Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/cfr2635f.asc

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2635.702 Use of public office for private gain.

 An employee shall not use his public office for his own
private gain, for the endorsement of any product, service or
enterprise, 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. An employee shall
not use or permit the use of his Government position or title or
any authority associated with his 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
himself or to friends, relatives, or persons with whom the
employee is affiliated in a nongovernmental capacity.

 Example 1: 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 he worked at the SEC and was responsible for
reviewing the company's filings. The employee violated the
prohibition against use of public office for private gain by
invoking his official authority in an attempt to influence action
to benefit his relative.

 Example 2: An employee of the Department of Commerce was

asked by a friend to determine why his firm's export license had
not yet been granted by another office within the Department of
Commerce. 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 her public office in an attempt to
benefit her friend and, in acting as her 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, an employee shall not use or
permit the use of his Government position or title or any
authority associated with his public office in a manner that
could reasonably be construed to imply that his agency or the
Government sanctions or endorses his personal activities or those
of another. When teaching, speaking, or writing in a personal
capacity, he may refer to his official title or position only as
permitted by 2635.807(b). He may sign a letter of recommendation
using his official title only in response to a request for an
employment recommendation or character reference based upon
personal knowledge of the ability or character of an individual
with whom he has dealt in the course of Federal employment or
whom he is recommending for Federal employment.

 Example 1: An employee of the Department of the Treasury
who is asked to provide a letter of recommendation for a former
subordinate on his staff may provide the recommendation using
official stationery and may sign the letter using his official
title. If, however, the request is for the recommendation of a
personal friend with whom he has not dealt in the Government, the
employee should not use official stationery or sign the letter of
recommendation using his official title, unless the
recommendation is for Federal employment. In writing the letter
of recommendation for his personal friend, it may be appropriate
for the employee to refer to his official position in the body of
the letter.

 (c) Endorsements. An employee shall not use or permit the
use of his Government position or title or any authority
associated with his 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: A Commissioner of the Consumer Product Safety
Commission may not appear in a television commercial in which she
endorses an electrical appliance produced by her former employer,
stating that it has been found by the CPSC to be safe for
residential use.

 Example 2: 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 his official duties, the Foreign
Commercial Service officer may meet with Spanish officials and
explain the advantages of procurement from the United States
company.

 Example 3: 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 he 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: An Assistant Attorney General may not use his
official title or refer to his Government position in a book
jacket endorsement of a novel about organized crime written by an
author whose work he admires. Nor may he 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 his official duties
does not give rise to an appearance of use of public office for
private gain or of giving preferential treatment, an employee
whose duties would affect the financial interests of a friend,
relative or person with whom he is affiliated in a
nongovernmental capacity shall 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 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. An employee shall not engage in a
financial transaction using nonpublic information, nor allow the
improper use of nonpublic information to further his own private
interest or that 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 he knows
or reasonably should know has not been made available to the
general public. It includes information that he 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: A Navy employee learns in the course of her
duties that a small corporation will be awarded a Navy contract
for electrical test equipment. She may not take any action to
purchase stock in the corporation or its suppliers and she 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: 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. 423.

 Example 3: 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. He 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. 423.

 Example 4: 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.

 Example 5: 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.

2635.704 Use of Government property.

 (a) Standard. An employee has a duty to protect and
conserve Government property and shall 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 office supplies, telephone and other telecommunications
equipment and services, the Government mails, automated data
processing capabilities, printing and reproduction facilities,
Government records, 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.

 Example 1: Under regulations of the General Services
Administration at 41 CFR 201 - 21.601, an employee may make a
personal long distance call charged to her personal calling card.

 Example 2: An employee of the Commodity Futures Trading
Commission whose office computer gives him access to a commercial
service providing information for investors may not use that
service for personal investment research.

 Example 3: In accordance with chapter 252 of the Federal
Personnel Manual, an attorney employed by the Department of
Justice may be permitted to use her office word processor and
agency photocopy equipment to prepare a paper to be presented at
a conference sponsored by a professional association of which she
is 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, an employee shall use official time in an honest effort
to perform official duties. An employee not under a leave system,
including a Presidential appointee exempted under 5 U.S.C.
6301(2), has an obligation to expend an honest effort and a
reasonable proportion of his time in the performance of official
duties.

 Example 1: An employee of the Social Security
Administration may use official time to engage in certain
representational activities on behalf of the employee union of
which she is a member. Under 5 U.S.C. 7131, this is a proper use
of her official time even though it does not involve performance
of her assigned duties as a disability claims examiner.

 Example 2: A pharmacist employed by the Department of
Veterans Affairs has been granted excused absence to participate
as a speaker in a conference on drug abuse sponsored by the
professional association to which he belongs. Although excused
absence granted by an agency in accordance with guidance in
chapter 630 of the Federal Personnel Manual allows an employee to
be absent from his official duties without charge to his annual
leave account, such absence is not on official time.

 (b) Use of a subordinate's time. An employee shall 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: An employee of the Department of Housing and
Urban Development may not ask his secretary to type his personal
correspondence 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). Where the arrangement is entirely
voluntary and appropriate compensation is paid, the secretary may
type the correspondence at home on her own time. Where 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 these
provisions apply to uncompensated as well as to compensated
outside activities.

