United States Office of August 1983
Environmental Protection General Counsel
Agency
&EPA U.S. Environmental
Protection Agency
Guidance on
Ethics and Conflicts
of Interest
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U. S. ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE ON ETHICS AND
CONFLICTS OF INTEREST
AUGUST, 1983
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11
FOREWORD
In the fall of 1982 a pamphlet entitled "Guidance on Ethics
and Conflict of Interest" was distributed to Assistant Admin-
istrators, Office Directors, Staff Office Directors and Regional
Administrators. These officials serve as "Deputy Counselors"
under EPA regulations at 40 C.F.R. Part 3. In the spring of 19»3,
that pamphlet was distributed to all EPA managers and supervisors.
The pamphlet summarized the conflict-of-interest statutes
at 18 U.S.C. §201 et seq. and the EPA standards of conduct at
40 C.F.R. Part 3, and provided examples of how these rules are
applied.
This pamphlet is a revision of the earlier version and is
intended for distribution to all employees. It is essentially
an expansion of the material in the original pamphlet.
t
We welcome any comments or suggestions.
Gerald H. Yam/ffa
Designated Ag*ency Ethics
Official
Donnell L. Nantkes
Alternate Agency Ethics
Official
August, 1983
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TABLE OF CONTENTS
Page
Title Page i
Foreword ii
Table of Contents iii
Introduction 1
I. Financial Interests 2
Examples 3
Waiver 4
Clean Air Act Restrictions 5
Toxic Substances Control Act Restrictions 6
Surface Mining Control and Reclamation Act
of 1977 Restrictions 6
EPA Standards 7
Remedies 8
II. Financial Disclosure 8
Executive Personnel Disclosure Reports 9
Confidential Statements of Employment and
Financial Interest 10
Confidentiality 11
III. Representing Outsiders 12
Restrictions on Partners 12
Examples 13
Exceptions 13
Employees on IPA Assignments 14
IV. Post-Employment Conflict of Interest
Restrictions 14
Permanent Restrictions 14
Two-year Restrictions 15
One-year Restrictions 15
Exceptions to the One-Year Restriction 16
Penalties 17
Restrictions in EPA Contract Regulations 17
Examples 17
V. Rule Against Supplementation of Government
Salary 18
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IV
Page
VI. Gifts, Gratuities and Entertainment 19
Exceptions 20
When an Employee xis Offered a Gift 21
Examples 21
Honoraria 22
VII. Outside Employment 22
Prior Approval for Outside Employment 22
Teaching, Speaking, Writing and Editing 23
Examples 23
VIII. Travel Expenses 24
IX. Use of Government Vehicles, Property and
Personnel 26
X. Political Activity 26
XI. Standards for Special Government Employees 28
Examples 29
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INTRODUCTION
EPA employees are subject to a number of statutes and regulations
which establish high standards of ethical conduct in carrying out
their duties and responsibilities. The public is entitled to have
complete confidence that official decisions are free from consider-
ations of self-interest or favoritism. Each employee must help
to earn and must honor that trust by his or her own integrity
and conduct in all official actions.
The conflict of interest statutes at 18 U.S.C. §§202-209 are
criminal provisions which prohibit acts affecting a personal
financial interest, representation of outside parties in government
matters, supplementation of government salary from outside sources
and certain representational activities after departure from govern-
ment service. In addition, provisions of the Ethics in Govenment
Act of 1978 at 5 U.S.C. Appendix I require certain officials to
file public financial disclosure reports. Other statutes deal with
such matters as political activity, -gifts to superiors, use of
government vehicles, etc.
EPA regulations at 40 C.F.R. Part 3 set forth additional
restrictions and requirements concerning actions which create a
reasonable appearance of impropriety, outside employment, travel
reimbursements, publishing activities and confidential financial
reports under Executive Order 11222 of May 8, 1965. The regula-
tions also establish a system for counseling employees concerning
the statutes and regulations, approval of outside employment and
collection and review of financial interest statements.
The Deputy General Counsel is the Designated Agency Ethics
Official who is responsible for overall management of the EPA
ethics program. He is assisted by an Alternate Agency Ethics
Official and by the Deputy Counselors. The Deputy Counselors
(Assistant Administrators, Staff Office Directors, Regional
Administrators and Office Directors fn/) are responsible for
advising employees in their organizations concerning the ethics
rules, coordinating their advice with the Designated Agency
Ethics Official and reviewing requests for approval of outside
employment. They are also responsible for collecting, review-
ing and maintaining confidential statements of employment and
financial interest. The Deputy Counselors are required to
direct employees to file such financial interest statements if
their duties and responsibilities are likely to involve matters
affecting the financial interests of those outside the government.
This pamphlet summarizes and explains the basic conflict of
interest laws and EPA regulations. It is important to read it
carefully, together with the regulations at 40 C.F.R. Part 3,
and to consult with the appropriate Deputy Counselor or with the
Designated Agency Ethics Official whenever questions arise.
fn/ Laboratory Directors are also being considered for designation
as Deputy Counselors.
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GUIDANCE ON ETHICS AND
CONFLICT OF INTEREST
I. Financial Interests
The basic conflict-of-interest statute which governs employees'
conduct in the course of their EPA duties is 18 U.S.C. §208(a),
which provides that:
Except as permitted by subsection (b) hereof, whoever,
being an officer or employee of the executive branch of
the United States Government, of any independent agency
of the United States, or of the District of Columbia,
including a special Government employee, participates
personally and substantially as a Government officer or
employee, through decision, approval, disapproval, recom-
mendation, the rendering of advice, investigation, or
otherwise, in a judicial or other proceeding, application,
request for a ruling or other determination, contract,
claim, controversy, charge, accusation, arrest, or other
particular matter in which, to his knowledge, he, his
spouse, minor child, partner, organization in which he
is serving as officer, director, trustee, partner or
employee, or any person or organization with whom he is
negotiating or has any arrangement concerning prospective
employment, has a financial interest--
Shall be fined not more than $10,000, or imprisoned
not more than two years or both.
This provision applies to rulemaking and policy matters as
well as adjudications, grants and contracts, fn/ The size of the
financial interest is irrelevant, as is the employee's level of
responsibility. The restriction applies not only to the corpora-
tion in which the employee owns stock but also to the corporation's
parent and subsidiary companies. Moreover, it does not matter
that the organization in which the employee or the employee's
immediate family has a financial interest is a non-profit or
public interest group, since such groups nonetheless have financial
interests which the employee's decisions or advice may affect.
fn/ There is a distinction between rulemaking matters which
BTstinctively affect a particular firm or industry and matters
which affect industry generally. Only the former types of rule-
making are covered by 18 U.S.C. §208. However, employees should
consult with the Designated Agency Ethics Official if they believe
that this distinction applies to them.
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Examples
1. An employee owns 10 shares of common stock in a smelting com-
pany which will be required to install additional pollution
control equipment if a proposed new source performance standard
is promulgated. The employee's EPA duties ordinarily include
reviewing drafts of regulations and making comments.
