United States is a party or has a direct and substantial interest.

(ii) The following exemptions are allowed:

(A) 18 U.S.C. 205 does not prevent Government personnel from giving testimony under oath or making statements required to be made under penalty of perjury or contempt or from representing another person, without compensation, in a disciplinary, loyalty, or other personnel administration proceeding.

(B) 18 U.S.C. 205 also authorizes a limited waiver of its restrictions and those of 18 U.S.C. 203 for the benefit of an officer or employee, including a special Government employee, who represents his or her parents, spouse, or child, or a person or estate he or she serves as a fiduciary. The waiver is available only if approved by the official making appointments to the position. In no event does the waiver extend to the appointee's representation of any such person in matters in which he or she has participated personnally and substantially or which, even in the absence of such participation, are the subject of his or her official responsibility.

(C) 18 U.S.C. 205 gives the head of a department or agency the authority to allow a special Government employee to represent his or her regular employer or other outside organization in the performance of work under a Government grant or contract if the department or agency Head certifies and publishes in the FEDERAL REGISTER that the national interest requires such representation.

(3) 18 U.S.C. 208. (i) 18 U.S.C. 208 (a) requires Executive Branch personnel (other than enlisted personnel) to refrain from personal and substantial participation as Government personnel through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise in any particular matter in which, to their knowledge, they, their spouses, their minor children, their partners, their employers or their prospective employers, or their organizations, have a finacial interest. A "particular matter" may be less concrete than an actual contract, but is something more specific than rule making

or abstract scientific principles. The test is whether the individual might reasonably anticipate that his or her Government action, or the decision in which he or she participates or with respect to which he or she advises, will have a direct and predictable effect on such financial interests.

(ii) 18 U.S.C. 208(b) permits agencies to grant an exemption in writing from subsection (a) if the outside financial interest is deemed in advance not substantial enough to affect the integrity of Government services. Categories of financial interests may also be made nondisqualifying by a general regulation published in the FEDERAL REGISTER. Shares of a widely held, diversified mutual fund or regulated investment company have been exempted as being too remote or inconsequential to affect the integrity of the services of Government personnel.

(4) 18 U.S.C. 209. Title 18, U.S. Code, section 209 (a) prohibits Executive Branch personnel (other than enlisted personnel) from receiving, and anyone from paying them, any salary or supplementation of salary from a private source as compensation for their Government service. Subsection (b) permits participation in a bona fide pension plan or other employee welfare or benefit plan maintained by a former employer. Subsection (c) exempts special Government employees and anyone serving the Government without compensation. Subsection (d) exempts contributions, awards, or other expenses under the Government Employees Training Act. See 5 U.S.C. 4111.

(5) 10 U.S.C. 2397a. Title 10, U.S. Code, section 2397a applies to DoD employees at pay rates of GS-11 or higher and to officers in pay Grades 04 or higher. Such officials must report any contact they have had, or will have, with defense contractors regarding future employment with the defense contractor in any DoD procurement. Such officials also must disqualify themselves from any participation in DoD procurement related to the defense contractor. The penalty for violation is a bar from employment with the defense contractor for ten years after Government service and up to $10,0000 (§ 40.13)

50-119 0-91-2

(b) Post government service statutory restrictions—(1) 10 U.S.C. 2397—(i) Former DoD officers and employees. The first section applies to: retired military officers or former military officers who served on active duty at least 10 years at the grade of 0-4 or higher and former civilian officers or employees who served at a GS-13 pay rate or higher, who, within two years of leaving DoD, are employed by defense contractor awarded at least $10,000,000 in defense contracts, and receive compensation from that defense contractor at an annual rate of $25,000 or more.

(ii) Present DoD officers and employees. The second section applies to: Civilian officers and employees paid as GS-13 or higher, who, within two years prior to beginning with the DoD Component, were employed by a defense contractors awarded at least $10,000,000 in DoD contracts, and received compensation from that defense contractor at an annual rate of $25,000 or more.

