[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Rules and Regulations]
[Pages 5816-5819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2211]
[[Page 5815]]
_______________________________________________________________________
Part VII
Department of Education
_______________________________________________________________________
5 CFR Chapter LIII
34 CFR Part 73
Supplemental Standards of Ethical Conduct for Employees of the
Department of Education; Interim Final Rule
Federal Register / Vol. 60, No. 19 / Monday, January 30, 1995 / Rules
and Regulations
=======================================================================
-----------------------------------------------------------------------
[[Page 5816]]
DEPARTMENT OF EDUCATION
5 CFR Chapter LIII
34 CFR Part 73
RIN 1801-AA09, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Education
AGENCY: Department of Education.
ACTION: Interim final rule with invitation for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Education, with the concurrence of the
Office of Government Ethics (OGE), is issuing a regulation for
employees of the Department of Education that supplements the Standards
of Ethical Conduct for Employees of the Executive Branch issued by OGE.
The supplemental rule requires Department of Education employees to
obtain written approval prior to engaging in certain outside
activities. The Department is also revising its residual standards
regulation in its own CFR title and adding a cross-reference to the new
provisions.
DATES: These regulations take effect January 30, 1995. Comments on this
interim final rule must be received on or before March 16, 1995.
ADDRESSES: All comments concerning these regulations should be
addressed to Susan A. Winchell, Office of the General Counsel, U.S.
Department of Education, 600 Independence Avenue, SW., Room 5304,
Washington, D.C. 20202-2110.
FOR FURTHER INFORMATION CONTACT: Susan A. Winchell, Office of the
General Counsel, U.S. Department of Education, 600 Independence Avenue
SW., Room 5304, Washington D.C. 20202-2110. Telephone (202) 401-8309.
Individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published final regulations entitled
``Standards of Ethical Conduct for Employees of the Executive Branch''
(Standards) codified at 5 CFR part 2635. (See 57 FR 35006-35067, as
corrected at 57 FR 48557 and 52583 with an additional grace period
extension at 59 FR 4779-4780.) The Standards took effect February 3,
1993 and established uniform standards of ethical conduct that are
applicable to all executive branch personnel.
Under 5 CFR 2635.105 executive branch agencies, with OGE's
concurrence, are authorized to publish agency-specific supplemental
regulations that are necessary to implement an agency's ethics program.
The Department of Education, with OGE's concurrence, has determined
that the following supplemental rules, being codified in the new
chapter LIII of 5 CFR, consisting of part 6301, are necessary to
implement its ethics program. This interim final rule will remain in
effect until the Department of Education, with OGE's concurrence,
publishes an amendment.
II. Analysis of the Regulations
Section 6301.101 General
Section 6301.101 explains that the regulations contained in the
interim final rule apply to all employees of the Department of
Education and are supplemental to the executive branch-wide Standards.
Section 6301.102 Prior Approval for Certain Outside Activities
The Standards, at 5 CFR 2635.803, recognize that individual
agencies may find it necessary or desirable to supplement the executive
branch-wide regulations with a requirement that their employees obtain
approval prior to engaging in outside activities. The Department of
Education has long required employees, other than special Government
employees, to obtain written permission before engaging in certain
outside activities or employment. (See 34 CFR 73.22 (1994 edition).)
The Department has found this requirement useful in ensuring that
employees' outside activities conform to all applicable laws and
regulations and, in accordance with 5 CFR 2635.803, has determined that
it is necessary to the administration of its ethics program to continue
to require prior approval of those outside activities that pose a
potential for employees to engage in conduct that might violate the
Standards.
Section 6301.102 requires Department employees to obtain approval
in advance of engaging in certain outside activities. As compared to
the requirement that had been imposed by 34 CFR 73.22, Sec. 6301.102
has been changed to simplify and clarify the requirement, and to narrow
its scope, consistent with the Standards. In order to do this, the new
provisions significantly revise the situations in which employees are
required to seek prior approval to participate in outside employment
and activities. Further, the new provisions spell out specific types of
volunteer activities that are excluded from the prior approval
requirement. Several examples are also included to clarify the
application of this section.
Because the Standards no longer contain a provision such as that
previously applicable under prior 5 CFR 735.203(a)(2)(1993 edition, pt.
735, note), the new provisions delete the previous requirement that
employees obtain approval prior to participating in any activity or
employment that aggregates more than 10 hours per week. Because 5 CFR
2635.705 satisfactorily addresses the issues relating to misuse of
official time, the new provisions also delete the requirement that
employees obtain prior approval to participate in activities performed
during regular work hours. And, because the standard would be too
vague, they also delete the general requirement that employees obtain
prior approval to participate in an activity or employment that
``reasonably raises questions under the standards [of conduct].''