The employee may not participate in developing this regulation,
since he has a financial interest in a company that would be affected
by the performance of his duties.
2. Same as above, except that the financial interest is part of a
trust bequeathed by the employee's deceased parents for the
benefit of his minor children.
The result is the same, since 18 U.S.C. §208(a) extends to
the financial interests of employees' minor children.
3. An employee is the treasurer of -a local chapter of the
Audubon Society, which has applied to EPA for a grant.
The employee receives no pay for these duties.
He is nonetheless barred from participating in any way, in-
cluding rendering any advice or recommendation, in the EPA decision
on the application, since he is an officer in an organization
which has a financial interest in the matter.
4. An EPA employee is serving as Project Officer on a contract
with a consulting firm to study emission control technologies
for the steel industry. The consulting firm approaches the
EPA employee to discuss possible future employment with the
firm. The employee states that he will consider the matter.
Until he rejects the offer, the employee must disqualify
himself from any action as Project Officer, since any such
action would be likely to affect the financial interests of an
organization with which he is negotiating for employment. Of
course, if the employee accepts the offer, he must continue to
disqualify himself so long as he remains with EPA.
5. An EPA employee works in pesticide registration. His
wife holds stock in a pesticides manufacturing company
as part of a retirement plan.
The employee may not participate in processing an application
from the firm in which his wife holds stock.
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6. An EPA employee works in pesticide registration. His wife works
for a pesticide manufacturing company that has applied for an
EPA pesticide registration.
The EPA employee is not statutorily prohibited from working
on the company's pesticide registration since 18 U.S.C.
§208(a) does not extend to a spouse's employer. However, see the
appearance rules, infra.
Waiver .
The statute contains the following provision at 18 U.S.C.
§208(b) for waiver of the restriction:
Subsection (a) hereof shall not apply (1) if the
officer or employee first advises the Government
official responsible for appointment to his position
of the nature and circumstances of the judicial or
other proceeding, application, request for a ruling
or other determination, contract, claim, controversy,
charge, accusation, arrest, or other particular matter
and makes full disclosure of the financial interest
and receives in advance a written determination made
by such official that the interest is not so substantial
as to be deemed likely to affect the integrity of the
services which the Government may expect from such
officer or employee, or (2) if, by general rule or
regulation published in the Federal Register, the
financial interest has been exempted from the require-
ments of clause (1) hereof as being too remote or too
inconsequential to affect the integrity of Government
officers' or employees' services.
EPA regulations at 40 C.F.R. §3.303 provide that only the
Agency Counselor (now Designated Agency Ethics Official) may
grant waivers under 18 U.S.C. §208(b)(1) . The Administrator has
designated the Deputy General Counsel as Agency Ethics Official.
Deputy Counselors (Assistant Administrators, Regional Administra-
tors, Heads of Staff Offices reporting to the Administrator, Deputy
Assistant Administrators and their successors under subsequent
reorganizations) may not grant waivers, no matter how insignificant
the financial interest. However, the regulation does provide that
employees are to submit waiver requests to the Agency Counselor
through their Deputy Counselors.
Waiver requests will be considered for rulemaking and policy
matters in limited circumstances. In considering waiver requests,
the following factors will be considered: the amount of the
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financial interest; the size of the company; the proportion of
the company's total stock the employee owns and the employee's
role in the decision-making process. Waivers will generally not
be granted where the financial interest involves amounts over
$10,000 or where the employee is dealing with applications, con-
tracts, grants or adjudications which directly and specifically
affect the companies in which he or she holds stock, no matter
how small the financial interest.
EPA regulations at 40 C.F.R. Subpart C, Appendix C, have
implemented the waiver authority of 18 U.S.C. §203(b)(2) by
exempting:
(1) bonds other than corporate bonds;
(2) mutual fund shares (including money market funds);
(3) insurance policies;
(4) cash, savings accounts, certificates of deposit, and
shares in Federal credit unions;
(5) real property which is the personal residence of the
employee; and
(6) pensions, retirement, group life, health or accident
insurance plans or other employee welfare or benefit
plans from former employers (except profit-sharing or
stock bonus plans).
Clean Air Act Restrictions (40 C.F.R. §3.505)
Under Section 318 of the Clean Air Act, certain high-level
officials listed in 40 C.F.R. Part 3, Subpart B, Appendix D, may
not be employed by, serve as attorney for, act as consultant to,
or hold any other official or contractual relationship to:
(1) the owner or operator of any major stationary source
or any stationary source which is subject to a standard of per-
formance or emission standard under Section 111 or Section 112
of the Clean Air Act;
(2) any manufacturer of any class or category of mobile
sources subject to regulation under the Clean Air Act;
(3) any trade or business association of which an owner
or operator of a stationary source or a manufacturer of mobile
sources is a member; or
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(4) any organization (including a non-profit organization)
which is a party to litigaton or engaged in political, educa-
tional or informational activities relating to air quality.
In addition, officials subject to Section 318 are prohibited
from owning any financial interest which "may be inconsistent
with" their EPA positions. Although the Section 318 restriction
cannot be avoided by recusal or waiver, our regulations treat such
interests in the same manner as a financial interest is treated
under 18 U.S.C. §208.
Section 318(d) provides for a fine or not more than $2500
or imprisonment not to exceed one year for violation of these
restrictions.
Toxic Substances Control Act Restrictions
Members of the advisory committee established under Section
4(e) of the Toxic Substances Control Act (Pub. L. No. 94-469,
October 11, 1976) and their designees are subject to the follow-
ing additional restrictions:
(1) they may not accept employment or compensation from
any person subject to any requirement of the Act or
any rule or order issued under it, for a period of
twelve months after their committee service ceases; and
(2) they may not hold any stocks or bonds or have any
substantial pecuniary interest in any person engaged
in the manufacture, processing or distribution in
commerce of any substance or mixture subject to any
requirement of the Act or of any rule or order issued
under it.
This provision is enforceable by an action for a court order
to restrain violations.
Surface Mining Control and Reclamation Act of 1977 (SMCRA)
Restrictions
A Federal employee who performs any function under SMCRA
(such as reviewing Environmental Impact Statements submitted by
the Office of Surface Mining in the Department of the Interior)
may not own a "direct or indirect interest" in underground or
surface mining operations. Violation is punishable by a fine
of up to $2500 or imprisonment up to one year, or both. 30
U.S.C. §1211(f). See also, 30 C.F.R. §70b et seq. The term
"direct or indirect" includes holdings by spouses, minor
children and other relatives residing in the employee's home.
The term "financial interest" includes lands, stocks, bonds,
warrants, partnership shares or other holdings and includes
arrangements to receive a salary or pension from coal mining
interests.
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EPA Standards
In addition, EPA regulations provide at 40 C.F.R. §3.103(e;
that employees shall:
avoid any action, whether or not specifically prohibited
by law or regulation (including the provisions of this
part), which might result in, or create the appearance of:
(1) Using...public office for private gain;
(2) Giving preferential treatment to any organiza-
tion or person;
(3) Impeding Government efficiency or economy;
(4) Losing...independence or impartiality of action;
(5) Making a Government decision outside official
channels; or
(6) Affecting adversely the confidence of the public
in the integrity of the Government.
t
These standards are based on government-wide regulations.
