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18 U.S.C. (section) 207(a)(1) "lifetime representation ban" opinions: a lifetime's work for agency ethics officials and advisors.

 I. INTRODUCTION

 II. LIFETIME REPRESENTATION BAN--18 U.S.C. [section] 207(a)(1)
 A. "Former officers, employees and elected officials of
 the executive and legislative branches"
 B. "Knowingly makes"
 C. "With intent to influence"
 D. "Any communication to or appearance before any officer
 or employee of any department, agency, court, or court-martial
 of the United States"
 E. "On behalf of any other person (except the United States
 or the District of Columbia)"
 F. "In connection with a particular matter"
 G. "In which the United States is a party or has a direct and
 substantial interest"
 H. "In which the person has participated personally and
 substantially"
 I. "Which involved a specific party or specific parties at the
 time of such participation"

III. REQUIREMENTS TO PROVIDE ADVICE REGARDING
 APPLICABILITY OF 18 U.S.C. [section] 207(a)(1)
 A. New Act
 B. New Regulation

 IV. 18 U.S.C. [section] 207(a)(1) OPINIONS
 A. Generally
 B. Have a Template Ready
 C. Avoid Contractor-Specific Opinions
 D. Have Caveats Ready
 E. Have Questions Ready and Limit Information Seeking
 F. Oral Advice
 G. Getting Into Specifics
 H. Limitations on Ability to Discuss Certain Elements of
 Statute
 I. After-the-Fact Advice
 J. Conducting Your Own Investigation
 K. Understand Special Categories of Employees
 1. Enlisted Military Personnel
 2. Special Government Employees
 3. Military Reserve Officers
 4. Intergovernmental Personnel Act and Information
 Technology Exchange Program Personnel
 5. National Guard Officers
 6. Senior Employees

 V. CONCLUSION


I. INTRODUCTION

Recent legislation and regulations are likely to cause a substantial increase in the number of 18 U.S.C. [section] 2071 opinions that agency ethics officials are requested to provide as well as the depth and breadth of those reviews. The vast majority of additional reviews will be targeted at 18 U.S.C. [section] 207(a)(1), otherwise known as the "lifetime representation ban," which applies to all officers and employees of the executive branch and certain other agencies. Accordingly, it is extremely valuable for ethics advisors to understand the new statutes and regulations as well as 18 U.S.C. [section] 207(a)(1).

This article will first review the elements of 18 U.S.C. [section]207(a)(1) and the interpretation of those elements as can be gleaned from Office of Government Ethics (OGE) regulations, OGE opinions, Department of Justice memoranda, court cases, and other sources. Second, the article will focus on recent legislation and rulemaking and the specific responsibilities of government ethics advisors to provide 18 U.S.C. [section] 207(a)(1) opinions. Finally, the article will offer practical suggestions for drafting 18 U.S.C. [section] 207(a)(1) opinions recognizing the limitations inherent in providing prospective 18 U.S.C. [section] 207(a)(1) advice. This article is focused primarily on ethics advice within the Department of Defense (DOD), although it may have broader applicability.

II. LIFETIME REPRESENTATION BAN--18 U.S.C. [section] 207(a)(1)

The text of 18 U.S.C. [section] 207(a)(1) is not extensive, but almost every word merits additional definition and interpretation. The statute reads as follows:

Restrictions on former officers, employees, and elected officials of the executive and legislative branches

(a) Restrictions on all officers and employees of the executive branch and certain other agencies.

(1) Permanent restrictions on representation on particular matters. Any person who is an officer or employee (including any special Government employee) of the executive branch of the United States (including any independent agency of the United States), or of the District of Columbia, and who, after the termination of his or her service or employment with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia) in connection with a particular matter--

(A) in which the United States or the District of Columbia is a party or has a direct and substantial interest,

(B) in which the person participated personally and substantially as such officer or employee, and

(C) which involved a specific party or specific parties at the time of such participation, shall be punished as provided in section 216 of this title. (2)

A. "Former officers, employees and elected officials of the executive and legislative branches"

By its terms, 18 U.S.C. [section] 207(a)(1) applies to all "former" officers or employees of the Department of Defense for life (or at least for the life of the particular matters in which a person participated personally and substantially during his or her government employment) no matter how long they were an employee. The statute applies to all former employees, including employees hired "to perform temporary duties either on a full-time or intermittent basis, with or without compensation." (3) It includes employees under the Intergovernmental Personnel Act (4) and Information Technology Exchange Program (5). However, it does not apply to enlisted military personnel. (6)

An individual will be considered a "former" employee after any completion of a period of service for the government. (7) While the statute uses the phrase "after the termination of his or her service or employment with the United States," there are some circumstances where the individual does not have to fully terminate his employment relationship in order to be considered a "former" employee. Accordingly, military reservists become "former" employees after each period on active duty orders for purposes of the statute. (8) Senior employees (general officers and Senior Executive Service (SES) or equivalent) become "former" employees at the end of each specific senior employee position they hold. National guardsmen would become "former" employees after each completion of a period of federal service.

B. "Knowingly makes"

The statute requires that prohibited conduct be done "knowingly." In particular, "knowingly makes" applies both to "communication to ... any officer or employee..." and "appearance before ... any officer or employee..." (9) Two examples illustrate the possible complexity.

First, suppose a former employee knowingly makes an appearance at a meeting with government employees without intent to influence, then during the meeting unknowingly makes a communication (suppose the person nodded his head to another contractor and it is perceived to be in response to what a government employee is saying) that is perceived to be made with intent to influence. Under those facts, there is no violation from the appearance, which was made "knowingly," but without "intent to influence;" and there is no violation from the communication because it was not "knowingly" made to a government employee.

Second, suppose a former employee unknowingly makes an appearance at a meeting with government employees (suppose the former employee thinks all participants are contractors), then knowingly makes a communication with intent to influence. Under those facts there is no violation from the appearance or communication since they were not made "knowingly" before or to a government employee.

It may be less clear the extent to which "knowingly makes" applies to other requirements of the statute, but the Office of Government Ethics (OGE) has opined that a former employee who in good faith does not remember prior personal and substantial participation during government employment does not violate the statute when the former employee knowingly makes a communication regarding the same matter to the government, because the employee is not "knowingly" making a communication "in connection with a particular matter ... in which the person participated personally and substantially as such officer or employee." (10) Taking this analysis one step further, a former employee might argue that although he knew he made a communication regarding a particular matter he previously participated in as a government employee, he cannot be found to have violated the statute if he did not know the particular matter involved specific parties at the time he participated in the matter as a government employee.

C. "With intent to influence"

The statute requires that the prohibited conduct have been done "with intent to influence." Accordingly, it is not enough that one knowingly appears before or communicates with government employees about a prohibited matter. It is not a violation of the statute unless it is done with specific "intent to influence." A communication is made with intent to influence when made for the purpose of "seeking a Government ruling, benefit, approval, or other discretionary Government action" or for the purpose of "affecting Government action in connection with an issue of aspect of a matter which involves an appreciable element of actual or potential dispute or controversy." (11) Most communications by a former employee on behalf of private interests to a government official in the course of official government business can be presumed to have some intent to influence government action.

OGE has not attempted to further define "intent to influence," but instead has provided some examples of communications that will not be considered to have been made with intent to influence. First, communications solely for the purpose of making a routine request not involving a potential controversy will not be considered communications with intent to influence. (12) Not every routine request will fall within this exception. Routine requests are made every day which involve no actual controversy, but still involve "potential" controversy. For example, a request for an extension of time might be a routine request and there may no government opposition (i.e., actual controversy), but it certainly involves "potential" controversy. Those routine requests would be made with intent to influence. On the other hand, the examples given in the OGE regulation of routine requests made without intent to influence (i.e., a request for publicly available documents or an inquiry as to the status of a matter) are routine requests without "potential" controversy, because there does not appear to be any reasonable basis for the government to refuse the request.

