PURPOSE OF THIS POLICY
The Northwest Power Act provides that the federal laws regarding financial disclosure and conflicts of interest applicable to the Bonneville Power Administration shall apply to the Council “to the extent appropriate.” This policy spells out the extent to which application of these laws to the Council is appropriate, in light of several factors. One of the central reasons the Council was created was to provide for the participation and consultation of a number of Northwest entities and the public at large in the development of a regional power plan and a program to protect, mitigate and enhance fish and wildlife resources. To carry out this role, it is important that all Council employees conduct themselves in a way that assures interested parties and the general public that the Council’s decisions and deliberations are made fairly and without personal bias or preferential treatment. At the same time, the Council is a much smaller organization than those for which the federal rules were written, and some of the federal rules are inapposite or unduly formalistic. The rules set out below are intended to apply the federal rules without all their formalism. Each employee shall respect and adhere to the principles of ethical conduct set forth in this policy as well as any other related Council policies.
SCOPE OF THIS POLICY
This policy covers: (I) financial disclosure; (II) conflicting financial interests, including (A) disqualifying financial interests and (B) prohibited financial interests; (III) impartiality and the appearance of impartiality; (IV) misuse of position; (V) outside employment and other activities, (VI) representation of the Council and others, (VII) acceptance of gifts; and (VIII) post-employment rules. In general, financial disclosure requirements apply only to Council members and professional staff (those with salaries that exceed the equivalent of a GS-12). Certain post-employment rules apply only to Council members and the Executive Director and are so identified. All other guidelines apply to all Council Members and employees.
For other areas, such as rules that apply while seeking other employment, the Council will continue its practice of applying, as appropriate, the relevant federal standards as questions arise and of developing related policies as it deems appropriate.
Please consult the Legal Division if you have any questions about the meaning of this policy or how it may apply to you. If a Council employee knowingly violates these guidelines, the Council may take disciplinary action, including removal from employment. In addition, violation of these guidelines may be considered a violation of federal law, and could result in criminal penalties, including substantial fines and imprisonment. The Council will forward to the Office of Government Ethics the results of any investigation it undertakes of allegations of infractions of these guidelines.
I. FINANCIAL DISCLOSURE
Covered employees. Council members and professional staff (employees earning more than the equivalent of a GS 12) must file financial disclosure reports. Council members and the Executive Director file form SF 278. Other professional staff file form DOE F 3735.1.
Deadlines. Forms must be filed: within 30 days of joining the Council, annually by May 15, and within 30 days of leaving Council employment. The Legal Division will remind each person who is required to file of the applicable deadline and will furnish them with the appropriate form.
Review. The General Counsel, the Council’s designated ethics official, will designate a Senior Counsel to serve as the reviewing official. By May 15th each year, all completed forms will be submitted to the reviewing official, who will, within 30 days of receipt: review the form in light of the Council's conflict of interest guidelines, sign the form, noting whether potential problems exist, and, if so, whether any corrective action should be taken, and forward the signed form to the General Counsel. The General Counsel will serve as financial disclosure counselor.
The General Counsel will then: review the findings; sign and file the form, taking any corrective action that may be necessary; and, by July 15th, notify the public of the availability of those parts of the financial disclosure forms that are available to the public.
Special Disclosure by Council Members. At the first regularly scheduled Council meeting after May 15th each year, all Council members’ earned outside income during the preceding year will be disclosed.
II. CONFLICTING FINANCIAL INTERESTS
This subpart contains two provisions relating to financial interests. One is a disqualification requirement and the other is a prohibition on acquiring or continuing to hold specific financial interests.
A. Disqualifying Financial Interests.
- Statutory prohibition. An employee is prohibited by criminal statute, 18 U.S.C.§ 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under subsection (d) below has a financial interest, if the particular matter will have a direct and predictable effect on that interest. Each of these elements is defined below and all must be present for there to be a violation.
- Personal and substantial. To participate personally means to participate directly, including the direct and active supervision of the participation of a subordinate. To participate substantially means that the employee's involvement is of significance to the matter, whether or not it determines the outcome. Personal and substantial participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation or the rendering of advice.
- Particular matter involving specific parties includes any proceeding, contract, claim, controversy or other particular matter involving a specific party or parties. The term typically involves a specific proceeding affecting the legal rights of the parties or a transaction between identified parties. For example, a Council determination of consistency with the Power Plan under Section 6(c) or a Council recommendation regarding the acquisition of a given wildlife habitat would be particular matters involving specific parties.
- Particular matter of general applicability means a particular matter that is focused on the interests of a discrete and identifiable class of persons, but does not involve specific parties. An example of a particular matter of general applicability would be a protected areas determination.
Council matters that would fall outside either class of particular matters include adoption of the plan or program or an amendment to either.
