ALABAMA SURFACE MINING COMMISSION ADMINISTRATIVE CODE

CHAPTER 880-X-2C GENERAL RESTRICTION ON FINANCIAL INTERESTS OF STATE EMPLOYEES

TABLE OF CONTENTS

880-X-2C-.01 Purpose

880-X-2C-.02 Objectives

880-X-2C-.03 Responsibility

880-X-2C-.04 Definitions

880-X-2C-.05 Penalties

880-X-2C-.06 Who Shall File

880-X-2C-.07 When To File

880-X-2C-.08 Where To File

880-X-2C-.09 What To Report

880-X-2C-.10 Gifts And Gratuities

880-X-2C-.11 Resolving Prohibited Interests

880-X-2C-.12 Appeals Procedures

880-X-2C-.01 Purpose. This Rule sets forth the policy and procedures to be followed by State employees to satisfy the requirements of Section 7 of the Act. Section 7 prohibits those State employees identified in Rule 880-X-2C-.06 from having any direct or indirect interest in underground or surface coal mining operations.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.02 Objectives. To establish methods which will ensure, as required by Section 7 of Act 81-435, that each employee of the State Regulatory Authority who performs any function or duty under the Act does not have a direct or indirect financial interest in any underground or surface coal mining operation.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.03 Responsibility.

(1) The Director of the State Regulatory Authority or his or her authorized designee shall --

(a) Provide advice, assistance, and guidance to all State employees required to file statements pursuant to Rule 880-X-2C-.06;

(b) Promptly review the statement of employment and financial interests and supplements, if any, filed by each employee, to determine if the employee has correctly identified those listed employment and financial interests which constitute a direct or indirect financial interest in an underground or surface coal mining operation;

(c) Resolve prohibited financial interest situations by ordering or initiating remedial action; or by reporting the violations to the Director of the Office of Surface Mining;

(d) Certify on each statement that review has been made, that prohibited financial interests, if any, have been resolved, and that no other prohibited interests have been identified from the statement;

(e) Submit to the Director of the Office of Surface Mining such statistics and information as he or she may request to enable preparation of the required annual report to Congress;

(f) Submit to the Director of the Office of Surface Mining the initial listing of positions as required by Rule 880-X-2C-.06(2), (3), and (4);

(g) Furnish a blank statement 45 days in advance of the filing date established by Rule 880-X-2C-.07(1) to each State employee required to file a statement; and

(h) Inform annually each State employee required to file a statement with the State Regulatory Authority, of the name, address, and telephone number of the person whom they may contact for advice and counseling.

(2) State Regulatory Authority employees performing any duties or functions under the Act shall --

(a) Have no direct or indirect financial interest in coal mining operations;

(b) File & fully completed statement of employment and financial interest upon entrance to duty, and annually thereafter on the specified filing date; and

(c) Comply with directives issued by persons responsible for approving each statement and comply with directives issued by those persons responsible for ordering remedial action.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.04 Definitions. See Rule 88O-X-2A-.06 for a complete listing of definitions.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71,72, 73, 74, 75, 76, 80.

History:

880-X-2C-.05 Penalties.

(1) Criminal penalties are imposed by Section 7 of the Act. Section 7 prohibits each employee of the State Regulatory Authority who performs any function or duty under the Act from having a direct or indirect financial interest in any underground or surface coal mining operation. The Act provides that whoever knowingly violates the provisions of Section 7 shall upon conviction, be punished by a fine of not more than $2,500, or by imprisonment of not more than one year, or by both.

(2) The provisions in Section 7 of the Act make compliance with the financial interest requirements a condition of employment for employees of the State Regulatory Authority who perform any functions or duties under the Act. Accordingly, an employee who fails to file the required statement will be considered in violation of the intended employment provisions of Section 7 and will be subject to removal from his or her position.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.06 Who Shall File.

(1) Any employee who performs any function or duty under the Act is required to file a statement of employment and financial interests. An employee who occupies a position which has been determined by the Director of the State Regulatory Authority or his or her authorized designee not to involve performance of any function or duty under the Act or who is no longer employed by the State Regulatory Authority at the time a filing is due, is not required to file a statement.

(2) The Director of the State Regulatory Authority or his or her authorized designee shall prepare a list of those positions within the State Regulatory Authority that do not involve performance of any functions or duties under the Act.

(3) The Director of each State Regulatory Authority shall prepare and submit to the Director of the Office of Surface Mining, an initial listing of positions that do not involve performance of any functions or duties under the Act within 60 days of the effective date of these regulations.

(4) The Director of the State Regulatory Authority or his or her authorized designee shall annually review and update the listing of positions not involving the performance of any functions or duties under the Act. For monitoring and reporting reasons, the listing must contain a written justification for inclusion of the positions listed. The Director of the State Regulatory Authority or his or her authorized designee may revise the listing by the addition or deletion of positions at any time such revisions are required to carry out the purpose of the law or the regulations of this Part. Additions to and deletions from the listing of positions are effective upon notification to the incumbents of the positions added or deleted.

(5) The Secretary or the Director of the Office of Surface Mining may modify the listing at any time one or both of them determine that the listing submitted by the Director of the State Regulatory Authority indicates that coverage is not sufficient to carry out the purposes of the law or the regulations of this Rule.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.07 When_To_File.

(1) Employees performing functions or duties under the Act shall file annually on February 1 of each year.

(2) New employees hired, appointed, or transferred to perform functions or duties under the Act will be required to file at the time of entrance to duty.

