Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

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EXHIBIT 1 Part 1

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THE SECrETArY OF" THE INTEF~O~ WASHINGTON

NOTE TO ALL EMPLOYEES Please take the time to carefully read the attached Ethics and Conduct Information Bulletin. it may impact you! The bulletin deals withe new interpretation of Title 18 U.S.C. Section 208, which is much broader than the previous interpretation. Section 208 is a criminal statute and the penalties for violation can be severe~ ! cannot stress enough, the importance of studying the attached material and reviewing your personal financial interests against it. This statute applies to ait employees regardless of grade level or position.

Case 1:99-cv-00550-ECH

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UNITED STATES DEPARTMENT OF THE INTERIOR
OFFICE OF THE SECRETARY

ETHICS AND CONDUCT INFORMATION BULLETIN
BL%LEY~. 87-1 DATE October 19, 1987 DEPARTMENT OF JUSTICE MEMO~DUM ON 18 U.S.C. §208

**t FOR DISTRIBUTION TO ALL EMPLOYEES: e,i The Department of Justice has issued a memorandum that deals with the interpretation of the term "particular matter" as those word~ are used in 18 UoS.C. ~208. This conflict of interest statute applies to all employees including those who are not required to file a financial interest statement. Because of the criminal penalties associated wi~h this statute your personal attention to this most recent interpretation is very important. Title 18 U.S.C= Section 208(s) prohibits each federal employee from acting on a "... proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge~ accusation, arrest or other to:r" in which he or she has a known financiai interest. In the paat~ ~partment policy advice .about the ter~ ~parti~ular mattern was that it encompassed "specific~ matters (i.e.. discrete and identifiable matters) in which private persons or entities have a clear and direct sta~e. It was our view that an employee need not because of section 208 be disqualified from participating in more general matters, such as the promulgation of regulations or resolution of general policy issues. The Department of Justice memorandum requires that we change our pas~ advice. ' The memorandum concludes that the term =particular matter~ in section 208(a) extends to rulemakin8 and general.policy matters, as well as ~spe¢ific" matters. The memorandum states: ~The language and legislative history of section 208~ as well as other provision~ of the conflict of Interest laws. support an interpretation under which the statutory disqualification requirement extends to all discrete matters that are the subject of agency actlon~ no matter how general their effect. Whatever flexibility there is in applylnE section 208(a) in the context of such a discrete matter must he introduced in connection with determininE whether, in light of all the facts, the matter is likely to have a direct and predictable effect on an official's private financial interest." This means that an employee may not wore on general matters (regulations, general policy issues, general legislation matters, etc.) when he or ~he has a known financial interest co~ered hy ~208(a) and the Eeneral matter is ~llkely to have a direct and predictable effect-" on that financial interest. In applying this broader interpretatlon+ any

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dire~t and predictable effect is important to the decision of whether $208(a) applies. Even when an employee's work on regulations will have a detrimental effect on personal financial interests, diequalifi~atlons are still necessary and $208(a) will still apply. It should be remembered that $208(a) applies to the employee's know~ financial interests and to financial interests the employee knovs to be held by: o o His or her spouse or minor children, His or her partner. An organization in which the employee is serving as an officer, director, trustee, partner or employee, or o Any person or organization with whom the employee is negotiating or has any arrangement concerning prospective employment.

Disqualification is necessary if official action on a matter will affect any of these known financial interests. For example, you may be a partner with an individual in a business venture that has nothing to do with the Department of the Into:riot. If your partner deals with the Department of the Interior through other business arran&emerita in which you have no financial interest and you have knowled&e of that fact, you may not work on any matters, including general regulations or policy matters, when those matters are likely to have s direct and predictable effect on your partner's financial interests. Also, for example, you may be an officer, trustee, partner or employee, serving without pay, in s non-profit, tax-exempt organization. If you know that organization has a financial interest in any Department of the Interior issues, you may not work on tho~e issues, including any general regulations or policy matters, when your work is likely to have a dire¢~ and predictable effect on the organization's financial interests. The fact that an organization is willing to expend funds to legally challeng~ or to garner support for the Department of the Interior may be viewed as a financial interest in Department issues. The provisions of 18 U~S.C.§20B(b) provide very limited criteria for granting waivers to the $208(a) prohibitions. Waivers must be requested, in advance of participation in s particular matter. Requests must be in writing and sent to the Designated Agency Ethics Official. It is alan important to know that this broader interpretation of 18 U,S,C, $208 does not change or el~minate the application of the gene:ral conflict of interest requirements in Executive Order 11222~ as amended, While 18 U.S.C. S208 provides criminal penalties for actions in connection with specific known financial interests, Executive Order 11222. ss amended, provides administrative penalties for certain actions, Specifically, all Federal employees are prohibited from:

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(i) (ii)

Using public office for private gain; Giving preferential treatment to any person, except as authorized or required b.y law; Impeding Government efficiency~or economy; Losing independence or impartiality; Makinz a Government decision outside official channels: or AffectinE adversely the confidence of the public in the integrity of the Government.

