Lapas attēli
PDF
ePub

of an employee's immediate household shall be reported to the same extent as the financial interest of the reporting employee. An "other member" of the immediate household means a relative who is a full-time resident of the employee's household (§ 0.735-2(i)).

(b) The employment of such persons need not be reported unless such person is engaged in an activity, which if held by the employee, would place him or her in a conflict or apparent conflict-of-interest situation.

§ 0.735-39 Information not known by employee.

If any information required to be included on a statement of employment and financial interests, or supplement thereto, including holdings placed in trusts, is not known to the employee but is known to another person, the employee shall ask such person to furnish the information in his or her behalf.

§ 0.735-40 Effect of employee's statement.

The statements of employment and financial interests and supplementary statements required under this part are in addition to, and not in substitution for, or in derogation of, any similar requirement imposed by law, the Executive order, or regulation. The submission of a statement or supplementary statement by an employee does not permit him or her or any other person to participate in a matter in which his or her or the other person's participation is prohibited by law, the Executive order, or the regulations in this part.

[blocks in formation]

(b) An Agency Head may waive the requirements in paragraph (a) of this section for the submission of a statement of employment and financial interests in the case of a special Government employee who is not a consultant or expert when the Agency Head finds that the duties of the position held by that special Government employee are of a nature and at such a level of responsibility that the submission of the statement by the incumbent is not necessary to protect the integrity of the Government. For the purpose of this paragraph, "consultant" and "expert" have the meanings given those terms by Chapter 304 of the Federal Personnel Manual but do not include:

(1) A physician, dentist, or allied medical specialist whose services are procured to provide care and service to patients; or

(2) A veterinarian whose services are procured to provide care and service to animals.

(c) A statement of employment and financial interests required to be submitted under this section shall be submitted to the Head of the Agency in which the special Government employee is to serve not later than the time of employment. Each special Government employee shall keep his or her statement of employment and financial interests current throughout his or her employment with the Department by the submission of supplementary statements.

$ 0.735-42 Review of statements and determination of conflicting interests.

(a) The Assistant Secretary for Administration is responsible for assuring that all personnel required to file are properly identified, all statements are submitted timely and that Agency Heads identify review officials who possess the knowledge and experience to be able to properly evaluate the listed interest. This pertains to filings under both Executive Order 11222 and the Surface Mining Control and Reclamation Act of 1977. All Agencies shall report to the Assistant Secretary for Administration by May 30 each year the number of statements submitted, the number that have been closed fa

vorably and the number that have not been closed. In the latter instance, the Assistant Secretary for Administration shall be advised the reasons for the cases remaining open and shall be advised on a monthly basis of the status of all open cases.

(b) (1) The Director of Personnel is responsible for the review of, and determination on, those statements submitted directly to him or her pursuant to § 0.735-34(b).

(2) Agency Heads will be responsible for annually identifying employees required to file employment and financial statements, for collecting and initially reviewing the statements, for identifying and designating those employment and financial interests that are not in conflict, and for signing and dating the statements.

(c) Agency Heads are responsible for the review of, and determination on, those statements submitted to an Agency official. Original and supplementary statements shall be reviewed and determiniations made within 2 months of receipt of such statements. Disciplinary action will be taken against those who falsely certify that the employment and financial interests statements have been received and reviewed. This responsibility may be delegated, subject to the following restrictions:

(1) Responsibility for review and determination may be delegated only to a responsible Agency official in the national office, who the Agency Head determines has sufficient experience, judgment, and understanding of the conflict-of-interest problem to properly carry out such responsibilities. The initial processing and receiving of the statements can be delegated to the field facilities where the person is employed. If the statement, when received, shows any holding of any sort, it shall be referred for review to the official identified by the Agency Head as having the responsibility, with a statement indicating whether the holding does, does not, or appears to have some relationship to the duties the employee performs.

(2) Responsibility for final determinations in cases involving substantial conflict questions may be delegated only to Associate, Deputy, and Assist

ant Agency Heads. The Agency Head shall set criteria identifying the types of cases which must be referred to such officials for final determination.

(d) Delegations of review and determination responsibility must be in writing from the Director of Personnel or the Agency Head, as appropriate.

(e) The Director of Personnel shall issue general guidelines covering the review of statements, recognizing possible conflicts or the appearance thereof, obtaining additional information, resolving conflict situations, documentation, and remedial action. Agencies shall supplement these with more specific guidelines applicable to the particular Agency. A copy of both the general and the specific guidelines shall be furnished to each employee to whom review and determination responsibility has been delegated.

(f) Whenever a question of a conflict or appearance of conflict arises, a written determination must be made. The basis of the determination must also be documented in writing. The employee must be advised in writing of the determination, and, if the determination involves a change in duties or disqualification for a particular assignment, a copy of the determination should be furnished to the employee's immediate supervisor. Where affirmative action by the employee is required, a report of his or her compliance shall be obtained and made a part of the record.

(g) If a determination cannot be made at the Agency level, the case shall be referred to the Director of Personnel. If the Director of Personnel cannot make a determination, he or she shall refer the case to the Department Counselor for his or her determination or referral to the Secretary for determination. The record shall include copies of all pertinent documents and a written statement from each referring official setting forth his or her recommendation as to a final determination and the reasons therefor.

(h) Before a final determination requiring any remedial action is made, the employee concerned shall be given an opportunity to explain the conflict or appearance thereof and to offer any suggestions he or she may wish as to

how the matter might be resolved. If an employee feels that the final determination will cause him or her undue hardship, or objects to the decision on other grounds, he or she may request a review and modification by forwarding to the Chief, Security and Employee Relations Staff, a written statement setting forth all the facts and circumstances in support of his or her request and any alternative solution which he or she thinks appropriate.