Section 6301.102 of the interim final rule continues, in modified
form, the Department's longstanding requirement that employees obtain
approval before participating in outside activities for a prohibited
source, as that term is defined in paragraph 6301.102(e)(2) of this
section. Further, the new provisions add the requirement that employees
obtain approval before providing services, other than clerical services
or services as a fact witness, in connection with a particular matter
in which the United States is a party or has a direct and substantial
interest, or which involves the preparation of materials for submission
to, or representation before, a Federal court or agency.
Under 5 CFR 2635.805, employees are required to obtain
authorization before acting as expert witnesses, other than on behalf
of the United States, in any proceeding before a Federal court or
agency in a matter in which the United States is a party or has a
direct and substantial interest. Paragraph 6301.102(a)(1) is intended
to cover such testimony as an outside activity, thus eliminating the
need to create a separate procedure for the required authorization.
There may be circumstances in which an employee is not required to
obtain authorization to serve as an expert witness but is nonetheless
required to obtain prior approval. For instance, an employee might wish
to serve as an expert witness on the braking distances of school buses
on behalf of a local school district in a negligence case in State
court. The employee will be paid the customary rate for appearing as an
expert witness. This employee is not [[Page 5817]] required to obtain
authorization to provide expert testimony because the action is not one
in which the United States is a party or has a direct and substantial
interest. However, the employee is required to obtain prior approval
under paragraph 6301.102(a)(2) because he or she is acting as a
consultant for a prohibited source.
The new provisions narrow the general requirement that employees
obtain approval before engaging in any public writing or speaking, and
adopt criteria consistent with the Standards to define when an employee
must obtain advance approval for outside teaching, speaking, or
writing. For instance, under the Department's previous regulation, an
employee was required to obtain approval before publishing an article,
or undertaking public speaking on a subject, such as jazz music or
gardening, that was clearly unrelated to his or her duties. The new
provisions require employees to obtain approval before they participate
in teaching, speaking, or writing only if it ``relates to their
official duties,'' as that phrase is defined in subpart H of the
Standards at 5 CFR part 2635.
The new provisions exclude from the prior approval requirement a
number of uncompensated and volunteer activities that are unlikely to
raise issues under the Standards. Specifically, employees are not
required to obtain approval prior to engaging in activities such as
volunteering for a social, fraternal, civic, or political entity, or
any religious entity that is not a prohibited source. Further,
employees need not obtain approval prior to participating in the
activities of a parent association at their children's school.
Employees are also not required to obtain prior approval to volunteer
with any entity if they are providing direct instructional, social, or
medical services.
Even when prior approval is not required by Sec. 6301.102, the
Standards and other ethics laws and regulations continue to apply to
outside activities and employment. For instance, even if an employee is
not required to obtain approval prior to publishing magazine articles
on subjects unrelated to his or her duties, that employee may still be
subject to the restriction on outside earned income applicable to
certain noncareer employees. (See 5 CFR 2635.804(b) and subpart C of 5
CFR part 2636.) Furthermore, employees are generally prohibited from
using Government resources to participate in outside activities and
outside employment, regardless of whether they are required to obtain
prior approval to participate. See subpart G of 5 CFR part 2635 and 5
CFR 2635.801. Additionally, whether subject to advance approval or not,
an outside activity or outside employment may raise conflict of
interest or impartiality concerns under subparts D and E of 5 CFR part
2635.
III. Repeal and Revision of Department of Education Standards of
Conduct
Because 34 CFR 73.22, the Department's residual standards
regulation, is superseded by new chapter LIII of title 5, as added by
this rulemaking, the Department of Education is herewith amending that
section to repeal the Department's previous requirements for prior
approval to participate in outside activities, and to provide cross-
references to the executive branch-wide Standards at 5 CFR part 2635,
to the Department's new supplemental regulation at 5 CFR part 6301, and
to the executive branch financial disclosure regulation at 5 CFR part
2634. A more recent version of the ``Code of Ethics for Government
Service,'' as enacted by Congress and signed into law by the President
in 1980, is also being adopted in the appendix to amended part 73.
IV. Matters of Regulatory Procedure
Waiver of Proposed Rulemaking
In accordance with section 437 of the General Education Provisions
Act (20 U.S.C. 1232) and the Administrative Procedure Act (5 U.S.C.
553), it is the practice of the Secretary to offer interested parties
the opportunity to comment on proposed regulations. Since these interim
final regulations relate to agency management and personnel, they are
exempt from notice and comment required under 5 U.S.C. 553(a). However,
the Department will consider public comments made within 45 days after
the publication of this interim final rule. Depending on the nature of
the comments, the Department may or may not adopt and publish
amendments to these regulations based on these comments.
