4/2/87
OPR: Admin/Personnel
1. Policy. The USGS is an impartial fact-finding and research agency. The USGS is not a proponent of any special cause or interest, and it does not encroach on the field of the private consultant. To carry out its mission, it is essential that the USGS maintain a policy of strict impartiality among private litigants and ensure that employees of the USGS fulfill the responsibilities for which they are entrusted. Therefore, it is the policy of the USGS that its employees will not give testimony, depositions, interpret records, or appear as witnesses in a court of law, before a hearing officer, before an administrative board or commission, or other body that conducts legal proceedings, concerning matters related to the business of the Government without the permission of the head of the bureau, or his/her designee, or of the Secretary of the Interior, or his/her designee (Exhibit 1). A request for an employee to appear at a hearing or administrative proceeding pertaining to internal personnel matters such as equal employment opportunity complaints, grievances, appeals, or labor relations arbitrations is not subject to the provisions of this Survey Manual chapter.
2. Legal Authority. The authority for all legal matters in the Department of the Interior is vested in the Solicitor (210 DM 2), including the authority to approve requests for employees to testify or to give depositions. This authority to approve requests to testify or release records has been delegated to the Division Chiefs and to the Regional Management Officers (SM 205.9). The regulations regarding these procedures are contained in 43 CFR Part 2.
3. Definitions.
A. Witness. A person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit.
B. Expert Witness. Any individual who, by virtue of peculiar skills, abilities, or knowledge in some particular field, is requested to be a witness or give testimony during legal proceedings for the purpose of lending credibility to a case by giving opinionated evidence.
C. Judicial Proceedings. A general term for proceedings relating to, practiced in, or proceeding from, a court of justice; or the cause prescribed to be taken in various cases for the determination of a controversy or for legal redress or relief.
D. Record Interpreter. An individual who, by virtue of familiarity or knowledge, is requested to expound upon the meaning of written documents during judicial proceedings.
E. Consultant. An individual, firm, corporation, company, etc., not officially employed by the Government, who, in a private capacity, provides advice, goods and/or services to the Government under conditions agreed to by contract.
4. Request for Information. When an employee is asked for information or material which is not already printed or duplicated for sale or for free distribution, the procedures in SM 318.1 and 43 CFR Part 2 will be followed.
5. Responsibilities.
A. Employees.
(1) When an employee receives a request to attend a judicial or administrative proceeding, to give testimony, or to appear as a witness, the employee is responsible for:
(a) Obtaining specific information about the evidence required, and if appropriate suggesting the use of certified copies of records from published or open file reports;
(b) Notifying supervisors and seeking their advice and assistance;
(c) Requesting in writing permission to appear at the proceedings from:
(i) The appropriate Division Chief, if at headquarters, or
(ii) The Regional Management Officer, if in the field.
NOTE: If there is not enough time to obtain written approval, the employee should make a request by telephone, with confirmation in writing.
(2) When an employee is required to appear or to produce a record at a proceeding by compulsory process (subpoena), the employee will:
(a) Follow the same procedures as noted under A(1) and its subparts above;
(b) If the employee is required to testify before permission has been granted, or if permission has been denied, the employee should appear and respectfully decline to testify or to produce a record on the grounds that disclosure is prohibited by 43 CFR 2.80(a), until specific instructions are received from the Secretary of the Interior, or a designee;
(3) The employee may request legal guidance from the appropriate field office of the Solicitor if not already requested by the Division Chief, or Regional Management Officer. In any case, only the information requested that has been approved for release will be furnished. The employee will be strictly impartial with respect to the interest of any parties involved.
B. The Division Chief or Regional Management Officer receiving the employee's written request will be responsible for:
(1) Determining whether permission to testify or produce a record should be granted, using as a criterion the Government's role in the judicial proceedings (43 CFR Part 2);
(2) Notifying the closest field office of the Solicitor and asking for a final determination if it is believed that permission should be withheld; and advising the employee of the denial and the procedures to be followed (43 CFR 2.82); and
(3) Sending written authorization to the employee, if the request is approved, and, if deemed necessary, requesting the appropriate field office of the Solicitor to provide legal guidance and assistance.
(4) Forwarding a copy of the employee's written request and a copy of the Division's written authorization to the Branch of Personnel.
C. Branch of Personnel. The Branch of Personnel is responsible for monitoring court testimony for the Geological Survey in conjunction with its conflict of interest function.
6. Format for Request and for Approval. There is no prescribed format for letters requesting permission to testify or produce records, or for letters of approval or denial. There are too many differences among cases to set a standard. However, certain significant details should not be overlooked and should be included in every letter.
