« AnteriorContinuar »
POST EMPLOYMENT CONFLICT OF INTEREST
H. Lawrence Garrett III
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.
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").
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.
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.
includes not only acting as another's attorney or agent,
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
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
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:
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.
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-
e. The restriction covers the former eruployee's selfrepresentation.
There are a number of matters to which the restriction does not apply-among these are:
Purely social or informational communications.
b. Transmission of filings which do not require
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
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.
LIMITATION ON RESTRICTIONS OF 18 U.S.C. $207(c)(5 C.F.R.
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
Designations are discretionary.
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
2. Note additional qualifications in the designations set forth in $737.32.
3. Unlike separate agencies designated pursuant to
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
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:
Possesses outstanding qualifications in a scientific, technological, or other technical discipline;