[Federal Register: February 18, 2003 (Volume 68, Number 32)]
[Proposed Rules]
[Page 7843-7892]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18fe03-18]
[[Page 7843]]
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Part II
Office of Government Ethics
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5 CFR Parts 2637 and 2641
Post-Employment Conflict of Interest Restrictions; Proposed Rule
[[Page 7844]]
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OFFICE OF GOVERNMENT ETHICS
5 CFR Parts 2637 and 2641
RIN 3209-AA14
Post-Employment Conflict of Interest Restrictions
AGENCY: Office of Government Ethics (OGE).
ACTION: Proposed rule.
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SUMMARY: Since 1980, 5 CFR part 2637 (formerly 5 CFR part 737) has
provided guidance concerning the post-employment conflict of interest
restrictions of 18 U.S.C. 207. As a result of amendments to section 207
that became effective January 1, 1991, employees terminating service in
the executive branch or in an independent agency (or terminating
service from certain high-level Government positions) since that date
are subject to substantially revised post-employment restrictions. The
purpose of part 2641 is to provide regulatory guidance explaining the
scope and content of the statutory restrictions as they apply to
employees terminating service on or after January 1, 1991. This
proposed rule would expand the guidance previously published in part
2641 as interim or interim final rules and make minor modifications to
those earlier rulemakings. It would also remove part 2637 from 5 CFR.
DATES: Comments are invited and must be received on or before May 19,
2003.
ADDRESSES: Send comments to the Office of Government Ethics, Suite 500,
1201 New York Avenue, NW., Washington, DC 20005-3917, Attention:
Richard M. Thomas. Comments may also be sent electronically to OGE's
Internet E-mail address at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov. The subject line of E-
mail messages should include the following reference: ``Comments on
proposed post-employment conflict of interest rule.''
FOR FURTHER INFORMATION CONTACT: Richard M. Thomas, Associate General
Counsel, Office of Government Ethics; Telephone: 202-208-8000: TDD:
202-208-8025; FAX: 202-208-8037.
SUPPLEMENTARY INFORMATION:
A. Substantive Discussion of Post-Employment Regulatory Guidance
I. Rulemaking History
Since its enactment in 1962, 18 U.S.C. 207 has remained the primary
source of post-employment restrictions applicable to former officers
and employees of the executive branch and of independent agencies. In
1979 (interim rule) and 1980 (final rule), the Office of Government
Ethics (OGE) published regulatory guidance concerning section 207 as
codified at 5 CFR part 737 (now 5 CFR part 2637). See OGE's regulations
issued at 44 FR 19974-19988 (April 3, 1979), 45 FR 7402-7431 (February
1, 1980), 54 FR 50229-50231 (December 5, 1989), and 56 FR 3961-3965
(February 1, 1991), as amended, redesignated and corrected over the
years.
Section 207 was substantially revised by the Ethics Reform Act of
1989, Pub. L. 101-194, 103 Stat. 1716, with technical amendments
enacted by Pub. L. 101-280, 104 Stat. 149 (1990). As a result of these
and subsequent amendments, employees terminating Government service (or
service in certain high-level Government positions) on or after January
1, 1991, are subject to revised substantive prohibitions.
Pursuant to authority set forth in the Ethics in Government Act of
1978, as amended, and Executive Order 12674, as modified by Executive
Order 12731 (hereinafter referred to as Executive Order 12674), OGE
published executive branch guidance concerning certain aspects of the
new version of 18 U.S.C. 207 on February 1, 1991 (56 FR 3961-3965), now
codified at 5 CFR part 2641.\1\ For purposes of section 207(c), the
1991 interim rule (1) Established procedures for exempting senior
employee positions; (2) designated separate departmental and agency
components; and (3) established procedures for future designations and
modification of designations of departmental or agency components. The
appendices to part 2641 reserved for listings of exemptions and
designations were subsequently amended by final rules published at 57
FR 3115-3117 (January 28, 1992), 57 FR 11673 (April 7, 1992), 58 FR
33755-33756 (June 21, 1993), 62 FR 26915-26918 (May 16, 1997), 64 FR
5709-5710 (February 5, 1999), and, most recently, 68 FR 4681-4684
(January 30, 2003).
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\1\ OGE also issued, by Memoranda to Designated Agency Ethics
Officials, General Counsels and Inspectors General, summaries of the
restrictions of 18 U.S.C. 207, as amended, on October 26, 1990,
November 5, 1992, and February 17, 2000. The current version of the
summary may be found on OGE's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov under
``DAEOgrams'' for the year 2000.
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As described below in the discussions of Sec. Sec. 2641.204,
2641.301(j) and 2641.302 as proposed, this proposed rule would make
further minor modifications to existing part 2641. In addition, it
would expand part 2641 to provide comprehensive guidance concerning 18
U.S.C. 207 as applicable to individuals terminating service on or after
January 1, 1991 (or service in certain high-level Government
positions), incorporating amendments to section 207 enacted subsequent
to the Ethics Reform Act.\2\ As discussed more fully below, a future
rulemaking would supplement the preliminary guidance at proposed
Sec. Sec. 2641.203 and 2641.206 concerning 18 U.S.C. 207(b) and (f).
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\2\ The statute has been amended several times since the Ethics
Reform Act. Section 101(b)(8)(A) of Pub. L. 101-509, 104 Stat. 1389,
amended 18 U.S.C. 207(c)(2)(A)(ii) to change the pay-based threshold
for purposes of determining the applicability of section 207(c) from
the rate for GS-17 to the rate for level V of the Executive
Schedule. Section 705(a) of Pub. L. 102-25, 105 Stat. 75 reinstated
section 207(k) authorizing Presidential waivers of section 207 in
narrow circumstances, a provision that was later amended by Pub. L.
102-190. Section 609 of Pub. L. 102-395, 106 Stat. 1828, amended
section 207(f) to extend that one-year restriction to three years in
the case of any individual assuming the office of U.S. Trade
Representative after October 6, 1992, the effective date of the law.
Subsequently, section 21(a) of Pub. L. 104-65, 109 Stat. 691,
amended section 207(f)(2) to permanently bar both the U.S. Trade
Representative and the Deputy U.S. Trade Representative from
engaging in the activities prohibited by section 207(f). Sections 5
and 6 of Pub. L. 104-179, 110 Stat. 1566, changed the rate of basic
pay triggering ``senior employee'' status and added a new exception
permitting former high-level officials to represent certain
candidates and political organizations notwithstanding section
207(c) or (d). Finally, section 102(a) of Pub. L. 105-244, 112 Stat.
1585, made a conforming change to the exception at section
207(j)(2)(B) when it amended the definition of ``institution of
higher learning'' in title 20 of the United States Code. (Pub. L.
103-322, 108 Stat. 1796 made only two very minor grammatical changes
to section 207(c).)
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This proposed rule does not address very limited amendments enacted
on December 17, 2002, in section 209(d) of the E-Government Act of
2002, Pub. L. 107-347. These amendments, which pertain only to
assignees from private sector organizations under the newly authorized
Information Technology Exchange Program, had not been enacted when the
proposed rule was developed and will not be effective until April 16,
2003, subsequent to the issuance of the proposed rule. See section
402(a)(1), Pub. L. 107-347. OGE invites comments concerning
interpretation of these amendments--which add a new category of senior
employee under section 207(c)(2)(A)(v) and a new restriction on
contract advice in section 207(l)--which will be addressed in the final
rule, as appropriate.
OGE is proposing to discontinue publication of 5 CFR part 2637. Due
to the passage of time, employees who terminated service prior to
January 1, 1991, could no longer be subject to any of the substantive
restrictions of the previous version of 18 U.S.C. 207 other than the
permanent bar for particular matters involving specific parties. Former
employees, agency ethics officials and other interested parties can
continue to consult the last edition of
[[Page 7845]]
the CFR in which part 2637 was published, for interpretive guidance
concerning the permanent bar and relevant exceptions as applicable to
employees who terminated service before January 1, 1991. OGE will
maintain a copy of part 2637 and suggests that all designated agency
ethics officials keep a copy in their files.
As required by section 201(c) of Executive Order 12674, OGE is
publishing this proposed rule after obtaining the concurrence of the
Department of Justice. We also consulted with the Office of Personnel
Management pursuant to title IV of the Ethics in Government Act of
1978, as amended. Section 402 of that Act provides, among other things,
that the Director of OGE shall provide, in consultation with the Office
of Personnel Management (OPM), overall direction of executive branch
policies relating to preventing conflicts of interest, and develop, in
consultation with the Justice Department and OPM, rules and regulations
pertaining to the identification and resolution of conflicts of
interest.
Subpart A--General Provisions
Proposed Sec. 2641.101--Purpose
Proposed Sec. 2641.101(a) explains that 18 U.S.C. 207 does not bar
employment with any particular employer. Rather, it prohibits certain
acts which involve, or may appear to involve, the unfair use of prior
Government employment. The section would stress that the proscribed
activities are prohibited even if they are undertaken for no
compensation. The section would also note that the restrictions are
personal to the employee and that they are not imputed to others, such
as a law partner of a former employee. On the other hand, we have
inserted a parenthetical cross-reference to the note following proposed
Sec. 2641.103 concerning the punishment under 18 U.S.C. 2 of a person
or entity who ``aids, abets, counsels, commands, induces, or procures
commission'' of a violation of 18 U.S.C. 207.
Proposed Sec. 2641.101(b) makes two important points. First, it
would emphasize that part 2641 provides interpretive guidance
concerning the application of 18 U.S.C. 207 to former employees of the
executive branch or of certain independent agencies of the Federal
Government of the United States, including current employees who
formerly served in ``senior'' or ``very senior'' employee positions.
Second, although certain of the statute's provisions also apply to
former employees of the District of Columbia, Members and elected
officials of Congress and legislative staff, and employees of
independent agencies in the legislative and judicial branches, the
proposed paragraph specifically states that part 2641 is not intended
to provide guidance to those individuals.
The note following proposed Sec. 2641.101(b) warns that part 2641
does not purport to interpret post-employment restrictions that may be
contained in laws or authorities other than section 207. Thus, for
example, a former employee must comply with 18 U.S.C. 203 which
restricts the acceptance of compensation in connection with certain
representational activities undertaken by the employee or others at a
time when the former employee was still serving with the Government.
Under 41 U.S.C. 423(d), a former agency official may not accept
compensation from a contractor for one year as an employee, officer,
director, or consultant if the former official: (1) Served in certain
procurement positions at the time the contractor was selected for or
awarded a contract in excess of $10,000,000; (2) served in certain
positions relating to the administration of a contract with the
contractor in excess of $10,000,000; or (3) personally made certain
decisions valued in excess of $10,000,000 in relation to a contract
with the contractor. See 48 CFR part 3. The proposed note does not
refer to restrictions contained in any professional codes of conduct,
as these are outside the jurisdiction of OGE.
The proposed note does not purport to set forth an exhaustive list
of all post-employment restrictions, including agency-specific or
position-specific restrictions. We were concerned that the burden
associated with compiling and maintaining an exhaustive (and accurate)
list would outweigh the benefit of such a listing in a regulation
intended to provide guidance relating to 18 U.S.C. 207. If history is
any indicator, post-employment restrictions are frequently amended,
suspended or abolished, then amended again or reinstated (see, e.g.,
the legislative history of 41 U.S.C. 423(d)). We also foresaw
difficulties in defining the standards for inclusion in such a listing.
Proposed Sec. 2641.102--Applicability
Section 207 has been amended several times over the years. Proposed
Sec. 2641.102 traces the most significant of these amendments and
explains that, as a consequence of these changes, former employees are
subject to varying post-employment restrictions depending upon the date
of their termination from Government service (or from a ``senior'' or
``very senior'' employee position). Section 2641.102 as proposed
indicates whether an employee should consult 5 CFR part 2637 or part
2641 for regulatory guidance.
A note following Sec. 2641.102 as proposed would warn that the
guidance in part 2641 incorporates all amendments to 18 U.S.C. 207
enacted after the Ethics Reform Act of 1989 (and the related technical
amendments to that Act), except as superseded. Significantly, as would
be explained in the note, an individual who terminated Government
service (or a ``senior'' or ``very senior'' employee position) before
one or more of these amendments became effective would have become
subject to a version of section 207 other than that reflected in part
2641 as proposed.
The substantive post-Ethics Reform Act amendments have concerned
the applicability of sections 207(c), (d), or (f), the waiver authority
in section 207(k), and the definition of ``institution of higher
learning'' in section 207(j)(2)(B). The one-year restriction of section
207(c) has expired as to any former senior employee covered by a
version of that restriction other than that described in part 2641.
Moreover, the prior versions of section 207(f) are of relevance only in
relation to the length of the restriction as it applied to a former
United States Trade Representative or former Deputy United States Trade
Representative who terminated service in the early 1990s. And, since
the waiver authority in section 207(k) has not yet been utilized, a
section 207(k) waiver would, in the future, be granted in accordance
with part 2641, once it is finally adopted.
