[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Rules and Regulations]
[Pages 5816-5819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2211]




[[Page 5815]]

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Part VII





Department of Education





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5 CFR Chapter LIII



34 CFR Part 73



Supplemental Standards of Ethical Conduct for Employees of the 
Department of Education; Interim Final Rule

Federal Register / Vol. 60, No. 19 / Monday, January 30, 1995 / Rules 
and Regulations
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[[Page 5816]] 


DEPARTMENT OF EDUCATION

5 CFR Chapter LIII

34 CFR Part 73

RIN 1801-AA09, 3209-AA15


Supplemental Standards of Ethical Conduct for Employees of the 
Department of Education

AGENCY: Department of Education.

ACTION: Interim final rule with invitation for comments.

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SUMMARY: The Department of Education, with the concurrence of the 
Office of Government Ethics (OGE), is issuing a regulation for 
employees of the Department of Education that supplements the Standards 
of Ethical Conduct for Employees of the Executive Branch issued by OGE. 
The supplemental rule requires Department of Education employees to 
obtain written approval prior to engaging in certain outside 
activities. The Department is also revising its residual standards 
regulation in its own CFR title and adding a cross-reference to the new 
provisions.

DATES: These regulations take effect January 30, 1995. Comments on this 
interim final rule must be received on or before March 16, 1995.

ADDRESSES: All comments concerning these regulations should be 
addressed to Susan A. Winchell, Office of the General Counsel, U.S. 
Department of Education, 600 Independence Avenue, SW., Room 5304, 
Washington, D.C. 20202-2110.

FOR FURTHER INFORMATION CONTACT: Susan A. Winchell, Office of the 
General Counsel, U.S. Department of Education, 600 Independence Avenue 
SW., Room 5304, Washington D.C. 20202-2110. Telephone (202) 401-8309. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339 
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 7, 1992, OGE published final regulations entitled 
``Standards of Ethical Conduct for Employees of the Executive Branch'' 
(Standards) codified at 5 CFR part 2635. (See 57 FR 35006-35067, as 
corrected at 57 FR 48557 and 52583 with an additional grace period 
extension at 59 FR 4779-4780.) The Standards took effect February 3, 
1993 and established uniform standards of ethical conduct that are 
applicable to all executive branch personnel.
    Under 5 CFR 2635.105 executive branch agencies, with OGE's 
concurrence, are authorized to publish agency-specific supplemental 
regulations that are necessary to implement an agency's ethics program. 
The Department of Education, with OGE's concurrence, has determined 
that the following supplemental rules, being codified in the new 
chapter LIII of 5 CFR, consisting of part 6301, are necessary to 
implement its ethics program. This interim final rule will remain in 
effect until the Department of Education, with OGE's concurrence, 
publishes an amendment.

II. Analysis of the Regulations

Section 6301.101  General

    Section 6301.101 explains that the regulations contained in the 
interim final rule apply to all employees of the Department of 
Education and are supplemental to the executive branch-wide Standards.