(iii) (iv) (v) (vi)

Deputy, Associate and Assistant Ethics Counselors throughout the Department are being directed to implement the Justice Department memorandum immediate~ Application of this broader prohibiEion will not be made retroactively. Employees are personally responsible for analyzing their own situations and for determining if any problems exist under th~s law. I urge each of you tO immediately review your financial interests with this new interpretation in mind~ If you think you have a problem or if you need assistance to make a determination, please contact your bureau or office ethics counselor. We will see to it that sufficient resources are devoted to this effort so that your inquiry can be handled in a timely manner. I recognize that some time is necessary for employees and ethics counselors to review and analyze each situation is order to fully implement the Justice Department memorandu~ Employees will be expected to be in full ¢omplfance with this broader interpretation as soon as their individual circumstances permit, but° in all events, no later than December 31, 1987.

DONALD PAUL HODEL SECRETARY

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Hatch Act - 5 U.S.C. 7324

States generally that an employee may not use his or her official authority or influence for the purpose of interfering with or affecting the results of a partisan election; or take an active part in political management or in political campaigns

You May

You May Not

Register and vote, Express your personal opinions on political subjects and candidates, Display a political picture, sticker, badge, or button, Attend a political convention, fund raising function or gathering, Sign a political petition, Make a financial contribution to a political party or organization.

Serve as an officer of a political party, Directly or indirectly solicit, receive, collect, handle or account for funds for a partisan political purpose, Organize, sell tickets to or otherwise promote a fund raising activity of a candidate in a partisan election, Solicit votes in support of or in opposition to a candidate for public office in a partisan election or a candidate for political party office~ Endorse or oppose a candidate for public office in a partisan election, Serve as delegate, alternate or pro.~ at a political convention, Drive voters to the polls,

Examples ~e not aU~inclusive, Refer tO 43 CER 20,135~. ~Membe~ship in ~ Political Action ~o~l.~.~ ~ ..... ~ ~a~' be a problem membership of =he FAC is so small ~ha~ i~ requires ~he members ~o ~ake participation in conducting the work of ~he Committee. The OPM exper~ on political activity is Mr. John Erck on (202) 653-71~3.

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Domestic Giles

Policy - An employee while on or off duty may not solicit or accept, dlrectly or indirectly any gift, gratuity, favor, enter=ainment or loan, regardless of its value, from a person who: Has, or is seeking to obtain, contractual or other business or financial relations wi~h =he Department,

(2)
(3)

Conducts operations or activities ~hat are regul~=ed by the Department;
or

Has in=crests that may be substantially affected by the performance or non-performance of the employee's official duties.

Exceptions: An employee may accept from a person who has the kind of relationships described in the policy: Food, refreshments and other tangible ~ifts of nominal value (535 or less) on infrequent occasions in the ordinary course of an official luncheon or dinner meeting or other official o~ professional function or on an inspection tour where the employee is properly in attendance, (2) (3) Advertising or Dromotial material like pens, pads, calendars etc. Suitable mementos or awards of nominal value for meritorious public con=ribution or achievement. Gifts which are offered for the advancement of the American Indian, =he National Parks, or the U.S. Fish and Wildlife Service.* Gifts from inhabitants or officials of the islands, territories and possessions which fall within the responsibility of the U.S. when refusal to accep~ ~ould cause embarrassment.*

(4)

(5)

A related sta=ucory prohibition in 5 U.S.C. 7351 prohibits employees from: (a) soliciting a contribution from another employee for a gift to an official superior,

(b) making a donation as'a gift to an official superior, or (c) accepting a gift from an employee who is receiving less pay than himself or herself.

This law does not prohibit a voluntary gift or donation made on a special occasion such as a marriage, illness, or retirement, Gifts accepted under items (4) and (5) must be turned over to the Department unelss they consist of food or other perishable items.

