IEC Journal

Post-Employment Restrictions Examined as Former Feds Seek Jobs with Foreign Companies

Nextgov.com reports:  As a major Chinese telecommunications company suspected of espionage hires former U.S. government officials, critics are raising concerns about the adequacy of government post-employment restrictions, as well as the risk of national security threats.

Huawei, based in Shenzhen, China, has been methodically snapping up former senior federal officials, lobbyists and congressional staffers. Company officials say they are attempting to attract more U.S. business, partly by recruiting well-respected Westerners with government and security backgrounds.

The employment of more Americans at foreign firms can benefit the United States by fostering worldwide security standards and boosting stateside investments. But the unknown variable is to what degree Huawei, a multinational tech company founded by a former People’s Liberation Army member, acts on behalf of the Chinese military. A congressional investigation indicated the company might be inserting backdoors into products that can remotely siphon data or sabatoge computers.

Legislation Watch: HR. 4343

On March 29, 2012, Representative Wolf (R-Va.) introduced HR. 4343.  The Foreign Lobbying Reform Act seeks to add a new post-Govt employment restrictions to 18 U.S.C. § 207.  The new subsection, (m), would prohibit the President, the Vice President, any Member of Congress, most PAS (excluding uniformed members 0-7 and above), and the heads of certain Intelligence and Defense agencies, from aiding, advising, or representing a foreign entity before any employee of member of Congress, or any employee or officer of any agency or department of the executive branch for 10 years after leaving office.  

Read the Bill: Download HR 4343 (PGE)

President signs STOCK Act

OGE reports:

"On April 4, 2012, the President signed the Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act) (S. 2038). The Act establishes new requirements for Executive Branch ethics programs, ethics officials, and the thousands of employees who currently file financial disclosure reports pursuant to the Ethics in Government Act. OGE fully supports the Act’s focus on improving transparency and promoting public confidence in government and is carefully analyzing the provisions of the new law. In consultation with DAEOs and other senior agency ethics officials, OGE will issue a series of Legal, Program, and Education Advisories to implement the Act’s provisions.

Questions from agency ethics officials should be directed to the OGE Team that supports your agency. Media and related inquiries should be directed to Vincent Salamone at (202) 482-9292."

See STOCK Act: Download STOCK Act

DARPA Chief to Google

Wired Magazine's Danger Room has multiple articles about the departure of Defense Advanced Research Projects Agency (DARPA) chief Regina Dugan for Google.

CLE Program on Leaving Government Employment

The DC Bar will host a CLE event on January 11 as follows:

Leaving Government Employment: Ethics Issues for Attorneys

Time: Wednesday, January 11, 2012 from 5:30 pm to 7:45 pm

Description

Credit: 2.0 Ethics Credit Hours

Description: Leaving federal government employment for the private or nonprofit sector raises important ethics issues for attorneys and presents potential pitfalls. Government 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 government work will benefit from a clear understanding of post-government employment ethics issues, including matters an 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 better grasp of both the ethical standards in the applicable D.C. 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 when they violate some of these rules. The course also will alert attendees to post-government employment issues on fee sharing, the Obama Ethics Pledge, and other matters dealing with employment transitions.

 

Location

D.C. Bar Conference Center
1101 K Street NW
(Nearest Metro Stop: Metro Center 12th Street)
Washington DC 20005

Contact

CLE Program 202-626-3488

Speakers

Peggy Love, Attorney-at-Law; Former Deputy Ethics Official, Office of General Counsel, U.S. Environmental Protection Agency

Thomas Mason, Zuckerman Spaeder LLP

CLE Credit

Yes

Cost

Administrative Law and Agency Practice Section $89.00
Corporation, Finance and Securities Law Section $89.00
Courts, Lawyers and the Administration of Justice $89.00
Criminal Law and Individual Rights Section $89.00
D.C. Bar Members $99.00
Environment, Energy and Natural Resources Section $89.00
Government Attorneys $109.00
Government Contracts & Litigation Section $89.00
Labor and Employment Law Section $89.00
Law Practice Management $89.00
Litigation Section $89.00
Others $129.00
Real Estate, Housing and Land Use Section $89.00

GAO sustain protest against Army (PGE conflict?)

GAO sustained VSE Corporation protest on Army's termination of a contract awarded. The Army terminated the contract based on the contracting officer's (CO) finding that the award was tainted by the protester's hiring of a former government employee as a consultant and that individual's participation in the preparation of the protester's proposal created at least an appearance of impropriety. VSE contends that the CO's determination was unreasonable because it was based on assumptions and not facts.