They are not easy to apply and can raise delicate questions of
judgment. It is impossible to list all the situations which may
arise, but a few examples are:
1. A Project Officer sends a resume to the company which is
performing the contract he is administering. Although there
would be no violation of 18 U.S.C. §208(a) if the employee
promptly ceased to perform the duties of Project Officer,
his action was nonetheless construed to be improper as a
violation of the appearance standards unless he made prior
arrangements with his Deputy Counselor.
2. An EPA employee participates in the award of a grant to a
non-profit organization in which her husband is an officer.
The husband will not personally receive any financial bene-
fit from the grant. This is not a violation of 18 U.S.C.
§208(a) because the statute does not prohibit participation
in a matter affecting the financial interests of an organi-
zation of which the employee's spouse is an officer or
employee. However, the action was construed to be improper
under the appearance standards.
3. An employee who holds New York City municipal bonds partici-
pates in a construction grant decision involving New York
City. This would not violate the statute because bonds
other than corporate bonds are exempt, but there may be a
problem of appearances.
4. An employee participates in a matter specifically involving
his former employer. Employment with the company ceased only
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within the previous two years. There is no statutory violation
but the participation can create an appearance of favoritism.
Remedies
The Designated Agency Ethics Official is authorized to direct
that an employee dispose of a financial interest that creates an
actual or apparent conflict of interest. Before this remedy must
be invoked, employees may avoid problems under 18 U.S.C. §208 by:
(1) avoiding participation in matters affecting their
financial interests by issuing a recusal statement
to employees under their supervision and to their
immediate supervisors, with a copy to the Designated
Agency Ethics Official;
(2) seeking a waiver from the Designated Agency Ethics
Official under 18 U.S.C. §20«(b) and 40 C.F.R. §3.303;
(3) requesting a change in duties; or
(4) disposing of the interest or placing the assets in
"blind trust" approved by the Office of Government
Ethics.
Deputy Counselors should consult with the Designated Agency
Ethics Official if an employee proposes to place assets in a "blind
trust" or if an order to divest seems necessary.
II. Financial Disclosure
Designated EPA employees are subject to one of two types of
financial disclosure:
(1) public disclosure under the Ethics in Government Act of
1978, or
(2) confidential statements of employment and financial
interest under Executive Order 11222.
The Justice Department's Office of Legal Counsel ruled on
April 11, 1980, that the Ethics in Government Act repealed the
requirement that certain employees file additional public dis-
closure statements under the Toxic Substances Control Act, the
Resource Conservation and Recovery Act, the Clean Air Act and the
Environmental Research, Development and Demonstration Authorization
Act. Consequently, these requirements are no longer in effect
and Deputy Counselors should not retain the "Statements of Known
Financial Interest" which employees have submitted under these
statutes.
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The purpose of financial disclosure is to assist the Agency
in preventing conflicts of interest on the part of certain key
employees. IT IS IMPORTANT TO NOTE, HOWEVER, THAT 18 U.S.C.
§208(a) APPLIES TO ALL FINANCIAL INTERESTS, INCLUDING INTERESTS
NOT REQUIRED TO BE REPORTED. MOREOVER, DISCLOSURE DOES NOT PERMIT
EMPLOYEES TO ACT IN MATTERS IN WHICH THEY HAVE A'FINANCIAL INTEREST;
18 U.S.C. §208 STILL APPLIES.
Executive Personnel Financial Disclosure Reports (SF 278)
Under the Ethics in Government Act, the following employees
must file with the Designated Agency Ethics Official a Standard
Form 278, Financial Disclosure Report:
(1) Presidential appointees;
(2) those whose positions are classified at GS-16 or above
in the General Schedule (including all SES employees) or
whose basic rate of pay under other pay schedules is
equal to or greater than the rate for GS-16 (step 1);
(3) Administrative Law Judges;
(4) Schedule C employees (unless exempted by the Office of
Government Ethics); and
(5) the Designated Agency Ethics Official.
Consultants who are paid at a daily rate equal to or exceeding
the daily rate for GS-16 and who are expected to work more than
60 days in a 365 day period must also file. If a consultant has
not filed because he or she did not expect to work more than 60
days, a SF 278 raust be filed within 15 days after the 61st working
day if the consultant actually works more than 60 days.
Non-covered employees acting in covered positions for more than 60
days must also file"!
The Standard Form 278 must be filed:
(1) within 30 days after assuming a covered position unless the
employee has left a covered position within the previous 30
days;
(2) by May 15 of each year, provided the employee has worked in
a covered position for more than 60 days in the previous
calendar year; and
(3) within 30 days after leaving a covered position unless the
employee has assumed another covered position.
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Th e Designated Agency Ethics Official may extend these dead-
lines by up to 45 days for good cause, and the Office of Government
Ethics may grant an additional extension of up to 45 days.
The Designated Agency Ethics Official submits his or her
report to the Administrator. All others who are required to file
submit their reports to the Designated Agency Ethics Official.
In addition, copies of the reports of the Designated Agency Ethics
Official and of all Presidential appointees are submitted to the
Office of Government Ethics. Reports are retained for six years
unless needed in a ongoing investigation. (Reports of Presidential
nominees who are not subsequently confirmed are retained for one
year, unless needed in an ongoing investigation.)
These forms are available to the public. However, those
wishing to examine a report or receive a copy must file a written
statement with the Designated Agency Ethics Official indicating
name, occupation and address and the name and address of any person
or organization on whose behalf the inspection or copy is requested.
The requester must also sign a statement that indicates that tie or
she is aware that it is unlawful to use the reports for any unlawful
purpose, any commercial purpose (except public dissemination by news
media), credit purposes or solicitations of funds for charitable or
political purposes. These requests are also available to the public.
The Attorney General may bring an action to assess a civil
penalty of up to $5000 for willful failure to file or falsifying
a report. In addition, falsifying a report may be a criminal
offense under 18 U.S.C. §1001.
Confidential Statements of Employment and Financial Interest
Employees who must file a Standard Form 273 need not file any
other disclosure statement. However, Executive Order 11222 re-
quires certain other employees to file EPA Form 3120-1, Confidential
Statement of Employment and Financial Interest. Employees who are
required to file these statements must submit them to their Deputy
Counselors within 30 days after entrance on duty and by July 31 of
each year and must update the statements quarterly if there are
any changes. (Note: although the 1973 EPA regulation establishes
June 30 as the due date, the Office of Government Ethics and its
predecessor at the former Civil Service Commission have advised
that July 31 is more appropriate because the reports cover the
period July 1 - June 30.)
The incumbents of all positions listed in Appendix B to 40
C.F.R. Part 3, Subpart C, or their successors under subsequent
reorganizations must file a confidential statement unless they are
required to file a Standard Form 278. (Note: even if a special
government employee who would otherwise be required to file SF 278
is not expected to work more than 60 days, he or she must nonethe-
less file a confidential report.)
