Following is the portion of recent Office of Government Ethics guidance on post-employment restrictions applying to many federal employees; certain additional restrictions apply to senior and “ very senior” Executive Branch officials.
This Legal Advisory provides a plain language discussion for agency ethics officials, departing employees, and former employees on the post-Government employment restrictions, particularly those found in certain provisions of the primary post-Government employment statute applicable to former employees of the executive branch, 18 U.S.C. § 207. OGE’s regulations provide more detailed guidance at 5 C.F.R. part 2641.
Readers should be mindful that additional legal authorities not addressed in this Legal Advisory may be applicable to certain individuals. This Legal Advisory provides a general introduction to the primary post-Government employment restrictions under a criminal law applicable to former executive branch employees but does not offer comprehensive guidance on the application of that law to individual circumstances. Departing and former employees should consult their agencies’ ethics officials for guidance regarding their individual circumstances.
The post-Government employment restrictions described in Section I of this Legal Advisory apply to all former employees. The additional restrictions described in Section II apply only to certain high-level officials who are referred to as “senior” and “very senior” employees. The responses to Questions 15 and 17 will help you determine if you are a “senior” or “very senior” employee. It is important to recognize that the restrictions applicable to “senior” and “very senior” employees are in addition to the restrictions applicable to all employees. Therefore, “senior” and “very senior” employees should read both Sections I and II of this Legal Advisory.
I. Restrictions Applicable to All Employees
Q1. What is the purpose of the post-Government restrictions under 18 U.S.C. § 207?
The primary source of post-Government employment ethics restrictions is found at 18 U.S.C. § 207. A critical function of section 207 is to prevent former Government employees from leveraging relationships forged during their Government service to assist others in their 2
dealings with the Government. Some provisions of section 207 also impose limitations on the use of nonpublic information and on behind-the-scenes activities. At the same time, none of the restrictions of section 207 prohibit any former employee, regardless of Government rank or position, from accepting employment with any particular private or public employer. Rather, section 207 prohibits a former employee from providing certain services to, or on behalf of, non- Federal employers or other persons, whether or not done for compensation. In this way, the statute carefully balances various governmental interests, including the Government’s interests in both recruiting personnel and guarding against certain acts involving, or appearing to involve, the unfair use of prior Government employment.
Q2. I left Government service to work for a non-Federal employer. What post- Government employment restrictions apply to me?
As mentioned above, the primary source of post-Government employment ethics restrictions is found at 18 U.S.C. § 207. This law, which carries both criminal and civil penalties for violations, is designed to prevent former employees from taking certain actions after leaving the Government that could involve the unfair use of influence and information gained through Government employment. There are two basic restrictions in 18 U.S.C. § 207(a) that are applicable to all former executive branch employees, including former special Government employees. There are further restrictions in 18 U.S.C. § 207 for employees involved in trade or treaty negotiations, as well as the additional restrictions for “senior” and “very senior employees,” discussed below.1
(a) Lifetime Ban on Matters in Which You Participated
Section 207(a)(1) bars you from making, with the intent to influence, any communication to or appearance before an employee of the United States on behalf of another regarding a “particular matter involving specific parties” in which you participated personally and substantially as a Government employee. This post-Government employment restriction on communications and appearances is permanent and continues for the life of the particular matter.
(b) Two-Year Ban on Matters Under Your Official Responsibility
Section 207(a)(2) bars you from making, with the intent to influence, any communication to or appearance before an employee of the United States on behalf of another regarding a “particular matter involving specific parties” if you were not personally involved in the matter but the matter was pending under your “official responsibility” at any time during your last year of Government service. This post-Government employment restriction on communications and appearances continues for two years after you leave the Government.
(c) Limitations on the Lifetime Ban and the Two-Year Ban
Both the lifetime ban and the two-year ban, which are applicable to all employees, bar certain communications to the Government and certain appearances before the Government, but they apply only under certain conditions. First, both of these restrictions apply only when the matter is a “particular matter involving specific parties.” Examples of particular matters involving specific parties include contracts, cases, claims, investigations, grants, and other matters focused on identified parties. Second, unlike the restrictions in 18 U.S.C. § 207(b) and (f), which are discussed in response to Questions 4 and 20 below and are applicable only to certain employees, they do not cover behind-the-scenes activities if there is no communication to or appearance before the Government. Third, they are limited to communications to and appearances before any executive branch employee that are made with the “intent to influence,” but you should be aware that “intent to influence” has been interpreted quite broadly. Fourth, they are limited to communications and appearances made on behalf of any other “person,” but you should be aware that the word “person” includes individuals, organizations, companies, state and local governments, and other entities. Finally, both of these restrictions are limited to matters in which the United States is a party or has a direct and substantial interest, but it is probably safest for you to assume that the United States has a direct and substantial interest in any matter that you are considering addressing in a communication to or appearance before the Government.
