Summary of the Seeking Employment and Post-Employment Restrictions
Please note that reliance on the oral or written advice of an agency ethics official or the Office of Government Ethics cannot ensure that a former employee will not be prosecuted for a violation of 18 U.S.C. §§ 203, 207, or 208 . However, good faith reliance on such advice is a factor that may be taken into account by the Department of Justice in the selection of cases for prosecution. In the case in which the Office of Government Ethics issues a formal advisory opinion in accordance with subpart C of 5 C.F.R. part 2638, the Department of Justice will not prosecute an individual who acted in good faith in accordance with that opinion. Additionally, a current or former employee who discloses information to an agency ethics official, to a Government attorney, or to an employee of the Office of Government Ethics does not personally enjoy an attorney-client privilege with respect to such communication.
FINANCIAL DISCLOSURE REPORTING REQUIREMENT
OGE Form 278. An employee who has been required to file an OGE Form 278 in his or her current position must file a termination OGE Form 278 on or before the 30th day after leaving Government service. If the employee files his or her OGE Form 278 more than 30 days after the due date or more than 30 days after the last day of an extension, whichever occurs later, the employee must pay the United States a $200 late filing fee.
SEEKING NON-FEDERAL EMPLOYMENT
In general, an executive branch employee is free to seek post-Government employment, but the employee may need to be disqualified from working on some Government matters while doing so.
An executive branch-wide regulation prohibits an employee from working on a particular matter that will have a direct and predictable effect on the financial interests of a prospective employer with whom the employee is “seeking employment,” even though the employee’s job search has not progressed to actual negotiations.
An employee is “seeking employment” if:
· a prospective employer has contacted the employee about possible employment and the employee makes a response other than rejection;
· the employee has contacted a prospective employer about possible employment, unless the sole purpose of the contact is to request a job application (an employee is seeking employment with any person to whom he sends an unsolicited resume, regardless of how many resumes the employee sends to other employers at the same time); or
· the employee is engaged in actual negotiations for employment.
Seeking employment has not begun:
· if a search firm or other intermediary is involved, unless the intermediary identifies the prospective employer to the employee; or
· if the employee submits a resume or other employment proposal to a person or organization that is affected by the performance or nonperformance of the employee’s duties only as part of an industry or other discrete class, unless the employee receives a response from the prospective employer indicating an interest in discussions.
Example: Ann is writing a regulation affecting all oil companies. She sends a resume to ExxonMobil. ExxonMobil will be affected by this regulation, but no more so than other oil companies. Ann is not seeking employment and may continue writing the regulation. If, however, she receives a response from ExxonMobil indicating an interest in employment discussions, she has begun seeking employment and must recuse herself from writing the regulation.
An employee is no longer seeking employment if:
Particular matter. Includes only matters that involve deliberation, decision, or action that is focused on the interests of:
A matter that focuses on the interests of a large and diverse group of persons is not a particular matter. For example, deliberations, decisions, or actions focused on the public as a whole are not particular matters. Consideration or adoption of broad policy options directed to the interests of a large and diverse group of persons are not particular matters.
The term “person” includes an individual, corporation, association, firm, partnership, or any other organization or institution. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia.
Financial interest. A prospective employer has a financial interest if there is the potential for gain or loss to the prospective employer. The magnitude of the potential gain or loss need not be known and the dollar amount of the gain or loss is immaterial.
Personal and substantial participation. To participate "personally" means to participate directly. It includes the direct and active supervision of the participation of a subordinate in the matter. To participate "substantially" means that the employee's involvement is of significance to the matter. Participation may be substantial even though it is not determinative of the outcome of a particular matter. However, it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to the matter, but also on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participating in a critical step may be substantial. Personal and substantial participation may occur when, for example, an employee participates through decision, approval, disapproval, recommendation, investigation or the rendering of advice in a particular matter.
Example: An agency's Office of Enforcement is investigating the allegedly fraudulent marketing practices of a major corporation. One of the agency's personnel specialists is asked to provide information to the Office of Enforcement about the agency's personnel ceiling so that the Office can determine whether new employees can be hired to work on the investigation. The employee personnel specialist owns $20,000 worth of stock in the corporation that is the target of the investigation. She does not have a disqualifying financial interest in the matter (the investigation and possible subsequent enforcement proceedings) because her involvement is on a peripheral personnel issue and her participation cannot be considered "substantial."
Direct and predictable effect. A particular matter will have a "direct" effect on a financial interest if there is a close causal link between any decision or action to be taken in the matter and any expected effect of the matter on the financial interest. An effect may be direct even though it does not occur immediately. A particular matter will not have a direct effect on a financial interest, however, if the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative or that are independent of, and unrelated to, the matter. A particular matter that has an effect on a financial interest only as a consequence of its effects on the general economy does not have a direct effect within the meaning of this part.
