Section 23 of the Commodity Exchange Act, entitled "Commodity Whistleblower Incentives and Protection," requires the Commission to pay awards, subject to certain limitations and conditions, to whistleblowers who voluntarily provide the Commission with original information about violations of the Commodity Exchange Act. This part 165 describes the whistleblower program that the Commission intends to establish to implement the provisions of Section 23, and explains the procedures the whistleblower will need to follow in order to be eligible for an award. Whistleblowers should read these procedures carefully, because the failure to take certain required steps within the time frames described in this part may result in disqualification from receiving an award. Unless expressly provided for in this part, no person is authorized to make any offer or promise, or otherwise to bind the Commission with respect to the payment of any award or the amount thereof.
(2) For purposes of determining the payment on an award under § 165.14, the Commission will deem as part of the Commission action upon which the award was based any subsequent Commission proceeding that, individually, results in a monetary sanction of $ 1,000,000 or less, and that arises out of the same nucleus of operative facts.
(b) Aggregate amount. The phrase "aggregate amount" means the total amount of an award granted to one or more whistleblowers pursuant to § 165.8.
(c) Analysis. The term "analysis" means the whistleblower’s examination and evaluation of information that may be generally available, but which reveals information that is not generally known or available to the public.
(d) Collected by the Commission. The phrase "collected by the Commission" refers to any funds received, and confirmed by the U.S. Department of the Treasury, in satisfaction of part or all of a civil monetary penalty, disgorgement obligation, or fine owed to the Commission.
(e) Covered judicial or administrative action. The phrase "covered judicial or administrative action" means any judicial or administrative action brought by the Commission under the Commodity Exchange Act whose successful resolution results in monetary sanctions exceeding $ 1,000,000.
(f) Fund. The term "Fund" means the Commodity Futures Trading Commission Customer Protection Fund.
(6) By a means or in a manner that is determined by a United States court to violate applicable Federal or state criminal law.
(iii) At least 120 days have elapsed since the whistleblower provided the information to the relevant entity’s audit committee, chief legal officer, chief compliance officer (or their equivalents), or the whistleblower’s supervisor, or since the whistleblower received the information, if the whistleblower received it under circumstances indicating that the entity’s audit committee, chief legal officer, chief compliance officer (or their equivalents), or the whistleblower’s supervisor was already aware of the information.
(h) Independent analysis. The phrase "independent analysis" means the whistleblower’s own analysis, whether done alone or in combination with others.
(2) The whistleblower gave the Commission original information about conduct that was already under examination or investigation by the Commission, the Congress, any other authority of the federal government, a state Attorney General or securities regulatory authority, any self-regulatory organization, futures association or the Public Company Accounting Oversight Board (except in cases where the whistleblower was an original source of this information as defined in paragraph (i) of this section), and the whistleblower’s submission significantly contributed to the success of the action.
(3) The whistleblower reported original information through an entity’s internal whistleblower, legal, or compliance procedures for reporting allegations of possible violations of law before or at the same time the whistleblower reported them to the Commission; the entity later provided the whistleblower’s information to the Commission, or provided results of an audit or investigation initiated in whole or in part in response to information the whistleblower reported to the entity; and the information the entity provided to the Commission satisfies either paragraph (i)(1) or (i)(2) of this section. Under this paragraph (i)(3), the whistleblower must also submit the same information to the Commission in accordance with the procedures set forth in § 165.3 within 120 days of providing it to the entity.
(2) Any monies deposited into a disgorgement fund or other fund pursuant to section 308(b) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7246(b)) as a result of such action or any settlement of such action.
(4) Is submitted to the Commission for the first time after July 21, 2010 (the date of enactment of the Wall Street Transparency and Accountability Act of 2010).
(5) Original information shall not lose its status as original information solely because the whistleblower submitted such information prior to October 24, 2011, provided such information was submitted after July 21, 2010, the date of enactment of the Wall Street Transparency and Accountability Act of 2010. In order to be eligible for an award, a whistleblower who submits original information to the Commission after July 21, 2010, but prior to October 24, 2011, must comply with the procedure set forth in § 165.3(d).
(l) Original source. The whistleblower must satisfy the whistleblower’s status as the original source of information to the Commission’s satisfaction.
(1) Information obtained from another source. The Commission will consider the whistleblower to be an "original source" of the same information that the Commission obtains from another source if the information the whistleblower provide satisfies the definition of original information and the other source obtained the information from the whistleblower or the whistleblower’s representative.
(i) In order to be considered an original source of information that the Commission receives from Congress, any other federal, state or local authority, or any self-regulatory organization, the whistleblower must have voluntarily given such authorities the information within the meaning of this part. In determining whether the whistleblower is the original source of information, the Commission may seek assistance and confirmation from one of the other entities or authorities described above.
(ii) In the event that the whistleblower claims to be the original source of information that an authority or another entity, other than as set forth in paragraph (l)(1)(i) of this section, provided to the Commission, the Commission may seek assistance and confirmation from such authority or other entity.
(2) Information first provided to another authority or person. If the whistleblower provides information to Congress, any other federal or state authority, a registered entity, a registered futures association, a self-regulatory organization, or to any of any of the persons described in paragraphs (g)(4) and (5) of this section, and the whistleblower, within 120 days, make a submission to the Commission pursuant to § 165.3, as the whistleblower must do in order for the whistleblower to be eligible to be considered for an award, then, for purposes of evaluating the whistleblower’s claim to an award under § 165.7, the Commission will consider that the whistleblower provided original information as of the date of the whistleblower’s original disclosure, report, or submission to one of these other authorities or persons. The whistleblower must establish the whistleblower’s status as the original source of such information, as well as the effective date of any prior disclosure, report, or submission, to the Commission’s satisfaction. The Commission may seek assistance and confirmation from the other authority or person in making this determination.
