethics official cautions the
employee that, if the employee is
assigned to participate in a particular
matter affecting the University of
Maryland while they are seeking
employment with the University, they
must take whatever steps are necessary
to avoid working on the grant, in
accordance with § 2635.604.
(b) Related restrictions—(1) Outside
employment while a Federal employee.
An employee who is contemplating
outside employment to be undertaken
concurrently with the employee’s
Federal employment must abide by any
limitations applicable to the employee’s
outside activities under subparts G and
H of this part, including any
requirements under supplemental
agency regulations to obtain prior
approval before engaging in outside
employment or activities and any
prohibitions under supplemental agency
regulations related to outside
employment or activities. The employee
must also comply with any applicable
recusal requirement of this subpart, as
well as any applicable recusal
requirements under subpart D or E of
this part as a result of the employee’s
outside employment activities.
(2) Post-employment restrictions. An
employee who is contemplating
employment to be undertaken following
the termination of the employee’s
Federal employment should consult an
agency ethics official to obtain advice
regarding any post-employment
restrictions that may be applicable. The
regulation implementing the
Governmentwide post-employment
statute, 18 U.S.C. 207, is contained in
part 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. 2104.
(3) Interview trips and entertainment.
When a prospective employer who is a
prohibited source as defined in
§ 2635.203(d) offers to reimburse an
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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). When
a prospective employer is a foreign
government or international
organization, the employee must also
comply with the Foreign Gifts and
Decorations Act, 5 U.S.C. 7342.
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§ 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 to paragraph (a): An
employee of the Bureau of Indian
Affairs who has announced their
intention to retire is approached by
Tribal representatives concerning a
possible consulting contract with the
tribe. The contractual relationship the
tribe wishes to negotiate is employment
for purposes of this subpart.
Example 2 to paragraph (a): 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
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.
Example 3 to paragraph (a): An
employee at the Department of Energy
volunteers without compensation to
serve dinners at a homeless shelter each
month. The employee’s uncompensated
volunteer services in this case are not
considered an employment or business
relationship for purposes of this
subpart.
(b) An employee is seeking
employment once the employee has
begun seeking employment within the
meaning of paragraph (b)(1) of this
section and until the employee is no
longer seeking employment within the
meaning of paragraph (b)(2) of this
section.
(1) An employee has begun seeking
employment if the employee has
directly or indirectly:
(i) Engaged in negotiations for
employment with any person. For
purposes of this paragraph (b)(1)(i), as
for 18 U.S.C. 208(a) and section 17 of
the STOCK Act, the term negotiations
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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 for the sole purpose
of requesting a job application; 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 paragraph (b),
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 to paragraph (b): A
paralegal at the Department of the Army
is in the third year of law school. The
paralegal’s neighbor, a partner in a large
law firm in the community, invited the
paralegal to the law firm for a visit. The
paralegal accepted the offer and met
with an associate at the firm. The
associate shared with the paralegal their
experiences looking for a legal position,
discussed what they do in their position
at the law firm, and explained why they
chose that law firm. There was no
discussion of possible employment with
the firm. The Army paralegal is not
seeking employment at this time. The
purpose of the visit was informational
only.
Example 2 to paragraph (b): An
employee of the Defense Contract Audit
Agency (DCAA) is auditing the
overhead accounts of an Army
contractor. While at the contractor’s
headquarters, the head of the
contractor’s accounting division tells
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the employee that the division is
thinking about hiring another
accountant and asks whether the
employee might be interested in leaving
DCAA. The DCAA employee asks what
kind of work would be involved. The
DCAA employee has begun seeking
employment because they made a
response other than a rejection to the
communication regarding possible
employment with the Army contractor,
although they have not yet begun
negotiating for employment.
Example 3 to paragraph (b): The
DCAA employee and the head of the
contractor’s accounting division in
example 2 to this paragraph (b) have a
meeting to discuss the duties of the
position that the accounting division
would like to fill and the DCAA
employee’s qualifications for the
position. They also discuss ways the
DCAA employee could remedy one of
the missing qualifications, and the
employee indicates a willingness to
obtain the proper qualifications. They
do not discuss salary. The employee has
engaged in negotiations regarding
possible employment with the
contractor.
Example 4 to paragraph (b): An
employee at the Department of Energy
(DOE) lists their job duties and
employment experience in a profile on
an online, business-oriented social
networking service. The employee’s
profile is not targeted at a specific
prospective employer. The employee
has not begun seeking employment
because the posting of a profile or
resume is not an unsolicited
communication with any prospective
employer.
Example 5 to paragraph (b): The DOE
employee in example 4 to this
paragraph (b) was recently notified that
a representative of a university has
viewed their profile. The employee still
has not begun seeking employment with
the university. Subsequently, a
representative of the university contacts
the employee through the online forum
to inquire whether the employee would
be interested in working for the
university, to which the employee
makes a response other than rejection.
At this point, the employee has begun
seeking employment with the university
until they reject the possibility of
employment and all discussions of
possible employment have terminated.
Example 6 to paragraph (b): The DOE
employee in examples 4 and 5 to this
paragraph (b) receives emails from
various companies in response to the
online profile. The employee does not
respond. The employee has not begun
seeking employment with the
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companies because they have not made
a response.
Example 7 to paragraph (b): An
official of a State Health Department
compliments the work of an employee
of the Centers for Medicare & Medicaid
Services (CMS), and asks the CMS
employee to reach out if they are ever
interested in leaving Federal service.
The employee explains to the State
official that they are very happy with
their job at CMS and is not interested in
another job. The employee thanks the
official for the professional compliment,
and adds that they’ll remember the
official’s interest if they ever decide to
leave the Government. The employee
has rejected the unsolicited employment
overture and has not begun seeking
employment.
Example 8 to paragraph (b): The
employee in the example 7 to this
paragraph (b) responds by stating that
they cannot discuss future employment
while they are 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,
they have begun seeking employment
with the State Health Department.
Example 9 to paragraph (b): Three
months prior to the end of the current
administration, a political appointee at
a large department receives a telephone
call from the managing partner of an
international law firm. The managing
partner asks if the official would be
interested in joining the law firm. The
official says, ‘‘I am not talking to anyone
about employment until I leave the
Government.’’ The official has rejected
the unsolicited employment overture
and has not begun seeking employment.
Example 10 to paragraph (b): A
geologist employed by the U.S.
Geological Survey sends a resume to an
oil company. 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, provided
the geologist does not receive a response
indicating an interest in employment
discussions. A letter merely
acknowledging receipt of the resume is
not an indication of interest in
employment discussions. However, if
the geologist withdraws the application
or is notified within the two-month
period that the resume has been
rejected, they will no longer be seeking
employment with the oil company as of
the date they make such withdrawal or
receive such notification.
(c) Prospective employer means any
person with whom the employee is
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seeking employment. When contacts
that constitute seeking employment are
made by or with an agent or other
intermediary, the term prospective
employer means:
(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 to paragraph (c): An
employee of the Federal Aviation
Administration (FAA) has retained an
employment search firm to help them
find another job. The search firm has
just reported to the FAA employee that
it has given their resume to and had
promising discussions with two airport
authorities, which the search firm
identifies to the employee. Even though
the employee has not personally had
employment discussions with either
airport authority, each airport authority
is their prospective employer. The
employee began seeking employment
with each airport authority upon
learning its identity and that it has been
given their resume.
Example 2 to paragraph (c): An
employee pays for an online resume
distribution service, which sends their
resume to recruiters that specialize in
their field. The online service has just
notified the employee that it sent their
resume to Software Company A and
Software Company B. Even though the
employee has not personally had
employment discussions with either
company, each software company is
their prospective employer. The
employee began seeking employment
with each company upon learning from
the online service that Software
Company A and Software Company B
had been given their resume by the
intermediary.
(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).
(e) Public filer means a person
required to file a public financial
disclosure report as set forth in
§ 2634.202 of this chapter.
§ 2635.604 Recusal while seeking
employment.
(a) Obligation to recuse. (1) Except as
provided in paragraph (a)(2) of this
section or when the employee’s
participation has been authorized in
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accordance with § 2635.605, the
employee may not participate
personally and substantially in a
particular matter that, to the employee’s
knowledge, has a direct and predictable
effect on the financial interests of a
prospective employer with whom the
employee is seeking employment within
the meaning of § 2635.603(b). Recusal is
accomplished by not participating in the
particular matter.
(2) The employee may participate in
a particular matter under paragraph
(a)(1) of this section when:
(i) The employee’s only
communication with the prospective
employer in connection with the search
for employment is the submission of an
unsolicited resume or other
employment proposal;
(ii) The prospective employer has not
responded to the employee’s unsolicited
communication with a response
indicating an interest in employment
discussions; and
(iii) The matter is not a particular
matter involving specific parties.
Example 1 to paragraph (a): A
scientist is employed by the National
Science Foundation (NSF) as a special
Government employee to serve on a
panel that reviews grant applications to
fund research relating to deterioration of
the ozone layer. The scientist is
discussing possible employment with a
university that received an NSF grant
several years ago to study the effect of
fluorocarbons but has no current grant
applications pending before NSF. The
employee is seeking employment, but
does not need to recuse because there is
no particular matter that would have a
direct and predictable effect on the
financial interests of the prospective
employer. Recusal would be required if
the university submits a new
application for the panel’s review.
Example 2 to paragraph (a): An
employee of the Food and Drug
Administration is developing a
regulation on research criteria for
approving prescription drugs. They
begin discussing possible employment
with a pharmaceutical company. The
employee may not participate
personally and substantially in the
development of the regulation because
they have begun employment
discussions with the pharmaceutical
company and the regulation is a
particular matter of general applicability
which would have a direct and
predictable effect on the financial
interests of the pharmaceutical
company.
Example 3 to paragraph (a): A special
Government employee of the Federal
Deposit Insurance Corporation (FDIC) is
assigned to advise the FDIC on rules
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applicable to all member banks. The
employee mails an unsolicited letter to
a member bank offering services as a
contract consultant. Although the
employee is seeking employment, the
employee may participate in this
particular matter of general applicability
until receipt of some response
indicating an interest in discussing the
employment proposal. A letter merely
acknowledging receipt of the proposal is
not an indication of interest in
employment discussions.
Example 4 to paragraph (a): An
employee of the Occupational Safety
and Health Administration is
conducting an inspection of one of
several textile companies to which they
sent an unsolicited resume. The
employee may not participate
personally and substantially in the
inspection because they are seeking
employment and the inspection is a
particular matter involving specific
parties that will affect the textile
company.
(b) Notification. Employees who
become aware of the need to recuse
from participating in a particular matter
to which they have been assigned must
take whatever steps are necessary to
ensure that they do not participate in
the matter. Appropriate oral or written
notification of their recusal may be
made to an agency ethics official,
coworkers, or a supervisor to document
and help effectuate the recusal. Public
filers must comply with additional
notification requirements set forth in
§ 2635.607.
Example 1 to paragraph (b): An
employee of the Department of Veterans
Affairs (VA) is participating in the audit
of a contract for laboratory support
services. Before sending a resume to a
lab which is a subcontractor under the
VA contract, the employee should
recuse from participating in the audit.
Because the employee cannot withdraw
from participating in the contract audit
without supervisor approval, the
employee should notify the supervisor
of the need to recuse for ethics reasons
so that appropriate adjustments in work
assignments can be made.
Example 2 to paragraph (b): An
employee of the Food and Drug
Administration (FDA) is contacted in
writing by a pharmaceutical company
concerning possible employment with
the company. The employee is
reviewing an application from the same
pharmaceutical company, which is
seeking FDA approval for a new drug
product. Once the employee makes a
response that is not a rejection to the
company’s communication concerning
possible employment, the employee
must recuse from further participation
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in the review of the application. When
the employee has authority to ask a
colleague to assume reviewing
responsibilities, they may accomplish
recusal by transferring the work to the
colleague. However, to ensure that the
colleague and others with whom they
had been working on the review do not
seek their advice regarding the review of
the application or otherwise involve
them in the matter, it may be necessary
for the employee to advise those
individuals of the recusal.
(c) Documentation. Employees, other
than public filers, need not file written
recusal statements unless they are
required by part 2634 of this chapter to
file written evidence of compliance with
an ethics agreement with the Office of
Government Ethics or a designated
agency ethics official, or are specifically
directed by an agency ethics official or
the person responsible for their
assignments to file written recusal
statements. However, it is often prudent
for employees to create a record of their
actions by providing written notice to
an agency ethics official, a supervisor,
or other appropriate official. Public
filers must comply with the
documentation requirements set forth in
§ 2635.607.
Example 1 to paragraph (c): The
General Counsel of a regulatory agency
will be engaging 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, they can,
in fact, accomplish recusal 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, they would benefit from filing
a written recusal statement with an
agency ethics official or the
Commissioners of the regulatory agency
and providing their subordinates with
written notification of the recusal. The
General Counsel may also be
specifically directed by an agency ethics
official or the Commissioners to file a
written recusal statement. If the General
Counsel is a public filer, they must
comply with the documentation
requirements set forth in § 2635.607.
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(d) Agency determination of
substantial conflict. When the agency
determines that the employee’s action in
seeking employment with a particular
person will require the employee to
recuse from matters so central or critical
to the performance of the employee’s
official duties that the employee’s
ability to perform the duties of the
employee’s 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 action.
§ 2635.605 Waiver or authorization
permitting participation while seeking
employment.
(a) Waiver. When, as defined in
§ 2635.603(b)(1)(i), an employee is
engaged in employment negotiations for
purposes of 18 U.S.C. 208(a), the
employee may not participate
personally and substantially in a
particular matter that, to the employee’s
knowledge, has a direct and predictable
effect on the financial interests of a
prospective employer. The employee
may participate in such matters only
when the employee has received a
written waiver issued under the
authority of 18 U.S.C. 208(b)(1) or (3).
These waivers are described in
§ 2635.402(d) and part 2640, subpart C,
of this chapter. For certain employees,
a regulatory exemption under the
authority of 18 U.S.C. 208(b)(2) may also
apply (see part 2640, subpart B, of this
chapter, including § 2640.203(g) and (i)).
Example 1 to paragraph (a): An
employee of the Department of
Agriculture is negotiating for
employment within the meaning of 18
U.S.C. 208(a) and § 2635.603(b)(1)(i)
with an orange grower. In the absence
of a written waiver issued under 18
U.S.C. 208(b)(1), the employee 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.
When an employee is seeking
employment within the meaning of
§ 2635.603(b)(1)(ii) or (iii) and is not
negotiating for employment, a
reasonable person would be likely to
question the employee’s impartiality if
the employee were to participate
personally and substantially in a
particular matter that, to the employee’s
knowledge, has a direct and predictable
effect on the financial interests of any
such prospective employer. The
employee may participate in such
matters only when the agency designee
has authorized in writing the
employee’s participation in accordance
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with the standards set forth in
§ 2635.502(d).
Example 1 to paragraph (b): Within
the past month, an employee of the
Department of Education mailed a
resume to a university. The employee is
thus seeking employment with the
university within the meaning of
§ 2635.603(b)(1)(ii). In the absence of
specific authorization by the agency
designee in accordance with
§ 2635.502(d), the employee may not
participate personally and substantially
in an assignment to review a grant
application submitted by the university.
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§ 2635.606 Recusal based on an
arrangement concerning prospective
employment or otherwise after
negotiations.
(a) Employment or arrangement
concerning employment. An employee
may not participate personally and
substantially in a particular matter that,
to the employee’s knowledge, has a
direct and predictable effect on the
financial interests of the person by
whom the employee is employed or
with whom the employee 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 (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) and part 2640, subparts B
and C, of this chapter.
Example 1 to paragraph (a): A
military officer has accepted a job with
a defense contractor that will begin six
months after retirement from military
service. During the remainder of
Government employment, the officer
may not participate personally and
substantially in the administration of a
contract with that particular defense
contractor unless a written waiver is
issued under the authority of 18 U.S.C.
208(b)(1).
Example 2 to paragraph (a): An
accountant has just been offered a job
with the Office of the Comptroller of the
Currency (OCC) which involves a twoyear limited appointment. The
accountant’s private employer, a large
corporation, believes the job will
enhance their skills and has agreed to
give them a two-year unpaid leave of
absence at the end of which they have
agreed to return to work for the
corporation. During the two-year period
that the accountant is to be an OCC
employee, they will have an
arrangement concerning future
employment with the corporation that
will require recusal from participating
personally and substantially in any
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particular matter that, to their
knowledge, 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 paragraph (a) of this section
who has sought but is no longer seeking
employment nevertheless will be
subject to a period of recusal upon the
conclusion of employment negotiations.
Any such determination will 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 to paragraph (b): 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 the
partnership position the employee
sought. Even though the employee is no
longer seeking employment with the
firm, they may continue to be recused
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, they could
act impartially in the matter outweighs
the Government’s interest in their
participation.
§ 2635.607 Notification requirements for
public financial disclosure report filers
regarding negotiations for or agreement of
future employment or compensation.
(a) Notification regarding negotiations
for or agreement of future employment
or compensation. A public filer who is
negotiating for or has an agreement of
future employment or compensation
with a non-Federal entity must file a
statement notifying an agency ethics
official of such negotiation or agreement
within three business days after
commencement of the negotiation or
agreement. This notification statement
must be in writing, must be signed by
the public filer, and must include the
name of the non-Federal entity involved
in such negotiation or agreement and
the date on which the negotiation or
agreement commenced. When a public
filer has previously complied with the
notification requirement in this section
regarding the commencement of
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negotiations, the filer need not file a
separate notification statement when an
agreement of future employment or
compensation is reached with the
previously identified non-Federal
entity. There is also no requirement to
file another notification when
negotiations have been unsuccessful.
However, employees may want to do so
to facilitate the resumption of their
duties.
Example 1 to paragraph (a): An
employee of the Merit Systems
Protection Board who is a public filer
was in private practice prior to
Government service. The employee
receives a telephone call from a partner
in a law firm who inquires as to whether
they would be interested in returning to
private practice. During this initial
telephone call with the law firm partner,
the employee indicates that they are
interested in resuming private practice.
The partner and employee discuss
generally the types of issues that would
need to be agreed upon if the employee
were to consider a possible offer to serve
as ‘‘of counsel’’ with the firm, such as
salary, benefits, and type of work the
employee would perform. The employee
has begun negotiating for future
employment with the law firm. Within
three business days after this initial
telephone call, the employee must file
written notification of the negotiations
with the agency ethics official.
Example 2 to paragraph (a): The
employee in the example 1 to this
paragraph (a) also negotiates a possible
contract with a publisher to begin
writing a textbook after leaving
Government service. Within three
business days after commencing
negotiations, the employee must file
written notification with the agency
ethics official documenting this
engagement in negotiations for future
compensation with the book publisher.
(b) Notification of recusal. A public
filer who files a notification statement
pursuant to paragraph (a) of this section
must file with an agency ethics official
a notification of recusal whenever there
is a conflict of interest or appearance of
a conflict of interest with the nonFederal entity identified in the
notification statement. The notification
statement and the recusal statement may
be contained in a single document or in
separate documents.
(c) Advance filing of notification and
recusal statements. When a public filer
is seeking employment within the
meaning of § 2635.603(b)(1)(ii) or (iii) or
is considering seeking employment, the
public filer may elect to file the
notification statement pursuant to
paragraph (a) of this section before
negotiations have commenced and
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before an agreement of future
employment or compensation is
reached. A public filer may also elect to
file the recusal statement pursuant to
paragraph (b) of this section before the
public filer has a conflict of interest or
appearance of a conflict of interest with
the non-Federal entity identified in the
notification statement. The public filer
need not file the document again upon
commencing negotiations or reaching an
agreement of future employment or
compensation. The advance filing of any
such document is not construed as a
statement that negotiations have or have
not commenced or that a conflict of
interest does or does not exist. Although
the Office of Government Ethics
encourages advance filing when a
public filer anticipates a realistic
possibility of negotiations or an
agreement, the failure to make an
advance filing does not violate this
subpart or the principles of ethical
conduct contained in § 2635.101(b).
Example 1 to paragraph (c): An
employee of the Federal Labor Relations
Authority who is a public filer began
negotiating for future employment with
a law firm. At the time the employee
began negotiating for future
employment with the law firm, they
were not participating personally and
substantially in a particular matter that,
to their knowledge, had a direct and
predictable effect on the financial
interest of the law firm. Although the
employee was not required to file a
recusal statement because they did not
have a conflict of interest or appearance
of a conflict of interest with the law firm
identified in the notification statement,
the Office of Government Ethics
encourages the employee to submit a
notification of recusal at the same time
that they file the notification statement
regarding the negotiations for future
employment in order to ensure that the
requirement of paragraph (b) of this
section is satisfied if a conflict of
interest or an appearance of a conflict of
interest later arises. The agency ethics
official should counsel the employee on
applicable requirements but is under no
obligation to notify the employee’s
supervisor that the employee is
negotiating for employment.
Example 2 to paragraph (c): An
employee of the General Services
Administration is contacted by a
prospective employer regarding
scheduling an interview for the
following week to begin discussing the
possibility of future employment. The
employee discusses the matter with the
ethics official and chooses to file a
notification and recusal statement prior
to the interview. The notification and
recusal statement contain the identity of
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the prospective employer and an
estimated date of when the interview
will occur. The employee has complied
with the notification requirement of
section 17 of the STOCK Act.
(d) Definition of agreement of future
employment or compensation.
Agreement of future employment or
compensation for the purposes of this
section means any arrangement
concerning employment that will
commence after the termination of
Government service. The term also
means any arrangement to compensate
in exchange for services that will
commence after the termination of
Government service. The term includes,
among other things, an arrangement to
compensate for teaching, speaking, or
writing that will commence after the
termination of Government service.
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 employees have
access because of their 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
gain.
Use of public office for private
An employee may not use their public
office for their own private gain; for the
endorsement of any product, service, or
enterprise (except as otherwise
permitted by this part or other
applicable law or regulation); 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.
Employees may not use or permit the
use of their Government position or
title, or any authority associated with
their 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 the employee or to friends,
relatives, or persons with whom the
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employee is affiliated in a
nongovernmental capacity.
Example 1 to paragraph (a): 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 they worked at the
SEC and were responsible for reviewing
the company’s filings. The employee
violated the prohibition against use of
public office for private gain by
invoking their official authority in an
attempt to influence action to benefit
the relative.
Example 2 to paragraph (a): An
employee of the Department of
Commerce was asked by a friend to
determine why another office within the
Department of Commerce had not yet
granted an export license to the friend’s
firm. 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 their public office in an
attempt to benefit the friend and, in
acting as the 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, employees may not use or
permit the use of their Government
position or title, or any authority
associated with their public office, in a
manner that could reasonably be
construed to imply that their agency or
the Government sanctions or endorses
their personal activities or those of
another. When teaching, speaking, or
writing in a personal capacity,
employees may refer to their official
title or position only as permitted by
§ 2635.807(b). When providing a verbal
or written recommendation, employees
may only use their official title in
response to a request for a
recommendation or character reference
based upon personal knowledge of the
ability or character of an individual
with whom they have dealt in the
course of Federal employment or whom
they are recommending for Federal
employment.
Example 1 to paragraph (b): An
employee of the Department of the
Treasury who is asked to provide a
letter of recommendation for a former
subordinate or for an individual who
worked for their team under a
Government contract may provide the
recommendation using official
stationery and may sign the letter using
their official title. If, however, the
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request is for the recommendation of a
personal friend with whom they have
not dealt in the Government, the
employee should not use official
stationery or sign the letter of
recommendation using their official
title, unless the recommendation is for
Federal employment. In writing the
letter of recommendation for the
personal friend, it may be appropriate
for the employee to make a reference to
their official position in the body of the
letter.
Example 2 to paragraph (b): An
employee of the Environmental
Protection Agency (EPA) has a personal
social media account. Under
‘‘occupation,’’ the employee writes
‘‘Analyst at the Environmental
Protection Agency.’’ On the same social
media account, the EPA employee
occasionally discusses topics related to
the environment, such as recycling,
biking to work, and organic gardening.
Even though the employee is discussing
matters related to the EPA’s mission and
lists their position in the area
designated for occupation, these facts
alone would not reasonably be
construed as implying governmental
sanction or endorsement. The same
employee may not, for example,
redesign the social media account so
that it prominently features the official
EPA seal and make statements that
either assert or imply that their opinions
on environmental topics are sanctioned
or endorsed by the Government.
(c) Endorsements. Employees may not
use or permit the use of their
Government position or title or any
authority associated with their 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 to paragraph (c): A
Commissioner of the Consumer Product
Safety Commission (CPSC) may not
appear in a television commercial and
endorse an electrical appliance
produced by a former employer, stating
that it has been found by the CPSC to
be safe for residential use.
Example 2 to paragraph (c): 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
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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 official duty activities, the
Foreign Commercial Service officer may
meet with Spanish officials and explain
the advantages of procurement from the
United States company.
Example 3 to paragraph (c): 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 the Administrator 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 to paragraph (c): An
Assistant Attorney General may not use
their official title or refer to their
Government position in a book jacket
endorsement of a novel about organized
crime written by an author whose work
they admire. Nor may they 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 their official
duties does not give rise to an
appearance of use of public office for
private gain or of giving preferential
treatment, employees whose duties
would affect the financial interests of a
friend, relative, or person with whom
they are affiliated in a nongovernmental
capacity must 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 ‘‘Judge,’’ 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. Employees may not
engage in financial transactions using
nonpublic information, nor allow the
improper use of nonpublic information
to further their own private interests or
those 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
the employee knows or reasonably
should know has not been made
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available to the general public. It
includes information that the employee
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 to paragraph (b): A Navy
employee learns in the course of official
duties that a small corporation will be
awarded a Navy contract for electrical
test equipment. The employee may not
take any action to purchase stock in the
corporation or its suppliers, and 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 to paragraph (b): 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. 2102.
Example 3 to paragraph (b): 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. The employee 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. 2102.
Example 4 to paragraph (b): 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.
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Example 5 to paragraph (b): 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.
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§ 2635.704
Use of Government property.
(a) Standard. Employees have a duty
to protect and conserve Government
property and may 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 but is not limited to office
supplies, telephone and other
telecommunications equipment and
services, Government mail, computers
and other electronic devices, printing
and reproduction facilities, Government
records, Government email and social
media accounts, 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. Authorized purposes include
but are not limited to those uses of
Government property that are in
accordance with an agency’s limited or
de minimis personal use policy.
Example 1 to paragraph (b): As
permitted under their agency’s de
minimis personal use policy, an
employee may send an email from a
Government email account to a former
college roommate to schedule lunch for
the following day.
Example 2 to paragraph (b): An
employee of the Commodity Futures
Trading Commission whose office
computer provides access to a
commercial service providing
information for investors may not use
that service for personal investment
research.
Example 3 to paragraph (b): 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 their office computer and agency
photocopy equipment to prepare a
paper to be presented at a conference
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sponsored by a professional association
of which they are 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, employees must use
official time in an honest effort to
perform official duties. Employees not
under a leave system, including
Presidential appointees exempted under
5 U.S.C. 6301(2), have an obligation to
expend an honest effort and a
reasonable proportion of their time in
the performance of official duties.
Example 1 to paragraph (a): A
disability claims examiner of the Social
Security Administration may use
official time to engage in certain
representational activities on behalf of
the employee union of which they are
a member. Under 5 U.S.C. 7131, this is
a proper use of official time even though
it does not involve performance of
assigned duties as a disability claims
examiner.
Example 2 to paragraph (a): A
pharmacist employed by the
Department of Veterans Affairs has been
granted an excused absence to
participate as a speaker in a conference
on drug abuse sponsored by the
professional association to which they
belong. Even if an excused absence
granted by an agency in accordance
with Governmentwide personnel
guidance would allow employees to be
absent from their official duties without
charge to their annual leave accounts,
such absence would not be on official
time.
(b) Use of a subordinate’s time.