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The Designated Agency Ethics Official or Deputy Counselors
may require employees who are not otherwise required to do so to
file confidential financial statements. In general, employees
at the GS-13 level (or above or comparable pay levels under
other systems) should be required to file if they:
(1) exercise judgment in making a government decision respect-
ing contracts or grants, including project officers, mem-
bers of technical evaluation panels, inspectors, auditors
and initiators of procurement requests; or
(2) exercise judgment or provide advice in regulatory decisions
which may have an economic impact on those outside the govern-
ment.
Without the prior approval of the Office of Personnel Manage-
ment, no employee below grade GS-13 can be required to file. How-
ever, EPA has special authority from 0PM to require certain lower-
level employees to file (e.g., in the Office of Mobile Source En-
forcement) , and Deputy Counselors should consult with the Designated
Agency Ethics Official if they wish'to seek approval for requiring
lower-level employees to file.
Deputy Counselors should also note that an employee whose
position is not listed in Appendix B of 40 C.F.R. Part 3, Subpart
C, is not required to file unless the Designated Agency Ethics Offi-
cial or a Deputy Counselor has specifically directed the employee
to do so in writing. A requirement to file is grievable.
In addition, an older version of the EPA Form 3120-1 states
that employees must list the amounts of their holdings. Disclosure
of amounts is not required. These forms were printed in 1976 when
EPA was planning to revise its regulations to require disclosure
of amounts. However, the Ethics in Government Act was passed
before the Civil Service Commission approved our proposed changes
and the requirement never went into effect.
Confidentiality
EPA Form 3120-1 is confidential. These forms must be kept
in a locked cabinet and they must not be disclosed except to the
following: (1) Designated Agency Ethics Official; (2) Deputy
Counselors; (3) Office of Inspector General; and (4) consistent
with the Privacy Act any person for good cause as determined by
the Administrator or Director of the Office of Government Ethics.
(Good cause would include disclosure on the written request of
a Congressional Committee or Subcommittee but would not include
disclosure to individual Members of Congress.) The reports may
also be disclosed to staff members who assist the Designated Agency
Ethics Official and the Deputy Counselors in their review functions.
Such staff members must be designated in writing and initial any
reports that they review.
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III. Representing Outsiders
Regular government employees (those employed to serve more
than 130 days in a 365 day period) may not act as "agent or attor-
ney" (that is, communicate with intent to influence on behalf of
another) before federal agencies or the District of Columbia.
Employees likewise may not represent outsiders in court proceedings
in which the United States or the District of Columbia is a party
or has a direct interest. The basic statute at 18 U.S.C. §205
provides that:
Whoever, being an officer or employee of the United
States...otherwise than in the proper discharge of his
official duties--
(1) acts as agent or attorney for prosecuting any
claim against the United States, or receives any
gratuity, or any share of or interest in any such
claim in consideration of assistance in the prosecu-
tion of such claim, or
(2) acts as agent or attorney for anyone before any
department, agency, court, court-martial, or officer,
or any civil, military, or naval commission in con-
nection with any proceeding, application, request for
a ruling or other determination, contract, claim, con-
troversy, charge, accusation, arrest, or other partic-
ular matter in which the United States is a party or
has a direct and substantial interest--
Shall be fined not more than $10,000, or imprisoned
not more than two years, or both.
A parallel provision at 18 U.S.C. §203 forbids employees to
receive compensation in connection with the representational
activities of the employee or others before federal agencies (not
courts). Lawyers thus may not receive a share of partnership in-
come attributable to federal agency representational activity.
However, an employee could receive a fee for non-representational
work performed in connection with a federal agency, so long as
the employee did not actually communicate with intent to influence
(but see 40 C.F.R. §3.503 for additional restrictions). Note also:
this restriction can have post-employment effects, since current
partnership income may be attributable to work done while a partner
was with the government.
Restrictions on partners
i
Although this provision is misplaced in the context of post-
employment provisions, 18 U.S.C. 207(a) also provides that partners
of present government employees may not act as "agent or attorney
with respect to any "particular matter" (including a policy or rule-
making matter) in which the government employee is participating
or has participated "personally and substantially."
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Examples
1. An employee has received EPA permission to work as a consultant
to a firm which has been awarded a contract by the Department
of Energy. A controversy arises concerning the scope of wortc
of the contract and the firm asks the EPA employee to discuss
the matter with the DOE contracting officer to seek additional
compensation for an alleged change in the scope of work.
The employee may not do so, since he would be acting as agent
for an outsider in a claim or controversy in which the government
is a party. Moreover, for the employee to assist the firm in the
preparation of its claim may violate the standards of 40 C.F.R.
§3.503(c).
2. An EPA employee is an officer in an environmental organization
and has been asked to present testimony on behalf of the
group at an EPA rule-making proceeding.
He may not do so. Although there is a statutory exception
for testimony under oath, such activ'ity on the part of an EPA
employee has been construed to violate the appearance standards
of 40 C.F.R. §§3.103 and 3.503. However, the employee may appear
as a concerned individual rather than as a representative of a
group, since the employee would not be acting as "agent or attorney."
3. An employee has received permission to work as a consultant
to an architect/engineering firm which is competing for a
subagreement under an EPA construction grant. The firm has
asked the EPA employee to present its proposal to EPA's
grantee.
The employee may not do so. Although the restriction of 18
U.S.C. §205 does not apply, since the representational activity
is not before EPA, the problem of appearances is clear. In addi-
tion, for an EPA employee to work on projects funded by EPA may
also violate the appearance standards of 40 C.F.R. §3.503(c), and
Deputy Counselors should consult with the Designated Agency Ethics
Official before approving any such outside employment.
Exceptions (18 U.S.C. §§203 and 205 and 40 C.F.R. Part 3, Sub-
part A, Appendix A)
1. With the approval of the Agency Ethics Official, an employee
may act as agent or attorney for his or her parents, spouse,
child, or any person for whom, or for any estate for which,
the employee is serving as guardian, executor, adrainistrator,
trustee or other personal fiduciary except where the employee
has participated in the same matter on behalf of the government
or where the matter is the subject of the employee's official
responsibility.
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2. Nothing in 18 U.S.C. §203 or §205 prevents an employee from
giving testimony under oath or from making statements re-
quired to be made under penalty for perjury or contempt.
(However, an employee may not serve as an "expert witness"
for an outside party in a government matter.)
3. An employee may act without compensation as agent or attorney
for anyone who is the subject of disciplinary, loyalty or
other personnel proceedings, provided the employee's official
duties do not conflict with such representation. Employees
should consult with their Deputy Counselor or the Designated
Agency Ethics Official before undertaking such representation.
See Section XI concerning the applicability of this restriction
to special government employees.
Employees on IPA Assignments
EPA employees detailed to State or local governments or to
universities or other organizations under the Intergovernmental
Personnel Act (5 U.S.C. §§3371 - 3376) remain subject to the con-
flict-of-interest laws and EPA regulations. However, 18 U.S.C.