(3) Information already known by the Commission. If the Commission already knows some information about a matter from other sources at the time the whistleblower makes the whistleblower’s submission, and the whistleblower is not an original source of that information, as described above, the Commission will consider the whistleblower an "original source" of any information the whistleblower separately provides that is original information that materially adds to the information that the Commission already possesses.
(m) Related action. The phrase "related action," when used with respect to any judicial or administrative action brought by the Commission under the Commodity Exchange Act, means any judicial or administrative action brought by an entity listed in § 165.11(a) that is based upon the original information voluntarily submitted by a whistleblower to the Commission pursuant to § 165.3 that led to the successful resolution of the Commission action.
(n) Successful resolution. The phrase "successful resolution," when used with respect to any judicial or administrative action brought by the Commission under the Commodity Exchange Act, includes any settlement of such action or final judgment in favor of the Commission. It shall also have the same meaning as "successful enforcement."
(o) Voluntary submission or voluntarily submitted.
(1) The phrase "voluntary submission" or "voluntarily submitted" within the context of submission of original information to the Commission under this part, shall mean the provision of information made prior to any request from the Commission, Congress, any other federal or state authority, the Department of Justice, a registered entity, a registered futures association, or a self-regulatory organization to the whistleblower or anyone representing the whistleblower (such as an attorney) about a matter to which the information in the whistleblower’s submission is relevant. If the Commission or any of these other authorities makes a request, inquiry, or demand to the whistleblower or the whistleblower’s representative first, the whistleblower’s submission will not be considered voluntary, and the whistleblower will not be eligible for an award, even if the whistleblower’s response is not compelled by subpoena or other applicable law. For purposes of this paragraph, the whistleblower will be considered to have received a request, inquiry or demand if documents or information from the whistleblower is within the scope of a request, inquiry, or demand that the whistleblower’s employer receives, unless, after receiving the documents or information from the whistleblower, the whistleblower’s employer fails to provide the whistleblower’s documents or information to the requesting authority in a timely manner.
(2) In addition, the whistleblower’s submission will not be considered voluntary if the whistleblower is under a pre-existing legal or contractual duty to report the violations that are the subject of the whistleblower’s original information to the Commission, Congress, any other federal or state authority, the Department of Justice, a registered entity, a registered futures association, or a self-regulatory organization, or a duty that arises out of a judicial or administrative order.
(1) The term "whistleblower" or "whistleblowers" means any individual, or two (2) or more individuals acting jointly, who provides information relating to a potential violation of the Commodity Exchange Act to the Commission, in the manner established by § 165.3. A company or another entity is not eligible to be a whistleblower.
(ii) The whistleblower provides that information in a manner described in § 165.3.
§ 165.3 Procedures for submitting original information.
A whistleblower’s submission of information to the Commission will be a two-step process.
(2) By completing the Form TCR and mailing or faxing the form to the Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, Fax (202) 418-5975.
(b) Further, to be eligible for an award, the whistleblower must declare under penalty of perjury at the time the whistleblower submits the whistleblower’s information pursuant to paragraph (a)(1) or (2) of this section that the whistleblower’s information is true and correct to the best of the whistleblower’s knowledge and belief.
(c) Notwithstanding paragraph (b) of this section, if the whistleblower submitted the whistleblower’s original information to the Commission anonymously, then the whistleblower’s identity must be disclosed to the Commission and verified in a form and manner acceptable to the Commission consistent with the procedure set forth in § 165.7(c) prior to Commission’s payment of any award.
(d) If the whistleblower submitted original information in writing to the Commission after July 21, 2010 (the date of enactment of the Wall Street Transparency and Accountability Act of ) but before the effective date of these rules, the whistleblower will be eligible for an award only in the event that the whistleblower provided the original information to the Commission in a format or manner other than that described in paragraph (a) of this section, the whistleblower submits a completed Form TCR within 120 days of the effective date of these rules and otherwise follows the procedures set forth above in paragraphs (a) and (b) of this section.
(3) The Commission may make disclosures in accordance with the Privacy Act of 1974 (5 U.S.C. 552a).
(b) Anonymous whistleblowers. A whistleblower may anonymously submit information to the Commission, however, the whistleblower must follow the procedures in § 165.3(c) for submitting original information anonymously. Such whistleblower who anonymously submits information to the Commission must also follow the procedures in § 165.7(c) in submitting to the Commission an application for a whistleblower award.
§ 165.5 Prerequisites to the consideration of an award.
(3) If requested by Commission staff, enter into a confidentiality agreement in a form acceptable to the Commission, including a provision that a violation of the confidentiality agreement may lead to the whistleblower’s ineligibility to receive an award.
§ 165.6 Whistleblowers ineligible for an award.
(8) To any whistleblower who acquired the original information the whistleblower gave the Commission from any other person with the intent to evade any provision of these rules.
(b) Notwithstanding a whistleblower’s ineligibility for an award for any reason set forth in paragraph (a) of this section, the whistleblower will remain eligible for the anti-retaliation protections set forth in Section 23(h)(1) of the Commodity Exchange Act.
§ 165.7 Procedures for award applications and Commission award determinations.