Employees may 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 to paragraph (b): A
supervisory employee of the Department
of Housing and Urban Development
may not ask an assistant to run personal
errands for the employee 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).
However, when an arrangement is
entirely voluntary and appropriate
compensation is paid, a subordinate
may provide services to the superior
during nonduty hours. For example, a
subordinate who enjoys calligraphy may
prepare invitations for an upcoming
party that the superior is organizing
with friends and family at home on
personal time for appropriate
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compensation. When 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 the provisions in this subpart
apply to uncompensated as well as to
compensated outside activities.
(b) Employees who wish 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 paid and
unpaid teaching, speaking, and writing;
and
(6) 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 must 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 the employee
has employment or business relations or
is otherwise affiliated in a
nongovernmental capacity.
Example 1 to paragraph (c): An
employee of the Occupational Safety
and Health Administration (OSHA) 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
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employee should not enter into the
consulting arrangement even though
they are not currently working on OSHA
standards affecting this industry and the
consulting contract can be expected to
be completed before they again work 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
their official position to obtain the
compensated outside business
opportunity and it would create the
further appearance of using public office
for the private gain of the manufacturer.
(d) In addition to the provisions of
this subpart 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 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 individual from seeking, accepting,
or agreeing to receive or accept
compensation for any representational
services, rendered personally or by
another at a time when the individual
is an employee, 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
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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 Ethics in Government Act of
1978 limitations on outside
employment, 5 U.S.C. chapter 131,
subchapter III, which restrict the
amount of outside earned income that a
covered noncareer employee may
receive, prohibit a covered noncareer
employee from receiving compensation
for specified activities, and provide that
a covered noncareer employee may not
allow their name to be used by any firm
or other entity that 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.
(a) Employees may not engage in
outside employment or any other
outside activity that conflicts with their
official duties. An activity conflicts with
an employee’s official duties:
(1) If it is prohibited by statute or by
an agency supplemental regulation; or
(2) If, under the standards set forth in
§§ 2635.402 and 2635.502, it would
require the employee’s recusal from
matters so central or critical to the
performance of their official duties that
the employee’s ability to perform the
duties of the Government position
would be materially impaired.
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(b) 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 recuse from participating in
certain particular matters under either
subpart D or E of this part.
Example 1 to paragraph (b): A
biochemist, who conducts research at
the Environmental Protection Agency
(EPA), has an outside consulting
business providing technical guidance
on the handling of hazardous materials.
The biochemist would like to apply for
a different EPA position, for which the
principal duty would be writing
regulations on the handling of
hazardous materials. If the biochemist
gets the position, the work would have
a direct and predictable effect on the
outside consulting business. Because
the biochemist would be required to
recuse from duties critical to the
performance of official duties on a basis
so frequent as to materially impair their
ability to perform the duties of the
position, they could not continue to
operate the outside consulting business.
Example 2 to paragraph (b): An
employee of the Internal Revenue
Service (IRS) reviews applications for
recognition of tax-exempt status. Several
years ago, the employee became
involved with a neighborhood group
that transports stray animals to nearby
adoption centers. As its activities
expanded, the group created a formal
organization, and submitted an
application for recognition of taxexempt status by the IRS. Under the
circumstances, the employee should be
recused from participating in any IRS
determination regarding the tax-exempt
status of this organization. However, the
employee’s involvement with the
organization would not be prohibited by
this section, because the outside activity
would have a limited effect on official
duties and would not require recusal
from matters so central or critical to the
performance of official duties that the
ability to perform the duties of the
position would be materially impaired.
§ 2635.803 Prior approval for outside
employment and activities.
When required by agency
supplemental regulation, employees
must obtain prior approval before
engaging in outside employment or
activities. When it is determined to be
necessary or desirable for the purpose of
administering its ethics program, an
agency may, by supplemental
regulation, require employees or any
category of employees to obtain prior
approval before engaging in specific
types of outside activities, including
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§ 2635.805
outside employment. Whether or not
prior approval is required by agency
supplemental regulations, employees
have a continuing responsibility to
ensure that their outside activities do
not conflict with their official duties.
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§ 2635.804 Outside earned income
limitations applicable to certain Presidential
appointees.
This section implements the outside
earned income limitations applicable to
certain Presidential appointees. The
outside earned income limitations
applicable to covered noncareer
employees, as defined in § 2636.303(a)
of this chapter, are implemented in
§§ 2636.301 through 2636.304 of this
chapter.
(a) Presidential appointees to full-time
noncareer positions. A Presidential
appointee to a full-time noncareer
position may not receive any outside
earned income for outside employment,
or for any other outside activity,
performed during that Presidential
appointment.
(b) 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)
does not apply.
(2) Presidential appointee to a fulltime 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 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 to paragraph (b)(2): 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 to paragraph (b)(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.
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Service as an expert witness.
(a) Restriction. Employees may 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, the
restriction in this paragraph (a) applies
to special Government employees only
if they have 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, special Government
employees described in paragraph (b)(2)
of this section may 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 their 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 applies to special
Government employees who:
(i) Are appointed by the President;
(ii) Serve on a commission established
by statute; or
(iii) Have served or are 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
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43725
to the employee’s official duties within
the meaning of § 2635.807(a)(2)(i).
(d) Fact witness. Nothing in this
section prohibits an employee from
serving as a fact witness when
subpoenaed by an appropriate authority.
§ 2635.806
[Reserved]
§ 2635.807
writing.
Teaching, speaking, and
(a) Compensation for teaching,
speaking, or writing. Except for teaching
certain courses as permitted by
paragraph (a)(3) of this section, an
employee, including a special
Government employee, may not receive
compensation from any source other
than the Government for teaching,
speaking, or writing that occurs while
the person is a Government employee
and 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 (a):
(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 their official position rather
than their 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:
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(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 the employee’s 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.
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Note 1 to paragraph (a)(2)(i): Paragraph
(a)(2)(i)(E) of this section 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 the employee’s
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 to paragraph (a)(2)(i): 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 a personal collection as well
as studying the field generally. The
Director 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 the Director’s official
duties, it is permissible for the Director
to accept compensation for the lecture
series. The Director could not, however,
accept a similar invitation from a
commodities broker.
Example 2 to paragraph (a)(2)(i): A
scientist at the National Institutes of
Health (NIH), 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 conducted in this position at
NIH, which thus relates to the scientist’s
official duties. However, the scientist
could receive compensation for writing
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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 to paragraph (a)(2)(i): On
personal time, a National Highway
Traffic Safety Administration (NHTSA)
employee prepared a consumer’s guide
to purchasing a safe automobile that
focuses on automobile crash worthiness
statistics gathered and made public by
NHTSA. The employee 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 to paragraph (a)(2)(i): An
employee of the Securities and
Exchange Commission (SEC) may not
receive compensation for a book which
focuses specifically on the regulation of
the securities industry in the United
States, because 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 to paragraph (a)(2)(i): 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 the 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
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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 to paragraph (a)(2)(i): A
program analyst employed at the
Environmental Protection Agency (EPA)
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 to paragraph (a)(2)(i): 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 service
under this 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, the attorney 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 to paragraph (a)(2)(i): 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
(NSF) to assist in developing a program
of grants by the NSF 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 the
appointment as a special Government
employee, the biologist may not receive
compensation for an article about the
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NSF program being developed. Only the
latter would concern a matter to which
the special Government employee is
assigned.
Example 9 to paragraph (a)(2)(i): 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 the expert will serve
fewer than 60 days under that
appointment. Nevertheless, during this
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)
will be considered a separate agency.
(iii) Compensation, for purposes of
this paragraph (a):
(A) Includes any form of
consideration, remuneration, or income,
including royalties, given for or in
connection with the employee’s
teaching, speaking, or writing.
(B) Compensation does not include:
(1) Items offered by any source that
could be accepted from a prohibited
source under subpart B of this part;
(2) 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;
(3) 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
(4) Travel expenses for certain
individuals as described in paragraph
(a)(2)(iii)(C) of this section.
(C) For employees other than covered
noncareer employees as defined in
§ 2636.303(a) of this chapter,
compensation does not include travel
expenses, consisting of transportation,
lodging or meals, incurred in
connection with the teaching, speaking,
or writing activity. For covered
noncareer employees as defined in
§ 2636.303(a) of this chapter,
compensation does include
transportation, lodging, and meals,
whether provided in kind, by purchase
of a ticket, by payment in advance, or
by reimbursement after the expense has
been incurred, unless such travel
expenses are accepted under specific
statutory authority, such as 31 U.S.C.
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1353, 5 U.S.C. 4111, or 5 U.S.C. 7342,
or an agency gift acceptance statute.
Note 2 to paragraph (a)(2)(iii)(C):
Independent of paragraph (a) of this section,
other authorities, including but not limited to
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 a
private capacity, a speed-reading
technique for which popular demand is
growing. The employee 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 travel expenses. The
employee may accept the travel
reimbursements, but not the speaker’s
fee. The speaking activity is related to
official duties under paragraph
(a)(2)(i)(C) of this section 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 their recent
appointment to a Cabinet-level position,
a Government official is invited by the
Chief Executive Officer of a major
international corporation to attend, in
their personal capacity, 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
paragraph (a)(2)(i)(B) of this section and,
because the official is a covered
noncareer employee as defined in
§ 2636.303(a) of this chapter, the travel
expenses are prohibited compensation.
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 a
private capacity, at a conference in New
York. The attorney has no public
speaking responsibilities on behalf of
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43727
the FTC apart from the judicial and
administrative proceedings to which
they are assigned. The sponsors of the
conference offer to reimburse the
attorney for expenses incurred in
connection with the travel to New York.
They also offer the attorney, as
compensation for 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 official duties
under paragraphs (a)(2)(i)(E)(1) and (2)
of this section, but because the attorney
is not a covered noncareer employee as
defined in § 2636.303(a) of this chapter,
the expenses associated with the travel
to New York are not a prohibited form
of compensation. 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, the travel
expenses to New York as well as the
travel expenses to San Francisco would
be barred.
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 the
employee’s 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.
Because the employee is speaking
officially and the expense payments are
accepted under 31 U.S.C. 1353, they are
not prohibited compensation under
paragraph (a)(2)(iii) of this section. The
same result would obtain with respect
to expense payments made by nonGovernment sources properly
authorized under an agency gift
acceptance statute, the Government
Employees Training Act, 5 U.S.C. 4111,
or the Foreign Gifts and Decorations
Act, 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
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compensation and to direct its
subsequent use. Receipt of
compensation is attributable to the time
that the teaching, speaking, or writing
occurs when there is actual or
constructive receipt of the
compensation by the employee. If the
employee has an enforceable agreement
to receive compensation for writing
undertaken during Government service,
then compensation is received while the
individual is an employee even though
actual payment may be deferred until
after Government service. 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 the
employee’s parent, sibling, spouse,
child, or dependent relative.
(v) Particular matter involving specific
parties has the meaning set forth in
§ 2640.102(l) 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 their official
duties under paragraph (a)(2)(i)(B) or (E)
of this section, employees 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. 1001 or from a
similar foreign institution of higher
education;
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Note 3 to paragraph (a)(3)(i)(A): When the
course is offered as part of the regularly
established curriculum of a foreign
institution of higher education, the agency
may need to make a separate determination
as to whether the institution of higher
education is a foreign government for
purposes of the Emoluments Clause of the
U.S. Constitution (U.S. Const., art. I, sec. 9,
cl. 8), which forbids employees from
accepting emoluments, presents, offices, or
titles from foreign governments, without the
consent of Congress.
(B) An elementary school as defined
at 20 U.S.C. 7801(19); or
(C) A secondary school as defined at
20 U.S.C. 7801(45); 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 to paragraph (a)(3): An
employee of the Cost Accounting
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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 to paragraph (a)(3): An
attorney employed by the Equal
Employment Opportunity Commission
(EEOC) may accept compensation for
teaching a course at a state college on
the subject of EEOC enforcement 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 a 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 to paragraph (a)(3): An
employee of the National Endowment
for the Humanities (NEH) 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 official duty activities, 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 official duties or
that involves the use of nonpublic
information.
(b) Reference to official position.
Employees who are engaged in teaching,
speaking, or writing as outside
employment or as an outside activity
may not use or permit the use of their
official title or position to identify
themselves in connection with a
teaching, speaking, or writing activity,
or to promote any book, seminar,
course, program, or similar undertaking,
except that:
(1) Employees may include or permit
the inclusion of their title or position as
one of several biographical details when
such information is given to identify
them in connection with their teaching,
speaking, or writing, provided that their
title or position is given no more
prominence than other significant
biographical details;
(2) Employees may use or permit the
use of their title or position in
connection with an article published in
a scientific or professional journal,
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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) Employees who are ordinarily
addressed using a general term of
address, such as ‘‘The Honorable’’ or
‘‘Judge,’’ 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 their teaching,
speaking, or writing.
Note 4 to paragraph (b): Reference to
official title and position other than in a
teaching, speaking, or writing capacity may
be made only as permitted by § 2635.702(b).
In addition, 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 to paragraph (b): A
meteorologist employed with the
National Oceanic and Atmospheric
Administration (NOAA) 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 the
meteorologist’s education and previous
employment in course materials setting
forth biographical data on all teachers
involved in the graduate program.
However, the meteorologist’s 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 their name. In contrast, the
meteorologist’s title may be used in this
manner when NOAA authorized
speaking in an official capacity.
Example 2 to paragraph (b): A doctor
just employed by the Centers for Disease
Control (CDC) has written a paper based
on 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 to paragraph (b): An
employee of the Federal Deposit
Insurance Corporation (FDIC) has been
asked to give a speech in a private
capacity, without compensation, to the
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annual meeting of a committee of the
American Bankers Association on the
need for banking reform. The employee
may be described in an introduction at
the meeting as an employee of the FDIC
provided that other pertinent
biographical details are mentioned as
well.
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§ 2635.808
Fundraising activities.
Employees 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.
This section addresses fundraising as
defined in paragraph (a)(1) of this
section, and does not cover all scenarios
in which an employee might seek to
collect donations from a fellow
employee. For example, employees of
an office might decide to collect money
for a coworker whose family was
displaced by a flood; the permissibility
of such collections should be analyzed
under subpart C of this part, not 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 when 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, the employee’s 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.
Example 1 to paragraph (a)(2): The
Secretary of Transportation has been
asked to serve as master of ceremonies
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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 an official
capacity on a subject matter that relates
to the employee’s 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 to paragraph (a)(3): 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. The Secretary
devotes a major portion of the 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 the
Secretary is authorized to speak on
Administration policy, these remarks at
the banquet are an official speech.
However, the Secretary would be
engaged in fundraising if the official
speech concluded with a request for
donations to the nonprofit organization.
Example 2 to paragraph (a)(3): 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
children with learning disabilities. 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 the
agency has determined that the dinner
is an appropriate forum for the
particular speech. The Secretary may
speak at the dinner and, under
§ 2635.203(b)(8), may partake of the
meal provided at the dinner.
(4) Personally solicit means to request
or otherwise encourage donations or
other support either through person-toperson 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
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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 to paragraph (a)(4): An
employee of the Department of Energy
(DOE) 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 the employee’s DOE position
and title, are mailed to members of the
local community, even though some
individuals who are employed by DOE
contractors may receive the letter.
(b) Fundraising in an official capacity.
Employees may participate in
fundraising in an official capacity if, in
accordance with a statute, Executive
order, regulation, or otherwise as
determined by the agency, they are
authorized to engage in the fundraising
activity as part of their official duties.
When authorized to participate in an
official capacity, employees may use
their official title, position, and
authority.
Example 1 to paragraph (b): Because
participation in an 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 a personal capacity
provided that the employee 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), unless the circumstances
make clear that the solicitation is
motivated by a family relationship or
personal friendship that would justify
the solicitation; 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 the employee’s
official duties, unless the circumstances
make clear that the solicitation is
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motivated by a family relationship or
personal friendship that would justify
the solicitation;
(2) Use or permit the use of the
employee’s official title, position, or any
authority associated with the
employee’s 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.
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Note 1 to paragraph (c): 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 to paragraph (c): 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 to paragraph (c): An
employee of the Merit Systems
Protection Board may not use the
agency’s photocopier to reproduce
fundraising literature for their child’s
private school. Such use of the
photocopier would violate the standards
at § 2635.704 regarding use of
Government property.
Example 3 to paragraph (c): An
Assistant Attorney General may not sign
a letter soliciting funds for a homeless
shelter as ‘‘P.J. Doe, Assistant Attorney
General.’’ The Assistant Attorney
General also may not sign a letter with
just a ‘‘P.J. Doe’’ signature soliciting
funds from a prohibited source, unless
the letter is one of many identical, massproduced letters addressed to a large
group when the solicitation is not
known to the Assistant Attorney
General to be targeted at persons who
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17:49 May 16, 2024
Jkt 262001
are either prohibited sources or
subordinates.
Example 4 to paragraph (c): An
employee of the Department of
Commerce is running a half marathon to
raise money for a nonprofit organization
engaged in cancer research, and is
looking for people to sponsor the race.
The employee plans to target specific
individuals they think will want to
contribute, including a close friend with
whom they regularly meet for dinner.
Notwithstanding the fact that the friend
is employed by a corporation that is a
prohibited source, the employee may
ask the friend to sponsor the race
because the solicitation is motivated by
a personal friendship that would justify
the solicitation.
Example 5 to paragraph (c): The
employee in example 4 to this
paragraph (c) knows that a subordinate
employee has expressed an interest in
this cause and sends the subordinate a
direct link to the online sponsorship
page. The employee has ‘‘personally
solicited’’ a subordinate in violation of
paragraph (c)(1) of this section.
Example 6 to paragraph (c): The
employee in example 4 to this
paragraph (c) decides that rather than
targeting specific individuals for
contributions, it would be preferable to
post a general request and a link to
information about the race on their
personal social media account. Because
this request may be viewed by any
person with whom the employee is
connected through the social media
network and does not reference or target
any specific individual, it is not
considered a personal solicitation of any
subordinate or prohibited source that is
connected to the employee.
§ 2635.809
Just financial obligations.
Employees must 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.
PO 00000
Frm 00046
Fmt 4701
Sfmt 4700
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 and the regulation at part
2641 of this chapter).
(f) The prohibition on certain former
agency officials’ acceptance of
compensation from a contractor (41
U.S.C. 2104).
(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
and the regulation at part 2640 of this
chapter).
(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. 2103).
(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
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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).
(n) [Reserved]
(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).
VerDate Sep<11>2014
17:49 May 16, 2024
Jkt 262001
(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. 2102).
(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).
PO 00000
Frm 00047
Fmt 4701
Sfmt 9990
43731
(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
their employment (18 U.S.C. 654).
[FR Doc. 2024–10339 Filed 5–16–24; 8:45 am]
BILLING CODE 6345–03–P
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Agencies
[Federal Register Volume 89, Number 97 (Friday, May 17, 2024)]
[Rules and Regulations]
[Pages 43686-43731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10339]
[[Page 43685]]
Vol. 89
Friday,
No. 97
May 17, 2024
Part IV
Office of Government Ethics
-----------------------------------------------------------------------
5 CFR Part 2635
Modernization Updates to Standards of Ethical Conduct for Employees of
the Executive Branch; Final Rule
Federal Register / Vol. 89 , No. 97 / Friday, May 17, 2024 / Rules
and Regulations
[[Page 43686]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2635
RIN 3209-AA43
Modernization Updates to Standards of Ethical Conduct for
Employees of the Executive Branch
AGENCY: Office of Government Ethics.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Government Ethics (OGE) is issuing this
final rule updating the Standards of Ethical Conduct for Employees of
the Executive Branch (Standards). The final rule updates the Standards
based on OGE's experience gained from application of the regulation
since its inception. The final rule also incorporates past interpretive
guidance, adds and updates regulatory examples, improves clarity,
updates citations, and makes technical corrections.
DATES: This final rule is effective August 15, 2024.
FOR FURTHER INFORMATION CONTACT: Kimberly L. Sikora Panza, Senior
Associate Counsel, or Christie Chung, Assistant Counsel, U.S. Office of
Government Ethics, 250 E Street SW, Suite 750, Washington, DC 20024-
3249; Telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.
SUPPLEMENTARY INFORMATION:
I. Rulemaking History
Pursuant to a provision of the Ethics in Government Act of 1978, 5
U.S.C. 13122, the Director of the U.S. Office of Government Ethics
(OGE) is responsible for periodically reviewing, evaluating, and
updating the rules and regulations that pertain to ethics in the
executive branch. On February 21, 2023 (88 FR 10774), OGE published for
public comment a proposed rule setting forth various modernization
updates to the Standards of Ethical Conduct for Employees of the
Executive Branch (Standards), which serve as the primary regulatory
guidance on the standards of ethical conduct for officers and employees
of the executive branch of the Federal Government (Government). Prior
to publishing the proposed rule, OGE consulted with the Department of
Justice and the Office of Personnel Management pursuant to section
201(a) of Executive Order 12674, as modified by Executive Order 12731,
and the authorities contained in 5 U.S.C. chapter 131, subchapter II.
Additionally, OGE solicited and considered the views of executive
branch agency ethics officials. OGE's proposed updates pertained only
to subparts A through I of the Standards; separate from the present
rulemaking, OGE engaged in a comprehensive rulemaking that added to the
Standards new subpart J, which relates to the creation and operation of
legal expense funds, and the acceptance of pro bono legal services for
certain legal matters. See 88 FR 33799 (May 25, 2023).
The proposed rule provided for a 60-day comment period, which ended
on April 24, 2023. During this period, OGE received nineteen responsive
comment submissions regarding the proposed rule: fourteen from the
public and five from Federal agencies. OGE also received two comment
submissions from the public that do not relate to the proposed rule and
address unrelated matters. After carefully considering all comments and
making appropriate modifications, and for the reasons set forth below
and in the preamble to the proposed rule at https://www.govinfo.gov/content/pkg/FR-2023-02-21/pdf/2023-02440.pdf, OGE is publishing this
final rule.
II. Discussion of Comments and Changes to Proposed Rule
The twenty-one comments that OGE received during the comment period
are publicly accessible on OGE's website at this address: https://www.oge.gov/web/OGE.nsf/All+docs+By+Cat/08C3B547690B7675852589AA00556758. OGE has reviewed and considered all
comments submitted by each commenter. OGE is not addressing the two
comments that pertain to matters unrelated to the rulemaking. The
following discussion addresses all other comments in the context of the
specific subparts or sections to which they relate.
A. General Provisions (Subpart A)
OGE received nine comments from individuals who expressed concerns
about the proposed revisions to Sec. Sec. 2635.101(b)(13) and
2635.106. In Sec. Sec. 2635.101(b)(13) and 2635.106, OGE proposed to
add the words ``(including pregnancy, gender identity, and sexual
orientation)'' after ``sex'' to reflect protected characteristics
identified by the Equal Employment Opportunity Commission (EEOC) as
covered by Federal employment discrimination laws. Towards this same
end, OGE also proposed adding ``genetic information'' in these two
sections and updating the word ``handicap'' to ``disability.'' These
commenters specifically criticized the inclusion of ``gender identity''
and ``sexual orientation'' in Sec. Sec. 2635.101(b)(13) and 2635.106;
no commenter referenced or objected to the other updates to these
provisions relating to pregnancy, genetic information, or disability.
Commenters perceived that the inclusion of ``gender identity'' and
``sexual orientation'' would result in an expansion of civil rights,
and objected to the revisions either categorically or without
observance of appropriate protections for religious organizations and
religious conscience.
The revisions to Sec. Sec. 2635.101(b)(13) and 2635.106 do not
effectuate any expansion of, or other change to, civil rights laws.
Significantly, OGE does not have the authority to promulgate
regulations expounding on the scope of categories protected by equal
employment laws and regulations, or other civil rights laws and
regulations. The updated language merely modernizes the regulatory text
to include characteristics that the EEOC already recognizes as
protected under the laws enforced by the Commission. See, e.g.,
Employees & Applicants, U.S. Equal Emp. Opportunity Comm'n, https://www.eeoc.gov/employees (last visited May 17, 2023). It is both
necessary and appropriate that provisions in the Standards that refer
to ``laws and regulations that provide equal opportunity'' list the
characteristics protected by Federal laws prohibiting employment
discrimination and enforced by the EEOC.
Additionally, OGE received one comment from an individual who
expressed concern that the addition of ``gender identity'' and ``sexual
orientation'' infringes on executive branch employees' First Amendment
and other constitutional rights. As noted above, these revisions are
merely technical updates referencing types of discrimination already
recognized by the EEOC. Acknowledgement of the fact that sex-based
discrimination includes gender identity and sexual orientation in
Sec. Sec. 2635.101(b)(13) and 2635.106 neither results in any change
to existent equal opportunity laws or regulations, nor impacts the
interaction between such laws and the constitutional rights of
employees.
For the above reasons and for the reasons stated in the preamble to
the proposed rule, OGE therefore is adopting the proposed updates to
subpart A without further revisions.
B. Gifts From Outside Sources (Subpart B)
Subpart B Examples
OGE received four suggestions regarding additional examples or
clarifications that could be made in subpart B. Specifically, one
agency
[[Page 43687]]
commenter suggested that OGE add an example of a ``non-traditional''
prohibited source, such as an entity that enters into a cooperative
research and development agreement with a Federal agency, as well as an
example involving a lottery ticket as a gift; the same agency suggested
that OGE add an example to Sec. 2635.204(d) involving a Department of
Defense or other Federal school; and a member of the public suggested
that OGE clarify gift acceptance limits and issues relating to entities
like the Kennedy Center where events might be hosted by a corporate
donor.
The examples requested by these commenters involve illustration of
fairly specific situations. It would not be feasible for OGE to provide
examples addressing application of the regulation in all of the
scenarios that may give rise to subpart B considerations. In light of
the extensive revisions made to subpart B in 2016, which included
modernization changes and examples, and OGE's determination that the
current rule provides appropriate guidance, OGE declines these
suggestions.
Gift Exclusion and Exception for ``Opportunities and Benefits''
One individual commenter requested that OGE reconcile the
difference between the opportunities and benefits excluded from the
definition of ``gift'' in Sec. 2635.203(b)(4) and the opportunities
and benefits excepted from the gift prohibitions by Sec.
2635.204(c)(2). Specifically, the commenter noted that the
opportunities and benefits excluded from the ``gift'' definition by
Sec. 2635.203(b)(4) include ``favorable rates and commercial
discounts,'' while the opportunities and benefits excepted from the
subpart B gift prohibitions by Sec. 2635.204(c)(2) include ``favorable
rates, commercial discounts, and free attendance or participation.''
The ``free attendance or participation'' language that distinguishes
these two provisions was added to Sec. 2635.204(c)(2) when OGE
substantially revised subpart B in 2016. See 81 FR 81641 (Nov. 18,
2016).
OGE notes that the ``opportunities and benefits'' listed in the
Sec. 2635.203(b)(4) gift exclusion are preceded by the word
``including,'' indicating that the list is not intended to be
exhaustive. As such, one could consider free attendance or
participation under the gift exclusion, if the appropriate facts
presented themselves. However, to clear up any confusion, OGE will add
the words ``free attendance or participation'' to Sec. 2635.203(b)(4)
to harmonize the language in Sec. Sec. 2635.203(b)(4) and
2635.204(c)(2).
Free Attendance Gift Exclusion
Section 2635.203(b)(8) excludes from the definition of ``gift''
free attendance to an event provided by the sponsor of the event to
certain individuals, including an employee who is assigned to present
information on behalf of the agency at the event (on any day when the
employee is presenting), and ``[a]n employee whose presence on any day
of the event is deemed to be essential by the agency to the presenting
employee's participation in the event,'' if the employee is
accompanying the presenting employee. One agency opined that it is
unclear whether multiple personnel supporting a presenting employee may
accept free attendance pursuant to this exclusion. Specifically, the
commenter requested that ``an employee'' in the above-quoted language
in Sec. 2635.203(b)(8)(ii) be changed to ``any employee'' to clarify
that multiple supporting personnel may accept free attendance under
this exclusion.
