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For many, elections mark an impending exit from government service. These government employees will begin navigating the well-worn passage into the private sector, where their experience and contacts can prove valuable to prospective employers. Yet this passage through the “revolving door” from government service to the private sector, while time-honored, is not without peril. There are numerous conflict-of-interest laws that restrict both employment discussions with executive branch employees and the actions that former government employees may take on behalf of their new employers. Because many of these laws impose civil or criminal penalties for a violation, everyone involved in the hiring process — potential employees and prospective employers — must take special care to identify and avoid certain actions throughout the employment process. EMPLOYMENT DISCUSSIONS Suppose, for instance, that you are an employee of the executive branch and you have decided to investigate the possibility of employment in the private sector. The first set of laws to keep in mind — even before you start a job search — are the restrictions that apply to discussions with prospective employers. Under 18 U.S.C. 208(a), officers and employees of the executive branch may not participate personally and substantially on a particular matter if they are negotiating or have arranged prospective employment with an entity that has a financial interest in the matter. In other words, a government employee cannot engage in employment discussions or arrangements with any entity that is financially involved in a matter pending before the employee. If the federal employee wants to seek employment with such an entity, 18 U.S.C. 208(b) requires that the employee either disqualify himself from the matter or obtain a written waiver or authorization from the agency to continue in the matter. Thus, for example, if the general counsel of a regulatory agency wishes to discuss possible employment as corporate counsel with a regulated corporation, she must first ascertain whether the corporation is involved in any matters in which she is personally and substantially involved. If such matters are pending, then she could not pursue employment with the corporation unless she withdrew from the matters or obtained an appropriate waiver or authorization from the agency. Although the criminal conflict-of-interest laws do not impose legal obligations on hiring organizations directly, such organizations should be careful not to engage in prohibited employment discussions. In fact, an organization that knowingly ignores the law risks potential criminal charges under other sections of Title 18. For example, offering employment to a government official who is responsible for a pending contract award could lead to allegations of bribery or providing an illegal gratuity to a government employee under 18 U.S.C. 201. If a company or firm has any doubt about whether discussions with a particular federal employee are permissible, it should request proof from the employee of either an appropriate disqualification statement or an agency waiver. Absent such evidence, the company cannot be assured that its employment discussions with an executive branch employee are proper. Similar restrictions apply to procurement officials. Specifically, 41 U.S.C. 423(c) provides that if a federal agency official participating personally and substantially in a competitive procurement worth more than $100,000 contacts or is contacted by a person who is a bidder or offeror on that procurement regarding nonfederal employment, the agency official must (1) promptly report the contact in writing to both his supervisor and the agency ethics official, and (2) reject the possibility of nonfederal employment or disqualify himself from further personal and substantial participation in the procurement. Thus, in addition to a disqualification requirement, this law creates a mandatory “reporting” requirement on all significant employment contacts during the conduct of a federal procurement. For example, if a senior military officer responsible for awarding a $5 million contract wishes to discuss future employment with one of the contractors who has submitted a proposal on the procurement, he must report his intent to contact the company to both his supervisor and the agency ethics official and then disqualify himself from further participation in the procurement. EXECUTIVE BRANCH EMPLOYEES In addition to restrictions on employment discussions, there are significant post-employment restrictions applicable to former employees of the executive branch. These restrictions generally aim to prevent former executive branch employees from influencing their former agency or government employer on particular matters. The most significant of these post-employment restrictions is 18 U.S.C. 207(a)(1) because it permanently prohibits former executive branch employees from communicating with or appearing before any official or employee of the United States on behalf of another person with the intent to influence a particular matter (1) in which the United States is a party or has a direct and substantial interest, (2) in which the former federal employee participated personally and substantially and (3) that involved a specific party or parties at the time of such participation. The Office of Government Ethics regulations, 5 C.F.R. 2637.201(b)(1), state that the “target of this provision is the former employee who participates in a particular matter while employed by the Government and later ‘switches sides’ by representing another person in the same matter.” The most obvious example of this situation would be an attorney who worked for the Department of Justice in an antitrust case against the XYZ Co.; if that attorney left the department and subsequently was asked by XYZ to represent it in the case, she could not do so. But the prohibition extends far beyond former government attorneys to include any other former federal employee, including managerial and technical personnel, who meet the “representational” criteria of the statute. For example, a former project manager for an agency may not subsequently act as a sales or contract representative to his former agency on the same project in which he personally and substantially participated. In addition to this permanent restriction, 18 U.S.C. 207(a)(2) establishes a two-year restriction applicable to former executive branch employees that is similar to the permanent restriction, except that it covers matters “actually pending under [the former employee's] official responsibility” in the last full year prior to termination (rather than matters in which the employee participated personally and substantially). Thus, in the case of the project manager mentioned above, a two-year restriction would be in effect for all projects pending under his official responsibility in the year prior to his departure from the government, regardless of whether he was personally involved in those projects. Finally, 18 U.S.C. 207(c) and (d) set forth one-year restrictions on former senior and very senior employees of the executive branch who are involved in communications with either their former agency or persons in certain senior executive positions. One-year restrictions apply primarily to certain members, officials and employees of the legislative branch: � Former legislative branch employees and members of Congress (as well as executive branch employees) involved in trade or treaty negotiations (18 U.S.C. 207(b)). � Former members of Congress or elected officers of either house of Congress involved in communications with members, officers or employees of Congress (18 U.S.C. 207(e)(1)). � Former employees of members of Congress involved in communications with the members who formerly employed them or their staffs (18 U.S.C. 207(e)(2)). � Former employees of a congressional committee involved in communications with any committee member or employee (18 U.S.C. 207(e)(3)). � Former employees of the leadership staff of either house of Congress involved in communications with members or employees of the leadership staff of either house (18 U.S.C. 207(e)(4)). � Former employees of any other legislative office of Congress involved in communications with employees and officers of their former legislative office (18 U.S.C. 207(e)(5)). FORMER PROCUREMENT OFFICIALS Finally, as with employment discussions, special post-employment restrictions apply in the context of government procurement. These restrictions, all of which have a one-year duration, generally prohibit certain former procurement officials from accepting compensation from certain contractors. Thus, they can be more onerous than other post-employment restrictions as they may prohibit hiring the former official, not just limit his subsequent communications with the government. The restrictions under 41 U.S.C. 423(d) apply to certain government officials — specifically identified by title or function within the law — who (1) were involved in a source-selection process for a contract in excess of $10 million, (2) were involved in contract management and administration for a contract in excess of $10 million or (3) personally made a decision to award a contract action or approve a payment, rate or claim in excess of $10 million. These officials may not accept compensation from any contractor division or affiliate that provides similar products or services as the contractor involved in the affected contract. For example, if a NASA engineer served as a member of a source-selection evaluation board for a contract that exceeded $10 million, she could not go to work for the winning contractor for one year from the date of award, unless she worked for a separate division or affiliate that provided different products or services. As all of these rules demonstrate, the restrictions on moving from government service to the private sector can be complex and require careful consideration by both employees and prospective employers. But they are not insurmountable. The key is for all parties to understand what is and is not prohibited by the rules, so the exchange of talent between the government and private sectors can continue effectively. Richard P. Rector is a partner in the government contracts group in the Washington office of Piper Marbury Rudnick & Wolfe.

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