(a) Whenever a Commission judicial or administrative action results in monetary sanctions totaling more than $ 1,000,000 (i.e., a covered judicial or administrative action) the Commission will publish on the Commission’s Web site a "Notice of Covered Action." Such Notice of Covered Action will be published subsequent to the entry of a final judgment or order that alone, or collectively with other judgments or orders previously entered in the Commission covered administrative or judicial action, exceeds $ 1,000,000 in monetary sanctions. The Commission will not contact whistleblower claimants directly as to Notices of Covered Actions; prospective claimants should monitor the Commission Web site for such Notices. A whistleblower claimant will have 90 days from the date of the Notice of Covered Action to file a claim for an award based on that action, or the claim will be barred.
(b) To file a claim for a whistleblower award, the whistleblower must file Form WB-APP, Application for Award for Original Information Provided Pursuant to Section 23 of the Commodity Exchange Act. The whistleblower must sign this form as the claimant and submit it to the Commission by mail or fax to Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, Fax (202) 418-5975. The Form WB-APP, including any attachments, must be received by the Commission within 90 calendar days of the date of the Notice of Covered Action or 90 calendar days following the date of a final judgment in a related action in order to be considered for an award.
(2) The whistleblower is making the whistleblower’s claim for a whistleblower award on an anonymous basis, the whistleblower must be represented by counsel. The whistleblower must provide the whistleblower’s counsel with a completed Form WB-APP that is signed by the whistleblower by no later than the date upon which the whistleblower’s counsel submits to the Commission a copy of the Form WB-APP that does not disclose the whistleblower’s identity and is signed solely by the whistleblower’s counsel. In addition, the whistleblower’s counsel must retain the signed original of the whistleblower’s Form WB-APP in counsel’s records. Upon request of the Commission staff, whistleblower’s counsel must produce to the Commission the whistleblower’s signed original WB-APP and the whistleblower’s identity must be verified in a form and manner that is acceptable to the Commission prior to the payment of any award.
(d) Once the time for filing any appeals of the Commission’s judicial or administrative action and all related actions has expired, or, where an appeal has been filed, after all appeals in the judicial, administrative and related actions have concluded, the Commission will evaluate all timely whistleblower award claims submitted on Form WB-APP in accordance with the criteria set forth in this Part 165. In connection with this process, the Commission may require that the whistleblower provide additional information relating to the whistleblower’s eligibility for an award or satisfaction of any of the conditions for an award, as set forth in § 165.5(b). Following that evaluation, the Commission will send the whistleblower a Final Order setting forth whether the claim is allowed or denied and, if allowed, setting forth the award percentage amount.
(e) The Commission’s Office of the Secretariat will provide the whistleblower with the Final Order of the Commission.
§ 165.8 Amount of award.
If all of the conditions are met for a whistleblower award in connection with a covered judicial or administrative action or a related action, the Commission will then decide the amount of the award pursuant to the procedure set forth in § 165.7.
(2) Not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed in the covered judicial or administrative action or related actions.
§ 165.9 Criteria for determining amount of award.
The determination of the amount of an award shall be in the discretion of the Commission. The Commission may exercise this discretion directly or through delegated authority pursuant to § 165.15.
(5) Potential adverse incentives from oversize awards.
(b) Factors that may increase the amount of a whistleblower’s award. In determining whether to increase the amount of an award, the Commission will consider the following factors, which are not listed in order of importance.
(ii) The degree to which the information provided by the whistleblower supported one or more successful claims brought in the Commission action or related action.
(vi) Any unique hardships experienced by the whistleblower as a result of his or her reporting and assisting in the enforcement action.
(v) The degree, reliability and effectiveness of the whistleblower’s assistance, including the consideration of the whistleblower’s complete, timely truthful assistance to the Commission and criminal authorities.
(ii) Whether, and the extent to which, a whistleblower assisted any internal investigation or inquiry concerning the reported Commodity Exchange Act violations.
(c) Factors that may decrease the amount of a whistleblower’s award. In determining whether to decrease the amount of an award, the Commission will consider the following factors, which are not listed in order of importance.
(vii) Whether the whistleblower knowingly interfered with the Commission’s investigation of the violations or related enforcement actions.
(iii) Whether there was a legitimate reason for the whistleblower to delay reporting the violations.
(iii) Provided any false writing or document knowing the writing or document contained any false, fictitious or fraudulent statements or entries that hindered an entity’s efforts to detect, investigate, or remediate the reported Commodity Exchange Act violations.
(d) The Commission shall not take into consideration the balance of the Fund in determining the amount of an award.
§ 165.10 Contents of record for award determinations.
(7) Sworn declarations (including attachments) from the Commission’s Division of Enforcement staff regarding any matters relevant to the award determination.
(b) The record upon which the award determinations under § 165.7 shall be made shall not include any Commission pre-decisional, attorney-client privilege, attorney work product privilege, or internal deliberative process materials related to the Commission or its staff’s determination: To file or settle the related covered judicial or administrative action; and/or whether, to whom and in what amount to make a whistleblower award. Further, the record upon which the award determination under § 165.7 shall be made shall not include any other entity’s pre-decisional, attorney-client privilege, attorney work product privilege, or internal deliberative process materials related to its or its staff’s determination to file or settle a related action.
§ 165.11 Awards based upon related actions.
(b) The "related action" is based on the same original information that the whistleblower voluntarily submitted to the Commission and led to a successful resolution of the Commission judicial or administrative action.
§ 165.12 Payment of awards from the Fund, financing of customer education initiatives, and deposits and credits to the Fund.
(a) The Commission shall pay awards to whistleblowers from the Fund.