(iii) Affirmative duty to file report. These individuals shall file reports giving their name and address, the name and address of the defense contractor, a description of duties with the defense contractor, a description of duties with the DoD Component, and other information required on DD Form 1787. The penalty for failure to file is a fine of up to $10,000 (§ 40.13).

(2) 10 U.S. C. 23976. Title 10, U.S. Code, section 2397b applies to former DoD officers and employees serving at a pay rate equal to or greater than the minimum pay rate for GS-13 or higher and 0-4 or higher who: spent the majority of their working days during the last two years of DoD service performing procurement related functions related to a defense contract at a site or plant that was owned or operated by the contractor and that was the principal location of performance of such duties, or spent the majority of their working days during the last two years of their DoD service performing personally and substantially in a decision-making capacity through contact with a contractor on a major defense system. The statute also restricts those in the grades of SES or 0-7 or higher, who performed

duties as a primary representative of the United States while either negotiating a defense contract or settling a contractor's claim in an amount in excess of $10,000,000. The penalty for violation of this statute is a fine up to $250,000. (§ 40.10.)

(3) 18 U.S.C. 203. Title 18, U.S. Code, section 203 makes it a criminal offense for a former Government employee to share in any compensation for representation before any Government agency in relation to a particular matter in which the United States is a party or has a direct and substantial interest, regardless of whether it was before the agency of which the individual is a former employee, during the period of his or her Government service or employment. It covers compensation received only in connection with actual or constructive appearances before an agency. This section does not apply to former Government employees who receive fixed salaries, as opposed to shares of profits, as compensation for their services.

(4) 18 U.S.C. 207-(i) Permanent restriction on representation. Title 18, U.S. Code, section 207 (a) permanently prohibits all former officers or employees (other than enlisted personnel) from knowingly representing anyone other than the United States or, with an intent to influence, making any oral or written communication on behalf of someone, in connection with a particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which the individual participated personally and substantially for the Government.

(ii) Two-year restriction on representation. (A) 18 U.S.C. 207(b)(1) restricts former officers or employees who terminate Government service on or after July 1, 1979, for two years after termination of service. Such persons may not act as agent or attorney or otherwise represent others in formal or informal appearances before the Government in connection with particular matters that were pending under the former employee's official responsibility during the final year of Service. This restriction includes oral or written communications as described in paragraph (b)(4)(i) of this section.

or

(B) "Official responsibility" includes the direct administrative or operating authority, whether intermediate or final, either exercisable alone or with others, and either personally through subordinates, to approve, disapprove, or otherwise direct Government actions. Ordinarily, the scope of an employee's official responsibility is determined by reference to the pertinent statute, regulation, Executive Order, job description, or delegation of authority.

(iii) Additional restrictions applicable to senior employees. (A) A “senior employee" includes all civilian officials at the executive level and all three and four star generals and flag officers. It also includes other persons holding positions designated as "senior employee" positions by the Director, Office of Government Ethics, as involving significant decisionmaking or supervisory responsibility. A list of designated positions is published annually in the FEDERAL REGISTER.

(B) For two years after leaving Government service, a former senior employee may not assist in the representation of another person by personal presence at an appearance before the Government on any particular matter in which he or she personally and substantially participated while in Government service (18 U.S.C. 207(b)(ii)). While such employees, for example, may work on a contract with which they were involved while in Government service, they may not render assistance while in attendance at any meetings, negotiations, or proceedings with the Government at which the prospective rights of the Government are addressed.

(C) For one year after leaving Government service, a former senior employee may not represent another person or himself or herself in attempting to influence his or her former agency in any matter pending before, or of substantial interest to, that agency (18 U.S.C. 207(c)). This provision does not require that the former employee have any prior involvement in the particular matter. The prohibition does not apply to communications made by a former senior employee who is an elected official or employee of a State or local

government, acting on behalf of that government, or to communications on behalf of a degree granting institution of higher learning, or nonprofit hospitals or medical institutions by a former senior employee who is principally employed by those institutions or medical organizations. It also does not apply to purely social or informational communications, responses to requests from the former agency, or to expressions of personal views when the former senior employee has no pecuniary interest. The provision results in a one year "cooling off" period to prevent the possible use of personal influence based on past Government affiliations to facilitate the transaction of business.

