1-4.010
Introduction
|
Under Executive Order 11222, each agency of the federal government is
responsible for issuing regulations on the standards of conduct, including
ethical conduct, for its employees. It is required that these standards be
brought to the attention of each employee annually. The Department follows
the government-wide standards of conduct promulgated by the Office of
Government Ethics (OGE) at 5 C.F.R. Chapter XVI, especially Parts 2634,
2635, 2636, and 2637; and Department of Justice Order 1200.1. In addition,
there are supplemental regulations for the Department of Justice which
address, among other things, outside employment. See 5 C.F.R.
§ 3801.101-106. Every current employee should be reminded
annually of the existence of the standards of conduct contained in 5 C.F.R.
Chapter XVI and DOJ Order 1735.1A, and where to review a copy. All employees
should review these standards carefully and bring any problems to the
attention of their supervisors. Also, all employees are subject to the
provisions of 18 U.S.C. § 201 et seq., making criminal certain
activities by employees or former employees.
Any questions concerning the applicability of 5 C.F.R. § 2634 et
seq., DOJ Order 1735.1A, the statutes upon which these regulations are based
(see discussion below), or any other applicable professional standards
should be addressed to the Ethics Advisors in the Districts. For example, an
employee should contact his/her Ethics Advisor when he/she: (1) is offered a
gift in connection with his/her job, including, in certain cases, from
another employee, and especially when the offer involves an award, the
payment of money, travel and/or lodging expenses, or free attendance at any
event; (2) is assigned a matter where his/her official actions may affect
his/her financial interest or the interest of any person with whom he/she is
seeking or negotiating for future employment; (3) is asked to participate in
a matter that might cause a reasonable person to question his/her
impartiality; (4) might realize private gain through the use of his/her
official position, non-public information, government property, and/or
official time; or (5) pursues outside employment or other outside activity
that may conflict with his/her official duties.
The Deputy Designated Agency Ethics Official (DDAEO) for the offices of
the United States Attorneys and the Executive Office for United States
Attorneys (EOUSA) is the Legal Counsel, EOUSA. Unless otherwise indicated in
this chapter, "employee" means an employee of EOUSA or a United States
Attorney's Office. The DDAEO is authorized to review requests to engage in
outside activities employment or other matters which might appear
inappropriate or improper under the various applicable standards of conduct.
In many cases, employees should, and in some cases, must (see, e.g.,
USAM 1-4.320), seek approval from the DDAEO
before engaging in certain outside activities. Although the role of the
DDAEO is to determine whether the activity violates any of the various
standards of conduct mentioned in this chapter, the DDAEO will also
consider, based on the representations of the requestor, whether engaging in
the activity would cause a reasonable person with knowledge of the relevant
facts to question the employees impartiality. Approvals are based solely on
the information provided by the employee, and may be invalid if the employee
provided incorrect or incomplete information.
Disciplinary action for violating a provision of 5 C.F.R. Part 2635 or
any agency supplemental regulations will not be taken against an employee
who has engaged in conduct in good faith reliance upon the advice of an
agency ethics official, provided that the employee made full disclosure of
all relevant circumstances. Reliance on any other individual, such as a
private attorney, will not shield an employee from discipline. Further, when
the employee's conduct violates a criminal statute, reliance on the advice
of the DDAEO cannot ensure that the employee will not be prosecuted. Such
reliance is, however, a factor considered by the Department in selection of
such cases for prosecution.
[Updated May 2003]
[cited in USAM 1-3.000;
1-4.320]
1-4.100
Allegations of Misconduct by Department of Justice Employees—
Reporting Misconduct Allegations
|
Department employees shall report to their United States Attorney or
Assistant Attorney General, or other appropriate supervisor, any evidence or
non-frivolous allegation of misconduct that may be in violation of any law,
rule, regulation, order, or applicable professional standard.
(With respect to reporting allegations of misconduct by non-DOJ attorneys or
judges, see USAM 1-4.150.) The supervisor
shall evaluate whether the misconduct at issue is serious, and if so shall
report the evidence or non-frivolous allegation to the Office of the
Inspector General (OIG) or to the Office of Professional Responsibility
(OPR), and to EOUSA, as set forth below.
If the supervisor was involved in the alleged violation, the supervisor
must bring the evidence or allegation to the attention of a higher-ranking
official. An employee who wishes to report directly to OPR or OIG may do
so.
When an employee or a supervisor is uncertain as to whether a certain
allegation should be referred, the supervisor may telephone OPR or OIG to
determine what action to take.
Reporting an allegation raises no inference that the allegation is
well-founded.
All employees have a duty to cooperate with internal investigations
conducted by OPR, OIG or another internal agency official.
- Office of the Inspector General. Evidence and non-frivolous
allegations of waste, fraud, abuse or other misconduct by all Department
employees, including contract employees, shall be reported to OIG except for
those allegations in B below. Allegations of misconduct may be reported to
the nearest OIG field office or may be reported by mail to:
Office of the Inspector General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Room 4706
Washington, DC 20530
e-mail: oig.hotline@usdoj.gov
hotline: (contact information in English and Spanish): (800)
869-4499 or hotline facsimile: (202) 616-9898
- Office of Professional Responsibility of the Department of Justice.