A particular matter will have a "predictable" effect if there is a real, as opposed to a speculative, possibility that the matter will affect the financial interest. It is not necessary, however, that the magnitude of the gain or loss be known, and the dollar amount of the gain or loss is immaterial.
Note: An employee violates the regulation and, if negotiating, the statute if she participates in a particular matter that has a direct and predictable effect on her prospective employer’s financial interest even if the employee’s specific work on the particular matter does not have a direct and predictable effect on the financial interest of the prospective employer.
For example, John is seeking employment with The Nature Conservancy. John and his colleague, Carol, are assigned to evaluate eight grant applications and send the four best applications to a panel. The panel decides which one organization receives the grant. The Nature Conservancy is one of the eight organizations to submit a grant application. John and Carol decide to split up the work, and each will evaluate four applications. Carol agrees to evaluate The Nature Conservancy’s application. Under these circumstances, John will violate the regulation (and the statute if he has begun negotiations with The Nature Conservancy), even though he does not personally evaluate The Nature Conservancy’s application.
Example 1: An employee of the Bureau of Land Management (BLM) is working on a rulemaking that will affect the financial interests of a number of companies. A representative of one of the affected companies compliments the employee on her work and asks her to call if she is ever interested in leaving Federal service. The employee explains to the representative that she is very happy with her job at BLM and is not planning on leaving Government service in the foreseeable future. She thanks him for his compliment regarding her work and adds that she'll remember his interest if she ever decides to leave the Government. The employee has rejected the unsolicited employment overture and has not begun seeking employment.
Example 2: The employee in the preceding example responds by stating that she cannot discuss future employment while she is working on the rulemaking but would like to discuss employment when the rulemaking is completed. Because the employee has merely deferred employment discussions until the foreseeable future, she has not rejected the possibility of employment and has begun seeking employment with the company.
Example 3: A geologist employed by the U.S. Geological Survey has been working as a member of a team preparing the Government's case in an action brought by the Government against six oil companies. The geologist sends her resume to an oil company that is a named defendant in the action. The geologist has begun seeking employment with that oil company and will be seeking employment for two months from the date the resume was mailed. However, if she withdraws her application or is notified within the two-month period that her resume has been rejected, she will no longer be seeking employment with the oil company as of the date she makes such withdrawal or receives such notification.
In addition to the regulation discussed above, a Federal criminal conflict of interest statute prohibits an employee from participating in any DOI matter that would have a direct and predictable effect on the employee’s financial interests or on the financial interests of a person or organization with whom the employee’s job search has progressed to actual negotiations or an arrangement concerning prospective employment. “Negotiation” begins when an employee enters into a discussion or communication with another person, or such person’s agent or intermediary, which is mutually conducted with a view toward reaching an agreement regarding possible employment or compensation with that person. This term is not limited to discussions of specific terms and conditions of employment in a specific position.
Example: An employee of the U.S. Fish and Wildlife Service (USFWS) is responsible for oversight of a USFWS grant to a university. While discussing the grant with a university administrator, the administrator tells the USFWS employee that his division is thinking about hiring another grant specialist and asks whether the USFWS employee might be interested in leaving USFWS. The USFWS employee says he is interested in knowing what kind of work would be involved. They discuss the duties of the position the university would like to fill and the USFWS employee’s qualifications for the position. They do not discuss salary. The administrator explains that he has not yet received authorization to fill the particular position and will get back to the USFWS employee when he obtains the necessary approval for additional staffing. The USFWS employee has begun seeking employment with the university and, in fact, has actually engaged in negotiations regarding possible employment.
This same conflict of interest statute prohibits an employee from participating in an official action that will affect the employee’s own financial interests. Recent cases have come to light in which employees have participated, prior to leaving Government service, in defining requirements or preparing the statement of work for a contract that they anticipated being involved in after leaving Government service. One such case resulted in the employee’s felony conviction under the statute, on the theory that the employee had taken official actions that affected his own financial interest.
· Reassignment or Transfer
· Annual Leave
· Leave without Pay
· Impartiality Authorization (5 C.F.R. § 2635.605(b) – note that this won’t protect an employee who begins negotiating for employment)
· 18 U.S.C. § 208 Waiver (rare for negotiations)
· Defer Job Search
Generally, when an employee is no longer seeking employment with a prospective employer, the employee no longer has to recuse himself from work that will affect the prospective employer. Sometimes, however, an offer may have been rejected or not made after negotiations that may present an impartiality concern that the employee may be biased in favor of or against a person or organization that did not offer him a job. In this situation, an ethics official may make a determination that a reasonable person may question the integrity of the agency’s decision-making process, and this concern outweighs the Government’s interest in the employee’s participation in a particular matter. The agency can require the employee to remain recused. The length of time for recusal is up to the agency.