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43 CFR -S20.735-8 5 U.S,C. s73a2

Policy - .am employee may not accept a gif~ or decoration from a foreign government or request or encourage the ~ender of such a gift. Foreign Government means any unit of foreign Governmen~ authority, including foreign national, S~a~e, local and municipal government, and any international or multinational organization whose membership is composed of any unit of foreign governmen=; and any agent or representative of such unit or organization while ac=ing in ~hat capacity. This policy applies whether an employee is on du~y or off duty and it applies to an emploee s spouse and dependents the same way it applies to the employee. Exceptions: An employee may accep=: (1) a gift of minimal value (SIS0.00 or less) tendered and received as a souvenior or mark of courtesy.

(2) a gift of more nhan minimal value ~'hen the gift is a? an educational scholarship,

b) medical treatment; or when it appears that ~o refuse the gift would likely cause offense or embarrassmen~ or otherwise adversely affect the foreign relations of the J.S. (3) a gift of transportation expenses when =he travel takes place entirely outside the U.S. Under this provision, both the poin~ O~ origination and the poin= of destination must be outside of the Uni[ed Sta~es~ See Interior Property Management Regula=ions for procedures on disposition of foreign gifts accepted by Interior employees.

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!Free Meals Banned for Bureaucrats
~lilCS. l~m At -

Bureaucrats Cannot Accept Free Meal
By James R. Dickemon
W~Ptat ~ W~

18/a 7

It may be the end o{ western civilization as many in Wa~-hington have known it. First the Redskms went out oa strike. Now t~ U.S. Off~ce of Government Et.~ks [OGE] is interpreting a 1965 executive order to mean that it is illegal [or any employe of the oxen ~tive bnmb--from the president down to typists and cu~ todians~to be taken out to breakfast, iunch, cocktails. dinner or any other one-onone social event by reporters. editors, lobbyists and business executives on an expense account. The ban already applies to the members and staffs of the Federal Communications Commission and the Federal Home Loan Bank, according to yestetday's issue of Communica# tions Daily. a newsMtter on the te~ecommunkations industry, But it soon will apply to eve~oae in the executive br~nch, although not to members of the legislative and judicial branches. "We're going to put out a government-wide advisory that under a long-time execgq'EiIC$. A~ CoL g

~tive order if you're an employe of the executive department and someone wants to take you to lunch or dinner on his expense account solely because of your tx~ition in the government, you shouldn't do it." said Gary Davis, chief counsel of the OGE. "We're o~rating under Executive Order i1222 of 1965. which is aimed at preventing any government employe from benefiting [tom his or her position as weil as the appearance of wrongdoing." The OGE move began about a }'ear ago when the FCC decided it should tighten its guide(ines for commissioners and staff members socializing with media representadves and businesses that were ~iceased by the FCC or otherwise had an into rest in its rulings. The FCC forbade one-on-one exi~aseaccount sociati~ng with "prohibited sources." those who had an interest m the commission's workings, and approved attendance of legRimate group social events only i[ the per capita cost would be $35 or less, according to FCC genera| counsel Diane S. Kitlory. Last Monday. the FCC sought another advisory opinion on the $35 lid because ~we often had lawyers spending all day tracking down who va}uid be at a particular event and what the cost was likely to be and iound ourselves approving $34 per capita events and vetoing $36 ones," Kiltory said. The OGE advised the commission that such a speci~ lid wasn't necessary and that it could approve , attendance of group evems "on a case-by-case basis and it should use i 'noaqavL~h" as the guideline7 Davis said.

The OGE also decided to advise ~Cc and the rest of the execuuve branch that Executive Order 11222 prohibRs all executive departmem employes from letting any Durnab isis, lobby~sts or private business executiveS, not iust "prohibited sources," pick up the tab Mr oneon-one meals or other social evems on their expense accounts. The reaction of expense account restaurateurs was predictable. "Power lunches, power dinners. that's what we're in the restaurant business for." said restauram owner Mel Krupin. "If we can't do business. why should we pay the prow erty taxes and other taxes we have to? One dinner out won't hurt anybody m th~s admmmtrat~o ¯ Randy Zeibert of Duke Zei~tt's agreed: "First ".hey do the tax d~ing [allowin~ only 80 percent deduction of expense account meatsl and what it does ,s stop money from circulating and dow the economY. Tips are less. we don~t buy as much food and it cuts ~he sales tax receigts. With the Redskins on strike we had fewer waiters and busboys than normal working last Sunday. ~nd now this."