Second, communications solely for the purpose of making factual statements or asking factual questions in a context that involves neither an appreciable element of dispute nor an effort to seek discretionary government action, such as conveying factual information that are not considered potentially controversial during the regular course of performance of a contract will not be considered communications made with intent to influence. While this exception may appear broad, OGE has been cautious about encouraging former employees to rely on it, because the exchange of factual information frequently involves issues of "potential" controversy. Further, although some agencies have sought latitude to allow former employees to make communications on behalf of contractors in connection with government contracts previously worked on by the employee, OGE has specifically rejected such attempts. (13) The limited scope of the exception is reflected in the OGE examples. In the one example provided by OGE where the communication is not made with intent to influence, the contractor is seeking factual information from the government. (14) Obviously, where the government is transferring information to the former employee there is less ability for the former employee to exercise influence. On the other hand, the two examples provided by OGE where the communication is with intent to influence both involve situations where the former employee is initiating the presentation of factual information to the government. (15) The examples recognize that where the former employee is presenting information to the government, even where it is just "factual information," there is frequently an "appreciable element of dispute" or "an effort to seek discretionary government action," which will prevent this exception from applying. (16)

Third, communications solely for the purpose of
 [m]aking a communication, at the initiation of the
 Government, concerning work performed or to be
 performed under a Government contract or grant,
 during a routine Government site visit to premises
 owned or occupied by a person other than the United
 States where the work is performed or would be
 performed, in the ordinary course of evaluation,
 administration, or performance of an actual or proposed
 contract or grant


will not be considered a communication made with intent to influence. (17) This is a limited allowance recognized for "site visits" at contractor facilities. (18) Site visits are a limited occurrence, and the requirement that communication be "at the initiation of the Government" further mitigates the likelihood that communications will be made with intent to influence.

Fourth, additional communications not considered to be made with intent to influence include signing and filing another person's tax return, signing an assurance that one will be the principal investigator for the direction and conduct of research under a government grant, filing an SEC form 10-K, and purely social contacts. (19)

D. "Any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States"

Normally it is clear when there has been an "appearance before any officer or employee ..." or a "communication to ... any officer or employee ..." However, an appearance does not necessarily have to be face-to-face. An appearance might be by video teleconference or even by telephonic participation. Further a communication can be in any form (e.g., oral, in writing, by gesture, by look, by touch, by video message, by audio message, etc.).

A communication to a government employee may also occur through a third party intermediary where the former employee knows the communication will be attributed to him. (20) In 2001, the Department of Justice Office of Legal Counsel issued an opinion that if a former government employee established a consulting firm as a sole proprietorship, a partnership, or a corporation in which he would be one of a very few employees, or perhaps even the sole employee and if the consulting firm prepares a report on behalf of certain clients, which is submitted directly to his former agency by the consulting firm or, with the former official's knowledge, by his client with the report bearing the consulting firm's name, and if it is expected by the former official that his identity as the author of the report may be commonly known throughout the industry and at his former agency, he would be making a communication prohibited by 18 U.S.C. [section] 207(c). The bottom line is that if the former employee knows the communication is likely to be attributed to him it may be attributed to him for purposes of the statute, regardless of whether the communication was made by a third party. Although the memo specifically addresses [section] 207(c) it appears equally applicable to the use of "communication" under [section] 207(a)(1) as well.

E. "On behalf of any other person (except the United States or the District of Columbia)"

The requirement that the appearance or communication from a former government employee be made "on behalf of any other person (except the United States or District of Columbia)" seems pretty straightforward. "Any other person" apparently means any person other than (1) the former employee, (2) the United States, or (3) the District of Columbia. OGE has specifically opined that a former employee does not violate the statute by communicating with the government on his own behalf on a matter he previously participated in personally and substantially. (21) However, when the former employee is acting as an agent of another, an attorney of another, or with the consent of and pursuant to some degree of control or direction of another, he will not be considered to be acting on his own behalf. (22)

A former employee does not violate the prohibition if the communication occurs on behalf of the United States. Normally, contractor employees do not represent the United States and their communications are not made on behalf of the United States. Contractor employees always remain the agents of the contractor (23) and represent the contractor, not the United States. However, in limited circumstances, a former employee may represent the United States where: (1) the former employee has a specific agreement with the United States to provide representational services, or (2) as a witness called by the United States to testify at a congressional hearing. (24)

F. "In connection with a particular matter"

A "particular matter" is a broad defined term and includes "any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding." (25) Some of these terms are broad, e.g. "controversy", "claim", "application," and could apply to potentially any interaction between the government and a private party. While the term "particular matter" is broad, not every matter is a "particular matter." A "particular matter" is limited to those matters "focused upon the interests of specific persons, or a discrete and identifiable class of persons." (26) Particular matter does not cover broad policy or regulatory action. (27)

G. "In which the United States is a party or has a direct and substantial interest"

Normally, it will not be difficult to determine that the United States has a direct and substantial interest in a particular matter. If the United States did not have an interest, why would the person have worked on the matter as a government employee?

H. "In which the person has participated personally and substantially"

Personal and substantial participation is another defined term. Generally, an individual knows when he has personally participated in something. Nevertheless there may be differences of opinion regarding how much participation and what level of participation is necessary before an individual's participation becomes substantial. From a layman's perspective "substantial" may appear to be a high standard. However, the additional guidance in the OGE regulation (28) and OGE opinions suggest a lower standard. Differences in interpretation occur because substantial can mean both "consisting of or relating to substance" as well as "considerable in quantity; significantly great." (29) Under the first definition, anything that is substantive or meaningful is substantial. Under the second definition, only something that is quantitatively or qualitatively considerable is substantial.

OGE regulations require only that the participation be "of significance" to the matter in order to be substantial, and the examples of what is not substantial (i.e., mere knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue) are not merely examples of minor involvement, but rather involvement that is so minor that it is not substantive. OGE opinions also find "substantial" participation where the individual's participation is minor, but still substantive. For example, OGE reviewed the case of a former government employee who claimed his participation was a review "focused on one paragraph of the RFP in order to make whatever changes were necessary so that the document accurately reflected the role of [his] directorate" and where the individual "spent a limited amount of time on the review." (30) OGE opined the participation was substantial participation in the contract.

As indicated, OGE has not interpreted "substantial" participation to mean a "considerable amount" of participation, and OGE regulations and OGE opinions generally reject attempts to define "substantial" participation by weighing the individual's effort against the total government effort on the particular matter. "Provided an employee participates in the substantive merits of a matter, his participation may be substantial even though his role in the matter ... may be minor in relation to the matter as a whole." (31) OGE has also rejected any attempts to set a dollar threshold for substantial participation. (32)

Likewise, OGE has not interpreted "substantial" participation to mean participation of "considerable" impact, such as a final government decision on a matter. OGE has rejected attempts to limit substantial participation to decision makers. (33) Any participation; including review, evaluation or recommendation, may be substantial "provided an employee participates in the substantive merits of a matter."

While participation does not have to be "considerable" to be "substantial," significant peripheral activities may not be considered substantial participation in particular contracts. For example, OGE reviewed the GSA's role in auditing contract bills submitted by contractors. OGE found that auditing contract bills was not substantial participation in the contracts. (34) Nor is the fact the employee reviewed significant documents always considered substantial. (35) Other examples of substantial participation follow similar reasoning. (36)

The issue of substantial participation is particularly sensitive with senior employees who have a great deal of influence. With senior employees, even general guidance provided at "informational briefings" and status updates may rise to the level of substantial participation, and OGE may scrutinize such briefings. (37)

Substantial participation is normally based upon participation after the matter becomes a particular matter "between specific parties"; however, in at least one opinion OGE looked to the totality of the former employee's participation in the particular matter, both before and after the matter involved specific parties, to determine whether the employees participation was substantial. (38)

Note that while an ethics advisor will generally provide the same conservative advice as OGE, courts may be more likely to find participation is not "substantial." In CNA Corp. v. United States, (39) an individual clearly participated in taking action through "decision, ... recommendation, the rendering of advice, investigation, or other such action" (40) when she lead a study team to help develop a protocol to be used in a large NIH study. Although OGE opinions generally reject "substantiality" analyses that compare the employee's participation to the scope of the entire effort on a particular matter, the court in CNA Corp. placed significant weight on the fact that the employee was involved in only one of twenty-two groups developing protocols for the study and that ultimate the study would be a twenty-year study involving 105 study centers and 100,000 children. (41) Additionally, OGE opinions often point out that "participation" does not have to be through "decision" in order to be substantial. Frequently, rendering advice to other government decision makers is considered substantial participation. Nevertheless, the court in CNA Corp. also placed significant weight on the fact that the employee was merely making recommendations and not in charge of the ultimate decision regarding the contents of the protocol. (42)

