February 6, 2006
Laws and Regulations
Most of the ethics restrictions are found in sections 202 to 209 of Title 18 of the U.S. Code and in the standards of conduct at 5 CFR 2635. The Justice Department has supplemented these branch-wide regulations with specific rules that apply to Department employees at 5 CFR 3801. Special government employees are subject to most rules, although sometimes in a less restrictive way. A special government employee is anyone who works, or is expected to work, for the government for 130 days or less in a 365-day period. This document is only a summary and you should refer to the actual laws and regulations cited below when you have a question.
The Designated Agency Ethics Official (DAEO) for the Department is the Assistant Attorney General for Administration, and the Alternate DAEO is the Deputy Assistant Attorney General, Law and Policy, Justice Management Division. The ethics program is managed centrally by the Departmental Ethics Office which coordinates the program through a network of Deputy DAEOs in all components. You may call the ethics office at (202) 514-8196 to obtain advice on the rules or to obtain the name and telephone number of your Deputy DAEO. You will receive approval and waivers referred to in this document from your determining official(1) in concurrence with your Deputy DAEO. You will not be subject to disciplinary action for violating the standards of conduct for actions taken in reliance on the advice of an ethics official as long as you provide the ethics official with all the relevant facts concerning your proposed action.
Conflicts of Interest
The governing statute on financial conflicts of interest is 18 U.S.C. § 208. It prohibits participating in matters that affect your financial interests as well as those of your spouse, minor child, or a general partner; an organization which you serve as an officer, director, trustee, partner or employee; or an organization you are negotiating with for future employment.
Remedies to section 208 include an automatic exemption for an interest in a diversified mutual fund, for an interest in certain employee benefit plans, and for interests in securities that do not exceed $15,000 when participating in a matter having parties and $25,000 ($50,000 for all affected interests) when participating in a matter of general applicability. A determining official may also grant an individual waiver if your interest is not large. If you do not qualify for a waiver, you will have to disqualify yourself from participating in any matter that affects your financial interests. Only rarely would you be required to sell assets, but you may qualify for a tax deferral on gains from an asset you are required to sell to prevent a conflict of interest. 5 CFR 2634.1001-.1004.
If you have a continuing financial interest in your law firm or another employer, or if your spouse is a partner in a firm, you would have to disqualify yourself or seek a waiver before participating in any matter affecting the firm's interests.
Impartiality in Performing Duties
The standards of conduct address matters that do not affect your financial interests but which could reflect on your impartiality. You may not participate, without authorization, in a particular matter involving specific parties which you know is likely to affect the financial interests of a member of your household. You also may have to disqualify yourself from a matter if someone with whom you have a personal or business relationship is a party or represents a party to the matter. This would include clients as well as your spouse's employer. 5 CFR 2635.501-.502.
As a special government employee, you may be required to submit a financial disclosure report within 30 days of assuming your position. If you are paid above the rate paid to a GS-15 and expected to serve for more than 60 days, you are required to submit a report that is made available to the public. If you are paid at or below that level, you must file a report on a confidential basis if your decision making could have an economic effect on a non-federal entity. 5 CFR 2634.
Outside Activities - General Guidance
Generally, you should not engage in outside activities, including employment, that conflict with your official duties. An activity conflicts with your duties if it would require you to disqualify yourself from matters so critical that your ability to perform your duties would be impaired. 5 CFR 2635.802. A Justice Department rule prohibits the outside practice of law unless it is uncompensated and in the nature of community service or on behalf of yourself, your parents, spouse or children. You are also prohibited from engaging in employment that involves a criminal matter or a matter in which the Department is or represents a party. These prohibitions may be waived by the Deputy Attorney General and generally are waived in the case of a special government employee. 5 CFR 3801.106.
Representations Before the Federal Government
You may not represent someone before a court or agency of the federal government or accept compensation for someone else's representation on a matter in which you are participating personally and substantially and in which the U.S. is a party or has an interest. If you serve for more than 60 days in a one-year period, you may not represent someone before the government on a matter that is pending in the Department nor may you share in fees for someone else's representation. This does not prohibit representations on matters pending in court or before a grand jury. 18 U.S.C. §§ 203 & 205.
You may not serve as an expert witness with or without compensation in any proceeding before a court or agency of the U.S. in which the U.S. is a party or has an interest and in which you have participated as a government employee, unless authorized. If you serve or are expected to serve for more than 60 days in a one-year period, this provision extends to any proceeding in which the Justice Department is a party or has a direct and substantial interest. 5 CFR 2635.805.
Teaching, Speaking and Writing
You may accept compensation for teaching a course that is part of the curriculum of a recognized institution of learning even when the subject relates to your official duties.
You are prohibited from accepting compensation, not to include travel expenses, for speaking, writing and teaching, other than at a recognized institution, that relates to your official duties. Something relates to your duties if you are invited to speak or write because of your official position or by someone whose interests you may affect in your government job or if the subject deals with a present assignment of yours. If you do not serve or are not expected to serve for more than 60 days in a one-year period, the restriction applies only to particular matters involving specific parties in which you participate personally and substantially.
There should be no use of your official title to promote the activity except for inclusion in biographical details or with a scholarly article having a disclaimer. 5 CFR 2635.807.
You may not engage in fundraising in your official capacity unless authorized by law or regulation.
You may engage in fundraising in your personal capacity if you do not solicit funds from a subordinate or from someone who has or seeks business with the Department, and you do not use your official title. There are exceptions for solicitations using the media or mass mailings if they are not targeted to your subordinates or persons having business with the Department; and for a speech related to your official duties that is given at a fundraiser, provided the event is appropriate for an official speech and you do not request donations. 5 CFR 2635.808.
Partisan Political Activities
Special government employees are subject to certain rules governing their political activities only when they are on duty. You may not use your official authority or influence to interfere with an election; solicit, accept or receive political contributions; run for election to a partisan political office; or solicit or discourage the political activities of anyone with business before the Department. You are also restricted from engaging in political activities, to include wearing buttons, while on duty or in a government office or a government vehicle. 5 U.S.C. §§ 7321-26.
Purchase of Forfeited Property
You may not purchase or use any property forfeited to the government and offered for sale by the Department without a specific waiver. 5 CFR 3801.104.
Misuse of Position
You are generally prohibited from using your public office for your own private gain or that of friends, relatives, or persons with whom you are affiliated. This includes a non-profit organization in which you hold office or are a member, and persons with whom you have, or seek, employment or business relations.
You may not use your position or title to coerce someone, including a subordinate, to provide benefits to any of the above or to imply that the government sanctions your personal activities or those of another. You are allowed to provide recommendations on request using your official position and Department stationery for someone with whom you work in the government or for someone who is seeking a government job. You may not use your public office to endorse a product or service. 5 CFR 2635.702.
You may not use nonpublic information to further your own or another's interests. Information designated nonpublic ranges from that protected from disclosure by law, to information that has not been authorized to be made available to the public.
5 CFR 2635.703.
Generally, you may not use government property, including official time, for other than authorized purposes. 5 CFR 2635.704 & 705. However, you are allowed to make personal use of equipment such as word processors or library facilities as long as there is no more than a negligible expense to the government. 28 CFR 45.4.
Acceptance of Gifts and Other Things of Value
In general, you may not accept gifts from anyone who has or seeks business with the Department or from an organization composed of such persons. You are also prohibited from accepting a gift given because of your official position. 5 CFR 2635.202
There are exceptions that permit you to accept:
- Gifts of $20 or less per occasion and a total of $50 from one source annually. Gifts based on a personal or outside business relationship. Discounts and similar benefits offered to a broad group. Awards for meritorious public service or honorary degrees, for which you may need approval. Free attendance, food, and materials, from the sponsor of a gathering of an industry or profession, or a conference where you are a speaker if your attendance is seen to further agency programs and is approved.
- Gifts from foreign governments up to $335. 5 U.S.C. § 7342.
Food and refreshments not offered as part of a meal, greeting cards and plaques, favorable rates, commercial discounts, rewards and prizes in contests or events open to the public are excluded from the definition of a gift. 5 CFR 2635.203 & 204.
Acceptance of Expenses for Official Travel
With approval, you may accept travel expenses from:
- A non-federal source for attendance at meetings and other functions, but not to carry out statutory functions. 31 U.S.C. § 1353 & 41 CFR 304.
- Foreign governments if overseas. 5 U.S.C. § 7342.
Note: Frequent flyer benefits earned from official government travel may not be used for personal travel. 41 CFR 301-53.
Gifts to Superiors
Generally, you may not give gifts to an official superior or solicit a contribution from another employee for a gift to a superior, except on special occasions. You may not accept gifts from employees receiving less pay than you, unless you are not in a superior-subordinate relationship. 5 U.S.C. § 7351 & 5 CFR 2635.301-304.
Supplementation of Government Salary
Special government employees are not subject to the statute that prohibits other employees from accepting compensation for services to the government from anyone but the government.
18 U.S.C. § 209.
Seeking Other Employment
Under the standards of conduct, you may be required to disqualify yourself from participating in a matter that affects the financial interests of a prospective employer when you are seeking, but not yet negotiating for employment. Seeking employment generally includes sending a resume. 5 CFR 2635.601-606.
A former employee is prohibited from representing someone else before the government on a particular matter involving specific parties in which he participated personally and substantially while working for the government and in which the U.S. is a party or has a substantial interest. 18 U.S.C. § 207(a)(1).
The Bar Rules prohibit behind-the-scenes work on such a matter, and extend this bar to the entire law firm unless the former government employee is screened from the matter. ABA Model Rule 1.11.
For two years, a former employee is prohibited from representing someone else before the government on a particular matter involving specific parties that he knows was pending under his official responsibility for the last year of government service and in which the U.S. is a party or has a substantial interest. 18 U.S.C. § 207(a)(2).
1. For most employees, the determining official is the head of their component. The Deputy Attorney General is the determining official for component heads reporting to him, for the Associate Attorney General and for employees in the Office of the Attorney General. The Associate Attorney General is the determining official for component heads reporting to him and for the Deputy Attorney General. The determining officials for U.S. Attorneys and for U.S. Trustees and their employees are the Directors of their respective Executive Offices.