Section 6301.102  Prior Approval for Certain Outside Activities

    The Standards, at 5 CFR 2635.803, recognize that individual 
agencies may find it necessary or desirable to supplement the executive 
branch-wide regulations with a requirement that their employees obtain 
approval prior to engaging in outside activities. The Department of 
Education has long required employees, other than special Government 
employees, to obtain written permission before engaging in certain 
outside activities or employment. (See 34 CFR 73.22 (1994 edition).) 
The Department has found this requirement useful in ensuring that 
employees' outside activities conform to all applicable laws and 
regulations and, in accordance with 5 CFR 2635.803, has determined that 
it is necessary to the administration of its ethics program to continue 
to require prior approval of those outside activities that pose a 
potential for employees to engage in conduct that might violate the 
Standards.
    Section 6301.102 requires Department employees to obtain approval 
in advance of engaging in certain outside activities. As compared to 
the requirement that had been imposed by 34 CFR 73.22, Sec. 6301.102 
has been changed to simplify and clarify the requirement, and to narrow 
its scope, consistent with the Standards. In order to do this, the new 
provisions significantly revise the situations in which employees are 
required to seek prior approval to participate in outside employment 
and activities. Further, the new provisions spell out specific types of 
volunteer activities that are excluded from the prior approval 
requirement. Several examples are also included to clarify the 
application of this section.
    Because the Standards no longer contain a provision such as that 
previously applicable under prior 5 CFR 735.203(a)(2)(1993 edition, pt. 
735, note), the new provisions delete the previous requirement that 
employees obtain approval prior to participating in any activity or 
employment that aggregates more than 10 hours per week. Because 5 CFR 
2635.705 satisfactorily addresses the issues relating to misuse of 
official time, the new provisions also delete the requirement that 
employees obtain prior approval to participate in activities performed 
during regular work hours. And, because the standard would be too 
vague, they also delete the general requirement that employees obtain 
prior approval to participate in an activity or employment that 
``reasonably raises questions under the standards [of conduct].''
    Section 6301.102 of the interim final rule continues, in modified 
form, the Department's longstanding requirement that employees obtain 
approval before participating in outside activities for a prohibited 
source, as that term is defined in paragraph 6301.102(e)(2) of this 
section. Further, the new provisions add the requirement that employees 
obtain approval before providing services, other than clerical services 
or services as a fact witness, in connection with a particular matter 
in which the United States is a party or has a direct and substantial 
interest, or which involves the preparation of materials for submission 
to, or representation before, a Federal court or agency.
    Under 5 CFR 2635.805, employees are required to obtain 
authorization before acting as expert witnesses, other than on behalf 
of the United States, in any proceeding before a Federal court or 
agency in a matter in which the United States is a party or has a 
direct and substantial interest. Paragraph 6301.102(a)(1) is intended 
to cover such testimony as an outside activity, thus eliminating the 
need to create a separate procedure for the required authorization.
    There may be circumstances in which an employee is not required to 
obtain authorization to serve as an expert witness but is nonetheless 
required to obtain prior approval. For instance, an employee might wish 
to serve as an expert witness on the braking distances of school buses 
on behalf of a local school district in a negligence case in State 
court. The employee will be paid the customary rate for appearing as an 
expert witness. This employee is not [[Page 5817]] required to obtain 
authorization to provide expert testimony because the action is not one 
in which the United States is a party or has a direct and substantial 
interest. However, the employee is required to obtain prior approval 
under paragraph 6301.102(a)(2) because he or she is acting as a 
consultant for a prohibited source.
    The new provisions narrow the general requirement that employees 
obtain approval before engaging in any public writing or speaking, and 
adopt criteria consistent with the Standards to define when an employee 
must obtain advance approval for outside teaching, speaking, or 
writing. For instance, under the Department's previous regulation, an 
employee was required to obtain approval before publishing an article, 
or undertaking public speaking on a subject, such as jazz music or 
gardening, that was clearly unrelated to his or her duties. The new 
provisions require employees to obtain approval before they participate 
in teaching, speaking, or writing only if it ``relates to their 
official duties,'' as that phrase is defined in subpart H of the 
Standards at 5 CFR part 2635.
    The new provisions exclude from the prior approval requirement a 
number of uncompensated and volunteer activities that are unlikely to 
raise issues under the Standards. Specifically, employees are not 
required to obtain approval prior to engaging in activities such as 
volunteering for a social, fraternal, civic, or political entity, or 
any religious entity that is not a prohibited source. Further, 
employees need not obtain approval prior to participating in the 
activities of a parent association at their children's school. 
Employees are also not required to obtain prior approval to volunteer 
with any entity if they are providing direct instructional, social, or 
medical services.
    Even when prior approval is not required by Sec. 6301.102, the 
Standards and other ethics laws and regulations continue to apply to 
outside activities and employment. For instance, even if an employee is 
not required to obtain approval prior to publishing magazine articles 
on subjects unrelated to his or her duties, that employee may still be 
subject to the restriction on outside earned income applicable to 
certain noncareer employees. (See 5 CFR 2635.804(b) and subpart C of 5 
CFR part 2636.) Furthermore, employees are generally prohibited from 
using Government resources to participate in outside activities and 
outside employment, regardless of whether they are required to obtain 
prior approval to participate. See subpart G of 5 CFR part 2635 and 5 
CFR 2635.801. Additionally, whether subject to advance approval or not, 
an outside activity or outside employment may raise conflict of 
interest or impartiality concerns under subparts D and E of 5 CFR part 
2635.