I. "Which involved a specific party or specific parties at the time of such participation"

A "particular matter" involves specific parties if some specific parties that are likely to be affected are known and "typically involves a specific proceeding affecting the legal rights of the parties, or an isolatable transaction or related set of transactions between identified parties." (43) A particular matter may be between specific parties regardless of whether the government is in direct interaction with those parties. (44) General legislation, rulemaking, and government planning activities will not normally involve specific parties even though it may have an effect on private interests. (45) The matter need not involve the same parties both at the time the employee is involved in the matter as a government employee and at the time the former employee is involved as the representative of a private party. (46)

III. REQUIREMENTS TO PROVIDE ADVICE REGARDING APPLICABILITY OF 18 U.S.C. [section] 207(a)(1)

Two recent actions have sharply focused responsibility for providing advisory opinions on agency ethics officials. While the exact effect is unknown, experience indicates that the breadth and depth of opinions sought will increase. Former employees who before would not have sought an opinion will likely be urged to do so now as a matter of precaution by their private employer. (47) Former employees who would have sought one overarching opinion upon leaving government employment will now be likely to seek frequent update opinions whenever they change employers or significant duties. In addition, given the asserted protective nature of such opinions, former employees are likely to press for more definitive opinions on the applicability of a very subjective statute.

A. New Act

On 28 January 2008, the President signed the 2008 National Defense Authorization Act (NDAA). (48) In addition to requiring senior employees (general officers and SES employees) to obtain ethics advice before seeking employment with a defense contractor, section 847 of the NDAA now requires any government employee who "serves or served as a program manager, deputy program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team" for a contract award in an amount in excess of $10,000,000 to obtain a written opinion regarding the applicability of post-government employment restrictions to activities that the official or former official may undertake on behalf of a contractor from a DOD ethics official prior to being able to work for the defense contractor. Section 847 reads:

REQUIREMENTS FOR SENIOR DEPARTMENT OF DEFENSE OFFICIALS SEEKING EMPLOYMENT WITH DEFENSE CONTRACTORS.

(a) REQUIREMENT TO SEEK AND OBTAIN WRITTEN OPINION.--

(1) REQUEST.--An official or former official of the Department of Defense described in subsection (c) who, within two years after leaving service in the Department of Defense, expects to receive compensation from a Department of Defense contractor, shall, prior to accepting such compensation, request a written opinion regarding the applicability of post-employment restrictions to activities that the official or former official may undertake on behalf of a contractor.

(3) WRITTEN OPINION.--Not later than 30 days after receiving a request by an official or former official of the Department of Defense described in subsection (c), the appropriate ethics counselor shall provide such official or former official a written opinion regarding the applicability or inapplicability of post-employment restrictions to activities that the official or former official may undertake on behalf of a contractor."

(c) COVERED DEPARTMENT OF DEFENSE OFFICIALS.--An official or former official of the Department of Defense is covered by the requirements of this section if such official or former official--

(2) serves or served as a program manager, deputy program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team for a contract in an amount in excess of $10,000,000.

(d) DEFINITION.--In this section, the term "post-employment restrictions" includes--(1) section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. 423);

(2) section 207 of title 18, United States Code; and

(3) any other statute or regulation restricting the employment or activities of individuals who leave government service in the Department of Defense. (49)

Section 847 appears to be targeted at those former employees who would normally be subject to 41 U.S.C. [section] 423 (50) (the Procurement Integrity Act) provisions, which applies to the same defined category of former employees. The Procurement Integrity Act restrictions only apply to employees who served in those positions during their last year of government employment. However, section 847 does not appear so limited. A "covered Department of Defense official" under section 847 includes a former employee if such former employee "served as program manager, deputy program manager ..." without any set time limit. To the extent that section 847 requires a mandatory ethics advisory opinion for anyone who has served in these positions during his entire government career, it is sure to substantially increase the number of requested ethics opinions.

The DOD Standards of Conduct Office has issued guidance on section 847 for DOD ethics advisors. (51) The guidance is that only individuals who served in those positions at the time they left government service or are serving in those positions at the time they request an ethics opinion are "covered Department of Defense officials" for purposes of section 847. (52) Accordingly, DOD ethics advisors will generally advise former employees that they are not covered by section 847 unless they served as a program manager, deputy program manager, etc., during their last year of government employment. However, this doesn't preclude individual government employees from drawing different conclusions about whether the language of section 847 applies to prior positions and requesting an ethics opinion just in case.

The 2008 NDAA is specific that post-government employment advice will include advice on the applicability of 18 U.S.C. [section] 207, but it leaves the breadth and depth those opinions need to take open to judgment. While agency ethics officials have always provided general guidance on the application of 18 U.S.C. [section] 207, specific opinions regarding particular potential future work are rarely provided, and when provided, are usually heavily qualified. First, such opinions inherently require review of a statute that the ethics advisor has no ability to authoritatively interpret. Second, the value of case-specific prospective advice is highly fact dependent, and the facts may change on a daily basis.

Section 847 does state "the appropriate ethics counselor shall provide such official or former official a written opinion regarding the applicability or inapplicability of post-employment restrictions to activities that the official or former official may undertake on behalf of a contractor." (emphasis added). This language seems to encourage more specific reviews of applicability or inapplicability. It also suggests the review needs to consider specific potential future employment the former employee may undertake. A standard caveat in ethics opinions is that the reviewer does not attempt to guess as to what the former employee's future job might be. The reviewer often explains the application of the statute generally or with examples, but the opinion is not specific to any particular employer or job. Again, the 2008 NDAA seems to push for more tailored reviews, suggesting the reviewer should tailor post-government employment advice to account for specific activities that the official or former official may undertake on behalf of a contractor.

Section 847 further places ethics advisors under a time constraint that may lead to litigation to which the government had not previously been exposed. While there have been regulatory timelines for providing ethics opinions (53) there has been no statutory deadline. Section 847 now changes that by placing a thirty-day statutory deadline on the government when providing advice. This is significant because the government has been sued in the past for failure to provide post-government employment ethics opinions in a timely manner.

In particular, in the case of Shapiro v. United States, (54) an attorney formerly employed by the Department of Labor sued the U.S. for failure to issue a post-government employment ethics opinion in a timely manner. A request for an opinion made on 17 June 1981 stated the attorney's potential employer, a law firm, would only hold the position open for him until 15 July 1981. The agency did not provide an opinion saying there was no apparent restriction until 4 September 1981. The former employee was still able to start working for the law firm, but apparently his first case was to sue the government under the Federal Tort Claims Act (FTCA) for lost wages he claimed he would have received if the government's opinion had been timely (i.e., within 30 days). The court noted that one exception to waiver of sovereign immunity and allowing suit under the FTCA was for "discretionary acts." The court found that deadlines set by the executive branch in regulations were discretionary as opposed to statutory deadlines and held that the government could not be sued under the FTCA for failure to meet those deadlines. Section 847 now establishes a statutory deadline, and the defense against suit from Shapiro would appear to no longer apply.

Section 847 also provides an additional recordkeeping requirement. Each ethics opinion provided is to be maintained in a central database. Pending establishment of a central database, ethics advisors must maintain their own database, allowing them to quickly search and retrieve such opinions.

B. New Regulation

On 25 June 2008, OGE published substantial revisions to its post-government employment ethics regulations regarding application of 18 U.S.C. [section] 207. One of the new provisions, 5 CFR [section] 2642.105, (55) deals with the issuance of ethics opinions regarding 18 U.S.C. [section] 207. Under 5 CFR [section] 2642.105, OGE specifically directs former employees to seek advice regarding 18 U.S.C. [section] 207 from agency ethics officials in their former agency and advises former employees that good faith reliance on such an opinion may be viewed favorably by the Department of Justice when considering whether to prosecute the former employee for a violation.