§§203 and 205 do not apply where an employee is "acting in the
proper discharge of official duties." In March of 1980, the
Department of Justice opined that EPA employees detailed to
States to carry out programs for which EPA and the States have
a joint responsibility under the environmental statutes may repre-
sent a State's position before EPA. Such employees are acting "in
the proper discharge of official duties" because the environmental
statutes contemplate that EPA employees will be detailed to impor-
tant State positions, and it is essential to the statutory scheme
that such employees be allowed to represent the States in their
dealings with EPA.
Persons assigned to EPA under the Intergovernmental Personnel
Act are subject to all the conflict-of-interest statutes and EPA
regulations.
IV. Post-Employment Conflict of Interest Restrictions
The post-employment conflict of interest provisions at 18
U.S.C §207 establish three types of restrictions:
Permanent restrictions
Former employees are forever barred from representing anyone
other than the United States before a Federal court or agency with
respect to "a particular matter involving a specific party or
parties" in which they ever participated "personally and substan-
tially" (that is, on a matter of substance as contrasted with mere
administrative processing of vouchers, etc.) as government employees.
Participation is broadly defined to include advice and recommenda-
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tions as well as decision-making. However, the restriction applies
only to matters which involve specific parties, such as contracts,
grants and adjudications, and it covers only actual representation
of another. The restriction does not cover rulemaking, and former
employees may represent an outside party in proceedings governed
by rules they helped to make.
The restriction does not prohibit former employees from
seeking contracts with the agency for which they formerly worked,
nor does it bar work on contracts with which former employees
were involved.
Two-year restrictions
Former employees who had "official responsibility" for
particular matters involving a specific party or parties but did
not actually participate in them are barred for a period of two
years from representing outside parties on such matters. This
restriction applies only to particular matters which were under
a former employee's responsibility during his or her final year
in the responsible position. The terms of this restriction are
the same as those of the permanent restriction.
In addition, former employees who have been designated as "senior
employees" by statute or by the Office of Government Ethics are
prohibited for two years from assisting an outside party "by personal
presence" in connection with particular matters in which such em-
ployees ever participated personally and substantially. This means
that a former "senior employee" may not attend a meeting or hearing
to assist an outside party's representative where such a matter
will be discussed, even if the former employee does not directly
communicate with intent to influence.
The "senior employee" list is reviewed annually. "Senior
employees" at EPA include Assistant Administrators, Office Directors,
Regional Administrators, some Directors of Staff Offices reporting
to the Administrator and a few Division Directors. See 5 C.F.R.
§737.33
One-year restriction
Former employees who served in "senior employee" positions
and who left EPA after February 28, 1980, are subject to a one-year
"quarantine" which prohibits any communication with EPA with intent
to influence on any matter, including rulemaking, regardless of
whether the former employees participated in the matter. The Office
of Government Ethics has construed communications with courts and
Justice Department attorneys in connection with cases involving
EPA as falling within the restrictions. However, employees may
occupy such positions in an "acting" or "temporary" capacity for
up to 60 days without becoming subject to the one-year restric-
tion. 5 C.F.R. §737.25(e).
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Exceptions to the One-Year Restriction
1. Employees of State or local governments, universities, hospitals
or medical research facilities
Elected officials of State or local governments and those
whose principal employment is with an agency or instrumen-
tality of a State or local government or a hospital, medical
research institution or institution of higher education may
communicate with EPA on behalf of these entities.
2. Furnishing scientific or technical information
The restriction does not prohibit former employees from
furnishing scientific or technical information at the
agency's request or in connection with performance of
work under assistance agreements or contracts.
3. Testifying under oath
The restriction does not prohibit former employees from
testifying at a proceeding under oath or penalty for per-
jury. However, service as an "expert witness" is not
allowed.
4. Personal communications
Communications of a personal nature, such as those con-
cerning an individual's own payroll vouchers, are permitted.
5. Employees who left government service before July 1, 1979
Only the permanent restriction applies in its present
form to employees who left government service before
July 1, 1979. For these persons, the present two-year
restriction on representing outsiders on matters which
were under their official responsibility lasted only one
year and the ban on "aid and assistance" by personal
presence did not apply. See 40 C.F.R. Part 3, Subpart A,
Appendix C.
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Penalties
The penalties for violation of 18 U.S.C. §207 include a fine
of up to $10,000 and up to two years in prison. Alternatively,
the agency may impose administrative sanctions, such as debar-
ment from agency proceedings.
Restrictions in EPA Contract regulations
In addition to the statutory post-employment restrictions,
EPA contract regulations at 41 C.F.R. §15-1.55 establisn a one-year
prohibition against award of a noncompetitive contract to a former
EPA employee or to a firm in which a former employee is an officer
or director when the former employee was involved in developing
or negotiating the contract proposal or will De involved in the
management, administration or performance of the project. The
Deputy Administrator may waive this prohibition if award would be
unlikely to involve a violation of 18 U.S.C. §207 or EPA standards
of conduct regulations. The waiver may be granted only if there
is no indication of improper influence or favoritism and if award
would be in the best interests of the government.
Although there is no prohibition against the award of a com-
petitive contract involving a former employee, the official to
whom the Director of the Procurement and Contracts Management
Division reports must determine that there is no likely violation
of 18 U.S.C. §207 or indication of improper influence or favorit-
ism in awards within one year after the employee leaves EPa.
Examples
1. An EPA employee served on a technical evaluation panel for
a contract award. After he left EPA, he went to work for
the contractor and was assigned to work as project manager
on the contract he helped to award. A dispute arises over
the meaning of a contract term and the company's management
asks the former employee to present the company's point of
view to EPA.
He may not do so because the contractual matter involved a
particular party or parties - the offerer - at the time the former
employee participated. , It is the same particular matter, and pre-
senting the company's position to EPA would amount to communica-
tion with intent to influence. Note, however, that it is proper
for the employee to work on the contract and even to deal with the
EPA Project Officer on matters involving the day-to-day performance
or administration of the contract, since this is not communication
with intent to influence. However, because this exception involves
a delicate question of judgment, a former employee should seek
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written advice from the Designated Agency Ethics Official before
dealing with EPA on grants and contracts where the restriction
would otherwise apply.
2. Same situation, except that the company merely asks the
former employee to prepare a written submission to EPA
for the signature of the company's president.
He may do so, since the statute bars only representational
activity, not aid and assistance.
3. A former EPA attorney (not a "designated senior employee")
advised the Office of Air Quality Planning and Standards
on a draft emission standard. After he leaves, a private
client engages him to represent a company in a court pro-
ceeding in which the application of the rule is at issue.
He may do so, since ruleraaking is not "a particular matter
involving a specific party or parties."
4. A former Regional Administrator was responsible for an
enforcement proceeding during his final year at EPA, but
did not personally participate in the matter. Immediately
after his resignation from EPA, the firm which was the
subject of the enforcement action asks the former Regional
Administrator to discuss settlement with EPA and the
Justice Department.
He may not do so during the first two years after leaving
EPA. In addition, the one-year "quarantine" applies to former
Regional Administrators.
