Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/cfr2635d.asc

Text File | 1993-08-01 | 29KB | 571 lines

    (2)    Imputed interests. For purposes of 18 U.S.C. 208(a)
and this subpart, the financial interests of the following
persons will serve to disqualify an employee to the same extent
as if they were the employee's own interests:

    (i)    The employee's spouse;
    (ii) The employee's minor child;

    (iii) The employee's general partner;

    (iv) An organization or entity which the employee serves
as officer, director, trustee, general partner or employee; and

    (v)    A person with whom the employee is negotiating for or
has an arrangement concerning prospective employment. (Employees
who are seeking other employment should refer to and comply with
the standards in subpart F of this part).

    Example 1: An employee of the Department of Education
serves without compensation on the board of directors of Kinder
World, Inc., a nonprofit corporation that engages in good works.
Even though her personal financial interests will not be
affected, the employee must disqualify herself from participating

in the review of a grant application submitted by Kinder World.
Award or denial of the grant will affect the financial interests
of Kinder World and its financial interests are imputed to her as
a member of its board of directors.

    Example 2: The spouse of an employee of the Food and Drug
Administration has obtained a position with a well established
biomedical research company. The company has developed an
artificial limb for which it is seeking FDA approval and the
employee would ordinarily be asked to participate in the FDA's
review and approval process. The spouse is a salaried employee of
the company and has no direct ownership interest in the company.
Nor does she have an indirect ownership interest, as would be the
case, for example, if she were participating in a pension plan
that held stock in the company. Her position with the company is
such that the granting or withholding of FDA approval will not
have a direct and predictable effect on her salary or on her
continued employment with the company. Since the FDA approval
process will not affect his spouse's financial interests, the
employee is not disqualified under 2635.402 from participating in
that process. Nevertheless, the financial interests of the
spouse's employer may be disqualifying under the impartiality
principle, as implemented at 2635.502.

    (3)    Particular matter. The term particular matter
encompasses only matters that involve deliberation, decision, or
action that is focused upon the interests of specific persons, or
a discrete and identifiable class of persons. Such a matter is
covered by this subpart even if it does not involve formal
parties and may include governmental action such as legislation
or policy-making that is narrowly focused on the interests of
such a discrete and identifiable class of persons. The term
particular matter, however, does not extend to the consideration
or adoption of broad policy options that are directed to the
interests of a large and diverse group of persons. The particular
matters covered by this subpart include a judicial or other
proceeding, application, request for a ruling or other
determination, contract, claim, controversy, charge, accusation
or arrest.

    Example 1: The Internal Revenue Service's amendment of
its regulations to change the manner in which depreciation is
calculated is not a particular matter, nor is the Social Security
Administration's consideration of changes to its appeal
procedures for disability claimants.

    Example 2: Consideration by the Interstate Commerce
Commission of regulations establishing safety standards for
trucks on interstate highways involves a particular matter.

    (4)    Personal and substantial. To participate personally
means to participate directly. It includes the direct and active
supervision of the participation of a subordinate in the matter.
To participate substantially means that the employee's
involvement is of significance to the matter.  Participation may
be substantial even though it is not determinative of the outcome
of a particular matter. However, it requires more than official
responsibility, knowledge, perfunctory involvement, or
involvement on an administrative or peripheral issue. A finding
of substantiality should be based not only on the effort devoted
to a matter, but also on the importance of the effort. While a
series of peripheral involvements may be insubstantial, the
single act of approving or participating in a critical step may
be substantial. Personal and substantial participation may occur
when, for example, an employee participates through decision,
approval, disapproval, recommendation, investigation or the
rendering of advice in a particular matter.

    (c)    Disqualification. Unless the employee is authorized to
participate in the particular matter by virtue of a waiver
described in paragraph (d) of this section or because the
interest has been divested in accordance with paragraph (e) of
this section, an employee shall disqualify himself from
participating in a particular matter in which, to his knowledge,
he or a person whose interests are imputed to him has a financial
interest, if the particular matter will have a direct and
predictable effect on that interest. Disqualification is
accomplished by not participating in the particular matter.

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

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

    Example 1: An Assistant Secretary of the Department of
the Interior owns recreational property that borders on land
which is being considered for annexation to a national park.
Annexation would directly and predictably increase the value of
her vacation property and, thus, she is disqualified from
participating in any way in the Department's deliberations or
decisions regarding the annexation. Because she is responsible
for determining which matters she will work on, she may
accomplish her disqualification merely by ensuring that she does
not participate in the matter. Because of the level of her
position, however, the Assistant Secretary might be wise to
establish a record that she has acted properly by providing a
written disqualification statement to an official superior and by
providing written notification of the disqualification to
subordinates to ensure that they do not raise or discuss with her
any issues related to the annexation.

    (d)    Waiver of disqualification. An employee who would
otherwise be disqualified by 18 U.S.C. 208(a) may be permitted to
participate in a particular matter where the otherwise
disqualifying financial interest is the subject of a regulatory
or individual waiver described in this paragraph, or results from
certain Indian birthrights as described in 18 U.S.C. 208(b)(4).

    (1)    Regulatory waivers. Under 18 U.S.C. 208(b)(2),
regulatory waivers of general applicability may be issued by the
Office of Government Ethics based on i