Regulatory Flexibility Act Certification
The Department of Education has determined under the Regulatory
Flexibility Act (5 U.S.C. chapter 6) that this regulation will not have
a significant impact on small business entities because it primarily
affects Department employees.
Paperwork Reduction Act
The Department of Education has determined that the Paperwork
Reduction Act (44 U.S.C. chapter 35) does not apply because this
regulation does not contain any information collection requirements
that require the approval of the Office of Management and Budget.
List of Subjects
5 CFR Part 6301
Conflict of interests, Standards of conduct, Education Department,
Government employees.
34 CFR Part 73
Conflict of interests, Standards of conduct, Education Department,
Government employees.
Dated: January 20, 1995.
Richard W. Riley,
Secretary of Education.
Dated: January 23, 1995.
Stephen D. Potts,
Director, Office of Government Ethics.
(Catalog of Federal Domestic Assistance Number does not apply)
The Secretary of Education, with the concurrence of the Office of
Government Ethics, amends title 5 of the Code of Federal Regulations
and title 34, part 73, of the Code of Federal Regulations, as follows:
TITLE 5--[AMENDED]
1. A new chapter LIII, consisting of part 6301, is added to title 5
of the Code of Federal Regulations to read as follows:
5 CFR CHAPTER LIII--DEPARTMENT OF EDUCATION
PART 6301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF EDUCATION
Sec.
6301.101 General.
6301.102 Prior approval for certain outside activities.
Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in
Government Act of 1978); E.O. 12674, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105,
2635.803.
Sec. 6301.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of Education and supplement the
Standards of Ethical Conduct for Employees of the Executive Branch
contained in 5 CFR part 2635.
Sec. 6301.102 Prior approval for certain outside activities.
(a) An employee, other than a special Government employee, must
obtain written approval prior to engaging--with or without
compensation--in the following outside activities:
(1) Except as provided in paragraph (b)(1) of this section,
providing services, [[Page 5818]] other than clerical services or
service as a fact witness, on behalf of any other person in connection
with a particular matter:
(i) In which the United States is a party;
(ii) In which the United States has a direct and substantial
interest; or
(iii) If the provision of services involves the preparation of
materials for submission to, or representation before, a Federal court
or executive branch agency.
(2) Except as provided in paragraph (b)(2) of this section:
(i) Serving as an officer, director, trustee, general partner,
agent, attorney, consultant, contractor, employee, advisory committee
member, or active participant for a prohibited source; or
(ii) Engaging in teaching, speaking, consulting, or writing that
relates to the employee's official duties.
(b) Unless the services are to be provided for compensation,
including reimbursement for transportation, lodging and meals:
(1) Prior approval is not required by paragraph (a)(1) of this
section to provide services as an agent or attorney for, or otherwise
to represent, another Department of Education employee who is the
subject of disciplinary, loyalty, or other personnel administration
proceedings in connection with those proceedings; and
(2) Prior approval is not required by paragraph (a)(2) of this
section:
(i) To participate in the activities of a:
(A) Social, fraternal, civic, or political entity;
(B) Religious entity that is not a prohibited source; or
(C) Parent-Teacher Association or similar parent organization at
the employee's child's school or day care center, other than as a
member of a board of directors or other governing body of the school or
center, or the educational agency of which it is a part; or
(ii) To provide direct instructional, social, or medical services
to students or other individuals.
(c) An employee who is required by paragraph (a) of this section to
obtain prior written approval shall submit a written request for
approval in accordance with Department procedures.
(d) The cognizant reviewing official shall grant approval unless he
or she determines that the outside activity is expected to involve
conduct prohibited by statute or Federal regulations, including 5 CFR
part 2635.
(e) For the purposes of this section:
(1) ``Active participant'' has the meaning set forth in 5 CFR
2635.502(b)(1)(v).
(2) ``Prohibited source'' has the meaning set forth in 5 CFR
2635.203(d).
(3) ``Relates to the employee's official duties'' means that the
activity meets one or more of the tests described in 5 CFR
2635.807(a)(2)(i) (B) through (E). It includes, in relevant part:
(i) Activities an employee has been invited to participate in
because of his or her official position rather than his or her
expertise in the subject matter;
(ii) A situation in which an employee has been asked to participate
in an activity by a person or organization that has interests that may
be substantially affected by the performance or nonperformance of the
employee's official duties;
(iii) Activities that convey information derived from nonpublic
information gained during the course of Government employment; and
(iv) Activities that deal in significant part with any matter to
which the employee is or has been officially assigned in the last year,
any ongoing or announced Department policy, program or operation, or--
in the case of certain noncareer employees--any matter that is
generally related to education or vocational rehabilitation.