Q3. Am I prohibited from working for any specific employer?
None of the provisions of 18 U.S.C. § 207 directly bar you from accepting employment with any specific employer after Government service. However, if you are retired from the uniformed services or continue to serve as a member of the reserve component after leaving Government, the Emoluments Clause of the U.S. Constitution (Article I, § 9, cl. 8) places certain restrictions on your ability to accept employment and compensation from foreign governments, including organizations owned or controlled by a foreign government. In addition, the Procurement Integrity Act imposes certain restrictions on sources of compensation if you had certain responsibilities in connection with a contract for more than $10,000,000. Your agency’s ethics officials can help you determine whether you are covered by these or other authorities restricting your post-Government employment activities.
Q4. May I provide “behind-the-scenes” assistance to another person, such as giving advice or drafting a document, if I avoid communications to and appearances before the Government?
In most cases, the answer is yes. As explained in response to Question 2 above, most of the restrictions under 18 U.S.C. § 207 are limited to appearances and communications. They do not bar you from providing behind-the-scenes assistance to any person or entity. If you provide behind-the-scenes assistance, however, you should not have any communication to the Government attributed to you by another.
An example of one restriction that limits more than only appearances and communications is found in 18 U.S.C. § 207(b). Section 207(b) applies to former employees who worked on certain ongoing trade and treaty negotiations. This restriction applies to you if you participated in a covered trade or treaty negotiation during your last year of Government service and had access to information that would be exempt from release to the public under the Freedom of Information Act. In that case, section 207(b) bars you from representing, or aiding or advising, any other person concerning that trade or treaty negotiation on the basis of that information. This restriction lasts for one year after your Government service terminated. Additionally, as explained more fully in Question 20, 18 U.S.C. § 207(f) bars former “senior” and “very senior” employees from aiding, assisting, and representing certain foreign entities in an attempt to influence the United States.
Q5. Do the restrictions apply even if I am not getting paid?
Yes. The restrictions under 18 U.S.C. § 207 apply even if you are not receiving compensation for your activities.
Q6. May I represent myself without violating the restrictions under 18 U.S.C. § 207?
Yes, but you should be careful to ensure that you are, in fact, representing only yourself. For example, if you make a communication or appearance regarding a matter in which your new employer has an interest, you could be considered to be representing your employer’s interest as opposed to your own. This is true even if you believe that your communication is consistent with the Government’s interests.
It is important to remember that the legal term “person” can include individuals, organizations, companies, state and local governments, and other entities. This interpretation of the term “person” includes single-member corporations or LLCs that you have created for your own post-Government employment activities. Even if you are the sole owner and employee of that legal entity, it is a separate “person” from you. Thus, for example, if you created a legal entity and that entity has a contract with the Government, you are acting on behalf of the legal entity and not solely on your own behalf. In that case, the restrictions under 18 U.S.C. § 207 apply to your communications to and appearances before the Government in connection with the contract and any other business your legal entity is seeking to do with the Government.
Q7. Do the restrictions under 18 U.S.C. § 207(a) apply to interactions with agencies other than my former agency?
Yes. The restrictions apply to a communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States. The restrictions do not extend to a communication to or appearance before a Member of Congress, a congressional committee, or their staffs.
Q8. When I was in the Government, I worked on a regulation establishing standards for a regulated industry. After leaving Government service, may I submit a comment on this regulation on behalf of my non-Federal employer?
It depends. If you are not a “senior” or “very senior” employee, you may submit a comment on the regulation, even if you submit the comment on behalf of another person, because the regulation is not a “particular matter involving specific parties.” As discussed in response to Question 2, the legal restrictions applicable to you are limited to “particular matters involving specific parties.” A regulation covering an entire industry does not involve specific parties.
In contrast, if you are a “senior” or “very senior” employee, you may not submit a comment on the regulation on behalf of any other person. As explained in Part II of this Legal Advisory, the legal restrictions applicable to “senior” and “very senior” employees are broader in scope. They are not limited to “particular matters involving specific parties.”
Q9. When I was in Government, I helped draft one provision of a contract for my agency. After leaving Government, may I represent the contractor in a dispute over a different provision of the contract that I did not help draft?
