Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:99-cv-00550-ECH

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EXHIBIT 1 Part 4

Case 1:99-cv-00550-ECH

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SUMMARY OF THE POST'EMPLOYMENT RESTEICIqONS OF THE ET~C3 IN GOVERNMENT ACT OF 1978 AS AMENDED

AND

D~ARTMENT POLICY ON NEGOTIATING FOR OUTSIDE EMPLOYMENT

Case 1:99-cv-00550-ECH

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GENERAL ~YORMATION There are fo~ post employment restricdon~ Two apply to ~ f~mer employees, - 18 U.S.C. 207(a)is a lifetime ban. - 18 U.S.C, 207(b)(i) is a tw~year ban. and Two more apply o~y to "Seni~ Employ~s"i - 18 U,S~C, 207(b)(ii)isa two-ye~ ban. - 18 U.S,C. 207(0) is a one-year ban~ NONE of the four restrictions requires any former employee to decline employment with any organization, regardless of dealings with t~t organization while a Government employee, Except for the one-year ban on former "Senior Employees, ~V what is prohibited is certain representationa/activity.

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THE F|RST RESTRICTION: [8 U.$.C. 207(a) -- This lifetime ban applies to ~ll former Federal Government employeesAfter leaving Government employment, a former employee may not

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she ,! i,"l,,!!~;,,::, ' ' u~enmahtte°rr while servir~g as a

employee. IMPORTANT FACTORS: - includes appearances before a Government agency or unit and ~,udes communications made in an attempt to influence the Government concerning a particular matter in which the former employee was involved. - t~ieally involves a Particular parties ~ an isolatable transaction or related set of transactions between i~ntifiable pa~ties and, the United States must be a party or have a direct and substantial interest in the matter. or Rulern~ l~ ~ the formulatio~ oF general polic~, standards ~ojec~ves or o~ acL~of~ of gee, er~ at~Ucation is not such a matter. Personal and Substantial Particivatioa - means direct participation as a ~nrnent employee 'through ........ decision, approval, disapproval, It recommendation, the rendering of advice, investEgation or otherwise. includes the participation of a subordinate when that subordinate was actually directed by the former employee in the matter. The partici{)ation must be of a significance to the matter or form a basts for a reasonable appearance of such .s}gnificance. Signatory responsibility or involvement On a peripheral issue may not be enough. A finding of substantiality should be based not only on the effort devoted to a matter, but on ~he importance of the effort.

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THE SECOND RESTRICTION: II. 18 U.S.C. 207(bXi) -- Thin two-year ban applies to ~ former Federa~ employees. ter leaving Government emp!oyment, a former employee may not another person (except the United Statesl in connection with a . . when. the~. particular. artie~ matter involvi onslbdlt£ during hls or her ~rmer e last year of service. IMPORTANT FACTORS. - is defined the same as for the lifetime ban. Particular Matter Inv~ific Parties- is defined the same as for

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- is us~y defined by statute, reg~tlations, ~on of authority or job descriptiom Last Year of Service - the prohibition only applies to matters under one's official res~onslbfllty during their last year of service. Theref~e, the key to determining the length of the prohibition is based on when the particular matter teIt your "official responsibility",

The last two post employment provisions apply to former "Senior Employees"

WHAT IS A SENIOR EMPLOYEE? There are foUr groups of Senior Employees. Two are named automatically by statute: civilians paid at the Executive Level and active duty uniformed service officers of 0-7 and above. Three other groups, involving civilians at or equivs/ent to GS-17 or above having s~gnificant decision making or supervisory responsibility, employees in the Senior Executive Service and others with similar responsibility, must be designated by the Director of the Office of Government Ethics before they are chargeable as Senior Employees, Copies of the current designations are available from the Designated Agency Ethics OfficiB/.

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THE THIRD RF~STRICTION: IIL 18 U,$.C, 207(bXii) -- This two-year ban applies to former "Senior Employees". For two years after reaving Government employment, a Senior Employee may not assist in the representation of another person (except the United before the Government on ~onaJ. in which he ~ she could the restrietiorL.s in 18 not Bet as person's U,S,C. 207(a),

IMPORTANT FACTORS: This provision is one which was affected by two technical amendments to the original provision in the Ethics in Government Act oF 1978. One limits its application to matters in which the former Seni~ Employee had actually participated personally and substanti~Uy rather than for which he had responsibility. The other limits the restriction to assistance given by personal presence at an appearance before the Government. This restriction does not bar a Senior Employee from assisting on a matter Ln which he participated while in Governcnent, but only from assisting "in representing in connection with an appears~nce," Thus such an employee coted work on a contract with whic~ he was involved while in the Government and could manage a company, institution or university where hLs decisions determine the manner in ~hich his organization will perform under a Government contract or grant.