Evidence and non-frivolous allegations of serious misconduct by Department
attorneys that relate to the exercise of their authority to investigate,
litigate, or provide legal advice shall be reported to OPR. In addition,
allegations of misconduct by a Department law enforcement officer that are
related to an allegation of misconduct by a Department attorney that relates
to the exercise of the attorney's authority to investigate, litigate, or
provide legal advice shall be reported to OPR. Allegations of misconduct
may be reported by mail to:
Office of Professional Responsibility
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Room 3525
Washington, DC 20530
e-mail: opr.info@usdoj.gov
hotline: (202) 514-3365 or facsimile: (202) 514-5050
- Executive Office for United States Attorneys. Any evidence or
non-frivolous allegation involving an employee of a United States Attorney's
office or EOUSA shall also be reported to the General Counsel, EOUSA, by
calling 202-514-4024.
- [updated July 2008]
1-4.120
Reporting Allegations in the Course of Judicial Proceedings
- Judicial Statements Concerning Misconduct.
Department
attorneys shall report to their supervisors any statement by a judge or
magistrate indicating a belief that misconduct by a Department employee has
occurred, or taking under submission a claim of misconduct. Supervisors
shall report to DOJ OPR immediately any evidence or non-frivolous allegation
of serious misconduct.
- Judicial Findings of Misconduct and Requests for Review.
Whenever
a judge or magistrate makes a finding of misconduct by a Department employee
or requests an inquiry by the Department into possible misconduct, the
finding or request shall be reported immediately to the employee's
supervisor and to DOJ OPR, regardless whether the matter is regarded as
serious or non-serious.
| 1-4.130
Litigation Concerning Misconduct Allegations
- Supervisory Review of Court Filings.
Before any
pleading or other document concerning any non-frivolous allegation of
serious misconduct is filed, whether in the district court or on appeal, it
must be reviewed by a supervisor who is not implicated by the allegation.
- Recusal Upon Finding of Misconduct.
A Department attorney who is
found to have engaged in misconduct shall not represent the United States in
litigation concerning the misconduct finding, unless approval is obtained
from the responsible United States Attorney or Assistant Attorney
General.
- Consultation with DOJ OPR.
The supervisor may consult with DOJ
OPR before filing any pleading relating to a misconduct allegation, and must
apprise DOJ OPR of any significant developments after a matter has been
reported to DOJ OPR pursuant to this section.
- [cited in USAM 1-3.000]
1-4.140
Office of Professional Responsibility Procedures
- Preliminary Review.
Upon receiving an allegation
within its jurisdiction, DOJ OPR shall conduct an immediate preliminary
review. DOJ OPR shall open an investigation only if it concludes that
further investigation is warranted.
- Review of Judicial Findings.
If a judge makes a finding of
misconduct by a Department employee or requests an inquiry by the Department
into possible misconduct, DOJ OPR shall conduct an expedited inquiry without
awaiting further judicial or appellate proceedings.
- Notification at Conclusion of Investigation.
Upon the completion
of an investigation, DOJ OPR shall promptly notify the subject of the
allegation, the employee's supervisor, and the complainant of the
results.
- Bad Faith Complaints.
If DOJ OPR determines that an allegation
made by an attorney was made in bad faith, as a result of gross negligence,
or in reckless disregard for the truth, it shall report the complainant's
misconduct to the appropriate entity established by the local authorities to
handle attorney misconduct.
- Former Employees.
DOJ OPR shall obtain the approval of the Deputy
Attorney General Before declining to investigate or terminate an
investigation on the ground that an employee has left the Department. The
decision whether to conduct an investigation under such circumstances will
be made on a case-by-case basis.
- Public Disclosure of OPR Findings.
DOJ OPR will determine whether
to publish a summary of one of its reports in accordance with a memorandum
to OPR from the Deputy Attorney General dated December 13, 1993. For a copy,
please contact the Legal Counsel staff at 202-514-4024.
- [cited in USAM 1-3.000]
1-4.150
Reporting Allegations of Misconduct Concerning Non-Department of
Justice Attorneys or Judges
- Allegations of misconduct by non-DOJ attorneys or judges shall be
reported to OPR for a determination of whether to report the allegation to
appropriate disciplinary officials.
-
[added July 2008]
[cited in USAM 1-3.000;
USAM 1-4.100]
1-4.200
Public Finance Disclosure Reports
- The Ethics in Government Act of 1978, as amended (the "Act"), requires
the filing of a Public Financial Disclosure Report (SF-278) by employees in
statutorily-specified positions. In general, these positions require the
exercise of significant policy-making and command discretion. In each agency
the following employees, including Special Government employees, serve in
"covered" positions:
- Employees in senior positions under a pay system other than the General
Schedule must file when their positions' rate of basic pay is equivalent to
or greater than 120% of the minimum rate of basic pay for GS-15. See
5 C.F.R § 2634.202(c). Currently, the minimum rate of basic pay
for GS-15 is $83,160. Assistant United States Attorneys who are in paid
supervisory positions or serving as a Senior Litigation Counsel and Special
Government Employees are required to file.
- Employees who serve in positions classified above GS-15 under the
General Schedule. Senior Executive Service Employees are required to
file.
- Uniformed officers paid at or above pay grade 0-7.