As discussed earlier, OGE is proposing to discontinue publication
of 5 CFR part 2637. Since proposed Sec. 2641.102(b) indicates that
part 2637 should be consulted in relation to employees who terminated
service prior to 1991, that section would also note the edition of the
CFR in which part 2637 was last published.
Proposed Sec. 2641.103--Enforcement and Penalties
It is the role of ethics officials, both at OGE and elsewhere, to
give advice concerning the meaning of 18 U.S.C. 207. Section
2641.103(a) of the proposed rule notes that agencies are required by 28
U.S.C. 535 to report to the Attorney General any information,
allegations, or complaints of possible violations of the laws in title
18 of the United States Code involving Government officers and
employees, including violations of 18 U.S.C. 207 by former officers and
employees.
When a matter involving a Federal conflict of interest law is
referred to the
[[Page 7846]]
Department of Justice by an agency, 5 CFR 2638.603 requires that an
agency concurrently notify the Director of OGE of the referral unless
otherwise prohibited by law. The Office of Government Ethics has
developed an optional ``Notification of Conflict of Interest Referral''
reporting form (OGE Form 202) that agencies can use for this purpose.
After the final disposition of a referral, including any disciplinary
or corrective action taken by the agency, agencies are required further
to notify the Director of such disposition.
Proposed Sec. 2641.103(b) cross-references the penalties and
injunctions authorized to be imposed for violations of 18 U.S.C. 207.
The section refers to 18 U.S.C. 216(a), (b) and (c) which,
respectively, set forth the imprisonment terms and criminal fines for
felony and misdemeanor violations of section 207, authorize the
Attorney General to take actions to impose civil penalties for
violations of section 207, set forth fine amounts, and authorize the
Attorney General to seek injunctive relief to prohibit conduct that
violates section 207.
The note proposed to follow Sec. 2641.103 warns that a person or
entity who ``aids, abets, counsels, commands, induces, or procures'' a
violation of 18 U.S.C. 207 is punishable as a principal under 18 U.S.C.
2.
Notably, the new version of 18 U.S.C. 207 no longer provides for
the administrative sanctions that were formerly authorized by the pre-
Ethics Reform Act version of section 207(j). These procedures remain
available, however, in the case of employees who terminated Government
service prior to January 1, 1991. A number of agencies continue to
publish procedures implementing former section 207(j). Given the
passage of time, however, agencies may wish to weigh the likelihood
that these procedures would be utilized against other factors,
including the expense of continued publication and the availability of
civil remedies.
Proposed Sec. 2641.104--Definitions
Proposed Sec. 2641.104 defines a number of terms that are used
throughout the regulation. Although the terms are listed in proposed
Sec. 2641.104 in alphabetical order, they are discussed here out of
order to facilitate our discussion. Other terms or phrases are defined
in subsequent sections of the proposed regulation and are discussed
further below.
The proposed definitions in Sec. 2641.104 generally are intended
to be consistent with definitions of the same terms previously
published in 5 CFR part 2637. In some cases, we have altered the
wording in order to clarify the definition, ensure consistency with
other OGE regulations, or add additional information to reflect an OGE,
Department of Justice, or judicial interpretation that was not
incorporated into part 2637. Several of the definitions were included
in the interim rule published in 1991 at part 2641 to permit the
immediate exercise of the OGE Director's authority to designate
departmental and agency components for purposes of 18 U.S.C. 207(c) and
to waive certain positions from sections 207(c) and (f). The proposed
rule also would make several modifications to the definitions in
existing part 2641 in order to clarify the meaning or update the
definitions consistent with current interpretations.
The term ``employee'' is used in 18 U.S.C. 207 in a number of
contexts. Primarily, the term ``employee'' is used in section 207 to
describe the individuals subject to section 207 and to identify the
current Government officials with whom post-employment contact is
restricted and the decisions of whom a former senior or very senior
employee cannot seek to influence on behalf of a foreign entity. The
term is, however, used for other purposes in section 207 and in
proposed part 2641. Thus, for example, the exception in section
207(j)(2)(A) benefits an individual who becomes an ``employee'' of
certain specified entities, such as a State or local government. See
proposed Sec. 2641.301(c). Moreover, in the proposed regulation, we
use the term ``employee'' to refer to an individual's employment
relationship with a non-Federal entity. As proposed, Sec. 2641.104
defines the term for the purpose of identifying the individuals subject
to section 207. (The definition would exclude certain individuals who
are subject to section 207 but for whom part 2641 was not intended to
provide guidance, such as employees of independent agencies in the
legislative or judicial branches.) Proposed Sec. 2641.104 emphasizes
that the definition is modified elsewhere in the regulation, as
necessary, when the term ``employee'' is used for other purposes.
Consistent with 18 U.S.C. 202(a) and (c), the term ``employee'' is
defined in proposed Sec. 2641.104 to exclude enlisted members of the
Armed Forces, the President, and the Vice President (except, with
respect to the Vice President, as otherwise provided). Relevant
provisions of part 2641 as proposed would specifically indicate that
the Vice President is subject to 18 U.S.C. 207(d) and (f) and that, in
certain circumstances, communications to or appearances before the
President and Vice President are prohibited. For purposes of clarity,
the proposed definition of ``former employee'' emphasizes that the Vice
President is a ``former employee'' only for purposes of sections 207(d)
and (f).
The proposed definition of ``employee'' includes an individual
appointed or detailed under the Intergovernmental Personnel Act (IPA),
5 U.S.C. 3371-3376. The IPA authorizes the assignment of employees of
State or local governments (and certain other entities) to Federal
agencies. Under 5 U.S.C. 3374(a), an individual who is assigned to a
Federal agency may be ``appointed'' in the agency or may be deemed ``on
detail'' to the agency. The IPA specifically provides that an
individual, whether appointed or on detail to a Federal agency, is
deemed an ``employee'' for purposes of 18 U.S.C. 207. 5 U.S.C.
3374(c)(2). The regulation would also acknowledge that an individual
may be subject to section 207 under the terms of a statute other than
the IPA.
The proposed definition of ``employee'' also excludes officers or
employees of the District of Columbia. Although former employees of the
District of Columbia must comply with 18 U.S.C. 207(a)(1) and (a)(2),
proposed Sec. 2641.101(b) emphasizes that part 2641 ``is not intended
to provide guidance to those individuals.'' Moreover, we were also
persuaded to exclude District of Columbia officials from the definition
of ``employee'' since section 207(a)(3) indicates that post-employment
contacts with District of Columbia officials are not with ``any officer
or employee of any department, agency, court, or court-martial of the
United States'' within the meaning of sections 207(a)(1) and (a)(2).
``State'' is defined in proposed Sec. 2641.104 to include the
District of Columbia. The definition of ``State'' in 18 U.S.C.
207(j)(7) specifically defines the term as including the District of
Columbia. We also propose to define the District of Columbia as a State
in view of the exceptions at sections 207(j)(1) and (j)(2) which permit
a former employee to engage in otherwise prohibited representational
activity on behalf of certain governments. We defined the District of
Columbia as a State notwithstanding language in the exception at
section 207(j)(1) which, since it refers to the District of Columbia
separately, distinguishes the District of Columbia government from
State and local governments. In this regard, we noted that the wording
of section 207(j)(1) also distinguishes the District of Columbia
government from the United States Government. We decided
[[Page 7847]]
that the District of Columbia must have been listed separately in
section 207(j)(1) for purposes of indicating the exception's
applicability to former District of Columbia employees who act on
behalf of that government.
As defined in proposed Sec. 2641.104, ``Government service'' means
``a period of time during which an individual is employed by the
Federal Government.'' The proposed definition provides some guidance
concerning when service ends in the case of ``special Government
employees,'' including some advisory committee members and Reserve
officers of the Armed Forces and officers of the National Guard of the
United States. As defined in 18 U.S.C. 202(a), a special Government
employee (SGE) is an officer or employee of the executive branch or any
independent agency ``who is retained, designated, appointed, or
employed to perform, with or without compensation, for not to exceed
one hundred and thirty days during any period of three hundred and
sixty-five consecutive days, temporary duties either on a full-time or
intermittent basis * * *.'' Many of these individuals serve the
Government only a few days per year, often returning to private sector
employment during interim periods.
In the case of civilians who serve the executive branch or
independent agencies as SGEs, the definition of ``Government service''
proposed in Sec. 2641.104 indicates that Government service refers to
``the period of time covered by the individual's appointment (or other
act evidencing employment with the Government), regardless of any
interval or intervals between days actually served.'' Thus, sections
207(a)(1), (a)(2), and (b) are not triggered each time there is an
interval between the days on which a civilian SGE actually performs
work. Example 4 following the definition of ``former employee'' in
proposed Sec. 2641.104 is illustrative.
In the case of a Reserve or National Guard officer, status as an
SGE is related to the performance of active duty or active duty for
training. More specifically, unless otherwise an employee, a Reserve or
National Guard officer is classified as an SGE only while on active
duty involuntarily, while on active duty for training for any length of
time, or while serving voluntarily on extended active duty for 130 days
or less. See 18 U.S.C. 202(a). The definition of ``Government service''
in proposed Sec. 2641.104 indicates that, in the case of Reserve or
National Guard officers, the end of a period of active duty or active
duty for training as an SGE is considered the end of Government service
for purposes of triggering the application of sections 207(a)(1),
(a)(2), and (b). See example 5 following the proposed definition of
``former employee'' in Sec. 2641.104. During periods when not serving
on active duty, officers maintain their Reserve or National Guard
status--categorized as either ``active'' or ``inactive''--but they are
not considered SGEs. Like civilians, Reserve and National Guard
officers are, while special Government employees, subject to 18 U.S.C.
203 and 205. Similar to section 207, these statutes restrict an
individual's ability to represent others before Federal departments,
agencies, or courts.
The definition of the term ``executive branch'' derives from 18
U.S.C. 202(e)(1). According to 18 U.S.C. 202(e)(1), the executive
branch includes ``each executive agency as defined in title 5, and any
other entity or administrative unit in the executive branch.'' The term
``executive agency'' is defined in 5 U.S.C. 105 to mean ``an Executive
department, a Government corporation, and an independent
establishment.'' The ``Executive departments'' are enumerated in 5
U.S.C. 101. Accordingly, proposed Sec. 2641.104 states that the term
``executive branch'' includes ``an Executive department as defined in 5
U.S.C. 101, a Government corporation, and an independent establishment
(other than the General Accounting Office) * * * and also includes any
other entity or administrative unit in the executive branch.'' The
definitions of the ``judicial'' and ``legislative'' branches are from
corresponding definitions in 18 U.S.C. 202(e)(2) and (3). Following 18
U.S.C. 202(e)(3)(B), we include the General Accounting Office (GAO) in
our proposed definition of ``legislative branch'' and specifically
exclude GAO from our proposed definition of ``executive branch.''
We determined that it would be appropriate to define the term
``Government corporation'' by reference to two separate statutory
provisions, one in title 5 and one in title 18 of the United States
Code. For purposes of determining the employees subject to 18 U.S.C.
207, we propose to use the definition of ``Government corporation'' in
5 U.S.C. 103. As defined in that section for purposes of Government
personnel rules, a Government corporation means a corporation owned or
controlled by the Government of the United States. In contrast, we
propose to rely on the definition in 18 U.S.C. 6 when necessary to
identify the employees with whom post-employment contact is restricted,
to describe matters to which the United States is a party or has a
direct and substantial interest, to specify the decisions of whom a
former senior or very senior employee cannot seek to influence on
behalf of a foreign entity, and to explain when an activity will be
deemed undertaken on behalf of the United States. A corporation is an
``agency'' as defined in 18 U.S.C. 6 if it is a corporation ``in which
the United States has a proprietary interest.'' The Department of
Justice's Office of Legal Counsel has distinguished a proprietary
interest from one that is merely ``custodial or incidental'' as
determined by reference to the corporation's ``functions, financing,
control, and management.'' 12 Op. Off. Legal Counsel 84 (1988). The
proposed definition incorporates this Office of Legal Counsel guidance.
As defined in proposed Sec. 2641.104, an individual becomes a
``former employee'' at the termination of Government service. Examples
following the proposed definition of former employee illustrate the
combined effect of this definition and those of ``employee,''
``executive branch,'' and ``Government service.'' Notably, proposed
example 3 emphasizes that former employee status is triggered when an
employee terminates Federal service. Thus, the example points out that
an individual who served in a GS-14 position did not become a former
employee when he terminated service in the executive branch to accept a
position in the legislative branch. This result is dictated by language
in 18 U.S.C. 207(a)(1), (a)(2) and (b) indicating that those
restrictions commence when ``service or employment with the United
States'' terminates. In contrast, we indicate that status as a ``former
senior employee'' or ``very senior employee'' is triggered (for
purposes of sections 207(c), (d), and (f)) at the termination of
service in a senior or very senior position. This distinction appears
both in the proposed definition of ``former employee'' and in proposed
definitions of ``former senior employee'' and ``former very senior
employee.''