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THE FOURTH RESTRICTION: 18 U.S.C. 207(c) -- This one-year ban applies to former "Senior Employees". For one year after leaving Government employment, a former Senior Employee may not represent another person or himself in attempting to influence his former ~enc~ on a matter pending before, or of substantial interest to hisf~mer This revolvirtt~-door provision is different from the previous restriction in a number of way~ - the res~iction covers the employee's self-representation. it does not require that the former employee have any prior ~nvolvement in the matter. - the matters covered are broader; they needn't involve specific patties, so the former employee could not, for example, attempt: to influence rulemaking, general policy issues or legislation, - R includes any matter pending before, or of substantial interest to, one's former agency, even if the matter comes up after he or she leaves, it is limited to contact with his or her former agency; (in our case the Department of the Interior), he or she may appear before, or act to influence, any other part of the Government as long as 207{a) and (b) do not apply.

IMPORTANT FACTORS: The prohibitions of 18 U.S.C. 207(e) do not apPlY to appearances, communications or representations by a former employee: who is an elected official of a State or local Government or whose principal occupation or employment is with and appearance or representation is for:. - an agency or instrumentality of a State or local Government, an accredited, degree-granting institution of higher education, as defined in section 1201(a) of the Higher Education Act of 1965, a hospital or medical research organization, exempted and defined under section 501(c)(3) of the Internal Revenue Code.

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OTHER IMPORTANT FEATURES: - None of the restrictions apply to communications made solely for the purpose of furnishing scientific or technological infccmation pursuant to agency procedures. The OPM relations treat this area realistically, providing for exchanges to determine the nature of technical problems facing the Government, to provide information to solve the problem, and to inform the Government of the practical significance of scientific and technological alternatives. Former Government employees who are employed by an Indian tribe are exempt from the provisions of 18 U.S.C. "207 as it relates to such employment by Section 105 of P.L. 93-638. Refer to 25 U*S,C. 450i(f), This provision only aPplies when the former employe~ "... advise(s) in writing the head of the ~partment, agency~ court, or commission with which he is dealing or a~earing on behalf of the tribe of any personal and substantial involvement he may have had as an officer or employee of the United States in connection with the matter involved." For representations before the Department of the Interior, such notices should be forwarded to the Designated Agency Ethics Official fo~ review and filing. - Contacts with and appearances before Congress are exempted from the post~employ ment requirements.

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pENALTIES: - Upon conviction of violating any one or more of the post employment restrictions a former employee may be fined not more than $i0,000 or imprisoned for not more than Lwo years, or both. - Under Department regulations (43 CFR 20.735-62(e)) the Department may in the ease of any individual found in violation of 18 U.S.C. 207(a), (b) or (c) impose any or all of the following sanction= Prohibit the individual from making~ on behalf of any other person (except the United States), any f~orm~t or informal appearance before, or, with the intent to influence, any oral or written communication to, the Department on any matter of business for a pertc~ not to exceed five years; Cancel, or cause to be cancelled, any contract, permit, license, lease, or other business arrangement between the Department and the individual~ Take other appropriate disciplinary or administrative action. In addition, the Department reserves the right to formally notify any professional society (e.g., state bar association, American Institute of Certified Public Accountants, American Institute of Architects) to which the individual belongs and any appropriate Federal, state, territorial, or tribal agency of any final decision in which the for~er individual is found to have violated IS U.S,C. 207.

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It is Department policy that; An employee shall not without permLssion negotiate for future non-Federal emoloyment with persons or organizations having business with the Department if the employee is eaUed upon to render advice or make judgments which ~ay affec¢ those persons or organizations. In the event that an employee desires to negotiate for future employment with oeganizat~on$ he or she is called upon to render advic~or make judgments about, he or she shall request permission from his or her supervisor. The supervisor will consult with the appropriate ethics counsetor. If the supervisor and the ethics counselor determine that the proposed negotiations will not adversely affect the Government's interes%s, the superviscx" may authorize, in writing, the employee to proceed to neg-otiate. Where authorization is granted the employee shall be restricted from participating in his or her governmental capacity in any matter in which the employee, or the employee's spouse, minor child, outside business assoe,ate, or person with whom he or she is negotiating for employment has a financial interest (18 U.S.C. 208). Negotiation for employment begins when: The employee or anyone ac the direction of and on behalf of the employee, initiates a communication in writing or orally, directly or indirectly to the prospective employer for the purpose of discussing rendering' service to the prospective emolover upon termination of the employee:s service as an employee of the'Departn{ent, or
0

An individual, partnership, association, corpora L' on or organization initiates a commumcauon to the employee or representative of the employee and the employee or the employee's representative responds directly or indirectly with the commumcator and indicates that the employee is interested in serving the communicator upon termination of employment with the Department.

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FOR FURTHER I~70KHATTON COlleCT:

Mr. Joseph W. Gorrell Designated Agency Ethics Official a~d Principal Deputy Assistant Secretary Policy, Budge= and Administration Room 5100, ~in Interior (202) 343-4123 Mr. Gabriele J. Paone Deputy Agency Ethics and Audit Coordination Of ficial Policy, Budget and Administration Room 5150, ~in Interior (202) 343-5916 or 343-3932 Mr. Timothy S. Elliott Deputy Associate Solicitor Division of General Law Office of the Solicitor Room 651~, l~in Interior (202) 343-472! Mr. Robert Moll Attorney - Advisor Division o~ General Law Office o~ the Solicitor Room 6526, Main Interior (202) 343-5216