Prior to 25 June 2008, the only specific regulatory guidance from OGE regarding seeking ethics opinions under 18 U.S.C. [section] 207 appeared in 5 CFR [section] 2637.102, which stated
 In certain complex factual cases, the agency with which the former
 Government employee was associated is likely to be in the best
 position to make a determination as to certain issues, for example,
 the identity or existence of a particular matter. Designated agency
 ethics officials should provide advice promptly to former
 Government employees who make inquiry on any matter arising under
 these regulations. (56)


The focus of this language was on "complex factual cases" and the determination of whether a matter the employee had worked on in his government employment rose to the level of a "particular matter." Indeed, although the person in the best position to know what matters he worked on for the government is the former government employee, the determination of when a matter became a "particular" matter between specific parties often involves looking beyond the employees specific participation to what was occurring within the agency.

In the revisions, OGE has expanded this one paragraph to an entire section:

[section] 2641.105 Advice.

(a) Agency ethics officials. Current or former employees or others who have questions about 18 U.S.C. 207 or about this part 2641 should seek advice from a designated agency ethics official or another agency ethics official. The agency in which an individual formerly served has the primary responsibility to provide oral or written advice concerning a former employee's post-employment activities

(c) Effect of advice. Reliance on the oral or written advice of an agency ethics official or the OGE cannot ensure that a former employee will not be prosecuted for a violation of 18 U.S.C. 207. However, good faith reliance on such advice is a factor that may be taken into account by the Department of Justice (DOJ) in the selection of cases for prosecution ... (57)

The new regulatory guidance is significant in several respects. First, it pushes the former employee to seek out his agency ethics advisor frequently. The previous guidance merely raised the possibility that the employee may get more information from his former agency on whether what he worked on was a "particular" matter involving specific parties when the issue is a "complex factual" case. The new guidance states the employee "should" address "questions about 18 U.S.C. [section] 207" to the agency ethics counselor. Effectively, it directs employees to go to agency ethics counselors on any 18 U.S.C. [section] 207 question. And because many 18 U.S.C. [section] 207(a)(1) issues can be highly fact sensitive, it encourages employees to return to the agency ethics advisor on a continuing basis as facts change. Second, it emphasizes that the agency ethics official has the "primary responsibility" for issuing such opinions. It is likely that this provision will be used by corporate counsel to disclaim any responsibility for advising the company's employees as to what work they can do for the company. Third, it encourages former employees to attribute special value and authority to the agency ethics advisor's opinion by suggesting that the Department of Justice will not prosecute the employee if he violates the law in reliance on an ethics advisor's opinion. Given this direct advice from OGE, there is likely to be a substantial increase in requests from employees and former employees for opinions related to 18 U.S.C. [section]207.

IV. 18 U.S.C. [section] 207(a)(1) OPINIONS

A. Generally

Given the increased emphasis on agency ethics advisors providing guidance to former employees and prospective former employees (i.e., current employees) on the violation of a criminal statute (usually prospectively, but in some cases with respect to conduct which has already occurred), how should the ethics advisor approach this daunting task? How can you provide meaningful prospective advice? How do you deal with repeated requests for revised opinions? How far must you go to investigate the particular matters the individual has been involved in on behalf of the agency? What are the limits in providing advice?

Usually the ethics advisor starts with general advice not tailored to the former employee's situation. In many cases this will be sufficient to address the former employee's concerns, especially where the former employee intends to pursue post-government interests unrelated to his former government employment. However, a significant number of former employees will indeed seek continued employment in a private capacity related to the work they have done in their government employment. Such former employees often wish to capitalize on their government experience to obtain the best employment possible. The employee is free to use his general expertise, but use of his specific experience and contacts developed while in government employment may violate 18 U.S.C. [section] 207(a)(1).

Nor is the former employee the only party interested in maximizing use of his specific experience and contacts. Companies also consider specific experience and contacts to be valuable and want to continue to exploit those when hiring the former government employee. The government organization in which the employee formerly worked is often equally happy to continue to exploit that specific experience and contacts in the form of a contractor employee. These are pressures that the ethics advisor must put aside when interpreting 18 U.S.C. [section] 207(a)(1).

Although all these parties frequently want the former employee to be able to do what 18 U.S.C. [section] 207(a)(1) prohibits, none of them want to violate this criminal statute. They feel the ethics advisor's opinion is a shield to protect them in case they are ever questioned. Even if the former employee is not concerned, the potential employer will usually demand an opinion. In fact, it is frequently the potential employer that seeks to have the government provide an ethics opinion regarding what the employee may be restricted from doing on behalf of the company.

Accordingly, these are situations where the ethics advisor is likely to be asked more detailed and specific questions and be faced with a myriad of interests (the former employee, the potential employer, and the government organization) with goals that are potentially at odds with 18 U.S.C. [section] 207(a)(1). Given the difficulties with rendering such opinions and recognizing the clear direction to ethics advisors to provide advice on 18 U.S.C. [section] 207(a)(1) issues, it is important to develop a strategy on how such opinions will be handled.

B. Have a Template Ready

The majority of requests for ethics opinions, including those by individuals who do not really need an opinion but whom a defense contractor refuses to hire unless they get an opinion, can be satisfied with a simple explanation of what 18 U.S.C. [section] 107(a)(1) prohibits, without any analysis of any particular matters that the individual might have worked on as a government employee. Accordingly, a readily accessible explanation of 18 U.S.C. [section] 107(a)(1) that can be quickly inserted into a standard post-government employment restrictions ethics opinion is an essential part of the ethics advisor's toolkit. The ethics advisor can create a template or simply borrow from post-government employment advice provided on various ethics websites. (58) This is certainly sufficient for individuals who have worked for the government full time for some number of years who are preparing to retire or separate from government employment and have not worked in any contracting, program management, financial, technical, or other role where they were directly involved in acquisition planning, contract formation, or contract administration. This could include recruiters, mechanics, medical personnel, pilots, etc. A general explanation of the statute without reference to specific facts of the individual's particular situation will be sufficient in most cases to assure these former employees that the statute's affect on them is minimal.

C. Avoid Contractor-Specific Opinions

Some former employees will request an opinion specific to a particular contractor. Unless the former employee can clearly identify a specific particular matter he has worked on that might be an issue with his prospective employer, the ethics advisor should decline such a request. A general explanation of the elements of 18 U.S.C. [section] 207(a)(1), coupled with a statement that this applies to any employer is sufficient, and this avoids preparing a separate opinion for every company to which the former employee seeks to send a resume.

D. Have Caveats Ready

There are certain essential caveats that should appear in any written post-government employment ethics opinion. First, each opinion should make clear that there is no attorney client privilege. Of course, the employee or former employee should be advised of this when he seeks ethics advice in the first place, but it also should be repeated in the final advice. Second, the ethics advisor should clarify that his or her client is ultimately the agency. Third, the ethics advisor should note that he or she has no authority to issue a definitive opinion regarding the applicability of 18 U.S.C. [section] 107(a)(1), which is a criminal statute. Fourth, each ethics advisory opinion should note that it is based upon, and only as good as, information provided by the employee or former employee about the positions he has held, what he has worked on, and what he plans to work on. Fifth, each opinion should make clear that it is advice for the individual and not for any company the individual might seek employment with, and that it is not a government approval of any particular civilian employment.

E. Have Questions Ready and Limit Information Seeking

Before providing written post-government employment advice, the ethics advisor will normally request information from the former employee to determine, at a minimum, whether the former employee is subject to a compensation ban under 41 U.S.C. [section] 423 and whether the individual is a "covered Department of Defense official" under section 847. Generally, this is limited to whether he has held certain positions or made certain decisions while a government employee. A standard list of questions should be prepared to illicit the required information. Unless the former employee has already self-identified a specific issue, the initial ethics opinion provided to the former employee would simply contain a general statement of what 18 U.S.C. [section] 107(a)(1) prohibits. No additional information would be necessary.

The ethics advisor should resist the impulse to search for issues by asking for additional information. The ethics advisor can waste a lot of time searching through the former employee's government employment history. Instead, the former employee should be given sufficient understanding of the statute to self-identify specific previous government positions or work that might raise an issue.