The proposed revised definition of ``senior employee'' at Sec.
2641.104 reflects the post-Ethics Reform Act of 1989 amendment of 18
U.S.C. 207(c) by the Office of Government Ethics Authorization Act of
1996, Pub. L. 104-179. Prior to the amendment of section
207(c)(2)(A)(ii) by that Act, section 207(c) applied, inter alia, to
employees occupying positions for which the rate of basic pay was equal
to or greater than that payable for level V of the Executive Schedule
(EL-V). The amendment replaced the EL-V threshold with the
[[Page 7848]]
rate of basic pay payable for level 5 of the Senior Executive Service
(ES-5).
Proposed example 2 following Sec. 2641.104 reflects our conclusion
in OGE Informal Advisory Letter 92 x 20 that step increases, or their
equivalent, must be considered in determining whether an employee's
basic rate of pay equals or exceeds the threshold rate of basic pay. In
a subsequent advisory letter, we observed that this interpretation is
not limited to the SL (senior level) or ST (scientific or professional)
positions that were the subject of OGE Informal Advisory Letter 92 x
20. In the subsequent advisory letter, we stated that ``[i]n general,
for purposes of 18 U.S.C. 207(c)(2)(A)(ii), the ``rate of basic pay''
for any pay system refers to the base amount of actual pay for each
individual employee, not the minimum rate of pay for a position's
authorized pay range (footnote omitted).'' OGE Informal Advisory Letter
98 x 2. Both OGE advisory letters, along with the others cited in this
rulemaking document, are included in The Informal Advisory Letters and
Memoranda and Formal Opinions of the United States Office of Government
Ethics, as published by the U.S Government Printing Office, and are
also available on OGE's Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Admirals and Generals in the uniformed services (``flag'' officers)
are senior employees because, as specified in 18 U.S.C.
207(c)(2)(A)(iv), they are ``employed in a position which is held by an
active duty commissioned officer of the uniformed services who is
serving in a grade or rank for which the pay grade is * * * pay grade
O-7 or above.'' A flag officer becomes a senior employee once
``frocked.'' When frocked, an officer is authorized to wear the stars
of the higher rank and to serve in a specified flag officer billet. He
does not, however, receive the pay and allowances authorized by law for
pay grade O-7 until he is actually promoted to that pay grade. We
invite comment from the military departments concerning our
interpretation of section 207(c) as it applies to flag officers.
As first published in part 2641 in early 1991, the term ``senior
employee'' was defined to include individuals detailed to a position
otherwise considered to be a senior employee position. We have
revisited our earlier interpretation and propose to delete the
reference to details. Our earlier interpretation was largely based upon
a reading of 18 U.S.C. 207(g). Since that section indicates that an
individual's former agency would include one to which the individual
had been detailed, we stated in the regulation that a detail to a
senior employee position would trigger senior employee status for
purposes of determining the applicability of section 207(c). Upon
further review of this issue, we now deem it more significant that the
statute generally defines senior employee positions by reference to
rate of pay (except in the case of Presidential or Vice Presidential
appointments under title 3 of the United States Code). In the case of
Senior Executive Service employees who are detailed, an employee
continues to be the incumbent of the position from which detailed for
purposes of pay and benefits. 5 CFR 317.903(a). Accordingly, we are
proposing to delete the reference to details in existing Sec. 2641.101
from our revised definition of senior employee in proposed Sec.
2641.104. Compare OGE Informal Advisory Letter 98 x 4 in which we
determined that an employee was a ``senior employee'' under 18 U.S.C.
207(c)(2)(A)(i) because she was, despite her election to continue to
receive the SES pay of her previous position, employed in an Executive
Schedule position.
For the reasons discussed above in connection with the definition
of ``senior employee,'' the proposed definition in Sec. 2641.104 of
``very senior employee'' differs from that previously published in part
2641 in relation to details. Separately, it should be noted that since
the definition of ``very senior employee'' encompasses any employee who
satisfies any of the criteria enumerated in proposed subparagraphs (1)-
(4) of the definition, the definition may encompass an SGE. However,
there is no provision exempting any former very senior employee from 18
U.S.C. 207(d) based upon length of service. Compare proposed definition
of ``senior employee'' in Sec. 2641.104.
Section 207(d) applies to, among others, any person who ``is
employed in a position * * * at a rate of pay payable for level I of
the Executive Schedule'' (emphasis added). Therefore, the current
definition of ``very senior employee,'' found in existing section
2641.104, would be modified slightly in the proposed rule to reflect
the apparent intent of Congress that the restriction apply to any
individual employed in a level I position, or in a position in a pay
system other than the Executive Schedule for which the rate of pay is
exactly equal to--but not greater than--the level I rate. See
Memorandum for Kenneth R. Schmalzbach, Assistant General Counsel,
Department of the Treasury, from Daniel Koffsky, Acting, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Application of
18 U.S.C. Sec. 207(d) to Certain Employees of the Treasury Department
(November 3, 2000), available under ``Other Ethics Guidance, Conflict
of Interest Prosecution Surveys and OLC Opinions'' on OGE's Web site,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Proposed Sec. 2641.104 reflects a similar
Congressional judgment in relation to the application of section 207(d)
to individuals serving in the Executive Office of the President.
The terms ``agency'' and ``department'' are used throughout 18
U.S.C. 207. The definitions of both terms in proposed Sec. 2641.104,
respectively, are from 18 U.S.C. 6. These terms appear in sections
207(a)(1) and 207(a)(2), for example, in connection with identifying
those employees to and before whom communications and appearances may
not be made. See proposed Sec. 2641.201(f). They similarly identify
the scope of the representational bars set forth in sections 207(c) and
207(d). See proposed Sec. 2641.204(g). They are also used in 18 U.S.C.
207(f) for purposes of identifying the decisions of whom a former
senior or very senior employee cannot seek to influence on behalf of a
foreign entity. Significantly, these terms were not defined for
purposes of identifying those former employees to whom the various
restrictions of section 207 apply. We are proposing to include any
``independent agency'' not in the legislative or judicial branches
within the scope of our definition of ``agency.''
Even the ``United States'' is a ``person'' as that term is defined
in proposed Sec. 2641.104; sections 207(a)(1), (a)(2), (b), (c), and
(d), prohibit post-employment activity that is undertaken on behalf of
(or to assist) ``any other person (except the United States).'' In some
places in the proposed regulatory text, we use the terms ``person'' and
``entity'' together even though the first term encompasses the latter.
The terms ``agency ethics official'' and ``designated agency ethics
official'' are defined due to their use in a number of places in the
regulatory text, including in proposed Sec. 2641.105 concerning
advice, in proposed Sec. 2641.301 concerning exceptions and waivers,
and in proposed Sec. 2641.302 concerning separate departmental or
agency component designations for purposes of 18 U.S.C. 207(c).
Finally, as this regulation is intended to be gender-neutral,
proposed Sec. 2641.104 indicates that the terms ``he,'' ``his,'' and
``him'' include ``she,'' ``hers,'' and ``her,'' and vice versa.
Proposed Sec. 2641.105--Advice
Proposed Sec. 2641.105(a) indicates that current or former
employees and others should seek advice concerning 18 U.S.C.
[[Page 7849]]
207 and part 2641 from an ``agency ethics official.'' The latter term
is defined in proposed Sec. 2641.104 as encompassing the designated
agency ethics official (DAEO), the alternate DAEO, and any deputy
ethics official as described in subpart B of 5 CFR part 2638. Proposed
Sec. 2641.105(a) notes that the agency in which the employee formerly
served has the primary responsibility for providing such advice and
that the agency may seek assistance from OGE. Proposed Sec.
2641.105(a) does not require that agency advice be reduced to writing,
although that format can provide the most protection to the employee.
We expect that the decision whether to provide oral or written advice
will be dictated by the circumstances.
An individual's former agency remains the primary source of advice.
Agency officials are more familiar with agency programs and policies
than are OGE personnel, and questions arising under section 207 often
require a detailed understanding of the facts surrounding agency
operations. However, OGE personnel also will provide advice to current
or former employees, including their representatives or non-Federal
employers, as outlined in proposed Sec. 2641.105(b). Based on its
statutory responsibilities for the executive branch ethics program, OGE
may provide advice in a matter where an agency has already provided a
former employee with advice.
While OGE strongly encourages agencies to establish mechanisms to
ensure that departing employees will receive advice concerning
pertinent post-employment restrictions (see, e.g., 5 CFR 2638.203(b)(6)
and (7)), this regulation as proposed would not require the agency to
set up any particular system in order to achieve this goal. The Office
of Government Ethics is aware that some agencies require that employees
meet with an agency ethics official as one step in the exit process.
Others have developed systems that identify terminating employees who
can then be provided with written materials concerning the post-
employment laws.
Although reliance on the oral or written advice of an agency ethics
official or OGE is a factor that will be taken into consideration by
the Department of Justice when selecting cases for prosecution,
proposed Sec. 2641.105(c) warns that there may be circumstances that
would cause the Department to initiate a prosecution notwithstanding
the former employee's reliance on such advice. The regulation would
distinguish any case in which OGE issues a ``formal'' opinion. See 5
CFR 2638.309. Proposed Sec. 2641.105(e) would advise that there is no
attorney-client relationship formed when a current or former employee
seeks advice from an agency attorney concerning post-employment
restrictions. Thus, an agency or OGE attorney is obligated to report
violations of law to appropriate authority. See, e.g., 5 CFR
2635.101(b)(11).
Section 2641.105(d) of the proposed rule emphasizes that a former
employee does not risk a violation of 18 U.S.C. 207 when he contacts an
agency ethics official, attorney, or other Government employee for the
purpose of seeking prospective advice concerning the potential
applicability of the statute to his own post-employment activities.
Subpart B--Prohibitions
Proposed part 2641 draws heavily from the language and explanations
in 5 CFR part 2637 concerning provisions of 18 U.S.C. 207 that were not
amended by the Ethics Reform Act of 1989 (or thereafter). However, we
have incorporated a number of improvements designed to facilitate
understanding of this very complex statute. We have organized part 2641
as proposed in a manner that we feel more clearly highlights the
applicability, duration, and elements of each of the substantive
provisions of section 207 that apply to former employees of the
executive branch and independent agencies. In addition, more guidance
is included concerning the scope of the statutory exceptions.
We have also included new and more numerous examples. However, the
examples are illustrative, not comprehensive. Each agency may provide
additional illustration and guidance to its own employees, consistent
with this part, in order to address specific problems arising in the
context of a particular agency's operations. It is important to
emphasize that the examples in part 2641 were drafted to illustrate the
scope and meaning of 18 U.S.C. 207 only. Activity that is represented
as permissible under section 207 may be prohibited by another post-
employment law.
Proposed Sec. 2641.201--18 U.S.C. 207(a)(1)
Section 207(a)(1) of title 18, United States Code, sets forth the
permanent bar that was designated as section 207(a) in the pre-Ethics
Reform Act of 1989 version of section 207. The target of this
restriction is the former employee who participates personally and
substantially in a particular matter involving a specific party or
parties while employed by the Government and who later ``switches
sides'' by representing another person on the same matter, with the
intent to influence, before a Federal department, agency, or court.
Proposed Sec. 2641.201(b) provides cross-references to the
appropriate paragraphs of proposed Sec. 2641.301 for each of the
exceptions and waivers that in certain circumstances negate the
prohibition contained in 18 U.S.C. 207(a)(1).
Proposed Sec. 2641.201(d)--Communication or Appearance
Section 207(a) bars certain communications to or appearances before
the United States. Proposed Sec. 2641.201(d) describes the statutory
communication or appearance element. Although section 207(a) has been
amended several times since 1962--and the operative language describing
the offense in section 207(a)(1) has varied--OGE and the Department of
Justice have long held that it covers only those actions involving some
representational contact by the former employee with the Government.
E.g., 2 Op. O.L.C. 313 (1978); OGE Informal Advisory Letter 82 x 13.
The current statutory language reinforces the longstanding view that
some communication or appearance by the former employee is required for
a violation of the statute.
The definition of ``communication'' at proposed Sec.
2641.201(d)(1) is intended to be all-inclusive with respect to types of
communication, content of communication, or means of communication.
This intentionally broad definition covers all formal or informal
communications of any sort; to the extent that a given communication
might be thought trivial or insignificant, such issues may be dealt
with in connection with other statutory elements, especially the
requirement that the communication be made with the intent to influence
the Government. See proposed Sec. 2641.201(e).
The definition of ``appearance'' at proposed Sec. 2641.201(d)(2)
largely follows the language of 5 CFR 2637.201(b)(3). However, the
proposed regulation focuses solely on physical presence and omits the
reference, found in Sec. 2637.201(b)(3), to ``convey[ing] material to
the United States in connection with a formal proceeding or
application.'' The latter phrase is unnecessary, since the conveying of
material, such as pleadings and other documents, typically would
constitute a ``communication'' anyway. See 5 CFR 2637.201(b)(3)
(example 1) (under old rule, appearance included submitting brief in
agency proceeding). Under the
[[Page 7850]]
statute as it existed prior to the 1989 amendments, it was more
important to distinguish appearances from mere communications, as the
two types of contacts were treated differently for certain purposes
that are no longer relevant under the current statutory scheme. See 44
Federal Register 19974, 19975 (April 3, 1979) (preamble to 5 CFR part
737, now 5 CFR part 2637); OGE Informal Advisory Letter 81 x 35.