(1) Any monetary sanctions collected by the Commission in any covered judicial or administrative action that is not otherwise distributed, or ordered to be distributed, to victims of a violation of the Commodity Exchange Act underlying such action, unless the balance of the Fund at the time the monetary sanctions are collected exceeds $ 100,000,000. In the event the Fund’s value exceeds $ 100,000,000, any monetary sanctions collected by the Commission in a covered judicial or administrative action that is not otherwise distributed, or ordered to be distributed, to victims of violations of the Commodity Exchange Act or the rules and regulations thereunder underlying such action, shall be deposited into the general fund of the U.S. Treasury.
(iii) From any monetary sanction collected by the Commission in any judicial or administrative action brought by the Commission under the Commodity Exchange Act, regardless of whether it qualifies as a "covered judicial or administrative action"; provided, however, that such judicial or administrative action is based on information provided by a whistleblower.
(c) Office of Consumer Outreach. The Commission shall undertake and maintain customer education initiatives through its Office of Consumer Outreach. The initiatives shall be designed to help customers protect themselves against fraud or other violations of the Commodity Exchange Act, or the rules or regulations thereunder. The Commission shall fund the initiatives and may utilize funds deposited into the Fund during any fiscal year in which the beginning (October 1) balance of the Fund is greater than $ 10,000,000. The Commission shall budget, on an annual basis, the amount used to finance customer education initiatives, taking into consideration the balance of the Fund.
(a) Any Final Order of the Commission relating to a whistleblower award determination, including whether, to whom, or in what amount to make whistleblower awards, may be appealed to the appropriate court of appeals of the United States not more than 30 days after the Final Order of the Commission is issued.
(2) The Final Order of the Commission, as set forth in § 165.7.
§ 165.14 Procedures applicable to the payment of awards.
(a) A recipient of a whistleblower award is entitled to payment on the award only to the extent that the monetary sanction upon which the award is based is collected in the Commission judicial or administrative action or in a related action.
(1) Where multiple whistleblowers are owed payments from the Fund based on awards that do not arise from the same Notice of Covered Action (or related action), priority in making these payments will be determined based upon the date that the Final Order of the Commission is made. If two or more of these Final Orders of the Commission are entered on the same date, then those whistleblowers owed payments will be paid on a pro rata basis until sufficient amounts become available in the Fund to pay their entire payments.
§ 165.15 Delegations of authority.
(a) Delegation of authority to the Executive Director. The Commission hereby delegates, until such time as the Commission orders otherwise, to the Executive Director or to any Commission employee under the Executive Director’s supervision as he or she may designate, the authority to take the following actions to carry out this Part 165 and the requirements of Section 23(h) of Commodity Exchange Act.
(1) Delegated authority under § 165.12(a), (b). The Executive Director’s delegated authority to deposit into or credit collected monetary sanctions to the Fund and the payment of awards therefrom shall be with the concurrence of the General Counsel and the Director of the Division of Enforcement or of their respective designees.
(2) Delegated authority to select a Whistleblower Award Determination Panel that shall be composed of three of the Commission’s Offices or Divisions. The Whistleblower Award Determination Panel shall include neither the Division of Enforcement nor the Office of General Counsel.
(b) Delegation of Authority to Whistleblower Award Determination Panel. The Commission hereby delegates, until such time as the Commission orders otherwise, to the Whistleblower Award Determination Panel the authority to make whistleblower award determinations under this Part 165, including the determinations as whether, to whom, or in what amount to make awards. Award determinations in matters involving monetary sanctions in either the Commission’s action or a related action that total more than $ 15,000,000 (i.e., matters with a maximum potential whistleblower award greater than $ 5,000,000) must be determined by the heads of the Offices or Divisions comprising the Whistleblower Award Determination Panel. In all other matters, award determinations may be determined by the employee designees of the heads of the Offices or Divisions comprising the Whistleblower Award Determination Panel.
(c) Delegation of Authority to the Whistleblower Office. With the exception of § 165.12, the Commission hereby delegates, until such time as the Commission orders otherwise, to the head of the Whistleblower Office the authority to take any action under this Part 165 that is not otherwise delegated to either the Executive Director or the Whistleblower Award Determination Panel under this section, including the authority to administer the Commission’s whistleblower program and liaise with whistleblowers.
The Commodity Whistleblower Incentives and Protections provisions set forth in Section 23(h) of Commodity Exchange Act and this Part 165 do not provide individuals who provide information to the Commission with immunity from prosecution. The fact that an individual may become a whistleblower and assist in Commission investigations and enforcement actions does not preclude the Commission from bringing an action against the whistleblower based upon the whistleblower’s own conduct in connection with violations of the Commodity Exchange Act and the Commission’s regulations. If such an action is determined to be appropriate, however, the Commission’s Division of Enforcement will take the whistleblower’s cooperation into consideration in accordance with its sanction recommendations to the Commission.
§ 165.17 Awards to whistleblowers who engage in culpable conduct.
In determining whether the required $1,000,000 threshold has been satisfied for purposes of making any award, the Commission will not take into account any monetary sanctions that the whistleblower is ordered to pay, or that is ordered against any entity whose liability is based primarily on conduct that the whistleblower principally directed, planned, or initiated. Similarly, if the Commission determines that a whistleblower is eligible for an award, any amounts that the whistleblower or such an entity pay in sanctions as a result of the action or related actions will not be included within the calculation of the amounts collected for purposes of making payments pursuant to § 165.14.
§ 165.18 Staff communications with whistleblowers from represented entities.
If the whistleblower is a whistleblower who is a director, officer, member, agent, or employee of an entity that has counsel, and the whistleblower has initiated communication with the Commission relating to a potential violation of the Commodity Exchange Act, the Commission’s staff is authorized to communicate directly with the whistleblower regarding the subject of the whistleblower’s communication without seeking the consent of the entity’s counsel.
