April 26, 1999
                                   DO-99-018


MEMORANDUM

TO:       Designated Agency Ethics Officials

FROM:     Stephen D. Potts
          Director

SUBJECT:  Recusal Obligation and Screening Arrangements


This memorandum reviews the obligation of executive branch employees
to refrain from participation in an official capacity in certain
matters. It also provides some practical tips on advising employees
about their recusals and the screening arrangements that may be used
to help ensure that a commitment to recuse is carried out effectively.

As a legal term, "recuse" originally had application in the context of
judges who were disqualified from acting in a particular case because
of interest or prejudice.(1) In recent years, the term "recuse" has
gained currency outside of the judiciary and has been used in
connection with the prohibition on participation by executive branch
employees in an official capacity in certain matters covered either by
the criminal conflict of interest statute or by the administrative
impartiality standard. The term is often used loosely and given a
variety of meanings including the intention, commitment, decision,
agreement, notice, or announcement that an employee will not
participate in a certain Governmental matter. The term "recusal" has
been used to mean the act of not participating in a matter as well as
the written documentation of one's intent not to act.
As used in this memorandum, "recuse" means to refrain from
participation in an official act. As used here, the term "recuse" does
not mean that an employee is disqualified in the sense that the
employee is incapacitated or deprived of the power or authority to
take a particular action. What is required is that an employee avoid
any official involvement in a covered matter.(2) 

RECUSAL

Under 18 U.S.C. § 208, an employee is prohibited from participating
personally and substantially in any particular matter that would have
a direct and predictable effect upon an employee's own financial
interest or upon the financial interests of other persons or
organizations specifically designated in the statute. Adherence to the
statute is accomplished by not participating in the particular matter.

Under 5 C.F.R. § 2635.502, an employee is required to consider whether
the employee's impartiality would reasonably be questioned if the
employee were to participate in a particular matter involving specific
parties where persons with certain personal or business relationships
with the employee are involved. If the employee determines that a
reasonable person would question the employee's impartiality, or if
the agency determines that there is an appearance concern, then the
employee should not participate in the matter unless he or she has
informed the agency designee of the appearance question and received
authorization from the agency. Otherwise an employee "shall not
participate" in the matter as provided under 5 C.F.R. § 2635.502(e).
Adherence to the regulation is accomplished by not participating in
the particular matter involving specific parties.

Employees should utilize the section 502 process whenever they are
concerned that circumstances not specifically described in section 502
would raise a question regarding their impartiality, as provided for
in 5 C.F.R. § 2635.502(a)(2). For example, if an employee believes
that a personal friendship, or a professional, social, political or
other association not specifically treated as a covered relationship,
may raise an appearance question, then the employee should use the
section 502 process to resolve the question. If the employee does use
this process and does make a commitment to recuse, then that
commitment is binding and must be observed. Although using the
procedures provided for in 5 C.F.R. § 2635.502 is encouraged and
recusal may be appropriate in certain situations not expressly
identified in the regulation, employees should keep in mind that they
have a responsibility to act on matters that are within the scope of
their duties whenever they are not disqualified by conflicts or
appearance concerns.

NOTIFICATION AND DOCUMENTATION 

An employee who is prohibited from participating in a particular
matter under 18 U.S.C. § 208, or who chooses or is directed not to
participate in a particular matter involving specific parties under 5
C.F.R. § 2635.502, generally is not required to provide notice of the
intention not to participate. Nevertheless, an employee who becomes
aware of the need to recuse under either the conflicts statute or the
appearance standard should notify the person responsible for the
assignment so that the matter can be reassigned or the employee can be
assigned elsewhere. The employee should provide appropriate oral or
written notification to a supervisor or other appropriate official or
to colleagues so that they will be aware of the matters from which he
or she intends to recuse and possibly be of some assistance in
screening the employee from those matters. See 5 C.F.R. §§
2635.402(c)(1) and 2635.502(e)(1). If the employee is responsible for
his or her own assignment, the employee should take the steps
necessary to ensure that he or she does not participate in the matter. 

