18 QUESTION NO. 37 In submitting a written request for representation to his or her immediate supervisor, is the federal employee obligated to submit any data other than "all process and pleadings served upon him" and, if so, what must the employee submit? ANSWER The Attorney General's guidelines require that the employee QUESTION NO. 38 In submitting a written request for representation to his or ANSWER The Department of Justice does not require the individual employee to submit initially anything other than that required in the guidelines. The agency in making its recommendation to the Department on whether the employee was acting within the scope of his/her employment may require more specific information. QUESTION NO. 39 Does the Department provide the employing agencies with any guidance on who should be designated as the person to whom the employee should submit a request for representation and, if not, on what basis should such person be designated? ANSWER The Department has not set any requirements on who should be designated at each agency to receive requests for representation for this is a matter best left to the agency. As a general practice, however, the general counsel's office assumes this Must the employing agencies notify the Department of who has been designated? ANSWER No. QUESTION NO. 42 Who has the Department designated as the individual to whom an employee of the Civil, Criminal, Tax, and Lands Division and the F.B.I. should submit a request for representation? ANSWER The Assistant Attorney General of the litigating division having responsibility for the case. Is the employing agency obligated to conduct any inquiry, including an interview with the employee requesting representation, to aid it in determining whether or not the employee was acting within the scope of his or her employment and, if so, what form does such inquiry take? ANSWER The agency is not obligated to undertake any particular specified type of inquiry. Each agency, however, would make such inquiry as would appear to be warranted by the facts and circumstances of a particular case to satisfy itself that representation should be recommended. The Department would then take into consideration the agency's recommendation in reading a final determination on whether the employee was acting within the scope of his employment. QUESTION NO. 44 What legal and factual standard does an employing agency apply in determining whether or not an employee was acting within the scope of his or her employment? ANSWER As a general rule the employing agency would look to the factual circumstances of each particular case as well as the duties and authorities of the employee, the applicable case law, and past practices in similar cases. QUESTION NO. 45 Does the Department take any steps to see that the employing agencies are applying the same legal and factual standard which the Department applies and, if so, describe such steps? No additional steps are generally taken in addition to the normal review procedures which the Department undertakes upon receipt of submissions of the agency and the employee. Any conclusions reached would be the product of the same type of balancing process which the agency would follow. See No. 44. QUESTION NO. 46 Can an employing agency determine that an employee was acting within the scope of his or her employment on the basis of legal defenses other than official immunity, e.g., Erlichman or Barker defense discussed below, and, if so, has the Department informed these agencies that such defenses are adequate grounds for recommending representation? ANSWER The employing agency is free to take onto account available legal defenses as well as considerations noted in the answer to Question 44, supra. QUESTION NO. 47 To what extent may the employing agency rely on the statements of the federal employee in determining whether he or she was acting within the scope of his or her employment? ANSWER The employing agency may rely on the statements of the employee but is not bound by those statements. The agency may conduct a more thorough investigation if it feels that questions are raised which warrant further inquiry. 22 QUESTION NO. 48 Does the Department give employing agencies any guidance on what type of supporting data should be forwarded to the Department to assist the Department in determining whether an employee was acting within the scope of his or her employment and, if so, what should be forwarded? ANSWER On an individual case-by-case basis the Department may rquest that the agency submit specific types of supporting data. QUESTION NO. 49 Are all written materials provided by the employee, including his or her written request for representation, treated as subject to the attorney-client privilege, and if not, explain what is and is not covered? ANSWER Yes. QUESTION NO. 50 Are all oral communications between the employee and his or her immediate supervisor with regard to the request for representation subject to the attorney-client privilege even if the Supervisor is not an attorney and, if not, explain what is and is not covered? ANSWER Yes. |