§ 165.19 Nonenforceability of certain provisions waiving rights and remedies or requiring arbitration of disputes.
The rights and remedies provided for in this Part 165 of the Commission’s regulations may not be waived by any agreement, policy, form, or condition of employment, including by a predispute arbitration agreement. No predispute arbitration agreement shall be valid or enforceable if the agreement requires arbitration of a dispute arising under this Part.
Section 23(h)(1) of Commodity Exchange Act prohibits employers from engaging in retaliation against whistleblowers. This provision provides whistleblowers with certain 20 protections against retaliation, including: A federal cause of action against the employer, which must be filed in the appropriate district court of the United States within two (2) years of the employer’s retaliatory act; and potential relief for prevailing whistleblowers, including reinstatement, back pay, and compensation for other expenses, including reasonable attorney’s fees.
(2) In assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information.
(b) Enforcement—(1) Cause of Action.—An individual who alleges discharge or other discrimination in violation of section 23(h)(1)(A) of the Commodity Exchange Act may bring an action under section 23(h)(1)(B) of the Commodity Exchange Act in the appropriate district court of the United States for the relief provided in section 23(h)(1)(C) of the Commodity Exchange Act, unless the individual who is alleging discharge or other discrimination in violation of section 23(h)(1)(A) of the Commodity Exchange Act is an employee of the Federal Government, in which case the individual shall only bring an action under section 1221 of title 5, United States Code.
(2) Subpoenas.—A subpoena requiring the attendance of a witness at a trial or hearing conducted under section 23(h)(1)(A) of the Commodity Exchange Act may be served at any place in the United States.
(3) Statute of Limitations.—An action under section 23(h)(1)(B) of the Commodity Exchange Act may not be brought more than 2 years after the date on which the violation reported in Section 23(h)(1)(A) of the Commodity Exchange Act is committed.
(3) Compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney’s fees.


Article 723-7 (Act no. 97-1159 of 19 December 1997, Articles 1 and 2 Official Journal of 20 December 1997) (Act no. 2000-516 of 15 June 2000 Article 130 Official Journal 16 June 2000, in force 1 January 2001) (Act no. 2002-1138 of 9 September 2002 Article 49 Official Journal of 10 September 2002) (Act no. 2004-204 of 9 March 2004 art.162 XV, art. 185 VII Official Journal of 10 March 2004, in force 1 January 2005) The penalty enforcement judge may provide that a sentence be served under the regime of placement under electronic supervision defined by article 132-26-1 of the Criminal Code either where the convicted person has been sentenced to one or more custodial sentences, the combined length of which does not exceed one year, or where there remains for him to serve one or more custodial sentences the total length of which does not exceed one year, or where the convicted person has benefited from release on parole, dependent on his agreeing to be placed under electronic surveillance for a duration not exceeding one year. Where the place designated by the penalty enforcement judge is not the place where the convicted person lives, the decision to place him under electronic surveillance may be taken only with the consent of the person in charge of that place, unless it is a public one.
Article 723-7-1 (Inserted by Law no. 2004-204 of 9 March 2004 art.162 XV, art. 185 VII 2° Official Journal of 10 March 2004, in force 1 January 2005) Where the provisions of article 132-26-1 of the Criminal Code have been applied, the penalty enforcement judge decides the terms under which the semi-detention will be implemented, by an order not open to appeal, within a period not exceeding four months from the date the conviction became enforceable. If the conditions which enabled the court to decide that the sentence would be served under the regime of placement under electronic surveillance are no longer fulfilled, or if the convicted person does not abide by the obligations which were imposed on him, if he demonstrates bad behaviour, or if he refuses to accept a necessary modification of the conditions of implementation, or if he requests this, the benefit of placement under electronic surveillance may be withdrawn by the penalty enforcement judge in a ruling taken in accordance with the provisions of article 712-6. If the character of the convicted person or the available means justify this, the penalty enforcement judge may also, under the same terms, replace the measure of placement under electronic surveillance with a semi-detention measure or external placement.
Article 723-13 (Act no. in particular.162 XV. . The officials immediately report the steps that they have taken to the penalty enforcement judge. or at the request of the convicted person. 97-1159 of 19 December 1997 art. Article 723-12 (Act no. art. Article 723-11 (Act no. 97-1159 of 19 December 1997 art. 185 VIII Official Journal of 10 March 2004. on his own motion or upon the application of the convicted person. This is done as of right wherever the convicted person so requests. This decision is taken in accordance with the provisions of article 712-6. Article 723-14 (Act no. 97-1159 of 19 December 1997 art. 168 VII Official Journal of 10 March 2004. 2000-916 of 19 September 2000 art. they may not enter any home where the placement is carried out without obtaining the consent of those whose home it is. the convicted person serves all or part of the sentence that remained for him to serve on the day of his placement under electronic supervision. subject the convicted person to one or more supervision measures or obligations mentioned in articles 132-44 and 132-45 of the Criminal Code. in force 1 January 2005) The penalty enforcement judge may. vary the execution conditions of the electronic supervision provided for by the third paragraph of article 723 7. Where the electronic supervision decision is withdrawn. 168 VII Official Journal of 10 March 2004. Article 723-10 (Act no. the prison officials in charge of supervision may go to the area of placement and ask to meet the convicted person. for non-compliance with measures imposed pursuant to article 723-10. 1 and 2 Official Journal of 20 December 1997) (Ordinance no. for new convictions or refusal by the convicted person of any necessary modifications of the conditions of implementation. The medical certificate is attached to the case file. 1 and 2 Official Journal of 20 December 1997) A Decree of the Conseil d'Etat determines the implementation conditions of the present section. 1 and 2 Official Journal of 20 December 1997) (Act no. The police and the gendarmerie may at any time officially note the improper absence of the convicted person and report this to the penalty enforcement judge. 1 and 2 Official Journal of 20 December 1997) The penalty enforcement judge may at any time appoint a doctor to check that the implementation of the device mentioned in the first paragraph of article 723 8 does not present a danger for the convicted person's health. However.162 XV. 1 and 2 Official Journal of 20 December 1997) (Act no. 49 Official Journal 22 September 2000 in force 1 January 2002) (Act no. according to the provisions stated in the withdrawal decision. During the periods designated by the electronic supervision decision.personal data. The implementation of the device permitting supervision at a distance may be entrusted to a private legal person authorised under conditions laid down by a Decree of the Conseil d'Etat. and also the measures provided for by article 723 10. in force 1 January 2005) The penalty enforcement judge may also impose upon the person under electronic supervision the measures set out by articles 132 43 to 132 46 of the Criminal Code. 2004-204 of 9 March 2004 art. 97-1159 of 19 December 1997 art.162 XV. for notorious misconduct. 2004-204 of 9 March 2004 art. The time during which he was placed under electronic supervision does however count towards the execution of his sentence. in force 1 January 2005) The penalty enforcement judge may withdraw a decision of placement under electronic supervision in case of failure to observe the restrictions or obligations provided for by articles 132-26-2 and 132-263 of the Criminal Code. and after hearing the opinion of the district prosecutor. 97-1159 of 19 December 1997 art. 2004-204 of 9 March 2004 art. He may.


