Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/cfr2635e.asc

Text File | 1993-08-01 | 35KB | 689 lines

    (c)    Determination by agency designee. Where he has
information concerning a potential appearance problem arising
from the financial interest of a member of the employee's
household in a particular matter involving specific parties, or

from the role in such matter of a person with whom the employee
has a covered relationship, the agency designee may make an
independent determination as to whether a reasonable person with
knowledge of the relevant facts would be likely to question the
employee's impartiality in the matter. Ordinarily, the agency
designee's determination will be initiated by information
provided by the employee pursuant to paragraph (a) of this
section. However, at any time, including after the employee has
disqualified himself from participation in a matter pursuant to
paragraph (e) of this section, the agency designee may make this
determination on his own initiative or when requested by the
employee's supervisor or any other person responsible for the
employee's assignment.

    (1)    If the agency designee determines that the employee's
impartiality is likely to be questioned, he shall then determine,
in accordance with paragraph (d) of this section, whether the
employee should be authorized to participate in the matter. Where
the agency designee determines that the employee's participation
should not be authorized, the employee will be disqualified from
participation in the matter in accordance with paragraph
(e)    of this section.

    (2)    If the agency designee determines that the employee's
impartiality is not likely to be questioned, he may advise the
employee, including an employee who has reached a contrary
conclusion under paragraph
(a)    of this section, that the employee's participation in the
matter would be proper.

    (d)    Authorization by agency designee. Where an employee's
participation in a particular matter involving specific parties
would not violate 18 U.S.C. 208(a), but would raise a question in
the mind of a reasonable person about his impartiality, the
agency designee may authorize the employee to participate in the
matter based on a determination, made in light of all relevant
circumstances, that the interest of the Government in the
employee's participation outweighs the concern that a reasonable
person may question the integrity of the agency's programs and
operations. Factors which may be taken into consideration
include:

    (1)    The nature of the relationship involved;

    (2)    The effect that resolution of the matter would have
upon the financial interests of the person involved in the
relationship;

    (3)    The nature and importance of the employee's role in
the matter, including the extent to which the employee is called
upon to exercise discretion in the matter;
    (4)    The sensitivity of the matter;

    (5)    The difficulty of reassigning the matter to another
employee; and

    (6)    Adjustments that may be made in the employee's duties
that would reduce or eliminate the likelihood that a reasonable
person would question the employee's impartiality.

    Authorization by the agency designee shall be documented
in writing at the agency designee's discretion or when requested
by the employee. An employee who has been authorized to
participate in a particular matter involving specific parties may
not thereafter disqualify himself from participation in the
matter on the basis of an appearance problem involving the same
circumstances that have been considered by the agency designee.

    Example 1: The Deputy Director of Personnel for the
Department of the Treasury and an attorney with the Department's
Office of General Counsel are general partners in a real estate
partnership. The Deputy Director advises his supervisor, the
Director of Personnel, of the relationship upon being assigned to
a selection panel for a position for which his partner has
applied. If selected, the partner would receive a substantial
increase in salary. The agency designee cannot authorize the
Deputy Director to participate on the panel under the authority
of this section since the Deputy Director is prohibited by
criminal statute, 18 U.S.C. 208(a), from participating in a
particular matter affecting the financial interest of a person
who is his general partner. See 2635.402.

    Example 2: A new employee of the Securities and Exchange
Commission is assigned to an investigation of insider trading by
the brokerage house where she had recently been employed. Because
of the sensitivity of the investigation, the agency designee may
be unable to conclude that the Government's interest in the
employee's participation in the investigation outweighs the
concern that a reasonable person may question the integrity of
the investigation, even though the employee has severed all
financial ties with the company. Based on consideration of all
relevant circumstances, the agency designee might determine,
however, that it is in the interest of the Government for the
employee to pass on a routine filing by the particular brokerage
house.

    Example 3: An Internal Revenue Service employee involved
in a long and complex tax audit is advised by her son that he has
just accepted an entry-level management position with a
corporation whose taxes are the subject of the audit. Because the
audit is essentially complete and because the employee is the
only one with an intimate knowledge of the case, the agency
designee might determine, after considering all relevant
circumstances, that it is in the Government's interest for the
employee to complete the audit, which is subject to additional
levels of review.

    (e)    Disqualification. Unless the employee is authorized to
participate in the matter under paragraph (d) of this section, an
employee shall not participate in a particular matter involving
specific parties when he or the agency designee has concluded, in
accordance with paragraph (a) or
(c)    of this section, that the financial interest of a member of
the employee's household, or the role of a person with whom he
has a covered relationship, is likely to raise a question in the
mind of a reasonable person about his impartiality.
Disqualification is accomplished by not participating in the
matter.

    (1)    Notification. An employee who becomes aware of the
need to disqualify himself from participation in a particular
matter involving specific parties to which he has been assigned
should notify the person responsible for his assignment. An
employee who is responsible for his own assignment should take
whatever steps are necessary to ensure that he does not
participate in the matter from which he is disqualified.
Appropriate oral or written notification of the employee's
disqualification may be made to coworkers by the employee or a
supervisor to ensure that the employee is not involved in a
particular matter involving specific parties from which he is
disqualified.

    (2)    Documentation. An employee need not file a written
disqualification statement unless he is required by part 2634 of
this chapter to file written evidence of compliance with an
ethics agreement with the Office of Government Ethics or is
specifically asked by an agency ethics official or the person
responsible for his assignment to file a written disqualification
statement. However, an employee may elect to create a record of
his actions by providing written notice to a supervisor or other
appropriate official.

    (f)    Relevant considerations. An employee's reputation for
honesty and integrity is not a relevant consideration for
purposes of any determination required by this section.

2635.503 Extraordinary payments from former employers.

    (a)    Disqualification requirement. Except as provided in
paragraph
(c)    of this section, an employee shall be disqualified for two
years from participating in any particular matter in which a
former employer is a party or represents a party if he received
an extraordinary payment from that person