OGE notes that it has previously issued guidance making clear that
Sec. 2635.203(b)(8)(ii) can be applied to multiple agency personnel.
See OGE DAEOgram DO-10-003, at 2 (Feb. 18, 2010) (``The number and
types of personnel necessary, if any, to the speaker's participation
will vary depending upon who the speaker is and the nature of the
event.''). Nonetheless, to further address the commenter's concern, OGE
is updating example 2 to paragraph (b)(8) to reflect that guidance and
eliminate any doubt that multiple supporting personnel may accept free
attendance under this exclusion. Specifically, OGE is changing
``another employee'' to ``other employees'' and ``accompanying
employee'' to ``accompanying employees'' in the example.
De Minimis Gift Exception
Three commenters--two individuals and one agency--recommended that
OGE increase the monetary thresholds for the de minimis gift exception
at Sec. 2635.204(a), noting the effects of inflation in the
intervening years since the exception was first adopted. Two other
commenters made a similar suggestion in 2016 as part of OGE's
comprehensive rulemaking revising portions of subpart B.
After carefully considering this recommendation in 2016, OGE noted
its concern that ``raising the de minimis would encourage employees to
accept, and private citizens to give, more expensive and more frequent
gifts than employees are currently able to accept.'' 81 FR 81641, 81645
(Nov. 18, 2016). Although OGE acknowledged at that time--and continues
to acknowledge--the effect of inflation on the relative value of the de
minimis threshold, OGE continues to believe that $20 is a workable
amount that serves the narrow purpose of the exception, which is to
permit only the infrequent acceptance of inexpensive and innocuous
gifts. Id.; see also 57 FR 35006, 35016 (Aug. 7, 1992). It also
continues to be the fact that ``no compelling argument has been made to
support a conclusion that raising the cap on the blanket de minimis
exception, in order to allow employees to accept more expensive and
more frequent gifts, would strengthen the integrity of the executive
branch's operations.'' 81 FR 81645.
Independent of these substantive reasons, OGE also declines to
adopt the suggestion to increase the de minimis threshold in this
particular rulemaking, the primary focus of which is on technical, non-
substantive updates. OGE does not think it would be appropriate to
adjust the Sec. 2635.204(a) dollar value in this final rule without
having announced in the proposed rule that it was contemplating such an
increase, thereby providing the public an opportunity to reflect on
such a proposal and share their input regarding the same.
Widely Attended Gatherings Exception
To improve readability, OGE is making a technical amendment to the
structure of Sec. 2635.204(g)(2), which defines when a gathering is
widely attended for purposes of the widely attended gathering (WAG)
exception. Specifically, OGE is organizing the components of the WAG
definition at Sec. 2635.204(g)(2) into new separate paragraphs
(g)(2)(i) through (iii). This update involves no substantive changes to
the WAG exception.
In response to the proposed rule, one agency recommended removing
the requirement in the WAG exception in Sec. 2635.204(g) that an
employee attend the event on their own time in their personal capacity
rather than in their official capacity. Section 2635.204(g) provides
that an employee could attend a qualifying event either on their own
time or, if authorized by their agency, on excused absence pursuant to
applicable guidelines for granting such absence, or otherwise without
charge to the employee's leave account. The commenter questioned the
rationale for this requirement that the employee attend on their own
time, noting that an agency determination that attendance is in the
agency's interest would suggest the event is related to the employee's
official duties.
[[Page 43688]]
OGE notes that the requirement that the employee attend in their
personal capacity is based on appropriations considerations that OGE
documented in the preamble to the final rule for 5 CFR part 2635. See
57 FR 35006, 35019-20 (Aug. 7, 1992). The 1992 preamble explains that
the WAG exception was designed to allow agencies that do not have
agency gift acceptance authority to permit their employees to accept a
gift of free attendance at events in which the agency has an interest
in the employee attending. However, due to appropriations requirements,
in order for the gift to be accepted by an employee rather than by the
agency, the employee must attend the event in their personal capacity
``off the clock.'' Specifically, this requirement ``is imposed of
necessity to ensure that the gift is made to the employee rather than
to the agency and, thus, that it does not improperly augment agency
appropriations available for payment of expenses of attendance at
training, meetings or similar events.'' Id. at 35019. For these
reasons, OGE declines to follow the agency's recommendation.
C. Gifts Between Employees (Subpart C)
Gifts to Superiors
One individual commented that the proposed new language in Sec.
2635.302(a)(1), which clarifies that ``an official superior may not
knowingly accept'' an improper gift from a subordinate, is inconsistent
with the controlling statutory authority at 5 U.S.C. 7351. The
commenter also suggested that the knowledge element in this provision
is unclear.
As discussed in the preamble to the proposed rule, the premise that
official superiors have a responsibility to not knowingly accept
improper gifts from a subordinate is logically consistent with and
complements the restrictions articulated in 5 U.S.C. 7351 governing
gift giving from a subordinate to a superior. The proposed changes to
Sec. 2635.302(a)(1) appropriately emphasize that superiors should not
knowingly accept gifts that are improper for employees to give.
Regarding the knowledge element relating to a superior's acceptance
of a gift, it is included in recognition of the fact that the
regulation covers gifts given ``indirectly'' by an employee--e.g., ones
given by an employee's parent, sibling, spouse, child, or dependent
relative with the employee's knowledge and acquiescence. See Sec.
2635.303(b)(1). Section 2635.302(a) is structured in such a way that
knowledge is required on the part of both the giver and receiver for
indirect gifts. For example, an employee will not be in violation of
the rule if their sibling gives a gift to the employee's superior
without the employee's knowledge and acquiescence. Similarly, a
superior will not be in violation of the rule if they accept a gift
that unbeknownst to them was given by the sibling of an employee with
the employee's knowledge and acquiescence.
For the reasons explained in the preamble to the proposed rule, OGE
declines the commenter's suggestions, and will adopt the revisions to
Sec. 2635.302(a)(1) as set forth in the proposed rule.
Gifts From Employees Receiving Less Pay
One individual commenter requested clarification regarding the
meaning of ``less pay'' in Sec. 2635.302(b) and suggested that the
rule be amended to specify ``base pay.'' OGE is unable to adopt this
change. The language in Sec. 2635.302(b), referring to ``employees
receiving less pay'' incorporates the language of the underlying
statute. See 5 U.S.C. 7351 (referring to ``an employee receiving less
pay''). Given this statutory basis, OGE is constrained in its ability
to revise the regulation to specify ``base pay'' or ``rate of basic
pay.''
Another individual commenter opposed the new language OGE proposed
to add to Sec. 2635.302(b)(2), which clarifies that the restriction on
accepting a gift from an employee receiving less pay does not apply
when the employee giving the gift is the official superior of the
employee receiving the gift. The commenter expressed concern that this
rule could provide for unequal treatment among the higher paid
employees who are now allowed to receive gifts from their superiors,
although the commenter also recognized that gifts from superiors to
subordinates are not generally restricted by subpart C.
OGE disagrees with the commenter that the updated language is ripe
for ``favoritism and impropriety.'' As a threshold matter, OGE notes
that in the status quo, subpart C does not restrict most gifts from
superiors to their employees because superiors do not typically receive
less pay than their employees. This structure does not seem to have
elicited much concern among ethics officials. Furthermore, as OGE noted
in the proposed rule, ``OGE does not believe that 5 U.S.C. 7351, the
statute underlying the restriction articulated in Sec. 2635.302(b),
either contemplated or intended that subordinate employees would be
restricted from accepting a gift from an official superior who, because
of the nature of modern compensation systems, receives less pay.'' 88
FR 10774, 10775 (Feb. 21, 2023). Accordingly, this updated language
that permits all employees to receive gifts from their superiors in the
same manner is necessary to modernize and equalize the rule given the
situations in the current Federal pay system in which a subordinate may
earn more than their official superior. However, it does not encourage
the provision of such gifts in an unfair or inequitable manner.
De Minimis Gift Exception
Similar to the related suggestions regarding the subpart B de
minimis exception, two agency commenters recommended that OGE increase
the monetary threshold in the gift exception at Sec. 2635.304(a). As
is the case with the de minimis exception in Sec. 2635.204(a), OGE
believes that the current value of the de minimis exception in subpart
C should remain unchanged. As OGE noted when issuing the Standards,
while it is ``appropriate to permit modest exchanges of gifts between
coworkers,'' it is important to remain mindful of ``subtle pressures to
give gifts to superiors'' in an environment ``where superiors and
subordinates interact daily and where subordinates compete for
advancement.'' 57 FR 35006, 35022 (Aug. 7, 1992). Notwithstanding
inflation, OGE believes that the $10 amount remains adequate to permit
an exchange of a modest token between employees and is ``low enough
generally to discourage employees from purchasing gifts for their
superiors.'' Id. OGE further echoes its concern noted above about
adjusting a de minimis value in this final rule when the public was not
apprised of such a potential change or given the opportunity to comment
on it.
Special Infrequent Occasions Exception
One agency commenter suggested that OGE add a new example to the
exception for special, infrequently occurring occasions to illustrate
that a superior's promotion is not an occasion of personal
significance. OGE declines to adopt this suggestion. Example 3 to the
exception for voluntary contributions in Sec. 2635.304(c) sufficiently
illustrates that a superior's promotion within the supervisory chain is
not an appropriate time for subordinates to take up a collection for a
gift to that official superior because the occasion does not ``mark the
termination of the subordinate-official superior relationship, nor [is
it an] event[ ] of personal significance within the meaning of [Sec.
2635.304(b)].''
[[Page 43689]]
An individual commenter suggested that OGE consider adding
``divorce'' to the non-exhaustive list of special, infrequent occasions
covered by the exception at Sec. 2635.304(b)(1), and also suggested
that OGE could add further detail in the regulation regarding the
application of this exception in other contexts, such as traditional
religious or cultural rites of passage.
OGE notes that the statute authorizing OGE to issue regulations
exempting certain gifts contemplates that OGE may exempt gifts in
circumstances ``in which gifts are traditionally given or exchanged.''
5 U.S.C. 7351(c). The list of special, infrequent occasions provided in
the regulation is not exhaustive, as it is preceded by the phrase
``such as.'' OGE does not endeavor to attempt to list all occasions
that may be covered in the regulation, nor does it believe it would be
prudent or practicable to articulate every such occasion. The language
of the exception makes clear that the exception allows for gifts that
are ``infrequently occurring occasions of personal significance,'' and
this language should be applied when considering occasions not included
in the non-exhaustive list.
Regarding this same exception, a different individual commenter
agreed that adding ``bereavement'' to Sec. 2635.304(b) is a beneficial
change; the individual suggested, however, that there are issues in
practice with OGE's inclusion of this term without limitation.
Specifically, the commenter recommended that OGE establish
``limitations as to which family members the exception applies.'' OGE
declines to adopt language qualifying which bereavements constitute an
infrequently occurring occasion of personal significance, believing
that it is neither appropriate nor wise to make a categorical
determination about which losses justify expressions of sympathy. OGE
notes that a gift in recognition of bereavement must still be
``appropriate to the occasion,'' which is a sufficient limiting factor
that appropriately curtails gift giving and acceptance in the
bereavement context and addresses any potential for misuse of the
narrow exception at Sec. 2635.304(b).
This same commenter recommended that OGE add birthdays ending in
zero to the non-exhaustive list of special, infrequent occasions
covered by Sec. 2635.304(b)(1). Drawing parallels between birthdays
ending in zero and occasions enumerated in the regulation, the
individual commented that exclusion of milestone birthdays is
arbitrary. OGE believes that it would be inappropriate to except gifts
in connection with birthdays, which includes milestone birthdays, from
the general rules governing gifts between employees, and thus did not
revise the regulation to indicate otherwise. As noted in the preamble
accompanying the proposed rule, OGE does not consider milestone
birthdays to be infrequently occurring occasions of the sort warranting
exception under Sec. 2635.304(b). Of course, it may be possible to
give a gift in recognition of any birthday under another exception,
such as the exception for gifts with a value of $10 or less and the
exception for food and refreshments shared in the office among several
employees. See Sec. 2635.304(a)(1) and (2).
Exception for Voluntary Contributions of Nominal Amounts
One individual commenter suggested that OGE define the term
``nominal'' as it is used in the exception at Sec. 2635.304(c) for
``voluntary contributions of nominal amounts from fellow employees for
an appropriate gift to an official superior.'' OGE appreciates this
suggestion, but has not made a change to the regulation. What
constitutes a ``nominal'' amount is necessarily context-specific, for
example, depending on whether the contribution is for items like food
and refreshments, or for a gift in recognition of a special, infrequent
occasion. In response to a similar comment when first issuing the
Standards, OGE explained that it chose to not impose a specific dollar
limit, even though collections for gifts generally involve individual
contributions less than five dollars. In doing so, OGE noted that
``[w]here contributions meet the regulatory requirement that they be
entirely voluntary, higher amounts may appropriately be contributed in
some cases, as when several senior members of an office provide an
additional contribution to subsidize a collection that has come up
short of sufficient funds to purchase a desired gift.'' 57 FR 35006,
35023 (Aug. 7, 1992). The regulation makes clear that the contributions
must be for ``an appropriate gift,'' which OGE believes provides a
suitable, non-monetary limit on the use of this exception.
Disposition of Prohibited Gifts
One agency commenter suggested that OGE add a section in this
subpart that addresses what an employee should do if they inadvertently
accept a gift that is not permissible under this subpart. In response
to agency inquiries regarding the disposition of gifts prohibited by
subpart C, OGE has advised that agencies are free to look to the
subpart B disposition provisions for guidance regarding how to handle
such gifts. To provide greater clarity to employees and ethics
officials, OGE will add a new Sec. 2635.305 to subpart C that is
consistent with that guidance.
D. Conflicting Financial Interests (Subpart D)
Analyzing Imputed Interests and Multi-Entity Organizations
One agency commenter requested that OGE add an example in Sec.
2635.402 illustrating the application of 18 U.S.C. 208 where an
employee has an imputed financial interest by virtue of their outside
employment or position with an organization, and there is a particular
matter that could affect one of the entity's campuses, or a parent,
affiliate, or subsidiary organization. OGE declines to add such an
example. As a threshold matter, OGE notes that the Standards already
provide clear guidance regarding how imputed relationships are
analyzed. Specifically, Sec. 2635.402(b)(2) explains that ``[f]or
purposes of 18 U.S.C. 208(a) and this subpart, the financial interests
of [certain imputed persons, including an organization or entity with
which an employee serves as officer, director, trustee, general partner
or employee] will require the recusal of an employee to the same extent
as if they were the employee's own interests.'' (Emphasis added.)
Regarding related entities such as parents, subsidiaries, affiliates,
etc., the Standards generally acknowledge the potential conflicts that
may arise with respect to the same. See note 2 to Sec. 2635.402(b)(1)
(recognizing that a party matter may have a direct and predictable
effect on an employee's financial interest in an affiliate, parent, or
subsidiary of that party). Ultimately, however, OGE is wary of
potential misinterpretation and misapplication were it to include an
example of the sort requested by this commenter, and believes that a
Legal Advisory is a more suitable means through which to provide
guidance on the appropriate analysis.
Example 1 to Sec. 2635.403(b)
One individual commenter questioned OGE's proposed inclusion of a
dollar amount in example 1 to Sec. 2635.403(b) and suggested that the
value should be removed because it ``is not . . . important for the
rule's applicability.'' OGE intends to retain the dollar amount in this
example. As explained in the preamble to the proposed rule, OGE
proposed adding a specific dollar figure to the amount of stock owned
by the employee in the example ``to make clear that the de
[[Page 43690]]
minimis regulatory exemption in 5 CFR 2640.202 does not apply in this
scenario.'' Accordingly, as noted in the example, the agency could
determine that ``the employee could not, by virtue of 18 U.S.C. 208(a),
perform these significant duties of the position while retaining stock
in the company.''
Definition of Financial Interest
The same individual commenter questioned OGE's proposed update to
the definition of ``financial interest'' in 5 CFR 2635.403(c)(1), which
replaces the word ``dependent child'' with ``minor child,'' and
expressed a preference for retaining ``dependent child.'' As stated in
the language of Sec. 2635.401 that this rulemaking will adopt, subpart
D ``summarizes the relevant statutory restrictions [of 18 U.S.C. 208]
and some of the regulatory guidance found'' in 5 CFR part 2640, the
part interpreting and implementing 18 U.S.C. 208. The updated language
referencing ``minor child'' brings Sec. 2635.403(c)(1) into alignment
with the language used throughout subpart D, and reflects the
terminology of the statute proper and its implementing regulation.
Therefore, OGE declines to retain the ``dependent child'' language in
Sec. 2635.403(c)(1) or otherwise integrate the concept of ``dependent
child'' in this subpart.
E. Impartiality in Performing Official Duties (Subpart E)
Subpart E Examples
OGE received one comment from an individual concerning the
application of Sec. 2635.502 to particular matters of general
applicability and requesting the addition of an example illustrating
that application. As proposed, reorganized Sec. 2635.502 articulates
the operation of the regulation with respect to particular matters
involving specific parties in which a household member has a financial
interest, and particular matters involving specific parties in which
someone with whom one has a covered relationship is or represents a
party. Section 2635.502(a)(3) makes clear that employees who are
concerned about impartiality questions arising from circumstances other
than the party matters described in the preceding sentence--which could
include particular matters of general applicability--should utilize the
process detailed in the regulation, including in paragraph (d), to
determine whether their participation is appropriate. In 1991, OGE
addressed this ``catch-all'' provision in the preamble to the proposed
rulemaking for the Standards, explaining that although the section
focused on specified relationships and party matters, questions about
an employee's impartiality could arise from any number of interests or
relationships they might have, and in connection with their
participation in matters that do not necessarily involve specific
parties. 56 FR 33778, 33786 (July 23, 1991). For this reason, Sec.
2635.502 ``therefore provides that an employee should use the process
set forth in that section when circumstances other than those
specifically described raise questions about [their] impartiality in
the performance of official duties.'' Id. Given this guidance, OGE
declines to add an example illustrating the specific application of
Sec. 2635.502 to particular matters of general applicability.
For similar reasons, OGE declines to add a very fact-specific
example suggested by a different individual regarding how previous
litigation history between an employee and party to a matter might give
rise to impartiality concerns.
Employee Work Assignments
OGE received two comments from the public expressing concern that
the new note at Sec. 2635.501 could be viewed as being in conflict
with, or causing confusion regarding, regulatory language in Sec. Sec.
2635.105(a) and 2638.602 regarding how supplemental agency ethics
regulations require OGE's concurrence, with co-signature and
publication by the agency and OGE. One commenter questioned whether the
intent of the note was to indicate that agencies have unfettered
authority to assign work as they see fit, and whether a manager's
delegation of work based on ethics considerations would be contrary to
Sec. 2635.105 if not subject to OGE review. The second commenter asked
OGE to make clear what triggers the requirement to memorialize an
ethics requirement in a supplemental regulation versus merely issuing
an agency policy.
As discussed in the preamble to the proposed rule, the note is not
an independent source of authority; it simply reminds agency ethics
officials that supervisors generally have broad discretion when
assigning work to employees and that there may be a multitude of
factors considered by a supervisor in doing so, including appearance or
impartiality concerns that do not fit squarely within the Standards.
OGE has no intention to alter the requirements relating to supplemental
ethics regulations, nor could it do so in this rulemaking, as those
general requirements are established by Executive order. See E.O.
12731, sec. 301(a) (Oct. 17, 1990). Agencies wishing to supplement the
Standards with additional ethics obligations still must follow the
requirements of Sec. 2635.105, as referenced in Sec. 2638.602, and
may rely on prior OGE guidance regarding what agency ethics policies
belong in a supplemental regulation. See, e.g., OGE Legal Advisory LA-
11-07 (Oct. 31, 2011).
Covered Relationship Stemming From Certain Familial Relations
One individual commenter stated their support for the removal of
the ``dependent'' qualifier when discussing covered relationships
relating to certain business activities of children, noting that ``[a]
non-dependent child is more likely to have relationships that implicate
impartiality concerns than dependent children, who, being dependents as
defined at 26 U.S.C. 152 (e.g., minors or students), are relatively
unlikely to have the sorts of business relationships raising those
concerns.'' An agency commenter disagreed with OGE's proposal to remove
the ``dependent'' qualifier, suggesting that the financial co-
dependence of parents and dependent children is more likely to raise
concerns regarding impartiality.
OGE will adopt as final the change removing the ``dependent''
qualifier before ``child'' in Sec. 2635.502(b)(1)(iii). This change
appropriately reflects that there are potential impartiality concerns
relating to certain business relations of a child regardless of that
child's dependency, just as long-established language in Sec.
2635.502(b)(1)(iii) acknowledges impartiality concerns relating to
certain business relations of a parent, without any dependency
predicate. The updated language harmonizes the treatment of parents and
children for purposes of the scope of certain covered relationships
because both familial relations may raise similar ethics concerns,
irrespective of any financial connection or perceived financial impact.
In that regard, OGE notes that nothing in subpart E contemplates that
there need be a perceived impact on an employee's financial interests
for there to be concerns about their impartiality, and that many of the
long-established covered relationships articulated in Sec. 2635.502(b)
would not seem to involve such a perceived impact. Of course, we note
that Sec. 2635.502 does not demand a specific outcome regarding
participation when an appearance concern arises; it merely requires
that employees engage in the appropriate analysis under this subpart
before participating. As we stated in the 1992 preamble to the final
rule for the Standards, ``the importance of relevant facts must be
emphasized.''
[[Page 43691]]
57 FR 35006, 35027 (Aug. 7, 1992). To highlight this point as applied
to the revised covered relationship provision, OGE is updating new
example 6 to Sec. 2635.502(b) so that the scenario described involves
the employment relationship of an adult child. This example now
illustrates a situation where a covered relationship described in
paragraph (b)(1)(iii) exists--a covered relationship with the employer
of an employee's adult child--but the employee could justifiably
conclude that a reasonable person would not be likely to question their
impartiality in participating in a party matter involving the child's
employer.
Covered Payments and Qualifying Programs
OGE received one comment from an agency regarding the proposed
update to the definition of a ``qualifying program'' at Sec.
2635.503(b)(2), which requires that the written program ``not treat
individuals entering Government service more favorably than other
individuals.'' The commenter noted that this language covers the types
of commonly written policies that permit for the acceleration of
benefits or lump sum payouts for individuals entering Government
service, which can expedite the transition to Government service, and
expressed concern that this change would cause unnecessary delays and
conflicts in that transition.
OGE notes that the updated language in Sec. 2635.503(b)(2) does
not affect OGE's position that ``when the ownership of the interest has
already vested[,] an employee may receive an earlier payment to
remediate a conflict of interest without running afoul of either 18
U.S.C. 209 or 5 CFR 2635.503. This is because the employee is entitled
to receive the payment and only the timing is being altered, not the
entitlement to the payment itself.'' U.S. Off. of Gov't Ethics,
Conflicts of Interest Considerations: Corporate Employment 5 (2021),
https://www.oge.gov/web/OGE.nsf/0/EC83872D932E6DCE852585B6005A1F8C/
$FILE/Corporate%20Employment.pdf. Accordingly, if an employee receives
accelerated payment of an already vested equity interest, that payment
still would not implicate Sec. 2635.503.
Regarding the revisions to the definition of ``qualifying
program,'' which OGE will adopt as proposed, OGE has noted an increase
in written policies and programs favoring Government employees, which
OGE did not anticipate when it first promulgated Sec. 2635.503. OGE
therefore intentionally updated the definition of ``qualifying
program'' to exclude written plans and programs that provide favorable
treatment to employees entering Government service, such as accelerated
vesting of employment-related interests. This approach is consistent
with how OGE has viewed unwritten practices of treating employees
entering Government more favorably. Whether made pursuant to a program
or a practice, a covered payment received from a former employer raises
``a legitimate concern, and thus an appearance, that the employee may
not act impartially in particular matters to which the former employer
is a party or represents a party.'' 56 FR 33778, 33786 (July 23, 1991).
OGE does not have any indication that this modernized regulation, which
is focused on an employee's recusal obligation once serving the
Government, would cause unnecessary delays and conflicts during the
transition into Federal service.
Inclusion of Former Clients in the Former Employer Definition
The same agency requested that OGE revise note 1 to paragraph
(b)(3) in Sec. 2635.503 to ``clarify that former clients are those for
whom the individual personally provided services, and not all clients
of a larger firm.'' Note 1 states that the ``former employer''
definition ``includes former clients for whom an employee may have
served as an agent, attorney, consultant, or contractor.'' (Emphasis
added.) OGE believes that the Note is clear on its face that the term
``former clients'' refers to those for whom the employee personally
provided services, and thus will adopt the proposed language without
amendment.
F. Seeking Other Employment (Subpart F)
Subpart F Examples
OGE received one comment from an individual requesting an
additional example in subpart F to clarify whether an employee may rely
on third-party information to conclude that a prospective employer has
rejected the possibility of hiring the employee. Specifically, the
commenter suggested an example where an employee learns from a third
party that they are no longer under consideration--for example, because
the position has been filled by someone else. OGE declines to make this
change for several reasons. First, OGE in 2016 published substantive
updates to subpart F, which included several new examples to illustrate
the application of subpart F to modern job searches. This rulemaking is
only proposing global technical changes throughout subpart F, which is
consistent with the purpose of the modernization project. Second, OGE
notes that the legitimacy of the information received from third
parties is likely to vary significantly on a case-by-case basis. As
such, an example involving information from a third party would be
unlikely to provide helpful insight--and worse, could be misconstrued
to imply that all third-party information can be relied upon in the
same way. Finally, OGE believes the current structure of subpart F
provides sufficient guidance to assess scenarios where the employee
receives credible information that the prospective employer has
rejected the possibility of employment.
Seeking Employment Definition
This same individual asserted that the definitions in subpart F do
not take into consideration the possibility that an employee might seek
employment by posting their interest on social media or meeting with a
recruiter who will communicate with multiple, potentially unknown,
companies. OGE disagrees with this commenter. As part of the 2016
updates to subpart F, OGE modernized the rule and added three new
examples of seeking employment involving social media. OGE added these
examples to ``clarify that the rules in this subpart apply regardless
of the method the employee uses when seeking employment.'' 81 FR 8008,
8009 (Feb. 17, 2016). As further discussed in the 2016 preamble, the
examples illustrate that the posting of a profile, resume, or other
employment information that is not targeted to a specific person is not
considered an unsolicited communication with an entity regarding
possible employment; instead such a posting is akin to posting a resume
on a bulletin board. Moreover, if the employee is using an agent or
other intermediary when seeking employment, the definition of
``prospective employer'' is met only ``if the agent identifies the
prospective employer to the employee.'' 5 CFR 2635.603(c)(1) and (2)
and example 2 to paragraph (c) (discussing a scenario involving an
online resume distribution service that sends resumes to recruiters).
Accordingly, OGE is declining to make further updates.
This individual also suggested that OGE shorten the two-month
timeframe in Sec. 2635.603(b)(2)(ii), which provides that, in the
absence of a response from a prospective employer indicating interest,
an employee is no longer seeking employment--and thus no longer has a
recusal requirement under subpart F--after two months have elapsed from
their dispatch of an
[[Page 43692]]
unsolicited resume or job proposal. The commenter recommended
truncating this timeframe given changes in the mechanisms through which
individuals search for jobs, and potentially quicker responses from
prospective employers than was the case in years past.