- Imputed interests. The financial interests of the following will disqualify an employee to the same extent as if they were the employee's own interests: (i) The employee's spouse; (ii) The employee's minor child; (iii) The employee's general partner; (iv) An organization or entity which the employee serves as officer, director, trustee, general partner or employee; and (v) A person with whom the employee is negotiating for or has an arrangement concerning prospective employment.
- Direct and predictable effect. A particular matter will have a direct effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. A particular matter will have a predictable effect if there is a real, as opposed to a speculative possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the effect be known, and the dollar amount of the effect is immaterial.
- Disqualification. Unless the employee is authorized to participate in the particular matter by virtue of a waiver described in paragraph (3) of this section or because the interest has been divested in accordance with paragraph (4) of this section, an employee shall disqualify himself from participating in a particular matter in which, to his knowledge, he or a person whose interests are imputed to him has a financial interest, if the particular matter will have a direct and predictable effect on that interest. Disqualification is accomplished by not participating in the particular matter.
- Waiver of disqualification. An employee who would otherwise be disqualified may be permitted to participate in a particular matter if:
- the otherwise disqualifying financial interest is:
- diversified mutual fund;
- a unit investment trust; or
- a qualifying employee benefit plan, such as a state or municipal government plan;
- the holding is a de minimis holding:
- For particular matters involving specific parties, the holding is de minimis if its aggregate market value does not exceed $5,000.
- For particular matters of general applicability, the holding is de minimis if:
- in the case of a publicly traded or municipal security, the market value of the interest of the employee, his spouse and his minor children does not exceed $25,000 in any one entity or $50,000 in all affected entities, or
- in the case of a long-term federal government security, the market value does not exceed $50,000. Please consult the Legal Division for clarification and confirmation that a holding is de minimis;
- the employee, in advance of the employee's participation:
- advises the Legal Division, or in the case of Council members the appointing governor, about the nature and circumstances of the particular matter or matters; and makes full disclosure of the nature and extent of the disqualifying financial interest; and
- the Legal Division, or in the case of Council members the appointing governor, determines in writing that the employee's financial interest in the particular matter or matters is not so substantial as to be likely to affect the integrity of the services that the government may expect from such employee. This waiver is to be requested for each particular matter that comes before the Council in which a conflict presents itself. It is not a blanket waiver.
- Divestiture of a disqualifying financial interest. Upon sale or other divestiture of the asset or other interest that causes his disqualification from participation in a particular matter, the employee will no longer be prohibited from participating.
- Voluntary divestiture. An employee may voluntarily sell or otherwise divest himself of the interest that causes the disqualification.
- Directed divestiture. An employee may be required to sell or otherwise divest himself of the disqualifying financial interest if his continued holding of that interest is prohibited by statute or by paragraph B, Prohibited Financial Interests, below, or if the Legal Division determines that a substantial conflict exists between the financial interest and the employee's duties or accomplishment of the Council’s mission.
- Eligibility for special tax treatment. An employee who is directed to divest an interest may be eligible to defer the tax consequences of divestiture. Please consult the Legal Division if you believe this section may apply to you to determine if the tax consequences may be deferred pursuant to 5 CFR § 2634 Subpart J.
- Official duties that give rise to potential conflicts. When an employee's official duties create a substantial likelihood that the employee may be assigned to a particular matter from which he is disqualified, the employee should advise his supervisor or other person responsible for his assignments of that potential so that conflicting assignments can be avoided, consistent with the Council's needs.
B. Prohibited financial interests.
An employee shall not acquire or hold any financial interest that he is prohibited from acquiring or holding by statute or by reason of a determination of substantial conflict under paragraph (2) of this section.
- Definitions. For purposes of this section:
- The term financial interest is limited to financial interests that are owned by the employee or by the employee's spouse or minor children. The term includes any current or contingent ownership, equity, or security interest in real or personal property or a business and may include an indebtedness or compensated employment relationship. It thus includes, for example, interests in the nature of stocks, bonds, partnership interests, fee and leasehold interests, mineral and other property rights, deeds of trust, and liens, and extends to any right to purchase or acquire any such interest, such as a stock option or commodity future. It does not include a future interest created by someone other than the employee, his spouse, or dependent child or any right as a beneficiary of an estate that has not been settled. The term financial interest includes service, with or without compensation, as an officer, director, trustee, general partner or employee of any person, including a nonprofit entity, the financial interests of which are imputed to the employee.
- The term parent company means a company that possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of an entity identified in paragraphs (1)(a) through (1)(g) of this section.
- Council determination of substantial conflict. The Council’s Executive Committee may prohibit or restrict an individual employee from acquiring or holding a financial interest or a class of financial interests based upon the Legal Division’s determination that the holding will:
- Require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired; or
- Adversely affect the efficient accomplishment of the Council’s mission because another employee cannot be readily assigned to perform work from which the employee would be disqualified by reason of the financial interest.