The General Assembly of the State of Tennessee constituted the Board of Trustees as an entity responsible for the governance of East Tennessee State University. Trustees hold a position of public trust and are expected to carry out their governance responsibilities in an honest, ethical, and diligent manner. Pursuant to Tennessee Code Annotated (TCA) § 49-8-204 this policy applies to and governs the conduct of all appointed members of the Board of Trustees of East Tennessee State University.
Trustees bring diverse backgrounds and expertise valuable to the governance of East Tennessee State University. In carrying out their duties Trustees must keep the welfare of the entire University paramount.
Trustees must discharge their duties, including duties as a member of a committee, in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner the Trustee reasonably believes to be in the best interest of the University.
In undertaking the duties of the position, a Trustee shall make the commitment of time necessary to carry out the governance responsibilities. Failure of a Trustee to attend two regular meetings in succession of the Board or of a committee on which the Trustee serves shall be cause for the Board to consider the Trustee’s removal.
Trustees shall undertake with due diligence a critical analysis of the risks and benefits of any matter coming before the Board for action. Trustees shall promote a culture of constructive debate about major initiatives and transactions and shall require management to provide information necessary to carry out the Trustees’ duty of care to act in the best interest of the University.
Except as otherwise provided by law or bylaw, Trustees shall have no legal authority to act on behalf of the Board outside of Board meetings. Trustees shall avoid acting as a spokesperson for the entire Board unless specifically authorized to do so.
Board members shall abide by the Conflict of Interest Policy for Board members. Upon appointment and annually thereafter, Trustees shall file a financial disclosure form with the Board Secretary as required by the Bylaws and the Conflict of Interest Policy for Trustees. The Audit Committee of the Board shall monitor compliance with the Conflict of Interest Policy for Trustees.
Trustees shall not use the authority, title, prestige, or other attribute of the office for personal benefit or gain for themselves or for any relative. Trustees are specifically prohibited by law from procuring, or being a party in any way to procuring, the appointment of a relative to a position of trust or profit connected with the University (TCA § 49-9-207). In keeping with this statutory prohibition, Trustees may not write a letter of recommendation or take any other action in aid of a relative's effort to obtain employment with the University. It is unlawful for any Trustee to be financially interested in any contract or transaction affecting the interests of any institution governed by the Board, to procure, or be a party in any way to procuring, the appointment of any relative to any position of financial trust or profit connected with the university governed. A violation of this provision shall subject the member so offering to removal by a two thirds vote of the membership of the Board (TCA § 49-8-204).
Trustees shall not use the authority, title, prestige, or other attribute of the office to obtain consideration, treatment, or favor for any person beyond that which is generally available. This section applies, but is not limited to, efforts to influence administrative decisions with respect to an individual's admission, employment, discipline, and similar matters. However, except as expressly prohibited by Article II, Section 2, concerning a relative's effort to obtain employment with the University, this section does not prohibit routine letters of recommendation or requests for information about the status of an individual's admission, employment, discipline, and similar matters.
Trustees shall not knowingly accept any gift, favor, or gratuity from any person or entity under contract with the University or seeking a contract with the University (TCA § 12-4-106).
Trustees shall not knowingly accept any gift, favor, or gratuity from any person or entity, including another Trustee that might affect or have the appearance of affecting a Trustee’s judgment in the impartial performance of the duties of the office. However, this subsection shall not be construed to apply to a Trustee incidental benefit from another Trustee’s gift of money, property, or services to the University or to any benefit commonly available to Trustees by virtue of the office. Nor shall this subsection be construed to prohibit acceptance of benefits from the University in connection with donations to the University (TCA § 12-4-106).
a. "Immediate family" means spouse, dependent children or stepchildren, or relatives related by blood or marriage.
Anyone who believes that he or she has information indicating that an appointed Trustees has violated the Code of Ethics shall make a written disclosure of the facts and circumstances to the Chair of the Audit Committee. If the alleged violation involves the Chair or any member of the Audit Committee, the disclosure shall be made to the Vice Chair of the Board.