Recusal simply means the employee does not participate in a given matter. A recusal is the most common remedy for job search conflicts. It is the default remedy required by 18 U.S.C. § 208 and the regulation, unless and until another remedy resolves the conflict or appearance problem. The ultimate responsibility for recusal rests with the employee.
Notification and Documentation Requirements
For OGE 278 Filers - The Stop Trading on Congressional Knowledge (STOCK) Act
Public Law 112-105
Any employee who is a public financial disclosure report (OGE Form 278) filer must file a signed notification statement with the Designated Agency Ethics Official within three business days after commencing negotiations or entering into an agreement with a non-Federal entity to accept post-Government employment or compensation. The statement must identify the entity and specify the date the negotiations or agreement commenced. A public filer must also document his or her disqualification from any particular matter that would have a direct and predictable effect on the financial interests of the entity and submit that signed disqualification document to the Designated Agency Ethics Official.
The notification statement and written disqualification may be combined in a single submission. Note, however, that the employee must disqualify himself or herself from official matters affecting a prospective employer as soon as he or she begins seeking employment with that prospective employer (see previous section on 18 U.S.C. § 208 and 5 C.F.R. §§ 2635.601 to 2635.606). The written notification of the employee’s disqualification, required by the STOCK Act, simply documents that existing disqualification for the record.
If an employee has filed a notification statement indicating that he or she is negotiating for employment with a given entity, and later enters into an arrangement for employment with that entity, the employee need not file an additional notification statement to document the arrangement for employment.
Employees should deliver their notification statements and/or written disqualifications to their servicing ethics official, who will forward them to the Designated Agency Ethics Official.
For Non-OGE 278 Filers
5 C.F.R. § 2635.604
Notification. An employee who is not required to file a public financial disclosure report (OGE Form 278) and who becomes aware of the need to disqualify himself from participation in a particular matter to which he has been assigned should notify the person responsible for his assignment. An employee who is responsible for his own assignment should take whatever steps are necessary to ensure that he does not participate in the matter from which he is disqualified. Appropriate oral or written notification of the employee's disqualification may be made to coworkers by the employee or a supervisor to ensure that the employee is not involved in a matter from which he is disqualified.
Documentation. An employee who is not required to file a public financial disclosure report (OGE Form 278) need not file a written disqualification statement unless he is required by 5 CFR part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or is asked by an agency ethics official or the person responsible for his assignment to file a written disqualification statement. However, an employee may elect to create a record of his actions by providing written notice to a supervisor or other appropriate official.
Procurement Integrity Act
41 U.S.C. § 2102; 48 C.F.R. §§ 3.104-1 to 3.104-9
An employee may not disclose “contractor bid or proposal information” or “source selection information” other than as provided for by law.
Under the Procurement Integrity Act, if an employee, participating personally and substantially in a procurement for a contract in excess of $150,000, contacts or is contacted by an offeror in that procurement regarding possible non-Federal employment, the employee must promptly report the contact in writing to his or her supervisor and to the agency ethics official.
Post-Government Employment Restrictions
NONE OF THE PROVISIONS OF 18 U.S.C. § 207 BAR ANY FEDERAL EMPLOYEE, REGARDLESS OF RANK OR POSITION, FROM ACCEPTING EMPLOYMENT WITH ANY PRIVATE OR PUBLIC SECTOR EMPLOYER. THEY MAY, HOWEVER, RESTRICT CERTAIN COMMUNICATIONS THAT FORMER EMPLOYEES MAY MAKE AS A REPRESENTATIVE OF A THIRD PARTY BACK TO THE FEDERAL GOVERNMENT AND CERTAIN ASSISTANCE THEY MAY PROVIDE TO THIRD PARTIES. Your rate of pay, your pay schedule, and whether or not you were assigned to DOI from a private sector organization under the Information Technology Exchange Program (5 U.S.C., chapter 37) determine exactly which of the statute’s provisions will apply to you. Specifically, when you leave Federal service:
If you are being paid at an annual rate which is less than 86.5% of the rate of basic pay for Executive Schedule Level II (that is, less than $155,440.50 for CY 2012), you will be subject to three prohibitions -- 18 U.S.C. §§ 207(a)(1), (a)(2), and (b).
If you are in a position included in Levels II through V of the Executive Schedule, or your rate of basic pay is at or above 86.5% of the rate for Executive Schedule Level II (that is, at or above $155,440.50 for CY 2012), you will be subject to five prohibitions -- 18 U.S.C. §§ 207(a)(1), (a)(2), (b), (c), and (f).