(i) If the final determination requires positive action on the part of the employee, he or she shall take such action as soon as possible and advise the determining official when he or she has done so. Failure to take a required action within a reasonable time may result in disciplinary action.

(j) Where special circumstances exist, the Director of Personnel may grant, in writing, an exception to the requirements of paragraph (c)(1) of this section to allow delegation of review and determination authority to others than national office officials.

[43 FR 43431, Sept. 26, 1978, as amended at 46 FR 22559, Apr. 20, 1981; 46 FR 47210, Sept. 25, 1981]

$ 0.735-43 Protection of employees' statements.

(a) The statements of employment and financial interests, and supplements thereto, required by or pursuant to the regulations in this part shall be held in confidence and afforded adequate physical security. No information as to the contents thereof shall be disclosed except to the head of the employing agency and such other persons as may be designated custodians or reviewers of such reports unless specific authorization has been obtained from the Department Counselor. An official, custodian, reviewer, or other employee having possession of a statement of employment and financial interests shall not allow access to, or allow information to be disclosed from, the statement except to carry out the purpose of this Subpart C.

(b) Information from a statement of employment and financial interests shall not be disclosed outside of the Department except as the Civil Service Commission or the Secretary of

Agriculture may determine for good cause shown.

(c) Reports shall be separately maintained by the officials designate as custodians for such reports and shall not be made a part of the official personnel folders.

(d) Regardless of the means or manner of transmission, when these reports leave the physical custody of employees or a designated reviewer, they shall be enclosed in a double sealed envelope. The inner envelope shall be marked: "For Official Use Only," "Contains AD-392 (or AD392A)," as appropriate, and “To Be Opened by Addressee Only."

Subpart D-Administrative Enforcement of Restriction on Post-Employment Activities

AUTHORITY: 18 U.S.C. 207(j). SOURCE: 46 FR 47210, Sept. 25, 1981, unless otherwise noted.

§ 0.735-51 Purpose.

The purpose of this subpart is to set forth regulations governing administrative enforcement of the prohibitions on post-employment activities contained in 18 U.S.C. 207.

§ 0.735-52 Notice of violation.

Whenever there is reasonable cause to believe that a former employee has violated the provisions of 18 U.S.C. 207, an investigation and referral of the matter to the Department of Justice for possible prosecution shall be made in accordance with applicable regulations and Department procedures. A copy of such referral shall be provided to the Office of Government Ethics. Thereafter any action to be taken by the Department shall be coordinated with the Department of Justice unless the Department of Justice declines to prosecute.

§ 0.735-53 Initiation of

action.

administrative

Whenever the Director of Personnel has reasonable cause to believe that a former employee of the Department has committed acts which violate 18 U.S.C. 207 (a), (b), or (c) he or she shall initiate administrative action

pursuant to this subpart by notifying such employee (hereinafter respondent), in writing that:

(a) Action is being instituted against him or her pursuant to this subpart as a result of allegations of a violation or violations of 18 U.S.C. 207. The respondent shall be informed of the allegations and the basis for them in sufficient detail to prepare an adequate defense;

(b) He or she may request a hearing in writing within 15 working days by addressing the request to the Director of Personnel of the Department;

(c) In the absence of such a request, the Director of Personnel shall decide the matter on its merits based upon the evidence gathered to date; and

(d) The respondent may elect to supply a written rebuttal to the allegations in lieu of requesting a hearing. Such material shall be incorporated in the record and reviewed by the Director of Personnel prior to reaching a determination on the matter.

$ 0.735-54 Hearing officer.

If the respondent, after receiving notice of action under this subpart, requests a hearing, the Secretary shall appoint a hearing officer for the matter. The hearing officer shall be an individual who has not been involved in any of the events specified in the allegations and who did not participate in the investigation of the allegations, or the decision to institute the proceeding, or the referral of the matter, if any, to the Department of Justice. The hearing officer shall be an individual with suitable experience and training to conduct the hearing, reach a determination and render an initial decision in an equitable

manner.

§ 0.735-55 Department representative.

The Director of Personnel shall appoint a Department representative (hereinafter petitioner) to present evidence and otherwise participate in the hearing.

§ 0.735-56 Time, date and place of hearing.

The hearing shall be held at a time and place specified by the hearing officer. The hearing officer shall give

due regard in setting a hearing date to:

(a) Allowing the respondent adequate time to prepare a defense properly; and

(b) Providing the respondent an expeditious resolution of allegations that may be damaging to his or her reputation.

§ 0.735-57 Representation.

Respondent shall be entitled to appear personally, or to appear through or be accompanied by a representative, at the hearing.

§ 0.735-58 Rights of parties at hearing.

Petitioner and respondent shall be entitled to introduce, examine and cross examine witnesses, submit evidence, and present oral arguments.

$ 0.735-59 Oaths and rules of evidence.

All testimony shall be taken under oath. The hearing officer shall conduct the hearing so as to bring out pertinent facts, including the production of pertinent documents. Rules of evidence shall not be applied strictly, but the hearing officer shall exclude irrelevant or unduly repetitious evidence.

§ 0.735-60 Transcript.

The hearing officer shall cause a transcript to be made of the hearing and a copy of it shall be made available to petitioner and to respondent.

§ 0.735-61 Briefs and discovery.

There shall be no discovery prior to the hearing, nor shall any briefs be submitted, absent specific request of the hearing officer.

$ 0.735-62 Open hearing.

All hearings shall be open to the public unless closed for good cause by the hearing officer. Such a finding shall be made a part of the record by the hearing officer.

$ 0.735-63 Ex-parte communications.

Neither petitioner or respondent, nor any representative thereof, shall make any ex-parte communications to the hearing officer concerning merits of the allegations against respondent

« iepriekšējāTurpināt »