5 C.F.R. Subpart C—Formal Advisory Opinion Service
Title 5 - Administrative Personnel
(a) The Director of the Office of Government Ethics has the authority and responsibility to render formal advisory opinions pursuant to Section 402(b)(8) of the Act. This service is available to any person who has a question about a matter over which the Office of Government Ethics has jurisdiction. Formal advisory opinions will be issued when a two-pronged test is met. First, the person making the request must meet the requirements of §2638.302 and, second, the subject matter of the request must meet the criteria set forth in §2638.303. (b) Normally, formal advisory opinions will not be issued to individuals who wish to obtain general advice concerning their own specific present or proposed activities or financial transactions. Such questions should be directed to the designated ethics official of the agency in which the individual will serve, serves or served. If a designated agency ethics official receives a request which he or she believes should be answered by the Office of Government Ethics, a referral procedure is available. (c) The Office of Government Ethics will provide interested parties, to the extent practicable, with an opportunity to comment on any question which will be the subject of a formal advisory opinion issued by the Office. These opinions will be published in a form which will not identify specific individuals unless necessary to the understanding of the opinion. Copies will be sent to the designated ethics officials of each agency and be available at the Office of Government Ethics in that same form. Any person (as defined in §2638.104) may request an opinion with respect to a situation in which that person is directly involved. A designated agency ethics official, representative, or attorney may request an opinion on behalf of the person. Notwithstanding this direct involvement requirement, a designated agency ethics official may always request an opinion concerning a situation about which he or she has knowledge. Formal advisory opinions will be rendered on matters of general applicability or on important matters of first impression concerning the application of the Act, Executive Order 11222 and regulations promulgated pursuant to such Act and Executive Order, and the laws embodied in 18 U.S.C. 202–209. The Director will respond to those requests which in his or her discretion fall within this category taking into consideration: (a) The unique nature of the question and its precedential value, (b) The potential number of officers or employees throughout the Government affected by the question, (c) The frequency with which the question arises, and (d) The likelihood or presence of inconsistent interpretations on the same question by different agencies. Except in unusual circumstances, opinions will not be rendered with respect to hypothetical situations posed in requests. Opinions may be rendered, however, on proposed activities or transactions. (a) A request for a formal advisory opinion should be directed to the Director of the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005–3917. (b)(1) A request should be in writing and signed by the individual making the request or by a representative of that person. A request shall state all material facts necessary for the Director to render a complete and correct opinion. (2) In addition, it should also include the following information: (i) the name, mailing address, and daytime telephone contact of the individual making the request, and (ii) a copy of the position, description of the position involved, if available. (c) If the request is submitted by a representative, he or she must show his or her representative status, list a mailing address and daytime telephone contact. [46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990] (a) Subject to the provisions of paragraph (d) of this section, the Director shall review each request for a formal advisory opinion and take one of the following actions: (1) If the Director determines that the person making the request meets the requirements of §2638.302 and that the subject matter of the request qualifies under the criteria established in §2638.303, he or she shall assign an identifying number to the request and notify the person that a formal advisory opinion will be rendered; or (2) If the Director determines that the person making the request is not a person who is eligible to receive a formal advisory opinion as provided in §2638.302, or that the subject of the request is not a matter upon which the Office issues formal advisory opinions as outlined by §2638.303, he or she shall so notify the person making the request. When a formal advisory opinion will not be rendered, the Office of Government Ethics may provide other informational assistance to the person as appropriate. (See also §2638.312.) (b) If at any time after receipt of a request for a formal advisory opinion, the Director believes that additional relevant information is needed, he or she may seek such information directly from the person requesting the opinion or from other sources which may include the agency involved. (c) The person requesting the opinion may furnish the Office of Government Ethics with legal memoranda or other material relevant to the opinion requested. (d)(1) In the case of a request which involves an actual or apparent violation of any conflict of interest law embodied in 18 U.S.C. 202–209, the Director shall consult with the Criminal Division of the Department of Justice. (2) If after such consultation the Criminal Division determines that a criminal investigation will be undertaken, the Director shall take no further action with regard to that request pending a determination by the Criminal Division not to prosecute. (3) Upon receipt of a determination by the Criminal Division not to prosecute, the Director shall then follow the procedures for all other requests for formal