Executive Level I employees (very senior employees) who terminate from Federal service will be subject to the five following post-employment prohibitions -- 18 U.S.C. §§ 207(a)(1), (a)(2), (b), (d), and (f).
Finally, if you are assigned from a private sector organization to DOI under the Information Technology Exchange Program (5 U.S.C., chapter 37), you will also be subject to the prohibition contained in 18 U.S.C. § 207(l).
The post employment prohibitions are explained as follows:
18 U.S.C. § 207(a)(1). Lifetime ban on making a communication or appearance involving particular matters involving a specific party or parties.
Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency, or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when (1) the employee was personally and substantially involved in the matter as a Government employee and when (2) the United States is a party or has a direct and substantial interest in the matter. This restriction also applies to former special Government employees. This provision does not prohibit behind-the-scenes assistance.
“Behind-the-scenes assistance” is assistance provided to another that does not involve the former employee making a communication to or appearance before an employee of the United States. However, if the former employee intends that a communication, made by someone else to an employee of the United States, be attributed to the former employee, this is considered a communication by the former employee and does not constitute “behind-the-scenes assistance.”
"Communication to or appearance before" means representational appearances and communications before a Federal Government department, agency or court, made in an attempt to influence the federal Government concerning a particular matter in which the former employee was personally and substantially involved.
"Particular matter involving specific parties" means a proceeding affecting the rights of the parties or an isolatable transaction or related set of transactions between identifiable parties, and the United States must be a party to OR have a direct and substantial interest in the matter.
Note: The term "particular matter involving specific parties" includes any investigation, application, request for a ruling or determination, rulemaking that applies to specific parties, contract, cooperative agreement, partnership agreement, controversy, claim, charge, accusation, arrest, or judicial or other proceeding. It does not include general rulemaking, general legislation, or general policy issues.
"Personal and substantial participation" means direct participation as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise. It includes the participation of a subordinate when that subordinate was actually directed by the former employee in the matter. The participation must be of significance to the matter or form a basis for a reasonable appearance of such significance. Involvement on a peripheral issue may not be enough. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort.
Example 1. A Program Analyst in the Fish and Wildlife Service works on a lawsuit involving Q Company. After leaving Federal service, the former employee accepts a job with a consulting firm that has Q Company as a client. She is asked by the consulting firm to represent it before the Environmental Protection Agency in connection with that same lawsuit.
Example 2. A Government employee, who participated in recommending specifications for a contract awarded to Q Company for the design of certain ground water testing programs, joins Q Company and does work under the contract. He is asked to accompany a company vice-president to a meeting to state the results of a series of trial tests, and does so. No violation occurs when he provides the information to his former agency. During the meeting a dispute arises as to some terms of the contract, and he is called upon to support Q Company's position.
18 U.S.C § 207(a)(2). Two-year restriction on particular matters involving a specific party or parties where the matters were under your official responsibility
Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency, or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when the employee knows or reasonably should know that the matter was actually pending under his or her official responsibility during their last year of Government service. This provision does not prohibit behind-the-scenes assistance.
“Behind-the-scenes assistance” – is defined the same way as for 18 U.S.C. § 207(a)(1).
"Communication to or appearance before" - is defined the same way as for 18 U.S.C. § 207(a)(1).
"Particular matter involving specific parties" - is defined the same way as for 18 U.S.C. § 207(a)(1).
"Official Responsibility" - means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action. Official responsibility is usually defined by statute, regulations, written delegation of authority or job description. AN EMPLOYEE'S RECUSAL FROM OR OTHER NON-PARTICIPATION IN A MATTER DOES NOT REMOVE IT FROM HIS OR HER OFFICIAL RESPONSIBILITY.
"Actually pending" - means the matter was in fact referred to or under consideration by persons within the employee's area of responsibility.
"Last Year of Service" - means this two-year prohibition only applies to matters that were under one's official responsibility during the former employee's last year of service.
Example 1. During his tenure as Division head, an employee’s subordinates undertook major changes in agency general enforcement standards. Eighteen months after terminating Government employment, he is asked to represent Z Company which believes it is being unfairly treated under the enforcement program. The Z Company matter first arose on a complaint filed after the Division head terminated his employment.
Example 2. Within two years after terminating, a bureau's former Budget Officer is asked to represent Q Company in a dispute arising under a contract which was in effect during her time in office. The dispute concerns an accounting formula under the contract, a matter on which a subordinate of the former officer was consulted.
18 U.S.C. § 207(b). One-year restriction on aiding and advising with regard to a trade or treaty negotiation.
For one year after Government service terminates, no former employee may knowingly REPRESENT, AID, OR ADVISE, on the basis of covered information, any other person (except the United States) concerning any ongoing trade or treaty negotiation in which, during his/her last year of Government service, he/she participated personally and substantially as an employee. Unlike the lifetime and two-year bans, this restriction prohibits behind-the-scenes assistance to anyone other than the United States in connection with the particular trade or treaty negotiation.
