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e-CFR data is current as of November 27, 2020

Title 5Chapter XVISubchapter BPart 2638Subpart B → §2638.209


Title 5: Administrative Personnel
PART 2638— EXECUTIVE BRANCH ETHICS PROGRAM
Subpart B—Procedures of the Executive Branch Ethics Program


§2638.209   Formal advisory opinions.

This section establishes the formal advisory opinion service of the Office of Government Ethics.

(a) General. The Office of Government Ethics renders formal advisory opinions pursuant to section 402(b)(8) of the Act. A formal advisory opinion will be issued when the Director determines that the criteria and requirements established in this section are met.

(b) Subjects of formal advisory opinions. Formal advisory opinions may be rendered on matters of general applicability or important matters of first impression concerning the application of the Act; Executive Order 12674 of April 12, 1989, as modified by Executive Order 12731 of October 17, 1990; 18 U.S.C. 202-209; and regulations interpreting or implementing these authorities. In determining whether to issue a formal advisory opinion, the Director will consider:

(1) The unique nature of the question and its precedential value;

(2) The potential number of employees throughout the government affected by the question;

(3) The frequency with which the question arises;

(4) The likelihood or presence of inconsistent interpretations on the same question by different agencies; and

(5) The interests of the executive branch ethics program.

(c) Role of the formal advisory opinion service. The formal advisory opinion service of the Office of Government Ethics is not intended to replace the government ethics advice and counseling programs maintained by executive branch agencies. Normally, formal advisory opinions will not be issued with regard to the types of questions appropriately directed to an agency's DAEO. If a DAEO receives a request that the DAEO believes might appropriately be answered by the Office of Government Ethics through a formal advisory opinion, the DAEO will consult informally with the General Counsel of the Office of Government Ethics for instructions as to whether the matter should be referred to the Office of Government Ethics or retained by the agency for handling. Except in unusual circumstances, the Office of Government Ethics will not render formal advisory opinions with respect to hypothetical situations posed in requests for formal advisory opinions. At the discretion of the Director, however, the Office of Government Ethics may render formal advisory opinions on certain proposed activities or financial transactions.

(d) Eligible persons. Any person may request an opinion with respect to a situation in which that person is directly involved, and an authorized representative may request an opinion on behalf of that person. However, an employee will normally be required to seek an opinion from the agency's DAEO before requesting a formal advisory opinion from the Office of Government Ethics. In addition, a DAEO may request a formal advisory opinion on behalf of the agency or a prospective, current, or former employee of that agency.

(e) Submitting a request for a formal advisory opinion. The request must be submitted either by electronic mail addressed to ContactOGE@oge.gov or by mail, through either the United States Postal Service or a private shipment service, to the Director of the Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917. Personal deliveries will not be accepted.

(f) Requirements for request. The request must include:

(1) An express statement indicating that the submission is a request for a formal advisory opinion;

(2) The name, street address, and telephone number of the person requesting the opinion;

(3) The name, street address, and telephone number of any representative of that person;

(4) All material facts necessary for the Director to render a complete and correct opinion;

(5) The date of the request and the signature of either the requester or the requester's representative; and

(6) In the case of a request signed by a representative, a written designation of the representative that is dated and signed by the requester.

(g) Optional materials. At the election of the requester, the request may also include legal memoranda or other material relevant to the requested formal advisory opinion.

(h) Additional information. The Director may request such additional information or documentation as the Director deems necessary to the development of a formal advisory opinion, from either the requester or other sources. If the requester or the requester's representative fails to cooperate with such a request, the Office of Government Ethics normally will close the matter without issuing a formal advisory opinion.

(i) Comments from interested parties. The Office of Government Ethics will, to the extent practicable, solicit written comments on a request by posting a prominent notice on its official Web site. Any such notice will summarize relevant information in the request, provide interested parties 30 days to submit written comments, and include instructions for submitting written comments. Written comments submitted after the deadline will be considered only at the discretion of the Director.

(j) Consultation with the Department of Justice. Whenever the Office of the Government Ethics is considering rendering a formal advisory opinion, the Director will consult with the Office of Legal Counsel of the Department of Justice sufficiently in advance to afford that office an opportunity to review the matter. In addition, whenever a request involves an actual or apparent violation of any provision of 18 U.S.C. 202-209, the Director will consult with the Criminal Division of the Department of Justice. If the Criminal Division determines that an investigation or prosecution will be undertaken, the Director will take no further action on the request, unless the Criminal Division makes a determination not to prosecute.

(k) Consultation with other executive branch officials. The Director will consult with such other executive branch officials as the Director deems necessary to ensure thorough consideration of issues and information relevant to the request by the Office of Government Ethics. In the case of a request submitted by a prospective or current employee, the Director will share a copy of the request with the DAEO of the employee's agency.

(l) Publication. The Office of Government Ethics will publish each formal advisory opinion on its official Web site. Prior to publishing a formal advisory opinion on its Web site, the Office of Government Ethics will delete information that identifies individuals involved and that is unnecessary to a complete understanding of the opinion.

(m) Reliance on formal advisory opinions. (1) Any formal advisory opinion referred to in this section or any provisions or finding of a formal advisory opinion involving the application of the Act or the regulations promulgated pursuant to the Act or Executive order may be relied upon by:

(i) Any person directly involved in the specific transaction or activity with respect to which such advisory opinion has been rendered; and

(ii) 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 formal advisory opinion was rendered.

(2) Any person who relies upon any provision or finding of any formal advisory opinion in accordance with this paragraph and who acts in good faith in accordance with the provisions and findings of such opinion will not, as a result of such act, be subject to prosecution under 18 U.S.C. 202-209 or, when the opinion is exculpatory, be subject to any disciplinary action or civil action based upon legal authority cited in that opinion.

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