B-183327, MAR 18, 1976

B-183327, MAR 18, 1976

PRECIS-UNAVAILABLE

LES ASPIN HOUSE OF REPRESENTATIVES:

THIS REFERS TO YOUR LETTER REQUESTING THAT THIS OFFICE "RENDER A FORMAL LEGAL OPINION" ON WHETHER OR NOT THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION (COMMISSION), MR. ROBERT HAMPTON, VIOLATED EITHER THE SPIRIT OR THE LETTER OF APPLICABLE REGULATIONS OF THE COMMISSION OR EXEC. ORDER NO. 11,222 MAY 8, 1965 BY ACCEPTING FREE TRIPS TO ROCKWELL INTERNATIONAL'S (ROCKWELL) HUNTING LODGE ON MARYLAND'S EASTERN SHORE, IN VIEW OF THE FACT THAT ROCKWELL HAD A CONTRACT WITH THE COMMISSION.

THERE IS NO STATUTORY OR REGULATORY AUTHORITY FOR THE GENERAL ACCOUNTING OFFICE TO ISSUE "FORMAL LEGAL OPINIONS" ON CONFLICT OF INTEREST QUESTIONS CONCERNING OFFICERS AND EMPLOYEES OF OTHER AGENCIES. THE BASIC ADMINISTRATIVE PROVISIONS SETTING FORTH STANDARDS OF CONDUCT FOR GOVERNMENT EMPLOYEES ARE FOUND IN EXEC. ORDER NO. 11,222, 3 C.F.R. 155 (1974), 18 U.S.C. SEC. 201 (1970), AS AMENDED BY EXEC. ORDER NO. 11,590, APRIL 25, 1971, 3 C.F.R. 161, (1974), 13 U.S.C. SECS 201 (SUPP.IV, 1974). EACH AGENCY HEAD IS REQUIRED BY SECTION 702 OF EXEC. ORDER NO. 11,222 TO ISSUE IMPLEMENTING REGULATIONS OF SPECIAL APPLICABILITY TO THE PARTICULAR FUNCTIONS AND ACTIVITIES OF HIS AGENCY. THE COMMISSION IS GIVEN GENERAL AUTHORITY TO REVIEW AND APPROVE EACH AGENCY'S REGULATIONS, AND HAS PROVIDED GENERAL GUIDANCE IN PART 735 OF TITLE 5, CODE OF FEDERAL REGULATIONS (1975). ITS OWN INTERNAL REGULATIONS ARE FOUND AT PART 1001 OF TITLE 5, CODE OF FEDERAL REGULATIONS (1975). UNDER THE ABOVE-CITED EXECUTIVE ORDER AND REGULATIONS, THE DETERMINATION OF WHETHER THE REGULATIONS HAVE BEEN VIOLATED IS LEFT TO THE HEAD OF THE AGENCY CONCERNED. ULTIMATELY, EACH AGENCY HEAD MUST TAKE RESPONSIBILITY FOR THE EXECUTION IN HIS AGENCY OF THE STANDARDS OF CONDUCT PROGRAM, AND FOR ANY REMEDIAL ACTION NECESSARY. ALTHOUGH WE DO NOT OURSELVES MAKE THE DETERMINATION YOU REQUESTED, WE HAVE ARE RELEVANT IN DECIDING WHETHER THE REGULATIONS MAY HAVE BEEN VIOLATED IN THIS CASE.

UNDER THE APPLICABLE PROVISIONS OF BOTH THE EXECUTIVE ORDER AND THE COMMISSION'S OWN REGULATIONS, SUPRA, NO EMPLOYEE MAY ACCEPT, DIRECTLY, OR INDIRECTLY ANY GIFT, GRATUITY, FAVOR, ENTERTAINMENT, LOAN, OR ANY OTHER GIFT OF MONETARY VALUE FROM ANY PERSON, CORPORATION, OR GROUP WHICH HAS OR IS SEEKING TO OBTAIN, CONTRACTUAL OR OTHER BUSINESS OR FINANCIAL RELATIONS WITH HIS AGENCY. 5 C.F.R. SEC. 1001.735-202(A).