B-404833.4, VSE Corporation (see http://www.gao.gov/products/B-404833.4)

POGO Questions NRC Revolving Door

The Project on Government Oversight notes that the Nuclear Regulatory Commission Office of Inspector General found no violation of law when a former Commissioner went to work for a company that owned nuclear power plants shortly after leaving the NRC. This did not necessarily satisfy POGO:

As the OIG points out, current law (18 United States Code, section 207, to be precise) "is not intended to prevent private sector employment after an individual terminates Federal service." The memo continues: "Instead, it restricts an individual from engaging in representational activities before NRC after the individual has terminated Federal service."

But are there sufficient controls in place to ensure that NRC Commissioners are acting with the public's best interest in the waning days of their regulatory careers? That's certainly a question worth asking, especially in light of some of the recent criticism about the NRC's excessive coziness with the industry it's tasked with overseeing.

FAA Restricts "Revolving Door" For Inspectors

Under a new FAA rule published on Monday, certain aviation safety inspectors who work for the agency must wait two years before they can be offered a job from air carriers and other certificate holders. "The flying public can rest assured that our aviation safety inspectors will remain focused on protecting the flying public without any conflicts of interest," said Transportation Secretary Ray LaHood. The new rule aims to address concerns raised by Congress and the DOT Inspector General in 2008 about the FAA's oversight of Southwest Airlines. An analysis by the inspector general's office found that FAA staffers overseeing Southwest had developed an "overly close relationship" with the airline, the FAA said.

via www.avweb.com

Can Pledges Prevent Revolving Door?

Time magazine essayist Michael Crowley wonders whether pledges to avoid revolving door issues could be worthwhile. The pessimistic conclusion:

Maybe a dose of shame can deter some of the opportunists. Or maybe that’s just wishful thinking. After all, the worst offenders in the influence-peddling racket seem to lack a conscience in the first place.

POGO report on "revolving door" conflicts for former SEC employees

On May 13, 2011, the Project on Government Oversight (POGO) released a report discussing entitled: Revolving Regulators: SEC Faces Ethic Challenges with Revolving Door.  The report was features not only discussion of the potential conflicts between former employees and their post-SEC positions, but also includes a public database of post-employment statements filed by former SEC employees between 2006 and 2010.  See POGO report at http://www.pogo.org/pogo-files/reports/financial-oversight/revolving-regulators/fo-fra-20110513.html.  And GovExec article summarizing the same: http://www.govexec.com/story_page.cfm?articleid=47807&dcn=e_gvet.

F.C.C. Commissioner Defends Taking Comcast Job

A resigning F.C.C. Commissioner defended her decision to take a job with Comcast in a NY Times story:

“I have not only complied with the legal and ethical laws, but I also have gone further,” Ms. Baker said. “I have not participated or voted any item, not just those related to Comcast or NBC Universal, since entering discussions about an offer of potential employment. Because of this, I plan to depart the commission as soon as I am able to ensure an orderly wind-down of my office.”

In her new position as head of governmental affairs for NBCUniversal, Ms. Baker faces significant restrictions in her ability to lobby F.C.C. officials, in part because of an Obama administration ethics pledge that she signed. She is not allowed to lobby anyone at the F.C.C. for two years after her departure and will be barred from lobbying other political appointees at the F.C.C. for the remainder of the Obama administration, including a second term if the president is re-elected.

She also faces a lifetime ban on lobbying any executive branch agency, including the F.C.C., on the agreement that Comcast made with the commission as a condition of its approval of the merger with NBC Universal. She will be allowed to lobby members of Congress immediately, however. “I will of course comply with all government ethics and Obama pledge restrictions going forward,” Ms. Baker said.

A Washington Post story has more. A Google News search revealed about 160 other articles on the situation, mostly negative.

Debit Fee Rule Fight Brings Out 118 Revolving Door Lobbyists

The Sunlight Foundation has an article about revolving door lobbyists fighting the Federal Reserve's proposal to cap debit interchange fees, the cost per debit card swipe charged to retailers. The proposed 70 percent reduction would help retailers and cut bank profits.  The article includes a chart showing the 118 former government officials fighting on behalf of banks.