5. Same situation, except that the Regional Administrator
was on an IPA assignment or reassigned to Headquarters for
a year before leaving EPA.
He still may not do so, but in this case the restriction
lasts only one year. The two-year restriction is measured from
the date official responsibility ceases and not from the date the
former Regional Administrator left EPA.
V. Rule Against Supplementation of Government Salary
The statutory restriction against supplementation of employees'
salaries by outside sources is at 18 U.S.C. §209 and provides as
follows:
(a) Whoever receives any salary, or any contribution
to or supplementation of salary, as compensation for his
services as an officer or employee of the executive branch
of the United States Government, or any independent agency
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of the United States, or of the District of Columbia, from
any source other than the Government of the United States,
except as may be contributed out of the treasury of any
State, county, or municipality; or
Whoever, whether an individual, partnership, association,
corporation, or other organization, pays or makes any contri-
bution to, or in any way supplements the salary of, any such
officer or employee under circumstances which would raaice its
receipt a violation of this subsection--
Shall be fined not more than $5,000 or imprisoned not
more than one year, or both.
(b) Nothing herein prevents an officer or employee of the
executive branch of the United States Government, or of any
independent agency of the United States, or of the District
of Columbia, from continuing to participate in a bona
fide pension, retirement, group life, health or accident
insurance, profit-sharing, stock bonus, or other employee
welfare or benefit plan maintained by a former employer.
(c) This section does not apply to a special Government
employee or to an officer or employee of the Government serving
without compensation, whether or not he is a special Government
employee, or to any person, paying, contributing to, or supple-
menting his salary as such.
(d) This section does not prohibits payment or acceptance
of contributions, awards, or other expenses under the terms
of the Government Employees Training Act (Public Law 85-507,
72 Stat. 327; 5 U.S.C. 2301-2319, July 7, 1958).
The purpose of this restriction is to bar supplementation
of employees' salaries by outside parties, except as specified
above. For example, a former employer could not agree to make up
the difference between an EPA employee's government salary and
the salary he or she was earning from the private employer. The
statute does not forbid receipt of outside earned income nor does
it generally prohibit income under deferred compensation plans.
The question is whether a former employer is providing a special
benefit because of the employee's government employment.
VI. Gifts, Gratuities and Entertainment (40 C.F.R. §§3.400-3.402)
EPA employees may not, directly or indirectly, accept gifts
from anyone who: (1) is financially affected by the way EPA
employees perform their jobs; (2) has or is seeking to obtain an
EPA contract or grant; or (3) conducts operations or activities
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which EPA regulates. Of course, offering or accepting anything
of value for the purpose of influencing official action is a crime
under the bribery statute. (18 U.S.C. §201)
Exceptions
1. Food
Employees may accept food or refreshments of nominal value
during a meeting or an inspection tour where there is no arrange-
ment for separate billing. For example, if consistent with the
transaction of official business, it would be proper for an
employee to accept a lunch in a corporate dining room.
Employees may also accept food or refreshments at widely
attended gatherings sponsored by industrial, technical or profes-
sional organizations if the employee is representing EPA.
Employees are not authorized to accept "business lunches";
they must pick up their own checks.
2. Transportation
Employees may accept incidental transportation in kind from
a private organization in connection with official duties. For
example, employees on inspection tours may accept rides from the
airport to the plant, if the firm customarily provides this service
for visitors. Because of the appearance problem (and because it
arguably amounts to an impermissible augmentation of EPA appropria-
tions), employees generally should not accept rides in corporate
aircraft. (See discussion of travel expenses below.)
3. Unsolicited advertising or promotional material
Employees may accept unsolicited advertising or promotional
material of nominal value (under $10 U.S. retail), such as pens,
pads, calendars and the like. Items which are not of an advertis-
ing or promotional nature may not be accepted no matter how inex-
pensive, and items of more than minimal value may not be accepted
even if they are advertising or promotional materials.
4. Gifts from family and friends
It is permissible to accept such gifts if it is obvious that
the personal relationship, and not the business relationship,
prompted such gifts. Any gifts from other than family and in
excess of $100 in value must be reported on the annual SF 278.
5. Benefits available to all employees
Employees may purchase articles at stores which give dis-
counts to all government employees. They may also accept loans
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from banks or other financial institutions on customary terms.
6. Foreign gifts and decorations
Under 5 U.S.C. §7342, employees may retain gifts of "minimal
value" (under $140 U.S. retail) tendered by foreign governments
as a souvenir or gesture of courtesy. Employees may not solicit
such gifts. Employees may also accept such gifts of more than
minimal value if the gift is in the nature of an educational
scholarship or medical treatment or if it appears that refusal
to accept the gift would cause offense or embarrassment or other-
wise adversely affect U.S. foreign relations.
However, tangible gifts of more than minimal value must be
turned over to the Agency for disposal.If such an acceptance
occurs, Deputy Counselors should consult with the Designated
Agency Ethics Official.
All gifts from foreign governments must be reported to the Office
of International Activities.
When an Employee is Offered a Gift
Employees must decline to accept prohibited gifts. If the
circumstances seem to require temporary acceptance for prudential
reasons, employees must file a report with their supervisors. Gifts
should be returned to the donor, if possible. If not, they must
be donated to a public or charitable organization. Employees
should ordinarily inform donors of the disposition of gifts.
Examples
1. An employee is on an inspection tour and a company repre-
sentative meets him at the airport. On the way to the
plant the industry representative suggests that they stop
at a restaurant and have lunch. The industry representa-
tive insists on paying the bill.
The employee may properly accept the ride, but not the lunch.
2. An employee is on an inspection tour of a foreign auto-
mobile plant. A company representative takes him to the
company's executive dining room for lunch. At the con-
clusion of the inspection tour, the president of the
company calls several hundred employees together and
presents the employee with a watch, a calculator and a
music box, all inscribed with the company's trademark.
Under the circumstances, it was proper to accept the lunch.
Although the employee would be required to decline similar gifts
from an American company, it would probably be prudent to accept
the gifts in this case. When the employee returns to the U.S. he
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must file a written report with his supervisor and donate the
watch and the music box to charity. If the calculator is worth
less than $10 U.S. retail it would be proper to keep it. If not,
it must also be donated. Employees must make a written report
to their supervisors describing acceptance and disposition of
gifts.
Honoraria
Employees cannot accept payment for any official appearance.
Unless the appearance is clearly in the nature of private outside
activity, 18 U.S.C. §209 forbids acceptance of such augmentations
of salary. (Note: even if an honorarium is received for a per-
missible outside activity, 2 U.S.C. §441i prohibits employees from
accepting an honorarium of more than $2000 for any one appearance
or honoraria totaling more than $25,000 in any one calendar year.
In addition, all appearances by Presidential appointees in relation
to government matters are "official" and no honorarium can be
accepted.)