The provision about which this commenter is providing input was
substantively unchanged by the proposed rule, which noted that OGE
endeavors to make only global technical changes to subpart F that are
proposed throughout the Standards. OGE does not believe that the two-
month period prescribed in Sec. 2635.603(b)(2)(ii) is an unreasonably
excessive period of time in the modern job market. Even with the
technologies of current day, OGE continues to view two months as a
realistic period of time within which an individual may expect a
response to an unsolicited resume or job proposal. Subpart F addresses
lack of impartiality concerns warranting recusal from particular
matters affecting the financial interests of a prospective employer
with whom the employee is seeking employment. In weighing this comment
against the concerns underpinning subpart F, OGE is not inclined to
relax the recusal requirement in the manner suggested. Moreover, we
note, as we did in 1992 when issuing the final rule establishing the
Standards, ``that the two-month period establishes an outside limit. An
earlier response from the recipient indicating no interest in pursuing
the matter further will terminate the employee's disqualification at
that time.'' 57 FR 35006, 35029 (Aug. 7, 1992). Thus, to the extent
that the timeframe in ``which an applicant will hear back from a
prospective employer'' is shorter, as suggested by the commenter, an
employee who receives a negative response will be relieved of their
subpart F recusal obligation at that point.
G. Misuse of Position (Subpart G)
Letters of Recommendation
OGE received multiple comments relating to Sec. 2635.702(b), a
section in which OGE did not propose any substantive changes. One
agency commenter recommended that OGE add an additional example to
Sec. 2635.702(b) to illustrate that an employee may use their official
title in connection with providing a recommendation for an individual
with whom they have dealt in the course of Federal employment outside
of the executive branch--for example, an individual with whom the
employee worked while assigned to a Congressional office. OGE declines
to adopt this suggestion, as it considers the language in Sec.
2635.702(b) to be sufficiently clear in its broad phrasing that an
employee's official title may be used in connection with a reference
for an individual with whom the employee has dealt not just in
connection with executive branch employment, but ``in the course of
Federal employment.''
A different agency requested that the last sentence of Sec.
2635.702(b) be updated such that employees may recommend individuals
using their official title not just for Federal employment, but also
for other opportunities such as Federal internships or educational
programs. OGE believes that Sec. 2635.702(b) appropriately permits
recommendations for Federal employment, and declines to expand the
regulatory language as suggested by the commenter to cover other
Federally associated opportunities. As a point of clarification,
however, OGE notes that some internships and positions associated with
a Federal entity may qualify as ``Federal employment,'' see, e.g., OGE
Legal Advisory LA-17-09 (Aug. 14, 2017) (discussing different hiring
authorities for and employment status of student interns), such that it
would be permissible under Sec. 2635.702(b) for an employee to use
their official title to recommend an individual for the same.
The same agency expressed concern that example 1 to Sec.
2635.702(b) suggests that ``it is entirely acceptable for an employee
to recommend a person for Federal employment (including use of the
employee's title and official letterhead) solely because the person is
a personal friend.'' As a threshold matter, OGE notes it did not
propose to substantively update this example in this rulemaking.
Furthermore, the example is consistent with Sec. 2635.702(b), which
specifically permits an employee to use their official title to
recommend individuals for Federal employment, including personal
friends. As explained in the preamble to the final rule establishing
the Standards, OGE believes that recommending an individual for Federal
employment serves an ``official purpose'' that justifies the use of
official title. See 57 FR 35006, 35031 (Aug. 7, 1992).
Personal Social Media and Use of Official Photographs
As discussed in the proposed rulemaking, OGE is adding a new
example of an appearance of governmental sanction following Sec.
2635.702(b), which involves the use of personal social media by an
Environmental Protection Agency (EPA) employee. The example is
consistent with OGE's Legal Advisory on personal social media use and
illustrates the factual determination that agency ethics officials must
make in evaluating whether a reference to an employee's official title
or position on social media violates the Standards. See OGE Legal
Advisory LA-15-03 (Apr. 9, 2015). In particular, the example notes that
while certain facts alone--such as listing the employee's Government
title under the ``occupation'' section of their personal social media
account--would not reasonably be construed as implying governmental
sanction or endorsement, it would be problematic if the EPA employee
prominently featured the agency's seal on their social media account
and made statements asserting or implying that their opinions on
environmental topics are sanctioned or endorsed by the Government.
One agency commenter recommended updating this example to address
the use of an official Government photograph on personal social media.
Official photographs, displays including official uniform or insignia,
and use of agency seals must be consistent with all applicable
statutes, regulations, and agency policies, including the Standards.
Employees who choose to display official pictures or include
photographs of themselves wearing agency uniform or insignia should be
mindful that doing so can increase the possibility of confusion as to
whether their social media account and content on that account are
official or personal; a prominent disclaimer clarifying that all
content is personal can help obviate such confusion. However, OGE
declines to update the example to discuss the use of an official
photograph on a personal social media account. Although the new example
provides an illustration of how personal social media use might
implicate ethics rules regarding misuse of position, it is not intended
to be exhaustive of the myriad ways that employees might engage or post
on their personal social media accounts. Given the nuance of these
issues, OGE believes that this topic is best addressed through
interpretive guidance, and notes that it recently issued a Legal
Advisory discussing the application of ethics rules to employees'
activities on personal social media accounts, including the use of
official photographs. See OGE Legal Advisory LA-23-13, at 2-3 (Sept.
28, 2023) (discussing the question ``Can I use my official picture or a
picture of me at a work event as my profile picture [on social
media]?'').
[[Page 43693]]
Acceptable Personal Use of Government Resources
As explained in the preamble to the proposed rule, OGE proposed
replacing example 1 following Sec. 2635.704(b)--which discussed a
General Services Administration (GSA) regulation that no longer
exists--with an example that references an agency's de minimis policy
relating to the personal use of a Government email account. In response
to this change, one individual commenter requested that OGE provide
more guidance on acceptable personal use of Government resources, given
the absence of a GSA regulation and significant technological changes
in recent years. OGE believes the Standards and examples set forth and
revised in Sec. 2635.704 are sufficiently clear and can be applied to
Government property as it continues to evolve with technological
advances. Furthermore, more specific guidelines about current
technology than what is already in Sec. 2635.704 and its examples
would run the risk of quickly becoming outdated. Finally, OGE notes
that agencies have established more specific policies regarding
acceptable limited personal use of Government resources by their
employees, and employees' adherence to these policies would constitute
an authorized use of Government resources. See OGE Inf. Adv. Op. 97x3
(Mar. 21, 1997). OGE defers to agencies to interpret such policies and
to determine whether specific instances of personal use would amount to
a misuse of Government resources.
H. Outside Activities (Subpart H)
Teaching, Speaking, and Writing
One individual provided comments regarding OGE's proposed
ministerial change to Sec. 2635.807(a), which emphasizes the timing
aspect that an employee ``may not receive compensation from any source
other than the Government for teaching, speaking, or writing that
occurs while the person is a Government employee and that relates to
the employee's official duties.'' (Emphasis added.) The commenter
incorrectly suggests that the updated language provides for a ``looser
standard'' than set forth in the original rule; specifically, the
commenter stated that before this change, Sec. 2635.807 had a
``broader application . . . [that] prevents former employees from
gaining, after the fact from'' their official duties and that the new
language would ``lessen the broad application and lift the restrictions
as they would apply to former employees.''
As a threshold matter, OGE reiterates that the Standards, including
subpart H, apply only to current executive branch employees. More
specifically regarding teaching, speaking, and writing covered by Sec.
2635.807, OGE has been unequivocal in its guidance that ``ethics rules
do not restrict receipt of compensation unless the writing occurs
during Government service.'' OGE DAEOgram DO-08-006, pt. I, at 8 (Mar.
6, 2008); see also id. (``Section 2635.807 applies to an individual
while [they] serve[ ] as a Government employee. Therefore, each
provision contained in section 2635.807 restricts compensation only for
writing that occurs while an individual is in Government service. If
the writing is done either before or after Government service, none of
these provisions will apply.''). Accordingly, OGE declines the
commenter's suggestion that Sec. 2635.807(a) be phrased disjunctively,
such that compensation for teaching, speaking, or writing would be
restricted if the writing occurs while the person is a Government
employee or if the writing relates to an employee's official duties.
One agency commenter characterized Sec. 2635.807 as addressing
teaching, speaking, or writing ``on `official time' and on personal
time,'' and suggested that the section be divided into off-duty and
official duty paragraphs ``rather than housing it all under Outside
Activities.'' OGE disagrees with the commenter's characterization. As
noted in Sec. 2635.801(a), subpart H ``contains provisions relating to
outside employment, [and] outside activities''; Sec. 2635.807
addresses teaching, speaking, and writing that an employee does as
outside employment or an outside activity, and is not intended to
address official duty teaching, speaking, or writing. To the extent
that this section refers to official capacity teaching, speaking, and
writing, it does so for limited purposes. First, it refers to official
capacity activities in certain examples to distinguish between the
scenarios where the requirements of Sec. 2635.807 do and do not apply.
See, e.g., Sec. 2635.807(a)(2)(iii), example 4 (describing a scenario
where payments are not prohibited under the rule restricting
compensation for speaking relating to official duties because the
employee is speaking officially); see also Sec. 2635.807(b), example 1
(noting that the restrictions on reference to official position would
not apply to an employee who is authorized to speak in their official
capacity). Second, it notes that ``[t]eaching, speaking, or writing
relates to the employee's official duties''--and thus is covered by
Sec. 2635.807(a)--if ``[t]he activity is undertaken as part of the
employee's official duties.'' This language simply ``incorporates the .
. . prohibition on supplementation of salary contained in 18 U.S.C.
209,'' DO-08-006, pt. I, at 19 n.18, and is not intended to provide any
specific guidance regarding official duty speaking. For these reasons,
OGE declines the commenter's suggested reorganization.
The same commenter asked OGE to address various scenarios relating
to the extent to which an employee could choose or refuse who they
present agency information to as part of an outside activity if the
presentation otherwise meets the requirements of Sec. 2635.807(a). The
scenarios posed by the commenter are very fact-specific, and
unfortunately it is not feasible for OGE to include exhaustive examples
in the regulation discussing the application of Sec. 2635.807 and
other ethics rules. OGE notes, however, that even if Sec. 2635.807
would not restrict an employee's teaching, speaking, or writing, the
employee may not conduct the activity in a way that violates other
ethics requirements. See, e.g., OGE Inf. Adv. Op. 94x1 (Jan. 10, 1994)
(``If an employee does not receive any compensation for [their]
participation in the conference, the speech will not be prohibited by
section 2635.807. In such an instance, the primary consideration the
employee should keep in mind is [their] responsibility not to misuse
[their] position, title, Government property, or nonpublic
information.'').
Finally, OGE declines this commenter's suggestion to impose a
disclaimer requirement for official teaching, speaking, or writing. To
the extent that agencies authorize or require the use of disclaimers in
official speeches to make clear that the speaker is sharing their
personal views rather than the views of the agency, OGE defers to
agencies on whether the use of such a disclaimer is appropriate.
A different agency expressed concern regarding a minor update OGE
proposed to make to the existing note to 5 CFR 2635.807(a)(2)(iii).
Specifically, OGE proposed to delete the reference to 18 U.S.C. 209 in
the reminder that other authorities in some circumstances may limit or
preclude an employee's acceptance of travel expenses. OGE's intention
in deleting the reference was not to make a substantive change but
rather ``to avoid unnecessary focus on a single statute to the
potential exclusion of other applicable authorities.'' 88 FR 10774,
10780 (Feb. 21, 2023). The commenter requested that OGE keep the
reference to 18 U.S.C. 209 because ``[i]t is helpful to employees and
legal practitioners to be reminded in this
[[Page 43694]]
context that a criminal statute in particular may be triggered.''
Based on this feedback, OGE will add back in the reference to 18
U.S.C. 209 in the referenced note. However, OGE reiterates that other
authorities may limit or preclude an employee's acceptance of travel
expenses, so to emphasize that section 209 is one of several
potentially applicable authorities, OGE has updated the phrase to read
``other authorities, including but not limited to 18 U.S.C. 209.''
One agency commenter asked that OGE add new language to Sec.
2635.807(b) permitting ethics officials to apply a fact-based,
``totality of circumstances'' test to determine whether an employee
serving as faculty at Federal universities and schools may include
their title or position in connection with outside academic or
scientific editorial board service, and for listings of professional
society committee membership. The commenter's request for a ``totality
of circumstances'' test appears to be based on the commenter's
assertion that, in the context of Federal employees serving as faculty
at Federal universities and schools, disclaimers and biographical
sketches required for teaching, speaking, and writing activities under
Sec. 2635.807(b) ``are not commonly used by publishers'' and
professional societies.
As OGE has previously explained, ``[t]he foundation in the
Standards underlying the limitations on use of official title is 5 CFR
2635.702(b), which provides `an employee shall not use or permit the
use of [their] Government position or title or any authority associated
with [their] public office in a manner that could reasonably be
construed to imply that [their] agency or the [G]overnment sanctions or
endorses [their] personal activities or those of another.''' OGE Inf.
Adv. Op. 10x1, at 1 (Mar. 19, 2010). Employees engaged in outside
teaching, speaking, and writing must also meet the use of title
requirements of Sec. 2635.807(b). OGE has advised that ``[t]he purpose
of section 807(b)(1) and (b)(2), in conjunction with section 702(b), is
to ensure that public is not misled as to whether the views expressed
by an Executive Branch employee in uncompensated teaching, writing, or
speaking are those of the employee or those of the Government.'' Id. at
2.
OGE believes that the guidance it has previously issued regarding
use of title in outside activities sufficiently addresses the
commenter's practical concerns. See, e.g., id. (emphasizing the
importance of an employee providing relevant biographical details other
than official title and position in connection with teaching, speaking,
and writing, as required by Sec. 2635.807(b)(1), and discussing how to
evaluate whether an employee has complied in good faith with this
provision); see also OGE Legal Advisory LA-14-08, at 2 (Nov. 19, 2014)
(stressing the importance of considering the totality of circumstances
in connection with use of title in other outside activities, such as
involvement with a professional society, to determine whether a
reasonable person could construe the reference to imply sanction or
endorsement of the organization or the employee's personal activities).
Because OGE believes that subparts G and H and the further guidance on
those provisions provide appropriate flexibility regarding use of title
and sufficiently address the commenter's concerns, OGE declines to make
the commenter's recommended change.
Fundraising
The same agency recommended that OGE amend the definition of
``participation in the conduct of an event'' at Sec. 2635.808(a)(2) to
clarify that the term includes presenting awards and being present on
stage during the presentation of awards. OGE declines to adopt these
changes given that the list of examples to which the commenter suggests
adding is not intended to be exhaustive. Additionally, it is OGE's
belief that the current language provides sufficient guidance for
practical application of the regulation by ethics officials and
employees, without being unnecessarily proscriptive regarding the
necessarily fact-specific application of this provision.
The same agency also requested certain clarifications in the new
social media examples added to Sec. 2635.808(c) relating to
fundraising in a personal capacity. In particular, the commenter
suggested updating example 5 to note that the employee's ``personal
solicitation'' could be sent by either official or personal email, and
suggested updating example 6 to note that ``any person'' includes
subordinates. OGE believes that the cited examples are appropriately
specific, and therefore declines to incorporate these changes.
Specifically, the general reference to an email transmission in example
5 does not suggest that such a transmission need be sent by either a
personal or an official email to be problematic. Similarly, the
reference to ``any person'' in example 6 is appropriately broad such
that it could include a subordinate.
I. Other
Incorporation of Obligations From Ethics Pledges
One individual commenter recommended that OGE implement certain
core provisions of recent Presidential ethics pledges that impose
additional obligations on certain noncareer employees. See, e.g., E.O.
13490 (Jan. 21, 2009); E.O. 13770 (Jan. 28, 2017); E.O. 13989 (Jan. 20,
2021). OGE declines to make such a change, which is outside the scope
of the modernization updates contemplated by this rulemaking, and about
which public input was requested. OGE further notes that it is the
prerogative of each Presidential administration to determine what, if
any, additional ethics obligations it wishes to impose on its
appointees, and that it would not be appropriate for OGE to implement
such obligations in a regulation that by design is intended to extend
across multiple administrations.
Subpart J
As discussed above, OGE recently engaged in a separate rulemaking
process that culminated in the addition of subpart J to the Standards.
This rulemaking makes no changes to subpart J, and revises and
republishes only subparts A through I of the Standards.
III. Matters of Regulatory Procedure
Regulatory Flexibility Act
As Acting Director of the Office of Government Ethics, I certify
under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this
final rule will not have a significant economic impact on a substantial
number of small entities because it primarily affects current Federal
executive branch employees.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this regulation does not contain information collection
requirements that require approval of the Office of Management and
Budget.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this final rule will not significantly or
uniquely affect small governments and will not result in increased
expenditures by State, local, and Tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
[[Page 43695]]
Executive Orders 12866, 13563, and 14094
In promulgating this rule, the Office of Government Ethics has
adhered to the regulatory philosophy and the applicable principles of
regulation set forth in Executive Order 12866, Regulatory Planning and
Review (58 FR 51735, Oct. 4, 1993); Executive Order 13563, Improving
Regulation and Regulatory Review (76 FR 3821, Jan. 21, 2011); and
Executive Order 14094, Modernizing Regulatory Review (88 FR 21879, Apr.
11, 2023). Executive Orders 13563 and 12866 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select the regulatory approaches that
maximize net benefits (including economic, environmental, public health
and safety effects, distributive impacts, and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
Although the number of substantive changes to the regulation is not
extensive, the benefits of implementing these changes are significant.
The existing regulation is not insufficient, but it has not been
significantly updated since its issuance in 1992. OGE's revisions
address common questions received from ethics officials, incorporate
OGE's experience gained from applying the regulation since its
inception, modernize existing examples and add new examples for more
useful reference, provide updated citations where regulatory provisions
or statutes have changed, and make technical corrections. These
revisions will provide greater clarity for executive branch employees
and ethics officials. Further, OGE anticipates that this additional
clarity will increase compliance and reduce the number of inadvertent
violations.
OGE does not anticipate any significant increased costs associated
with these changes. However, OGE notes that there may be an increase in
the time burden during the first year in which the regulatory updates
become effective, particularly for ethics officials, due to necessary
updates to training materials and other related ethics briefings,
questions regarding the interpretation of revised regulatory
provisions, and review of additional OGE guidance.
This rule has been designated as a ``significant regulatory
action'' under Executive Order 12866, although not significant under
section 3(f)(1) of Executive Order 12866. Accordingly, this rule has
been reviewed by the Office of Management and Budget.
Executive Order 12988
As Acting Director of the Office of Government Ethics, I have
reviewed this rule in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
Executive Order 13175
The Office of Government Ethics has evaluated this final rule under
the criteria set forth in Executive Order 13175 and determined that
Tribal consultation is not required as this final rule has no
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes.
List of Subjects in 5 CFR Part 2635
Conflict of interests, Executive branch standards of ethical
conduct, Government employees.
Approved: May 8, 2024
Shelley K. Finlayson,
Acting Director, U.S. Office of Government Ethics.
For the reasons set forth in the preamble, the U.S. Office of
Government Ethics amends 5 CFR part 2635 as follows:
PART 2635--STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE
EXECUTIVE BRANCH
0
1. The authority citation for part 2635 is revised to read as follows:
Authority: 5 U.S.C. 7301, 7351, 7353; 5 U.S.C. ch. 131; E.O.
12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O.
12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
0
2. Revise and republish subparts A through I to read as follows:
Subpart A--General Provisions
Sec.
2635.101 Basic obligation of public service.
2635.102 Definitions.
2635.103 Applicability to enlisted 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 and considerations for declining otherwise
permissible gifts.
2635.202 General prohibition on solicitation or acceptance of gifts.
2635.203 Definitions.
2635.204 Exceptions to the prohibition for acceptance of certain
gifts.
2635.205 Limitations on use of exceptions.
2635.206 Proper disposition of prohibited gifts.
Subpart C--Gifts Between Employees
2635.301 Overview.
2635.302 General standards.
2635.303 Definitions.
2635.304 Exceptions.
2635.305 Disposition of prohibited gifts.
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 Covered payments from former employers.
Subpart F--Seeking Other Employment
2635.601 Overview.
2635.602 Applicability and related considerations.
2635.603 Definitions.
2635.604 Recusal while seeking employment.
2635.605 Waiver or authorization permitting participation while
seeking employment.
2635.606 Recusal based on an arrangement concerning prospective
employment or otherwise after negotiations.
2635.607 Notification requirements for public financial disclosure
report filers regarding negotiations for or agreement of future
employment or compensation.
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.
2635.805 Service as an expert witness.
2635.806 [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.
[[Page 43696]]
Subpart A--General Provisions
Sec. 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 must 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. When a situation is not covered by the standards set forth
in this part, employees must 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, for example,
race, color, religion, sex (including pregnancy, gender identity, and
sexual orientation), national origin, age, genetic information, or
disability.
(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 of this part, 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.
Sec. 2635.102 Definitions.
The definitions listed in this section 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 Regulatory Commission. It does not
include the Government Accountability 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 will, when the conduct
in issue is that of the head of the agency, be deemed to require that
such determination, approval, or action be made or taken by the head of
the agency in consultation with the designated agency ethics official.
(c) Agency ethics official refers to the designated agency ethics
official, the alternate designated agency ethics official, any deputy
ethics official, and any additional ethics official who has been
delegated authority to assist in carrying out the responsibilities of
an agency's ethics program. The responsibilities of agency ethics
officials are described in Sec. 2638.104 of this chapter.
(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,
recusal, 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 Sec. 2638.104(a) of this chapter.
(g) Disciplinary action includes those disciplinary actions
referred to in Office of Personnel Management regulations at 5 CFR
chapter I 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
[[Page 43697]]
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) 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 an official capacity on
behalf of that agency or entity.
(k) 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.
(l) Supplemental agency regulation means a regulation issued
pursuant to Sec. 2635.105.
Sec. 2635.103 Applicability to enlisted members of the uniformed
services.
The provisions of this part are not applicable to enlisted members
of the uniformed services. However, each agency with jurisdiction over
enlisted members of the uniformed services may issue regulations
defining the ethical conduct obligations of enlisted members under its
jurisdiction. Such regulations or policies, if issued, should 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.
Sec. 2635.104 Applicability to employees on detail.
(a) Details to other agencies. Except as provided in paragraph (d)
of this section, employees on detail, including uniformed officers on
assignment, from their employing agencies to another agency for a
period in excess of 30 calendar days will be subject to any
supplemental agency regulations of the agency to which they are
detailed rather than to any supplemental agency regulations of their
employing agencies.
(b) Details to the legislative or judicial branch. Employees on
detail, including uniformed officers on assignment, from their
employing agencies to the legislative or judicial branch for a period
in excess of 30 calendar days will be subject to the ethical standards
of the branch or entity to which detailed. For the duration of any such
detail or assignment, employees will 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 their
employing agencies, but will 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 (c), an employee detailed to a
non-Federal entity remains subject to this part and to any supplemental
agency regulation of their 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 their
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, employees who are subject to an
agency statute which restricts their activities or financial holdings
specifically because of their status as an employee of that agency will
continue to be subject to any provisions in the supplemental agency
regulations of the employing agency that implement that statute.
Sec. 2635.105 Supplemental agency regulations.
In addition to the regulations set forth in this part, employees
must comply with any supplemental agency regulations issued by their
employing agencies under this section.
(a) An agency that wishes to supplement this part must 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 must 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 must submit its supplemental agency regulations to
the Federal Register for publication and codification at the expense of
the agency in this title. 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.
(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.
[[Page 43698]]
Sec. 2635.106 Disciplinary and corrective action.
(a) Except as provided in Sec. 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
Governmentwide 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 (including pregnancy, gender
identity, and sexual orientation), national origin, age, genetic
information, or disability is required to follow applicable statutory
and regulatory procedures, including those of the Equal Employment
Opportunity Commission.
Sec. 2635.107 Ethics advice.
(a) As required by Sec. 2638.104(a) and (d) of this chapter, each
agency has a designated agency ethics official and an alternate
designated agency ethics official; these are the employees who have the
primary responsibility for directing the daily activities of an
agency's ethics program. Acting directly or through other officials,
the designated agency ethics official is responsible for providing
ethics advice and counseling regarding the application of this part.
(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. When 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. Agency ethics officials are required by 28 U.S.C. 535
to report any information they receive relating to a violation of the
criminal code, title 18 of the United States Code.
Subpart B--Gifts From Outside Sources
Sec. 2635.201 Overview and considerations for declining otherwise
permissible gifts.
(a) Overview. This subpart contains standards that prohibit an
employee from soliciting or accepting any gift from a prohibited source
or any gift given because of the employee's official position, unless
the item is excluded from the definition of a gift (see Sec.
2635.203(b)) or falls within one of the exceptions set forth in this
subpart.
(b) Considerations for declining otherwise permissible gifts. (1)
Every employee has a fundamental responsibility to the United States
and its citizens to place loyalty to the Constitution, laws, and
ethical principles above private gain. An employee's actions should
promote the public's trust that this responsibility is being met. For
this reason, employees should consider declining otherwise permissible
gifts if they believe that a reasonable person with knowledge of the
relevant facts would question the employee's integrity or impartiality
as a result of accepting the gift.
(2) Employees who are considering whether acceptance of a gift
would lead a reasonable person with knowledge of the relevant facts to
question their integrity or impartiality may consider, among other
relevant factors, whether:
(i) The gift has a high market value;
(ii) The timing of the gift creates the appearance that the donor
is seeking to influence an official action;
(iii) The gift was provided by a person who has interests that may
be substantially affected by the performance or nonperformance of the
employee's official duties; and
(iv) Acceptance of the gift would provide the donor with
significantly disproportionate access.
(3) Notwithstanding paragraph (b)(1) of this section, an employee
who accepts a gift that qualifies for an exception under Sec. 2635.204
does not violate this subpart or the Principles of Ethical Conduct set
forth in Sec. 2635.101(b).
(4) Employees who have questions regarding this subpart, including
whether the employee should decline a gift that would otherwise be
permitted under an exception found in Sec. 2635.204, should seek
advice from an agency ethics official.
Example 1 to paragraph (b): An employee of the Peace Corps is in
charge of making routine purchases of office supplies. After a
promotional presentation to highlight several new products, a vendor
offers to buy the employee lunch, which costs less than $20. The
employee is concerned that a reasonable person may question their
impartiality by accepting the free lunch, as the timing of the offer
indicates that the donor may be seeking to influence an official action
and the company has interests that may be substantially affected by the
performance or nonperformance of the employee's duties. The employee
concludes that appearance considerations weigh against accepting the
gift.
Sec. 2635.202 General prohibition on solicitation or acceptance of
gifts.
(a) Prohibition on soliciting gifts. Except as provided in this
subpart, an employee may not, directly or indirectly:
(1) Solicit a gift from a prohibited source; or
(2) Solicit a gift to be given because of the employee's official
position.
(b) Prohibition on accepting gifts. Except as provided in this
subpart, an employee may not, directly or indirectly:
(1) Accept a gift from a prohibited source; or
(2) Accept a gift given because of the employee's official
position.
(c) Relationship to illegal gratuities statute. A gift accepted
pursuant to an exception found in this subpart will not constitute an
illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B), unless
it is accepted in return for being influenced in the performance of an
official act. As more fully described in Sec. 2635.205(d)(1), an
employee may not solicit or accept a gift if to do so would be
prohibited by the Federal bribery statute, 18 U.S.C. 201(b).
Example 1 to paragraph (c): A Government contractor who specializes
in information technology software has offered an employee of the
Department of Energy's information technology acquisition division a
$15 gift card to a local restaurant if the employee will recommend to
the agency's contracting officer that the agency select the
contractor's products during the next
[[Page 43699]]
acquisition. Even though the gift card is less than $20, the employee
may not accept the gift under Sec. 2635.204(a) because it is
conditional upon official action by the employee. Pursuant to this
paragraph (c) and Sec. 2635.205(a), notwithstanding any exception to
the rules in this part, an employee may not accept a gift in return for
being influenced in the performance of an official act.
Sec. 2635.203 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Agency has the meaning set forth in Sec. 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. The term excludes the following:
(1) Modest items of food and non-alcoholic 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 primarily for
presentation;
Example 1 to paragraph (b)(2): After giving a speech at the
facility of a pharmaceutical company, a Government employee is
presented with a glass paperweight in the shape of a pill capsule with
the name of the company's latest drug and the date of the speech
imprinted on the side. The employee may accept the paperweight because
it is an item with little intrinsic value which is intended primarily
for presentation.