CERTAIN EXCEPTIONS ARE PERMITTED BY THE EXECUTIVE ORDER TO BE INCORPORATED IN AGENCY REGULATIONS. THE COMMISSION REGULATIONS

"OBVIOUS FAMILY OR PERSONAL RELATIONSHIPS, SUCH AS THOSE BETWEEN THE EMPLOYEE AND HIS PARENTS, CHILDREN, OR SPOUSE, WHEN THE CIRCUMSTANCES MAKE IT CLEAR THAT THOSE RELATIONSHIPS RATHER THAN THE BUSINESS OF THE PERSONS CONCERNED ARE THE MOTIVATING FACTORS ***." 5 C.F.R. SEC. 1001.735-202(B) (1975).

IN ADDITION, THE REGULATIONS ENJOIN -

"*** ANY ACTION WHICH MIGHT RESULT IN, OR CREATE THE APPEARANCE OF:

"(A) USING PUBLIC OFFICE FOR PRIVATE GAIN;

"(B) GIVING PREFERENTIAL TREATMENT TO ANY PERSON;

"(C) IMPEDING GOVERNMENT EFFICIENCY OR ECONOMY;

"(D) LOSING COMPLETE INDEPENDENCE OR IMPARTIALITY;

(E) MAKING A GOVERNMENT DECISION OUTSIDE OFFICIAL CHANNELS; OR

"(F) AFFECTING ADVERSELY THE CONFIDENCE OF THE PUBLIC IN THE INTEGRITY OF THE GOVERNMENT." 5 C.F.R. SEC. 1001.735-201 (1975).

WHEN WE RECEIVED YOUR INQUIRY, WE ASKED MR. HAMPTON FOR ANY COMMENTS OR INFORMATION HE CARED TO PROVIDE. HE EXPLAINED THAT THE INVITATIONS TO THE ROCKWELL HUNTING LODGE WERE EXTENDED BY PERSONAL FRIENDS EMPLOYED ORIGINALLY BY THE NORTH AMERICAN CORPORATION WHICH LATER MERGED WITH ROCKWELL. WHEN MR. HAMPTON FIRST VISITED THE LODGE, AROUND 1968, AND UNTIL 1974, NEITHER NORTH AMERICAN NOR, LATER, ROCKWELL, HAD ANY RELATIONSHIP WITH THE COMMISSION.

AS TO THE 1974 COMMISSION CONTRACT WITH ROCKWELL, MR. HAMPTON STATES THAT HE HAD NO PARTICIPATION IN THAT CONTRACT, AND IN FACT WAS UNAWARE OF IT UNTIL AFTER THE NEWSPAPER PUBLICITY ABOUT HIS HUNTING TRIPS. HE HAD, PRIOR TO ISSUANCE OF REQUESTS FOR PROPOSALS CONCERNING THE CONTRACT IN QUESTION, DELEGATED HIS AUTHORITY TO ENTER INTO CONTRACTS ON BEHALF OF THE COMMISSION TO VARIOUS OTHER COMMISSION OFFICIALS. PURSUANT TO THAT DELEGATION OF AUTHORITY, OFFICIALS OF THE OFFICE SERVICES DIVISION OF THE COMMISSION'S BUREAU OF MANAGEMENT SERVICES, UNDERTOOK TO AWARD A CONTRACT TO A COMMERCIAL FIRM TO ADVISE THE COMMISSION AS TO THE FEASIBILITY OF AUTOMATING ITS SECURITY INVESTIGATIONS INDEX. ROCKWELL WAS EVENTUALLY RETAINED TO PERFORM THE CONTRACT, FOR WHICH IT RECEIVED PAYMENTS OF $76,033. IN ACCORDANCE WITH THE FORMAL DELEGATION BY MR. HAMPTON OF CONTRACTING AUTHORITY, AND INTERNAL COMMISSION PROCEDURES, MR. HAMPTON WAS NOT REQUIRED TO BE ADVISED OF THE DECISION TO MAKE THIS PROCUREMENT OR OF THE AWARD OF THE CONTRACT.

UNDER THE EXECUTIVE ORDER AND REGULATIONS CITED, SUPRA, IT IS IMPROPER FOR AN OFFICER OR EMPLOYEE TO ACCEPT ANYTHING OF MONETARY VALUE FROM A PERSON WHO HAS OR IS SEEKING TO OBTAIN CONTRACTUAL OR OTHER BUSINESS OR FINANCIAL RELATIONS WITH THE COMMISSION. CLEARLY, MR. HAMPTON DID ACCEPT SOMETHING OF MONETARY VALUE FROM ROCKWELL, A CONTRACTOR WHICH THEN HAD BUSINESS RELATIONS WITH THE COMMISSION, ALTHOUGH IT SEEMS EQUALLY CLEAR THAT HE DID NOT KNOW, AT THE TIME, THAT ROCKWELL WAS A PARTY TO A CONTRACT WITH THE COMMISSION.