III. Repeal and Revision of Department of Education Standards of 
Conduct

    Because 34 CFR 73.22, the Department's residual standards 
regulation, is superseded by new chapter LIII of title 5, as added by 
this rulemaking, the Department of Education is herewith amending that 
section to repeal the Department's previous requirements for prior 
approval to participate in outside activities, and to provide cross-
references to the executive branch-wide Standards at 5 CFR part 2635, 
to the Department's new supplemental regulation at 5 CFR part 6301, and 
to the executive branch financial disclosure regulation at 5 CFR part 
2634. A more recent version of the ``Code of Ethics for Government 
Service,'' as enacted by Congress and signed into law by the President 
in 1980, is also being adopted in the appendix to amended part 73.

IV. Matters of Regulatory Procedure

Waiver of Proposed Rulemaking

    In accordance with section 437 of the General Education Provisions 
Act (20 U.S.C. 1232) and the Administrative Procedure Act (5 U.S.C. 
553), it is the practice of the Secretary to offer interested parties 
the opportunity to comment on proposed regulations. Since these interim 
final regulations relate to agency management and personnel, they are 
exempt from notice and comment required under 5 U.S.C. 553(a). However, 
the Department will consider public comments made within 45 days after 
the publication of this interim final rule. Depending on the nature of 
the comments, the Department may or may not adopt and publish 
amendments to these regulations based on these comments.

Regulatory Flexibility Act Certification

    The Department of Education has determined under the Regulatory 
Flexibility Act (5 U.S.C. chapter 6) that this regulation will not have 
a significant impact on small business entities because it primarily 
affects Department employees.

Paperwork Reduction Act

    The Department of Education has determined that the Paperwork 
Reduction Act (44 U.S.C. chapter 35) does not apply because this 
regulation does not contain any information collection requirements 
that require the approval of the Office of Management and Budget.

List of Subjects

5 CFR Part 6301

    Conflict of interests, Standards of conduct, Education Department, 
Government employees.

34 CFR Part 73

    Conflict of interests, Standards of conduct, Education Department, 
Government employees.

    Dated: January 20, 1995.
Richard W. Riley,
Secretary of Education.

    Dated: January 23, 1995.
Stephen D. Potts,
Director, Office of Government Ethics.

(Catalog of Federal Domestic Assistance Number does not apply)

    The Secretary of Education, with the concurrence of the Office of 
Government Ethics, amends title 5 of the Code of Federal Regulations 
and title 34, part 73, of the Code of Federal Regulations, as follows:

TITLE 5--[AMENDED]

    1. A new chapter LIII, consisting of part 6301, is added to title 5 
of the Code of Federal Regulations to read as follows:

5 CFR CHAPTER LIII--DEPARTMENT OF EDUCATION

PART 6301--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES 
OF THE DEPARTMENT OF EDUCATION

Sec.
6301.101 General.
6301.102 Prior approval for certain outside activities.

    Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in 
Government Act of 1978); E.O. 12674, 3 CFR, 1989 Comp., p. 215, as 
modified by E.O. 12731, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 
2635.803.


Sec. 6301.101  General.

    In accordance with 5 CFR 2635.105, the regulations in this part 
apply to employees of the Department of Education and supplement the 
Standards of Ethical Conduct for Employees of the Executive Branch 
contained in 5 CFR part 2635.


Sec. 6301.102  Prior approval for certain outside activities.

