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POST EMPLOYMENT CONFLICT OF INTEREST

H. Lawrence Garrett III

I.

II.

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.

1.

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 ("Senior 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.

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 limited to, say, the
design of program policy, general rulemaking, or techni-
cal 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.

V-1

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.

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