Organizations which would otherwise pay an honorarium to an
EPA employee have sometimes made a donation to the EPA Scholarship
Fund instead. However, employees must make it absolutely clear
that the organization is not required to make a donation to the
Scholarship Fund or to anyone else as a condition of their appear-
ance. The employee may not designate the Scholarship Fund or any
other charity to receive the donation. Moreover, any donation
to the Scholarship Fund or to any other charity must be made
directly—not through the employee. If the check is made out to
the employee, the money is earned on behalf of the United States
and must be deposited in the Treasury.
VII. Outside Employment (40 C.F.R. §§3.500-3.510)
Outside employment is permitted unless it would:
(1) violate federal or State law;
(2) give rise to a real or apparent conflict of
interest;
(3) involve work for an EPA contractor or sub-
contractor on an EPA project; or
(4) involve use of EPA time or property, or the
use of information confidential to EPA.
Prior approval for outside employment
Employee's must have the written approval of their Deputy
Counselor of the Designated Agency Ethics Official before engaging
in the following types of outside employment:
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(1) regular self-employment (selling, service work,
etc.);
(2) consulting services;
(3) holding state or local public office; or
(4) work involving an EPA contractor or subcontractor.
Moreover, employees are encouraged to seek approval of any
outside activity where there is any question of impropriety.
Teaching, speaking, writing and editing
Additional conditions apply here. Employees may not:
(1) instruct people on dealing with specific matters
pending in EPA;
t
(2) pursue such activities in connection with trips at
government expense;
(3) approve or disapprove of advertising;
(4) express or imply official EPA support or approval
of the work; or
(5) accept outside compensation for any work performed
as a part of government duties.
If writing is related to an employee's official duties, it
must either omit mention of the employee's connection with EPA
or include the following disclaimer:
This (article, book, etc.) was (written/edited) by (name)
in (his/her) private capacity. No official support or
endorsement by the Environmental Protection Agency is
intended or should be inferred.
Examples
1. An employee has a realtor's license and would like to sell
real estate in his spare time.
This is permissible as long as it is: (1) performed on the
employee's own time; (2) no EPA facilities, such as telephones,
are used; (3) the employees will not communicate with any federal
agency with intent to influence (such as by seeking FHA or VA
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loans); and (4) the employee receives the written approval of his
Deputy Counselor.
2. An employee has written an article about a project he worked
on at EPA and wants to submit it to a publisher.
This is permissible, so long as the employee and the publisher
either omit mention of his EPA employment or include a disclaimer.
Note that it would be unlawful for the employee to accept any out-
side compensation for writing which was part of his EPA duties.
18 U.S.C. §209. In this case, he is merely describing duties he
performed for EPA. However, it would be improper to use confi-
dential EPA information for personal gain. 40 C.F.R. §§3.103(c)
and 3.503(j).
3. An employee has been asked to work on a project for a con-
sulting firm and requests the approval of his Deputy
Counselor.
This employment is approvable so long as: (1) it is not per-
formed in connection with any EPA contract or subcontract, and
(2) it would not involve communication with any federal agency
with intent to influence in violation of 18 U.S.C. §205. Of
course, the employee may not participate in any EPA matter which
affects the financial interest of the consulting firm. (Note:
although the regulation does not expressly prohibit work on EPA
grants or subagreements under EPA grants, such outside employ-
ment may nonetheless present a problem of appearances. Deputy
Counselors should consult the Designated Agency Ethics Official
whenever an employee requests approval of such outside employment.)
VIII. Travel Expenses
Since it would amount to an unauthorized augmentation of EPA
appropriations under decisions of the General Accounting Office,
employees may not accept outside reimbursement for official travel
except under several narrow statutory exceptions, fn/ These pro-
visions are described below:
fn/ Unless the donor of travel expenses is a state or local
government or an organization listed under Section 501(c)(3)
of the Internal Revenue Code, employees may not accept a
greater amount than EPA would have provided under the Travel
Regulations. See 18 U.S.C. §209 and 5 U.S.C. §4111.
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(1) The Intergovernmental Personnel Act (IPA) at 5 U.S.C.
§§3371-3376 authorizes employees on detail to accept travel ex-
penses from State and local governments, domestic universities
and certain non-profit organizations listed by the U.S. Office
of Personnel Management. There is no minimum period for an IPA
detail. When this authority is used, the EPA personnel office
prepares an IPA agreement which specifies that EPA will bear
all salary costs arid the receiving entity will provide travel
expenses.
(2) Under 5 U.S.C. §4111, employees may be authorized to
accept travel expenses from non-profit charitable, educational,
scientific and religious organizations listed pursuant to Sec-
tion 501(c)(3) of the Internal Revenue Code. Under EPA regula-
tions at 40 C.F.R. §3.505(b)(2), employees must have advance
written approval to accept such travel expenses. The Admin-
istrator has delegated approval authority to the Designated
Agency Ethics Official. When this authority is used, the em-
ployee should send a brief memo to tne Designated Agency Ethics
Official indicating the nature of the travel and stating that
the organization which has offered to pay travel expenses is
listed under Section 501(c)(3) of the Internal Revenue Code. To
expedite a reply, the request should contain a concur/nonconcur
signature line.
(3) Under 5 U.S.C. §7342(c)(1), employees may accept ex-
penses for travel "entirely outside the United States" from
foreign governmental entities and from public international
organizations in which any government participates.
(4) Under 5 U.S.C. §3343, employees or the Agency may accept
travel expenses (including domestic travel expenses) through
details to public international organizations in which the United
States participates as a government. There is no minimum period
for such details. All that is necessary is an exchange of corres-
pondence expressing an agreement.
(5) Under 22 U.S.C. §§2455(f) and 2458a, employees may
accept travel expenses from virtually anyone if the U.S. Inter-
national Communications Agency in the State Department approves
the activity as within the Mutual Educational and Cultural Ex-
change Program under Chapter 33 of Title 22, U.S. Code.
(6) Travel expenses of witnesses under 5 U.S.C. §5751.
(Amounts collected in excess of actual expenses must be turned
over to EPA).
(7) Under 22 U.S.C. §1451, EPA may, with State Department
approval, assign employees with "special scientific or other
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technical or professional qualifications" Co serve with a foreign
government if the host government agrees to pay all compensation,
travel expenses and allowances.
The Office of International Activities makes the necessary
arrangements for international travel.
IX. Use of Government Vehicles, Property and Personnel
Employees may not use or allow the use of government property
or time for other than official purposes. Examples of activities
within this prohibition include:
(1) use of government offices for outside business or other
activities (except for approved employee recreational, welfare
and other activities;
(2) use of other equipment (copying machines, word processors,
telephones, etc.) for other than EPA business;
(3) use of services of subordinates for other than official
business.
See 40 C.F.R. §§3.l04(a) and 3.503(h). See also 18 U.S.C. §641,
the criminal provision which prohibits theft and conversion of
government property to one's own use or the use of another.
Misuse of government-owned or leased motor vehicles is a
particularly sensitive area. Such vehicles are to be used only
for official purposes, and EPA property management regulations
at Section 115-39.602-1 (based on 31 U.S.C. §1344) provide a
minimun penalty of one month's suspension for violation of this
prohibition. Moreover, since 1976 EPA1s Appropriation Act has
prohibited the use of appropriated funds to transport any officer
or employee between his or her home and the office.