F. Oral Advice

Many former employees will simply want to stop by or telephone the ethics advisor to chat about ethics issues as they come to mind, and many ethics questions can be answered quickly in this manner. There are pros and cons to providing oral advice. Such advice is subject to being misquoted; however, refusing to provide any oral advice may engender a much greater workload. If the ethics advisor provides oral advice, it is important to point out to the former employee that such advice is not a substitute for the written ethics opinion required to satisfy section 847. Also, the former employee should periodically be reminded that there is no attorney-client privilege.

G. Getting Into Specifics

When requested by the former employee to evaluate the prospective applicability of 18 U.S.C. [section] 207(a)(1) to a specific situation, the ethics advisor will generally attempt to assist. However, it is frequently helpful to discuss with the employee what information is needed to render an opinion and what information is not sufficient. It should be emphasized to the employee that further analyzing the applicability of 18 U.S.C. [section] 207(a)(1) requires specific identification of the work he did on particular matters as a government employee that he reasonably believes he may be asked to work on as a contractor employee.

In particular, the ethics advisor should resist the endless hypothetical scenario where the employee wants to discuss in detail how 18 U.S.C. [section] 207(a)(1) applies to a large range of employment options the employee may pursue and the endless investigation scenario where the ethics advisor is asked to analyze the former employee's full government employment history (including performance reports, etc.) for particular matters that the former employee has participated in. Both the particular matters worked on the by the former employee during government employment and the particular matters the former employee is likely to work on during post-government employment should be solidified before the ethics advisor attempts to give targeted advice.

The former employee may start with a general statement of his connection with the prospective contractor during government employment, which may need to be focused on specific work by the ethics advisor. A former employee might ask, "Does my having worked with a particular contractor mean I have a representation ban under 18 U.S.C. [section] 207(a)(1)?" In this example, the employee has stated who he was working with rather than what he was working on. What he was working on and what he did are the questions to be answered. Another example is a former employee who asks, "If I go to work for a particular contractor, will I be subject to a representation ban under 18 U.S.C. [section] 207(a)(1)?" In this example, the former employee has stated who he may be working for rather than what he worked on as a government employee that he might be asked to work on by the prospective employer.

Once the former employee has identified specific work he did for the government that he believes he might be asked to work on by a prospective employer, additional focusing may be necessary to identify what "particular matters" (59) to which the work relates. As suggested by the examples of particular matters provided in the statute, a particular matter is a particular effort that is limited in time and has a fairly specific, defined overall government objective. In some cases, an employee's question may be too broad to answer. For example, an employee might ask, "Does my involvement in the Global Positioning Satellite Program cause a representation ban under 18 U.S.C. [section] 207(a)(1)?" A program may involve many particular matters, some of which the former employee worked on and some which the former employee did not. The former employee must be more specific regarding work he did while working in the program that he believes he may work on again.

It is only by identifying the "particular matter(s)" the former employee was involved in that the ethics advisor can identify what restriction the former employee is under, because the restriction only applies to participation in the same "particular matter(s)." Nor is it necessarily easy to determine what "particular matter(s)" to which a former employee's prior work relates. For example, a former employee may ask what restrictions he would have as a result of reviewing environmental planning documents created by contractors in anticipation of doing new construction. The work of the former employee may touch upon several "particular matter(s)," such as design or construction contracts actually awarded for the work, contracts for support services personnel for the project, or permitting efforts that may come out as a result of the planning. The ethics advisor may have to explore how the former employee's efforts fit into the bigger picture. Another example would be a former employee who takes part in an inspection and testing of a particular satellite to determine if it was ready for launch. One particular matter might be the satellite inspection itself, but this work likely relates to larger matters, such as the government contract with the satellite vehicle provider. The ethics advisor must consider all "particular matter(s)" to which the work relates.

Assuming a particular matter is identified, additional focus may be necessary to determine whether the particular matter was or became, at the time the former employee worked on it, a "particular matter between specific parties." If the particular matter never involved specific parties, there is no restriction under 18 U.S.C. [section] 207(a)(1). On the other hand, if the particular matter falls within most of the enumerated examples of particular matters in 18 U.S.C. [section] 207(i)(3), the answer is easy since most are clearly matters between specific parties. The most common difficulty in determining whether a particular matter involves specific parties is where: (1) the action involves planning for a future action that may or does involve specific parties, and (2) the action involves decisions or rulemaking that may or does involve specific parties. In both of these cases, parties outside the government may have input into the planning and decision-making process.

Once a "particular matter involving specific parties" has been identified that the former employee worked on, the next question is whether there will be any further government action with respect that particular matter. If the particular matter is over, the former employee is no longer subject to any restriction under 18 U.S.C. [section] 207(a)(1), since the restriction is only against further participation in the matter (of course, if the particular matter is completed then there was no need for further analysis in the first place).

If a "particular matter involving specific parties" has been identified that the former employee worked on, and it is a continuing matter, the next question is whether the former employee's participation in the particular matter was "personal and substantial." (60) The ethics advisor may reiterate to the former employee what "personal and substantial" mean before asking about specific involvement the former employee had in the matter. In some cases, this may allow the former employee to make his own judgment regarding whether his participation was "personal and substantial" without any additional inquiry by the ethics advisor. In other cases, the former employee's participation will have been substantial and it will be obvious that no further inquiry is needed. Assuming the employee still wants an opinion, in particular a written opinion from the ethics advisor, the former employee will need to identify any significant specific tasks he did in connection with the "particular matter."

At this point, the ethics advisor should have sufficient information to assess whether the individual's participation was "personal and substantial" and should be able to advise the former employee whether he believes 18 U.S.C. [section] 207(a)(1) would restrict future action on those "particular matters" involving specific parties. This is the extent of the ethics advisor's normal analysis, although this is clearly not the full analysis. A full analysis also involves looking at specific actions taken by the former employee after leaving the government on behalf of a new employer and determining if those actions involved the same particular matter, involved a communication or appearance before a government employee, etc.

H. Limitations on Ability to Discuss Certain Elements of Statute

As indicated above, the ethics advisor's advice is normally prospective and does not involve detailed knowledge of what the former employee is doing or will be doing day-to-day for his new or prospective employer. Accordingly, ethics advisors should recall that they cannot provide conclusions regarding certain statutory elements, such as "knowingly makes," "with intent to influence," and "any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States." As pointed out by OGE, little prospective guidance can be given concerning these elements. (61) The former employee may still wish to discuss hypothetical fact situations. Such exercises are frequently based upon limited facts seeking bright line distinctions, which are difficult to make. (62) The ethics advisor should resist spending extensive time on such potentially endless academic exercises, and reiterate to the former employee how the elements of the statute limit the scope of advice.

I. After-the-Fact Advice

In rare circumstances, former employees may seek advice on whether an action they have already taken complies with 18 U.S.C. [section] 207(a)(1). It may not always be clear, since the former employee may phrase the question as a "hypothetical" ethics question. The ethics advisor's own agency or the Department of Justice may already be investigating the matter. Is the ethics advisor still required to provide advice? What if the ethics advisor's advice is contrary to the agency's advice or that of the Department of Justice? Is the ethics advisor being set up to be a witness in the defense case-in-chief? OGE regulations and the Joint Ethics Regulation generally direct the ethics advisor to provide advice, and they do not appear to create an exception for giving after-the-fact advice.

The ethics advisor should be wary any time he is asked to provide advice to a former employee who already has a job. Try to clarify whether a posed hypothetical may have already occurred. Second, the ethics advisor should, of course, advise the employee that there is no attorney-client relationship, that nothing the individual says is confidential, and that the attorney may be required to disclose information to others. This may encourage the former employee to seek advice from an alternate confidential source. Third, the ethics advisor should reiterate to the employee that 18 U.S.C. [section] 207(a)(1) is a criminal statute and while the advisor can explain the elements of the offense, no opinion regarding the application of the elements to the former employee's particular situation is binding on the government.