No. You may not represent the contractor in the dispute. The contract as a whole is the “particular matter involving specific parties.” A dispute over any part of the contract triggers the lifetime ban under 18 U.S.C. § 207(a)(1). The restriction applies to you, even if you worked on a different provision of the contract. If you are not sure whether the dispute involves the same contract, you should consult your former agency’s ethics officials.
Keep in mind, however, that the restriction applies to this specific contract and not more broadly to the contractor. If a dispute were to arise between your former agency and the contractor in connection with a different contract in which you were not involved, the separate contract would generally be a different “particular matter involving specific parties” than the one in which you participated as a Government employee. As a result, the restriction would not apply to that other contract.
As explained in Part II of this Legal Advisory, if you were a “senior” or “very senior” employee, you are barred for one or two years from any communications to and appearances before your former agency. In that case, whether you could represent the contractor would depend on how much time has passed since you left Government.
Q10. In the last year of my Government service, employees under my supervision handled several grants. I did not personally work on any of the grants. I did not even review or approve them. I left the Government three months ago. May I represent someone before the Government on any of these grants?
No. Section 207(a)(2) imposes a two-year ban in connection with any “particular matter involving specific parties” that was pending under your “official responsibility” during the last year of your Government service. The prohibition under section 207(a)(2) applies even if you did not personally participate in the matter. In this case, the two-year ban applies because: (1) the grants were “pending under your official responsibility” in the last year of your Government service; (2) the grants were particular matters involving specific parties (in this instance, the parties were the “grantees”); and (3) you terminated your Government service less than two years ago. You may not represent anyone to the Government in connection with these grants for the first two years after your Government service ended. (As discussed in response to Question 2, however, both the lifetime ban for matters in which you personally participated and the two-year ban for matters under your “official responsibility” are limited to communications and appearances made on behalf of another person and do not prohibit behind-the-scenes activity.)
Q11. Would I violate the restrictions under 18 U.S.C. § 207 by merely attending a meeting on behalf of another person if I do not speak?
There is a risk that your mere presence at the meeting could violate the restrictions under 18 U.S.C. § 207. The restrictions under section 207 include a ban on appearances before the Government, if made with the intent to influence. Your presence, even without any explicit communication, may in many instances be construed as an attempt to influence the Government. As a practical matter, there is also a realistic possibility that you will be asked a question during or after the meeting. Given the considerable risks associated with attending meetings when you are covered by the restrictions under section 207, it is recommended that you consult an agency ethics official before attending any such meeting.
Q12. I currently work for a Government contractor. My employer has just assigned me to work on a contract in which I was previously involved before leaving the Government. May I direct questions to or share information with employees of the agency regarding that matter?
The lifetime ban under 18 U.S.C. § 207(a)(1) bars you from communications with the intent to influence on behalf of your employer. Communications are permitted if they are not made with the “intent to influence.” As noted in response to Question 2, however, “intent to influence” has been interpreted quite broadly and, depending on the circumstances, can include your discussion of purely factual information, if that information is intended to influence the Government. There is considerable risk that you will cross over this threshold and be deemed to possess the requisite “intent to influence” if you are communicating to agency employees about this contract.
Q13. After leaving to work for a non-Federal employer, may I attend a purely social event at my former agency, such as a celebration for a retiring employee held in the employee’s office suite?
Yes. Section 207 does not prohibit social events or purely social communications to employees of your former agency. It is important for you to be mindful, however, that you could be considered to have made an appearance or communication with the intent to influence in connection with a particular matter if you discuss the matter at the event. The subject of the discussion, rather than the nature of the event, will determine whether section 207 applies.
Q14. Do any additional post-Government employment restrictions apply to me if I was a political appointee and was required to sign the Ethics Pledge under Executive Order 13490?
Yes. Full-time, non-career appointees required to sign the Ethics Pledge under Executive Order 13490 are subject to additional restrictions under the terms of that pledge. You were required to sign the Ethics Pledge if you were a full-time, non-career Presidential or Vice- Presidential appointee, non-career appointee in the Senior Executive Service (or other SES-type system), or appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C positions and other positions excepted under comparable criteria) in an executive agency.
Paragraph 5 of the Ethics Pledge prohibits any former appointee who is a registered lobbyist from lobbying any covered executive branch official or non-career senior Executive Service appointee for the remainder of the Presidential administration in which they signed the Ethics Pledge. This prohibition is in addition to the restrictions found in 18 U.S.C. § 207.