IEC Journal

Limited Public Access to Revolving Door Database

Scott Amey at POGO Blog strongly disagrees with a DOD decision to restrict public access to a database of former federal employees who have gone through the revolving door .

Maybe Obama's lofty goals haven't trickled down to all parts of the government, but what's the harm in seeing a list of former government officials who are now working for defense contractors? We have campaign finance and lobbying disclosure -- why not expose those circulating between the public and private sectors who might be a driving force behind government decisions and policies? Wait, I just answered my own question.

House Panel Probes Army Contract

The Washington Post reports on a House Oversight and Government Reform Committee investigation of Army contracting practices. The Committee Chair announced that he will use one incident to kick off a broader probe of Pentagon procurement practices:

The [immediate] investigation focuses on a technology program that Raymond ran at Fort Belvoir as part of the Communications-Electronics Command.

In 2004, Raymond attended a technology conference in Hawaii, where he met Catherine Campbell, a contractor. The two became close friends and frequently sailed and walked together, documents and interviews show. They also traveled to conferences and frequently exchanged e-mail.

Last year, after an Army lawyer questioned the relationship, an internal Army inquiry found evidence that Raymond had allegedly violated several federal contracting regulations and laws, including passing on confidential government cost estimates to Campbell, according to an Army investigative report.

In the interview with The Post, Raymond acknowledged sharing the information, but he said he did so only to help teach Campbell how the procurement system works.

via www.washingtonpost.com

Interior IG Report on Gettysburg Superintendent

Perhaps predictably, a Washington Post story about an Inspector General report on the Superintendent of the Gettysburg National Park leads with scandalous accusations about accessing pornography on a government computer, but buries arguably more serious issues deep in the body of the story:

The inspector general's investigation noted that Latschar said the construction project would be funded by the foundation and that no taxpayer money would be used. However, as the price tag jumped from $39.3 million to $135 million, $35 million in public financing was ultimately needed to finish construction, records show.

The report also said that Latschar planned late last year to leave his [$145,000-a-year job as] superintendent to take a $245,000-a-year job as the foundation's president.

An internal Jan. 26, 2009, memo, obtained by The Post, shows that during the course of the inspector general's investigation, department ethics officials stepped in, pointing out several legal obstacles Latschar would face. The memo says post-government employment laws would prohibit him from performing many job duties, including "any communication to or appearance before an employee of the United States."

As a result, Latschar dropped his planned job move, records show.

Former Interior Secretary Under Investigation?

A New York Times story reports that the Department of Justice is investigating allegations that a former Secretary of the Interior transferred valuable shale oil leases to Royal Dutch Shell around the time she was considering employment with that company on leaving government service.

New OLC 207 opinions

Thanks to Jeff Green, below are two recently posted DOJ Office of Legal Counsel opinions relating to application of post-Government employment restrictions.

• Foreign Trade or Treaty restrictions.  The opinion discusses how a foreign corporation even if it is over 50% owned by a foreign government still has to exercise sovereign control to be a "foreign government."  It also indicates that an editorial in a newspaper could constitute intent to influence.  http://www.usdoj.gov/olc/2008/commerceoppost-employment.pdf
• When are you acting on behalf of the US?  Someone representing a former President before the National Archives is considered acting for the United States, one of the 207 exceptions, and therefore not violating 18 U.S.C. 207.  http://www.usdoj.gov/olc/2001/post-employment-restrictions.pdf (dated 2001 but only posted this month).

Details on Retired Admiral Post-Employment Case

A 2007 press release from the U.S. Attorney for Southern District of California gives more information on the criminal case against a retired admiral who represented a contractor in its dealings with the Navy. This was the subject of some interest at the February monthly meeting.

New Pentagon Rule Slows Revolving Door

Government Executive reports:

Pentagon officials who participate in costly acquisitions now will need written approval from an agency ethics officer before taking a job with a Defense Department contractor.

The interim rule in the Jan. 15 issue of the Federal Register, attempts to slow the revolving door between government and private industry. It was among a blitz of new regulations published on Thursday by DoD and other government agencies, responding primarily to legislation passed by Congress in the fiscal 2008 and 2009 Defense authorization measures.

Among the most significant rules is a regulation barring Pentagon officials who have "participated personally and substantially in a DoD acquisition exceeding $10 million or who [have] held a key acquisition position" from accepting a job with a defense contractor without first obtaining a written opinion from a Defense ethics counselor. The counselor will determine which, if any, activities the official can perform on behalf of the contractor for the first two years after the official leaves government.

