PART 5—STANDARDS OF CONDUCT

Chapter I—Federal Trade Commission › Subchapter A—Organization, Procedures and Rules of Practice

Subpart A—Employee Conduct Standards and Financial Conflicts of Interest

§ 5.1 Cross-reference to executive branch-wide regulations.

All employees, including Commissioners, political appointees, and special Government employees, of the Federal Trade Commission (FTC) are subject to and should refer to the “Standards of Ethical Conduct for Employees of the Executive Branch” at 5 CFR part 2635 (“executive branch-wide Standards of Conduct”) and to the FTC regulations at 5 CFR part 5701 (fundraising and prior approval for outside employment) that supplement the executive branch-wide Standards of Conduct.

§ 5.2 Waiver of insubstantial financial conflicts.

(a) Pursuant to 18 U.S.C. 208(b)(1) and 5 CFR 2640.301, certain disqualifying financial interests may be waived by the FTC upon a written determination that they are not so substantial as to be deemed likely to affect the integrity of an employee's services.

(b) Employees or special Government employees will not be subject to remedial or disciplinary action or to criminal prosecution under 18 U.S.C. 208(a), if they make a full disclosure in writing to the official responsible for their appointment of the nature and circumstances of the particular matter involved and of their conflicting financial interest relating thereto, and receive in advance a written determination made by such official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from the employee or special Government employee.

(c) Prior to issuing a written determination as described in paragraph (b) of this section, the official responsible for appointment must obtain from the FTC's Designated Agency Ethics Official a written recommendation to issue the Section 208 waiver. Pursuant to 5 CFR 2640.303, the FTC's Designated Agency Ethics Official must consult with the U.S. Office of Government Ethics prior to issuing the written recommendation.

(d) For the purposes of paragraph (b) of this section, the “official responsible for appointment” is the Executive Director in all cases where the employee is classified at grade GS-15 or below, or at a comparable pay level, except that each Commissioner is the “official responsible for appointment” of advisors in the Commissioner's immediate office, and the Inspector General is the “official responsible for appointment” of employees in the Office of the Inspector General.

(e) In all other cases (except with respect to the Chairman himself or the Inspector General), the Chairman is the “official responsible for appointment.”

Subpart B—Financial Disclosure Requirements

§ 5.10 Cross-reference to executive branch-wide regulations.

Employees, including Commissioners, political appointees, and special Government employees, of the Federal Trade Commission are subject to and should refer to the executive branch-wide financial disclosure regulations at 5 CFR part 2634, and to the procedures for filing and review of financial disclosure reports found in Chapter 5 of the FTC Administrative Manual.

Subpart C [Reserved]

Subpart D—Post-Government Employment Restrictions

§ 5.30 General prohibitions for former employees.

(a) Former employees of the Commission must comply with the requirements of 18 U.S.C. 207 and its implementing regulations at 5 CFR part 2641 (post-government employment conflict of interest restrictions), 18 U.S.C. 203 (compensation for representational services), 41 U.S.C. 2104 (compensation from contractors), and any other applicable laws, regulations, or rules.

(b) Former employees should be aware that, among other restrictions, 18 U.S.C. 207 generally:

(1) Prohibits former employees from knowingly, with the intent to influence, communicating to, or appearing before, an employee of the United States on behalf of anyone (other than themselves or the United States) in connection with a particular matter involving a specific party or parties, in which they participated personally and substantially as employees of the Commission, and in which the United States is a party or has a direct and substantial interest; 1

1 It is important to note that the same particular matter may continue in another form or in part. In determining whether two particular matters involving specific parties are the same, all relevant factors should be considered, including the extent to which the matters involve the same basic facts, the same or related parties, related issues, the same confidential information, and the amount of time elapsed. 5 CFR 2641.201(h)(5). For example, where a former employee intends to participate in an investigation of compliance with a Commission order, submission of a request to reopen an order, or a proceeding with respect to reopening an order, the matter will be considered the same as the adjudicative proceeding or investigation that resulted in the order. A former employee who is uncertain whether the matter in which they plan to participate is wholly separate from any matter that was pending during their tenure should seek advice from the FTC Designated Agency Ethics Official.

(2) Restricts former employees from representing anyone (other than themselves or the United States) before a Federal agency regarding a particular matter involving a specific party or parties pending under their official responsibility during their last year of Government service for two years after they leave the Commission; and

(3) Imposes upon former “senior” Commission employees who are subject to 18 U.S.C. 207(c) a one-year “cooling off” period (this period may vary depending on any applicable Ethics Pledge requirements) in which such former employees must not make any communication to, or appearance before, any FTC employee to seek official action on behalf of anyone (other than themselves or the United States).

(c) Former employees who are attorneys, and their firms, should consult their respective State bar rules regarding conflicts that are imputed to them and their firms.

Subpart E—Disciplinary Actions Concerning Ethics Requirements and Post-Government Employment Restrictions

§ 5.50 Submission of information.

Any person may submit a written statement to the FTC's General Counsel, the Designated Agency Ethics Official (DAEO), or the Inspector General, where appropriate, setting forth information indicating a possible violation of subparts A-B or D of this part or 18 U.S.C. 207.

§ 5.51 Involvement of other agencies or authorities.

(a) The General Counsel or DAEO will make a preliminary determination of whether the matter warrants or requires the involvement of other agencies or authorities. If so, the General Counsel or DAEO will expeditiously transmit any available information to the agency's Inspector General or else to the Department of Justice or the U.S. Office of Government Ethics, as appropriate.

(b) When the employee or former employee involved is an attorney, the General Counsel will also determine whether the matter should be referred to the disciplinary committee of the bar(s) of which the attorney is a member.

(c) If the General Counsel or DAEO transmits information alleging a crime or severe misconduct to the Department of Justice, U.S. Office of Government Ethics, or bar disciplinary authority under paragraphs (a) or (b) of this section, the General Counsel or DAEO will also notify the agency's Inspector General.

§ 5.52 Investigation or proceeding.

(a) The Office of the General Counsel will ensure that the agency cooperates fully in any investigation of possible violations of subparts A-B or D of this part or 18 U.S.C. 207 by the Office of Inspector General, the Department of Justice, or the U.S. Office of Government Ethics.

(b) Upon the conclusion of an investigation by the Inspector General or a prosecution by the Department of Justice, the Commission will request that the Office of Inspector General provide the Commission with a report.

§ 5.53 Sanctions.

When either an employee or former employee is convicted of violating 18 U.S.C. 207 or other Federal laws related to conduct described in this part, or the factual findings of the Inspector General's report support a conclusion that the employee or former employee violated subparts A-B or D of this part, the Commission may adopt the record of the criminal or civil proceeding or Inspector General report as its record. The Commission may order such additional disciplinary action as it deems warranted, including:

(a) Reprimand;

(b) Suspension from participating in a particular matter or matters before the Commission; or

(c) Prohibiting the person from making, with the intent to influence, any formal or informal appearance before, or any oral or written communication to, an FTC employee on any matter or business on behalf of any other person (except the United States) for a period not to exceed 5 years.

§ 5.54 Judicial review.

A person against whom the Commission has issued an order imposing disciplinary action under this part may seek judicial review of the Commission's determination in the United States District Court for the District of Columbia by filing a petition for such review within 60 days of receipt of notice of the Commission's final decision.