Example 2 to paragraph (b)(2): After participating in a panel
discussion hosted by an international media company, a Government
employee is presented with an inexpensive portable music player
emblazoned with the media company's logo. The portable music player has
a market value of $25. The employee may not accept the portable music
player as it has a significant independent use as a music player rather
than being intended primarily for presentation.
Example 3 to paragraph (b)(2): After giving a speech at a
conference held by a national association of miners, a Department of
Commerce employee is presented with a block of granite that is engraved
with the association's logo, a picture of the Appalachian Mountains,
the date of the speech, and the employee's name. The employee may
accept this item because it is similar to a plaque, is designed
primarily for presentation, and has little intrinsic value.
(3) Loans from banks and other financial institutions on terms
generally available to the public;
(4) Opportunities and benefits, including favorable rates,
commercial discounts, and free attendance or participation 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 the employee's
official duties;
Example 1 to paragraph (b)(5): A Government employee is attending a
free trade show on official time. The trade show is held in a public
shopping area adjacent to the employee's office building. The employee
voluntarily enters a drawing at an individual vendor's booth, which is
open to the public, by filling in an entry form on the vendor's display
table and dropping it into the contest box. The employee may accept the
resulting prize because entry into the contest was not required by or
related to their official duties.
Example 2 to paragraph (b)(5): Attendees at a conference, which is
not open to the public, are entered in a drawing for a weekend getaway
to Bermuda as a result of being registered for the conference. A
Government employee who attends the conference in an official capacity
could not accept the prize under paragraph (b)(5) of this section, as
the event is not open to the public.
(6) Pension and other benefits resulting from continued
participation in an employee welfare and benefits plan maintained by a
current or former employer;
(7) Anything which is paid for by the Government or secured by the
Government under Government contract;
Example 1 to paragraph (b)(7): An employee at the Occupational
Safety and Health Administration is assigned to travel away from their
duty station to conduct an investigation of a collapse at a
construction site. The employee's agency is paying for relevant travel
expenses, including airfare. The employee may accept and retain travel
promotional items, such as frequent flyer miles, received as a result
of this official travel, to the extent permitted by 5 U.S.C. 5702 note
and 41 CFR part 301-53.
(8) Free attendance to an event provided by the sponsor of the
event to:
(i) An employee who is assigned to present information on behalf of
the agency at the event on any day when the employee is presenting;
(ii) An employee whose presence on any day of the event is deemed
to be essential by the agency to the presenting employee's
participation in the event, provided that the employee is accompanying
the presenting employee; and
(iii) One guest of the presenting employee on any day when the
employee is presenting, provided that others in attendance will
generally be accompanied by a guest, the offer of free attendance for
the guest is unsolicited, and the agency designee, orally or in
writing, has authorized the presenting employee to accept;
Example 1 to paragraph (b)(8): An employee of the Department of the
Treasury who is assigned 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
Sec. 2635.204(a), the employee may accept a token of appreciation that
has a market value of $20 or less.
Example 2 to paragraph (b)(8): An employee of the Securities and
Exchange Commission is assigned to present the agency's views at a
roundtable discussion of an ongoing working group. The employee may
accept free attendance to the meeting under paragraph (b)(8) of this
section because the employee has been assigned to present information
at the meeting on behalf of the agency. If it is determined by the
agency that it is essential that other employees accompany the
presenting employee to the roundtable discussion, the accompanying
employees may also accept free attendance to the meeting under
paragraph (b)(8)(ii) of this section.
Example 3 to paragraph (b)(8): An employee of the United States
Trade and Development Agency is invited to attend a cocktail party
hosted by a prohibited source. The employee believes that there will be
an opportunity to discuss official matters with other attendees while
at the event. Although the employee may voluntarily discuss official
matters with other
[[Page 43700]]
attendees, the employee has not been assigned to present information on
behalf of the agency. The employee may not accept free attendance to
the event under paragraph (b)(8) of this section.
(9) 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 the employee's
official duties which take place away from the employee's duty station,
provided that the agency's acceptance is in accordance with the
implementing regulations at 41 CFR chapter 304; and
(ii) Other gifts provided in-kind which have been accepted by an
agency under its agency gift acceptance statute; and
(10) Anything for which market value is paid by the employee.
(c) Market value means the cost that a member of the general public
would reasonably expect to 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 is deemed to be the
face value of the ticket.
Example 1 to paragraph (c): An employee who has been given a watch
inscribed with the corporate logo of a prohibited source may determine
its market value based on the observation that a comparable watch, not
inscribed with a logo, generally sells for about $50.
Example 2 to paragraph (c): During an official visit to a factory
operated by a well-known athletic footwear manufacturer, an employee of
the Department of Labor is offered a commemorative pair of athletic
shoes manufactured at the factory. Although the cost incurred by the
donor to manufacture the shoes was $17, the market value of the shoes
would be the $100 that the employee would have to pay for the shoes on
the open market.
Example 3 to paragraph (c): A prohibited source has offered a
Government 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.
Example 4 to paragraph (c): A company offers an employee of the
Federal Communication Commission (FCC) free attendance for two to a
private skybox at a ballpark to watch a major league baseball game. The
skybox is leased annually by the company, which has business pending
before the FCC. The skybox tickets provided to the employee do not have
a face value. To determine the market value of the tickets, the
employee must add the face value of two of the most expensive publicly
available tickets to the game and the market value of any food,
parking, or other tangible benefits provided in connection with the
gift of attendance that are not already included in the cost of the
most expensive publicly available tickets.
Example 5 to paragraph (c): An employee of the Department of
Agriculture is invited to a reception held by a prohibited source.
There is no entrance fee to the reception event or to the venue. To
determine the market value of the gift, the employee must add the
market value of any entertainment, food, beverages, or other tangible
benefit provided to attendees in connection with the reception, but
need not consider the cost incurred by the sponsor to rent or maintain
the venue where the event is held. The employee may rely on a per-
person cost estimate provided by the sponsor of the event, unless the
employee or an agency designee has determined that a reasonable person
would find that the estimate is clearly implausible.
(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 the
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 given because of the employee's official position if
the gift is from a person other than an employee and would not have
been given had the employee not held the status, authority, or duties
associated with the employee's Federal position.
Note 1 to paragraph (e): Gifts between employees are subject to
the limitations set forth in subpart C of this part.
Example 1 to paragraph (e): When 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 to paragraph (e): 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 positions,
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 the
employee's parent, sibling, spouse, child, dependent relative, or a
member of the employee's household 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 the employee has not indirectly
solicited or accepted a gift by the raising of funds or other support
for a charitable organization if done in accordance with Sec.
2635.808.
Example 1 to paragraph (f)(2): 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) Free attendance includes waiver of all or part of the fee for
an event or the provision of food, refreshments, entertainment,
instruction, or materials furnished to all attendees as an integral
part of the event. It does not include travel expenses, lodgings, or
entertainment collateral to the event. It does not include meals taken
other than in a group setting with all other attendees, unless the
employee is a presenter at the event and is invited to a separate meal
for participating presenters that is hosted by the sponsor of the
event. When the offer of free attendance has been extended to an
accompanying guest, the market value of the gift of free attendance
includes
[[Page 43701]]
the market value of free attendance by both the employee and the guest.
(h) Legal expense fund has the meaning set forth in Sec.
2635.1003.
(i) Pro bono legal services has the meaning set forth in Sec.
2635.1003.
Sec. 2635.204 Exceptions to the prohibition for acceptance of certain
gifts.
Subject to the limitations in Sec. 2635.205, this section
establishes exceptions to the prohibitions set forth in Sec.
2635.202(a) and (b). Even though acceptance of a gift may be permitted
by one of the exceptions contained in this section, it is never
inappropriate and frequently prudent for an employee to decline a gift
if acceptance would cause a reasonable person to question the
employee's integrity or impartiality. Section 2635.201(b) identifies
considerations for declining otherwise permissible gifts.
(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 (a)
does not exceed $50 in a calendar year. The exception in this paragraph
(a) does not apply to gifts of cash or of investment interests such as
stock, bonds, or certificates of deposit. When 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. When 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 to paragraph (a): An employee of the Securities and
Exchange Commission and their spouse have been invited by a
representative of a regulated entity to a community theater production,
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. The couple may attend the play only if the employee pays
the full $60 value of the two tickets.
Example 2 to paragraph (a): An employee of the National Geospatial-
Intelligence Agency has been invited by an association of cartographers
to speak about the agency's role in the evolution of missile
technology. At the conclusion of the speech, the association presents
the employee a framed map with a market value of $18 and a ceramic mug
that has a market value of $15. The employee may accept the map or the
mug, but not both, because the aggregate value of these two tangible
items exceeds $20.
Example 3 to paragraph (a): On four occasions during the calendar
year, an employee of the Defense Logistics Agency (DLA) 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 Sec. 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 a
cousin, who is employed by the same corporation, if the cousin's
birthday present can be accepted under the exception at paragraph (b)
of this section for gifts based on a personal relationship.
Example 4 to paragraph (a): 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 (EPA) has accepted an association's
gift of travel expenses and conference fees for an employee to attend a
conference on the long-term effect of radon exposure. While at the
conference, the employee may accept a gift basket of $20 or less from
one of the companies underwriting the event even though it was not
approved in advance by the EPA. Although 31 U.S.C. 1353 is the
authority under which the EPA accepted the gift to the agency of travel
expenses and conference fees, the gift basket is a gift to the employee
rather than to the EPA.
Example 5 to paragraph (a): During off-duty time, an employee of
the Department of Defense (DoD) attends a trade show involving
companies that are DoD contractors. The employee is offered software
worth $15 at X Company's booth, a calendar worth $12 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.
Example 6 to paragraph (a): An employee of the Department of
Defense (DoD) is being promoted to a higher level position in another
DoD office. Six individuals, each employed by a different defense
contractor, who have worked with the DoD employee over the years,
decide to act in concert to pool their resources to buy the employee a
nicer gift than each could buy separately. Each defense contractor
employee contributes $20 to buy a desk clock for the DoD employee that
has a market value of $120. Although each of the contributions does not
exceed the $20 limit, the employee may not accept the $120 gift because
it is a single gift that has a market value in excess of $20.
Example 7 to paragraph (a): During a holiday party, an employee of
the Department of State is given a $15 store gift card to a national
coffee chain by an agency contractor. The employee may accept the card
as the market value is less than $20. The employee could not, however,
accept a gift card that is issued by a credit card company or other
financial institution, because such a card is equivalent to a gift of
cash.
(b) Gifts based on a personal relationship. An employee may accept
a gift given by an individual 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 and nature of the
relationship and whether the family member or friend personally pays
for the gift.
Example 1 to paragraph (b): An employee of the Federal Deposit
Insurance Corporation (FDIC) has been dating an accountant employed by
a member bank. As part of its ``Work-Life Balance'' program, the bank
has given each employee in the accountant's division two tickets to a
professional basketball game 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 the invitation to attend
the game. Even though the tickets were initially purchased by the
member bank, they were given without reservation to the accountant to
use as desired, and the invitation to the employee was motivated by
their personal friendship.
Example 2 to paragraph (b): Three partners in a law firm that
handles corporate mergers have invited an employee of the Federal Trade
Commission (FTC) 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 the
employee has developed an amicable relationship with the three partners
as a result of the firm's dealings with the FTC. As
[[Page 43702]]
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.
Example 3 to paragraph (b): A Peace Corps employee enjoys using a
social media site on the internet in a personal capacity outside of
work. The employee has used the site to keep in touch with friends,
neighbors, coworkers, professional contacts, and other individuals they
have met over the years through both work and personal activities. One
of these individuals works for a contractor that provides language
services to the Peace Corps. The employee was acting in an official
capacity when they met the individual at a meeting to discuss a matter
related to the contract between their respective employers. Thereafter,
the two communicated occasionally regarding contract matters, and later
also granted one another access to join their social media networks
through their respective social media accounts. However, the pair did
not communicate further in their personal capacities, carry on
extensive personal interactions, or meet socially outside of work. One
day, the individual, whose employer continues to serve as a Peace Corps
contractor, contacts the employee to offer a pair of concert tickets
worth $30 apiece. Although the employee and the individual are
connected through social media, the circumstances do not demonstrate
that the gift was clearly motivated by a personal relationship, rather
than the position of the employee, and therefore the employee may not
accept the gift pursuant to paragraph (b) of this section.
(c) Discounts and similar benefits. In addition to those
opportunities and benefits excluded from the definition of a gift by
Sec. 2635.203(b)(4), an employee may accept:
(1) A reduction or waiver of the fees for 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,
commercial discounts, and free attendance or participation 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;
(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; or
(iv) Offered to employees by an established employee organization,
such as an association composed of Federal employees or a nonprofit
employee welfare organization, because of the employees' Government
employment, so long as the employee is part of the class of individuals
eligible for assistance from the employee organization as set forth in
the organization's governing documents.
Example 1 to paragraph (c)(2): A computer company offers a discount
on the purchase of computer equipment to all public and private sector
computer procurement officials who work in organizations with over 300
employees. An employee who works as the computer procurement official
for a Government agency could not accept the discount to purchase the
personal computer under the exception in paragraph (c)(2)(i) of this
section. The employee's membership in the group to which the discount
is offered is related to Government employment because membership is
based on the employee's status as a procurement official with the
Government.
Example 2 to paragraph (c)(2): An employee of the Consumer Product
Safety Commission (CPSC) 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
employee associations and similar organizations to large segments of
the public.
Example 3 to paragraph (c)(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 4 to paragraph (c)(2): A nonprofit military relief society
provides access to financial counseling services, loans, and grants to
all sailors and Marines. A service member may accept financial benefits
from the relief society, including to cover legal expenses, because the
benefits are offered by an employee organization that was established
before the legal matter arose, and because the benefits are being
offered because of the employees' Government employment, as set forth
in the relief society's governing documents.
(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, unless authorized by statute or regulation (e.g., 5
U.S.C. 5702 note, regarding frequent flyer miles).
Example 1 to paragraph (c)(3): The administrative officer for a
field office of U.S. Immigration and Customs Enforcement (ICE) has
signed an 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 ICE funds, the administrative officer cannot keep the briefcase
which, if claimed and received, is Government property.
(d) Awards and honorary degrees--(1) Awards. An employee may accept
a bona fide award for meritorious public service or achievement and any
item incident to the award, provided that:
(i) The award and any item incident to the award are not from a
person who has interests that may be substantially affected by the
performance or nonperformance of the employee's official duties, or
from an association or other organization if a majority of its members
have such interests; and
(ii) If the award or any item incident to the award is in the form
of cash or an investment interest, or if the aggregate value of the
award and any item incident to the award, other than free attendance to
the event provided to the employee and to members of the employee's
family by the sponsor of the event, exceeds $200, the agency ethics
official has made a written determination that the award is made as
part of an established program of recognition.
Example 1 to paragraph (d)(1): Based on a written determination by
an agency ethics official that the prize meets the criteria set forth
in paragraph (d)(2) of this section, an employee of the National
Institutes of Health (NIH) 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.
[[Page 43703]]
Example 2 to paragraph (d)(1): A defense contractor, ABC Systems,
has an annual award program for the outstanding public employee of the
year. The award includes a cash payment of $1,000. The award program is
wholly funded to ensure its continuation on a regular basis for the
next twenty years and selection of award recipients is made pursuant to
written standards. An employee of the Department of the Air Force, who
has duties that include overseeing contract performance by ABC Systems,
is selected to receive the award. The employee may not accept the cash
award because ABC Systems has interests that may be substantially
affected by the performance or nonperformance of the employee's
official duties.
Example 3 to paragraph (d)(1): An ambassador selected by a
nonprofit organization as a recipient of its annual award for
distinguished service in the interest of world peace may, together with
their spouse and children, attend the awards ceremony dinner and accept
a crystal bowl worth $200 presented during the ceremony. However, if
the organization has also offered airline tickets for the ambassador
and the 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 the ambassador 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.
(2) Established program of recognition. An award and an item
incident to the award are made pursuant to an established program of
recognition if:
(i) Awards have been made on a regular basis or, if the program is
new, there is a reasonable basis for concluding that awards will be
made on a regular basis based on funding or funding commitments; and
(ii) Selection of award recipients is made pursuant to written
standards.
(3) Honorary degrees. An employee may accept an honorary degree
from an institution of higher education, as defined at 20 U.S.C. 1001,
or from a similar foreign institution of higher education, 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.
Note 1 to paragraph (d)(3): When the honorary degree is offered
by a foreign institution of higher education, the agency may need to
make a separate determination as to whether the institution of
higher education is a foreign government for purposes of the
Emoluments Clause of the U.S. Constitution (U.S. Const., art. I,
sec. 9, cl. 8), which forbids employees from accepting emoluments,
presents, offices, or titles from foreign governments, without the
consent of Congress. The Foreign Gifts and Decorations Act, 5 U.S.C.
7342, however, may permit the acceptance of honorary degrees in some
circumstances.
Example 1 to paragraph (d)(3): A well-known university located in
the United States 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.
(4) Presentation events. An employee who may accept an award or
honorary degree pursuant to paragraph (d)(1) or (3) of this section may
also accept free attendance to the event provided to the employee and
to members of the employee's family by the sponsor of an event. In
addition, the employee may also accept unsolicited offers of travel to
and from the event provided to the employee and to members of the
employee's family by the sponsor of the event. Travel expenses accepted
under this paragraph (d)(4) must be added to the value of the award for
purposes of determining whether the aggregate value of the award
exceeds $200.
(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 to paragraph (e)(1): A Department of Agriculture employee
whose spouse is a computer programmer employed by a Department of
Agriculture contractor may attend the company's annual retreat for all
of its employees and their families held at a resort facility. However,
under Sec. 2635.502, the employee may need to recuse from performing
official duties affecting the spouse's employer.
Example 2 to paragraph (e)(1): When the spouses of other clerical
personnel have not been invited, an employee of the Defense Contract
Audit Agency whose spouse 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 the spouse
received a special invitation from the company for them to attend as a
couple.
(2) Resulting from the employee's outside business or employment
activities when it is clear that such benefits are based on the outside
business or employment activities and have not been offered or enhanced
because of the employee's official status;
Example 1 to paragraph (e)(2): The members of an Army Corps of
Engineers environmental advisory committee that meets six times per
year are special Government employees. A member who has a consulting
business may accept an invitation to a $50 dinner from a corporate
client, an Army construction contractor, unless, for example, the
invitation was extended in order to discuss the activities of the
advisory 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 recusal requirements of subpart F of this
part applicable when seeking employment; or
Example 1 to paragraph (e)(3): 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 the employee has
properly recused from further work on the regulations as required by
subpart F of this part, the employee may enter into employment
discussions with the company and may accept the company's offer to pay
for airfare, hotel, and meals in connection with an interview trip.
(4) Provided by a former employer to attend a reception or similar
event when other former employees have been invited to attend, the
invitation and benefits are based on the former employment
relationship, and it is clear that such benefits have not been offered
or enhanced because of the employee's official position.
Example 1 to paragraph (e)(4): An employee of the Department of the
Army is invited by a former employer, an Army contractor, to attend its
annual holiday dinner party. The former employer traditionally invites
both its current and former employees to the holiday dinner regardless
of their current employment activities. Under these circumstances, the
employee may attend the dinner because the dinner
[[Page 43704]]
invitation is a result of the employee's former outside employment
activities, other former employees have been asked to attend, and the
gift is not offered because of the employee's official position.
(5) For purposes of paragraphs (e)(1) through (4) of this section,
employment means any form of non-Federal employment or business
relationship involving the provision of personal services.
(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, for the employee and an accompanying guest,
when provided, in connection with such active participation, by a
political organization described in 26 U.S.C. 527(e). Any other
employees, such as a security officers, whose official duties require
them 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 to paragraph (f): 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) Gifts of free attendance at widely attended gatherings--(1)
Authorization. When authorized in writing by the agency designee
pursuant to paragraph (g)(3) of this section, an employee may accept an
unsolicited gift of free attendance at all or appropriate parts of a
widely attended gathering. For an employee who is subject to a leave
system, attendance at the event will 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.
(2) Widely attended gatherings. A gathering is widely attended if
it is expected that:
(i) A large number of persons will attend;
(ii) 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; and
(iii) There will be an opportunity to exchange ideas and views
among invited persons.
(3) Written authorization by the agency designee. The agency
designee may authorize an employee or employees to accept a gift of
free attendance at all or appropriate parts of a widely attended
gathering only if the agency designee issues a written determination
after finding that:
(i) The event is a widely attended gathering, as set forth in
paragraph (g)(2) of this section;
(ii) The employee's attendance at the event is in the agency's
interest because it will further agency programs or operations;
(iii) The agency's interest in the employee's attendance outweighs
the concern that the employee may be, or may appear to be, improperly
influenced in the performance of official duties; and
(iv) If a person other than the sponsor of the event invites or
designates the employee as the recipient of the gift of free attendance
and bears the cost of that gift, the event is expected to be attended
by more than 100 persons, and the value of the gift of free attendance
does not exceed $480.
(4) Determination of agency interest. In determining whether the
agency's interest in the employee's attendance outweighs the concern
that the employee may be, or may appear to be, improperly influenced in
the performance of official duties, the agency designee may consider
relevant factors including:
(i) The importance of the event to the agency;
(ii) The nature and sensitivity of any pending matter affecting the
interests of the person who extended the invitation and the
significance of the employee's role in any such matter;
(iii) The purpose of the event;
(iv) The identity of other expected participants;
(v) Whether acceptance would reasonably create the appearance that
the donor is receiving preferential treatment;
(vi) Whether the Government is also providing persons with views or
interests that differ from those of the donor with access to the
Government; and
(vii) The market value of the gift of free attendance.
(5) Cost provided by person other than the sponsor of the event.
The cost of the employee's attendance will be considered to be provided
by a person other than the sponsor of the event when such person
designates the employee to be invited and bears the cost of the
employee's attendance through a contribution or other payment intended
to facilitate the 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 guest. When others in attendance will generally be
accompanied by a guest of their choice, and when 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 one 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) of this section. The authorization required by this
paragraph (g)(6) must be provided in writing.
Example 1 to paragraph (g): An aerospace industry association that
is a prohibited source sponsors an industry-wide, two-day seminar for
which it charges a fee of $800 and anticipates attendance of
approximately 400. An Air Force contractor pays $4,000 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, rather than the association, provided the cost of their
attendance; the contractor designated the specific employees to receive
the gift of free attendance; and the value of the gift exceeds $480 per
employee.
Example 2 to paragraph (g): An aerospace industry association that
is a prohibited source sponsors an industry-wide, two-day seminar for
which it charges a fee of $25 and anticipates attendance of
approximately 50. An Air Force contractor pays $125 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, rather than
the association, provided the cost of their attendance; the contractor
designated the specific employees to receive the gift of free
attendance; and the event was not expected to be attended by more than
100 persons.
Example 3 to paragraph (g): An aerospace industry association that
is a prohibited source sponsors an industry-wide, two-day seminar for
which it charges a fee of $800 and anticipates attendance of
approximately 400. An Air Force contractor pays $4,000 in order that
the association might invite any five Federal employees. An Air
[[Page 43705]]
Force official to whom the sponsoring association, rather than the
contractor, extended one of the five invitations could attend if the
employee's participation were determined to be in the interest of the
agency and the employee received a written authorization.
Example 4 to paragraph (g): 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 $480 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
and the agency designee provides a written authorization, the employee
may accept the invitation from the news organization because more than
100 persons will attend and the cost of the ticket does not exceed
$480. However, if the invitation were extended to the employee and an
accompanying guest, the employee's guest could not be authorized to
attend for free because the market value of the gift of free attendance
would exceed $480.
Example 5 to paragraph (g): An employee of the Department of Energy
(DOE) and their spouse 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 their spouse. The DOE
official believes the dinner party will provide 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 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 spouse 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 6 to paragraph (g): 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 gift exception at
paragraph (a) of this section.
Example 7 to paragraph (g): 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 under Sec. 2635.203(b)(8). If
the conference is widely attended, the employee may be authorized to
accept the sponsor's offer to waive the attendance fee for the
remainder of the conference if the agency designee has made a written
determination that attendance is in the agency's interest.
Example 8 to paragraph (g): A military officer has been approved to
attend a widely attended gathering, pursuant to paragraph (g) of this
section, that will be held in the same city as the officer's duty
station. The defense contractor sponsoring the event has offered to
transport the officer in a limousine to the event. The officer may not
accept the offer of transportation because the definition of free
attendance set forth in Sec. 2635.203(g) excludes travel, and the
market value of the transportation would exceed $20.
(h) Social invitations. An employee may accept food, refreshments,
and entertainment, not including travel or lodgings, for the employee
and an accompanying guest, at a social event attended by several
persons if:
(1) The invitation is unsolicited and is from a person who is not a
prohibited source;
(2) No fee is charged to any person in attendance; and
(3) If either the sponsor of the event or the person extending the
invitation to the employee is not an individual, the agency designee
has made a written determination after finding that the employee's
attendance would not cause a reasonable person with knowledge of the
relevant facts to question the employee's integrity or impartiality,
consistent with Sec. 2635.201(b).
Example 1 to paragraph (h): An employee of the White House Press
Office has been invited to a social dinner for current and former White
House Press Officers at the home of an individual who is not a
prohibited source. The employee may attend even if the invitation is
because of the employee's 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 300-3.1 may accept unsolicited 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 Rates of Per Diem
Allowances for Travel in Foreign Areas, Per Diem Supplement, section
925 to the Standardized Regulations (GC-FA), available at
www.state.gov;
(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 to paragraph (i): A number of local business owners in a
developing country are eager for a U.S. company to locate a
manufacturing facility in their province. An official of the U.S.
International Development Finance Corporation may accompany the
visiting vice president of the U.S. company to a dinner meeting hosted
by the business owners at a province restaurant when 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 their own behalf or on behalf of any family
member, provided that such acceptance does not violate Sec.
2635.205(a) or (b), 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 when acceptance of the gift is specifically
authorized by a supplemental agency regulation issued with the
concurrence of the Office of
[[Page 43706]]
Government Ethics, pursuant to Sec. 2635.105.
(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 which a statute specifically
authorizes an employee to accept. Gifts which may be accepted 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. The employee's acceptance must be approved by the
agency in accordance with part 410 of this title; or
(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.
(m) Gifts of informational materials. (1) An employee may accept
unsolicited gifts of informational materials, provided that:
(i) The aggregate market value of all informational materials
received from any one person does not exceed $100 in a calendar year;
or
(ii) If the aggregate market value of all informational materials
from the same person exceeds $100 in a calendar year, an agency
designee has made a written determination after finding that acceptance
by the employee would not be inconsistent with the standard set forth
in Sec. 2635.201(b).
(2) Informational materials are writings, recordings, documents,
records, or other items that:
(i) Are educational or instructive in nature;
(ii) Are not primarily created for entertainment, display, or
decoration; and
(iii) Contain information that relates in whole or in part to the
following categories:
(A) The employee's official duties or position, profession, or
field of study;
(B) A general subject matter area, industry, or economic sector
affected by or involved in the programs or operations of the agency; or
(C) Another topic of interest to the agency or its mission.
Example 1 to paragraph (m): An analyst at the Agricultural Research
Service receives an edition of an agricultural research journal in the
mail from a consortium of private farming operations concerned with
soil toxicity. The journal edition has a market value of $75. The
analyst may accept the gift.
Example 2 to paragraph (m): An inspector at the Mine Safety and
Health Administration receives a popular novel with a market value of
$25 from a mine operator. Because the novel is primarily for
entertainment purposes, the inspector may not accept the gift.