Proposed Sec. 2641.201(d)(3) emphasizes that section 207(a) does
not prohibit ``behind-the-scenes assistance'' that involves no contact
by the former employee with the Government. See, e.g., Beverly
Enterprises, Inc. v. Trump, 182 F.3d 183, 191 (3d Cir. 1999), cert.
denied, 120 S.Ct. 795 (2000). Proposed example 5 is derived from a
recent opinion of the Office of Legal Counsel, and it illustrates the
principle that a former employee does not confine herself to
permissible behind-the-scenes activity when she conveys information to
the Government through an intermediary and does so with the intent that
the information be attributed to her. See Memorandum for Amy L.
Comstock, Director, OGE, from Joseph R. Guerra, Deputy Assistant
Attorney General, OLC, January 19, 2001, available under ``Other Ethics
Guidance, Conflict of Interest Prosecution Surveys and OLC Opinions''
on OGE's Web site, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov. In this connection, see also
proposed example 7 following proposed Sec. 2641.201(f), which would
illustrate the related point that a communication will be deemed to be
made ``to'' an employee of the United States if it is conveyed to an
employee through a third party with the intent that the information be
attributed to the former employee.
Proposed Sec. 2641.201(e)--With the Intent to Influence
Section 207(a) prohibits only those communications or appearances
that are made with the intent to influence the United States. Proposed
Sec. 2641.201(e) describes this statutory element of intent to
influence.
Prior to the 1989 amendments, the phrase ``with the intent to
influence'' modified only ``communication,'' not ``appearance.'' See S.
Rep. No. 170, 95th Cong., 1st Sess. 152-53 (1977); OGE Informal
Advisory Letter 81 x 35.\3\ After the 1989 Act, it became clear that
both appearances and communications must be made with the intent to
influence in order for a violation of section 207(a) to occur: ``Any
person who * * * knowingly makes, with the intent to influence, any
communication to or appearance before * * * .'' 18 U.S.C. 207(a)(1).
(Identical language also appears in sections 207(a)(2), 207(c)(1), and
207(d)(1).) It is unclear, however, to what extent this 1989 change
really altered the executive branch's understanding of section 207(a):
``appearance'' had been used in conjunction with the statutory phrase
``acts as agent or attorney for, or otherwise represents,'' and OGE had
already determined that this meant an appearance was prohibited only
``if there were an actual or potential dispute.'' OGE Informal Advisory
Letter 81 x 35. See also 5 CFR 2637.204(e), 2637.201(b)(5); 2 Op. Off.
Legal Counsel 313, at 316. As discussed more fully below, the existence
of an actual or potential dispute is one of the recognized factors for
determining intent to influence. Compare 5 CFR 2637.204(e) (under old
rule, same standard for ``acting as representative'' and ``attempting
to influence'').
---------------------------------------------------------------------------
\3\ The Senate Report discussion and OGE Informal Advisory
Letter 81 x 35 specifically pertained to section 207(c), but they
were relevant also to section 207(a), because ``[p]rior to the
effective date of the amendments enacted by the Ethics Reform Act of
1989, both sections 207(a) and 207(c) contained identical language
describing the nature of the representational activity prohibited.''
OGE Informal Advisory Letter 96 x 14, n. 25.
---------------------------------------------------------------------------
Proposed Sec. 2641.201(e) uses basically the same test for the
intent to influence as the prior section 207 regulations. See 5 CFR
2637.204(e). As articulated in the proposed regulation, the intent to
influence may be found if the communication or appearance is made for
either of the following purposes: ``(i) [s]eeking a Government ruling,
benefit, approval, or other discretionary Government action; or (ii)
[a]ffecting Government action in connection with an issue or aspect of
a matter which involves an appreciable element of actual or potential
dispute.'' Proposed Sec. 2641.201(e)(1)(i) and (ii). In some respects,
paragraph (1)(i) might be viewed as a subset of subparagraph (1)(ii),
in the sense that any time a communication or appearance is made to
seek ``discretionary'' Government action, there is at least the
potential for a conflict of positions or other dispute between the
Government and the private party being represented. Nevertheless,
consistent with the prior section 207 regulations, OGE believes that it
is appropriate to emphasize that any representational contact made for
the purpose of seeking discretionary Government action would meet the
element of the intent to influence.
The proposed regulation draws on various provisions in the prior
regulations, as well as more recent administrative and judicial
precedents, to provide guidance on when the intent to influence is
present. Proposed Sec. 2641.204(e)(2) sets out situations that
generally have been recognized as involving no intent to influence.
Several of the paragraphs in proposed Sec. 2641.201(e)(2) repeat
provisions or examples found in the prior section 207 regulations and
other OGE precedents. For example, proposed Sec. 2641.201(e)(2)(iii)--
signing a tax return prepared for another person--and Sec.
2641.201(e)(2)(v)--submitting an SEC Form 10-K--basically reiterate
examples found in 5 CFR 2737.204(e). Some provisions in the proposed
regulation make certain clarifications to the language used in the
prior section 207 regulations and other OGE precedents. For example,
proposed Sec. 2641.201(e)(2)(iv), read in conjunction with proposed
Sec. 2641.201(d) (example 4), substantially preserves 5 CFR
2637.204(g) (example 1), pertaining to various aspects of the Federal
grant application process and service by former employees as principal
investigators, but clarifies the rationale. The proposed rule
intentionally does not carry forward the provision on project responses
in 5 CFR 2637.201(b)(7) because this provision was thought by OGE to be
susceptible to misinterpretation. In OGE's experience, the project
response provision and the accompanying example sometimes have been
construed as allowing former employees inappropriate latitude in
communicating with the Government where there may be a potential for
controversy in the course of performing Government contracts or
submitting proposals or reports to the Government. In its place, OGE
has provided example 5, following proposed Sec. 2641.201(e)(2), in
order to emphasize the limits on communications during the performance
of contracts, particularly in the difficult area of contracts to
perform professional or managerial studies or similar services for the
Government. Proposed examples 3 and 7 also provide additional guidance
concerning the scope of permissible contacts in connection with
Government contracts.
Some of the situations addressed in proposed Sec. 2641.201(e)(2)
pertain to communications and appearances that involve certain types of
factual statements or questions, e.g., proposed Sec.
2641.201(e)(2)(ii). OGE has long recognized that certain statements of
fact, in appropriate circumstances, do not necessarily involve an
intent to influence the United States. See, e.g., OGE Informal Advisory
Letter 80 x 9. Factual statements, however, are not per se excluded
from section 207(a). Factual disputes often are the heart of a given
controversy, and a former employee's
[[Page 7851]]
characterization of the material facts can be a form of advocacy. See,
e.g., proposed Sec. 2641.201(e)(2) (example 4) (dealing with efforts
to persuade Government of safety and efficacy of new drug based on
presentation of testing data). Congress recognized this by providing
exceptions to section 207, such as the exceptions for scientific or
technological information and testimony under oath, which permit
certain factual statements, but only under specified safeguards. See
proposed Sec. 2641.301(e) and (f). It is clear that factual statements
may be made with the intent to influence the Government, if they are
made for the purpose of seeking discretionary Government action or
affecting Government action in connection with an issue or aspect of a
matter involving an appreciable element of dispute. Therefore, OGE was
careful, in various proposed textual provisions and examples pertaining
to factual statements (or appearances in connection with factual
matters), to include circumstances that specifically would indicate
that there is no intent to influence.
A word of caution is in order with respect to the application of
proposed Sec. 2641.201(e)(1) and (2). The presence or absence of the
intent to influence typically will be based on a consideration of all
the relevant circumstances in a given case. The facts of each case
should be examined carefully, therefore, before any conclusion is
reached that a particular activity would fall within any of the
provisions of proposed Sec. 2641.201(e)(2) indicating no intent to
influence, or would more correctly be viewed as meeting the test for
the intent to influence in proposed Sec. 2641.201(e)(1).
Proposed Sec. 2641.201(e)(3) makes explicit a principle that was
already implicit in the prior section 207 regulations. See Sec.
2637.201(b)(5) (example 1). This provision recognizes that certain
communications or appearances may commence without any intent to
influence the Government, but may take on a different character if
unforeseen disputes or other changed circumstances arise. In these
cases, the former employee must refrain from any further communication
or appearance if it becomes apparent that such further contact would be
made with the intent to influence.
Proposed Sec. 2641.201(e)(4) emphasizes that a mere appearance,
even without any accompanying communication by the former employee, may
be prohibited by section 207(a). As one court put it, applying the pre-
1989 language, a representational appearance by a former employee may
be covered ``with or without speaking for the client.'' United States
v. Coleman, 805 F.2d 474, 480 (3d Cir. 1986).\4\ Phrased another way,
silent appearances can be made with the intent to influence. This
conclusion is compelled by the language and history of the statute. The
language of section 207(a)(1) explicitly covers former employees who
make, ``with the intent to influence, any communication to or
appearance before'' the Government (emphasis added). Historically, as
discussed above, representational appearances actually were covered per
se, even without any explicit requirement of ``intent to influence,''
although it was recognized even prior to the 1989 amendments that the
appearance must have been made under circumstances involving ``at least
inchoate adversariness.'' 2 Op. Off. Legal Counsel at 316. There is
nothing in the legislative history of the 1989 Act to indicate that the
addition of an explicit ``intent to influence'' element in connection
with appearances was intended to relax the restriction on
representational appearances as it had been understood previously.
---------------------------------------------------------------------------
\4\ Coleman involved the application of former 18 U.S.C.
207(b)(1), but that statute contained the same language concerning
the representational conduct prohibited as section 207(a), prior to
the 1989 amendments.
---------------------------------------------------------------------------
The question becomes, then, what circumstances would indicate that
physical presence alone, without any substantive communication, is
intended to influence the Government? The second sentence of proposed
Sec. 2641.201(e)(4) provides a nonexhaustive list of factors that can
be relevant to such determinations. Many of these factors are derived
from judicial and administrative precedents. See, e.g., Coleman, supra;
United States v. Schaltenbrand, 930 F.2d 1554 (11th Cir. 1991); OGE
Informal Advisory Letter 82 x 7. Although no one factor is necessarily
determinative, these and any other relevant factors should be
considered in light of the totality of the circumstances in a given
case.
Proposed Sec. 2641.201(f)--To or Before an Employee of the United
States
The post-Ethics Reform Act of 1989 version of 18 U.S.C. 207(a)(1)
prohibits communications to or appearances before any ``officer or
employee'' of any ``department, agency, court, or court-martial of the
United States or the District of Columbia * * *.'' The prior version of
the permanent bar had also prohibited communications to and appearances
before ``any civil, military, or naval commission of the United States
or the District of Columbia, or any officer or employee thereof.'' We
believe the current version of the permanent bar no longer lists
``civil, military, or naval commission'' because these commissions are
encompassed within the remaining terms. For purposes of summarizing the
section 207(a)(1) restriction as briefly as possible at proposed Sec.
2641.201(a), we refer to an employee ``of the United States'' rather
than repeating the words ``department, agency, court, or court-
martial.'' Proposed Sec. 2641.201(f) is titled accordingly. Although a
court-martial is held under the auspices of a department, we chose to
specifically list this forum in order to avoid possible confusion.
Moreover, proposed Sec. 2641.201(f) does not distinguish between
``department'' and ``agency,'' because the definition of ``agency''
includes ``department.'' See proposed Sec. 2641.104.
The term ``employee of the United States'' is defined at proposed
Sec. 2641.201(f)(1) for purposes of identifying those individuals with
whom post-employment contact is restricted. The proposed definition
specifically includes an individual who, under 5 U.S.C. 3374(a), is
considered an employee because appointed or detailed under the IPA.
Pursuant to 18 U.S.C. 207(i)(1)(A), it also encompasses the President
and the Vice President. Section 207(i)(1)(A) specifically states that
``the term ``officer or employee,'' when used to describe the person to
whom a communication is made or before whom an appearance is made * * *
shall include in subsections (a), (c), and (d), the President and the
Vice President.''
More generally, the proposed definition of ``employee of the United
States'' at Sec. 2641.201(f)(1) includes any ``Federal employee'' who
is ``employed by'' an agency, court, or court-martial. Our choice of
words was guided by a number of factors. First, 18 U.S.C. 207(a)(1)
states that a communication or appearance is barred only if directed to
an ``employee'' of a department, agency, court, or court-martial. We
specifically intend that the words ``employed by'' would exclude from
the scope of section 207(a) those communications directed to a non-
Federal employee who happens to be serving in a department, agency,
court, or court-martial. However, as illustrated in proposed example 7
following Sec. 2641.201(f), we recognize that there may be
circumstances in which a communication to a non-Federal employee is
actually directed to a Federal employee.