In some cases, an employee may be required to document a commitment to
recuse. A commitment to recuse that is within the scope of the ethics
agreement provisions of 5 C.F.R. §§ 2634.801-805 must be documented as
provided under those regulations. In addition, an employee may be
required by an agency ethics official or a supervisor to document a
commitment to recuse. See 5 C.F.R. §§ 2635.402(c)(2) and
2635.502(e)(2). Of course, an employee may elect to document a
commitment to recuse by providing written notice to a supervisor or
other appropriate official. Documentation, whether or not required,
provides greater protection both for the individual employee and the
agency with regard to the scope and terms of the commitment to recuse. 

IMPLEMENTATION 

The obligation to recuse when necessary, and to ensure that such a
recusal is observed, always remains the personal responsibility of the
individual employee. Ethics officials, however, can and do provide
useful advice to employees as to the nature of their obligation and as
to the means of achieving effective implementation through
arrangements to prevent covered matters from coming before an
employee. Such arrangements are sometimes referred to as "screening
arrangements."

Advice

A good implementation process within an agency begins with accurate
and adequate advice to an employee regarding the scope of an
employee's obligation to recuse. The following are some practical tips
to consider whenever providing advice to employees in connection with
their commitments to recuse. 

Employees should understand the kinds of matters in which they must
not participate and those in which they should consider not
participating. Employees often may not appreciate the meaning of
technical terms such as "particular matter" or "particular matter
involving specific parties" or the differences between the
requirements of section 208 and section 502. It is useful to provide
relevant examples that will illustrate the kinds of matters that would
be covered.

Employees should understand when they must stay out of a particular
matter. Involvement in preliminary discussions, in interim
evaluations, in review or approval at intermediate levels, or in
supervision of subordinates working on a matter may be personal and
substantial participation requiring recusal. Employees should
understand that many other degrees of participation short of primary
responsibility or final approval could require recusal. 

Employees should be aware that not only their own interests but also
those of certain other persons must be kept in mind when considering
whether recusal is required. It is especially important that employees
be aware of the interests of others that will disqualify them by
statute from acting, as well as the business and personal
relationships that are covered by the impartiality standard. 

Employees should understand that they are always personally
responsible to ensure that a commitment or a requirement to recuse is
fulfilled. That responsibility does not shift to some other person who
may be involved in the process such as a staff member or special
assistant, an ethics official who provides advice, or an individual
who screens matters from the employee. 

Employees who reduce to writing an intent to recuse and list specific
interests that will trigger recusal should understand the continuing
need to update that document whenever relevant changes occur such as a
change in the conflicting interest, a change in duties or work
assignments, a promotion or other change in position. Changes such as
acquisition of a new asset or changes relating to a spouse's
employment may also affect a recusal. For example, if a spouse has
clients who have matters that may come before the employee and those
clients are identified in a written recusal document, that list should
be regularly updated. In some situations, changes may be so
significant that a commitment to recuse is no longer a viable remedy.
For example, a corporation in which an employee owns stock may
increase its activity with the Government to such an extent as to
require frequent abstention from matters critical to the performance
of the employee's duties. Some other remedial action may then be
necessary to deal with the potential conflict.

Employees should understand the continuing need to be alert to
situations in which recusal may be necessary. Employees should not
have the impression that recusal is accomplished simply because the
necessary paperwork or documentation has been completed. This is
particularly true where an agency as a matter of policy requires
employees to document a general recusal in writing or an ethics
agreement is required. Because these general recusals typically state
that an employee will refrain from acting on any particular matter
that might affect a present or future financial interest without
identifying specific interests, they may not sufficiently alert the
employee of the need to recuse in the future.

Employees should be aware that the agency ethics official is available
to provide advice whenever a question regarding recusal arises.
Recusal questions often occur in connection with the filing of
financial disclosure reports but may arise at any time.