Example 3 to paragraph (m): An employee at the Department of the
Army is offered an encyclopedia on cyberwarfare from a prohibited
source. The cost of the encyclopedia is far in excess of $100. The
agency designee determines that acceptance of the gift would be
inconsistent with the standard set out in Sec. 2635.201(b). The
employee may not accept the gift under paragraph (m) of this section.
(n) Legal expense funds and pro bono legal services. An employee
who seeks legal representation for a matter arising in connection with
the employee's past or current official position, the employee's prior
position on a campaign of a candidate for President or Vice President,
or the employee's prior position on a Presidential Transition Team may
accept:
(1) Payments for legal expenses paid out of a legal expense fund
that is established and operated in accordance with subpart J of this
part; and
(2) Pro bono legal services provided in accordance with subpart J
of this part.
Sec. 2635.205 Limitations on use of exceptions.
Notwithstanding any exception provided in this subpart, other than
Sec. 2635.204(j), an employee may not:
(a) Accept a gift in return for being influenced in the performance
of an official act;
(b) Use, or permit the use of, the employee's Government position,
or any authority associated with public office, to solicit or coerce
the offering of a gift;
(c) 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 the employee's public office for private gain;
Example 1 to paragraph (c): A purchasing agent for a Department of
Veterans Affairs medical center routinely deals with representatives of
pharmaceutical manufacturers who provide information about new company
products. Because of a crowded calendar, the purchasing agent has
offered to meet with manufacturer representatives during 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 Sec. 2635.204(a) on gifts of
$20 or less, the practice of accepting even these modest gifts on a
recurring basis is improper.
(d) Accept a gift in violation of any statute; relevant statutes
applicable to all employees include, but are not limited to:
(1) 18 U.S.C. 201(b), which prohibits public officials from,
directly or indirectly, corruptly demanding, seeking, receiving,
accepting, or agreeing to receive or accept anything of value
personally or for any other person or entity in return for being
influenced in the performance of an official act; being influenced to
commit or aid in committing, or to collude in, or allow, any fraud, or
make opportunity for the commission of any fraud, on the United States;
or for being induced to do or omit to do any action in violation of
their official duties. 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
(2) 18 U.S.C. 209, which prohibits employees, other than special
Government employees, 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;
(e) Accept a gift in violation of any Executive order; or
(f) Accept any gift when acceptance of the gift is specifically
prohibited by a supplemental agency regulation issued with the
concurrence of the Office of Government Ethics, pursuant to Sec.
2635.105.
Sec. 2635.206 Proper disposition of prohibited gifts.
(a) Unless a gift is accepted by an agency acting under specific
statutory authority, an employee who has received a gift that cannot be
accepted under this subpart must dispose of the gift in accordance with
the procedures set forth in this section. The employee must promptly
complete the authorized disposition of the gift. The obligation to
dispose of a gift that cannot be accepted under this subpart is
independent of an
[[Page 43707]]
agency's decision regarding corrective or disciplinary action under
Sec. 2635.106.
(1) Gifts of tangible items. The employee must promptly return any
tangible item to the donor or pay the donor its market value; or, in
the case of a tangible item with a market value of $100 or less, the
employee may destroy the item. 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.
Example 1 to paragraph (a)(1): A Department of Commerce employee
received a $25 T-shirt from a prohibited source after providing
training at a conference. Because the gift would not be permissible
under an exception to this subpart, the employee must either return or
destroy the T-shirt or promptly reimburse the donor $25. Destruction
may be carried out by physical destruction or by permanently discarding
the T-shirt by placing it in the trash.
Example 2 to paragraph (a)(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 a speech on
Federal lands policy. To comply with this section, the employee must
either promptly return the barometer or pay the donor the market value
of the gift. Alternatively, the National Park Service may choose to
accept the gift if permitted under specific statutory gift acceptance
authority. The employee may not destroy this gift, as the market value
is in excess of $100.
(2) Gifts of perishable items. When it is not practical to return a
tangible item in accordance with paragraph (a)(1) of this section
because the item is perishable, the employee may, at the discretion of
the employee's supervisor or the agency designee, give the item to an
appropriate charity, share the item within the recipient's office, or
destroy the item.
Example 1 to paragraph (a)(2): 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) Gifts of intangibles. The employee must promptly reimburse the
donor the market value for any entertainment, favor, service, benefit,
or other intangible. Subsequent reciprocation by the employee does not
constitute reimbursement.
Example 1 to paragraph (a)(3): A Department of Defense employee
wishes to attend a charitable event for which they were offered a $300
ticket by a prohibited source. Although attendance is not in the
interest of the agency under Sec. 2635.204(g), the employee may attend
if they reimburse the donor the $300 face value of the ticket.
(4) Gifts from foreign governments or international organizations.
The employee must dispose of gifts from foreign governments or
international organizations in accordance with 41 CFR part 102-42.
(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) Employees who, on their own initiative, promptly comply with
the requirements of this section will not be deemed to have improperly
accepted an unsolicited gift. Employees who promptly consult their
agency ethics official to determine whether acceptance of an
unsolicited gift is proper and who, upon the advice of the ethics
official, return the gift or otherwise dispose of the gift in
accordance with this section, will be considered to have complied with
the requirements of this section on the employee's own initiative.
(d) Employees are encouraged to record any actions they have taken
to properly dispose of gifts that cannot be accepted under this
subpart, such as by sending an electronic mail message to the
appropriate agency ethics official or the employee's supervisor.
Subpart C--Gifts Between Employees
Sec. 2635.301 Overview.
This subpart contains standards that prohibit an employee from
giving or contributing to a gift to an official superior, and official
superiors are prohibited from knowingly accepting such a gift.
Employees also are prohibited from soliciting a contribution from
another employee for a gift to an official superior. In addition,
employees are prohibited from accepting a gift from an employee who
receives less pay. The prohibitions in this subpart apply unless the
item is excluded from the definition of a gift (see Sec. 2635.303(a))
or falls within one of the exceptions set forth in this subpart. Gifts
from outside sources are subject to the limitations set forth in
subpart B of this part.
Sec. 2635.302 General standards.
(a) Gifts to superiors. Except as provided in this subpart,
employees may not:
(1) Directly or indirectly, give a gift to or make a contribution
toward a gift for an official superior, and an official superior may
not knowingly accept such a gift; or
(2) Solicit a contribution from another employee for a gift to
either their own or the other employee's official superior.
(b) Gifts from employees receiving less pay. Except as provided in
this subpart, employees may not, directly or indirectly, accept a gift
from an employee who receives less pay unless:
(1) There is a personal relationship between the two employees that
would justify the gift and the employee receiving the gift is not the
official superior of the employee giving the gift; or
(2) The employee giving the gift is the official superior of the
employee receiving the gift.
Example 1 to paragraph (b): A GS-13 Department of Homeland Security
(DHS) employee has been close personal friends with a neighbor, a GS-15
employee in another government agency, for many years. During their
friendship, the GS-13 employee has often allowed the neighbor's family
to use their vacation house rent-free. The GS-15 employee recently
accepted a position at DHS, and in the new position will be the direct
supervisor of the GS-13 employee. Although the personal relationship
between the two employees justified the gift of rent-free use of the
vacation home before they were both employed at DHS, for the duration
of their supervisor-subordinate relationship the GS-13 employee may not
allow the GS-15 neighbor to use the vacation house rent-free or give
other gifts, except as permitted by the exceptions contained in this
subpart.
(c) Limitation on use of exceptions. Notwithstanding any exception
provided in this subpart, an official superior may not coerce the
offering of a gift from a subordinate.
Sec. 2635.303 Definitions.
For purposes of this subpart, the following definitions apply:
(a) Gift has the meaning set forth in Sec. 2635.203(b). For
purposes of Sec. 2635.203(b) and this paragraph (a) an employee will
be deemed to have paid market value for any benefit received as a
result of participating in a carpool or other such mutual arrangement
between employees if the employee bears a fair proportion of the
expense or effort involved.
(b) Indirectly, for purposes of Sec. 2635.302(b), has the meaning
set forth in Sec. 2635.203(f). For purposes of Sec. 2635.302(a), it
includes a gift:
(1) Given with the employee's knowledge and acquiescence by the
employee's parent, sibling, spouse, child, or dependent relative; or
[[Page 43708]]
(2) Given by a person other than the employee when circumstances
indicate that 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) Market value has the meaning set forth in Sec. 2635.203(c),
subject to paragraph (a) of this section.
(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, employees are considered to be the subordinates of any of
their 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 when 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 must accompany any recommendation of an amount to be
contributed for a gift to an official superior.
Example 1 to paragraph (f): A supervisory employee of the Agency
for International Development has just been reassigned from Washington,
DC, to a foreign duty location. As a farewell party, 12 subordinates
have decided to take the supervisory employee out to lunch at a
restaurant. It is understood that the employees will pay for their own
meals and that the cost of the supervisor's lunch will be divided
equally among the 12. 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.
Sec. 2635.304 Exceptions.
The prohibitions set forth in Sec. 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 Sec. 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 an 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) Unless obtained in violation of Sec. 630.912 of this title,
leave transferred under subpart I of part 630 of this title to an
employee who is not an immediate supervisor.
Example 1 to paragraph (a): Upon returning to work following a
vacation at the beach, a claims examiner with the Department of
Veterans Affairs may give their supervisor, and the supervisor may
accept, a bag of saltwater taffy purchased on the boardwalk for $8.
Example 2 to paragraph (a): An employee of the Federal Deposit
Insurance Corporation whose bank examination responsibilities require
frequent travel may not bring their supervisor, and the supervisor may
not accept, souvenir coffee mugs from each of the cities the employee
visits in the course of performing examination duties, even though each
of the mugs costs less than $5. Gifts given on this basis are not
occasional.
Example 3 to paragraph (a): The Secretary of Labor has invited the
agency's General Counsel to a home dinner party. The General Counsel
may bring a $15 bottle of wine to the dinner party and the Secretary
may accept this customary gift from the subordinate, even though its
cost is in excess of $10.
Example 4 to paragraph (a): For the holidays, an assistant may give
their supervisor, and the supervisor may accept, a small succulent
plant purchased for $10 or less. The assistant may also invite the
supervisor to a New Year's Eve party in their 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, bereavement, 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 to paragraph (b): 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 to paragraph (b): A chemist employed by the Food and Drug
Administration has been invited to the wedding of the lab director who
is an official superior. The chemist may give the lab director and the
lab director's spouse, and the couple may accept, a place setting in
the couple's selected china pattern purchased for $70.
Example 3 to paragraph (b): Upon the occasion of the supervisor's
retirement from Federal service, an employee of the Fish and Wildlife
Service may give the supervisor a book of wildlife photographs
purchased for $19. The retiring supervisor may accept the book.
Example 4 to paragraph (b): An economist at the Consumer Financial
Protection Bureau overhears their supervisor talking about their
upcoming 50th birthday. Although a 50th birthday may be conventionally
seen as a unique ``milestone'' worthy of additional celebration, the
employee may not give their supervisor a $25 bottle of wine as a
present because a birthday is not an infrequently occurring occasion.
(c) Voluntary contributions. (1) 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:
(i) On a special, infrequent occasion as described in paragraph (b)
of this section; or
(ii) On an occasional basis, for items such as food and
refreshments to be shared in the office among several employees.
(2) An employee may accept such gifts to which a subordinate or an
employee receiving less pay has voluntarily contributed pursuant to
paragraph (c)(1) of this section.
Example 1 to paragraph (c): To mark the occasion of retirement,
members of the immediate staff of the Under
[[Page 43709]]
Secretary of the Army would like to throw a party and provide the Under
Secretary with a gift certificate. They may distribute an announcement
of the party and list a nominal amount for a retirement gift as a
suggested voluntary contribution for the party.
Example 2 to paragraph (c): An employee 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 to paragraph (c): 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
paragraph (b) of this section. However, subordinates may take up a
collection and employees may contribute a nominal amount to buy
refreshments to be consumed by everyone in the immediate office to mark
either such occasion.
Example 4 to paragraph (c): 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 to paragraph (c): An Assistant Secretary at the
Department of the Interior is getting married. The Assistant
Secretary's assistant has decided that a microwave oven would be a nice
gift from the staff and has informed each of the Assistant Secretary's
subordinates that they should contribute $5 for the gift. The
assistant's method of collection is improper. Although it is
permissible to 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.
Sec. 2635.305 Disposition of prohibited gifts.
Section 2635.206(a)(1) through (3) may be referenced when
determining an appropriate disposition of a gift that may not be
accepted under this subpart.
Subpart D--Conflicting Financial Interests
Sec. 2635.401 Overview.
Part 2640 of this chapter interprets and is the implementing
regulation for 18 U.S.C. 208. This subpart summarizes the relevant
statutory restrictions and some of the regulatory guidance found there.
Specifically, this subpart contains two provisions relating to
financial interests. One is a recusal 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 Sec. 2635.403. Notwithstanding that the acquisition or
holding of a particular interest is proper, an employee is prohibited
in accordance with Sec. 2635.402 from participating in an official
capacity in any particular matter in which, to the employee's
knowledge, the employee or any person whose interests are imputed to
the employee has a financial interest, if the particular matter will
have a direct and predictable effect on that interest.
Sec. 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 the employee's knowledge, the employee or any person whose
interests are imputed to the employee under this statute has a
financial interest, if the particular matter will have a direct and
predictable effect on that interest.
Note 1 to paragraph (a): 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 the employee is negotiating for or has
an arrangement concerning future employment. In all other cases when
the employee's participation would violate 18 U.S.C. 208(a), an
employee must recuse from participating in the particular 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 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 2 to paragraph (b)(1): 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 standards of this
paragraph (b)(1), 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 to paragraph (b)(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 the employee and their spouse 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 the financial interests of both the employee and
the spouse, the employee cannot participate on the technical evaluation
team unless this disqualification has been waived.
Example 2 to paragraph (b)(1): Upon assignment to the technical
evaluation panel, the employee in example 1 to this paragraph (b)(1)
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 need not recuse 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
[[Page 43710]]
persons will require the recusal of 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 to paragraph (b)(2): 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 the employee's personal financial interests will not be
affected, the employee must recuse 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 the employee as a member of its
board of directors.
Example 2 to paragraph (b)(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 stock or other direct or indirect ownership interest in the
company. The spouse's position with the company is such that the
granting or withholding of FDA approval will not have a direct and
predictable effect on their salary or continued employment with the
company. Because the FDA approval process will not affect the spouse's
financial interests, this section does not require the employee to
recuse from participating in that process. Nevertheless, because the
impartiality principle is implicated as a result of the employee's
covered relationship with the spouse's employer, as identified at Sec.
2635.502(b)(1)(iii), the employee must follow the procedures
established in Sec. 2635.502 before participating in the FDA's review
and approval process.
(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 to paragraph (b)(3): 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 to paragraph (b)(3): Consideration by the Surface
Transportation Board 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) Recusal. 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 must
recuse from participating in a particular matter in which, to the
employee's knowledge, the employee or a person whose interests are
imputed to the employee has a financial interest, if the particular
matter will have a direct and predictable effect on that interest.
Recusal is accomplished by not participating in the particular matter.
(1) Notification. Employees who become aware of the need to recuse
from participating in a particular matter to which they have been
assigned must take whatever steps are necessary to ensure that they do
not participate in the matter. Appropriate oral or written notification
of their recusal may be made to an agency ethics official, coworkers,
or a supervisor to document and help effectuate the recusal. Public
filers as defined in subpart F of this part must comply with additional
notification requirements set forth in Sec. 2635.607 regarding
negotiations for or agreement of future employment or compensation.
(2) Documentation. Employees need not file written recusal
statements unless they are required by part 2634 of this chapter to
file written evidence of compliance with an ethics agreement with the
Office of Government Ethics or a designated agency ethics official, or
are specifically directed by an agency ethics official or the person
responsible for their assignments to file written recusal statements.
However, it is often prudent for employees to create a record of their
actions by providing written notice to an agency ethics official, a
supervisor, or other appropriate official. In addition, public filers
as defined in subpart F of this part must comply with the documentation
requirements set forth in Sec. 2635.607 regarding negotiations for or
agreement of future employment or compensation.
Example 1 to paragraph (c): 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 the
Assistant Secretary's vacation property and, thus, the Assistant
Secretary must recuse from participating in any way in the Department's
deliberations or decisions regarding the annexation. Because the
Assistant Secretary is responsible for determining their own work
assignments, they may accomplish their recusal merely by ensuring that
they do not participate in the particular matter. Because of the level
of their position, however, the Assistant Secretary might be wise to
establish a record that they have acted properly by providing a written
recusal statement to
[[Page 43711]]
an official superior and by providing written notification of the
recusal to subordinates to ensure that they do not raise or discuss any
issues related to the annexation with the Assistant Secretary.
(d) Waiver of or exemptions from recusal requirement. An employee
who would otherwise be required to recuse under 18 U.S.C. 208(a) may be
permitted to participate in a particular matter if the financial
interest that would otherwise require recusal is the subject of a
regulatory exemption or individual waiver described in this paragraph
(d), 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 part 2640,
subpart B of this chapter.
(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 relevant 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 part
2640, subpart C of this chapter (providing 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 5 U.S.C. chapter 131; and
(ii) Certifies in writing that the need for the individual's
services outweighs the potential for a conflict of interest created by
the relevant financial interest. See part 2640, subpart C, of this
chapter (providing 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 would otherwise
require the employee to recuse from participating 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
required to recuse from participating in a particular matter may
voluntarily sell or otherwise divest the interest that create the
recusal requirement.
(2) Directed divestiture. An employee may be required to sell or
otherwise divest the disqualifying financial interest if the continued
holding of that interest is prohibited by statute or by agency
supplemental regulation issued in accordance with Sec. 2635.403(a), or
if the agency determines in accordance with Sec. 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 part 2634, subpart J, 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. When
their official duties create a substantial likelihood that they may be
assigned to a particular matter from which they would be required to
recuse, employees should advise their supervisors or other persons
responsible for their assignments of that potential so that conflicting
assignments can be avoided, consistent with the agency's needs.
Sec. 2635.403 Prohibited financial interests.
An employee may not acquire or hold any financial interest that
agency employees are 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.
(a) Agency regulation prohibiting certain financial interests. An
agency may, by supplemental agency regulation, 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. When the agency restricts or prohibits the holding of
certain financial interests by its employees' spouses or minor
children, any such prohibition or restriction must 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.
Note 1 to paragraph (a): There is no statute of Governmentwide
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.
(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 to recuse from particular matters so
central or critical to the performance of the employee's official
duties that their ability to perform the duties of their 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 recused by reason of the
financial interest.
Example 1 to paragraph (b): An Air Force employee who owns $33,778
of 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
[[Page 43712]]
decisions about the Air Force's requirements for the fighter would
directly and predictably affect the employee's financial interests, the
employee could not, by virtue of 18 U.S.C. 208(a), perform these
significant duties of the position while retaining stock in the
company. The agency can require the employee to sell the stock as a
condition of being selected for the position rather than allowing the
employee to recuse from 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 require the employee to recuse under 18 U.S.C. 208(a) and Sec.
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, the employee's
spouse, or minor child, or any right as a beneficiary of an estate that
has not been settled.
Example 1 to paragraph (c)(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 to paragraph (c)(1): 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 recusal under
Sec. 2635.402. Nevertheless, a loan from a member bank is a discrete
financial interest within the meaning of paragraph (c) of this section
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 Sec. 2635.402(b)(2)(iii)
or (iv).
Example 1 to paragraph (c)(2): 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). BLM may require an employee to resign from
their uncompensated position as Vice President of the Foundation as a
condition of a promotion to a policy-level position within the Bureau
rather than allowing the employee to rely on recusal 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 will be given a reasonable period of
time, considering the nature of their 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 must not exceed 90 days from the
date divestiture is first directed. However, as long as the employee
continues to hold the financial interest, all restrictions imposed by
this subpart remain applicable.
(e) Eligibility for special tax treatment. Employees required to
sell or otherwise divest a financial interest may be eligible to defer
the tax consequences of divestiture under part 2634, subpart J, of this
chapter.
Subpart E--Impartiality in Performing Official Duties
Sec. 2635.501 Overview.
(a) Scope. This subpart is intended to ensure that employees take
appropriate steps to avoid an appearance of loss of impartiality in the
performance of their official duties in circumstances other than those
covered by the criminal conflict of interest statute, 18 U.S.C. 208(a).
(1) The provisions of Sec. 2635.502 are designed to help employees
identify and take appropriate steps regarding their participation in
particular matters involving specific parties that may cause a
reasonable person with knowledge of the relevant facts to question
their impartiality. Employees and agencies should analyze such
appearance issues, and employees may receive authorization to
participate in such matters, using the procedures in this subpart.
(2) Under Sec. 2635.503, an employee who has received a covered
payment from a former employer is subject, in the absence of a waiver
pursuant to Sec. 2635.503(c), to a two-year period of recusal from
participating in particular matters in which that former employer is or
represents a party.
(3) An employee is prohibited by 18 U.S.C. 208(a) from
participating personally and substantially in an official capacity in
any particular matter in which, to the employee's knowledge, the
employee has a personal or imputed financial interest, if the
particular matter will have a direct and predictable effect on that
interest. Section 208(a), its interpreting and implementing regulations
under part 2640 of this chapter, and the regulations at subparts D and
F of this part, apply when the particular matter would affect the
financial interests of one of these persons.
(b) Distinction between authorizations under this subpart and
waivers and exemptions under the criminal conflict of interest law. (1)
When an employee's participation in a particular matter involving
specific parties would raise a question in the mind of a reasonable
person about the employee's impartiality, but would not violate 18
U.S.C. 208(a), the agency designee may make a determination, as
explained in Sec. 2635.502(d), and authorize the employee to
participate in the matter.
(2) When the employee's participation in a particular matter would
affect any one of the financial interests described in 18 U.S.C.
208(a), only a statutory waiver or exemption, as described in
Sec. Sec. 2635.402(d) and 2635.605(a), will enable the employee to
participate in that matter. The specific requirements for regulatory
exemptions and statutory waivers are contained in part 2640, subparts B
and C, of this chapter.
(3) An applicable waiver or exemption under part 2640 of this
chapter also authorizes an employee's participation in particular
matters that would otherwise be restricted by Sec. 2635.502.
Specifically, if an employee meets all prerequisites for the
application of one of the regulatory exemptions set forth in part 2640,
subpart B, of this chapter, that constitutes a determination that the
interest of the Government in the
[[Page 43713]]
employee's participation in a particular matter outweighs the concern
that a reasonable person may question the integrity of agency programs
and operations. Similarly, if the employee complies with all terms of a
statutory waiver granted pursuant to part 2640, subpart C, of this
chapter, that also constitutes a determination that the interest of the
Government in the employee's participation in a particular matter
outweighs the concern that a reasonable person may question the
integrity of agency programs and operations. In such cases, the
employee is not required to recuse under Sec. 2635.502(e) or request
authorization to participate under Sec. 2635.502(d).
Note 1 to Sec. 2635.501: Even if the employee or agency
designee determines that this subpart is not applicable, the
employee's supervisor or other individuals responsible for assigning
work to the employee may decide not to assign certain work to the
employee for other reasons, including to address appearance and
impartiality concerns not covered by this subpart.
Sec. 2635.502 Personal and business relationships.
(a) Consideration of appearances by the employee. In considering
whether any of the following would cause a reasonable person to
question their impartiality, employees may seek the assistance of their
supervisor, an agency ethics official, or the agency designee.
(1) When 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 the employee's household, and the
employee determines that the circumstances would cause a reasonable
person with knowledge of the relevant facts to question the employee's
impartiality in the matter, the employee should not participate in the
matter unless the employee has received a determination from the agency
designee regarding the appearance problem in accordance with paragraph
(c) of this section or received an authorization from the agency
designee in accordance with paragraph (d) of this section.
(2) When an employee knows that a person with whom the employee has
a covered relationship is or represents a party to a particular matter
involving specific parties, and the employee determines that the
circumstances would cause a reasonable person with knowledge of the
relevant facts to question their impartiality in the matter, the
employee should not participate in the matter unless the employee has
received a determination from the agency designee regarding the
appearance problem in accordance with paragraph (c) of this section or
received an authorization from the agency designee in accordance with
paragraph (d) of this section.
(3) Employees who are concerned that circumstances other than those
specifically described in paragraphs (a)(1) and (2) of this section
would raise a question regarding their impartiality should use the
process described in this section to determine whether they 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 Sec.
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 1 to paragraph (b)(1)(i): An employee who is seeking
employment within the meaning of Sec. 2635.603 must 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 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.
(2) Direct and predictable effect has the meaning set forth in
Sec. 2635.402(b)(1).
(3) Particular matter involving specific parties has the meaning
set forth in Sec. 2640.102(l) of this chapter.
Example 1 to paragraph (b): An employee of the General Services
Administration (GSA) 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 the lease of office space. Under the
circumstances, the GSA employee would be correct in concluding that a
reasonable person would be likely to question their impartiality if
they were to participate in evaluating that developer's or its
competitor's lease proposal.
Example 2 to paragraph (b): 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. The employee's spouse 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 the spouse's
employment with an affected corporation would raise a question
concerning the employee's impartiality.
Example 3 paragraph (b): An employee of the Bureau of Land
Management (BLM) is studying environmental problems created by the use
of hazardous substances on a particular section of public land. BLM has
a contract with an environmental services company to produce a water
quality study of the groundwater under this section of land along with
a recommendation about how to remediate any problems that are found.
The BLM employee will use the study to help determine the extent of the
damage and to recommend a solution to any problems that are revealed.
The employee's parent has accepted a job with this environmental
services company and will be signing and submitting the report of the
company's findings. Under these circumstances, the employee would be
correct in concluding that a reasonable person would be likely to
question their impartiality if they were to continue participating in
the study related to this parcel of public land.
Example 4 to paragraph (b): An engineer has just resigned from a
position as vice president of an electronics company in order to accept
employment with the Federal Aviation Administration (FAA) in a position
involving procurement responsibilities. Although the employee did not
receive
[[Page 43714]]
a covered payment in connection with the resignation and has severed
all financial ties with the firm, under the circumstances the employee
would be correct in concluding that this former service as an officer
of the company would be likely to cause a reasonable person to question
their impartiality if they were to participate in the administration of
an FAA contract for which the firm is a first-tier subcontractor.
Example 5 to paragraph (b): An employee of the Internal Revenue
Service (IRS) is a member of a private organization whose purpose is to
restore a Victorian-era railroad station, and chairs its annual
fundraising drive. Under the circumstances, the employee would be
correct in concluding that this active membership in the organization
would be likely to cause a reasonable person to question their
impartiality if they were to participate in an IRS determination
regarding the tax-exempt status of the organization.
Example 6 to paragraph (b): An employee of the Department of
Defense (DoD) has responsibility for testing avionics produced by a
large Air Force contractor. The employee just learned that their adult
child accepted a staff position in the human resources division of that
contractor. Although the DoD employee has a covered relationship with
the contractor that employs their child, the employee could justifiably
conclude that a reasonable person would not be likely to question their
impartiality because the child's work is unrelated to the avionics
contract.
Example 7 to paragraph (b): An employee of the Department of
Defense (DoD) leads the office that is testing a new type of jet engine
produced by a multinational conglomerate's aviation division. The
employee's lifelong best friend is the head of the conglomerate's
aviation division and is responsible for presenting and promoting the
new jet engine. Although the DoD employee does not have a covered
relationship under paragraph (b)(1) of this section, the employee is
concerned that, under paragraph (a)(3) of this section, questions
regarding their impartiality could be raised. Here, the employee could
justifiably conclude that a reasonable person would be likely to
question their impartiality if they were to continue performing duties
related to this jet engine.
(c) Determination by agency designee. (1) When the agency designee
has information concerning a potential appearance problem arising from
either the financial interest of a member of the employee's household
in a particular matter involving specific parties or a particular
matter involving specific parties in which a person with whom the
employee has a covered relationship is a party or represents a party,
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 an employee has recused
from participating in a particular matter pursuant to paragraph (e) of
this section, agency designees may make this determination on their own
initiative or when requested by the employee's supervisor or any other
person responsible for the employee's assignment.