Prof. Tribe comes close to violating Post-Govt Employment Restrictions

Harvard Law School professor Laurence Tribe's name was yanked from an amicus curiae brief in a major Supreme Court climate change case earlier this month after the Justice Department told him his recent service in the department (as a senior counselor for access to justice issues) made it improper for him to be on the brief.  See full article at http://legaltimes.typepad.com/blt/2011/02/laurence-tribes-name-pulled-from-supreme-court-brief.html#tp.  Interesting assertion from co-counsel that these post-government employment activities amounted to interference with clients rights to petition--including having Prof Tribes name on the brief.

Non-Competitive Contract Extension to Firm Headed by Retired General

Earlier this month, the Washington Post reported that the Defense Logistics Agency had given a non-competitive extension to a company employing the former DLE director. Here's an excerpt: 

Troy Hughes, a lawyer for Supreme Group USA, said Dail has not participated in "coordination or negotiations" with the DLA on the Afghanistan contract.

"It was the intent by Supreme Group leadership to exclude LTG Dail from all subsistence prime vendor contract activities, to include negotiations, upon his arrival and for as long as he serves in the Group and/or as president of Supreme Group, USA," Hughes wrote in an e-mail.

He added that, while at the agency, Dail was not involved in granting the original Afghanistan food supply contract in 2005. The DLA has since said that Dail cannot represent Supreme before the agency on the contract for a two-year period after his retirement.

Interior IG Report Cites Irregularities in Shell Bids

The Wall Street Journal reports:

The federal agency that controls oil and natural-gas production on U.S.-owned land "appeared to give preferential treatment" to Royal Dutch Shell PLC when the company pursued drilling leases on public land during 2005 and 2006, the acting inspector general of the Interior Department said in a report Friday.

Investigators said they found no evidence that Shell broke the law, and "no conclusive evidence" that then-Interior Secretary Gale Norton—who accepted a job with Shell several months after leaving her government post—broke federal conflict-of-interest laws. ...

The Interior Department's inspector general's office had referred the matter to the Justice Department, which declined criminal prosecution. A Justice Department spokeswoman declined to comment. An Interior Department spokeswoman said the department was reviewing the report. Ms. Norton didn't respond to a request for comment.One Interior ethics official wrote Ms. Norton in an e-mail that "the permanent ban might not apply based on your description of how you were involved in this issue while Secretary," according to the report. The ethics official also asked Norton follow-up questions, but Norton "never responded," the report said.  ...

The U.S. Office of Government Ethics concluded that Norton had "played a significant role" in the oil-shale program while secretary and said that her "participation in the program should subject her to the lifetime ban on communicating with the federal government regarding the program," the report said. ...

Politico and Federal News Radio have more.

Senior Mentor Policy Changed

USA Today reports on changes in the DoD "senior mentor" policy:

The Pentagon has dropped its attempt to shield some consultants from public scrutiny and will require all retired admirals and generals it hires under its "senior mentors" program to disclose their employers, earnings and stocks they own.

Under pressure from Congress, the Pentagon had required that only consultants making more than $119,553 per year disclose their finances.  ...

A USA TODAY investigation found the mentor program had been run with few regulations for years. Many retired officers were hired by defense contractors and, thus, not subject to government ethics rules to prevent conflicts of interest.

OGE 2009 Prosecution Survey

The Office of Government Ethics issued DAEOgram DO-10-017 on November 9, 2010 announcing the publication of the 2009 Conflict of Interest Prosecution Survey.   The survey contains summaries of cases involving conflict of interest violations.  The Department of Justice prosecuted the cases. See http://www.usoge.gov/ethics_guidance/daeograms/dgr_files/2010/do10017.pdf

Newsworthy That Former Official Did NOT Enter Revolving Door?

POGO finds it not just commendable but newsworthy that former Interior Secretary Dirk Kempthorne went to work as the new president and CEO of the American Council of Life Insurers (ACLI). POGO considered it refreshing that unlike too many others, Mr. Kempthorne transitioned to an industry that he was not recently in charge of overseeing.

DOI Revolving Door

Mother Jones has an article about a revolving door situation at the Department of Interior Bureau of Land Management.  Here's the lead:

In the nearly three months since the Deepwater Horizon disaster began, the Department of Interior has been come under fire for maintaining a too-cozy relationship with the companies it is supposed to regulate. Among the chief criticisms has been the revolving door between the department and the industries its various components are supposed to regulate. Here's yet another stellar example of what was standard operating procedure at the agency: an oil and gas industry advocacy group has just named former Bureau of Land Management field manager (and ethics probe target) Steven Henke as its new president.