- Schedule C and other civilian employees, regardless of pay grade, whose
positions are excepted from the competitive service because of their
confidential or policy-making character.
- Each agency's primary Designated Agency Ethics Official, regardless of
pay grade. Other ethics officials need file only if they are in another
specified category.
- Presidential nominees requiring Senate confirmation. All United States
Attorneys are required to file.
- All administrative law judges.
- A covered employee must file a "new entrant report" within 30 days after
assuming a covered position. Reports must be filed each May 15th for the
preceding calendar year, and within 30 days after leaving his or her covered
position for the period between the last annual report and the date
employment is terminated. 5 C.F.R §§ 2634.201 and 202.
Reports are not required from employees who serve less than 60 days. 5
C.F.R. § 2634.204. Anyone who files a Public Financial Disclosure
Report more than 30 days after its due date, including any extensions which
have been granted, shall pay a late filing fee of $200. 5 C.F.R.
§ 2634.704.
- The Attorney General may bring a civil action against any person who
does not file, files a false report, or fails to report required
information. Employees who file a false report may also be prosecuted. 5
C.F.R. § 2634.701.
- This report may be disclosed upon request to any requesting person
pursuant to 5 C.F.R. § 2634.603.
1-4.220
Confidential Financial Disclosure Reports
- The Ethics in Government Act of 1978, as amended, requires the filing of
a Confidential Financial Disclosure Report (OGE Form 450) by all special
government employees, serving with or without compensation, including those
who serve on federal advisory committees, who are not serving as a
representative of an industry or another entity or who are not already
Federal employees and who are not already required to file a public
financial disclosure report. The Act also requires the filing of
confidential financial disclosure reports by employees who occupy a position
classified at GS-15 or below of the General Schedule, or whose basic rate of
pay is less than 120% of the minimum rate of basic pay for GS-15 of the
General Schedule, or employees in any other position determined by the
designated agency ethics official to be of equal classification; if:
- Their duties and responsibilities require them to participate personally
and substantially through decision or the exercise of significant judgement
in taking a government action regarding:
- contracting or procurement;
- administering or monitoring a grant;
- regulating or auditing any non-federal entity;
- other activities in
which the final decision or action will have a direct and substantial
economic effect on the interests of any non-federal entity; or
- The duties and responsibilities of the employee's position require the
employee to file such a report to avoid involvement in a real or apparent
conflict of interest, and to carry out the purposes behind any statute,
Executive Order, rule, or regulation applicable to or administered by that
employee.
- Within EOUSA and the United States Attorneys' offices the following
employees are required to file:
- Assistant United States Attorneys (line AUSAs) (currently, instead of
filing an OGE Form 450, AUSAs are using an alternative method approved by
the Office of Government Ethics. The chosen alternative method is the use of
a "Conflict of Interest Certification" which requires all affected
Assistants to certify that no conflict of interest exists in each matter
they undertake);
- Special government employees (which includes special
AUSAs);
- All Administrative Officers and employees with procurement/and
or contracting authority, and
- Employees involved in reviewing grant
applications. (Example: "Weed and Seed" grant matters).
- Those employees who currently file the public financial disclosure
report will not be required to file the confidential report. See 5
C.F.R. § 2634.904.
- An employee may be excluded from filing if the duties of the position
make remote the possibility of a conflict, if the duties involve such a low
level of responsibility because there is a substantial degree of supervision
and review; or the effect of any conflict on the integrity of the government
would be insubstantial, or an alternative procedure is used. See 5
C.F.R. § 2634.905(c). An employee must file a new entrant report within
30 days after assuming a covered position and annually by October 31st.
Employees who are expected to work 60 days or less need not file. Employees
are not required to file a termination report upon leaving their covered
positions. 5 C.F.R. § 2634.903.
- The Attorney General may bring a civil action against any person who
does not file, files a false report, or fails to report required
information. Employees who file a false report may also be prosecuted. 5
C.F.R. § 2634.701.
- The primary use of the information on this form is to determine
compliance with applicable Federal conflict of interest laws and
regulations.
- Effective June 10, 1994, United States Attorneys were redelegated the
authority to act as Deputy Designated Agency Ethics Officials for the review
and certification of Confidential Financial Disclosure Reports filed by
reporting individuals within their districts. If they have any questions
with respect to this authority, they should contact the Legal Counsel,
EOUSA.
1-4.300
DOJ Employee Participation in Outside Activities—Termination
Agreements/Contingency Fees
- Upon entering on duty, Department attorneys must, in general, withdraw
from all cases they are currently handling. Interests in pending matters,
such as contingency fees, should be addressed as part of the termination of
their private practice. Experience indicates that "cashing out" the
sometimes speculative nature of these interests has created problems for
incoming employees. In negotiating a termination agreement with a former
firm or business associates, an employee should be aware that federal
criminal law prohibits Federal employees from participating in any matter,
in their official capacity, in which they have a financial interest. 18
U.S.C. § 208, 5 C.F.R. § 2635.401. Federal law also prohibits
Federal employees, other than in the proper discharge of their official
duties, from representing anyone before a Federal agency or court in
connection with a matter in which the United States is a party or has an
interest. 18 U.S.C. § 205. In addition, please be mindful of 18
U.S.C. § 209 which prohibits an employee from receiving a salary
from any source other than the United States as compensation for his/her
services.