(2) If the agency designee determines that the employee's
impartiality is likely to be questioned, the agency designee must then
determine, in accordance with paragraph (d) of this section, whether
the employee should be authorized to participate in the matter. If the
agency designee determines that the employee's participation should not
be authorized, the employee must recuse from participating in the
particular matter in accordance with paragraph (e) of this section.
(3) If the agency designee determines that the employee's
impartiality is not likely to be questioned, the agency designee 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. When 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 the employee's 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.
(1) Factors which may be taken into consideration include:
(i) The nature of the relationship involved;
(ii) The effect that resolution of the matter would have upon the
financial interests of the person involved in the relationship;
(iii) 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;
(iv) The sensitivity of the matter;
(v) The difficulty of reassigning the matter to another employee;
and
(vi) 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.
(2) Authorization by the agency designee will 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 recuse
from participating in the matter on the basis of an appearance problem
involving the same circumstances that have been considered by the
agency designee.
Example 1 to paragraph (d): 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 their supervisor, the Director
of Personnel, of the relationship upon being assigned to a selection
panel for a position for which the 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 because 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 their general partner. See Sec. 2635.402.
Example 2 paragraph (d): A new employee of the Securities and
Exchange Commission is assigned to an investigation of insider trading
by the brokerage house where they have 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 participate in the review of
[[Page 43715]]
a routine filing by the particular brokerage house.
Example 3 paragraph (d): An Internal Revenue Service employee
involved in a long and complex tax audit learns that their child 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) Recusal. Unless the employee is authorized to participate in
the matter under paragraph (d) of this section, an employee may not
participate in a particular matter involving specific parties when the
employee 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
the employee has a covered relationship, is likely to raise a question
in the mind of a reasonable person about the employee's impartiality.
Recusal is accomplished by not participating in the matter. When the
covered relationship is with a former employer, this recusal
requirement is for a period of one year after the date of the
employee's resignation from the position with the former employer.
(1) Notification. Employees who become aware of the need to recuse
from participating in a particular matter involving specific parties to
which they have been assigned must take whatever steps are necessary to
ensure that they do not participate in the matter. Appropriate oral or
written notification of their recusal may be made to an agency ethics
official, coworkers, or a supervisor to document and help effectuate
the recusal.
(2) Documentation. Employees need not file written recusal
statements unless they are required by part 2634 of this chapter to
file written evidence of compliance with an ethics agreement with the
Office of Government Ethics or a designated agency ethics official, or
are specifically directed by an agency ethics official or the person
responsible for their assignments to file written recusal statements.
However, it is often prudent for employees to create a record of their
actions by providing written notice to an agency ethics official, a
supervisor, or other appropriate official.
(f) Irrelevant considerations. An employee's reputation for honesty
and integrity is not a relevant consideration for purposes of any
determination required by this section.
Note 2 to Sec. 2635.502: Nothing in this section should be
construed to suggest that employees should not participate in a
matter because of their political, religious, or moral views.
Sec. 2635.503 Covered payments from former employers.
(a) Recusal requirement. Except as provided in paragraph (c) of
this section, an employee must recuse for two years from participating
in any particular matter involving specific parties in which the
employee's former employer is a party or represents a party if the
employee received a covered payment from that person. The two-year
period of recusal begins to run on the date that the covered payment is
received.
Example 1 to paragraph (a): Following confirmation hearings and one
month before their scheduled swearing in, a nominee to the position of
Assistant Secretary of a department received a covered payment from
their employer. For one year and 11 months after their swearing in, the
Assistant Secretary may not participate in any particular matter to
which the former employer is a party.
Example 2 paragraph (a): An employee received a covered payment
from their former employer, a coal mine operator, prior to entering on
duty with the Department of the Interior. For two years thereafter, the
employee may not participate in a determination regarding the former
employer's obligation to reclaim a particular mining site, because the
former employer is a party to the matter. However, the employee may
help to draft reclamation legislation affecting all coal mining
operations because this legislation does not involve any parties.
Example 3 to paragraph (a): An architect accepts a position with
the Army Corps of Engineers and resigns from a private architecture
partnership. One month after beginning this new position, the architect
receives a covered payment from the partnership. The architect may not
participate in any particular matter involving specific parties in
which the former partnership is a party until two years after receipt
of the covered payment, which will be 25 months after beginning service
with the Corps. Because the payment was not received before the
architect became an executive branch employee, agency ethics officials
must also review the payment to determine whether it constituted a
supplementation of salary under 18 U.S.C. 209.
(b) Definitions. For purposes of this section, the following
definitions apply:
(1) Covered 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 a qualifying program.
(2)(i) A qualifying program is:
(A) A compensation, partnership, or benefits program that is
contained in bylaws, a contract, or other written form, and does not
treat individuals entering Government service more favorably than other
individuals; or
(B) A program that is not contained in written form, but is
demonstrated by a history of similar payments made to others not
entering Government service.
(ii) When a program is established in written form, any history of
making similar payments to others not entering Government service that
is contrary to an express provision of the written plan is not relevant
to the evaluation of whether it is a qualifying program.
Example 1 to paragraph (b)(2): The vice president of a small
corporation is nominated to be an ambassador. In recognition of service
to the corporation, the board of directors votes to pay the departing
vice president $50,000 upon confirmation in addition to the regular
severance payment provided for by the corporate bylaws. The regular
severance payment is not a covered payment because it was made pursuant
to a qualifying program. The gratuitous payment of $50,000 is a covered
payment, because the corporation had not made similar payments to other
departing officers.
(3) Former employer includes any person which the employee served
as an officer, director, trustee, general partner, agent, attorney,
consultant, contractor, or employee. Payments from an officer,
employee, or agent of a former employer will be considered to be
payments from the former employer.
Note 1 to paragraph (b)(3): The definition of former employer
includes former clients for whom an employee may have served as an
agent, attorney, consultant, or contractor.
(c) Waiver of recusal. The recusal 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 must be
[[Page 43716]]
in writing and may be given only by the head of the agency or, when the
recipient of the payment is the head of the agency, by the President or
the President's designee. Waiver authority may be delegated by the head
of an agency 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 covered payment.
Subpart F--Seeking Other Employment
Sec. 2635.601 Overview.
This subpart contains a recusal requirement that applies to
employees when seeking non-Federal 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 not participate personally and substantially in
any particular matter that, to the employee's knowledge, will have a
direct and predictable effect on the financial interests of a person
with whom the employee is negotiating or has any arrangement concerning
prospective employment. See Sec. 2635.402 and Sec. 2640.103 of this
chapter. Beyond the statutory requirement in 18 U.S.C. 208(a), this
subpart also addresses issues of lack of impartiality that require
recusal 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. In addition, this subpart
contains the statutory notification requirements that apply to public
filers when they negotiate for or have agreements of future employment
or compensation. Specifically, it addresses the requirements of section
17 of the Representative Louise McIntosh Slaughter Stop Trading on
Congressional Knowledge Act (STOCK Act), Public Law 112-105, 126 Stat.
303, that a public filer must submit a written statement identifying
the entity involved in the negotiations or agreement within three
business days after commencement of such negotiations or agreement and
must submit a notification of recusal whenever there is a conflict of
interest or an appearance of a conflict of interest.
Sec. 2635.602 Applicability and related considerations.
(a) Applicability. (1) To ensure that an employee does not violate
18 U.S.C. 208(a), section 17 of the STOCK Act, or the principles of
ethical conduct contained in Sec. 2635.101(b), an employee who is
seeking employment or who has an arrangement concerning prospective
employment must comply with the applicable recusal requirements of
Sec. Sec. 2635.604 and 2635.606 if particular matters in which the
employee will be participating personally and substantially would, to
the employee's knowledge, directly and predictably affect the financial
interests of a prospective employer or of a person with whom the
employee 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. In addition, a public filer
who negotiates for or has an agreement of future employment or
compensation must comply with the requirements of Sec. 2635.607.
(2) An employee who is seeking employment with a person whose
financial interests are not, to the employee's knowledge, affected
directly and predictably by particular matters in which the employee
participates personally and substantially has no obligation to recuse
under this subpart. In addition, nothing in this subpart requires an
employee, other than a public filer, to notify anyone that the employee
is seeking employment unless a notification is necessary to implement a
recusal pursuant to Sec. 2635.604(b). A public filer who negotiates
for or has an agreement of future employment or compensation must
comply with the notification requirements in Sec. 2635.607. An
employee may, however, be subject to other statutes that impose
requirements on employment contacts or discussions, such as 41 U.S.C.
2103, which is applicable to agency officials involved in certain
procurement matters. Employees are encouraged to consult with their
ethics officials if they have any questions about how this subpart may
apply to them. Ethics officials are not obligated by this subpart to
inform supervisors that employees are seeking employment.
Example 1 to paragraph (a): Recently, an employee of the Department
of Education submitted a resume to the University of Delaware for a job
opening. The employee has begun seeking employment. However, because
the employee is not participating in any particular matters affecting
the University of Delaware, there is no requirement that anyone be
notified that the employee has begun seeking employment.
Example 2 to paragraph (a): The employee in example 1 to this
paragraph (a) has been approached about an employment opportunity at
the University of Maryland. Because the University of Maryland has
applied for grants on which the employee has been assigned to work in
the past, the employee wants to make certain that they do not violate
the ethics rules. The employee contacts an ethics official to discuss
the matter. The employee informs the ethics official that they are not
currently participating in any particular matters affecting the
University of Maryland. As a result, the ethics official advises the
employee that they will have no notification obligations under this
subpart. However, the ethics official cautions the employee that, if
the employee is assigned to participate in a particular matter
affecting the University of Maryland while they are seeking employment
with the University, they must take whatever steps are necessary to
avoid working on the grant, in accordance with Sec. 2635.604.
(b) Related restrictions--(1) Outside employment while a Federal
employee. An employee who is contemplating outside employment to be
undertaken concurrently with the employee's Federal employment must
abide by any limitations applicable to the employee's outside
activities under subparts G and H of this part, including any
requirements under supplemental agency regulations to obtain prior
approval before engaging in outside employment or activities and any
prohibitions under supplemental agency regulations related to outside
employment or activities. The employee must also comply with any
applicable recusal requirement of this subpart, as well as any
applicable recusal requirements under subpart D or E of this part as a
result of the employee's outside employment activities.
(2) Post-employment restrictions. An employee who is contemplating
employment to be undertaken following the termination of the employee's
Federal employment should consult an agency ethics official to obtain
advice regarding any post-employment restrictions that may be
applicable. The regulation implementing the Governmentwide post-
employment statute, 18 U.S.C. 207, is contained in part 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. 2104.
(3) Interview trips and entertainment. When a prospective employer
who is a prohibited source as defined in Sec. 2635.203(d) offers to
reimburse an
[[Page 43717]]
employee's travel expenses, or provide other reasonable amenities
incident to employment discussions, the employee may accept such
amenities in accordance with Sec. 2635.204(e)(3). When a prospective
employer is a foreign government or international organization, the
employee must also comply with the Foreign Gifts and Decorations Act, 5
U.S.C. 7342.
Sec. 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 to paragraph (a): An employee of the Bureau of Indian
Affairs who has announced their intention to retire is approached by
Tribal representatives concerning a possible consulting contract with
the tribe. The contractual relationship the tribe wishes to negotiate
is employment for purposes of this subpart.
Example 2 to paragraph (a): 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 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.
Example 3 to paragraph (a): An employee at the Department of Energy
volunteers without compensation to serve dinners at a homeless shelter
each month. The employee's uncompensated volunteer services in this
case are not considered an employment or business relationship for
purposes of this subpart.
(b) An employee is seeking employment once the employee has begun
seeking employment within the meaning of paragraph (b)(1) of this
section and until the employee is no longer seeking employment within
the meaning of paragraph (b)(2) of this section.
(1) An employee has begun seeking employment if the employee has
directly or indirectly:
(i) Engaged in negotiations for employment with any person. For
purposes of this paragraph (b)(1)(i), as for 18 U.S.C. 208(a) and
section 17 of the STOCK Act, 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 for the sole purpose of requesting a job application;
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 paragraph (b), 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 to paragraph (b): A paralegal at the Department of the
Army is in the third year of law school. The paralegal's neighbor, a
partner in a large law firm in the community, invited the paralegal to
the law firm for a visit. The paralegal accepted the offer and met with
an associate at the firm. The associate shared with the paralegal their
experiences looking for a legal position, discussed what they do in
their position at the law firm, and explained why they chose that law
firm. There was no discussion of possible employment with the firm. The
Army paralegal is not seeking employment at this time. The purpose of
the visit was informational only.
Example 2 to paragraph (b): An employee of the Defense Contract
Audit Agency (DCAA) 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 the division
is thinking about hiring another accountant and asks whether the
employee might be interested in leaving DCAA. The DCAA employee asks
what kind of work would be involved. The DCAA employee has begun
seeking employment because they made a response other than a rejection
to the communication regarding possible employment with the Army
contractor, although they have not yet begun negotiating for
employment.
Example 3 to paragraph (b): The DCAA employee and the head of the
contractor's accounting division in example 2 to this paragraph (b)
have a meeting to discuss the duties of the position that the
accounting division would like to fill and the DCAA employee's
qualifications for the position. They also discuss ways the DCAA
employee could remedy one of the missing qualifications, and the
employee indicates a willingness to obtain the proper qualifications.
They do not discuss salary. The employee has engaged in negotiations
regarding possible employment with the contractor.
Example 4 to paragraph (b): An employee at the Department of Energy
(DOE) lists their job duties and employment experience in a profile on
an online, business-oriented social networking service. The employee's
profile is not targeted at a specific prospective employer. The
employee has not begun seeking employment because the posting of a
profile or resume is not an unsolicited communication with any
prospective employer.
Example 5 to paragraph (b): The DOE employee in example 4 to this
paragraph (b) was recently notified that a representative of a
university has viewed their profile. The employee still has not begun
seeking employment with the university. Subsequently, a representative
of the university contacts the employee through the online forum to
inquire whether the employee would be interested in working for the
university, to which the employee makes a response other than
rejection. At this point, the employee has begun seeking employment
with the university until they reject the possibility of employment and
all discussions of possible employment have terminated.
Example 6 to paragraph (b): The DOE employee in examples 4 and 5 to
this paragraph (b) receives emails from various companies in response
to the online profile. The employee does not respond. The employee has
not begun seeking employment with the
[[Page 43718]]
companies because they have not made a response.
Example 7 to paragraph (b): An official of a State Health
Department compliments the work of an employee of the Centers for
Medicare & Medicaid Services (CMS), and asks the CMS employee to reach
out if they are ever interested in leaving Federal service. The
employee explains to the State official that they are very happy with
their job at CMS and is not interested in another job. The employee
thanks the official for the professional compliment, and adds that
they'll remember the official's interest if they ever decide to leave
the Government. The employee has rejected the unsolicited employment
overture and has not begun seeking employment.
Example 8 to paragraph (b): The employee in the example 7 to this
paragraph (b) responds by stating that they cannot discuss future
employment while they are 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, they have begun
seeking employment with the State Health Department.
Example 9 to paragraph (b): Three months prior to the end of the
current administration, a political appointee at a large department
receives a telephone call from the managing partner of an international
law firm. The managing partner asks if the official would be interested
in joining the law firm. The official says, ``I am not talking to
anyone about employment until I leave the Government.'' The official
has rejected the unsolicited employment overture and has not begun
seeking employment.
Example 10 to paragraph (b): A geologist employed by the U.S.
Geological Survey sends a resume to an oil company. 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, provided
the geologist does not receive a response indicating an interest in
employment discussions. A letter merely acknowledging receipt of the
resume is not an indication of interest in employment discussions.
However, if the geologist withdraws the application or is notified
within the two-month period that the resume has been rejected, they
will no longer be seeking employment with the oil company as of the
date they make such withdrawal or receive such notification.
(c) Prospective employer means any person with whom the employee is
seeking employment. When contacts that constitute seeking employment
are made by or with an agent or other intermediary, the term
prospective employer means:
(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 to paragraph (c): An employee of the Federal Aviation
Administration (FAA) has retained an employment search firm to help
them find another job. The search firm has just reported to the FAA
employee that it has given their resume to and had promising
discussions with two airport authorities, which the search firm
identifies to the employee. Even though the employee has not personally
had employment discussions with either airport authority, each airport
authority is their prospective employer. The employee began seeking
employment with each airport authority upon learning its identity and
that it has been given their resume.
Example 2 to paragraph (c): An employee pays for an online resume
distribution service, which sends their resume to recruiters that
specialize in their field. The online service has just notified the
employee that it sent their resume to Software Company A and Software
Company B. Even though the employee has not personally had employment
discussions with either company, each software company is their
prospective employer. The employee began seeking employment with each
company upon learning from the online service that Software Company A
and Software Company B had been given their resume by the intermediary.
(d) Direct and predictable effect, particular matter, and personal
and substantial have the respective meanings set forth in Sec.
2635.402(b)(1), (3), and (4).
(e) Public filer means a person required to file a public financial
disclosure report as set forth in Sec. 2634.202 of this chapter.
Sec. 2635.604 Recusal while seeking employment.
(a) Obligation to recuse. (1) Except as provided in paragraph
(a)(2) of this section or when the employee's participation has been
authorized in accordance with Sec. 2635.605, the employee may not
participate personally and substantially in a particular matter that,
to the employee's knowledge, has a direct and predictable effect on the
financial interests of a prospective employer with whom the employee is
seeking employment within the meaning of Sec. 2635.603(b). Recusal is
accomplished by not participating in the particular matter.
(2) The employee may participate in a particular matter under
paragraph (a)(1) of this section when:
(i) The employee's only communication with the prospective employer
in connection with the search for employment is the submission of an
unsolicited resume or other employment proposal;
(ii) The prospective employer has not responded to the employee's
unsolicited communication with a response indicating an interest in
employment discussions; and
(iii) The matter is not a particular matter involving specific
parties.
Example 1 to paragraph (a): A scientist is employed by the National
Science Foundation (NSF) as a special Government employee to serve on a
panel that reviews grant applications to fund research relating to
deterioration of the ozone layer. The scientist is discussing possible
employment with a university that received an NSF grant several years
ago to study the effect of fluorocarbons but has no current grant
applications pending before NSF. The employee is seeking employment,
but does not need to recuse because there is no particular matter that
would have a direct and predictable effect on the financial interests
of the prospective employer. Recusal would be required if the
university submits a new application for the panel's review.
Example 2 to paragraph (a): An employee of the Food and Drug
Administration is developing a regulation on research criteria for
approving prescription drugs. They begin discussing possible employment
with a pharmaceutical company. The employee may not participate
personally and substantially in the development of the regulation
because they have begun employment discussions with the pharmaceutical
company and the regulation is a particular matter of general
applicability which would have a direct and predictable effect on the
financial interests of the pharmaceutical company.
Example 3 to paragraph (a): A special Government employee of the
Federal Deposit Insurance Corporation (FDIC) is assigned to advise the
FDIC on rules
[[Page 43719]]
applicable to all member banks. The employee mails an unsolicited
letter to a member bank offering services as a contract consultant.
Although the employee is seeking employment, the employee may
participate in this particular matter of general applicability until
receipt of some response indicating an interest in discussing the
employment proposal. A letter merely acknowledging receipt of the
proposal is not an indication of interest in employment discussions.
Example 4 to paragraph (a): An employee of the Occupational Safety
and Health Administration is conducting an inspection of one of several
textile companies to which they sent an unsolicited resume. The
employee may not participate personally and substantially in the
inspection because they are seeking employment and the inspection is a
particular matter involving specific parties that will affect the
textile company.
(b) Notification. Employees who become aware of the need to recuse
from participating in a particular matter to which they have been
assigned must take whatever steps are necessary to ensure that they do
not participate in the matter. Appropriate oral or written notification
of their recusal may be made to an agency ethics official, coworkers,
or a supervisor to document and help effectuate the recusal. Public
filers must comply with additional notification requirements set forth
in Sec. 2635.607.
Example 1 to paragraph (b): An employee of the Department of
Veterans Affairs (VA) is participating in the audit of a contract for
laboratory support services. Before sending a resume to a lab which is
a subcontractor under the VA contract, the employee should recuse from
participating in the audit. Because the employee cannot withdraw from
participating in the contract audit without supervisor approval, the
employee should notify the supervisor of the need to recuse for ethics
reasons so that appropriate adjustments in work assignments can be
made.
Example 2 to paragraph (b): An employee of the Food and Drug
Administration (FDA) is contacted in writing by a pharmaceutical
company concerning possible employment with the company. The employee
is reviewing an application from the same pharmaceutical company, which
is seeking FDA approval for a new drug product. Once the employee makes
a response that is not a rejection to the company's communication
concerning possible employment, the employee must recuse from further
participation in the review of the application. When the employee has
authority to ask a colleague to assume reviewing responsibilities, they
may accomplish recusal by transferring the work to the colleague.
However, to ensure that the colleague and others with whom they had
been working on the review do not seek their advice regarding the
review of the application or otherwise involve them in the matter, it
may be necessary for the employee to advise those individuals of the
recusal.
(c) Documentation. Employees, other than public filers, need not
file written recusal statements unless they are required by part 2634
of this chapter to file written evidence of compliance with an ethics
agreement with the Office of Government Ethics or a designated agency
ethics official, or are specifically directed by an agency ethics
official or the person responsible for their assignments to file
written recusal statements. However, it is often prudent for employees
to create a record of their actions by providing written notice to an
agency ethics official, a supervisor, or other appropriate official.
Public filers must comply with the documentation requirements set forth
in Sec. 2635.607.
Example 1 to paragraph (c): The General Counsel of a regulatory
agency will be engaging 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, they can, in fact, accomplish
recusal 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, they would benefit from
filing a written recusal statement with an agency ethics official or
the Commissioners of the regulatory agency and providing their
subordinates with written notification of the recusal. The General
Counsel may also be specifically directed by an agency ethics official
or the Commissioners to file a written recusal statement. If the
General Counsel is a public filer, they must comply with the
documentation requirements set forth in Sec. 2635.607.
(d) Agency determination of substantial conflict. When the agency
determines that the employee's action in seeking employment with a
particular person will require the employee to recuse from matters so
central or critical to the performance of the employee's official
duties that the employee's ability to perform the duties of the
employee's 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 action.
Sec. 2635.605 Waiver or authorization permitting participation while
seeking employment.
(a) Waiver. When, as defined in Sec. 2635.603(b)(1)(i), an
employee is engaged in employment negotiations for purposes of 18
U.S.C. 208(a), the employee may not participate personally and
substantially in a particular matter that, to the employee's knowledge,
has a direct and predictable effect on the financial interests of a
prospective employer. The employee may participate in such matters only
when the employee has received a written waiver issued under the
authority of 18 U.S.C. 208(b)(1) or (3). These waivers are described in
Sec. 2635.402(d) and part 2640, subpart C, of this chapter. For
certain employees, a regulatory exemption under the authority of 18
U.S.C. 208(b)(2) may also apply (see part 2640, subpart B, of this
chapter, including Sec. 2640.203(g) and (i)).
Example 1 to paragraph (a): An employee of the Department of
Agriculture is negotiating for employment within the meaning of 18
U.S.C. 208(a) and Sec. 2635.603(b)(1)(i) with an orange grower. In the
absence of a written waiver issued under 18 U.S.C. 208(b)(1), the
employee 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. When an employee is seeking
employment within the meaning of Sec. 2635.603(b)(1)(ii) or (iii) and
is not negotiating for employment, a reasonable person would be likely
to question the employee's impartiality if the employee were to
participate personally and substantially in a particular matter that,
to the employee's knowledge, has a direct and predictable effect on the
financial interests of any such prospective employer. The employee may
participate in such matters only when the agency designee has
authorized in writing the employee's participation in accordance
[[Page 43720]]
with the standards set forth in Sec. 2635.502(d).
Example 1 to paragraph (b): Within the past month, an employee of
the Department of Education mailed a resume to a university. The
employee is thus seeking employment with the university within the
meaning of Sec. 2635.603(b)(1)(ii). In the absence of specific
authorization by the agency designee in accordance with Sec.
2635.502(d), the employee may not participate personally and
substantially in an assignment to review a grant application submitted
by the university.
Sec. 2635.606 Recusal based on an arrangement concerning prospective
employment or otherwise after negotiations.
(a) Employment or arrangement concerning employment. An employee
may not participate personally and substantially in a particular matter
that, to the employee's knowledge, has a direct and predictable effect
on the financial interests of the person by whom the employee is
employed or with whom the employee 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 (3), or by
a regulatory exemption under the authority of 18 U.S.C. 208(b)(2).
These waivers and exemptions are described in Sec. 2635.402(d) and
part 2640, subparts B and C, of this chapter.
Example 1 to paragraph (a): A military officer has accepted a job
with a defense contractor that will begin six months after retirement
from military service. During the remainder of Government employment,
the officer may not participate personally and substantially in the
administration of a contract with that particular defense contractor
unless a written waiver is issued under the authority of 18 U.S.C.
208(b)(1).
Example 2 to paragraph (a): An accountant has just been offered a
job with the Office of the Comptroller of the Currency (OCC) which
involves a two-year limited appointment. The accountant's private
employer, a large corporation, believes the job will enhance their
skills and has agreed to give them a two-year unpaid leave of absence
at the end of which they have agreed to return to work for the
corporation. During the two-year period that the accountant is to be an
OCC employee, they will have an arrangement concerning future
employment with the corporation that will require recusal from
participating personally and substantially in any particular matter
that, to their knowledge, 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 Sec. 2635.502(c) may, in an appropriate case, determine that an
employee not covered by paragraph (a) of this section who has sought
but is no longer seeking employment nevertheless will be subject to a
period of recusal upon the conclusion of employment negotiations. Any
such determination will be based on a consideration of all the relevant
factors, including those listed in Sec. 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 to paragraph (b): 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
the partnership position the employee sought. Even though the employee
is no longer seeking employment with the firm, they may continue to be
recused 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, they could act impartially in the matter outweighs the
Government's interest in their participation.
Sec. 2635.607 Notification requirements for public financial
disclosure report filers regarding negotiations for or agreement of
future employment or compensation.
(a) Notification regarding negotiations for or agreement of future
employment or compensation. A public filer who is negotiating for or
has an agreement of future employment or compensation with a non-
Federal entity must file a statement notifying an agency ethics
official of such negotiation or agreement within three business days
after commencement of the negotiation or agreement. This notification
statement must be in writing, must be signed by the public filer, and
must include the name of the non-Federal entity involved in such
negotiation or agreement and the date on which the negotiation or
agreement commenced. When a public filer has previously complied with
the notification requirement in this section regarding the commencement
of negotiations, the filer need not file a separate notification
statement when an agreement of future employment or compensation is
reached with the previously identified non-Federal entity. There is
also no requirement to file another notification when negotiations have
been unsuccessful. However, employees may want to do so to facilitate
the resumption of their duties.
Example 1 to paragraph (a): An employee of the Merit Systems
Protection Board who is a public filer was in private practice prior to
Government service. The employee receives a telephone call from a
partner in a law firm who inquires as to whether they would be
interested in returning to private practice. During this initial
telephone call with the law firm partner, the employee indicates that
they are interested in resuming private practice. The partner and
employee discuss generally the types of issues that would need to be
agreed upon if the employee were to consider a possible offer to serve
as ``of counsel'' with the firm, such as salary, benefits, and type of
work the employee would perform. The employee has begun negotiating for
future employment with the law firm. Within three business days after
this initial telephone call, the employee must file written
notification of the negotiations with the agency ethics official.
Example 2 to paragraph (a): The employee in the example 1 to this
paragraph (a) also negotiates a possible contract with a publisher to
begin writing a textbook after leaving Government service. Within three
business days after commencing negotiations, the employee must file
written notification with the agency ethics official documenting this
engagement in negotiations for future compensation with the book
publisher.
