Is the vice-president an employee for the purpose of 5 CFR §2635.502?

Question

It's been suggested on politcs.SE (but the question was closed as off-topic there) that a US vice-president needs to comply with 5 CFR §2635.502 which sets stricter standards for conflicts of interest than 18 USC § 209. In the regulations the mere appearance of conflict of interest is ground for recusal ("the employee should not participate in the matter"), but allows an "agency designee" to waive this.

My impression is that 2635.502 doesn't apply to a US vice-president because he is not an employee but an officer whereas 18 USC § 209 clearly applies to both officers and employees (both categories are mentioned in the latter, only employees in the former). As for why there would be such a discrepancy, i.e. a lower conflict-of-interest standard for the officers, there's parallel with the recusal of supreme justices, who aren't held to the higher recusal standard of 28 USC 455 presumably because the supreme justices are aren't as easily replaceable [on a case] as lower-level federal judges.

Is this reasoning correct, basically, i.e. does 5 CFR §2635.502 not apply to a US vice-president?

Answer 1

5 CFR 2635.102 provides definitions for 5 CFR Part 2635 (which contains 5 CFR 2635.502).

(h) Employee means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. It includes employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. For purposes other than subparts B and C of this part, it does not include the President or Vice President. Status as an employee is unaffected by pay or leave status or, in the case of a special Government employee, by the fact that the individual does not perform official duties on a given day.

Subparts B & C pertain to gifts and range from §2635.201-304, whereas the section you are asking about is in Subpart E. So §2635.502 expressly does not apply to the VP.

The "why" part is more challenging. The statutory authority invoked for these regulations is 5 USC 7301, 7351, 7353, 5 USC App, acts passed by Congress. The rule-making rationale is in 57 FR 35042, which does not overtly invoke any specific statutory authority for this specific item. In contrast, Subpart B is the implementation of 5 USC §7353, which governs gifts to federal employees, and (d)(2) of that section says

the term "officer or employee" means an individual holding an appointive or elective position in the executive, legislative, or judicial branch of Government, other than a Member of Congress.

In other words, the mixed definition of "employee" (the VP is an employee only for subparts B, C) under the regulations is because Congress passed some laws that included the VP, but did not pass a law that required non-appearance of conflict. Such a regulation would be within the authority given the president in 5 USC 7301, which simply says that "The President may prescribe regulations for the conduct of employees in the executive branch". Since there is no Congressional authority to subject the VP to 5 CFR 2635.502, it is written to exclude that person (also the president).