- In light of the above statutes, the Department has never permitted
incoming employees to retain any interest in matters pending before Federal
departments (or agencies) or in which the United States is a party or has an
interest. If the litigation does not involve the United States and the
immediate "cashing out" will create an undue financial burden on an employee
or the law firm, the Department has, on limited occasions, permitted the
retention of a contingent interest. If, after exhausting all possible
avenues for "cashing out" an interest, an employee is unable to do so,
he/she should contact the EOUSA Legal Counsel's office regarding the
disclosure of contingency fees. The number of interests which an employee
may retain must be kept to an absolute minimum and the financial interest
must be reduced to a sum certain or a fixed percentage. It should be noted
that while these matters are pending, an employee must be disqualified from
handling any mater involving the attorney and the law firm(s) handling the
referred matter.
1-4.320
Outside Activities Generally
- Employees may not engage in outside activities, including employment,
that conflict with their official duties. An activity conflicts with an
employee's official duties if it would require him to disqualify himself
from matters so critical that his ability to perform his official duties
would be impaired. 5 C.F.R. § 2635.802. Employees are cautioned
that even if an outside activity or employment is not prohibited under this
regulation or by statute, it may violate other principles or standards set
forth in 5 C.F.R. § 2635 et seq, or laws concerning other issues,
such as those restricting certain political activities. See USAM 1-4.400.
- Use of Title.
With rare exceptions, employees engage in outside
activities in their private rather than official capacities. Therefore, when
engaging in outside activities in their private capacity, employees may not
indicate or represent in any way that they are acting on behalf of the
Department, or that they are acting in their official capacity. Thus, an
employee may not use office letterhead, agency or office business cards, or
other material or equipment that would disclose the employee's official
title or position if they engage in an outside activity in their private
capacity. The incidental identification of an employee's position or office
is not prohibited, but if this information is incidentally released it
becomes the responsibility of the employee to advise all individuals
concerned that he or she is acting in his or her individual capacity and not
as a representative of the Department. See 5 C.F.R. §
2635.807(b).
- Use of Official Time or Excused Absence.
With limited exceptions
with respect to pro bono, community service, bar activities and
uncompensated law-related teaching (see USAM
1-4.350), employees engaging in outside
activities do so on their own time. See the DOJ
Organization and Functions Manual at 30.
- Use of Office Resources.
As a general rule, employees may use
government property only for official business or as authorized by the
government. 5 C.F.R. §§ 2635.101(b)(9), 2635.704(a). However,
employees are allowed to use equipment, for non-official purposes, which
involves only negligible expense, such as electricity, ink, small amounts of
paper, and ordinary wear and tear. In addition, they are allowed limited use
of telephones and faxes for local calls, or if they are charged to
non-government accounts. Employees may also make limited use of their
computers to access the internet for non-official purposes. Finally, use of
library equipment at negligible expense is also permitted. 5 C.F.R.
§ 3801.105. This policy does not authorize the use of commercial
electronic databases when there is an extra cost to the government. It also
does not override statutes, rules or regulations governing the use of
specific types of government property, such as electronic mail, and 41
C.F.R. (FPMR) § 201-21.601 (governing the ordinary use of long-distance
telephone services.)
- Clerical Support.
Under no circumstances may employees require
others, including support staff, to provide assistance with respect to
outside activities. Care should be taken in requesting their assistance on
their own time even for compensation, since subordinates may believe that
they really have no choice but to say yes. It is especially coercive to ask
them to volunteer their outside time without compensation, but if support
staff on their own volunteer to support a pro bono or other voluntary
service outside activity, their offer may be accepted.
- Approval Requirements.
Employees must obtain prior written
approval from the EOUSA Legal Counsel for outside employment which involves:
(1) the outside practice of law; or (2) a subject matter, policy, or program
that is in his or her component's area of responsibility. The EOUSA Legal
Counsel can approve requests to engage in the outside practice of law only
when it is uncompensated and in the nature of community service, or when the
employee will be representing himself, his parents, his children or his
spouse. If an employee desires to practice law for compensation, he must
obtain approval from the Deputy Attorney General through the EOUSA. United
States Attorneys and their Assistants should freely consult with EOUSA on
these matters. See the DOJ Organization
and Functions Manual at 29.
- Conflicts of Interest.
Employees may not engage in outside
activities that create or appear to create a conflict of interest with their
official duties. Such a conflict exists when the outside activity would: (1)
require the recusal of the employee from significant aspects of his or her
official duties (5 C.F.R. § 2635.802(b)); (2) create an appearance that the
employee's official duties were performed in a biased or less than impartial
manner (5 C.F.R. § 2635.502); or (3) create an appearance of official
sanction or endorsement (5 C.F.R. § 2635.702(b)).
- With limited exceptions, outside activities may not include the
representation of third parties before the federal government. 18 U.S.C.
§ 205.
- All employees are prohibited by statute from providing legal
assistance—with or without compensation—in any case in which the
United States is a party or has a direct and substantial interest. 18 U.S.C.
§§ 203, 205.
- All employees are prohibited from providing any outside professional
services in criminal or habeas corpus matters in any court, whether with or
without compensation.