Proposed Sec. 2641.201(f)(1)(i) specifies that an agency
encompasses a Government corporation. While the
[[Page 7852]]
term agency encompasses any independent agency, proposed Sec.
2641.201(f)(1)(ii) emphasizes that the representational bar extends to
contacts with employees of an independent agency in any of the three
branches of the Federal Government. Notably, proposed example 1
following Sec. 2641.201(f) as proposed would highlight the fact that
Members of Congress and their staffs are not employees of an
independent agency in the legislative branch. Proposed Sec.
2641.201(f)(1)(iii) modifies the term ``court'' with the adjective
``Federal'' in order to distinguish State or other non-Federal courts.
Of course, as has been described in several OGE Informal Advisory
Letters, a communication made in a court has ``the additional
unavoidable intent of attempting to influence and to persuade'' a
Federal party in the lawsuit, regardless of the forum. OGE Informal
Advisory Letter 80 x 6. Moreover, a former employee may be prohibited
from contacting Federal employees for use as witnesses or otherwise in
connection with a lawsuit in State court. OGE Informal Advisory Letter
82 x 13.
Proposed Sec. 2641.201(f)(1) omits the District of Columbia from
the list of entities to or before which communications and appearances
may not be made. As clarified in 18 U.S.C. 207(a)(3), the District of
Columbia is listed in section 207(a)(1) merely as a consequence of the
permanent bar's applicability to former District of Columbia employees.
Thus, a former employee of the District of Columbia is covered by
section 207(a)(1) in relation to contacts back to the government of the
District of Columbia, but former employees of the executive branch (and
of independent agencies) are not restricted by section 207(a)(1) from
contacting employees of the District of Columbia.
Our definition of ``to or before'' in proposed Sec.
2641.201(f)(2)(i) indicates that a communication or appearance will be
considered directed to an employee of an agency, court, or court-
martial even though not addressed to any particular employee of the
entity. We believe it would be inconsistent with the purpose of 18
U.S.C. 207 to permit communications to a Federal entity merely because
they are not addressed to a named individual.
In proposed Sec. 2641.201(f)(2)(ii), we specify that a
communication or appearance must be directed to an employee ``in his
capacity as an employee of'' an agency, court, or court-martial.
Proposed examples 2, 3, and 4 following proposed Sec. 2641.201(f) are
illustrative. While a former employee is not prohibited from lobbying a
legislative branch employee at a meeting, example 2 emphasizes that a
former employee may not try to influence an employee of an independent
agency who is participating in the same meeting. Example 3 indicates
that the permanent bar would extend to communications directed to an
executive branch employee who is assigned by his agency to carry out
official Government duties as a member of the Board of Directors of a
non-Federal entity. The employee would be acting in his capacity as an
executive branch employee even when, as in the proposed example, he is
considering a specific issue of most interest to the private sector
entity. (Separately, of course, the issue must be of direct and
substantial interest to the current employee's agency, as described in
proposed Sec. 2641.201(j).) The proposed wording of Sec.
2641.201(f)(2)(ii) is also intended to address the situation in which a
former employee directs a communication to a former employee in a
social setting. Although the current Federal Communications Commission
(FCC) employee in proposed example 4 is ``off-duty'' at the cocktail
party, the former employee nevertheless directs his communication to
the FCC employee in his capacity as an employee of that agency.
As proposed, Sec. 2641.201(f)(2)(ii) indicates that a former
employee does not ``direct'' his communication to a mere bystander.
Beyond this, we considered whether 18 U.S.C. 207(a)(1) should be
interpreted as also not extending to a variety of situations in which a
former employee directs a communication to a current employee who has
no official role in a forum, yet who is participating in the forum as
more than a mere bystander. We considered, for example, a number of
situations in which a communication is directed to an assembled group.
As we observed in OGE Informal Advisory Letter 81 x 5(1) in relation to
the scope of section 207(c), the concern is the extent to which section
207 ``might require [a former employee] to survey who his audience was
before he argued a certain position to any group of individuals.''
Proposed Sec. 2641.201(f)(3) permits a former employee to serve as
a speaker if the forum ``[i]s not sponsored or co-sponsored by an
entity specified in paragraphs 2641.201(f)(1)(i)-(iv) of this section,
[i]s attended by a large number of people, and [a] significant
proportion of those attending are not employees of the United States.''
See OGE Informal Advisory Letters 81 x 5(1), 81 x 5(2), It is our
intention that former employees not be prohibited from addressing what
are essentially public forums. The regulation may depart somewhat from
past guidance in that it states that employees otherwise permitted to
address such fora may engage in debate with any other panel
participants or with members of the audience who happen to be current
employees without fear of being found to have made a prohibited
communication. In a public setting outside the context of official
decision-making, such incidental exchanges between participants are
still primarily directed towards the audience.
Under proposed Sec. 2641.201(f)(3), private sector sponsorship of
a forum, standing alone, does not free a speaker or panel participant
from his post-employment restrictions. The forum must be in the nature
of a conference, seminar, or similar forum; the audience must be large;
and a significant proportion of attendees must be persons other than
Federal employees. We considered whether to specify a minimum number of
attendees and/or a maximum percentage of Federal employee attendees. In
some settings, a communication is directed to so wide an audience that
it cannot be said to be made ``to'' Federal employees in the audience.
And while some audiences will plainly fall on one side or the other of
a line drawn for this purpose, a precise line as to the size and
composition of such an audience cannot be drawn. Former employees
should appreciate the risks of violating section 207 before agreeing to
address a forum when it is unclear whether proposed Sec.
2641.201(f)(3) applies. In this regard, former employees may be guided
by the size of the conference and the proportion of non-employee
attendees in proposed example 5.
The regulation would deal with published writings in a similar
fashion. A former employee may ``permit the broadcast or publication of
a commentary provided that it is broadcast or appears in a newspaper,
periodical, or similar widely-available publication.''
As proposed example 7 would indicate, a communication can be made
``to'' an employee of the United States if it is conveyed through an
intermediary with the intent that the information be attributed to the
former employee. A similar point is discussed above in connection with
proposed example 5 following Sec. 2641.201(d) as proposed, which would
illustrate the distinction between permissible behind-the-scenes
activity and communications directed to the Government.
[[Page 7853]]
Proposed Sec. 2641.201(g)--On Behalf of Any Other Person
Proposed Sec. 2641.201(g) defines the phrase ``on behalf of'' for
purposes of 18 U.S.C. 207(a)(1), (a)(2), (c) and (d). As enacted in
1962, the lifetime restriction originally barred a former employee from
acting as ``agent or attorney'' for anyone. Similarly, the predecessor
of current section 207(a)(2), concerning matters under an employee's
official responsibility, originally barred a former employee from
appearing personally as ``agent or attorney.'' These restrictions were
amended by the Ethics in Government Act of 1978 to extend to the former
employee who acts ``as agent or attorney for, or otherwise represents,
any other person * * * in any formal or informal appearance * * * or *
* * makes any oral or written communication on behalf of any other
person.'' Congress used this same language in 1978 when it enacted
section 207(c), the one-year ``cooling-off'' restriction applicable to
former senior employees. Since the Ethics Reform Act of 1989, these
three restrictions have barred a former employee from making any
``communication to or appearance before'' an employee of the United
States ``on behalf of'' any other person. The same language appears in
section 207(d), the one-year cooling-off restriction applicable to
former very senior employees.
We determined that a communication or appearance that is in the
interest of another person is not sufficient to be considered ``on
behalf of'' that person. Accordingly, the proposed definition at Sec.
2641.201(g)(1) states that ``[a] former employee does not act on behalf
of another merely because his communication or appearance is consistent
with the interests of the other person, is in support of the other
person, or may cause the other person to derive a benefit as a
consequence of the former employee's activity.'' While we recognize
that the terms ``agent'' and ``attorney'' no longer appear in the
current version of the permanent, two-year, or one-year cooling-off
restrictions, proposed Sec. 2641.201(g)(1) indicates that when a
former employee acts as another's ``agent'' or ``attorney,'' he
necessarily acts on behalf of the principal. Even when a former
employee is not acting as an agent or attorney, however, proposed Sec.
2641.201(g)(1) recognizes that a former employee may nevertheless act
on behalf of another provided the criteria at proposed Sec.
2641.201(g)(1)(i) and (ii) are satisfied. As specified in proposed
Sec. 2641.201(g)(1)(i), the former employee must be acting with the
consent, express or implied, of the other person. And, as specified in
proposed Sec. 2641.201(g)(1)(ii), the former employee must be subject
to some degree of control or direction by the other person in relation
to the communication or appearance.
The former employee in example 2 following proposed Sec.
2641.201(g) has broad authority to further the interest of the
organization with which she is serving as a volunteer. For purposes of
the consent requirement in proposed Sec. 2641.201(g)(1)(i), the
organization is deemed to have consented to her dispatch of the letter
to the Government. In contrast, the circumstances in proposed example 3
would indicate that the former employee is not acting on behalf of the
nonprofit group with which he is serving as an employee.
OGE has fielded many questions from agencies that wish to contact
former employees who have gone to work for private sector employers. We
have generally been counseling that all relevant factors must be
considered, including the relationship between the communication or
appearance and any related interest of the former employee's new
employer or other organization with which he is affiliated. See, e.g.,
OGE Informal Advisory Letter 97 x 9. We believe that the focus on the
two factors at proposed Sec. 2641.201(g)(1) would make certain
contacts between an agency and its former employee less problematic and
would allow OGE and agency ethics officials to advise accordingly.
An appearance or communication is barred by 18 U.S.C. 207(a)(1),
(a)(2), (c), or (d) only if made on behalf of ``any other person.''
Proposed Sec. 2641.201(g)(2) cross-references the definition of
``person'' in proposed Sec. 2641.104, but specifically states that
self-representation is not prohibited. Proposed example 1 following
proposed Sec. 2641.201(g) is illustrative. Proposed Sec.
2641.201(g)(2) also includes a reference to sole proprietorships that
is intended to distinguish that form of business enterprise from
partnerships and corporations for purposes of the ``exception'' for
self-representation. The proposed rule reflects that a corporation is a
person separate from its owner or owners. As a result, if a former
employee chooses to incorporate his consulting business, he must ensure
that his communications with the Government do not run afoul of the
post-employment statute's requirements since he will be representing
another ``person.'' On the other hand, if the same former employee had
chosen not to incorporate his business, he would be free to interact
with current Government employees without fear of violating section
207(a)(1) since he would be representing only himself.
Proposed Sec. 2641.201(h)--Particular Matter Involving Specific
Parties
Proposed Sec. 2641.201(h) explains a concept that has been central
to the understanding of 18 U.S.C. 207 since its original enactment in
1962. The phrase ``particular matter'' is broadly defined in section
207(i)(3) to include ``any investigation, application, request for a
ruling or determination, rulemaking, contract, controversy, claim,
charge, accusation, arrest, or judicial or other proceeding.'' In
section 207(a)(1) and (2), however, particular matter is modified by
the additional phrase ``which involved a specific party or specific
parties.'' See B. Manning, Federal Conflict of Interest Law 204 (1964)
(explaining significance of the phrase); 2 Op. O.L.C. 151 (1978)
(same). Proposed Sec. 2641.201(h) is intended to explain the nature
and scope of this statutory element.
The proposed regulation uses basically the same test for particular
matters involving specific parties that is used in 5 CFR 2637.201(c).
Proposed Sec. 2641.201(h)(1) states: ``These matters involve a
specific activity or undertaking affecting the legal rights of the
parties or an isolatable transaction or related set of transactions
between identified parties, such as a specific contract, grant,
license, product approval application, enforcement action,
administrative adjudication, or court case.'' One minor change worth
noting is that the proposed regulation speaks of ``identified''
parties, whereas section 2637.201(c)(1) used the term ``identifiable''
parties (following identical language originally found in B. Manning,
supra, at 204). This change is consistent with the more recent
definition of particular matter involving specific parties in 5 CFR
2640.102(l). See 60 FR 47207, 47211 n.1 (September 11, 1995). The use
of ``identified,'' rather than ``identifiable,'' is intended to
distinguish more clearly between particular matters involving specific
parties and mere ``particular matters,'' which are described elsewhere
as including matters of general applicability that focus ``on the
interests of a discrete and identifiable class of persons'' but do not
involve specific parties. 5 CFR 2640.102(m) (emphasis added). See also
5 CFR 2640.103(a)(1); 5 CFR 2635.402(b)(3). The use of the term
``identified,'' however, does not mean that a matter will lack specific
parties just because the name of a party is not disclosed to the
Government, as
[[Page 7854]]
where an agent represents an unnamed principal.
Consistent with this basic test and with Sec. 2637.201(c)(1),
proposed Sec. 2641.201(h)(2) confirms that matters of general
applicability are not particular matters involving specific parties.
See also Shakeproof Indus. Prod. Div. of Ill. Tool Works, Inc. v.