- Reasonable period to divest or terminate. Whenever the Council directs divestiture of a financial interest under this section, the employee shall have a reasonable period of time, considering the nature of his particular duties and the nature and marketability of the interest, within which to comply with the Council’s direction. Except in cases of unusual hardship, as determined by the Council, a reasonable period shall not exceed 90 days from the date divestiture is first directed. However, as long as the employee continues to hold the financial interest, he remains subject to any restrictions imposed by this subpart.
III. Impartiality in Performing Official Duties
This subpart is intended to ensure that employees take appropriate steps to avoid an appearance of partiality in the performance of official duties. It applies to situations beyond those described in Sections I and II, above, and covers any situation in which the employee determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter. It applies when an employee knows that a particular matter involving specific parties is likely to have a direct and predictable effect on the financial interest of a member of his household, or when he knows that a person with whom he has a covered relationship, as that term is defined in B(1)(a) below, is or represents a party to the matter.
- Consideration of appearances by the employee. When an employee determines that circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in a particular matter, the employee shall not participate in the matter unless he has informed the Legal Division of the appearance problem and received authorization from the Legal Division in accordance with paragraph (D) of this section.
- Definitions. For purposes of this section:
- An employee has a covered relationship with:
- A person with whom the employee has or seeks a business, contractual or other financial relationship that involves other than a routine consumer transaction;
- A person who is a member of the employee's household, or who is a relative with whom the employee has a close personal relationship;
- A person for whom the employee's spouse, parent or dependent child is, to the employee's knowledge, serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee;
- Any person for whom the employee has, within the last year, served as officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee; or
- An organization, other than a political party described in 26 U.S.C. § 527(e), in which the employee is an active participant. Participation is active if, for example, it involves service as an official of the organization or in a capacity similar to that of a committee or subcommittee chairperson or spokesperson, participation in directing the activities of the organization. In other cases, significant time devoted to promoting specific programs of the organization, including coordination of fundraising efforts, is an indication of active participation. Payment of dues or the donation or solicitation of financial support does not, in itself, constitute active participation.
- Direct and predictable effect has the meaning set forth in section II(A)(1)(e), above.
- Particular matter has the meanings set forth in section II(A)(1)(b) and (c), above.
- Determination by Legal Division. When it has information concerning a potential appearance problem, typically information supplied by the employee, the Legal Division shall determine whether a reasonable person with knowledge of the relevant facts would be likely to question the employee's impartiality in the matter. However, even after the employee has disqualified himself from participation in a matter pursuant to paragraph (E) of this section, the Legal Division may make this determination on its own initiative or when requested by the employee's supervisor or any other person responsible for the employee's assignment.
- If the Legal Division determines that the employee's impartiality is likely to be questioned, it shall then determine, in accordance with paragraph (D) of this section, whether the employee should be authorized to participate in the matter. If the Legal Division determines that the employee's participation should not be authorized, the employee will be disqualified from participation in the matter in accordance with paragraph (E) of this section.
- If the Legal Division determines that the employee's impartiality is not likely to be questioned, it may advise the employee, including an employee who has reached a contrary conclusion under paragraph (A) of this section, that the employee's participation in the matter would be proper.
- Authorization by Legal Division. When an employee's participation in a particular matter would not violate 18 U.S.C. § 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the Legal Division may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Council in the employee's participation outweighs the concern that a reasonable person may question the integrity of the Council’s programs and operations. Factors that may be taken into consideration include:
- The nature of the relationship involved;
- The effect that resolution of the matter would have upon the financial interests of the person involved in the relationship;
- The nature and importance of the employee's role in the matter, including the extent to which the employee is called upon to exercise discretion in the matter;
- The sensitivity of the matter;
- The difficulty of reassigning the matter to another employee; and
- Adjustments that may be made in the employee's duties that would reduce or eliminate the likelihood that a reasonable person would question the employee's impartiality.
- Disqualification. Unless the employee is authorized to participate in the matter under paragraph (4) of this section, an employee shall not participate in a particular matter when he or the Legal Division has concluded, in accordance with paragraph (A) or (C) of this section, that circumstances are likely to raise a question in the mind of a reasonable person about his impartiality. Disqualification is accomplished by not participating in the matter.
- Notification. Appropriate notice may be given to co-workers by the employee or a supervisor to ensure that the employee is not involved in a particular matter.
- Documentation. An employee need not file a written disqualification statement unless specifically asked by the Legal Division or the person responsible for his assignment. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
IV. Misuse of Position.
- Misuse of Public Office for Private Gain. An employee shall not use his Council position for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.