(iv) Exceptions to post Government service restrictions. (A) The restrictions of 18 U.S.C. 207 do not apply to communications made solely for the purpose of furnishing scientific or technological information in accordance with procedures established by the DoD Component concerned.

(B) The restrictions of 18 U.S.C. 207 do not apply when the Head of a DoD Component, in accordance with established procedures, certifies that a former officer or employee has outstanding scientific or technological qualifications and that the U.S. national interest would be served by that person's participation in a particular matter.

(c) Laws particularly applicable to retired regular officers-(1) Claims. (i) A retired regular officer of the Armed Forces may not, within two years of retirement, act as agent or attorney for prosecuting any claim against the government, or assist in the prosecution of such a claim, or receive any gratuity or any share of or interest in such a claim in consideration for having assisted in the prosecution of such a claim, if such claim involves the Military Department in which service he or she holds a retired status. See 18 U.S.C. 283.

(ii) A retired regular officer of the Armed Forces may never act as agent or attorney for prosecuting any claim against the government, or assist in the prosecution of such a claim, or receive any gratuity or any share of or interest in such a claim in consider

ation for having assisted in the prosecution of such a claim if such a claim involves any subject matter with which he or she was directly connected while on active duty. See 18 U.S.C. 283.

(2) Selling. (i) A retired regular officer is prohibited, at all times, from representing any person in the sale of anything to the Government through the Military Department in which service he or she holds a retired status. See 18 U.S.C. 281.

(ii) Payment may not be made from any appropriation, to an officer on a retired list of the Regular Army, the Regular Navy, the Regular Air Force, the Regular Marine Corps, the Regular Coast Guard, the National Oceanic and Atmospheric Administration, or the Public Health Service, for a period of three years after his or her name is placed on that list, who is engaged for himself, herself or others in selling, or contracting or negotiating to sell, supplies or war materials to an agency of the Department of Defense, the Coast Guard, the National Oceanic and Atmospheric Administration, or the Public Health Service. See 37 U.S.C. 801(b) as amended, October 9, 1962.

(iii) For the purpose of this statute, "selling" means:

(A) Signing a bid, proposal, or contract,

(B) Negotiating a contract,

(C) Contacting an officer or employee of any of the foregoing departments or agencies to obtain or negotiate contracts, negotiate or discuss changes in specifications, price, cost allowances, or other terms of contract, or settle disputes concerning performance of a contract, or

(D) Any other liaison activity with a view toward the ultimate consummation of a sale although the actual contract subsequently is negotiated by another person.

(3) Employment with the Department of Defense. A retired regular officer of the Armed Forces may not be appointed to a position in the civil service in the Department of Defense (including nonappropriated fund instrumentalities) within 180 days following retirement unless the following conditions set out in DoD Directive 1402.1 are met:

(i) The appointment is authorized by the Secretary of a Military Department, or designee, and, if applicable, by the Office of Personnel Management,

(ii) The minimum rate of basic pay for the position has been increased under 5 U.S.C. 5305, or

(iii) A state of national emergency exists.

(d) Other laws applicable to DoD personnel. Engaging in the following activities may subject present and former DoD personnel to criminal or other penalties:

(1) Aiding, abetting, counseling, commanding, including, or procuring another to commit a crime under any criminal statute (see 18 U.S.C. 201);

(2) Concealing or failing to report to proper authorities the commission of a felony under any criminal statute if such personnel knew of the actual commission of the crime (see 18 U.S.C.