Screening Arrangements

Ethics officials can provide practical suggestions to employees
regarding screening arrangements to ensure that their commitments to
recuse are fulfilled. The type of arrangement that is appropriate in
any particular situation will differ depending upon a number of
factors including the kind and number of matters that will come before
the employee, the level of the employee's position, the nature of the
employee's responsibilities, whether or not the employee is
responsible for his or her own assignments, the size and
organizational structure of the employee's office and the process for
controlling the flow of information, work assignments and contacts
from outside persons. Ethics officials may wish to raise the following
points with employees in connection with any discussion of screening
arrangements. 

Recusal will mean that someone else must act in the employee's stead
concerning any matters that could affect the disqualifying interest.
Employees should understand the need to delegate authority, or where
necessary request a superior to delegate authority, when that is
required, to a person or persons who will work on matters that could
affect interests specified in the recusal. Or the matter simply may be
reassigned. If a matter is delegated to a subordinate, a substitute
official superior for that matter needs to be identified for that
subordinate as well as the superior. 

Employees should understand the advantages of identifying an
appropriate person or persons who can help with a screening
arrangement. That person or those persons should be aware of the
disqualifying interest. It is not necessary that the person or persons
who handle the screening arrangement be ethics officials.
For example, if an employee receives most written materials through or
from one person and most requests for meetings through or from another
person, both these persons can be helpful in screening.

Employees should know who should be told about the recusal including
immediate superiors and subordinates. In some cases, it may be
appropriate for an employee to notify the entire staff of an office.

Employees should be aware of some practical ways to set up screening
arrangements. Notification may be accomplished by one or more of a
number of ways including: E-mail to immediate superiors and
subordinates, oral briefings, and memoranda. Paperwork flow may need
to be restructured to help ensure effective screening. 
Employees should be aware of some practical ways of dealing with
situations where a matter or a contact inadvertently slips through the
screening process. It may be appropriate, for example, to document
that an inadvertent contact has occurred.

Attached to this memorandum is a model memorandum that may be used to
provide written notification of a recusal and describe the steps that
will be taken to implement it. This model memorandum is a refinement
of the model recusal memorandum published in section 14.5 of the SF
278 reviewer's manual, Public Financial Disclosure: A Reviewer's
Reference at page 14-9. This model form is intended as a guide; it may
need to be modified to meet the needs of a specific situation.

_____________________________________

1. Webster's Third New International Dictionary, for example, states
that recuse means "to disqualify (oneself) as a judge in a particular
case" and defines "disqualify" as "to deprive of power, right or
privilege." Black's Law Dictionary, which does not contain an entry
for "recuse," defines "disqualify" as "To divest or deprive of
qualifications; to incapacitate; to render ineligible or unfit; as, in
speaking of the 'disqualification' of a judge by reason of his
interest in the case . . . ." The Oxford English Dictionary defines
"recuse" as "[to] object to (a judge) as prejudiced" and "to refuse to
do something." 

2. For those of you who counsel employees who may not fully appreciate
the meaning of the term "recuse," here is something you could share
with them. An employee should refrain, abstain, refuse, relinquish,
forbear, forgo, hold off, keep away, give up, decline, desist,
discontinue, end, cancel, close, quit, terminate, stop, halt, cease,
drop it, stay away, shun, avoid, participation in the matter before
him or her. In other words, just don't do it.



Attachment





MEMORANDUM

TO: [Immediate Supervisor]

FROM: [Employee name and title of position]

SUBJECT: Notification of Commitment to Recuse

This memorandum is to provide you with written notification of my
commitment to refrain from participation in certain matters in which I
have a financial interest or a personal or business relationship and
to describe the steps that I am taking to implement this commitment to
recuse. 

RECUSAL UNDER 18 U.S.C. § 208

This recusal arises because [I own stock, own property, expect a
payment, am an officer, am negotiating for employment, etc.] in, of or
with [identify by name the asset or other interest that gives rise to
the disqualifying financial interest, for example, 500 shares of XYZ
Company stock or the ABC Foundation].

Under 18 U.S.C. § 208, I am prohibited from participating personally
and substantially in any particular matter that would have a direct
and predictable effect on my own financial interests or those of
certain other persons or organizations identified in section 208. In
my position of [identify position] in the [identify name of office] of
the [identify name of agency], I may be called upon to participate in
certain particular matters that could affect [identify the
disqualifying financial interest]. These matters may include the
following: [provide a description of the particular matter or
matters.] Until further notice, I will not participate officially in
such matters. 