A. A Request for Permission to Testify addressed to the appropriate Division Chief, or Regional Management Officer should at a minimum state: the kind of proceeding; the name and address of litigant requesting information; name and address of attorney, if any; information or material requested; name, title, and address of employee; the date of subpoena or request; the projected date of proceeding; evidence of any discussion with and concurrence of employee's supervisors on these matters; and employee's opinion about any possible difficulties connected with the request.
B. A Letter of Approval addressed to the employee in addition to the statement of approval should: give the name and address of the field Solicitor who is to offer advice and assistance, if necessary, and note if that advice has already been requested; set the limits of testimony to be given or records produced, if appropriate; advise the employee of rights to leave, expenses, and fees during the period of proceeding; and state if the employee should seek fees and allowances from the court or litigant. The letter should also provide information as to what role the employee should assume (e.g., consultant, expert witness, record interpreter) as determined by the appropriate Solicitor's Office.
C. Letters to Attorneys or Litigants in response to requests or subpoenas advising that the employee will be present should state: any limitations on the role of the employee; restrictions on information or material provided; and any conditions regarding fees and allowances for travel and subsistence.
7. Official Personnel Folders. The authority to release official personnel folders on receipt of a subpoena has been delegated to the personnel officer who has custody of the folder (SM 205.9.2). The personnel officer will review folder contents, determine whether presentation in court is suitable without further clearance, and remove any documents restricted against release. The procedures in 43 CFR 2 (Exhibit 1) will be followed. The personnel officer will retain custody of the folder, be prepared to explain the lack of authority to disclose any documents removed, and request permission of the counsel or court to furnish certified copies of material to be included in the court record. The personnel officer's authority to disclose information is restricted by other agencies in the following instances:
A. Office of Personnel Management.
(1) Upon receipt of a subpoena, all medical information in the recipient's possession may be released in accordance with the terms of the subpoena. However, original medical records should be retained in the custody of the Federal employee responding to a subpoena to testify in court or subpoena for deposition. If any document is requested for inclusion in the court record or for attachment to the deposition, permission will be requested to substitute a copy so that the original record may remain intact in the personnel file. When the medical record indicates a condition of such nature that a prudent physician would hesitate to inform the afflicted person of its exact nature and probable outcome, it is to be submitted to the court for private review by the judge.
(2) Any personnel folder containing sensitive facts and/or circumstances must be forwarded to the Office of the General Counsel, Office of Personnel Management, Washington, D.C. 20415, with the subpoena. The person who applied for the subpoena will be so informed and, if necessary, requested to postpone the scheduled appearance.
(3) Any personnel folder containing forms or records relating to loyalty or security matters, or information which was obtained under a pledge of confidence, should be forwarded to the Office of the General Counsel, Office of Personnel Management, Washington, D.C. 20415, with the subpoena. National Agency Check and Written Inquiries (NACI) investigative reports, which are kept separate from the official personnel folders, are also to be forwarded to the General Counsel if an investigative report is specified in the subpoena to produce documentation for review by the court.
(4) If the subpoena is for deposition, the personnel officer should remove any restricted documents from the file and leave them in the personnel office. This is necessary because the deposition is not before a judge who can consider a plea for non-disclosure, and no Assistant United States Attorney is present to assist in withholding material. If asked whether the entire file has been produced, the personnel officer should explain for the record why documents have been omitted, and may give a general description of them. If the attorney issuing the subpoena decides the withheld documents should be produced, he/she must take the matter to court where the Government can defend the withholding.
B. Office of Workers' Compensation Programs (OWCP). All records in an employee injury case, such as Forms CA-1 and CA-2, belong to the OWCP, and it is necessary to obtain written clearance from OWCP before presentation of these records in court. The presentation of these records is governed by regulations in 20 CFR 501.2.13. The required forms and the subpoena should be referred to the Office of the Solicitor, U.S. Department of Labor, Washington, D.C. 20210, for clearance.
C. Department of the Interior. In instances where the Department may be directly concerned, the personnel folder and the subpoena must be forwarded through the Branch of Personnel, USGS, to the Department for clearance.
If any of these restrictive situations appear to be present, the personnel officer must respectfully decline in court to present evidence until clearance for the release of the information sought is obtained. The personnel officer should also identify the office to which the request for clearance has been addressed.
8. Official Leave and Payroll Records are in the custody of the Chief, Branch of Financial Management. The procedures in 43 CFR 2 (Exhibit 1) are to be followed if a subpoena is issued to release these records.
9. Leave, Fees, and Travel Expenses for Witness Service. See SM 370.630.10.2.