4);

(3) Conspiring with one or more persons to commit a crime under any criminal statute or to defraud the United States, if any party to the conspiracy does any act to effect the object of the conspiracy (see 18 U.S.C. 371);

(4) Lobbying with appropriated funds (see 18 U.S.C. 1913);

(5) Disloyalty and striking (see 5 U.S.C. 7311, 18 U.S.C. 1918);

(6) Disclosure of classified information (see 18 U.S.C. 793 and 798, 50 U.S.C. 783), and disclosures of trade secrets and other confidential information (see 18 U.S.C. 1905);

(7) Habitual use of intoxicants to excess (see 5 U.S.C. 7352);

(8) Misuses of a Government vehicle (see 31 U.S.C. 638a(c)(2));

(9) Misuse of the mailing privilege (see 18 U.S.C. 1719);

(10) Deceit in an examination or personnel action in connection with government employment (see 18 U.S.C. 1917);

(11) Committing fraud or making false statements in a government matter (see 18 U.S.C. 1001);

(12) Mutilating or destroying a public record (see 18 U.S.C. 2071);

(13) Counterfeiting and forging transportation requests (see 18 U.S.C.

641);

(14) Embezzlement of government money or property (see 18 U.S.C. 641); failing to account for public money (see 18 U.S.C. 643); private use of public money (see 18 U.S.C. 653); and embezzlement of the money or property of another person in the possession of an employee by reason of his government employment (see 18 U.S.C. 654);

(15) Unauthorized use of documents relating to claims from or by the government (see 18 U.S.C. 285);

(16) Certain political activities (see 5 U.S.C. 7321-7327), and 18 U.S.C. 600, 601, 602, 603, 606, and 607, which apply to civilian employees and see DoD Directive 1344.10, which applies to military personnel);

(17) Any person (including a special Government employee) who is required to register under the Foreign Agents Registration Act of 1938 (see 18 U.S.C. 219), serving the government as an officer or employee (the section does not apply to retired regular officers who are not on regular duty, or reserves who are not on active duty or who are on active duty for training, or a special government employee in any case in which the department Head certifies to the Attorney General that his or her employment by the U.S. Government is in the national inter

est);

(18) Soliciting contributions for gifts or giving gifts to superiors, or accepting gifts from subordinates (see 5 U.S.C. 7351, which applies only to civilian employees; regulations set out at D.2.c.(1) in this part govern military personnel);

(19) Accepting of excessive honoraria (see 2 U.S.C. 44li);

(20) Accepting, without statutory authority, any present emolument, office or title, or employment of any kind whatever, from any king, prince, or foreign state by any person holding any office or profit in or trust of the Federal Government, including all retired military personnel and regular enlisted personnel (U.S. Constitution, Art. I, Sec. 9, cl.8, exceptions to this prohibition are authorized under 37 U.S.C. 908);

(21) Union activities of military personnel (10 U.S.C. 976);

(22) Violation of merit system principles (see 5 U.S.C. 2301);

(23) Prohibited personnel practices (see 5 U.S.C. 2302);

(24) Civilian presidential appointees occupying full-time positions, appointment to which is required to be made with the advice and consent of the senate, in any calendar year earning outside income in excess of 15 percent of their government salary (see 5 U.S.C. 210, Appendix 4);

(25) Employment of an officer of the Regular Navy or the Regular Marine Corps, other than a retired officer, by a person furnishing naval supplies or war materials to the United States (see 37 U.S.C. 801(a)).

[52 FR 23268, June 19, 1987, as amended at 52 FR 29844, Aug. 12, 1987]

§ 40.8 Code of ethics for government service.

Any person in Government service should:

(a) Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.

(b) Uphold the constitution, laws, and regulations of the United States and of all governments therein and never be a party to their evasion.

(c) Give a full day's labor for a full day's pay; giving earnest effort and best thought to the performance of duties.

(d) Seek to find and employ more efficient and economical ways of getting tasks accomplished.

(e) 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.

(f) 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.

(g) Engage in no business with the Government, either directly or indirectly, which is inconsistent with the