Revised Slides for January Presentation

Here is a link to the revised version of the slides for the recent presentation by Peggy Love and Steve Csontos on the topic "Seeking Employment and Post Employment Obligations for Government Attorneys Entering the Private Sector":

Download Seeking-Post Employment for Attorneys- IEC Meeting 109 (2)

Most of the changes are minor, but note that Slide #37 entitled "Resources" references an OGE Advisory Opinion which has been changed. The link above incorporates the correction.

Topic for Jan. 8 Meeting: Govt. Lawyer Transition to Private Sector

Peggy Love and Steve Csontos will speak on the topic "Seeking Employment and Post Employment Obligations for Government Attorneys Entering the Private Sector" at the Jan. 8 IEC meeting. Their MS PowerPoint slide show is available for pre-meeting downloads. If you want to save paper, remember that you can format the slide show to print three or six slides per page.

January 8 IEC Meeting: Gov. Attorneys Entering Private Sector

Peggy Love and Steve Csontos will speak at the Jan. 8 IEC meeting on "seeking and post-employment obligations for government attorneys entering the private sector," the same topic as Ms. Love's DC Bar presentation mentioned here earlier. Thanks to John Szabo for the tip.

CLE on Gov. Lawyers Moving Into Private Sector

The DC Bar Association will host a two hour CLE program on transition of government jobs into the private sector on December 3, 2008. The instructor is Peggy Love, of EPA. The DC Bar web site describes the program as follows:

The move from Federal government employment to the private or non-profit sector raises important ethics issues for attorneys.  As government attorneys face employment transitions in 2008, this course will help them avoid the pitfalls that leaving government service can pose.  The post employment restrictions do not always coincide with the Bar's ethics rules and carry criminal penalties if violated. Even those who are not planning to leave the government will benefit from a clear understanding of post-government employment ethics issues, including matters a federal attorney may be permanently barred from working on after leaving federal service. From potential conflicts of interest that must be considered during and after the employment search process, to rules about confidentiality and contact with one's former government employer, government attorneys will walk away from this course with a clear understanding of both the ethical standards in the applicable Rules of Professional Conduct and any relevant statutory requirements.  It is particularly important for government attorneys to understand that they face potential criminal liability and disciplinary action from the Bar for violating some of these rules. The course also will alert attendees to post-government employment issues on fee sharing, representation of a foreign entity and other issues that government attorneys need to understand when dealing with employment transitions.

Post-Employment Restrictions on Senior Level (SL) and Scientific and Professional (ST) Employees?

The Fedmanager newsletter has a summary of of the recent OGE guidance on Senior Level (SL) and Scientific and Professional (ST) Employees. One-sentence summary: OGE says that as a result of the Senior Professional Performance Act of 2008, many more SL and ST employees will be covered by the one-year post-employment restrictions as the locality pay they were previously receiving will now be part of their basic pay.

OGE: Document Ethics Advice, Work With IGs

OGE responds to a GAO report entitled Post-Government Employment Restrictions and Foreign Agent Registration: Additional Action Needed to Enhance Implementation of Requirements 12-16 (July 2008), by providing the following guidance:

OGE strongly encourages agency ethics officials to document ethics advice provided to current and former employees.  Additionally, ethics officials should establish close working relationships with their respective Inspector General offices.  This includes providing Inspector General personnel with information when needed about the ethics advice given to specific individuals.  This also may include providing training and other assistance to help Inspector General personnel understand better the criminal conflict of interest laws, standards of conduct, and pertinent supplemental agency regulations.

"Substantial Relationship" in Legal Ethics Context

An article from Washington Lawyer entitled How Substantial Is Your Relationship? deals with legal ethics, but the analysis could be useful in government employment contexts.

Thanks to the IEC member who drew to our attention to this article. We try to make this web site a lively source of useful information, and in furtherance of this objective, we welcome your topic suggestions.

Handouts on OGE's New Rule 207

With the permission of Rick Thomas, here are the slides accompanying his presentation at this month's IEC meeting on OGE's new Rule 207, in your choice of formats:

• PowerPoint
• PDF - Printed 6 slides per page

New post-employment regulation published in Federal Register

This final rule expands OGE regulatory guidance on § 207.  It gives more comprehensive guidance on application of § 207, makes minor modifications to guidance and processing under 2641,  and supercedes obsolete regulations.   http://edocket.access.gpo.gov/2008/pdf/E8-13394.pdf

GAO on Revolving Door at DoD

A Government Executive article examines a GAO report on the revolving door between the Department of Defense and defense contractors. One interesting fact is that about 65 percent of those former officials in positions that made them subject to post-employment restrictions were employed by one of seven contractors: Science Applications International Corp. (SAIC); Northrop Grumman Corp.; Lockheed Martin Corp.; Booz Allen Hamilton Inc.; L3 Communications Holding Inc.; General Dynamics and Raytheon Co.