THE COMMISSION REGULATION AND THE EXECUTIVE ORDER ARE SILENT AS TO WHETHER AN EMPLOYEE OR OFFICER IS GUILTY OF A VIOLATION OF SECTION 1001.735-202 OF THE REGULATION OR SECTION 201 E0.11222 OF THE ORDER IF, WHEN ACCEPTING A GRATUITY OR GIFT, HE DID NOT KNOW, AND HAD NO REASON TO KNOW, OF THE RELATIONSHIP OR POSSIBLE RELATIONSHIP BETWEEN HIS AGENCY AND THE COMPANY. IF MR. HAMPTON DID NOT KNOW OF THE COMMISSION'S CONTRACT WITH ROCKWELL, IT SEEMS TO US THAT IT IS NOT NECESSARILY REQUIRED BY THE REGULATION TO CONCLUDE THAT HE NEVERTHELESS VIOLATED THE REGULATION BY ACCEPTING SOMETHING OF MONETARY VALUE FROM ROCKWELL, UNLESS IT CAN ALSO BE SAID THAT HE WAS UNDER A DUTY, BEFORE ACCEPTING ANYTHING, TO INQUIRE WHETHER ROCKWELL DID IN FACT HAVE A CONTRACT WITH HIS AGENCY. AGAIN, THE COMMISSION'S REGULATION AND THE EXECUTIVE ORDER ARE SILENT ON THIS POINT.

MR. HAMPTON HAS STRESSED IN HIS REPLY TO OUR INQUIRY CONCERNING THIS MATTER, THAT HIS INVITATIONS TO THE LODGE WERE ON THE BASIS OF PERSONAL FRIENDSHIPS WITH NORTH AMERICAN OR ROCKWELL EMPLOYEES. IT MIGHT BE ARGUED THAT HIS VISITS WOULD THEREFORE COME WITHIN THE EXCEPTION TO THE COMMISSION REGULATION, ALLOWING GIFTS TO AN EMPLOYEE BASED ON PERSONAL RELATIONSHIPS WITH PERSONS DOING BUSINESS WITH HIS AGENCY WHEN IT IS CLEAR THAT THE PERSONAL RELATIONSHIP, RATHER THAN THE BUSINESS RELATIONSHIP, IS THE MOTIVATING FACTOR. 5 C.F.R. SEC. 1001.735-202(B)(1). HOWEVER, IT WAS APPARENTLY THE CORPORATION, RATHER THAN MR. HAMPTON'S FRIENDS, WHICH PAID FOR HIS VISITS TO THE LODGE.

ALTHOUGH IT WOULD BE POSSIBLE TO CONCLUDE THAT THERE WAS A VIOLATION OF THE LETTER OF THE PROSCRIPTION IN THE EXECUTIVE ORDER AND REGULATIONS AGAINST ACCEPTING SOMETHING OF MONETARY VALUE FROM A COMPANY DOING BUSINESS WITH THE COMMISSION, IT WOULD BE EQUALLY POSSIBLE TO CONCLUDE THAT THERE WAS NO VIOLATION OF ITS SPIRIT, IF THE REGULATIONS ARE INTERPRETED TO BE INAPPLICABLE IN CASES WHEN THE GOVERNMENT EMPLOYEE WAS UNAWARE OF THE BUSINESS RELATIONSHIP BETWEEN HIS HOST AND HIS AGENCY AND IF IT IS FURTHER DETERMINED THAT THE EMPLOYEE HAD NO DUTY TO INQUIRE ABOUT SUCH A RELATIONSHIP IN THE PARTICULAR CASE. WHETHER THE REGULATIONS CAN BE INTERPRETED IN THIS WAY IS, OF COURSE, A MATTER FOR THE COMMISSION TO DETERMINE.

MR. HAMPTON HAS STATED PUBLICLY ON SEVERAL OCCASIONS THAT IN RETROSPECT HIS ACTIONS MAY HAVE BEEN MISCONSTRUED AND IT IS UNLIKELY THAT THEY WILL OCCUR AGAIN.