advisory opinions set forth in this part. The Director shall provide notice to interested parties identified in a request which will be the subject of a formal advisory opinion that such an opinion will be rendered. Generally, the designated agency ethics official of the agency involved shall be notified of the request. (a) To the extent practicable, the Director shall provide interested parties with an opportunity to submit written comment on a request for a formal advisory opinion. A time by which the comment should be received to be considered will be indicated with the notice that the request has been made. (b) Additional time in which to comment may be granted upon written request to or at the discretion of the Director. Such requests and all written comments shall be sent to the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005–3917. [46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990] (a) A formal advisory opinion, (1) Which involves the application of any conflict of interest law embodied in 18 U.S.C. 202–209 to a transaction or activity which does not raise a question of an actual or apparent violation of this law but which raises an important matter of first impression, or (2) Which is issued following the procedure set forth in §2638.305(d), requires consultation by the Office of Government Ethics with the Office of Legal Counsel of the Department of Justice before it is issued. (b) An advisory opinion shall be considered issued when it is dated, numbered, and signed by the Director. Unless released by the person who made the request, the opinion will not become publicly available until information which identifies individuals involved and which is unnecessary to the complete understanding of the opinion has been deleted from the opinion and this version of the opinion is placed in a public reading file at the Office of Government Ethics. (See §2638.310) (a) Any formal advisory opinion referred to in §2638.308(a) or any provisions or finding of a formal advisory opinion involving the application of the Act, Executive Order 11222 and the regulations promulgated pursuant to the Act or Executive Order, may be relied upon by: (1) Any person directly involved in the specific transaction or activity with respect to which such advisory opinion has been rendered, and (2) Any person directly involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion was rendered. (b) Any person who relies upon any provision or finding of any formal advisory opinion in accordance with paragraph (a) of this section and who acts in good faith in accordance with the provisions and findings of such opinion, shall not, as a result of such act, be subject to prosecution under 18 U.S.C. 202–209 or, in the case where the opinion is exculpatory, be subject to any administrative adverse action or civil action based upon legal authority cited in that opinion. (a) The Director shall make sufficient deletions in any formal advisory opinion so that unless necessary to the complete understanding of the opinion, the identity of any person involved is not disclosed. No deletion shall in any way affect the substance of the opinion. (b) A copy of this version of the opinion shall then be made available for public inspection within 10 working days after the issuance of the opinion at the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005–3917. (c) The Director shall thereafter publish this version of the opinion. [46 FR 2583, Jan. 9, 1981. Redesignated at 54 FR 50231, Dec. 5, 1989, and amended at 55 FR 27180, July 2, 1990] Each designated agency ethics official shall receive a copy of each published opinion. Copies will also be available to the public from the Office of Government Ethics upon request at no more than cost. (a) If a designated agency ethics official receives a request for advice from a person and determines that the request may come within the criteria set forth in §2638.303, he or she shall contact the Office of Government Ethics concerning the request before referring the request to the Office. If after such consultation the Office of Government Ethics determines that the request should be the subject of a formal advisory opinion, the designated agency ethics official shall notify the person making the request of that determination and request the person's permission to refer the request to the Office of Government Ethics. (b) If the Director receives a request for an opinion which does not fulfill the criteria set forth in §2638.303, he or she may: (1) Furnish informational assistance to the person as provided in §2638.305(a), or (2) Refer the request to the appropriate designated agency ethics official. (c) In all instances covered by paragraphs (a) and (b) of this section, a referral will not be made in the case of questions regarding possible future employment plans of an individual making the request unless he or she is first notified and gives his or her consent or the request itself indicates that such a referral may be made. If the designated agency ethics official issues a written opinion concerning the application of 18 U.S.C. 202–209, he or she shall transmit a copy of that opinion to the Office of Government Ethics.
Title 5: Administrative Personnel
PART 2638—OFFICE OF GOVERNMENT ETHICS AND EXECUTIVE AGENCY ETHICS PROGRAM RESPONSIBILITIES
Subpart C—Formal Advisory Opinion Service
§ 2638.301 In general.
§ 2638.302 Who may request a formal advisory opinion.
§ 2638.303 Subject matter of formal advisory opinions.
§ 2638.304 Form of requests for formal advisory opinions.
§ 2638.305 Acceptance of requests for formal advisory opinions.
§ 2638.306 Notice of requests.
§ 2638.307 Written comment on requests.
§ 2638.308 Issuance.
§ 2638.309 Reliance on formal advisory opinions.
§ 2638.310 Public availability and publication of formal advisory opinions.
§ 2638.311 Copies of published formal advisory opinions.
§ 2638.312 Referral of requests.
§ 2638.313 Agency opinions.