    (a) An employee, other than a special Government employee, must 
obtain written approval prior to engaging--with or without 
compensation--in the following outside activities:
    (1) Except as provided in paragraph (b)(1) of this section, 
providing services, [[Page 5818]] other than clerical services or 
service as a fact witness, on behalf of any other person in connection 
with a particular matter:
    (i) In which the United States is a party;
    (ii) In which the United States has a direct and substantial 
interest; or
    (iii) If the provision of services involves the preparation of 
materials for submission to, or representation before, a Federal court 
or executive branch agency.
    (2) Except as provided in paragraph (b)(2) of this section:
    (i) Serving as an officer, director, trustee, general partner, 
agent, attorney, consultant, contractor, employee, advisory committee 
member, or active participant for a prohibited source; or
    (ii) Engaging in teaching, speaking, consulting, or writing that 
relates to the employee's official duties.
    (b) Unless the services are to be provided for compensation, 
including reimbursement for transportation, lodging and meals:
    (1) Prior approval is not required by paragraph (a)(1) of this 
section to provide services as an agent or attorney for, or otherwise 
to represent, another Department of Education employee who is the 
subject of disciplinary, loyalty, or other personnel administration 
proceedings in connection with those proceedings; and
    (2) Prior approval is not required by paragraph (a)(2) of this 
section:
    (i) To participate in the activities of a:
    (A) Social, fraternal, civic, or political entity;
    (B) Religious entity that is not a prohibited source; or
    (C) Parent-Teacher Association or similar parent organization at 
the employee's child's school or day care center, other than as a 
member of a board of directors or other governing body of the school or 
center, or the educational agency of which it is a part; or
    (ii) To provide direct instructional, social, or medical services 
to students or other individuals.
    (c) An employee who is required by paragraph (a) of this section to 
obtain prior written approval shall submit a written request for 
approval in accordance with Department procedures.
    (d) The cognizant reviewing official shall grant approval unless he 
or she determines that the outside activity is expected to involve 
conduct prohibited by statute or Federal regulations, including 5 CFR 
part 2635.
    (e) For the purposes of this section:
    (1) ``Active participant'' has the meaning set forth in 5 CFR 
2635.502(b)(1)(v).
    (2) ``Prohibited source'' has the meaning set forth in 5 CFR 
2635.203(d).
    (3) ``Relates to the employee's official duties'' means that the 
activity meets one or more of the tests described in 5 CFR 
2635.807(a)(2)(i) (B) through (E). It includes, in relevant part:
    (i) Activities an employee has been invited to participate in 
because of his or her official position rather than his or her 
expertise in the subject matter;
    (ii) A situation in which an employee has been asked to participate 
in an activity by a person or organization that has interests that may 
be substantially affected by the performance or nonperformance of the 
employee's official duties;
    (iii) Activities that convey information derived from nonpublic 
information gained during the course of Government employment; and
    (iv) Activities that deal in significant part with any matter to 
which the employee is or has been officially assigned in the last year, 
any ongoing or announced Department policy, program or operation, or--
in the case of certain noncareer employees--any matter that is 
generally related to education or vocational rehabilitation.

    Example 1:  A Department employee witnessed an automobile 
accident involving two privately owned cars on her way to work. Some 
time later she is served with a subpoena at home to appear in 
Federal court as a fact witness on behalf of the plaintiff, who was 
injured in the car accident, in a civil case alleging negligence. 
The Department employee is not required to obtain prior approval to 
comply with the subpoena because this civil case is not a matter in 
which the United States is a party or has a direct and substantial 
interest.
    Example 2: A Department employee would like to prepare Federal 
tax returns for clients on his own time. He is required to obtain 
prior approval to participate in this outside activity because it 
involves the provision of personal services in the preparation of 
materials for submission to the Internal Revenue Service, an 
executive branch agency.
    Example 3: Arlene, a Department employee, has been asked by a 
Department colleague to represent him, without compensation, in an 
equal employment opportunity complaint he filed alleging that his 
supervisor failed to promote him because he is over 40 years old. 
Arlene is not required to obtain prior approval under this 
regulation before providing such representation because it involves 
services for another Department of Education employee in connection 
with a personnel administration proceeding. However, under 18 U.S.C. 
section 205, she may only provide such representation if it is not 
inconsistent with faithful performance of her duties.
    Example 4: A local school board offers a Department employee a 
paid position as a referee of high school football games. The 
employee must seek prior approval to accept this outside employment 
because the local school board is a prohibited source. If, on the 
other hand, the employee volunteered to coach soccer, without pay, 
in a sports program sponsored by the local school board, no prior 
approval is required because she would be engaging in direct 
instructional services to students.
    Example 5: A Department program specialist in the Office of 
Elementary and Secondary Education actively pursues an interest in 
painting. The community art league, where he has taken evening art 
classes, asks him if he would be interested in teaching an evening 
course on painting with acrylics. The employee is not required to 
obtain approval prior to accepting this employment. The community 
art league is not a prohibited source, and the subject matter of the 
course is not related to his duties.
    Example 6: A Department employee helps organize local tennis 
tournaments. A national tennis magazine calls and asks her to write 
a monthly column about recreational tennis in her area. The magazine 
offers to pay the employee $500 for each column. The subject matter 
is not related to her duties, and the employee is not required to 
seek prior approval to write this column. However, the employee is 
still subject to all of the Standards of Conduct and other laws that 
may apply, including the limitation on outside earned income for 
certain noncareer employees, as well as the prohibition on using 
Government resources to pursue outside activities and employment.
    Example 7: An employee's elderly parent is retired and receiving 
Social Security benefits. The employee would like to represent his 
parent in an administrative hearing before the Social Security 
Administration concerning a dispute over benefits. The employee must 
obtain prior approval to undertake the activity of representing his 
parent because he is providing services to his parent in a 
particular matter in which the United States is a party. Moreover, 
the services will involve representation before a Federal agency.