The chair of the Audit Committee or other appropriately appointed committee (or the Vice Chair of the Board) shall review the alleged violation with the University Counsel to determine whether removal proceedings should be initiated against the Trustee for a material violation of the Code of Ethics.
An appointed Trustee accused of a material violation of the Code of Ethics shall be afforded a due process contested case hearing in accordance with the Tennessee Uniform Administrative Procedures Act, Tennessee Code Annotated, Title 4, Chapter 5 (TCA § 4-5-101, et seq.).
If a contested case hearing results in a finding that an appointed Trustee materially violated the Code of Ethics, the Board may remove the Trustee from the Board by a two-thirds vote of the Board at a regular or called meeting. Upon removal, the position shall be considered vacant, and the vacancy shall be filled as provided by law (TCA § 49-8-204).
Upon appointment and annually thereafter, Trustees shall be provided with the Code of Ethics and shall certify in writing that they have read the Code of Ethics and will comply with its provisions.


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Can You Change Your Child’s Last Name After a Divorce in Virginia?
Can you change your child’s last name after divorce in Virginia? What if the other parent objects?
A person seeking a change of name for themselves or their minor child can petition, under oath, the circuit court where that person, or his or her minor child, resides for an order changing that person’s name. Virginia Code Ann. § 8.01-217(a) and (b). If a minor child’s name is sought to be changed, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to Va. Code Ann. § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the child. Va. Code Ann. § 8.01-217(a). The court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name. Va. Code Ann. § 8.01-217(c).
Section 8.01-217(c) appears to create a presumption that the minor child’s name shall be changed as desired unless it would not be in the child’s best interest. The Supreme Court of Virginia, however, has flipped this apparent presumption on its head. Instead, the person seeking the name change has the burden of proving, through clear and convincing evidence, that the change of name is in the child’s best interest. Further, should a parent object to a change from his or her surname, the Court has created a list of factors one of which must be met for the change to be ordered.
The seminal case of Flowers v. Cain, 237 S.E.2d 111 (Va. 1977) creates the basic presumption in favor of the status quo and outlines the factors that will permit a deviation. In Flowers, the parties married and had children. Id. at 112. The couple later divorced and the children went to live with their mother (“Mother”). Id. Thereupon, Mother married the children’s stepfather (“Stepfather”). Id. Mother and Stepfather wanted to change the children’s surnames to Stepfather’s surname. Id. The children were about 7 years and 1 months and 5 years and 9 months old, respectively, at the time Mother and Stepfather petitioned for the name changes. Id. The trial court ordered the name change, and the father appealed. Id.
(4) The child is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed. Id.
Using these factors, the Supreme Court of Virginia considered the facts of the case. Father visited the children once in a while, but he had not abandoned the children. Id. at 114. Indeed, he provided them with regular child support. Id. Further, no evidence was offered of him committing embarrassing acts or the like. Id. The lone evidence offered that the children would suffer from continuing to bear Father’s name occurred when the children thought their surname was changed to Stepfather’s surname upon Mother’s remarriage. Id. at 113-114. The Court stated that such confusion was a mere inconvenience and typical of the behavior of a child of divorced parents. Id. at 114. With no “substantial reason” to change the children’s name over Father’s objection, the Court held that the trial court erred in permitting the change and reversed its decision. Id. at 115.
Since Flowers, there have been but two appellate court cases that address the scope and meaning of the Flowers factors. In May v. Grandy, 528 S.E.2d 105 (Va. 2000), a married couple had a child (“Child”), who adopted her father’s (“Father”) surname. Id. at 106. Later, the couple divorced and Child went to live with her mother (“Mother”). Id. at 107-108 (Koontz, J., dissenting). Mother later remarried. Id. Mother, per Child’s wishes, desired to change Child’s surname to her stepfather’s surname. Id. at 106. Child had been using Father’s surname for about 12 years at the time Mother petitioned the trial court for the change. Id. Nevertheless, Child had been asking to have her surname changed for the past four years. Id. Further, Father had not seen or spoken with Child for 2 1/2 years due to “job schedule and traveling.” Id. The trial court granted the name change, and Father appealed. Id.
The Supreme Court of Virginia affirmed the trial court’s decision. Id. at 107. While the court did not find that Father abandoned Child, it did hold that the trial court was entitled to place great weight upon Father’s general absence from Child’s life. Id. Further, it noted that the trial court considered Child’s desire for the name change given her age and level of maturity. Id. Hence, the Court’s decision implied that a petitioner need not prove literal abandonment of the child. Instead, proof of a failure to foster a meaningful relationship with a child should suffice.
In Spero v. Heath, 593 S.E.2d 239 (Va. 2004), the Supreme Court of Virginia considered the “embarrassment” factor. In that case, the father-petitioner offered evidence that the mother-objector “had been convicted of ‘driving under the influence of alcohol within one year’ of the child’s birth.” Id.at 240. The Court held that this conviction “did not rise to the level of misconduct sufficient to embarrass the child in the continued use of the parent’s surname.” Id. at 241. Hence, the Court implied that a crime that is malum prohibitum rather than malum in se is an insufficient ground to permit a name change over an objection.
The Frederick Circuit Court reached a similar conclusion years before in the case of In re Change of Name of Stickel, 11 Va. Cir 42 (1986) (Frederick County). In that case, the mother-petitioner offered evidence that the father-objector used alcohol and marijuana on a “rather frequent basis,” and had done so in the presence of the child. Id. at 43. Further, she offered evidence that he had been put in jail for a week, Id., due to traffic violations. Id. at 44. The Court held that these facts were “too insubstantial to warrant [a change of name]” and that his traffic crimes “involved no moral turpitude.” Id. Of note, the Court chalked up the father’s behavior to the wildness of youth, and reasoned that he had otherwise been an excellent father despite problems with the mother. Id.