Department of Commerce, 104 F.3d 1309, 1313-14 (Fed. Cir. 1997). As
illustrated by the examples following this provision, section 207(a)
ordinarily does not prohibit former employees from making
representations in connection with general rulemaking, policy and
legislative matters, notwithstanding any personal and substantial
participation or official responsibility they may have had with respect
to such matters as a Federal employee.
Proposed Sec. 2641.201(h)(3) indicates that specific parties must
be involved, under section 207(a), both at the time the former employee
was involved in the matter and at the time of the post-employment
representation. This reflects a longstanding interpretation of section
207(a), which was codified in 5 CFR 2637.201(c)(4). Nevertheless, the
Ethics Reform Act of 1989 made certain adjustments to the grammatical
structure of section 207(a) that may require some explanation. Prior to
the 1989 Act, section 207(a) read, in pertinent part: ``Whoever * * *
knowingly acts as agent or attorney for, or otherwise represents, any
other person * * * in connection with any * * * particular matter
involving specific parties * * * in which he participated personally
and substantially as an officer or employee * * *.'' In 1989, the
language pertaining to specific parties was broken out and moved to its
own lettered subparagraph, which now reads: ``(C) which involved a
specific party or specific parties at the time of such participation.''
18 U.S.C. 207(a)(1)(c) (emphasis added).\5\ Based on the legislative
history, it appears that the amendment was intended simply to resolve
any doubt that specific parties must have been involved at the time
that the former employee participated in the matter, not to cast doubt
on the well-understood requirement that specific parties must be
involved at the time of the representation.\6\
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\5\ Similar language was enacted in 1989 in section
207(a)(2)(C), which pertains to particular matters pending under an
employee's official responsibility: ``(C) which involved a specific
party or specific parties at the time it was so pending (emphasis
added).''
\6\ The leading Senate proponent of the 1989 amendments stated
that many of the changes to section 207 ``simply reflect an effort
to make the statute more readable.'' 135 Cong. Rec. S15954 (November
17, 1989) (remarks of Sen. Levin). Senator Levin also entered into
the record a section-by-section analysis stating that section
207(a)(1) is ``similar to current law'' and describing it as a
prohibition against ``lobbying * * * on a particular matter
involving specific parties,'' id., which suggests this was not a
novel effort to cover matters that do not involve specific parties
at the time of the lobbying. Furthermore, the Department of Justice
testified at a 1989 hearing with respect to H.R. 9, which contained
the same language as the enacted amendments concerning the timing of
the specific parties requirement. The Justice Department commented
on this aspect of the proposal and specifically noted its
consistency with the OGE regulation discussed above: ``The
requirement that a specific party must have been involved at the
time of the employee's government service clarifies present law in a
way that is consistent with current regulations. It means, for
example, that a Government employee who helped develop a set of
regulations or policies is not precluded from becoming involved in a
particular case or matter involving the application of the
regulation or policy. See 5 CFR 737.5 (c)[now 5 CFR 2637.201(c)].''
Hearings Before the Subcommittee on Administrative Law and
Governmental Relations of the Committee on the Judiciary, House of
Representatives, on H.R. 2267 and Related Bills: Post-Employment
Restrictions Act of 1989, 101st Cong., 1st Sess. 151 (April 27,
1989)(statement of John C. Keeney, Deputy Assistant Attorney
General, Criminal Division).
---------------------------------------------------------------------------
Proposed Sec. 2641.201(h)(4) pertains to the related issue of when
specific parties can be said to be involved in a particular matter.
Section 207(a) can apply to participation in preliminary or informal
stages of a particular matter. See, e.g., 2 Op. O.L.C. 313 (1978).
Consequently it becomes important to determine, in light of the facts
surrounding a given matter, at what point specific parties are first
identified. Proposed Sec. 2641.201(h)(4) and the examples that follow
are intended to provide guidance in making such determinations. In
addition to general guidance applicable to all types of matters, the
proposed regulation also provides more specific guidance with respect
to contracts, grants, and other agreements, which historically have
posed some of the most difficult and recurring questions. See OGE
Informal Advisory Letter 96 x 21.
Another set of difficult and recurring questions is addressed by
proposed Sec. 2641.201(h)(5), which explains the requirement that the
same particular matter must be involved both at the time of the former
employee's Government service and at the time of post-employment
representation. The proposed regulation uses substantially the same
test as 5 CFR 2637.201(c)(4), including a similar list of factors that
should be taken into consideration, where relevant, in determinations
as to whether two matters constitute the same particular matter
involving specific parties. The proposed examples following proposed
Sec. 2641.201(h)(5) would illustrate the application of some of these
factors and draw on various administrative and judicial precedents.
E.g., United States v. Medico Indus., Inc., 784 F.2d 840 (7th Cir.
1986); CACI, Inc.-Federal v. United States, 719 F.2d 1567 (Fed. Cir.
1983); OGE Informal Advisory Letter 93 x 32. For purposes of clarity,
one factor was not carried over from the previous list in Sec.
2637.201(c)(4), namely, ``the continuing existence of an important
Federal interest''; this factor was thought to add little to the
analysis of section 207, since the statute already applies only to
matters in which the United States is a party or at least has a
``direct and substantial interest.'' 18 U.S.C. 207(a)(1), (a)(2).
The principle reflected in proposed Sec. 2641.105--that the
primary responsibility for rendering post-employment advice resides in
the ethics official at the agency where the former employee served--is
particularly important in connection with these ``same particular
matter'' determinations. These questions frequently require an
understanding of the specific operations, programs, and missions of the
agencies involved. Moreover, there is judicial recognition that agency
determinations with respect to the ``same particular matter'' element
are ``entitled to weight.'' CACI, 719 F.2d at 1576; see also
Shakeproof, 104 F.3d at 1314. This is not to suggest, of course, that
deference to the agency is absolute. See, e.g., United States v.
Gonzalez-Florido, 986 F.Supp. 687 (D.P.R. 1997).
Proposed Sec. 2641.201(i)--Participated Personally and Substantially
Proposed Sec. 2641.201(i) defines the terms ``participate,''
``personally,'' and ``substantially.'' The first regulatory definition
of these terms for purposes of 18 U.S.C. 207 was published in 1980 at 5
CFR 2637.201(d). When Congress amended section 207 in 1989, it added a
statutory definition of ``participated'' at section 207(i)(2). In the
1990s, OGE published regulatory guidance concerning the meaning of
these terms in connection with its implementation of 18 U.S.C. 208 at 5
CFR part 2635 and 5 CFR part 2640. The current definitions of
``personal and substantial'' at 5 CFR 2635.401(b)(4) and ``personal and
substantial participation'' at 5 CFR 2640.103(a)(2) were patterned
closely after definitions in 5 CFR part 2637. The language of proposed
Sec. 2641.201(i) deviates somewhat from the language of these existing
OGE regulations for several reasons. First, we are proposing to more
clearly separate the definitions of the terms ``participate,''
``personally,'' and ``substantially.'' We would also exactly track the
language of the
[[Page 7855]]
statutory definition of ``participated.'' More significantly, however,
we are proposing to include some additional guidance that reflects our
experience with several questions arising since publication of the
earlier regulations.
The first sentence of the definition of ``participate'' at proposed
Sec. 2641.201(i)(1) is from 18 U.S.C. 207(i)(2). Consistent with
existing guidance at 5 CFR 2637.201(d)(3), the definition then
indicates that to participate can also mean to ``purposefully forbear
in order to affect the outcome of a matter.'' The proposed definition
also distinguishes participation from mere knowledge of a matter and
from the definition of ``official responsibility'' as set forth in
proposed Sec. 2641.202(j). Additionally, the proposed definition
points out that an employee can participate in a particular matter even
though it is not pending at his own agency. Finally, it would state
that an employee does not participate in a particular matter within the
meaning of section 207(a)(1) unless he does so in his official
capacity.
Under the proposed definition at Sec. 2641.201(i)(2), to
participate ``personally'' includes the direct and active supervision
of others. The existing regulations refer to active supervision of a
``subordinate.'' As proposed, Sec. 2641.201(i)(2) indicates that the
person supervised need not technically be a subordinate. An employee
may participate in a matter, for example, by means of direct and active
supervision of an employee who is merely on loan from another office.
Separately, we are also proposing to make the fairly obvious point that
an employee participates in a matter whether he does so ``individually
or in combination with other persons.''
The definition of ``substantially'' at proposed Sec.
2641.201(i)(3) closely tracks the definitions of that term in 5 CFR
part 2635 and 5 CFR part 2640. However, we are proposing to insert an
additional sentence in response to two recent scenarios. The first
concerned a former employee's involvement as a Government employee in a
meeting with a private sector company. The meeting was preliminary to
the company's submission of an application to the Government. The
former employee was willing to concede that the meeting and the
application were the same ``particular matter.'' He argued, however,
that the meeting constituted an aspect of the matter that was
insignificant in relation to the application process as a whole and
that the former employee's participation was, therefore, insubstantial.
In another case, a former employee argued that his participation in a
multi-million dollar project had not been substantial since the dollar
value of the aspect of the project in which he was involved was
insignificant in relation to the dollar value of the project as a
whole. The Office of Government Ethics rejected both arguments, noting
that in both cases the former employee had made a substantive
contribution to the matter. As we propose to explain in Sec.
2641.201(i), ``[p]rovided 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.''
We have included an additional sentence in the definition at
proposed Sec. 2641.201(i)(3) emphasizing that participation in
``peripheral'' aspects of a matter or in aspects not directly involving
the substantive merits of a matter is not substantial. We would note,
however, that such an aspect might itself constitute a particular
matter with respect to which the permanent bar might apply. This is set
forth in 5 CFR 2637.201(d)(2) and example 1 following 5 CFR
2637.201(d)(1).
Although reworded, proposed examples 1 and 2 following proposed
Sec. 2641.201(i) are from existing 5 CFR 2637.201(c) and 2637.201(d).
Proposed example 3 would make the point that an employee's
participation may be substantial even though her role in the matter may
be minor in relation to the matter as a whole.
Proposed Sec. 2641.201(j)--United States is a Party or Has a Direct
and Substantial Interest
Finally, proposed Sec. 2641.201(j) focuses on how to determine
whether the United States is a party or has a direct and substantial
interest in a particular matter at the time of a former employee's
post-employment representational activity.
The definition of ``United States'' at proposed Sec.
2641.201(j)(1) is intended to encompass the entire Federal Government.
As explained earlier in connection with the definitions in proposed
Sec. 2641.104, we cited the definition of ``Government corporation''
in 18 U.S.C. 6 for purposes of defining ``United States'' in proposed
Sec. 2641.201(j)(1). Also, as explained below in connection with
proposed Sec. 2641.301(a), the Government of the District of Columbia
is not encompassed by the term United States. Separately, we note that
the proposed definition of United States at Sec. 2641.201(j)(1)
encompasses the entire judicial branch. Compare proposed Sec.
2641.201(f) which provides that a representation is not made ``to'' an
employee of the United States unless made, inter alia, to an employee
of a Federal court. The narrower interpretation in proposed Sec.
2641.201(f) reflects the statutory language ``department, agency,
court, or court-martial of the United States'' in 18 U.S.C. 207(a).
Proposed Sec. 2641.201(j)(2) specifically states that ``the United
States is neither a party to nor does it have a direct and substantial
interest in a particular matter merely because a Federal statute is at
issue or a Federal court is serving as the forum for resolution of the
matter.'' See, e.g., 14 Op. Off. Legal Counsel O.L.C. 139 (June 7,
1990) (predecessors to 18 U.S.C. 207(a)(1) and (a)(2) determined not to
bar former employees from serving as trustees in bankruptcy cases
unless the United States is a party or has a direct and substantial
interest in the bankruptcy proceeding, e.g., if the United States is a
creditor of the estate.) Of course, when a former employee wishes to
participate in a judicial proceeding concerning the same particular
matter with which he was involved while a Government employee, it is
likely that his former agency will be a party to or have a direct and
substantial interest in the subject of the proceeding or that the
agency will itself be serving as the forum.
As OGE has noted in relation to 18 U.S.C. 205, determining whether
or not the United States has a direct and substantial interest in a
particular matter ``may not be easy.'' OGE Informal Advisory Letter 94
x 7. Proposed Sec. 2641.201(j)(2)(i) assigns the primary
responsibility for coordinating this determination to the designated
agency ethics official at the former employee's agency. This assignment
is consistent with the DAEO's responsibility, as specified in proposed
Sec. 2641.105(a), to provide advice to a former employee of his agency
or to the individual's representative. If any agency has a continuing
direct and substantial interest in a matter, we suggest that it will
most likely be the agency in which the matter was pending when the
former employee worked on it as a Government employee. If the
circumstances suggest that another agency may have a direct and
substantial interest in the matter, the DAEO should contact an agency
ethics official at the other agency. Moreover, we anticipate that an
agency's ethics staff will need only pursue resolution of a direct and
substantial interest issue when all other elements of 18 U.S.C.