The article notes:

According to GAO, Defense is not required to monitor former officials when they begin jobs with defense contractors. The department does provide guidance in the form of written ethics opinions to former officials who request them, but GAO concluded that the practice offered limited transparency.

Several new requirements were implemented recently to ensure contractors were aware of employment restrictions for former Defense officials. Requirements enacted in January 2008 through the fiscal 2008 Defense Authorization Act were designed to make the written ethics opinions given to former Defense officials more readily available to their contractor employers or potential employers. The department also was required to keep ethics opinions in a central database. But GAO said that database was not designed for Defense to monitor their former officials' post-government employment compliance.

GAO recommended that Defense consider what type of contractor disclosure and certification information on former officials was necessary to ensure compliance with post-government employment restrictions. Chaplain noted that existing laws not only protect against conflicts of interest, but also promote public trust in the integrity of the government's decision-making process.

Proposed 2008 Defense Authorization

Government Executive reports that the 2008 Defense authorization bill now under consideration would impose more restrictions on Pentagon officials who leave to work for defense contractors. Other aspects of the bill of interest to ethics officials include:

• Increased oversight of security contractors.
• Protections for contractor employees who claim whistleblower status.
• Creation of a Special Inspector General for Afghanistan Reconstruction.

Bill Could Impact Cabinet Level & White House Officers

Government Executive magazine has more on the Honest Leadership and Open Government Act (S. 1). It passed the Senate in January and the House in late July, but has not been signed by the President. The article quotes Bill Bransford, general counsel of the Senior Executives Association, to the effect that even if the bill is enacted, its post-employment restrictions would affect basically only Cabinet secretaries and senior White House staff. The article also notes:

In addition to specific changes, the legislation includes a "Sense of the Congress" statement that restrictions applicable to congressional officers and employees should extend to employees of the executive and judicial branches. Such a provision allows lawmakers to express a non-binding opinion on a matter they feel needs to be addressed.

In an Aug. 14 letter to agency ethics officials, Office of Government Ethics Director Robert Cusick said while the bill clearly states that revised ethics and lobbying requirements should extend to employees of all three branches of government, it "does not include any provisions binding on the executive branch to effectuate this sense of the Congress," aside from the provisions directly pertaining to agency officials.

To Announce Job Change Or Not To Announce?

A Government Executive article about the upcoming transition of the FAA Administrator to the private sector contains some interesting discussion about the timing of such job change announcements:

"It's disappointing that the announcement was made while she's still the administrator," said Tom Brantley, president of the Professional Airways Systems Specialists, the union that represents FAA safety and maintenance workers. "I think it's inappropriate. I think it would be very hard for her to try to advocate any position without others looking at it with a jaundiced eye."

Though in the past, trade associations and lobbying firms often were eager to tout their hires from the highest ranks of government, "I've actually seen a trend where people aren't announcing where they're going when they leave public office," said Scott Amey, general counsel at the watchdog group Project on Government Oversight. "It draws more attention when it's announced when they're still in the government."

Revolving Door Database

Revolving Door is a searchable online database operated by The Center for Responsive Politics. Its stated purpose:

Whether they are a presidential appointee plucked from an elite position in corporate America to run a government commission or an outgoing member of Congress looking for a more lucrative job in the influence industry, OpenSecrets.org's Revolving Door database tracks anyone whose résumé includes positions of influence in both the private and public sectors. Government employees may have had the president’s ear or may have simply been the doorkeeper of the congressional cloakrooms. Influence-peddlers merely have to be in a position to influence government policy on someone else's behalf, commonly as a "hired gun" at a K Street firm, an executive of a professional trade association or as a vice president of government relations for a large company.

FBA Program on Revolving Door

The DC Chapter of the Federal Bar Association will sponsor a June 13 program entitled "Navigating the Revolving Door: A CLE Presentation on the Ethical Issues Facing Lawyers Transitioning Between Private and Government Employment."

The speakers will be Gene Shipp, bar counsel for the District of Columbia and Michael Stern, former senior counsel to the U.S. House of Representatives.

CLE: 2.0 Ethics hours for Virginia and Pennsylvania pending.

Time: 6–8 p.m.

Location: Georgetown Law Center, 600 New Jersey, NW, Washington, DC

Registration: $45 FBA members; $55 nonmembers.

Register online. Please mail your check to the D.C. Chapter of the Federal Bar Association, P.O. Box 75861, Washington, DC 20013-5861.