(3) New employees are not required to file an annual statement on the subsequent annual filing date if this date occurs within two months after their initial statement was filed.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.08 Where_To_File. The Director of the State Regulatory Authority shall file his or her statement with the Director of the Office of Surface Mining pursuant to Part 7 0 5 of Chapter VII of the Code of Federal Regulations. All other employees, as provided in Rule 880-X-2C-.06, shall file their statement with the Director of the State Regulatory Authority or his or her authorized designee.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.09 What To Report.

(1) Each employee shall report all information required on the statement of employment and financial interests of the employee, his or her spouse, minor children, or other relatives who are full-time residents of the employee's home. The report shall be on OSM Form 705.1 as provided by the Office of Surface Mining. The statement consists of three major parts:

(a) a listing of all financial interests, including employment, security, real property, creditor and other financial interests held during the course of the preceding year;

(b) a certification that none of the listed financial interests represent a direct or indirect financial interest in an underground or surface coal mining operation except as specifically identified and described by the employee as part of the certificate; and

(c) a certification by the reviewer that the form as reviewed, that prohibited interests have been resolved, and that no other prohibited interests have been identified from the state.

(2) The statement will set forth the following information regarding any financial interest:

(a) Employment. Any continuing financial interests in business entities and nonprofit organizations through a pension or retirement plan, shared income, salary, or other income arrangement as a result of prior or current employment. The employee, his or her spouse or other resident relative is not required to report a retirement plan from which he or she will receive a guaranteed income. A guaranteed income is one which is unlikely to be changed as a result of actions taken by the State Regulatory Authority.

(b) Securities. Any financial interest in business entities, and nonprofit organizations through ownership of stock, stock options, bonds, securities, or other arrangements including trusts. An employee is not required to report holdings in widely diversified mutual funds, investments, clubs or regulated investment companies not specializing in underground and surface coal mining operations.

(c) Real Property. Ownership, lease, royalty or other interests or rights in land or minerals. Employees are not required to report lands developed and occupied for a personal residence.

(d) Creditors. Debts owed to business entities and nonprofit organizations. Employees are not required to report debts owed to financial institutions (banks, savings and loan associations, credit unions, and the like) which are chartered to provide commercial or personal credit. Also excluded are charge accounts and similar short term debts for current and ordinary household and living expenses.

(3)(a) The statement will provide for a signed certification by the employee that to the best of his or her knowledge --

1. none of the listed financial interest represent an interest in in underground or surface coal mining operation except as specifically identified and described as exceptions by the employee as part of the certificate; and

2. the information shown on the statement is true, correct, and complete.

(b) An employee is expected to --

1. have complete knowledge of his or her personal involvement in business enterprises such as a sole proprietorship and partnership, his or her outside employment and the outside employment of the spouse and other covered relatives; and

2. be aware of the information contained in the annual financial statement or other corporate or business reports routinely circulated to investors or routinely made available to the public.

(c) The exceptions shown in the employee certification of the form must provide enough information for the Director of the State Regulatory Authority to determine the existence of a direct or indirect financial interest. Accordingly, the exceptions should --

1. list the financial interests;

2. show the number of shares, estimated value or annual income of the financial interests; and

3. include any other information which the employee believes should be considered in determining whether or not the interest represents a prohibited interest.

(d) Employees are cautioned to give serious consideration to their direct and indirect financial interests before signing the statement of certification. Signing the certification without listing known prohibited financial interests may be cause for imposing the penalties prescribed in Rule 880-X-2C-.05(1).

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.10 Gifts_And_Gratuities.

(1) Except as provided in Paragraph (2) of this Rule, employees shall not solicit or accept, directly or indirectly any gift, gratuity, favor, entertainment, loan or any other thing of monetary value, from a coal company which --

(a) Conducts or is seeking to conduct, operations or activities that are regulated by the State Regulatory Authority; or

(b) Has interests that may be substantially affected by the performance or non-performance of the employee's official duty.

(2) The prohibitions in Paragraph (1) of this Rule do not apply in the context of obvious family or personal relationships, such as those between the parents, children, or spouse of the employee and the employee, when the circumstances make it clear that it is those relationships rather than the business of the person concerned which are the motivating factors. An employee may accept --

(a) Food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting where an employee may properly be in attendance; and

(b) Unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other items of nominal value.

(3) Employees found guilty of violating the provisions of this Rule will be subject to administrative remedies which may include:

(a) Return of the gift or gratuity.

(b) Reassignment.

(c) Suspension or reduction in pay.

(d) Job termination.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.ll Resolving Prohibited Interests.

(1) Actions to be taken by the Director of the State Regulatory Authority or his or her authorized designee are as follows:

(a) If an employee has a prohibited financial interest, the Director of the State Regulatory Authority or his or her designee, shall promptly advise the employee that remedial action which will resolve the prohibited interest is required within 90 days.

(2) Remedial action may include --

(a) Reassignment of the employee to a position which performs no function or duty under the Act;

(b) Divestiture of the prohibited financial interest; or

(c) Other appropriate action which either eliminates the prohibited interest or eliminates the situation which creates the conflict.

(3) Reports of noncompliance. If 90 days after an employee is notified to take remedial action that employee is not in compliance with the requirements of the Act and these regulations, the Director of the State Regulatory Authority or his or her designee shall take appropriate legal action.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History:

880-X-2C-.12 Appeals Procedures. Employees have the right to appeal an order for remedial action under Rule 880-X-2C-.ll and shall have 30 days to exercise this right before disciplinary action is initiated.

(a) Employees other than the Director of the State Regulatory Authority, may file their appeal, in writing, through established procedures within the State Regulatory Authority.

(b) The Director of the State Regulatory Authority, may file his or her appeal, in writing, with the Director of the Office of Surface Mining.

Author:

Statutory Authority: Code of Ala. 1975, 9-16-71, 72, 73, 74, 75, 76, 80.

History: