Waivers

Sample Request for a Waiver Under 18 U.S.C. § 208(b)(1) to Participate in a Specific Case when the Employee Has a Financial Interest in a Party

To:      Component Head or Deciding Official/Designee for Ethics Matters

From:  Deputy Designated Agency Ethics Official

Re:      Request for a Waiver Pursuant to 18 U.S.C. 208(b)(1) for (employee’s name)

Pursuant to 18 U.S.C. § 208(b)(1), I hereby request a waiver from the prohibition in 18 U.S.C. § 208(a) for (employee's name). Under Section 208(a), an employee of the United States is prohibited from participating personally and substantially in a particular matter which will have a direct and predictable effect on his financial interest unless he obtains a waiver under section 208(b). Section 208(b)(1) provides that a waiver may be granted upon a written determination that the financial interest involved is not so substantial as to be deemed likely to affect the integrity of the service that the government may expect from the employee.

(Employee's name) owns _____ shares of stock in (company name) valued at approximately $____. This interest represents approximately ____% of his/her non-real estate assets, including those of (his wife/her husband) (and children) which are attributed to him/her under the statute. (Employee's name) is assigned currently to work on (case name), in which (company name) is a party. The case involves (complex) issues regarding (subject matter) and (employee's name) is one of only a few attorneys in the office with expertise in this area. In addition, because of the case loads assigned to others in the office, it would impose a hardship to assign this matter to another employee. Therefore, it is in the Department's interest for (employee's name) to participate in the case. Moreover, I believe that this financial interest is not so substantial as to affect the integrity of the services which the government may expect from (employee's name).

As a condition of this waiver, (employee's name) understands that this waiver covers only the (company name) shares owned as of this date, and any additional shares that may accrue as a result of dividend reinvestments or a stock split. (Employee's name) is not permitted to acquire any additional (company name) shares, nor may he/she own any additional shares as a result of interests that are imputed to him/her. Accordingly, he/she will advise appropriate persons who oversee funds that are imputed to (employee's name) that (company name) stock may not be purchased as part of any account. Moreover, this request for a waiver is based on the understanding that (employee's name) does not have, and will not have in the future, any additional conflicting financial interest in this matter.

For the above reasons, I recommend that you grant (employee's name) a waiver from the prohibition in 18 U.S.C. § 208(a) for his/her financial interest in (company name). We have consulted with the Departmental Ethics Office, which has no objection to this recommendation. We also have consulted with the Office of Government Ethics.

 

APPROVE                _____________

DISAPPROVE          _____________

_____________________                  ___________
Component Head’s Name                           Date
and Title

Additional Considerations:
This format also may be used to seek a waiver when an employee's financial interests are implicated in a variety of other situations, including when the financial interest is in an entity that is a witness to a proceeding with parties; or the employee is working on a matter that affects nonparties (including the financial interest), or a regulation or initiative that affects the financial interest.


Sample Request for a Waiver under 18 U.S.C. § 208(b)(1) to Participate in Contract Award or Management Decisions

To:      Component Head or Deciding Official/Designee for Ethics Matters

From:  Deputy Designated Agency Ethics Official

Re:      Request for a Waiver Pursuant to 18 U.S.C. 208(b)(1) for (employee’s name)

Pursuant to 18 U.S.C. § 208(b)(1), I hereby request a waiver from the prohibition in 18 U.S.C. § 208(a) for (employee's name). Under Section 208(a), an employee of the United States is prohibited from participating personally and substantially in a particular matter which will have a direct and predictable effect on his financial interest unless he obtains a waiver under section 208(b). Section 208(b)(1) provides that a waiver may be granted upon a written determination that the financial interest involved is not so substantial as to be deemed likely to affect the integrity of the service that the government may expect from the employee.

(Employee's name) owns _____ shares of stock in (company name) valued at approximately $____. This interest represents approximately ____% of his/her non-real estate assets, including those of (his wife/her husband) (and children) which are attributed to him/her under the statute. (Employee's name) is assigned currently to (describe duties; e.g., be a member of the Source Evaluation Board (SEB) to review bid proposals; be the Source Selection Authority; oversee implementation once bidder is selected) for the (contract name). This contract will provide (describe materials/services/value). (Company name) is identified as a primary supplier or subcontractor for (software/specify goods) on (number) of the (total number) bids. (Provide description of role in process; see Notes at end of sample)

Sample discussion if employee participates on Source/Technical Evaluation Board:
Management wants (employee's name) to be a member of the SEB because of her experience and expertise in (subject matter). Although there are other SEB members, (employee's name)'s participation would provide a critical and essential assessment of the bids. No other employee with similar experience is available as a substitute for (employee's name). Despite the office's strong interest in having the benefit of (employee's name)'s assessment, we note that he/she is not the sole decisionmaker in the SEB's evaluation, and the SEB's recommendations are submitted to the Source Selection Authority for a final determination.

Accordingly, it is in the Department's interest for (employee's name) to participate in the case. Moreover, I believe that this financial interest is not so substantial as to affect the integrity of the services which the government may expect from (employee's name).

As a condition of this waiver, (employee's name) understands that this waiver covers only the (company name) shares owned as of this date, and any additional shares that may accrue as a result of dividend reinvestments or a stock split. (Employee's name) is not permitted to acquire any additional (company name) shares, nor may he/she own any additional shares as a result of interests that are imputed to him/her. Accordingly, he/she will advise appropriate persons who oversee funds that are imputed to (employee's name) that (company name) stock may not be purchased as part of any account. Moreover, this request for a waiver is based on the understanding that (employee's name) does not have, and will not have in the future, any additional conflicting financial interest in this matter.

For the above reasons, I recommend that you grant (employee's name) a waiver from the prohibition in 18 U.S.C. § 208(a) for his/her interests in the identified companies. I believe that these interests are not so substantial as to affect the integrity of the services which the government may expect from (employee's name). We have consulted with the Departmental Ethics Office, which has no objection to this recommendation. We also have consulted with the Office of Government Ethics.

 

APPROVE                _____________

DISAPPROVE          _____________

_____________________                  ___________
Component Head’s Name                           Date
and Title

Additional Considerations:
1. A waiver is more likely to be granted to an employee to participate in a matter if the conflicting financial interest is in a subcontractor or primary supplier, and the financial interest does not significantly exceed the de minimis levels for participation. A waiver is less likely to be granted if the financial interest is in the primary bidder or contractor.
2. It is important to describe the employee's duties in contract selection and/or implementation, and his role vis-a-vis others. The discussion should address the significance of the employee's role and how that fits in the decision making process; i.e., at what stage(s) the employee participates in the decision making process; to what degree others participate at that same stage or subsequent review, etc.