Despite the dearth of Flowers factors cases, various appellate courts have held that Flowers is not limited to the scenario where the father challenges the petition of his ex-wife. Instead, Flowers creates a presumption in favor of the status quo, whatever that might be. For example, in Beyah v. Shelton, 344 S.E.2d 909 (Va. 1986), a mother petitioned to change the child’s surname, which had been her father’s since birth despite the fact that mother and father never married, to her stepfather’s surname. Id. at 910. The trial court granted the name change, Id., despite none of the Flowers factors being met. Id. at 911. The Supreme Court of Virginia reversed. Id. It held that Flowers controlled despite the distinguishing fact that the parties had never married. Id. Such a distinction was one of form and not of substance. Hence, the case was almost indistinguishable from Flowers. Id.
The Court held likewise in Rowland v. Shurbutt, 525 S.E.2d 917 (Va. 2000). In that case, a child born out of wedlock was given the surname of her mother’s husband at the time, who was not the child’s father. Id. at 918. Indeed, the mother and father of the child had never married. Id. After the mother divorced her then husband, the father petitioned to change the child’s surname to his surname. Id. The trial court granted the name change, Id., despite none of the Flowers factors being met. Id. at 919. The Supreme Court of Virginia reversed without so much of a mention of the distinguishing fact that the father was the petitioner in the case. Id. Instead, the Court used the Flowers factors to reverse. Id. Hence, as Justice Koontz argued in dissent, the Court erased, without mention, the central thrust of Flowers that it is in the best interests of the child to have his or her father’s surname. Id. at 920 (Koontz, J., dissenting).
The Court in Spero v. Heath, 593 S.E.2d 239 (Va. 2004), followed through on the implication in Rowland that Flowers creates a presumption in favor of the status quo and not a presumption in favor of the father. In that case, the mother, when pregnant, told the father that he was not the child’s father. Id. at 240. Hence, the child was born with her mother’s surname. Id. Later, the father was able to prove his parentage through DNA testing. Id. He thereupon petitioned the court to change his child’s surname to his surname. Id. The trial court granted the name change, Id., despite none of the Flowers factors being met. Id. at 241. The Supreme Court of Virginia reversed. Id. It held that despite the use of gender specific language in its prior cases (e.g., Flowers), nothing in the language of Va. Code Ann. § 8.01-217 suggests a presumption in favor of the father’s surname or that the mother should have the burden of proof for or against a name change. Id. at 240. Thus, the Court presumed that the status quo was in the child’s best interests and reversed the trial court’s decision using the Flowers factors. Id. at 241.
One notable exception is the Virginia Circuit Court case In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County). In that case, a child (“Child”) born out of wedlock was given the surname of his mother (“Mother”). Id. Indeed, the parties were separated at the time of Child’s birth. Id. Later, Mother married another man (“Stepfather”), with whom she had another child. Id. She then petitioned the Loudoun Circuit Court to change Child’s surname to that of Stepfather’s surname. Id. Child’s natural father (“Father”), however, objected to the name change. Id. The Circuit Court ordered the name change because it was in the best interest of Child. Id. at 262. More important, it did not use the Flowers factors in protecting the status quo. Id. at 262. The Court held this case distinguishable from Flowers and its progeny because Child shared a surname with Mother, the petitioner, and not with Father, the objector. Id. Indeed, the Court held that “there is no indication that the maintenance of [Child’s] birth name will affect his relationship with his father.” Id. In essence, the Court held that there was nothing for Father to object over and therefore he could not reap the benefit of the Flowers factors. Hence, the Court considered what was in Child’s best interest unencumbered by a presumption in favor of the status quo. Id.
(4) That the child is of sufficient age and intelligence to change his/her name and desires the change.
Note, however, under the Loudoun Circuit Court’s logic in In re Change of Name of J.R.O., 27 Va. Cir. 260 (1992) (Loudoun County), the objecting parent must be objecting to a change from his or her surname for this rule to control. Otherwise, the petitioner need just prove that the change is in the child’s best interests.
Though the outer limits of these factors are unclear, Jane’s case for a name change over John’s objection will be stronger to the extent its facts are similar to those in May v. Grundy and dissimilar to those in Flowers v. Cain or In re Change of Name Stickel. That is, Jane has a greater likelihood of success if John has made, in essence, little to no effort to be a father to Jack. If John has not fostered a meaningful relationship with Jack in the past 2 1/2 years or more, then Jane should be successful in getting Jack’s last name changed to Smith. In addition, Jane has a greater likelihood of success if John has engaged in substantial bad behavior sufficient to embarrass Jack. A one-week jail term for parking traffic offenses might be insufficient. A more substantial jail term for a crime malum in se might suffice. Moreover, recreational drug use in the child’s presence might also be insufficient, especially if there is no evidence that the child was harmed through such use. Further, Jack’s input could be determinative. If Jack is a teenager, his desire for a name change should be a sufficient ground for permitting the change. If Jack is younger, his desire for a name change will have to be coupled with another Flowers factor for a court to order the change.
– Nicholas Jon Solan is a founding partner of Solan Alzamora, PLLC in Fairfax, Virginia. He specializes in family law matters throughout Northern Virginia, including divorce, custody, support and equitable distribution matters. He can be reached at (703) 359-0088 or nsolan@SAlawfirm.com or www.SAlawfirm.com.
 Note that a Virginia circuit court case is not controlling on Virginia appellate courts. Thus, this case is meaningful to the extent it is persuasive.
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