207(a)(1) or 207(a)(2) appear satisfied.
[[Page 7856]]
As proposed, the regulation does not establish any procedures for
the internal coordination of an agency's direct and substantial
interest determination. Under proposed Sec. 2641.201(j)(2)(i), it is
within an agency's discretion to determine who must be consulted within
the agency (or any department of which the agency is a part) in order
to determine whether the agency will assert a direct and substantial
interest in a particular matter. A DAEO may accept the assurance of
another agency's DAEO (or equivalent official in the legislative or
judicial branch) that he has been authorized by competent agency
authority to convey the agency's direct and substantial interest
determination.
In making this determination, proposed Sec. 2641.201(j)(2)(ii)
provides that appropriate officials shall consider ``all relevant
factors.'' Thus, the proposed factors listed in Sec.
2641.201(j)(2)(ii)(A)-(D) are not all-inclusive. We specifically seek
public comment concerning useful revisions or additions to our proposed
list.
Proposed Sec. 2641.202--18 U.S.C. 207(a)(2)
All relevant statutory changes that were made to 18 U.S.C.
207(a)(1) by the Ethics Reform Act of 1989 were also made to section
207(a)(2), formerly section 207(b)(i), a two-year bar which similarly
applies to all ``former employees.'' Proposed Sec. 2641.202(b)
provides cross-references to the appropriate paragraphs of proposed
Sec. 2641.301 for each of the exceptions and waivers that in certain
circumstances negate the prohibition contained in section 207(a)(2). As
sections 207(a)(1) and (a)(2) are identical except for their duration
and the degree of involvement in a particular matter during Government
service necessary to trigger the restriction, proposed Sec.
2641.202(d)-(i) cross-reference relevant portions of proposed Sec.
2641.201 relating to the permanent bar.
Proposed Sec. 2641.201(j)--Official Responsibility
The first sentence of the definition of ``official responsibility''
in proposed Sec. 2641.202(j)(1) quotes the statutory definition of the
term in 18 U.S.C. 202(b). In addition, consistent with existing
guidance at 5 CFR 2637.202, proposed Sec. 2641.202(j)(1) explains that
the scope of an employee's official responsibility is ordinarily
determined by statute, regulation, Executive order, job description, or
delegation of authority. Example 1 following proposed Sec. 2641.202(j)
emphasizes that subject matter jurisdiction assigned by position
description is not removed from the scope of an employee's official
responsibilities merely because the employee does not actually exercise
his authority to direct Government action in that subject area.
Proposed Sec. 2641.202(j)(1), drawing from existing 5 CFR
2637.202(b)(2), emphasizes the potential breadth of the term ``official
responsibility,'' noting that ``[a]ll particular matters under
consideration in an agency are under the official responsibility of the
agency head and each is under that of any intermediate supervisor who
supervises a person, including a subordinate, who actually participates
in the matter or who has been assigned to participate in the matter
within the scope of his duties'' (emphasis added). The highlighted
language is new. It is intended to make clear that a supervisor can
have official responsibility for a pending matter even though his
subordinate has not yet retrieved the assigned matter from his in-box
or, although having retrieved it, has not yet worked on it ``personally
and substantially.'' This language would also make it clear that a
supervisor need not have personally assigned the matter to the
subordinate, provided the matter is pending with the subordinate and it
falls within the scope of the subordinate's official duties. Proposed
example 3 would emphasize the requirement that the assigned matter fall
within the scope of the supervised employee's official duties. On the
other hand, the proposed language is intended to indicate that an
employee can have official responsibility for a matter even though he
exercises only nominal supervision over the person actually doing the
work; the supervised employee need not be a true subordinate. Thus, for
example, OGE has advised that a former employee had official
responsibility for a matter even though all work on a project was being
accomplished by employees ``on loan'' from another office.
As drafted, proposed Sec. 2641.202(j) indicates that a
nonsupervisory subordinate is not deemed to have official
responsibility for a matter to which he has been assigned, whether or
not he has begun to work on it. But see United States v. Coleman, 805
F.2d 474 (3d Cir. 1986) (affirming conviction of nonsupervisory
employee for violation of 18 U.S.C. 207(b)(i), the predecessor to
section 207(a)(2).) Proposed example 4 following proposed Sec.
2641.202(j) emphasizes, however, that the nature of a nonsupervisory
employee's participation in a particular matter could potentially make
her subject to the permanent section 207(a)(1) bar as to that matter.
Existing 5 CFR 2637.202(b)(3) provides that authority for an
``ancillary'' consideration does not constitute responsibility for the
particular matter as a whole. As proposed, Sec. 2641.202(j)(1)
continues to make the point that responsibility for ancillary matters,
such as budgeting, or equal employment considerations, does not
constitute official responsibility for the whole of a matter. Proposed
example 2 following Sec. 2641.202(j) illustrates this point. The
proposed guidance makes the additional point that responsibility for
nonsubstantive aspects of a matter similarly does not cause an
employee's official responsibility to extend to the whole of a
substantive matter.
Guidance in proposed Sec. 2641.202(j)(2) concerning the meaning of
``actually pending'' also derives from existing guidance in 5 CFR
2637.202. New language clarifies that a supervisory employee acquires
official responsibility for a matter as soon as it is referred to him
for assignment, regardless of whether he subsequently assigns the
matter to another employee or retains it for his own action. Thus,
proposed Sec. 2641.202(j)(2) provides that a supervisory employee
acquires official responsibility for any matter referred to the
employee ``for assignment.'' In proposed example 5, the General Counsel
is said to have acquired official responsibility for a certain matter
as soon as it was referred to him as an issue requiring action by the
legal department. In addition, as already noted, the proposed guidance
notes that there is no requirement that a matter have been pending
under an individual's official responsibility for any particular length
of time. See, e.g., OGE Informal Advisory Letter 94 x 13. In proposed
example 5, therefore, it would be enough that the particular matter had
been pending under the General Counsel's official responsibility for 2
days. Proposed Sec. 2641.202(j)(2) also indicates that a matter
remains pending when it is not under ``active'' consideration, as
discussed in OGE Informal Advisory Letter 85 x 6. Proposed example 6 is
a reworded version of the current example following 5 CFR 2637.202(c).
Proposed Sec. 2641.202(j)(3) addresses the applicability of
section 207(a)(2) with respect to particular matters that fell within
an employee's official responsibility only by virtue of a temporary
assignment to a position. We recognize that while on detail or serving
in an acting capacity, a temporary supervisor can potentially establish
[[Page 7857]]
policies, gain information, decide issues, and make contacts that may
serve him well in his post-Government life. On the other hand, in
proposing this regulatory provision, we sought to balance the concerns
underlying section 207(a)(2) against the likelihood that a temporary
assignment would permit an employee to acquire the knowledge and
experience necessary to make those concerns legitimate. Such
assignments occur frequently throughout the executive branch, sometimes
lasting only a few days or otherwise involving circumstances indicating
that the employee had no reasonable expectation of being able to
exercise the full authority of the position. In many cases, where the
employee functions only in a limited ``caretaker'' role, it seems
remote that the policy concerns underlying section 207(a)(2) would be
implicated. Although we were unable to establish a bright line test for
determining when temporary duties implicate section 207(a)(2), we are
proposing a nonexclusive list of factors that agencies can utilize in
making such determinations, as set out in proposed Sec.
2641.202(j)(3)(i)-(iv).
Proposed Sec. 2641.202(j)(4) indicates that ``[t]he scope of an
employee's official responsibility is not affected by annual leave,
terminal leave, sick leave, excused absence, leave without pay, or
similar absence from assigned duties.'' Related Sec. 2641.202(j)(5) as
proposed would state that ``[o]fficial responsibility for a matter is
not eliminated through self-disqualification or avoidance of personal
participation in a matter * * *.'' Thus, a matter is not removed from
an employee's official responsibility when he recuses himself from
participation in the matter due to a conflicting financial or personal
interest or during a job search as required by subparts D, E, and F of
5 CFR part 2635 and 5 CFR part 2640. Example 8 following proposed Sec.
2641.202(j) is illustrative. This interpretation is consistent with
United States v. Dorfman 542 F. Supp. 402 (N.D. Ill. 1982), in which
the court advised that a U.S. Attorney's recusal coupled with
assignment of a particular matter to a ``first assistant'' would not
remove the case from the U.S. Attorney's official responsibility. The
court cited 5 CFR 737.7 (now 5 CFR 2637.202(b)(5)), a provision which
was also the subject of OGE Informal Advisory Letter 86 x 2. As
interpreted by OGE in that advisory letter, a contract could be removed
from an employee's official responsibility if he had ``not only the
contract but also the actual function dealing with the contract removed
from his duties under his position description.'' Proposed Sec.
2641.202(j)(5)) recognizes that the scope of an employee's official
responsibility may be changed by an amendment of a position
description.
Proposed Sec. 2641.202(j)(6) does not explicitly address the scope
of the term ``official responsibility'' in the case of an employee
whose Government service lasted less than one year and was preceded by
a break in Government service. However, proposed example 9 does provide
our interpretation of the application of section 207(a)(2) where there
has been a break in service in the last year of the former employee's
Government service. By way of background, this issue was brought to our
attention when a former high-ranking employee, after a break in service
lasting a few months, agreed to serve as an SGE for a short period of
time. When he left Government the second time, less than one year had
passed since serving in his previous Government job. We noted that an
initial section 207(a)(2) bar would have commenced at the end of his
first period of Government service. The issue was whether the section
207(a)(2) bar triggered by his second departure from Government should
apply to particular matters for which he had responsibility during his
first period of service (provided they were actually pending within the
one-year period prior to his termination from his second Government
job.) We determined that the second section 207(a)(2) restriction
applied only to those particular matters that were actually pending
under his official responsibility during his most recent period of
Government service. (Of course, any section 207(a)(2) restriction
remaining from the employee's termination from Government service
immediately preceding the break in service would still be in effect.)
Section 207(a)(2) also requires that the particular matter be one
that the former employee ``knows or reasonably should know'' was
pending under his official responsibility during his last year of
Government service. As described in existing part 2637, section
207(a)(2) had been interpreted to mean that the restriction would not
apply to a former employee ``unless at the time of the proposed
representation of another, he or she knows or learns that the matter
had been under his or her responsibility.'' The proposed new guidance
similarly provides that it is the former employee's knowledge at the
time of the post-employment representation that is critical. Thus, the
last sentence of proposed Sec. 2641.202(j)(7) notes that ``[i]t is not
necessary that a former employee have known during his Government
service that the matter was actually pending under his official
responsibility.''
Proposed Sec. 2641.202(j)(7) makes it clear that it is enough that
the former employee ``reasonably should know'' at the time of his post-
employment representation that the matter was actually pending under
his official responsibility within his last year of Government service.
We are proposing to include a note following Sec. 2641.202(j) of the
new regulation that would warn an employee that prudence dictates that
he make inquiry ``when the facts suggest that a particular matter
involving specific parties could have been actually pending under his
official responsibility'' (emphasis added). The proposed note cross-
references the provision in proposed Sec. 2641.105(d) stating that an
employee will not be deemed to violate section 207 when he contacts an
employee of the United States for purposes of determining the
applicability or meaning of section 207 as applied to his own
activities.
Proposed Sec. 2641.203--18 U.S.C. 207(b)
Pursuant to 18 U.S.C. 207(b), a former employee may not utilize
specified nonpublic information to assist another person in relation to
certain ongoing trade or treaty negotiations in which the former
employee participated personally and substantially during his last year
of Government service. The prohibition lasts for one year or until the
termination of the negotiation, whichever occurs first. Enacted by the
Ethics Reform Act of 1989 to protect sensitive Government information
relating to certain trade or treaty negotiations, section 207(b)
represents a significant departure from the earlier post-employment
restrictions of section 207 since, like section 207(f) discussed below,
it extends to ``behind-the-scenes'' assistance.
While OGE intends to publish comprehensive regulatory guidance
concerning 18 U.S.C. 207(b), Sec. 2641.203 of this proposed rule
includes only a brief introductory summary of the restriction and
paragraphs concerning applicable exceptions and waivers, and the
commencement and duration of the restriction. We have reserved Sec.
2641.203(d)-(i) for additional guidance.
To date, OGE's written guidance relating to 18 U.S.C. 207(b)
remains the interpretation of the restriction that was distributed by
means of a memorandum dated October 26, 1990, which was published as
OGE Informal Advisory Letter 90 x 17. OGE reissued updated
[[Page 7858]]
versions of the memorandum on November 5, 1992 and again on February
17, 2000, by a Memorandum to Designated Agency Ethics Officials,
General Counsels, and Inspectors General. Although the 1992 and 2000
memoranda incorporate a few substantive changes, none affects our
original 1990 summary of section 207(b). The February 2000 updated
summary is available on our Web site under ``DAEOgrams,'' at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov
.