- [Updated February 1998]
[cited in USAM 1-3.000;
1-4.010]
1-4.330
Teaching, Speaking, and Writing
- Employees who wish to undertake teaching or speaking engagements
or who wish to write for publication are directed to consult 5 C.F.R. §
2635.807 which details the circumstances upon which compensation may be
received and the extent to which an employee's title may be used. They
should also consult with their United States Attorney. Employees should be
cautious to avoid any conflict of interest with their position and to ensure
that no interference with the performance of their official duties occurs.
In some instances they may need to use a disclaimer. Assistant United States
Attorneys must generally take annual leave or leave without pay for any time
required for engaging in these activities during normal business hours. At
the discretion of the United States Attorney, Assistants may receive
administrative leave for uncompensated law-related teaching. See the
DOJ Organization and Functions Manual at 30.
It is highly advisable for employees to discuss these issues with the Ethics
Advisor in their District before undertaking a teaching or lecturing
assignment.
- [Updated February 1998]
[cited in USAM 1-3.000]
1-4.340
Civic Organizations, Professional Boards and Committees, and State
Grievance Committees
- While certain activities can be easily undertaken without creating
problems, service on national and local bar committees, state and municipal
commissions, corporate boards of directors, arbitration panels, state
grievance committees, and similar organizations, with or without
remuneration, could have the potential for creating a conflict of interest
or an appearance of a conflict of interest. Employees should contact the
EOUSA Legal Counsel's office whenever questions arise and should seek prior
approval before serving in a leadership position in a bar association.
Membership in certain boards of directors has been exempted from the prior
approval requirement. See the DOJ
Organization and Functions Manual at 29. United States Attorneys'
involvement in crime prevention efforts is addressed in the DOJ publication
entitled "Legal and Ethical Issues Surrounding United States Attorneys'
Involvement in Crime Prevention Efforts" issued October 1994, which can be
obtained from the EOUSA Office of Legal Counsel.
- [Updated February 1998]
1-4.350
Pro Bono Work
- Executive Order 12988, Section 2, provides that "All Federal agencies
should develop appropriate programs to encourage and facilitate pro bono
legal and other volunteer service by government employees to be performed on
their own time, including attorneys, as permitted by statute, regulation or
other rule or guideline." On March 8, 1996, the Attorney General signed the
Department of Justice Policy Statement on Pro Bono Legal and Volunteer
Services. This statement summarized existing Department of Justice policies
and rules on issues such as leave, conflict of interest, and use of
property. It also encourages all employees to set a voluntary personal goal
of at least 50 hours per year of pro bono legal and non-legal volunteer
service. The Department does not restrict the type of pro bono activities in
which employees engage, provided that such activities do not violate any
statutory or regulatory restrictions, and provided also that they genuinely
are in the public interest. Such activities include, but are not limited to,
the provision of legal service to:
- Persons of limited means or other disadvantaged persons;
- Charitable,
religious, civic, community, governmental, health and educational
organizations in matters which are designed primarily to address the needs
of persons of limited means or other disadvantaged persons, or to further
their organization purpose;
- Individuals, groups or organizations seeking
to secure or protect civil rights, civil liberties or public rights; or
- Activities for improving the law, the legal system, or the legal
profession.
- Similarly, with respect to other volunteer activities besides pro bono
legal work, the Department does not seek to restrict the type of activity as
long as it does not violate statutory or regulatory restrictions. All such
activities, like any other outside activities, are subject to limitations,
including compliance with all conflict of interest statutes and regulations,
and compliance with all local unauthorized practice of law statutes and fee
requirements. See USAM
1-4.320(F).
- The approval requirements for pro bono and volunteer service are the
same as for any other outside activities. See USAM 1-4.010 and 1-4.320(E). Since pro bono work by definition is
the uncompensated outside practice of law, approval must be sought, but the
DDAEO has the authority to approve such requests, as opposed to the outside
practice of law for compensation, which only the Deputy Attorney General can
approve. In some circumstances it may be possible for the uncompensated
outside practice of law to be pre-approved. This could occur in connection
with certain legal services or bar association programs. If a district is
interested in participating in such a program, it should contact the Legal
Counsel, EOUSA, to have the program reviewed. If appropriate, participation
in the program will be approved by the Director, EOUSA.
- With respect to volunteer or community services other than pro bono
legal work, approval may have to be obtained from the DDAEO, depending on
the nature of the service, and in any case it is advisable for the employee
to seek approval. See USAM 1-4.320.
Some types of volunteer work have been pre-approved. See Memorandum of March
15, 1996, from Director, EOUSA, to all employees.
- Department employees are encouraged to participate in pro bono and
volunteer activities outside their regular working hours. Such excused
absences should be limited to those situations in which the employee's
volunteer/community service meets one or more of the following criteria: is
at least indirectly related to the Department's mission; is officially
sponsored or sanctioned by the Attorney General; or will enhance the
professional development or skills of the employee in his or her current
position. The Attorney General encourages employees to participate in the
Department-sponsored mentoring programs and volunteer activities that
further the Department's program priorities. For example, the strong
leadership skills of many Department employees could be put to good use
helping at-risk youth in classrooms, youth clubs, shelters, and midnight
basketball programs. EOUSA's LECC/Victim Witness Staff has a Volunteer
Services Program Coordinator who may be contacted for information about such
programs. Limitations on the use of an employee's title or position and on
the use of office equipment or personnel are the same as for any outside
activity. See USAM 1-4.320A-D.