OGE Publishes Final Rule Concerning Post-Employment Conflict of Interest Restrictions

Today, the Office of Government Ethics published a final rule providing notice of the exemption of certain senior employee's positions from the one-year post-employment restriction of 18 U.S.C. 207(c), to revoke certain existing department component designation (Department of Homeland Security requested that OGE remove all separately designated components for purposes of representing back to the agency), and to designate an additional component (Office of Violence Against Women of the Department of Justice) for purposes of that provision. Download fed_reg_8_mar_07_e74167.pdf

New Revolving Door Fixes

Today's Federal Diary column has a good short summary of the pros and cons of legislation now under consideration in Congress that would increase employment restrictions for federal procurement officials who take certain jobs when they leave government, from one year to two years. The proposal would also prevent newly hired procurement officials from awarding contracts to their former employers for two years.

An OPM official took the position that the proposals "will have the unintended effect of harming the career prospects of the overwhelming number of honest, experienced government employees and encourage them to leave government service early."

Federal Diary is a regular Washington Post feature authored by Stephen Barr. It has an RSS feed.

Ethics Bill Introduced in House

Cong. Waxman (Chairman of the House Committee on Oversight and Government Reform) with Cong. Davis (ranking member of the committee) introduced H.R. 984, "Executive Branch Reform Act of 2007" on February 12.  The Bill is substantially the same as legislation they introduced in the previous Congress.

  H.R. 984 requires quarterly reporting of lobbying contacts, expands the post-employment restrictions of 18 USC 207(c) to 2 years, prohibits covered Federal employees from taking official actions that affect their former private employers or clients, expands the scope and restrictions of the Procurement Integrity Act, requires the disclosure of all Federal advertising, and eliminates "pseudo" classifications. Find the Bill on THOMAS at:  http://thomas.loc.gov/cgi-bin/thomas

Revolving Door High on POGO Reform List

The Project on Goverment Oversight's 2007 suggested list of oversight priorities ranks "revolving door" issues near the top. POGO's web site explains its view as follows:

In recent years, the news media have profiled a shocking array of scandals involving government officials who made decisions benefiting private interests and left government to work for the very companies they were overseeing.  For example, the public learned that convicted lobbyist Jack Abramoff sought to offer a lucrative lobbying position to Interior Department official Steven Griles after Griles made decisions that benefited Abramoff’s clients. A 2004 POGO study found 300 cases in which officials left government to go work for the 20 largest contractors, with as many as one-third of those officials having been in key positions to influence spending decisions that benefited the contractors. POGO’s study also found that revolving door and conflict-of-interest rules were confusing and failed to rein in some of the most egregious abuses. A 2006 report by the New York Times documented that at least 90 Department of Homeland Security officials left their positions and went on to work for the agency’s contractors. Congress has done little oversight in recent years to ensure that the taxpayer and the government are protected from the abuses such conflicts of interest can cause. [Footnotes omitted]

Taking Documents Home

A press release from the U.S. Attorney's Office for Maryland explains how a former National Security Agency employee erred badly while transitioning from the civil service to the private sector, resulting in a criminal conviction:

Evidence presented during the trial indicated that Ford took home the classified information on the last day of his employment at NSA in December 2003, when Ford was to start working in the private sector on a classified contract for a defense contractor. ... Witnesses from both the NSA and the Central Intelligence Agency testified that the classified documents, some of which were displayed to the jury in edited form, were extremely sensitive and related to the national defense of the United States. Though there was conflicting evidence of what Ford intended to do with the classified information, the jury’s verdict demonstrates that it was satisfied that Ford had unauthorized possession of the information.

The employee was also convicted of making a false official statement.

Annual 18 U.S.C. 207(c) Component Designations

The Office of Government Ethics issued DAEOgram DO-05-015 requesting that Desginated Agency Ethics Officials notify OGE by November 30th of their respective component designations for purposes of the one-year post-employment restriction applicable to former "senior" employees (18 U.S.C. 207(c)).

Proposed Post-Employment Restrictions

According to an article in Government Executive, Sen. Byrd, D-W.Va., drafted an amendment to the FY 05 Defense authorization bill that would further restrict post-employment under the Procurement Integrity Act.

Computerized Training Modules from EPA

Here are links to download four computerized training courses from EPA:

Hatch Act, 2004. First file is 1.htm.

Post Government Employment, 2003. First file is 1.htm.

Conflicts of Interest, 2002. First file is 11.htm.

Misuse of Position, 2001. First file is 11.htm.

To make handling easier, each course has been compressed into one "zip" file. You will need to decompress them in order to use them. If you don't have a file compression/decompression program available, ask around in your office, especially your IT staff. Alternatively, free trial versions are available through places like Winzip. Direct questions about the training modules to Dan Fort at EPA, (202) 343-9987.

Thanks to Ken Wernick and the ethics team at EPA for making these training modules available.