Proposed Sec. 2641.204--18 U.S.C. 207(c)
Section 207(c) of title 18, United States Code, is the one-year
``cooling-off'' restriction that prohibits a former ``senior employee''
from communicating to or appearing before his former agency, on behalf
of another person, with the intent to influence official action. The
statutory language of section 207(c) was substantially revised by the
Ethics Reform Act of 1989. As noted earlier, OGE published interim
regulatory guidance in February 1991 at part 2641 concerning section
207(c) as amended by the Ethics Reform Act of 1989. That rule set forth
several definitions in connection with the establishment of interim
procedures for the granting of exemptions and designation of components
for purposes of section 207(c). As discussed above, in connection with
proposed section 2641.104, we are proposing to make certain changes to
the interim definitions in existing part 2641. (Our proposed changes to
the existing exemption and component designation procedures at 5 CFR
2641.201(d) and (e) are discussed further below in connection with
renumbered proposed Sec. Sec. 2641.301(j) and 2641.302.)
Proposed Sec. 2641.204(a) confirms that an executive branch
employee can be subject to either 18 U.S.C. 207(c) or 207(d) but not
both. Like section 207(d), section 207(c) states that the restriction
applies ``[i]n addition to the restrictions set forth in subsections
(a) and (b).'' Moreover, section 207(c)(2)(A) states that the section
207(c) bar ``shall apply to a person (other than a person subject to
the restrictions of subsection (d)) * * *.'' Accordingly, Sec.
2641.204(a) as proposed would specifically provide that a former ``very
senior employee'' is subject to the one-year cooling-off restriction
set forth in section 207(d) in lieu of that set forth in section
207(c).
Proposed Sec. 2641.204(b) provides cross-references to the
appropriate paragraphs of proposed Sec. 2641.301 for the exemption,
exceptions, and waivers that in certain circumstances would negate the
prohibition contained in 18 U.S.C. 207(c).
Proposed Sec. 2641.204(c)(1) concerns the application of 18 U.S.C.
207(c) to special Government employees (SGEs). Since its enactment in
1978, section 207(c) has not applied to an SGE who served the
Government fewer than 60 days during a statutorily specified time
frame. As revised by the Ethics Reform Act of 1989, the current
language of the statute provides that the one-year cooling-off period
``shall not apply to a special Government employee who serves less than
60 days in the 1-year period before his or her service or employment as
such employee terminates.'' Proposed renumbered Sec. 2641.204(c)(1)
confirms that the ``60 days'' refers to the number of days in which an
employee served as an SGE and not to the number of days in which he
served as a senior employee.
We are proposing to include a sentence in Sec. 2641.204(c)(1)
which addresses the manner in which the 60-day period should be
computed for purposes of determining the applicability of section
207(c) to a former senior SGE. Guidance concerning the counting of days
in connection with the service of SGEs was contained in the former
Federal Personnel Manual and has been endorsed in OGE informal advisory
letters and OLC opinions. Consistent with that guidance, Sec.
2641.204(c)(1) as proposed would state that ``[a]ny day on which work
is performed shall count toward the 60-day threshold without regard to
the number of hours worked on that day or whether the day falls on a
weekend or holiday.'' See e.g., OGE Informal Advisory Letter 84 x 4 and
7 Op. Off. Legal Counsel 123 (1983). The first example following
proposed Sec. 2641.204(c) illustrates the proper method of counting
the 60 days in the case of an SGE. It should be noted, however, that
certain de minimis activities performed by an SGE on a given day might
not be sufficient to count that day, under limited circumstances. See
Manning, supra, at 28. The Office of Government Ethics has acknowledged
a narrow de minimis standard where the activity is insignificant, both
in terms of substance and in terms of the amount of time expended, and
the SGE is not compensated by the Government specifically for that
particular effort. An example would be a day on which the SGE did
nothing more for the Government than make a brief telephone call to
confirm the date of an official meeting. Proposed Sec. 2641.204(c)(1)
would also specify the manner in which an SGE's rate of basic pay
should be calculated for purposes of determining whether the rate of
basic pay that he receives for his part-time or intermittent work is
equal to or greater than the rate of basic pay payable for ES-5 within
the meaning of section 207(c)(2)(A)(ii).
Proposed 2641.204(c)(2) concerns the application of 18 U.S.C.
207(c) to certain appointees or detailees. Specifically, this provision
sets out those circumstances in which it has been determined that an
individual appointed or detailed to an agency pursuant to the
Intergovernmental Personnel Act (IPA), 5 U.S.C. 3371-3376, is subject
to the restrictions of section 207(c). See ``Applicability of the Post-
Employment Restrictions of 18 U.S.C. Sec. 207(c) to Assignees Under
the Intergovernmental Personnel Act,'' Memorandum of Daniel L. Koffsky,
Acting Deputy Assistant Attorney General, Office of Legal Counsel,
Department of Justice, to Susan F. Beard, Acting Assistant General
Counsel, Department of Energy, June 26, 2000.
Proposed Sec. 2641.204(d) emphasizes that 18 U.S.C. 207(c) is
triggered upon termination from a senior employee position, not from
termination of Government service, unless the two events occur
simultaneously. (This interpretation applies equally with respect to
sections 207(d) and 207(f) as specified in proposed Sec. Sec.
2641.205(c) and 2641.206(c), respectively.) The two examples following
proposed Sec. 2641.204(d) illustrate the timing of the section 207(c)
restriction in the case of a senior employee who moves from one agency
to another. Since the restriction can run while an individual continues
to serve as a Government employee, the first example cross-references
proposed Sec. 2641.301(a) which states that communications and
appearances are permissible if made during the course of performing
official duties as an employee of the United States. In the second
example, the individual does not cease to be a senior employee until he
terminates his senior position at the second agency.
As 18 U.S.C 207(c) and the permanent bar share several elements in
common, proposed Sec. 2641.201 is cross-referenced several times in
proposed Sec. 2641.204. For example, both section 207(a)(1) and 207(c)
require that there be a communication or appearance made with the
intent to influence, although in the case of section 207(c), the
representation is prohibited only if made to the former senior
employee's former agency. Section 2641.201 is also cross-referenced for
its proposed definition of ``on behalf of any other person.''
[[Page 7859]]
Section 2641.204(g)--To or Before Employee of Former Agency
Proposed Sec. 2641.204(g)(1) defines ``to or before employee of
former agency.'' This provision is different from proposed Sec.
2641.201(f) because that section focuses on employees ``of the United
States'' rather than employees at the senior employee's ``former
agency.''
The term ``employee'' is defined in proposed Sec. 2641.204(g)(1)
for purposes of identifying the individuals to whom a former senior
employee may not direct a communication or appearance. Proposed Sec.
2641.204(g)(1)(ii) reflects the fact that an individual serving in an
agency pursuant to the IPA is deemed an ``employee'' of that agency
and, hence, is an individual to whom a former senior employee of that
agency may not direct a communication or appearance. Notably, the
definition of employee at proposed Sec. 2641.204(g)(1) also includes
an individual detailed to a former senior employee's former agency.
Section 207(g) of the statute provides that ``a person who is detailed
from one department, agency, or other entity to another department,
agency, or other entity shall, during the period such person is
detailed, be deemed to be an officer or employee of both * * *.'' As
reflected in proposed Sec. 2641.204(g)(2)(iii), we interpreted this
statutory provision to mean that an employee is barred from contacting
any agency to which he was detailed during his last year of senior
service, regardless of the duration of the detail. We also decided,
however, that section 207(g) is relevant when identifying those
employees serving in a former senior employee's former agency to whom a
communication or appearance cannot be directed. Accordingly, proposed
Sec. 2641.204(g)(1)(iii) specifies that the term employee encompasses
an individual detailed from an agency to the former senior employee's
former agency.
As noted earlier, 18 U.S.C. 207(i)(1)(A) states that ``the term
`officer or employee', when used to describe the person to whom a
communication is made or before whom an appearance is made * * * shall
include in subsections (a), (c), and (d), the President and the Vice
President * * *.'' Under the proposed rule, a former senior employee of
the Executive Office of the President is barred from contacting not
only employees of that Office, but also the President and Vice
President. On the other hand, former senior or very senior employees
who formerly served in entities other than the Executive Office of the
President would not be barred by section 207(c) or (d) from contacting
the President or Vice President. This reasoning is reflected in
proposed Sec. 2641.204(g)(1)(v); proposed Sec. 2641.204(g) is cross-
referenced in Sec. 2641.205(f) as proposed for purposes of the section
207(d) restrictions.
The definitions of ``department'' and ``agency'' in proposed Sec.
2641.104, combined with the proposed guidance in Sec. 2641.204(g)(2),
are key to understanding the scope of 18 U.S.C. 207(c). As we noted
earlier in connection with the definition of ``agency'' in proposed
Sec. 2641.104, we specifically included independent agencies (not in
the legislative or judicial branches) within that definition.
As already mentioned, and as explained further below in connection
with proposed Sec. 2641.302, the Director of OGE is authorized to
designate distinct and separate agency components for purposes of
section 207(c). The designation of such components within an agency has
the effect of narrowing the scope of the restriction as applied to
former senior employees eligible to benefit from such designations.
Proposed Sec. 2641.204(g)(2)(i) emphasizes that the 18 U.S.C.
207(c) bar applies only with respect to an agency in which the former
employee served within his last year of service as a senior employee.
Example 3 following proposed Sec. 2641.204(g) illustrates the
application of section 207(c) when a former senior employee's period of
Government service was preceded by a break in Government service.
Consistent with past interpretation, 18 U.S.C. 207(c) is described
in proposed Sec. 2641.204(g)(2)(ii) as extending to any agency in
which a former senior employee served in any capacity prior to his
termination from a senior position, ``regardless of his position, rate
of basic pay, or pay grade.'' See, e.g., OGE Memorandum to Designated
Agency Ethics Officials, General Counsels, and Inspectors General
(February 17, 2000), available under ``DAEOgrams'' on OGE's Web site,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usoge.gov.
Thus, the former employee in proposed example 2
following Sec. 2641.204(g) is barred as to both the Commodity Futures
Trading Commission (CFTC) and the Export-Import Bank of the United
States even though she served in only a GS-15 position at the CFTC.
Proposed Sec. 2641.204(g)(2)(iii) explains that, in addition to a
detail, an employee may otherwise be deemed to be serving two entities
simultaneously. The regulation would recognize that many employees are
required to serve on committees or similar entities as a collateral
duty. The regulation would specify that an employee will be deemed an
employee of such an entity if required to serve pursuant to statute or
Executive order.
Defining the boundaries of an employee's former agency is key to
the proper interpretation of 18 U.S.C. 207(c). Proposed Sec.
2641.204(g)(2)(iv) addresses situations where organizational changes
affecting an agency could make it difficult to determine if a successor
agency is substantially the same as a former senior employee's former
employing entity. For example, subsequent to an employee's termination
from a senior employee position, his former employing entity could be
made larger or smaller, merged in whole or in part with another agency,
or even abolished.
Significantly, proposed Sec. 2641.204(g)(2)(iv) need not be
consulted unless the agency to which 18 U.S.C 207(c) applies ``has been
significantly altered by organizational changes after [a senior
employee's] termination from senior service * * *.'' Thus, it is not
necessary to consult Sec. 2641.204(g)(2)(iv) as proposed merely
because the name of a former senior employee's former agency has
changed or because some personnel have retired or transferred. If,
however, an organizational change is such that the former senior
employee's former employing entity ``is not identifiable as
substantially the same agency from which the former senior employee
terminated * * *'', then the guidance in proposed Sec.
2641.204(g)(2)(iv)(A) applies and the section 207(c) bar will not apply
with respect to that entity. See OGE Informal Advisory Letter 85 x 5
and example 4 following proposed Sec. 2641.204(g).
Under proposed Sec. 2641.204(g)(2)(iv)(B), a former senior
employee's 18 U.S.C. 207(c) bar will extend to the whole of an
employing entity that has been affected by organizational changes if it
``remains identifiable as substantially the same entity'' from which he
terminated. Proposed example 5 emphasizes that a former employee would
be barred from contacting current employees who had joined the new
employing entity, but would not be barred from contacting an employee
who had been transferred elsewhere. Under proposed Sec.
2641.204(g)(2)(iv)(C), if a former employing entity is made separate
but otherwise remains ``substantially the same,'' the section 207(c)
bar would apply with respect to the separate entity. Proposed Sec.
2641.204(g)(2)(iv) would require designated agency ethics officials to
provide counseling in consultation with OGE when the scope
[[Page 7860]]
of section 207(c) is at issue as a result of an agency reorganization.
The guidance concerning the meaning of ``to or before'' in proposed
Sec. 2641.204(g)(3) closely tracks the corollary guidance in proposed
Sec. 2641.201 as does the guidance at proposed Sec. 2641.204(g)(4)
concerning public commentary. The guidance is repeated in Sec.
2641.204 as proposed only because it has been tailored to the one-year
restriction which is aimed only at communications to or appearances
before an individual's former agency. Proposed Sec. 2641.204(h),
concerning the phrase ``on behalf of any other person'', similarly
cites the corollary discussi