- For additional information about performing pro bono and
volunteer/community services, see the DOJ
Organization and Functions Manual at 29-30.
- [Updated February 1998]
[cited in USAM 1-3.000;
1-4.320]
1-4.400
Political Activity (the Hatch Act)
- On February 3, 1994, the Hatch Act Reform Amendments of 1993 became
effective. These Amendments made significant changes to 5 U.S.C.
§§ 7321-7326, where the Hatch Act and its amendments are
codified. Generally, the Amendments removed many restrictions on the
participation of government employees in political activities. On September
23, 1994, the United States Office of Personnel Management published its
regulations implementing the Amendments in the Federal Register. They are
codified at 5 C.F.R. §§ 733.101 through 734.702. Detailed
guidance to all Department employees on the relevant restrictions on
political activity under the Hatch Act is provided in two memoranda from the
Attorney General dated August 8, 2000. One memorandum is addressed to
career employees
(http://www.usdoj.gov/jmd/ethics/docs/agpolactcar1.html)
and the other memorandum is addressed to non-career (political) appointees
(http://www.usdoj.gov/jmd/ethics/docs/agpolactpol.html).
Each memorandum is titled "Restrictions on Political Activities."
Members of the Department's career Senior Executive Service, Administrative
Law Judges, employees of the Criminal Division, employees of the National
Security Division, employees of the Federal Bureau of Investigation, and all
Criminal Investigators and Explosives Enforcement Officers in the Bureau of
Alcohol, Tobacco, Firearms, and Explosives are subject to stricter rules
under the pre-1994 law, whereby they are prohibited from participating
actively in political management or political campaigns. As a matter of
policy, the Attorney General has extended the restrictions of the pre-1994
law to all political appointees in the Department.
- On January 30, 1998, 5 C.F.R. § 733.101 et seq. were amended to
contain additional categories of permissible and prohibited political
activities for employees in certain agencies and positions who reside in
certain designated localities. In certain communities, including the
suburbs of Washington D.C., an employee may run as an independent candidate
in a local partisan election and solicit and receive contributions. An
election is partisan if any candidate for an elected public office is
running as a representative of a political party whose presidential
candidate received electoral votes in the last presidential election.
- Questions regarding the Hatch Act may be directed to EOUSA's General
Counsel's Office, the Office of Personnel Management, or the Office of
Special Counsel.
- [updated February 2008]
[cited in USAM 1-3.000;
1-8.051]
1-4.410
Restrictions on all Employees
- Employees in the Department of Justice may not:
- Use their official authority or influence to interfere with or affect
the result of an election (5 U.S.C. § 7323(a)(1).
- Solicit, accept or receive a political contribution (5 U.S.C. §
7323(a)(2), except for a political contribution to a multi-candidate
political committee from a fellow member of a federal labor organization or
certain other employee organizations, as long as the solicited employee is
not a subordinate and the activity does not violate G below.
- Solicit, accept, or receive uncompensated volunteer services from an
individual who is a subordinate (5 C.F.R. § 734.303(d)).
- Allow their official titles to be used in connection with fundraising
activities (5 C.F.R. § 734.303(c)).
- Run for nomination or
election to public office in a partisan election (5 U.S.C.
§ 7323(a)(3)), except that in certain designated communities an
employee may run for office in a local partisan election but only as an
independent candidate and may receive, but not solicit, contributions. 5
C.F.R. § 733.107 lists these communities.
- Solicit or
discourage the political activity of any person who is a participant in any
matter before the Department (5 U.S.C. § 7323(a)(4)).
- Engage in
political activity (to include wearing political buttons), while on duty,
while in a government occupied office or building, while wearing an official
uniform or insignia, or while using a government vehicle (5 U.S.C.
§ 7324(a).
- Make a political contribution to their employer or
employing authority (18 U.S.C. 603).
- [Updated February 1998]
1-4.420
Restrictions on Career SES, Criminal Division, and FBI Employees,
and all Political Appointees
- These employees may not:
- Distribute fliers printed by a candidate's campaign committee, a
political party, or a partisan political group.
- Serve as an officer of a
political party, a member of a national, state, or local committee of a
political party, an officer or member of a committee of a partisan political
group, or be a candidate for any of these positions.
- Organize or
reorganize a political party organization or partisan political group.
- Serve as a delegate, alternate, or proxy to a political party
convention.
- Address a convention, caucus, rally, or similar gathering of
a political party or partisan political group in support of or in opposition
to a candidate for partisan political office or political party office, if
such address is done in concert with such a candidate, political party, or
partisan political group.
- Organize, sell tickets to, promote, or
actively participate in a fund-raising activity of a candidate for partisan
political office or of a political party or partisan political group.
- Canvass for votes in support of or in opposition to a candidate for
partisan political office or a candidate for political party office, if such
canvassing is done in concert with such a candidate, political party, or
partisan political group.
- Endorse or oppose a candidate for partisan
political office or a candidate for political party office in a political
advertisement, broadcast, campaign literature, or similar material if such
endorsement or opposition is done in concert with a candidate, political
party, or partisan political group.
- Initiate or circulate a partisan
nominating petition.