J. Conducting Your Own Investigation

Previous OGE regulations have suggested that the agency ethics advisor is in a better position to give advice, because the agency is likely to be in the best position to determine, in particular, "the identity or existence of a particular matter." (63) In connection with 18 U.S.C. [section] 207(a)(1) reviews, this raises the question of how far an ethics advisor should go to research the factual background necessary to provide definitive advice? Generally, the ethics advisor should be able to rely on the memory of the employee. On the other hand, the former employee may not recall exactly what work he performed a year or more before. Senior employees may have a particularly difficult time keeping track of all matters that have come before them. If the employee cannot remember working on a particular matter at all, then it should be sufficient for the ethics advisor to advise the former employee that at least one OGE opinion held that an employee who did not remember participation in a particular matter could not violate the statute, because the former employee would not be acting "knowingly." (64) If the former employee does remember working on a particular matter and can provide sufficient details from which to make a determination of whether the particular matter was between specific parties and whether the employee participated personally and substantially, then the ethics advisor need look no further. However, if the employee remembers working on a particular matter, but cannot provide details regarding whether the particular matter involved specific parties or his own participation, it may be necessary for the ethics advisor to conduct further investigation.

The scope of the investigation should be limited to these issues: (1) What is the particular matter between specific parties? (2) When did it become a particular matter between specific parties? (3) What was the former employee's participation? (4) Was it personal and substantial? and (4) Is it the same particular matter as the proposed future work? The ethics advisor should determine from the former employee who are the best individuals to answer these questions.

K. Understand Special Categories of Employees

1. Enlisted Military Personnel

As indicated above, 18 U.S.C. [section] 207(a)(1) does not apply to enlisted military personnel.

2. Special Government Employees

A special government employee (SGE) is "an officer or employee ... who is retained, designated, appointed or employed" by the Government to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days. (65) SGE's are distinguishable from "representatives" (66) and independent contractors. (67) 18 U.S.C. [section] 207(a)(1) applies to SGEs. OGE regulations make it clear that SGEs remain government employees at all times during their period of appointment or detail, regardless of how much time they actually spend working for the government. (68) Normal representation restrictions on government employees (18 U.S.C. [section][section] 203 and 205) are relaxed for SGE's to be similar to the post-government employment restriction under 18 U.S.C. [section] 207(a)(1). (69)

3. Military Reserve Officers

For each separate period on active duty orders, the reservist is an SGE (70), and at the end of that period the reservist becomes a "former" employee for purposes of 18 U.S.C. [section] 207(a)(1), even though he remains a member of the reserves. (71) However, the 18 U.S.C. [section] 207(a)(1) post-government employment restriction does not appear to attach to any work done during periods of inactive duty training. (72) Because many reservists already have full time non-government employment prior to beginning reserve duty, unlike other government employees, reservists often seek ethics advice in anticipation of starting government employment (i.e. in anticipation of reserve duty) rather than in anticipation of terminating government employment. There is no difference in the application of 18 U.S.C. [section] 207(a)(1), but reservists may seek to structure their government employment, if consistent with government needs, to avoid working on particular matters on behalf of the government that they already know their private employer might assign to them.

4. Intergovernmental Personnel Act and Information Technology Exchange Program Personnel

The Intergovernmental Personnel Act (IPA) (73) allows for temporary assignment of employees between federal government, state government, local government, Indian tribal government, institutions of higher education, and other eligible nonprofit organizations. The Information Technology Exchange Program (ITEP) (74) allows for temporary detail of information technology personnel between the private sector and the federal government. All IPAs, detailed or assigned (75), to or from the federal government, are federal government employees for purposes of 18 U.S.C. [section] 207(a)(1)76 and after termination of their IPA assignment are prohibited from communicating with the government regarding particular matters they worked on personally and substantially during their IPA assignment. All detailed ITEP personnel, to or from the federal government are also federal government employees for purposes of 18 U.S.C. [section] 207(a)(1) (77).

Like SGEs, IPA and ITEP personnel are generally under an appointment or detail to government employment for a specific period, although they may work for the government one day during the period and then work for a private entity the next. IPA and ITEP personnel are not subject to 18 U.S.C. [section] 207(a)(1) until their detail to government employment ends, but unlike SGEs, IPA and ITEP personnel are subject to the full restrictions of 18 U.S.C. [section] 203 and [section] 205 during their government employment.

Like reservists, it may be of substantial significance for IPA and ITEP personnel to be advised of this prior to or during their assignment, because frequently there is a continuing relationship with the other employer, and individuals may desire to continue with the work they were doing after terminating their assignment.

5. National Guard Officers

Because 18 U.S.C. [section] 207(a)(1) applies only to former federal employees, it only applies after National Guard officers have been through a period of federal government service. Clearly, this applies to periods in which National Guard officers are on Title 10 orders. This does not apply to periods in which guardsmen are on Title 32 status. (78)

6. Senior Employees (79)

Senior employees are subject to 18 U.S.C. [section] 207(a)(1)just like everyone else; however, while most military and civilian employees only become "former employees" upon complete termination of government employment, senior employees may become "former senior employees" when they terminate senior employee status, even though they have not terminated government employment. (80) In addition, since senior employees may be more involved in setting policy than day-today management of government business, the analysis of whether they have personally and substantially participated in a particular matter involving specific parties may differ from non-senior employees.

V. CONCLUSION

Recent statutory and regulatory changes have emphasized the critical role of the agency ethics advisor in advising former employees of their restrictions under 18 U.S.C. [section] 207(a)(1). This article is intended to provide an in-depth review of the elements of 18 U.S.C. [section] 207(a)(1) and a useful guide for ethics advisors to provide ethics advice to former government employees.

(1) 18 U.S.C. [section] 207 (2006).

(2) 18 U.S.C. [section] 207(a)(1) (2006).

(3) These are "Special Government Employees" as defined in Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36188 (June 25, 2008) (adding 5 C.F.R. [section] 2641.104).

(4) The Intergovernmental Personnel Act, 5 U.S.C. [section][section] 3371-3376 (2006). See U.S. Office of Personnel Management, Assignment of a Federal Employee to a Non-Federal Organization, http://www.opm.gov/programs/ipa/AssignN.asp.

(5) The Information Technology Exchange Program, 5 U.S.C. [section][section] 3701-3707 (2006).

(6) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36187 (June 25, 2008) (adding 5 C.F.R. [section] 2641.104) ("Employee ... does not include ... an enlisted member of the Armed Forces...").

(7) Id. ("Former employee means an individual who has completed a period of service as an employee.").

(8) See example 5 to the definition of "former employee" provided in Id. at 36188 (June 25, 2008) (adding 5 C.F.R. [section] 2641.104).

(9) 18 U.S.C. [section] 207(a)(1) (2006).

(10) u.s. Office of Gov't Ethics Adv. Op., 81x23 (July 22, 1981). Although this opinion was issued under a previous statute, the terms are essentially the same.

(11) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36190 (June 25, 2008) (adding 5 C.F.R. [section] 2641.201(e)(1)).

(12) Id. (adding 5 C.F.R. [section] 2641.201(e)(2)(i)).

(13) Id. at 36173. In order to allow agency employees to transition to private employment and retain continuity of individual experience through government contracts, commenters from many agencies have broadly sought to have OGE exclude from the concept of intent to influence all communications required in order to perform a government contract. OGE declined to do so. Id. At 36174. OGE noted that related statutes, e.g., 18 U.S.C. [section] 203(e) and [section] 205(f), contained express exceptions for certain representational activity during the performance of a government contract, while 18 U.S.C. [section] 207 did not, indicating Congress did not intend for such a blanket exception.

(14) Id. at 36190 (adding example 3 to 5 C.F.R. [section] 2641.201(e)(2)), in which a former employee working on an "operator's manual for a radar device" asks a Department of Defense (DOD) official certain factual questions about the device and its properties).

(15) Id. (adding examples 4 and 5 to 5 C.F.R. [section] 2641.201(e)(2)), in which, respectively, a former employee seeks to provide the government with "certain data on safety and efficacy tests on a new drug" and "a tentative list of options developed by the contractor" for potential restructuring of certain government internal procedures).

(16) Id. at 36190.

(17) Id. (adding 5 C.F.R. [section] 2641.201(e)(2)(vi)).

(18) OGE has declined to extend this to "site visits" at government-owned contractor operated facilities. Id. at 36173.