“Behind-the-scenes assistance” – is defined the same way as for 18 U.S.C. § 207(a)(1).
"Trade negotiation" - means negotiations which the President determines to undertake to enter into a trade agreement pursuant to 19 U.S.C. § 2902, and does not include any action taken before that determination is made.
"Treaty" - means an international agreement made by the President that requires the advice and consent of the Senate.
"Covered Information" - means agency records which were accessible to the employee that he or she knew or should have known were designated as exempt from disclosure under the Freedom of Information Act and which concern a negotiation in which the employee participated personally and substantially during his or her last year of Government service.
EXAMPLE: A former employee attends a hearing on a treaty in which she had participated while in her last year of Government service. She speaks with the representative of a private party during the hearing. If, during that conversation, the former employee lends assistance to the representative, a violation occurs.
ADDITIONAL RESTRICTION THAT APPLIES ONLY TO FORMER "SENIOR EMPLOYEES"
Senior Employee means all positions included in Levels II through V of the Executive Schedule and those employees whose rate of basic pay (not including locality pay) is at or above 86.5% of the rate for Executive Schedule Level II ($155,440.50 for CY 2012).
18 U.S.C. § 207(c). One-year restriction on communications with one's former agency
For one year after service in a "senior" position terminates, no former "senior" employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of a department or agency in which he/she served in any capacity during the one-year period prior to termination from "senior" service, if the communication or appearance is made on behalf of any other person (except the United States), in connection with any matter on which he/she seeks official action by any employee of such agency. This provision does not prohibit behind-the-scenes assistance.
“Behind-the-scenes assistance” – is defined the same way as for 18 U.S.C. § 207(a)(1).
"Communication to or appearance before" – is defined the same way as for 18 U.S.C. § 207(a)(1).
A “senior employee” is one who is employed in a position included in Levels II through V of the Executive Schedule or whose rate of basic pay is at or above 86.5% of the rate for Executive Schedule Level II (that is, at or above $155,440.50 for CY 2012).
Matter. The prohibition on seeking official action applies with respect to any matter, including:
o any "particular matter involving a specific party or parties";
o a matter that focuses on the interests of a discrete and identifiable class of persons;
o the consideration or adoption of broad policy options that are directed to the interests of a large and diverse group of persons;
o a new matter that was not previously pending at or of interest to the former senior employee's former agency; and
o a matter pending at any other agency in the executive branch, an independent agency, the legislative branch, or the judicial branch.
1. Unlike the lifetime, two-year, and other one-year bans, this one-year "cooling off" ban does not require that the former employee have ever been in any way involved in the matter that is the subject of the communication or appearance.
2. This ban only prohibits communications to or appearances before employees of any department or agency in which he or she formerly served in any capacity during the one-year period prior to his or her termination from senior service. However, it does not prohibit “behind-the-scenes” assistance.
3. For most former Department of the Interior employees, the term "agency" is defined to mean each individual bureau or office within the Department. For example, the one-year restriction under 18 U.S.C. § 207(c) prohibits a former National Park Service senior employee from communications to or appearances only before the National Park Service; it does not prohibit the former senior employee from contacting any other bureau or component of the Department of the Interior, such as the U.S. Geological Survey or the Office of the Secretary.
4. Former senior employees of the Office of the Secretary, Solicitor, or Inspector General may not communicate or appear before any of those three offices, or any component of the Department that is not part of a bureau, but may appear before any bureau.
5. All bureaus under the jurisdiction of a particular Assistant Secretary shall be considered a single component for purposes of determining the scope of 18 U.S.C. § 207(c) as applied to senior employees serving on the immediate staff of that Assistant Secretary.
6. Individuals who have served as Deputy Secretary, Solicitor, Inspector General, as any of the five Assistant Secretaries, or as a Bureau Head (other than the Directors of the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement) do not benefit from the special definition of "agency” because they serve in a position for which the rate of pay is specified in or fixed according to the Executive Schedule. (5 CFR § 2641.201(e)(2)(i)). These individuals are prohibited from communicating or appearing before any bureau or component of the Department of the Interior.
7. The matters covered by this ban are broader; they needn't involve specific parties, so the former employee could not, for example, attempt to influence general rulemaking, general policy issues, or general legislation.
Example 1. A Senior Employee of the Bureau of Reclamation leaves Government employment for private practice and shortly thereafter telephones a former associate urging that the Bureau (a) adopt a new procedure to put a ceiling on costs of grants; (b) not adopt a particular rule proposed for drug testing of Federal employees; (c) oppose a bill pending in Congress relating to Bureau of Reclamation programs.