- Act as a recorder, watcher, challenger, or similar
officer at polling places in consultation or coordination with a political
party, partisan political group, or a candidate for partisan political
office.
- Drive voters to polling places in consultation or coordination
with a political party, partisan political group, or a candidate for
partisan political office.
- Run as partisan candidates for local partisan
political office even in those communities listed in 5 C.F.R.
§ 733.107 in which other Department of Justice employees may run
for office. However, they may run as independent candidates in a partisan
political election for a local office in the municipality or political
subdivision, except for those appointed by the President with the advice and
consent of the Senate. See 5 C.F.R. 733.105(b) and (c)(1).
- The restrictions listed above A through L apply only to Career SES,
Criminal Division, FBI Employees, and all Political Appointees, and are
permissible activities for all other employees.
- [Updated February 1998]
1-4.430
Permissible Activities
- All employees may:
- Register and vote in any election.
- Express opinions as individuals
on political subjects and candidates privately and, to the extent consistent
with the restrictions above, publicly.
- Display a political picture,
sticker, badge, or button in situations that are not connected to their
official duties, but employees restricted as outlined in 1-4.420 may not
distribute such material.
- Participate in the nonpartisan activities of a
civic, community, social, labor, or professional organization, or of a
similar organization.
- Be members of a political party or other political
organization and participate in its activities to the extent consistent with
the restrictions set forth above.
- Sign a political petition as
individuals.
- Make a financial contribution to a political party or
organization, except to one's federal employer.
- Take an active part, as
a candidate or in support of a candidate, in a nonpartisan election.
- Be
politically active in connection with a question which is not specifically
identified with a political party, such as a constitutional amendment,
referendum, approval of a municipal ordinance or any other question or issue
of a similar character.
- Serve as an election judge or clerk, or in a
similar position to perform nonpartisan duties as prescribed by state or
local law, subject to the restrictions set forth above about certain
employees not undertaking such activity in concert with political entities.
- Otherwise participate fully in public affairs, except as prohibited by
law, in a manner which does not materially compromise their efficiency or
integrity as employees or the neutrality, efficiency or integrity of their
agency.
1-4.440
Political Referrals
- In addition to restricting or limiting certain political activity, the
Hatch Act also prohibits selecting officials or others involved in the
examining or appointing process for competitive service positions from
receiving or considering a recommendation of an applicant from a Senator or
Representative, except as to the character or residence of the applicant,
unless the recommendation is based on personal knowledge or records of the
sender. In no case are USAOs required to return a letter to the sender even
if it does not meet the requirement stated above. Additional guidance on
this is available from the EOUSA Office of Legal Counsel.
- [Updated February 1998]
1-4.500
Gifts Received From Foreign Governments
- Public Law No. 95-105, codified at 5 U.S.C. § 7342, governs
the receipt and disposition of gifts and decorations tendered by foreign
governments to federal employees, their spouses, or dependents.
- Under 5 U.S.C. § 7342(c)(1)(B), an employee may, in certain
circumstances, accept gifts. Under (B)(i), however, if the gift is tangible
and of more than minimal value, currently defined as $245 (pursuant to
regulation in effect until January 1, 1999), the gift becomes the property
of the United States, and, under (c)(2) must be deposited for disposal or
use by the government. Under (c)(1)(B)(ii), an employee may in certain
circumstances accept an intangible gift of foreign travel or expenses for
foreign travel entirely outside of the United States valued at more than
$225. Under (c)(3), an employee receiving such a gift must file a statement
with the Department, except when acceptance of foreign travel has been
authorized in accordance with specific instructions from the Department of
Justice. Under § 7342(f), the Department of Justice must submit to the
Secretary of State, by January 31 of each year, a list of all such
statements filed by employees during the preceding year.
- Federal Property Management Regulations (FPMR) Par. 101-41 and Justice
Property Management Regulation (JPMR) Part 128-49, prescribe policies and
procedures governing utilization, donation, and disposal of gifts and
decorations from foreign governments.
- In accordance with JPMR Sec. 128-49.201, each United States Attorney's
Office is required each year to submit a list of all gifts and decorations
valued at greater than $50.00 received by employees, their spouses, or
dependents from foreign governments during the preceding year. The list
should be sent to the Executive Office, Attention: Facilities Management and
Support Services Staff.
- A separate statement containing the following information should be
submitted by each employee receiving a gift or decoration:
- For tangible gifts:
- Name and title of recipient;
- Gift, date of acceptance, estimated
value, and current disposition or location;
- Identity of foreign donor
and government; and
- Circumstances justifying acceptance.
- For travel or expenses for travel:
- Name and title of recipient;
- Brief description of travel or travel expenses occurring entirely
outside the United States;
- Identity of foreign donor or governments; and
- Circumstances justifying acceptance.
- Negative responses may be communicated by telephone to the Facilities
Management and Support Services Staff, EOUSA.
1-4.600
Post-Government Employment Restrictions
- The Ethics in Government Act, 18 U.S.C. § 207 and the
regulations promulgated by the Office of Government Ethics and issued at 5
C.F.R. Parts 2637 and 2641, contain several post-employment conflict of
interest restrictions. The Act covers former government employees (including
all officers, employees, and special government employees, both attorney and
non-attorney) which may actually make or reasonably give the appearance of
making unfair use of prior government employment and affiliations. Criminal
penalties and disciplinary action may be imposed for violations. The three
major restrictions covered by § 207 which are applicable to the United
States Attorneys' office are discussed seriatim below. These regulations do
not incorporate or supplant restrictions that may be contained in other laws
or professional codes of conduct. See USAM
1-4.650.