- Use of Government Property. An employee has a duty to protect and conserve Government property and shall not use such property, or allow its use, for other than authorized purposes.
- Government property includes any form of real or personal property in which the Government has an ownership, leasehold, or other property interest as well as any right or other intangible interest that is purchased with Government funds, including the services of contractor personnel. The term includes office supplies, telephone and other telecommunications equipment and services, the Government mails, automated data processing capabilities, printing and reproduction facilities, Government records, and Government vehicles.
- Authorized purposes are those purposes for which Government property is made available to members of the public or those purposes authorized in accordance with law or regulation.
- Use of Official Time. Unless authorized in accordance with law or regulations to use such time for other purposes, an employee shall use official time in an honest effort to perform official duties. An employee has an obligation to expend an honest effort and a reasonable proportion of his time in the performance of official duties. An employee shall not encourage, direct, coerce, or request a subordinate to use official time to perform activities other than those required in the performance of official duties or authorized in accordance with law or regulation.
V. Outside Employment and Other Activities.
- Prohibition. An employee shall not engage in outside employment or any other outside activity that conflicts with his official duties. An activity conflicts with an employee's official duties:
- If it is prohibited by the foregoing provisions of this policy; or
- If it would require the employee's disqualification from matters so central or critical to the performance of his official duties that the employee's ability to perform the duties of his position would be materially impaired.
- Prior Approval. If there is any doubt whether an activity conflicts with an employee’s official duties, the employee shall obtain written approval from the Legal Division before engaging in outside employment or activities.
VI. Representation of the Council and Others.
- Representation of the Council. A Council employee may not represent or give the appearance of representing the Council or its policies unless the representation is part of Council duties, or unless the representation has prior authorization from the Executive Committee.
- Representation of Others. A Council employee may not represent anyone other than the Council before a court or government agency in a matter in which the Council is a party or has an interest. A Council Member may represent his Governor, provided he makes clear that he is not, in that case, representing the Council.
- Waiver. These restrictions may be waived if the Legal Division determines that such restrictions would be contrary to the best interests of the Council or result in an exceptional hardship for the employee involved.
VII. Acceptance of Gifts.
- Prohibition. A Council member or employee shall not, except as provided below, knowingly solicit or accept any gift, entertainment or favor (including complimentary meals and beverages), either directly or indirectly from any interested party.
- Gifts, entertainment and favors include, but are not limited to, any benefits, gratuities, loans, discounts, tickets, passes, transportation, accommodations, or hospitality given or extended to or on behalf of the recipient.
- Interested parties are persons or entities that seek business with the Council, are affected by Council decisions, or have interests that may be affected by the Council.
- Food, refreshments, transportation, lodging, subsistence and “social amenities” may be accepted from representatives of foreign governments in the course of Council business.
- With prior clearance from the Legal Division, food, travel, lodging or subsistence may be accepted from educational institutions or from consumer, environmental, professional or trade groups in connection with widely attended lunches, dinners, conferences and so forth.
- Food or transportation may be accepted in circumstances in which it would be impractical to pay for meals or provide personal transportation. For example, a meal may be accepted when a sponsoring organization has negotiated a group rate for a catered dinner and paying the sponsor would create serious accounting problems for the sponsor. Or, transportation may be accepted when the Council is inspecting a remote geothermal site and the developer provides a van.
- Promotional materials such as pens, calendars, notepads and so forth, so long as they are valued at less than $20, may be accepted. The sum of the value of such materials from any one donor shall not exceed $50 in any calendar year.
VIII. Post-employment Rules.
- Prohibition. After leaving the Council:
- a Council employee may not act as agent for or represent any other person in any formal or informal appearance before any court or government agency or, with the intent to influence, make any oral or written communication on that person’s behalf in connection with any particular Council matter involving a specific party if the employee participated personally and substantially in the matter while with the Council;
- for two years, a Council employee may not act as agent for or represent any other person in any formal or informal appearance before any court or government agency or, with the intent to influence, make any oral or written communication on that person’s behalf in connection with any particular Council matter involving a specific party if such matter was actually pending under the employee’s responsibility as a Council employee during the year prior to the termination of such responsibility (even though the employee did not participate personally and substantially in the matter);
- for one year, a Council member or the Executive Director may not act as agent for or otherwise represent anyone in any formal or informal appearance before, or with the intent to influence make any written or oral communication on behalf of anyone to the Council or any of its employees in connection with any particular Council matter, whether or not involving a specific party, that is pending before the Council, or in which the Council has a direct and substantial interest.
- Waiver. These restrictions may be waived if the Legal Division finds that:
- a former staff member possesses outstanding scientific or technical qualifications, and
- the national or regional interest would be served by waiving the restriction regarding a particular scientific or technical matter.
Latest revision approved by Executive Committee: September 23, 1998