(19) Id. at 36190.

(20) "Communications" under 18 U.S.C. [section] 207, Memorandum of Opinion, Department of Justice, Office of Legal Counsel (Jan. 19, 2001).

(21) U.S. Office of Gov't Ethics Adv. Op., 84x9 (June 11, 1984) (finding that discussions of matters previously worked on by a former employee during negotiations with the government for renewed employment were not in violation of the statute since the communications were solely on behalf of the former employee).

(22) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36192 (June 25, 2008) (adding 5 C.F.R. [section] 2641.201(g)(1)(i)).

(23) One commenter to recent OGE regulation changes argued for a position recognizing that a contractor employee's communication would not be on behalf of the contractor if the contractor did not actively direct the employee's communications. OGE rejected this, noting the employee is always legally the agent of the contractor, regardless of how much supervision the contractor exercises over its employee. Id. at 36175. The current language clearly states "on behalf of any other person" includes any time a former employee acts as another's agent. Id. at 36192 (adding 5 C.F.R. [section] 2641.201(g)(1)(i)).

(24) Id. at 36202 (adding 5 C.F.R. [section] 2641.301(a)(2)(ii)).

(25) 18 U.S.C. [section] 207(i)(3) (2006).

(26) U.S. Office of Gov't Ethics Adv. Op., 06x9 (Oct. 4, 2006) (discussing differences between "matter", "particular matter", and "particular matter involving specific parties"). Particular matter means any matter that involves 'deliberation, decision, or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons.' 5 C.F.R. [section] 2640.103(a)(1)(emphasis added). It is clear, then, that particular matter may include matters that do not involve parties and is not 'limited to adversarial proceedings or formal legal relationships.' Van Ee v. EPA, 202 F.3d 296, 302 (D.C. Cir. 2000). Essentially, the term covers two categories of matters: (1) those that involve specific parties (described above), and (2) those that do not involve specific parties but at least focus on the interests of a discrete and identifiable class of persons, such as a particular industry or profession. OGE regulations sometimes refer to the second category as 'particular matter of general applicability.' 5 C.F.R. [section] 2640.102(m). This category can include legislation and policymaking, as long as it is narrowly focused on a discrete and identifiable class. Examples provided in OGE rules include a regulation applicable only to meat packing companies or a regulation prescribing safety standards for trucks on interstate highways. 5 C.F.R. [section][section] 2640.103(a)(1) (example 3) and 2635.402(b)(3) (example 2).

(27) U.S. Office of Gov't Ethics Adv. Op., 06x9 (Oct. 4, 2006).
 It is important to emphasize that the term 'particular matter' is
 not so broad as to include every matter involving Government
 action. Particular matter does not cover the 'consideration or
 adoption of broad policy options directed to the interests of a
 large and diverse group of persons.' 5 C.F.R. [section]
 2640.103(a)(1). For example, health and safety regulations
 applicable to all employers would not be a particular matter, nor
 would a comprehensive legislative proposal for health care reform.


Id.

(28) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36195 (June 25, 2008) (adding 5 C.F.R. [section] 2641.201(i)(3)).
 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 a
 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.
 Provided that an employee participates in the substantive merits of
 a matter, his participation may be substantial even though his role
 in the matter, or the aspect of the matter in which he is
 participating, may be minor in relation to the matter as a whole.
 Participation in peripheral aspects of a matter or in aspects not
 directly involving the substantive merits of a matter (such as
 reviewing budgetary procedures or scheduling meetings) is not
 substantial.


Id.

(29) MERRIAM-WEBSTER ONLINE DICTIONARY AND THESAURUS. available at http://www.merriam-webster.com/.

(30) U.S. Office of Gov't Ethics Adv. Op., 86x13 (Sept. 11, 1986).

(31) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36195 (June 25, 2008) (adding 5 C.F.R. [section] 2641.201(i)(3)).

(32) U.S. Office of Gov't Ethics Adv. Op., 99xll (Apr. 29, 1999). OGE rejected a dollar threshold for substantial participation, saying
 If an employee participates in the substantive merits of a matter,
 his participation may be substantial even though his role in the
 matter, or the aspect of the matter in which he is participating,
 may be minor in relation to the matter as a whole. If an employee's
 actions as a Government official go to a substantive aspect of the
 matter in question, then his participation in the matter may be
 considered to be substantial.


Id.

(33) U.S. office of Gov't Ethics Adv. Op., 99x11 (Apr. 29, 1999).

(34) U.S. Office of Gov't Ethics Adv. Op., 86x15 (Nov. 25, 1986).

(35) U.S. Office of Gov't Ethics Adv. Op., 87x14 (Nov. 25, 1987) (employee concurred on a staff summary regarding a proposal for restructuring a contract). Because the agency determined the staff summary was routed through the employee merely for informational purposes, OGE concurred that this was not substantial participation.

(36) See, e.g., U.S. Office of Gov't Ethics Adv. Op., 80x1 (Feb. 4, 1980) (supplemented Oct. 21, 1980) (finding review of contract provisions and amendments to contract not ancillary); U.S. Office of Gov't Ethics Adv. Op. 83x8 (Apr. 25, 1983) (attorney who gave advice to other attorneys on filings, discovery, and strategy participated substantially in the matter); U.S. Office of Gov't Ethics Adv. Op., 86x13 (Sept. 11, 1986) (review of one provision in a solicitation found to be substantial).

(37) U.S. Office of Gov't Ethics Adv. Op., 99x16 (Sept. 10, 1999) ("Whenever a high level official attends briefings, his involvement bears close scrutiny, to determine whether it was truly limited to the receipt of information. His participation in the discussion, or even his mere presence, could amount to a tacit acquiescence in any issues raised at the briefing.").

(38) U.S. Office of Gov't Ethics Adv. Op., 87x4 (Mar. 10, 1987) (employee worked on source selection both before and after it became a matter between specific parties). OGE opined that such participation could be considered in determining whether the employee's participation was substantial.

(39) 81 Fed. C1. 722 (Fed. Cl. 2008).

(40) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36195 (June 25, 2008) (adding 5 C.F.R. [section]2641.201 (i)(1)) (defining "participate" in relation to "personal and substantial participation").

(41) CNA Corp., 81 Fed. C1. at 729.

(42) Id. at 730.

(43) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36193 (June 25, 2008) (adding 5 C.F.R. [section] 2641.201(h)(1)).

(44) U.S. Office of Gov't Ethics Adv. Op., 85x15 (Sept. 25, 1985) (concept of creating a private foundation to run a museum is a particular matter even prior to the creation of the foundation). See also U.S. Office of Gov't Ethics Adv. Op., 99x2 (Mar. 15, 1999) (particular corporate merger became a matter involving specific parties when agency heard about it in media and began planning, even though companies had not yet approached agency for approval).

(45) U.S. Office of Gov't Ethics Adv. Op., 83x17 (Nov. 9, 1983) (considering legislation not affecting specific parties). See also U.S. Office of Gov't Ethics Adv. Op., 88x1 (Jan. 6, 1988) (finding establishment of testing procedures companies will have to comply with is general legislation not involving specific parties).

(46) U.S. Office of Gov't Ethics Adv. Op., 83x12 (Aug. 3, 1983) (particular matter involving takeover of a company remained the same particular matter even though the party doing the takeover changed). See also U.S. Office of Gov't Ethics Adv. Op., 84x15 (Nov. 19, 1984) (same particular matter even though parties at the time of a draft request for proposal were different than parties after contract award). But see U.S. Office of Gov't Ethics Adv. Op., 80x2 (Feb. 26, 1980) (reaching a different result).

(47) DOD Standards of Conduct Office (SOCO), Advisory 08-03 (Apr. 28, 2008) (finding ethics opinions due to recent legislation may be requested even where it appears clear the individual is not affected by the legislation).
 [W]e anticipate that DOD contractors will not provide compensation
 to any DOD personnel who left DOD on or after January 28, 2008
 unless they provide a letter that either states they are not
 covered officials or provides the required opinion. DOD ethics
 counselors should therefore expect an increase in the requests for
 written post-employment opinions. DOD SOCO recommends that DOD
 ethics counselors amend all their model written post-employment
 advisory letters to include a statement determining whether the
 requesting official is covered by Sec. 847.