TITLE 34--EDUCATION

    2. Part 73 of Title 34 is revised to read as follows:

PART 73--STANDARDS OF CONDUCT

Sec.
73.1  Cross-reference to employee ethical conduct standards and 
financial disclosure regulations.
73.2  Conflict of interest waiver.

Appendix to Part 73--Code of Ethics for Government Service

    Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 208; and E.O. 12674, 3 
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 3 CFR, 1990 
Comp., p. 306.


Sec. 73.1  Cross-reference to employee ethical conduct standards and 
financial disclosure regulations.

    Employees of the Department of Education are subject to the 
executive [[Page 5819]] branch-wide Standards of Ethical Conduct at 5 
CFR part 2635 and to the Department of Education regulation at 5 CFR 
part 6301 which supplements the executive branch-wide standards with a 
requirement for employees to obtain prior approval to participate in 
certain outside activities. In addition, employees are subject to the 
executive branch-wide financial disclosure regulations at 5 CFR part 
2634.


Sec. 73.2  Conflict of interest waiver.

    If a financial interest arises from ownership by an employee--or 
other person or enterprise referred to in 5 CFR 2635.402(b)(2)--of 
stock in a widely diversified mutual fund or other regulated investment 
company that in turn owns stock in another enterprise, that financial 
interest is exempt from the prohibition in 5 CFR 2635.402(a).

Appendix to Part 73--Code of Ethics for Government Service

    Any person in Government service should:
    Put loyalty to the highest moral principles and to country above 
loyalty to persons, party, or Government department.
    Uphold the Constitution, laws, and regulations of the United States 
and of all governments therein and never be a party to their evasion.
    Give a full day's labor for a full day's pay; giving earnest effort 
and best thought to the performance of duties.
    Seek to find and employ more efficient and economical ways of 
getting tasks accomplished.
    Never discriminate unfairly by the dispensing of special favors or 
privileges to anyone, whether for remuneration or not; and never 
accept, for himself or herself or for family members, favors or 
benefits under circumstances which might be construed by reasonable 
persons as influencing the performance of governmental duties.
    Make no private promises of any kind binding upon the duties of 
office, since a Government employee has no private word which can be 
binding on public duty.
    Engage in no business with the Government, either directly or 
indirectly, which is inconsistent with the conscientious performance of 
governmental duties.
    Never use any information gained confidentially in the performance 
of governmental duties as a means of making private profit.
    Expose corruption wherever discovered.
    Uphold these principles, ever conscious that public office is a 
public trust.

(This Code of Ethics was unanimously passed by the United States 
Congress on June 27, 1980, and signed into law as Public Law 96-303 
by the President on July 3, 1980.)

[FR Doc. 95-2211 Filed 1-27-95; 8:45 am]
BILLING CODE 4000-01-P