Example 2. Eight months after he leaves, a former Senior Employee of the National Park Service is asked by his employer Z Company to represent them in a new matter pending before the Park Service. The former employee had no prior involvement in the matter and the matter was not previously pending before the Park Service when the employee worked there.
Example 3. Eight months after he leaves, a former Senior Employee of the Office of the Assistant Secretary for Fish and Wildlife and Parks is asked by his employer Z Company to represent them on separate matters pending before the Fish and Wildlife Service and the Bureau of Land Management.
ADDITIONAL RESTRICTION THAT APPLIES ONLY TO FORMER "VERY SENIOR” EMPLOYEES
Very Senior Employee means an Executive Schedule Level I employee.
Former Very Senior Employees are subject to all of the provisions that apply to Former Senior Employees, except that 18 U.S.C. § 207(d) applies to them instead of 18 U.S.C. § 207(c).
18 U.S.C. 207(d). Two-year restriction on communications with one's former agency and with any individual in an Executive Level position.
For two years after service in a “very senior” position terminates, no former “very senior” employee may knowingly make, with the intent to influence, any communication to or appearance before:
(1) Any individual appointed to an Executive Schedule position or,
(2) Any employee of a department or agency in which the former “very senior” employee served during the one-year period prior to termination from a “very senior” employee position.
The type of communication or appearance prohibited is one made on behalf of any other person (except the United States), in connection with any matter on which the former “very senior” employee seeks official action by any official or employee. This provision does not prohibit behind-the-scenes assistance. “Behind-the-scenes assistance” is defined the same way as for 18 U.S.C. § 207(a)(1).
ADDITIONAL RESTRICTION THAT APPLIES ONLY TO FORMER “SENIOR” AND "VERY SENIOR EMPLOYEES"
18 U.S.C. § 207(f). One-year restriction relating to Foreign Entities.
Prohibits former senior and very senior employees from knowingly aiding, advising, or representing a foreign entity, with the intent to influence the official actions of any employee of any U.S. agency or department. This provision prohibits behind-the-scenes assistance.
“Behind-the-scenes assistance” is defined the same way as for 18 U.S.C. § 207(a)(1).
"Foreign Entity" - means a foreign government or political party as those two terms are defined in the Foreign Agents Registration Act.
Please note, this is another prohibition that not only prohibits direct representational activity by the former senior employee, but also prohibits aiding or advising others in their representation before federal entities.
ADDITIONAL RESTRICTION THAT APPLIES ONLY TO THOSE ASSIGNED TO DOI FROM A PRIVATE SECTOR ORGANIZATION UNDER THE INFORMATION TECHNOLOGY EXCHANGE PROGRAM
18 U.S.C. § 207(l). One-year ban on representing, aiding, counseling, or assisting.
For one year after the termination of his or her assignment from a private sector organization to an agency under the Information Technology Exchange Program (5 U.S.C., chapter 37), no former assignee may knowingly represent, aid, counsel, or assist in representing any other person (other than the United States) in connection with any contract with that agency. This provision prohibits behind-the-scenes assistance. “Behind-the-scenes assistance” is defined the same way as for 18 U.S.C. § 207(a)(1).
OTHER IMPORTANT FEATURES OF 18 U.S.C. § 207
1. For the one-year prohibitions of 18 U.S.C. §§ 207 (c) and (f) and the two-year prohibition of 18 U.S.C. § 207(d): The period is measured from the date when an employee ceases to be a senior or very senior employee, not from the termination of Government service, unless the two occur simultaneously.
2. An exception is provided to all of the prohibitions of 18 U.S.C. § 207 when the post-employment activities are performed:
(a) in carrying out official duties on behalf of the United States, or
(b) in carrying out official duties as an elected official of a state or local Government.
3. Exceptions are provided to former senior or very senior employees for the one-year bans of 18 U.S.C. § 207 (c) and the two-year ban of 18 U.S.C. § 207(d) when the communication or appearance is made in carrying out official duties as an employee of and is made on behalf of:
(a) an agency or instrumentality of a State or local Government,
(b) an accredited degree-granting institution of higher education as defined in 20 U.S.C. § 1001,
(c) a hospital or medical research organization exempted and defined under 26 U.S.C. § 501 (c)(3), or
(d) a candidate for Federal or State office or an authorized committee, a national committee, a national Federal campaign committee, a State committee, or a political party. For this last exception (exception (d)) to apply, the former employee may not be employed by anyone other than a candidate, one of the specified political organizations, or a person or entity who represents or advises only such candidates or political organizations.