Id.

(48) National Defense Authorization Act for Fiscal Year 2008, Pub. L+ No. 110-181, 122 Stat. 3 (2008).

(49) National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, [section] 847, 122 Stat. 3,243 (2008).

(50) 41 U.S.C. [section] 423 (2006).

(51) DOD SOCO Advisory 08-03 (Apr. 28, 2008).

(52) While section 847 simply says "serves or served," the DOD SOCO guidance is "Currently serve, or served at the time they left DOD service." The meaning of "currently" is not entirely clear. A direct reading would be that "currently" means personnel holding those positions on April 28, 2008, the date of the SOCO advisory. However, there does not appear to be any rationale for a tie to that particular date. Instead, it appears "currently" must refer to the time the ethics opinion is requested.

(53) U.S. DEP'T OF DEFENSE, DIR. 5500.7-R, JOINT ETHICS REGULATION (Aug. 1, 1993) (incorporating Change 6, Mar. 23, 2006) (section 9-600(c)(3) requires 41 U.S.C. [section] 423 letters to be issued within 30 days).

(54) 556 F. Supp. 886 (E.D. Pa. 1983).

(55) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36193 (June 25, 2008) (adding 5 C.F.R. [section] 2641.105).

(56) 5 C.F.R. [section] 2637.102 (2008).

(57) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36193 (June 25, 2008) (adding 5 C.F.R. [section] 2641.105) (emphasis added).

(58) See, e.g., DOD Standards of Conduct Office website, available at http://www.dod.mil/dodgc/defense_ethics/.

(59) The term "particular matter" includes "any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding." 18 U.S.C. [section] 207(i)(3) (2006).

(60) The reason ethics advisors look at "particular matter" before "personal and substantial" participation is to assess what the employee did and what the particular matter is before evaluating whether the participation was substantial. (61)

(61) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36169 (June 25, 2008).
 [I]it is important to note that OGE has not attempted to provide
 comprehensive guidance as to the scope of the knowledge
 requirement in the various prohibitions in section 207. In OGE's
 experience, knowledge questions more typically arise after the
 post-employment conduct has already occurred, and legal analysis of
 such issues is not always well-suited to a regulation that provides
 general, prospective guidance.


Id.

(62) U.S. Office of Gov't Ethics Adv. Op., 03x06 (Aug. 28, 2003) ("However, we would caution, as we did in OGE 99x19, that it is not always easy to draw a clear line, especially in advance, between routine or ministerial communications and those that involve at least a subtle form of influence.").

(63) 5 C.F.R. [section] 2637.201(e) (2008).
 In certain complex factual cases, the agency with which the former
 Government employee was associated is likely to be in the best
 position to make a determination as to certain issues, for example,
 the identity or existence of a particular matter. Designated agency
 ethics officials should provide advice promptly to former
 Government employees who make inquiry on any matter arising
 under these regulations.


Id.

(64) U.S. Office of Gov't Ethics Adv. Op., 81x23 (July 22, 1981). Although this opinion was issued under a previous statute, the terms are essentially the same.

(65) 18 U.S.C. [section] 202(a) (2006).

(66) U.S. Office of Gov't Ethics Adv. Op., 00x01 (Feb. 15, 2000).
 Representatives, as described more fully in OGE Informal Advisory
 Letter 82x22, typically serve on advisory bodies, and they
 represent specific interest groups, such as industry, consumers,
 labor, etc. Like SGEs, representatives can be appointed by the
 Government for a specified term on a Federal advisory committee,
 and they may make policy recommendations to the Government. See OGE
 Informal Advisory Letter 93x30. However, representatives can
 provide only advice. Moreover, unlike SGEs and other Federal
 employees, representatives are not expected to render disinterested
 advice to the Government. Rather, they are expected to 'represent a
 particular bias.' OGE Informal Advisory Letter 93x14.


Id.

(67) U.S. Office of Gov't Ethics Adv. Op., 00x01 (Feb. 15, 2000) ("True independent contractors are not employees because they are not subject to the supervision or operational control, described more fully above, that is necessary to create an 'employer-employee relationship' with the Government.").

(68) See example 4 to the definition of "former employee," 73 Fed. Reg. 36188 (June 25, 2008) (adding 5 C.F.R. [section] 2641.104).

(69) U.S. DEP'T OF DEFENSE, DIR. 5500.7-R, JOINT ETHICS REGULATION (Aug. 1, 1993) (incorporating Change 6, Mar. 23, 2006). Paragraph 5-403(b)(4) provides
 For special Government employees, the prohibitions apply only to
 covered matters in which they participated personally and
 substantially as a special Government employee. Absent such
 participation, the prohibitions apply only if he served more than a
 total of 60 days during the preceding 365 days and the covered
 matter was pending in the DOD Agency during that period.


Id.

(70) See example 5 to the definition of "former employee," 73 Fed. Reg. 36188 (June 25, 2008) (adding 5 C.F.R. [section] 2641.104).

(71) The effect of this is to impose post-government employment restrictions on reservists when they are not actively performing reserve duty, while relieving them of the more burdensome restrictions that would apply if they were still considered government employees during that time.

(72) Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36188 (June 25, 2008).
 In the case of Reserve officers of the Armed Forces or officers of
 the National Guard of the United States who are not otherwise
 employees of the United States, Government service shall be
 considered to end upon the termination of a period of active duty
 or active duty for training during which they served as SGEs.


Id. Although not explicitly stated, the implication is that no period other than a period of active duty (e.g., inactive duty training) is considered a period of government service to which the post-government employment restriction of 18 U.S.C. [section] 207(a)(1) attaches.

(73) 5 U.S.C. [section][section] 3371-3376 (2006).

(74) 5 U.S.C. [section][section] 3701-3707 (2006).

(75) U.S. Office of Gov't Ethics Adv. Op., 06x10 (Oct. 9, 2006).
 A Federal employee, on an outgoing IPA assignment, may either be
 detailed, as a regular work assignment, or work for the receiving
 organization while on leave without pay from his agency. 5 U.S.C.
 [section] 3373(a). Similarly, an employee of a non-Federal entity
 may receive an IPA assignment to a Federal agency either through
 appointment or detail.


Id.

(76) 5 U.S.C. [section] 3373(c)(2) (2006) (During the period of assignment, a State or local government employee on detail to a Federal agency ... is deemed an employee of the agency for the purpose of ... sections 203, 205, 207, 208, 209, 602, 603, 606, 607, 643, 654, 1905, and 1913 of title 18 ...") Although this provision is directed to state or local government employees, 5 U.S.C. [section] 3372(e)(2) makes clear that it also applies to employees of other organizations that are detailed to federal agencies under the Intergovernmental Personnel Act:
 [A]n assignment of an employee of an other organization or an
 institution of higher education to a Federal agency, and an
 employee so assigned, shall be treated in the same way as an
 assignment of an employee of a State or local government to a
 Federal agency, and an employee so assigned, is treated under the
 provisions of this subchapter governing an assignment of an
 employee of a State or local government to a Federal agency.


5 U.S.C. [section] 3372(e)(2) (2006).

(77) 5 U.S.C. [section] 3704(b)(2)(B) (2006).

(78) No opinions apply 18 U.S.C. [section] 207(a)(1) to National Guard officers in Title 32 status; however, the federal government has taken an increasing role in funding and recognizing federal benefits for certain Title 32 National Guard efforts.

(79) General officers and Senior Executive Service (or equivalent) personnel.

(80) See example 6 to 5 C.F.R. [section] 2641.104, Post-Employment Conflict of Interest Restrictions, 73 Fed. Reg. 36188 (June 25, 2008).

Mr. Allen B. Coe (B.S., Washington and Lee University (1984); J.D., University of Oklahoma School of Law (1988); LL.M., New York University School of Law (1991)) is an Air Force civilian attorney in the Office of the Staff Judge Advocate, Contracts and Patent Law Division, Space and Missile Systems Center, Los Angeles, California, who specializes in government procurement law and procurement-related ethics issues. He is a registered patent attorney and member of the Oklahoma Bar.
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