 (b) An employee who wishes 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 participation in professional
organizations;


 (6) The limitations on paid and unpaid teaching, speaking,
and writing; and

 (7) 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 shall
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 he has employment or
business relations or is otherwise affiliated in a
nongovernmental capacity.

 (d) In addition to the provisions of this 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 his 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 employee from
seeking, accepting, or agreeing to receive or accept compensation
for any representational services, rendered personally or by
another, 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, 5 U.S.C. 7321 through 7328, which
prohibits most employees from engaging in certain partisan
political activities and prohibits all employees from interfering
with elections and conducting political activities in the Federal
workplace;

 (8) The honorarium prohibition, 5 U.S.C. App. (Ethics in
Government Act of 1978), which prohibits an employee, other than
a special Government employee, from receiving any compensation
for an appearance, speech or article. Implementing regulations
are contained in 2636.201 through 2636.205 of this chapter; and

 (9) The limitations on outside employment, 5 U.S.C. App.
(Ethics in Government Act of 1978), which prohibit a covered
noncareer employee's receipt of compensation for specified
activities and provide that he shall not allow his name to be
used by any firm or other entity which provides professional
services involving a fiduciary relationship. Implementing
regulations are contained in 2636.305 through 2636.307 of this
chapter.  [57 FR 35041, Aug. 7, 1992; 57 FR 48557, Oct. 27, 1992]

2635.802 Conflicting outside employment and activities.

 An employee shall not engage in outside employment or any
other outside activity that conflicts with his official duties.
An activity conflicts with an employee's official duties:

 (a) If it is prohibited by statute or by an agency
supplemental regulation; or

 (b) If, under the standards set forth in 2635.402 and
2635.502, it would require the employee's disqualification from
matters so central or critical to the performance of his official
duties that the employee's ability to perform the duties of his
position would be materially impaired.

 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 disqualify himself from participation in certain
particular matters under either subpart D or subpart E of this
part.

 Example 1: An employee of the Environmental Protection
Agency has just been promoted. His principal duty in his new
position is to write regulations relating to the disposal of
hazardous waste. The employee may not continue to serve as
president of a nonprofit environmental organization that
routinely submits comments on such regulations. His service as an
officer would require his disqualification from duties critical
to the performance of his official duties on a basis so frequent
as to materially impair his ability to perform the duties of his
position.

 Example 2: An employee of the Occupational Safety and
Health Administration 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 employee should not enter into the consulting
arrangement even though he is not currently working on OSHA
standards affecting this industry and his consulting contract can
be expected to be completed before he again works 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 his official
position to obtain the compensated outside business opportunity
and it would create the further appearance of using his public
office for the private gain of the manufacturer.

2635.803 Prior approval for outside employment and activities.

 When required by agency supplemental regulation, an
employee shall obtain prior approval before engaging in outside
employment or activities.  Where it is determined to be necessary
or desirable for the purpose of administering its ethics program,
an agency shall, by supplemental regulation, require employees or
any category of employees to obtain prior approval before
engaging in specific types of outside activities, including
outside employment.

 Note: Any requirement for prior approval of employment or
activities contained in any agency regulation, instruction, or
other issuance in effect prior to the effective date of this part
shall constitute a requirement for prior approval for purposes of
this section for one year after the effective date of this part
or until issuance of an agency supplemental regulation, whichever
occurs first.

2635.804 Outside earned income limitations applicable to certain
Presidential appointees and other noncareer employees.

 (a) Presidential appointees to full-time noncareer
positions. A Presidential appointee to a full-time noncareer
position shall not receive any outside earned income for outside
employment, or for any other outside activity, performed during
that Presidential appointment. This limitation does not apply to
any outside earned income received for outside employment, or for
any other outside activity, carried out in satisfaction of the
employee's obligation under a contract entered into prior to
April 12, 1989.

 (b) Covered noncareer employees. Covered noncareer
employees, as defined in 2636.303(a) of this chapter, may not, in
any calendar year, receive outside earned income attributable to
that calendar year which exceeds 15 percent of the annual rate of
basic pay for level II of the Executive Schedule under 5 U.S.C.
5313, as in effect on January 1 of such calendar year. Employees
should consult the regulations implementing this limitation,
which are contained in 2636.301 through 2636.304 of this chapter.

 Note: In addition to the 15 percent limitation on outside
earned income, covered noncareer employees are prohibited from
receiving any compensation for: practicing a profession which
involves a fiduciary relationship; affiliating with or being
employed by a firm or other entity which provides professional
services involving a fiduciary relationship; serving as an
officer or member of the board of any association, corporation or
other entity; or teaching without prior approval. Implementing
regulations are contained in 2636.305 through 2636.307 of this
chapter.

 (c) 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)(8) shall 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 3 U.S.C. 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: 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: 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.


2635.805 Service as an expert witness.

 (a) Restriction. An employee shall 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, this restriction shall apply to a special Government
employee only if he has 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, a special Government
employee described in paragraph (b)(2) of this section shall 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 his 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
shall apply to a special Government employee who:

 (i) Is appointed by the President;

(ii) Serves on a commission established by statute; or

 (iii) Has served or is 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 result in compensation for
an appearance in violation of 2636.201 of this chapter or 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
2635.807(a)(2)(i).

 (d) Nothing in this section prohibits an employee from
serving as a fact witness when subpoenaed by an appropriate
authority.

2635.806 Participation in professional associations. [Reserved]