4. An exception is provided to all of the prohibitions of 18 U.S.C. § 207 for a former employee who is carrying out official duties as an employee or as an elected or appointed official of a tribal organization or inter-tribal consortium when communicating or appearing on behalf of such tribal organization or inter-tribal consortium in connection with any matter related to a tribal governmental activity or Federal Indian program or service pending before any department, agency, court, or commission, including any matter in which the United States is a party or has a direct and substantial interest. In order for this exception to apply, the former employee must advise, in writing, the head of the department, agency, court, or commission with which he or she is dealing or before which he or she is appearing on behalf of the tribal organization or inter-tribal consortium of any personal and substantial involvement he or she may have had as an officer or employee of the United States in connection with the matter involved. (See 25 U.S.C. § 450i(j).) Contact your ethics official if you think this exception may apply to you.
5. The restrictions of 18 U.S.C. §§ 207(a)(1), (a)(2), (c), and (d) do not apply to communications made solely for the purpose of furnishing scientific or technological information pursuant to agency procedures. The Government-wide regulations treat this area realistically, providing for exchanges to determine the nature of technical problems facing the Government, to provide information to solve the problem, and to inform the Government of the practical significance of scientific and technological alternatives.
6. The restrictions of 18 U.S.C. §§ 207(c) and (d) do not prevent a former senior or very senior employee from making or providing a statement, which is based on the former employee’s own special knowledge in the particular area that is the subject of the statement, if no compensation is thereby received. A “statement,” for purposes of this exception, is a communication of facts observed by the former employee.
7. The restrictions of 18 U.S.C. §§ 207(c) and (d) do not apply to certain communications or appearances by former senior or very senior employees made solely on behalf of a candidate in his or her capacity as a candidate, an authorized committee, a national committee, a national Federal campaign committee, a State committee, or a political party.
8. Contacts with and appearances before Congress are not prohibited by 18 U.S.C. §§ 207(a)(1), (a)(2), (c), (d), and (f).
9. Subject to certain limitations concerning expert witness testimony, a former employee is not prohibited by any of the prohibitions of 18 U.S.C. § 207 from giving testimony under oath or making a statement required to be made under penalty of perjury.
18 U.S.C. § 203
Prohibition Against Receiving Compensation for "Representational Services"
18 U.S.C. § 203 prohibits a former employee from receiving any compensation for "representational services" in connection with a particular matter in which the United States is a party or has a direct and substantial interest, if the covered representational services were provided at a time when the individual was a Government employee, and regardless of whether or not the individual personally provided those representational services.
"Representational services" means communications to or appearances before Federal entities with the intent to influence the Government on behalf of a third party. This includes legal and consulting services.
The prohibition applies equally to representational services rendered by the former employee personally or by another if the employee shares in the compensation. Accordingly, you would not be permitted to share in compensation received by your employer for representational services it provided to a third party, in connection with a particular matter in which the United States is a party or has a direct and substantial interest, at the time you were a Government employee.
(a) Whoever engages in conduct constituting an offense of 18 U.S.C. § 207 or 18 U.S.C. § 203 shall be imprisoned for not more than one year or fined an amount not to exceed $100,000, or both.
(b) Whoever WILLFULLY engages in conduct constituting an offense of 18 U.S.C. § 207 or 18 U.S.C. § 203 shall be imprisoned for not more than five years or fined an amount not to exceed $250,000, or both.
(c) The Attorney General may bring a civil action in the appropriate U.S. District Court against any person who engages in conduct constituting an offense under 18 U.S.C. § 207 or 18 U.S.C. § 203 and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $55,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of such a civil penalty does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available to the U.S. or any other person.
(d) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under 18 U.S.C. § 207 or 18 U.S.C. § 203, the Attorney General may petition an appropriate U.S. district court for an order prohibiting that person from engaging in such conduct. The filing of such a petition does not preclude any other remedy which is available to the U.S. or any other person.
These penalties can be found in 18 U.S.C. § 216 (as modified by 28 C.F.R. § 85.3).
PROCUREMENT INTEGRITY ACT
41 U.S.C. § 2104; 48 C.F.R. §§ 3.104-1 to 3.104-9
An employee may not disclose “contractor bid or proposal information” or “source selection information” other than as provided for by law.
If an employee is serving in one of seven specified positions (procuring contracting officer, program manager, source selection authority, etc.) or makes one of seven specified types of decisions (award a contract, establish overhead rates, approve issuance of a payment, etc.), on a contract over $10 million, the employee may not accept compensation (as an employee, consultant, officer, or director) from the contractor for one year. An employee should consult his or her ethics counselor for additional information on the Procurement Integrity Act.
Ethics Pledge Provisions for Political Appointees
Political Appointee. The term “political appointee” includes every full-time, non-career Presidential or Vice-Presidential appointee, non-career appointee in the Senior Executive Service (or other SES-type system), and appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C and other positions excepted under comparable criteria) in an executive agency.