Example 1: A Department employee witnessed an automobile
accident involving two privately owned cars on her way to work. Some
time later she is served with a subpoena at home to appear in
Federal court as a fact witness on behalf of the plaintiff, who was
injured in the car accident, in a civil case alleging negligence.
The Department employee is not required to obtain prior approval to
comply with the subpoena because this civil case is not a matter in
which the United States is a party or has a direct and substantial
interest.
Example 2: A Department employee would like to prepare Federal
tax returns for clients on his own time. He is required to obtain
prior approval to participate in this outside activity because it
involves the provision of personal services in the preparation of
materials for submission to the Internal Revenue Service, an
executive branch agency.
Example 3: Arlene, a Department employee, has been asked by a
Department colleague to represent him, without compensation, in an
equal employment opportunity complaint he filed alleging that his
supervisor failed to promote him because he is over 40 years old.
Arlene is not required to obtain prior approval under this
regulation before providing such representation because it involves
services for another Department of Education employee in connection
with a personnel administration proceeding. However, under 18 U.S.C.
section 205, she may only provide such representation if it is not
inconsistent with faithful performance of her duties.
Example 4: A local school board offers a Department employee a
paid position as a referee of high school football games. The
employee must seek prior approval to accept this outside employment
because the local school board is a prohibited source. If, on the
other hand, the employee volunteered to coach soccer, without pay,
in a sports program sponsored by the local school board, no prior
approval is required because she would be engaging in direct
instructional services to students.
Example 5: A Department program specialist in the Office of
Elementary and Secondary Education actively pursues an interest in
painting. The community art league, where he has taken evening art
classes, asks him if he would be interested in teaching an evening
course on painting with acrylics. The employee is not required to
obtain approval prior to accepting this employment. The community
art league is not a prohibited source, and the subject matter of the
course is not related to his duties.
Example 6: A Department employee helps organize local tennis
tournaments. A national tennis magazine calls and asks her to write
a monthly column about recreational tennis in her area. The magazine
offers to pay the employee $500 for each column. The subject matter
is not related to her duties, and the employee is not required to
seek prior approval to write this column. However, the employee is
still subject to all of the Standards of Conduct and other laws that
may apply, including the limitation on outside earned income for
certain noncareer employees, as well as the prohibition on using
Government resources to pursue outside activities and employment.
Example 7: An employee's elderly parent is retired and receiving
Social Security benefits. The employee would like to represent his
parent in an administrative hearing before the Social Security
Administration concerning a dispute over benefits. The employee must
obtain prior approval to undertake the activity of representing his
parent because he is providing services to his parent in a
particular matter in which the United States is a party. Moreover,
the services will involve representation before a Federal agency.
TITLE 34--EDUCATION
2. Part 73 of Title 34 is revised to read as follows:
PART 73--STANDARDS OF CONDUCT
Sec.
73.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
73.2 Conflict of interest waiver.
Appendix to Part 73--Code of Ethics for Government Service
Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 208; and E.O. 12674, 3
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990
Comp., p. 306.
Sec. 73.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
Employees of the Department of Education are subject to the
executive [[Page 5819]] branch-wide Standards of Ethical Conduct at 5
CFR part 2635 and to the Department of Education regulation at 5 CFR
part 6301 which supplements the executive branch-wide standards with a
requirement for employees to obtain prior approval to participate in
certain outside activities. In addition, employees are subject to the
executive branch-wide financial disclosure regulations at 5 CFR part
2634.
Sec. 73.2 Conflict of interest waiver.
If a financial interest arises from ownership by an employee--or
other person or enterprise referred to in 5 CFR 2635.402(b)(2)--of
stock in a widely diversified mutual fund or other regulated investment
company that in turn owns stock in another enterprise, that financial
interest is exempt from the prohibition in 5 CFR 2635.402(a).
Appendix to Part 73--Code of Ethics for Government Service
Any person in Government service should:
Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
Uphold the Constitution, laws, and regulations of the United States
and of all governments therein and never be a party to their evasion.
Give a full day's labor for a full day's pay; giving earnest effort
and best thought to the performance of duties.
Seek to find and employ more efficient and economical ways of
getting tasks accomplished.
Never discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not; and never
accept, for himself or herself or for family members, favors or
benefits under circumstances which might be construed by reasonable
persons as influencing the performance of governmental duties.
Make no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
Engage in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
governmental duties.
Never use any information gained confidentially in the performance
of governmental duties as a means of making private profit.
Expose corruption wherever discovered.
Uphold these principles, ever conscious that public office is a
public trust.
(This Code of Ethics was unanimously passed by the United States
Congress on June 27, 1980, and signed into law as Public Law 96-303
by the President on July 3, 1980.)
[FR Doc. 95-2211 Filed 1-27-95; 8:45 am]
BILLING CODE 4000-01-P