In order to help ensure that I do not participate officially in these
matters, I have taken or will take the following steps: (1)
[delegation to subordinate language]. I have instructed [name and
position] to handle any particular matter that could come before me
that would affect [the name or description of the interest or entity
causing the disqualification] and have arranged for [name of alternate
supervisor] to serve as his or her supervisor for this matter; (2) I
have provided [name of person who will act] and [names of any other
persons that are to help with a screening arrangement] with a copy of
this memorandum [unless there is an objection to disclosure of the
information] and have asked [him/her/them] to [retain] [or refer to
name of substitute actor] any matters which [he/she/they] believe are
covered by my commitment to recuse; and (3) I have advised my
immediate subordinates [and the name of any other group that typically
sends the employee work directly] of this recusal. If you would prefer
to act in these matters yourself or to select someone other than an
individual under my general supervision to act in my stead, please 
notify me of your determination so that I might provide the
appropriate information to my subordinates [and colleagues, if
appropriate].

In order to ensure that this commitment to recuse continues to be
effective, I will take the following steps in the future: (1) I will
revise and update this memorandum whenever that is warranted by
changes in my financial interests or the nature of my duties, or other
changed circumstances, and provide you, the person exercising my
authority and [any screening individuals] with a copy; and (2) I will
advise my immediate subordinates and colleagues of any such changes.

RECUSAL UNDER 5 C.F.R. § 2635.502.

I also have the following covered relationship [or financial interest
of a member of my household]. [Give a full description of the covered
relationship or financial interest].

Under 5 C.F.R. § 2635.502(e), unless I am specifically authorized to
do so by the agency designee, I must not participate in any particular
matter involving specific parties where I or the agency designee have
concluded that the financial interest of a member of my household, or
the role of a person with whom I have a covered relationship, is
likely to raise a question in the mind of a reasonable person about my
impartiality. In my position of [identify position] in the [identify
name of office] of the [identify name of agency], I may be called upon
to participate in certain particular matters involving specific
parties that could affect [identify the covered relationship or
financial interest]. These matters may include the following:
[identify relevant specific party matters]. I have consulted with the
agency designee and have been advised that I should not participate in
specific party matters affecting [the covered relationship or
financial interest]. Until further notice [or "for a period of one
year" in the case of certain terminated relationships], I will not
participate officially in such matters, unless authorized by the
agency designee. 

In order to help ensure that I do not participate officially in these
matters, I have taken or will take the following steps: (1)
[delegation to subordinate language]. I have instructed [name and
position] to handle any particular matter involving specific parties
that could come before me that would affect or involve as a party [the
name or description of the interest or entity causing the
disqualification] and have arranged for [name of alternate supervisor]
to serve as his or her supervisor for this matter; (2) I have provided
[name of person who will act] and [names of any other persons that are
to help with a screening arrangement] with a copy of this memorandum
[unless there is an objection to disclosure of the information] and
have asked [him/her/them] to keep [or refer to] [name of substitute
actor] any matters which [he/she/they] believe are covered by my
commitment to recuse; and (3) I have advised my immediate subordinates
[and the name of any other group that typically sends the employee
work directly] of this recusal. If you would prefer to act in these
matters yourself or to select someone other than an individual under
my general supervision to act in my stead, please notify me of your
determination so that I might provide the appropriate information to
my subordinates [and colleagues, if appropriate].

In order to ensure that this disqualification continues to be
effective, I will take the following steps in the future: (1) I will
revise and update this memorandum whenever that is warranted by
changes in my covered relationships, the financial interests of a
member of my household, the nature of my duties, or other changed
circumstances, and provide you, the person exercising my authority
[and any screening individuals] with a copy; and (2) I will advise my
immediate subordinates and colleagues of any such changes.

cc: [Agency ethics official (where appropriate), person exercising
delegated authority, and any screening individuals]