U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

APPROPRIATE ARRANGEMENTS

APPROPRIATE ARRANGEMENTS . . . CONFLICTS OF INTERESTS

Department of Commerce, Patent and Trademark Office, Arlington, Virginia and Patent Office Professional Association, Case No. 00 FSIP 55, June 12, 2001 (Release No. 440).

The UNION proposed the parties adopt the following language for § F.4., which includes the Factfinder's recommendation:

F.1.: When a potential conflict of interest arises under E(5) above, the following procedure will be used: (i) When an examiner has a compelling pre-existing financial interest that would be adversely affected by an Office-initiated change in work assignment pursuant to E(5) above, management shall not generally make the transfer or the change referred to above, unless there is no other qualified examiner available to do the work. The bargaining unit employee may appeal to the Office for reconsideration of the proposed change. Among other things to be considered are (1) needs of the Office, (2) expertise of the bargaining unit employee, and (c) the degree of adverse financial impact on the bargaining unit employee. Typical examples of compelling financial interest are spousal employment, significant illiquid assets and significant interests in the business of a relative;

(ii) Where an examiner has a significant pre-existing financial interest that would be adversely affected by the Office-initiated change in work assign-ment pursuant to E(5) above, the examiner may appeal to the Office for reconsideration of the proposed change. The appeal will balance the expertise of the examiners involved, management's needs in distributing work assignments and the degree of adverse financial impact on each examiner involved. A written decision will be rendered before the employee will be required to take any action regarding his or her financial interests. A typical example of a significant pre-existing financial interest is an asset that exceeds 30% of the bargaining unit employee's gross annual salary, but, in accordance with the law, any amount exceeding $5,000.00 could be regarded as potentially requiring possible divestiture.

F.2.: (i) In the event that an application is assigned to an examiner that is not typical of those found in the assigned technological area, recusal or waiver, at the sole discretion of management, will be the remedy for any possible conflict of interest based on the examiner's pre-existing financial interests;

(ii) In the event temporary transfers of work create a conflict of interest based on an examiner's pre-existing financial interests, recusal or waiver, at the sole discretion of management, will be the remedy for any possible conflicts of interest based on the examiner's pre-existing financial interests;

(iii) In all other situations, the Office will normally require the examiner to divest the financial interest causing the conflict.

F.3.: For an intractable conflict of interest, such as a vested interest in a company-sponsored retirement plan, recusal or waiver, at the sole discretion of management, will normally be the remedy. An intractable conflict of interest is one wherein the employee cannot divest or hast no control over divesting the asset. Marriage and divorce are not considered to be within one's control for the purpose of this proposal.

F.4.: In the event that a conflict of interest arises due to the current employment of a bargaining-unit employee's spouse or dependent child, recusal, waiver, or transfer, at the sole discretion of management, will normally be the remedy.

The AGENCY proposed that the Panel reject the Union's proposal because it conflicts with the Governmentwide ethics regulations and, if adopted, could be administratively burdensome.

The PANEL ordered the parties to adopt the UNION's proposal.