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POST EMPLOYMENT CONFLICT OF INTEREST

H. Lawrence Garrett III

I.

GENERAL

A. The Ethics in Government Act (Pub. L. 95-521) (the Act) broadened and added new restrictions to the existing provisions of 18 U.S.C. $207, which generally prohibit a former Government employee from acting as another person's representative to the Government in matters in which the employee had been involved while in the Government.

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Post-Employment Generally. It is important to note that nothing in the Act requires a former employee to decline employment with any organization regardless of dealings with that organization while a Government employee.

2. Required Nexus. With the exception of the 207(c) bar, what is prohibited depends upon the former employee's degree of involvement in the matter while with the Government and whether he or she was one of a specified group of high-ranking employees ("Sénior Employees").

II.

GENERAL RESTRICTIONS APPICABLE TO ALL FORMER EMPLOYEES

A. Permanent Bar. (5 C.F.R. 737.5) After leaving Government employment, a former employee may not serve as another person's representative to the Government on a case, contractual matter or other similar application or proceeding, formal or informal, in which he or she participated personally and substantially while a Government employee.

1.

There are two important limitations to this prohibition which attacks "switching sides." First, the former employee is not restricted unless the matter in which he or she previously participated was (i) a "particular matter involving specific parties" and (ii) is the same matter in which he or she now attempts to represent another before the Government. Thus, where an employee's prior involvement was limites to, say, the design of program policy, general rulemaking, or technical concepts, he or she is not restricted by this prohibition as to any specific matters which may involve his or her prior work. Second, this bar requires that the employees have been personally involved in the matter in a substantial way.

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includes not only acting as another's attorney or agent,
but any other kind of representation or communciation
made with the intent to influence the United States.
This includes promotional and contract representatives.

B. TWO-Year Bar. (5 C.F.R. 737.7) This is basically the same bar as above, except that it applies for only two years and covers all particular matters which were actually pending under the former employees "offical responsibility” in his or her last year of Government service. An employee's official responsibility is usually defined by statute, regulation, written delegation of authority or job description.

1. There may be times when a former employee is in doubt
as to whether a matter was under his or her official
responsibility, whether it is the same "particular
matter" as that with which he or she was involved or
whether the United States still has an interest in the
matter. His or her former agency has an obligation to
advise promptly on those questions as provided in the
regulations issued by the Office of Personnel Management
(5 CFR 737).

III. RESTRICTIONS APPLICABLE ONLY TO SENIOR EMPLOYEES

A. TWO-Year Bar on Assisting Representing. (5 C.R.F. 737.9) For two years after leaving Government employment, a former Senior Employee may not assist in the representation of another person by personal presence at an appearance before the Government on any particular matter in which he or she could not act as the person's actual representative because of his or her substantial personal participation in the matter while in Government.

1. It is important to note that this restriction does
not bar a Senior Employee from assisting on a matter in
which he or she participated while in Government but only
from assisting "in representing" while personally present
at a formal or informal appearance. Thus, such employee
could work on a contract with which he or she was
involved while in Government and could manage a company,
institution or university where such former employee's
decisions determine the manner in which his or her
organization will perform under a Government contract or
grant.

B. One-Year Bar on Attempts to Influence Former Agency. (5 C.F.R. 737.11) For one year after leaving Government employment, a former Senior Employee may not represent anyone in an attempt to influence his or her former agency on a matter before, or of substantial interest to such agency.

1. This "revolving door" provision is different from the previous restrictions in the following ways:

a.

It does not require that the former employee have had any prior involvement in the matter.

b. The matters covered are broader; they need not involve specific parties, so the former employee could not, for example, attempt to influence rulemaking or policy formation.

C.

It is limited to contact with his or her former agency; he or she may appear before, or act to influence, any other part of the Government in regard to a matter not otherwise covered.

d. The matter must be pending before, or of sub-
stantial interest to, his or her former agency.

e. The restriction covers the former eruployee's selfrepresentation.

2.

There are a number of matters to which the restriction does not apply-among these are:

a.

Purely social or informational communications.

b. Transmission of filings which do not require
Governmental action.

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d. Representing oneself in any judicial or adminis-. trative proceeding.

e. Any expression of personal views where the former employee has no pecuniary interest.

f. Response to the former agency's request for information.

g. Participation as the principal researcher under Government grants.

A. There are four groups of Senior Employees, two are named
automatically by statute: (i) civilians paid at the Executive
Level and (iii) active duty uniformed service officers
serving in grade 0-9 and above. Two other groups, (iii)
civilians at or equivalent to GS-17 or above and (iv)
uniformed service officers in grades 0-7 and 0-8, having
significant decision-making or supervisory responsibility,
must first be designated by the Director of the Office of
Government Ethics before they are chargeable as Senior
Employees.

1. Those automatically covered by the statute were made subject to the Act's special restrictions on Senior Employees as of July 1, 1979.

2. Those designated by the Director, OGE, were covered as of February 28, 1980.

V.

LIMITATION ON RESTRICTIONS OF 18 U.S.C. $207(c)(5 C.F.R.
737.13)

A. Methods. Two methods exist for limiting the application of 207(c) to less than the entirety of a department of agency

1. Designation of separate statutory agencies or bureaus under the provisions of 18 U.S.c. $207(e).

2. Designation of non-statutory separate components

under the provisions of 18 U.S.C. $207(a)(1)(c). B. Designation Procedure. Designation of separate statutory agencies and bureaus as well as non-statutory components are to be made by the Director, Office of Government Ethics in consultation with the head of the agency concerned.

1. Agencies may recommend such designations to the
Director, Office of Government Ethics.

2.

Designations are discretionary.

3.

Current designations are set forth in 45 Fed. Rey. 75500-75533 (1980).

C. Section 207(e) Designations. If a statutory component is designated as "separate, " generally, Senior Employees of such component and Senior Employees of the parent agency are not subject to the 207(c) bar as to each others agency.

former head of a "separate" subordinate agency and to former "Senior Employees" of the parent agency whose official responsibility included supervision of the

subordinate agency. D. Section 207(a)(1)(c) Designations. If a non-statutory component is designated as "separate, then Senior Employees of such component are not subject to the 207(c) bar as to other agencies, bureaus or offices of the parent agency which have separate and distinct subject matter jurisdiction from the agency or bureau in which such Senior Employees served.

1. Caveat. The 207(c) bar remains applicable (i) to
former Senior Employees designated by statute
(207(a)(1)(A) and 207(a)(1)(B), and (ii) to former Senior
Employees of such component with respect to those bureaus
and offices within the parent agency responsible for the
supervision or control of such separate component.

2. Note additional qualifications in the designations set forth in $737.32.

3. Unlike separate agencies designated pursuant to
$207(e), the limited application of $207(c) may be
available for the head of a separate non-statutory
component, as determined by the Director, Office of
Government Ethics.

VI.

EXEMPTIONS

GENERAL

A.

Comunications made solely for the purpose of furnishing scientific and technological information pursuant to agency procedures are exempt from the prohibition of $207 of title 18 U.S.C.

1. Agencies have the primary responsibility for
developing acceptable procedures for such exemptions.

B. A former employee may personally be exempted from the restrictions on post employment activity if the agency head, in consultation with the Director, Office of Government Ethics, executes a certification, published in the Federal Register, that such former employee:

1.

Possesses outstanding qualifications in a scientific, technological, or other technical discipline;

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