Revolving Door Ban: Appointees Leaving Government. A political appointee who is subject to the post-employment restrictions of 18 U.S.C. § 207(c) (see above) must abide by those restrictions for a period of 2 years following the end of his or her appointment, as opposed to the 1-year period that applies for non-political appointees.
Revolving Door Ban: Appointees Leaving Government to Lobby. A political appointee is prohibited, upon leaving Government service, from lobbying any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration. The term "covered executive branch official" means -
(A) the President;
(B) the Vice President;
(C) any officer or employee, or any other individual functioning in the capacity of such an officer or employee, in the Executive Office of the President;
(D) any officer or employee serving in a position in level I, II, III, IV, or V of the Executive Schedule, as designated by statute or Executive order;
(E) any member of the uniformed services whose pay
grade is at or above O-7 under section 201 of title 37; and
(F) any officer or employee serving in a position of a confidential, policy-determining, policy-making, or policy-advocating character described in section 7511(b)(2)(B) of title 5 (Schedule C employees).
OUTER CONTINENTAL SHELF LANDS ACT RESTRICTIONS
43 U.S.C. § 1355
No full-time officer or employee of the Department of the Interior who directly or indirectly discharged duties or responsibilities under the Outer Continental Shelf Lands Act, and who was at any time during the 12 months preceding the termination of his or her employment with the Department compensated under the Executive Schedule or compensated at a rate of basic pay equal to or greater than 120% of the minimum rate of basic pay for GS-15 of the General Schedule ($119,553.60 for calendar year 2012) shall--
(1) within 2 years after his or her employment with the Department has ceased--
(A) knowingly act as agent or attorney for, or otherwise represent, any other person (except the United States) in any formal or informal appearance before;
(B) with the intent to influence, make any oral or written communication on behalf of any other person (except the United States) to; or
(C) knowingly aid or assist (including behind-the-scenes assistance) in representing any other person (except the United States) in any formal or informal appearance before,
any department, agency, or court of the United States, or any officer or employee thereof, in connection with any judicial or other proceeding, application, request for a ruling or other determination, regulation, order, lease, permit, rulemaking, or other particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest which was actually pending under his or her official responsibility as an officer or employee within a period of 1 year prior to the termination of such responsibility or in which he or she participated personally and substantially as an officer or employee; or
(2) within one year after his or her employment with the Department has ceased--
(A) knowingly act as agent or attorney for, or otherwise represent, any other person (except the United States) in any formal or informal appearance before; or
(B) with the intent to influence, make any oral or written communication on behalf of any other person (except the United States) to,
the Department of the Interior, or any officer or employee thereof, in connection with any judicial, rulemaking, regulation, order, lease, permit, regulation, or other particular matter which is pending before the Department of the Interior or in which the Department has a direct and substantial interest.
ADDITIONAL CONSIDERATIONS FOR ATTORNEYS
Attorney Professional Responsibility. Attorneys are generally subject to the professional responsibility rules of the jurisdiction(s) in which they are licensed. These rules are separate and distinct from the Federal Government ethics statutes and regulations. For example, Rule 1.11 of the American Bar Association Model Rules of Professional Conduct contains special conflicts of interest provisions for former and current Government officers and employees. Accordingly, attorneys should check with their licensing jurisdiction(s) to determine whether any professional responsibility rules may impact their post-Government employment plans.
Points of Contact
• Departmental Ethics Office
• Bureau of Indian Affairs (BIA)
• Bureau of Reclamation (USBR)
• Bureau of Ocean Energy Management (BOEM) and
Bureau of Safety and Environmental Enforcement (BSEE)
• National Park Service (NPS)
• Office of the Inspector General (OIG)
• Office of Surface Mining Reclamation and
• U.S. Fish and Wildlife Service (USFWS)
• U.S. Geological Survey (USGS)
703-648-7474, 7422, 7439
• Bureau of Land Management (BLM)
• NATIONAL INDIAN GAMING COMMISSION (NIGC)
• OFFICE OF THE SPECIAL TRUSTEE (OST)
THIS DOCUMENT PROVIDES ONLY A SUMMARY OF THE SEEKING EMPLOYMENT AND POST-EMPLOYMENT RESTRICTIONS. IF YOU HAVE ANY QUESTIONS REGARDING ANY OF THESE RESTRICTIONS, YOU SHOULD SEEK THE ADVICE OF YOUR SERVICING ETHICS COUNSELOR OR THE DEPARTMENTAL ETHICS OFFICE AT:
U.S. Department of the Interior
Departmental Ethics Office
1849 C St. NW – MS 7346
Washington, D.C. 20240