- NOTE: The regulations at § 2637 are still considered to be in
effect even though they refer to provisions of the Ethics in Government Act
prior to its 1991 amendment. Specifically, § 2637.202 refers to
18 U.S.C. § 207(b)(1) when it should now refer to §
207(a)(2), and § 2637.203 should refer to § 207(c)
rather than § 207(b)(ii).
- [Updated February 1998]
1-4.610
Permanent Prohibition Applicable to all Employees
- Under 18 U.S.C. § 207(a)(1), all employees, including special
Government employees, are permanently prohibited from knowingly making, with
the intent to influence, any communication to or appearance before the
United States or the District of Columbia on behalf of someone other than
him- or herself or the United States or the District of Columbia, in
connection with a particular matter in which the United States or the
District of Columbia is a party or has a direct and substantial interest,
and in which the employee participated personally and substantially while a
government employee.
- This paragraph does not prohibit a former government employee from
taking actions on his or her own behalf or from representing the United
States or the District of Columbia when authorized. The matter has to have
involved a specific party or parties at the time of the former employee's
participation. Although the matter must have involved a party, the person on
whose behalf the former employee seeks to make a communication or appearance
does not have to be a party for the communication to be prohibited.
- The prohibition is against making a communication to or appearance
before any officer or employee of any department, agency, court, or
court-martial of the United States or District of Columbia.
1-4.620
Two-Year Restriction for Supervisors
- Under 18 U.S.C. § 207(a)(2), all employees, including special
Government employees, are restricted for two years after leaving the
government from knowingly making, with the intent to influence, any
communication to or appearance before the United States or the District of
Columbia on behalf of someone other than himself or herself or the United
States or the District of Columbia, in connection with a particular matter
in which the United States or the District of Columbia is a party or has a
direct and substantial interest, and which the former employee knows or
reasonably should know was pending under his or her official responsibility
within a period of one year before the termination of his or her
employment.
- Sometimes employees lose responsibility over a matter before they leave
Government employment. In spite of the plain language of the statute
("within 2 years after the termination of his or her service or employment"
and "within a period of 1 year before the termination of his or her service
or employment"), OGE regulations explicitly state that the two years run
from the date of termination of responsibility if this occurs before
separation from the government, and that the prohibition applies to matters
pending under the employee's supervision in the one-year period before
termination of such responsibility over the matter, not in the one-year
period before termination of employment. 5 C.F.R.
§ 2637.202(e).
- This provision applies to supervisors and managers who did not
personally handle a matter, but over which they were responsible. It is
designed not only to prevent post-employment conflicts of interest, but
also, through the one-year "looking back" proviso, to regulate the conduct
of current managers who are contemplating resignation or retirement.
Specifically, it is designed to prevent them from making managerial
decisions that will be to their benefit after they cease being federal
employees. Thus, employees responsible for the supervision of a case are
barred from representing anyone, not just a party, in connection with that
case for two years after their supervisory responsibility ends, because they
might otherwise be tempted to facilitate their post-employment practice by
the decisions they make as a federal manager. It is designed not only to
deal with actual managerial decisions, but also to prohibit even the
appearance that a manager would use his or her federal office for future
private gain by using his or her authority during his or her last year of
service to his or her private advantage.
- This paragraph does not prohibit a former government employee from
taking actions on his or her own behalf or from representing the United
States when authorized. Although the person represented does not have to be
a party, as noted above, the matter has to have involved a specific party or
parties at the time it was pending under the former supervisor's
authority.
- The prohibition is against making a communication to or appearance
before any officer or employee of any department, agency, court, or
court-martial of the United States or District of Columbia.
1-4.630
One-Year "Cooling-Off" Period
- Under 18 U.S.C. § 207(c), a senior employee may not make any
communication to or appearance before his or her former agency on any matter
in which the former employee seeks official action on behalf of any other
person, except the United States, within one year after termination of his
or her service or employment as such officer or employee.
- According to 5 C.F.R. 2641.201(c), the one year runs from the time the
individual ceases to be a senior employee, rather than from termination of
government employment.
- For the purposes of this section, only the United States Attorneys are
considered to be "senior" employees.
- The matter does not have to involve specific parties, and does not have
to have been pending when the individual was the United States Attorney. The
statute prohibits former United States Attorneys from contacting their
former agency even on matters arising after they ceased being the United
States Attorney, if they arise within one year of their departure. It was
designed to prevent the use of personal influence based upon past Government
affiliations. The prohibition applies even when the United States is not a
party and even when it does not have a direct and substantial interest.
- Unlike the other prohibitions, this one is limited to communications to
or appearances before the employee's former agency. The statute, at
§ 207(h), allows OGE to designate components within a department
to be separate agencies, thus allowing senior employees to make
communications to or appearances before other components. At our request,
OGE has issued regulations under which, for United States Attorneys, the
agency consists only of his or her former district, the office of the United
States Marshal for his or her former district, and EOUSA.
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