Employees should also be aware that the government alone is
liable for damages arising from vehicle accidents which occur in
the course of official duty. However, the employee is immune from
suit only where the employee was acting "within the scope of employ-
ment" at the time of the incident. 28 U.S.C. §2679.
Therefore, any use of a government vehicle which is not clearly
official must be avoided.
X. Political Activity
The Hatch Act at 5 U.S.C. §7324 prohibits federal employees
from (1) using official authority to interfere with or affect the
result of any election, and (2) taking an active part in political
management or in political campaigns. However, intermittent employees
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are subject to this restriction only on the days they actually wor^,
and Presidential appointees are not subject to restriction (2).
5 C.F.R. §733.123. The penalty for violation is removal from office
unless the Merit Systems Protection Board unanimously determines tnat
a suspension of not less than 30 days is warranted. 5 U.S.C §732^.
The prohibition is very broad and includes such activities
as organizing a political party or club, soliciting or collecting
political donations, driving voters to the polls on behalr of a
candidate, becoming a candidate for or campaigning for public office,
actively managing or assisting in a campaign, initiating or cir-
culating a nominating petition and serving as a delegate, alternate
or proxy to a political convention. Performing clerical wortc in
connection with political campaigns is also prohibited.
Employees may, however, attend political fund-raising gatherings
and political meetings, and they may contribute to political parties
or organizations. Of course, they may also express personal political
views and preferences, so long as they do not do so in the context of
official duties. However, employees ,must be careful to avoid cross-
ing the line into "active participation." Endorsing or opposing a
candidate in a political broadcast or advertisement would oe a vio-
lation as would addressing a political gathering or fund-raiser.
Although the Hatch Act does not apply to spouses of federal employees,
employees should nonetheless be careful to avoid "active participation"
through the political activities of spouses, such as by assisting in
a fundraising gathering.
There is an exception for elections in counties in which large
numbers of residents are federal employees, such as the counties
surrounding the District of Columbia. In these counties, federal
employees may be candidates for public office and actively parti-
cipate in partisan elections, but only as independent candidaces or
on behalf of independent candidates.
In addition to the Hatch Act, there are criminal provisions
regarding political activity which apply to all federal employees
(including Presidential appointees). Tnese prohibitions include:
(1) using official authority to affect a federal election (18 U.S.C.
§595);
(2) promising government employment, contracts or other benefits
as a consideration, favor or reward for political activity,
or promising special consideration for such benefits (18 U.S.C.
§600);
(3) depriving anyone of federal employment or benefits for refusal
to make a political contribution (18 U.S.C. §601);
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(4) soliciting political contributions from other federal employees
(18 U.S.C. §602);
(5) making a political contribution to another federal employee in
connection with a federal election (18 U.S.C. §603); and
(6) soliciting or receiving political contributions on government
premises (18 U.S.C. §607).
XI. Standards for Special Government Employees
The principles discussed earlier in this pamphlet generally
apply to all govenment employees, including temporary or inter-
mittent experts or consultants. Moreover, except for the Hatch
Act prohibition against political activity, these standards apply
during the entire period of temporary or intermittent EPA employment
and not merely on the days when a temporary or intermittent employee
is actually working for EPA.
However, Congress has recognized that "special Government
employees" (those appointed to work less than 130 days in any 365
day period) are likely to have other business or professional in-
terests and should not be subject to all of the restrictions which
apply to regular employees. Accordingly, the standards which
apply to special government employees differ in the following
respects from those which apply to regular employees:
(1) The prohibitions of 18 U.S.C. §§203 and 205 concerning
receipt of income from representational activities before
federal agencies and on representing outside parties before
federal courts or agencies (see page 12) do not generally
apply. Special employees are barred from such activities
only where (1) they have personally participated in the
same particular matter involving a specific party or
parties as government employees, and (2) after their 60th
day of actual service in a 365 day period, a particular
matter involving a specific party or parties is pending in
the department or agency which employs them. Since a court
case is not "pending in" a federal agency, the second pro-
hibition does not apply to matters before courts.
(2) The restrictions in EPA regulations at 41 C.F.R. §15-55 on
noncompetitive contract awards during the first year after
employment ceases (see page 15) apply to special government
employees only if they have actually worked more than 60
days during their final 365 days of EPA employment.
(3) The general rules against receipt of gifts, gratuities, enter-
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tainment or favors do not apply to receipt of salary, bonuses
or other compensation or benefits from a special government
employee's non-government employer.
(4) The prohibition on supplementation of government salary at 18
U.S.C. §209 does not apply to special government employees.
(5) All special government employees (except temporary and summer
employees below the grade of GS-13 and employees participat-
ing in an intern or other training program) are required to
file EPA Form 3120-1, Confidential Statement of Employment
and Financial Interest, within 30 days after entrance on
duty. This statement must be kept current throughout the
period of employment. If a special government employee is
paid at a rate equal to or greater than the basic daily rate
of pay for GS/GM-16 and is expected to work more tnan 60 days,
the Standard Form 278, Executive Branch Financial Disclosure
Report, must be filed with the Designated Agency Ethics
Official within 30 days after entrance on duty (unless the
employee has left another positipn for which filing was re-
quired within the previous 30 days). by May 15 of each year
and within 30 days after employment; has ceased (unless within
30 days the employee assumes another position in the Executive
Branch for which filing is required). If such a special
government employee is not initially expected to work more
than 60 days but actually does so, the report is due within
15 days after the 61st actual day of service. If a special
government employee files an Standard Form 278 within 30 days
after entrance on duty, then an EPA Form 3120-1 is not required
to be filed.
(6) The Hatch Act prohibitions on taking an active part in
political management or political campaigns apply only
on the days when a special government employee is actually
working. The prohibition applies to the entire day even if
the special government employee works a partial day.
Examples
1. A special EPA employee is a member of a university faculty. The
university asks the employee to negotiate a contract with the
Department of the Interior on behalf of the university.
The employee may do so, assuming he did not at any time deal with
the particular contract matter on behalf of the government.
2. Same situation, except that the special employee is asked to
negotiate a contract with EPA. At the time of the negotiations,
the special employee will have actually worked for EPA for a
total of 55 days in the previous 365 days.
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The employee may do so, assuming he has not participated in
the same particular matter on behalf of EPA. However, if he had
worked for EPA for more than 60 days in the previous 365 days, he
may no longer communicate with EPA with intent to influence in such
a matter. Moreover, 40 C.F.R. §3.602 forbids a special employee to
use "inside information," that is, information obtained as a result
of government employment which has not been made available to the
the public or which would not be made available on request, for
personal gain or to assist any outside party.
In addition, there is a problem of appearances whenever a
special government employee negotiates with the office in which he
or she is employed or if the negotiations are related to the subject
matter of his or her consultancy. Such contacts should be avoided,
If a situation arises where it seems necessary for a special government
employee to negotiate with the office in which he or she is working,
Deputy Counselors should consult with the Designated Agency Ethics
Official.
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