(b) Notification of recusal. A public filer who files a
notification statement pursuant to paragraph (a) of this section must
file with an agency ethics official a notification of recusal whenever
there is a conflict of interest or appearance of a conflict of interest
with the non-Federal entity identified in the notification statement.
The notification statement and the recusal statement may be contained
in a single document or in separate documents.
(c) Advance filing of notification and recusal statements. When a
public filer is seeking employment within the meaning of Sec.
2635.603(b)(1)(ii) or (iii) or is considering seeking employment, the
public filer may elect to file the notification statement pursuant to
paragraph (a) of this section before negotiations have commenced and
[[Page 43721]]
before an agreement of future employment or compensation is reached. A
public filer may also elect to file the recusal statement pursuant to
paragraph (b) of this section before the public filer has a conflict of
interest or appearance of a conflict of interest with the non-Federal
entity identified in the notification statement. The public filer need
not file the document again upon commencing negotiations or reaching an
agreement of future employment or compensation. The advance filing of
any such document is not construed as a statement that negotiations
have or have not commenced or that a conflict of interest does or does
not exist. Although the Office of Government Ethics encourages advance
filing when a public filer anticipates a realistic possibility of
negotiations or an agreement, the failure to make an advance filing
does not violate this subpart or the principles of ethical conduct
contained in Sec. 2635.101(b).
Example 1 to paragraph (c): An employee of the Federal Labor
Relations Authority who is a public filer began negotiating for future
employment with a law firm. At the time the employee began negotiating
for future employment with the law firm, they were not participating
personally and substantially in a particular matter that, to their
knowledge, had a direct and predictable effect on the financial
interest of the law firm. Although the employee was not required to
file a recusal statement because they did not have a conflict of
interest or appearance of a conflict of interest with the law firm
identified in the notification statement, the Office of Government
Ethics encourages the employee to submit a notification of recusal at
the same time that they file the notification statement regarding the
negotiations for future employment in order to ensure that the
requirement of paragraph (b) of this section is satisfied if a conflict
of interest or an appearance of a conflict of interest later arises.
The agency ethics official should counsel the employee on applicable
requirements but is under no obligation to notify the employee's
supervisor that the employee is negotiating for employment.
Example 2 to paragraph (c): An employee of the General Services
Administration is contacted by a prospective employer regarding
scheduling an interview for the following week to begin discussing the
possibility of future employment. The employee discusses the matter
with the ethics official and chooses to file a notification and recusal
statement prior to the interview. The notification and recusal
statement contain the identity of the prospective employer and an
estimated date of when the interview will occur. The employee has
complied with the notification requirement of section 17 of the STOCK
Act.
(d) Definition of agreement of future employment or compensation.
Agreement of future employment or compensation for the purposes of this
section means any arrangement concerning employment that will commence
after the termination of Government service. The term also means any
arrangement to compensate in exchange for services that will commence
after the termination of Government service. The term includes, among
other things, an arrangement to compensate for teaching, speaking, or
writing that will commence after the termination of Government service.
Subpart G--Misuse of Position
Sec. 2635.701 Overview.
This subpart contains provisions relating to the proper use of
official time and authority, and of information and resources to which
employees have access because of their 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.
Sec. 2635.702 Use of public office for private gain.
An employee may not use their public office for their own private
gain; for the endorsement of any product, service, or enterprise
(except as otherwise permitted by this part or other applicable law or
regulation); 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. Employees may not use or
permit the use of their Government position or title, or any authority
associated with their 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 the employee or to friends,
relatives, or persons with whom the employee is affiliated in a
nongovernmental capacity.
Example 1 to paragraph (a): 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
they worked at the SEC and were responsible for reviewing the company's
filings. The employee violated the prohibition against use of public
office for private gain by invoking their official authority in an
attempt to influence action to benefit the relative.
Example 2 to paragraph (a): An employee of the Department of
Commerce was asked by a friend to determine why another office within
the Department of Commerce had not yet granted an export license to the
friend's firm. 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 their public office in an attempt to benefit the
friend and, in acting as the 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, employees may not use or permit the use of their
Government position or title, or any authority associated with their
public office, in a manner that could reasonably be construed to imply
that their agency or the Government sanctions or endorses their
personal activities or those of another. When teaching, speaking, or
writing in a personal capacity, employees may refer to their official
title or position only as permitted by Sec. 2635.807(b). When
providing a verbal or written recommendation, employees may only use
their official title in response to a request for a recommendation or
character reference based upon personal knowledge of the ability or
character of an individual with whom they have dealt in the course of
Federal employment or whom they are recommending for Federal
employment.
Example 1 to paragraph (b): An employee of the Department of the
Treasury who is asked to provide a letter of recommendation for a
former subordinate or for an individual who worked for their team under
a Government contract may provide the recommendation using official
stationery and may sign the letter using their official title. If,
however, the
[[Page 43722]]
request is for the recommendation of a personal friend with whom they
have not dealt in the Government, the employee should not use official
stationery or sign the letter of recommendation using their official
title, unless the recommendation is for Federal employment. In writing
the letter of recommendation for the personal friend, it may be
appropriate for the employee to make a reference to their official
position in the body of the letter.
Example 2 to paragraph (b): An employee of the Environmental
Protection Agency (EPA) has a personal social media account. Under
``occupation,'' the employee writes ``Analyst at the Environmental
Protection Agency.'' On the same social media account, the EPA employee
occasionally discusses topics related to the environment, such as
recycling, biking to work, and organic gardening. Even though the
employee is discussing matters related to the EPA's mission and lists
their position in the area designated for occupation, these facts alone
would not reasonably be construed as implying governmental sanction or
endorsement. The same employee may not, for example, redesign the
social media account so that it prominently features the official EPA
seal and make statements that either assert or imply that their
opinions on environmental topics are sanctioned or endorsed by the
Government.
(c) Endorsements. Employees may not use or permit the use of their
Government position or title or any authority associated with their
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 to paragraph (c): A Commissioner of the Consumer Product
Safety Commission (CPSC) may not appear in a television commercial and
endorse an electrical appliance produced by a former employer, stating
that it has been found by the CPSC to be safe for residential use.
Example 2 to paragraph (c): 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 official duty activities, the Foreign Commercial
Service officer may meet with Spanish officials and explain the
advantages of procurement from the United States company.
Example 3 to paragraph (c): 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 the Administrator 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 to paragraph (c): An Assistant Attorney General may not
use their official title or refer to their Government position in a
book jacket endorsement of a novel about organized crime written by an
author whose work they admire. Nor may they 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 their official duties does not give rise
to an appearance of use of public office for private gain or of giving
preferential treatment, employees whose duties would affect the
financial interests of a friend, relative, or person with whom they are
affiliated in a nongovernmental capacity must comply with any
applicable requirements of Sec. 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 ``Judge,'' or a rank, such as
a military or ambassadorial rank, from using that term of address or
rank in connection with a personal activity.
Sec. 2635.703 Use of nonpublic information.
(a) Prohibition. Employees may not engage in financial transactions
using nonpublic information, nor allow the improper use of nonpublic
information to further their own private interests or those 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 the employee knows or
reasonably should know has not been made available to the general
public. It includes information that the employee 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 to paragraph (b): A Navy employee learns in the course of
official duties that a small corporation will be awarded a Navy
contract for electrical test equipment. The employee may not take any
action to purchase stock in the corporation or its suppliers, and 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 to paragraph (b): 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. 2102.
Example 3 to paragraph (b): 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. The employee 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. 2102.
Example 4 to paragraph (b): 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.
[[Page 43723]]
Example 5 to paragraph (b): 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.
Sec. 2635.704 Use of Government property.
(a) Standard. Employees have a duty to protect and conserve
Government property and may 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 but is not limited to office
supplies, telephone and other telecommunications equipment and
services, Government mail, computers and other electronic devices,
printing and reproduction facilities, Government records, Government
email and social media accounts, 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. Authorized purposes
include but are not limited to those uses of Government property that
are in accordance with an agency's limited or de minimis personal use
policy.
Example 1 to paragraph (b): As permitted under their agency's de
minimis personal use policy, an employee may send an email from a
Government email account to a former college roommate to schedule lunch
for the following day.
Example 2 to paragraph (b): An employee of the Commodity Futures
Trading Commission whose office computer provides access to a
commercial service providing information for investors may not use that
service for personal investment research.
Example 3 to paragraph (b): 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 their office
computer and agency photocopy equipment to prepare a paper to be
presented at a conference sponsored by a professional association of
which they are a member.
Sec. 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, employees
must use official time in an honest effort to perform official duties.
Employees not under a leave system, including Presidential appointees
exempted under 5 U.S.C. 6301(2), have an obligation to expend an honest
effort and a reasonable proportion of their time in the performance of
official duties.
Example 1 to paragraph (a): A disability claims examiner of the
Social Security Administration may use official time to engage in
certain representational activities on behalf of the employee union of
which they are a member. Under 5 U.S.C. 7131, this is a proper use of
official time even though it does not involve performance of assigned
duties as a disability claims examiner.
Example 2 to paragraph (a): A pharmacist employed by the Department
of Veterans Affairs has been granted an excused absence to participate
as a speaker in a conference on drug abuse sponsored by the
professional association to which they belong. Even if an excused
absence granted by an agency in accordance with Governmentwide
personnel guidance would allow employees to be absent from their
official duties without charge to their annual leave accounts, such
absence would not be on official time.
(b) Use of a subordinate's time. Employees may 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 to paragraph (b): A supervisory employee of the
Department of Housing and Urban Development may not ask an assistant to
run personal errands for the employee 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 Sec. 2635.702(a). However, when an arrangement is
entirely voluntary and appropriate compensation is paid, a subordinate
may provide services to the superior during nonduty hours. For example,
a subordinate who enjoys calligraphy may prepare invitations for an
upcoming party that the superior is organizing with friends and family
at home on personal time for appropriate compensation. When 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
Sec. 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 the provisions in this
subpart apply to uncompensated as well as to compensated outside
activities.
(b) Employees who wish 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 paid and unpaid teaching, speaking, and
writing; and
(6) 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 must 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 the
employee has employment or business relations or is otherwise
affiliated in a nongovernmental capacity.
Example 1 to paragraph (c): An employee of the Occupational Safety
and Health Administration (OSHA) 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
[[Page 43724]]
employee should not enter into the consulting arrangement even though
they are not currently working on OSHA standards affecting this
industry and the consulting contract can be expected to be completed
before they again work on such standards. Even though the consulting
arrangement would not be a conflicting activity within the meaning of
Sec. 2635.802, it would create an appearance that the employee had
used their official position to obtain the compensated outside business
opportunity and it would create the further appearance of using public
office for the private gain of the manufacturer.
(d) In addition to the provisions of this subpart 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
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 individual from seeking,
accepting, or agreeing to receive or accept compensation for any
representational services, rendered personally or by another at a time
when the individual is an employee, 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 Ethics in Government Act of 1978 limitations on outside
employment, 5 U.S.C. chapter 131, subchapter III, which restrict the
amount of outside earned income that a covered noncareer employee may
receive, prohibit a covered noncareer employee from receiving
compensation for specified activities, and provide that a covered
noncareer employee may not allow their name to be used by any firm or
other entity that provides professional services involving a fiduciary
relationship. Implementing regulations are contained in Sec. Sec.
2636.305 through 2636.307 of this chapter.
Sec. 2635.802 Conflicting outside employment and activities.
(a) Employees may not engage in outside employment or any other
outside activity that conflicts with their official duties. An activity
conflicts with an employee's official duties:
(1) If it is prohibited by statute or by an agency supplemental
regulation; or
(2) If, under the standards set forth in Sec. Sec. 2635.402 and
2635.502, it would require the employee's recusal from matters so
central or critical to the performance of their official duties that
the employee's ability to perform the duties of the Government position
would be materially impaired.
(b) 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 recuse from participating in certain particular matters under either
subpart D or E of this part.
Example 1 to paragraph (b): A biochemist, who conducts research at
the Environmental Protection Agency (EPA), has an outside consulting
business providing technical guidance on the handling of hazardous
materials. The biochemist would like to apply for a different EPA
position, for which the principal duty would be writing regulations on
the handling of hazardous materials. If the biochemist gets the
position, the work would have a direct and predictable effect on the
outside consulting business. Because the biochemist would be required
to recuse from duties critical to the performance of official duties on
a basis so frequent as to materially impair their ability to perform
the duties of the position, they could not continue to operate the
outside consulting business.
Example 2 to paragraph (b): An employee of the Internal Revenue
Service (IRS) reviews applications for recognition of tax-exempt
status. Several years ago, the employee became involved with a
neighborhood group that transports stray animals to nearby adoption
centers. As its activities expanded, the group created a formal
organization, and submitted an application for recognition of tax-
exempt status by the IRS. Under the circumstances, the employee should
be recused from participating in any IRS determination regarding the
tax-exempt status of this organization. However, the employee's
involvement with the organization would not be prohibited by this
section, because the outside activity would have a limited effect on
official duties and would not require recusal from matters so central
or critical to the performance of official duties that the ability to
perform the duties of the position would be materially impaired.
Sec. 2635.803 Prior approval for outside employment and activities.
When required by agency supplemental regulation, employees must
obtain prior approval before engaging in outside employment or
activities. When it is determined to be necessary or desirable for the
purpose of administering its ethics program, an agency may, by
supplemental regulation, require employees or any category of employees
to obtain prior approval before engaging in specific types of outside
activities, including
[[Page 43725]]
outside employment. Whether or not prior approval is required by agency
supplemental regulations, employees have a continuing responsibility to
ensure that their outside activities do not conflict with their
official duties.
Sec. 2635.804 Outside earned income limitations applicable to certain
Presidential appointees.
This section implements the outside earned income limitations
applicable to certain Presidential appointees. The outside earned
income limitations applicable to covered noncareer employees, as
defined in Sec. 2636.303(a) of this chapter, are implemented in
Sec. Sec. 2636.301 through 2636.304 of this chapter.
(a) Presidential appointees to full-time noncareer positions. A
Presidential appointee to a full-time noncareer position may not
receive any outside earned income for outside employment, or for any
other outside activity, performed during that Presidential appointment.
(b) Definitions. For purposes of this section:
(1) Outside earned income has the meaning set forth in Sec.
2636.303(b) of this chapter, except that Sec. 2636.303(b)(7) does 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 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 to paragraph (b)(2): 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 to paragraph (b)(2): A Department of Energy employee
appointed under Sec. 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.
Sec. 2635.805 Service as an expert witness.
(a) Restriction. Employees may 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, the restriction in this paragraph (a)
applies to special Government employees only if they have 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, special Government employees described in
paragraph (b)(2) of this section may 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 their 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 applies to
special Government employees who:
(i) Are appointed by the President;
(ii) Serve on a commission established by statute; or
(iii) Have served or are 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 Sec. 2635.807(a)(2)(i).
(d) Fact witness. Nothing in this section prohibits an employee
from serving as a fact witness when subpoenaed by an appropriate
authority.
Sec. 2635.806 [Reserved]
Sec. 2635.807 Teaching, speaking, and writing.
(a) Compensation for teaching, speaking, or writing. Except for
teaching certain courses as permitted by paragraph (a)(3) of this
section, an employee, including a special Government employee, may not
receive compensation from any source other than the Government for
teaching, speaking, or writing that occurs while the person is a
Government employee and 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 Sec. 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 Sec. 2635.804 and in
Sec. 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 (a):
(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 their
official position rather than their 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 Sec. 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:
[[Page 43726]]
(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 Sec.
2636.303(a) of this chapter, the general subject matter area, industry,
or economic sector primarily affected by the programs and operations of
the employee's 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 1 to paragraph (a)(2)(i): Paragraph (a)(2)(i)(E) of this
section 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 the employee's 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 to paragraph (a)(2)(i): 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 a personal
collection as well as studying the field generally. The Director 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 the Director's official duties, it is
permissible for the Director to accept compensation for the lecture
series. The Director could not, however, accept a similar invitation
from a commodities broker.
Example 2 to paragraph (a)(2)(i): A scientist at the National
Institutes of Health (NIH), 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 conducted in this position at NIH, which thus relates to the
scientist's 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 to paragraph (a)(2)(i): On personal time, a National
Highway Traffic Safety Administration (NHTSA) employee prepared a
consumer's guide to purchasing a safe automobile that focuses on
automobile crash worthiness statistics gathered and made public by
NHTSA. The employee 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 to paragraph (a)(2)(i): An employee of the Securities and
Exchange Commission (SEC) may not receive compensation for a book which
focuses specifically on the regulation of the securities industry in
the United States, because 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 to paragraph (a)(2)(i): 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
the 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 to paragraph (a)(2)(i): A program analyst employed at the
Environmental Protection Agency (EPA) 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 to paragraph (a)(2)(i): 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
service under this 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, the attorney 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 to paragraph (a)(2)(i): 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 (NSF) to assist
in developing a program of grants by the NSF 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 the appointment as a special
Government employee, the biologist may not receive compensation for an
article about the
[[Page 43727]]
NSF program being developed. Only the latter would concern a matter to
which the special Government employee is assigned.
Example 9 to paragraph (a)(2)(i): 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 the expert will serve fewer than 60 days under
that appointment. Nevertheless, during this 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 Sec. 2635.102(a), except
that any component of a department designated as a separate agency
under Sec. 2635.203(a) will be considered a separate agency.
(iii) Compensation, for purposes of this paragraph (a):
(A) Includes any form of consideration, remuneration, or income,
including royalties, given for or in connection with the employee's
teaching, speaking, or writing.
(B) Compensation does not include:
(1) Items offered by any source that could be accepted from a
prohibited source under subpart B of this part;
(2) 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;
(3) 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
(4) Travel expenses for certain individuals as described in
paragraph (a)(2)(iii)(C) of this section.
(C) For employees other than covered noncareer employees as defined
in Sec. 2636.303(a) of this chapter, compensation does not include
travel expenses, consisting of transportation, lodging or meals,
incurred in connection with the teaching, speaking, or writing
activity. For covered noncareer employees as defined in Sec.
2636.303(a) of this chapter, compensation does include transportation,
lodging, and meals, whether provided in kind, by purchase of a ticket,
by payment in advance, or by reimbursement after the expense has been
incurred, unless such travel expenses are accepted under specific
statutory authority, such as 31 U.S.C. 1353, 5 U.S.C. 4111, or 5 U.S.C.
7342, or an agency gift acceptance statute.
Note 2 to paragraph (a)(2)(iii)(C): Independent of paragraph
(a) of this section, other authorities, including but not limited to
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 a private capacity, a speed-
reading technique for which popular demand is growing. The employee 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 travel expenses. The employee
may accept the travel reimbursements, but not the speaker's fee. The
speaking activity is related to official duties under paragraph
(a)(2)(i)(C) of this section 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 their recent
appointment to a Cabinet-level position, a Government official is
invited by the Chief Executive Officer of a major international
corporation to attend, in their personal capacity, 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 paragraph (a)(2)(i)(B) of this section and,
because the official is a covered noncareer employee as defined in
Sec. 2636.303(a) of this chapter, the travel expenses are prohibited
compensation.
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 a 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 they are assigned. The sponsors of
the conference offer to reimburse the attorney for expenses incurred in
connection with the travel to New York. They also offer the attorney,
as compensation for 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 official duties under
paragraphs (a)(2)(i)(E)(1) and (2) of this section, but because the
attorney is not a covered noncareer employee as defined in Sec.
2636.303(a) of this chapter, the expenses associated with the travel to
New York are not a prohibited form of compensation. 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, the travel expenses to New
York as well as the travel expenses to San Francisco would be barred.
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 the employee's 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. Because the employee is speaking
officially and the expense payments are accepted under 31 U.S.C. 1353,
they are not prohibited compensation under paragraph (a)(2)(iii) of
this section. 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 and Decorations Act, 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
[[Page 43728]]
compensation and to direct its subsequent use. Receipt of compensation
is attributable to the time that the teaching, speaking, or writing
occurs when there is actual or constructive receipt of the compensation
by the employee. If the employee has an enforceable agreement to
receive compensation for writing undertaken during Government service,
then compensation is received while the individual is an employee even
though actual payment may be deferred until after Government service.
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 the
employee's parent, sibling, spouse, child, or dependent relative.
(v) Particular matter involving specific parties has the meaning
set forth in Sec. 2640.102(l) of this chapter.
(vi) Personal and substantial participation has the meaning set
forth in Sec. 2635.402(b)(4).
(3) Exception for teaching certain courses. Notwithstanding that
the activity would relate to their official duties under paragraph
(a)(2)(i)(B) or (E) of this section, employees 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. 1001
or from a similar foreign institution of higher education;
Note 3 to paragraph (a)(3)(i)(A): When the course is offered as
part of the regularly established curriculum of a foreign
institution of higher education, the agency may need to make a
separate determination as to whether the institution of higher
education is a foreign government for purposes of the Emoluments
Clause of the U.S. Constitution (U.S. Const., art. I, sec. 9, cl.
8), which forbids employees from accepting emoluments, presents,
offices, or titles from foreign governments, without the consent of
Congress.
(B) An elementary school as defined at 20 U.S.C. 7801(19); or
(C) A secondary school as defined at 20 U.S.C. 7801(45); 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 to paragraph (a)(3): 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 to paragraph (a)(3): An attorney employed by the Equal
Employment Opportunity Commission (EEOC) may accept compensation for
teaching a course at a state college on the subject of EEOC enforcement
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 a 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 to paragraph (a)(3): An employee of the National
Endowment for the Humanities (NEH) 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 official duty activities, 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 official duties or that involves the use
of nonpublic information.
(b) Reference to official position. Employees who are engaged in
teaching, speaking, or writing as outside employment or as an outside
activity may not use or permit the use of their official title or
position to identify themselves in connection with a teaching,
speaking, or writing activity, or to promote any book, seminar, course,
program, or similar undertaking, except that:
(1) Employees may include or permit the inclusion of their title or
position as one of several biographical details when such information
is given to identify them in connection with their teaching, speaking,
or writing, provided that their title or position is given no more
prominence than other significant biographical details;
(2) Employees may use or permit the use of their 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) Employees who are ordinarily addressed using a general term of
address, such as ``The Honorable'' or ``Judge,'' 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 their teaching, speaking, or
writing.
Note 4 to paragraph (b): Reference to official title and
position other than in a teaching, speaking, or writing capacity may
be made only as permitted by Sec. 2635.702(b). In addition, 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 to paragraph (b): A meteorologist employed with the
National Oceanic and Atmospheric Administration (NOAA) 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 the meteorologist's
education and previous employment in course materials setting forth
biographical data on all teachers involved in the graduate program.
However, the meteorologist's 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 their
name. In contrast, the meteorologist's title may be used in this manner
when NOAA authorized speaking in an official capacity.
Example 2 to paragraph (b): A doctor just employed by the Centers
for Disease Control (CDC) has written a paper based on 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 to paragraph (b): An employee of the Federal Deposit
Insurance Corporation (FDIC) has been asked to give a speech in a
private capacity, without compensation, to the
[[Page 43729]]
annual meeting of a committee of the American Bankers Association on
the need for banking reform. The employee may be described in an
introduction at the meeting as an employee of the FDIC provided that
other pertinent biographical details are mentioned as well.
Sec. 2635.808 Fundraising activities.
Employees 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. This section addresses fundraising as
defined in paragraph (a)(1) of this section, and does not cover all
scenarios in which an employee might seek to collect donations from a
fellow employee. For example, employees of an office might decide to
collect money for a coworker whose family was displaced by a flood; the
permissibility of such collections should be analyzed under subpart C
of this part, not 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 when
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, the employee's 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.
Example 1 to paragraph (a)(2): 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 an
official capacity on a subject matter that relates to the employee's
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 Sec.
2635.807(a)(2)(i)(E), or on matters of Administration policy on which
the employee has been authorized to speak.
Example 1 to paragraph (a)(3): 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. The Secretary devotes a major portion of the 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 the Secretary is authorized to speak on Administration policy,
these remarks at the banquet are an official speech. However, the
Secretary would be engaged in fundraising if the official speech
concluded with a request for donations to the nonprofit organization.
Example 2 to paragraph (a)(3): 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
children with learning disabilities. 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 the agency has determined that the dinner is an
appropriate forum for the particular speech. The Secretary may speak at
the dinner and, under Sec. 2635.203(b)(8), may partake of the meal
provided 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 Sec. 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 to paragraph (a)(4): An employee of the Department of
Energy (DOE) 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 the employee's DOE position and
title, are mailed to members of the local community, even though some
individuals who are employed by DOE contractors may receive the letter.
(b) Fundraising in an official capacity. Employees may participate
in fundraising in an official capacity if, in accordance with a
statute, Executive order, regulation, or otherwise as determined by the
agency, they are authorized to engage in the fundraising activity as
part of their official duties. When authorized to participate in an
official capacity, employees may use their official title, position,
and authority.
Example 1 to paragraph (b): Because participation in an 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 a personal capacity provided that the employee 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
Sec. 2635.203(d), unless the circumstances make clear that the
solicitation is motivated by a family relationship or personal
friendship that would justify the solicitation; or
(ii) Known to the employee, if the employee is a special Government
employee, to be a prohibited source within the meaning of Sec.
2635.203(d)(4) that is a person whose interests may be substantially
affected by performance or nonperformance of the employee's official
duties, unless the circumstances make clear that the solicitation is
[[Page 43730]]
motivated by a family relationship or personal friendship that would
justify the solicitation;
(2) Use or permit the use of the employee's official title,
position, or any authority associated with the employee's 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.
Note 1 to paragraph (c): 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 to paragraph (c): 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 to paragraph (c): An employee of the Merit Systems
Protection Board may not use the agency's photocopier to reproduce
fundraising literature for their child's private school. Such use of
the photocopier would violate the standards at Sec. 2635.704 regarding
use of Government property.
Example 3 to paragraph (c): An Assistant Attorney General may not
sign a letter soliciting funds for a homeless shelter as ``P.J. Doe,
Assistant Attorney General.'' The Assistant Attorney General also may
not sign a letter with just a ``P.J. Doe'' signature soliciting funds
from a prohibited source, unless the letter is one of many identical,
mass-produced letters addressed to a large group when the solicitation
is not known to the Assistant Attorney General to be targeted at
persons who are either prohibited sources or subordinates.
Example 4 to paragraph (c): An employee of the Department of
Commerce is running a half marathon to raise money for a nonprofit
organization engaged in cancer research, and is looking for people to
sponsor the race. The employee plans to target specific individuals
they think will want to contribute, including a close friend with whom
they regularly meet for dinner. Notwithstanding the fact that the
friend is employed by a corporation that is a prohibited source, the
employee may ask the friend to sponsor the race because the
solicitation is motivated by a personal friendship that would justify
the solicitation.
Example 5 to paragraph (c): The employee in example 4 to this
paragraph (c) knows that a subordinate employee has expressed an
interest in this cause and sends the subordinate a direct link to the
online sponsorship page. The employee has ``personally solicited'' a
subordinate in violation of paragraph (c)(1) of this section.
Example 6 to paragraph (c): The employee in example 4 to this
paragraph (c) decides that rather than targeting specific individuals
for contributions, it would be preferable to post a general request and
a link to information about the race on their personal social media
account. Because this request may be viewed by any person with whom the
employee is connected through the social media network and does not
reference or target any specific individual, it is not considered a
personal solicitation of any subordinate or prohibited source that is
connected to the employee.
Sec. 2635.809 Just financial obligations.
Employees must 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
Sec. 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 Sec. 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.
Sec. 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 and the regulation at part 2641 of this chapter).
(f) The prohibition on certain former agency officials' acceptance
of compensation from a contractor (41 U.S.C. 2104).
(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 and the regulation at
part 2640 of this chapter).
(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. 2103).
(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
[[Page 43731]]
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).
(n) [Reserved]
(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. 2102).
(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
their employment (18 U.S.C. 654).
[FR Doc. 2024-10339 Filed 5-16-24; 8:45 am]
BILLING CODE 6345-03-P