POGO Views on Interior Revolving Door

POGO Blog has a good discussion of the recent House Committee on Oversight and Government Reform hearing on problems in the Interior Department and the Minerals Management Service (MMS),

Interior Chief Promises Revolving Door Reform

A July 23 Washington Post story covered a Congressional hearing on conflicts of interest in the Department of Interior. Agency head Ken Salazar promised strict new rules to limit revolving door problems. According to the Post:

The hearing focused on revolving-door moves made by two former directors of the Minerals Management Service, the recently renamed agency within Interior that is responsible for regulating the industry.

The latest of these moves came when Randall Luthi left his $160,000 government job just 14 months before he became president of the National Ocean Industries Association, an oil industry trade group. He began his new position weeks before the Deepwater Horizon oil rig exploded in the Gulf of Mexico. The association paid his predecessor, former MMS director Tom Fry, more than $580,000 annually.

Former DOJ Inspector General Michael Bromwich, the newly appointed head of the Interior component that regulates oil drilling, supplemented Salazar's institutional pledge with a personal promise, assuring the committee that he will never work for the oil industry and stating:

You'll never see me in this position. I'll say right now that I'll impose a lifetime ban on contacts with the agency, and I hope that sets an example for other people in the agency and other people throughout government."

Revolving Door in Oil & Gas Industry

The top story in this morning's Washington Post involves revolving door issues between the federal government and the oil and gas industry. Here is the first paragraph:

Three out of every four lobbyists who represent oil and gas companies previously worked in the federal government, a proportion that far exceeds the usual revolving-door standards on Capitol Hill, a Washington Post analysis shows.

The reporters go on to note that this is an even higher percentage than in most industries.

GAO On Legal Restrictions on Post-Employment Activites of Trade Officials

A new GAO report is available:

Former Federal Trade Officials:  Laws on Post-Employment Activities, Foreign Representation, and Lobbying, GAO-10-766 (June 23, 2010).

Revolving Door Concern at HHS

The Washington Times has an article about the private sector transition of a senior Health and Human Services official who led the development and acquisition of vaccines and other products against pandemic flu, smallpox and anthrax. Thanks to an alert IEC member for the tip.

Oil Lobbyist / Dept. of Interior Revolving Door

POGO notes that the head of an oil industry trade association was previously the head of the Minerals Management Service, previously tasked with regulating the industry.

Revolving Door Concern at SEC

The Wall Street Journal notes that a Senate panel has requested an IG review of "revolving door" issues at the Securities and Exchange Commission.

Financial Reform Revolving Door

On Financial Reform Bill, 52% of Lobbyists Worked in Government:

More than half of the lobbying force seeking to influence landmark financial reform legislation is made up of former members of Congress, Capitol Hill staffers and executive branch employees, according to a Center for Public Integrity analysis.

Revolving Door Perspectives

Thanks to Paul Bergstrand for drawing our attention to a Harvard Crimson column and related letter that bring different perspectives to the revolving door issue.

Revolving Door Issues at SEC

A Dallas Morning News article discusses revolving door issues at the Securities and Exchange Commission. The Wall Street Journal online edition has an article with background information, as does a report from the SEC Office of Inspector General.

New Scrutiny of Coal/Government Revolving Door

A feature Washington Post article examines the relationship between government and the coal industry. An excerpt:

The movement between industry and government allows both to benefit from crucial expertise, but mining safety experts say it often has led to a regulatory system tilted toward coal company interests. That, they say, has put miners at risk and left behind a flawed enforcement system that probably contributed to this month's Massey Energy mine explosion in West Virginia.

Industries from coal to automobiles to food processing have long sought to capitalize on the experience of former government officials or to win the appointment of allies to federal agencies, and there is nothing illegal about doing so.

Post Story Examines Revolving Door in Auto Industry

An article in today's Washington Post scrutinizes the revolving door between the auto industry and its regulators and a call for reforms. Here’s the article's introduction:

Dozens of former federal officials are playing leading roles in helping carmakers handle federal investigations of auto defects, including those for Toyota's runaway-acceleration problems. A Washington Post analysis shows that as many as 33 former National Highway Traffic Safety Administration employees and Transportation Department appointees left those jobs in recent years and now work for automakers as lawyers, consultants and lobbyists and in other jobs that deal with government safety probes, recalls and regulations.

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.