ETHICS IN GOVERNMENT ACT OF 1978: POST EMPLOYMENT RESTRICTIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83-00156R000300020027-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 15, 2016
• Document Release Date: October 23, 2003
• Sequence Number: 27
• Publication Date: February 8, 1979
• Content Type: MF

Approv or Release 2004fb311'f GIA-RDP83 156R0003 OO2QQ? 4_, f
~r
Washington. D. C. 20505
8 February 1979
MEMORANDUM FOR: Larry Garrett, Esc'.
Office of Government Ethics
Office of Personnel Management
STAT FROM : I
Office of General Counsel
SUBJECT Ethics in Government Act of 1978.
Pont Employment Restrictions
1. This is in response to the memorandum of 17 January
1979 from the Director, Office of Government Ethics, requesting
our comments on the post-employment provisions of the "Ethics
in Government Act of 1978." These comments address the-
several areas that you and I discussed last week, and offer
several hypothetical cases to illustrate our interest in
further clarification.
2. Under the Act former officials are prohibited from
making appearances before the Government on certain, matters
on which they worked while government employees. The
anticipated regulations should clarify the extent to which
the Act precludes a meeting between such officials and
representatives of the Government when the meeting is held
at, for example,.a contractor's place of business, or before
a neutral third party, and is not technically an appearance
before the Government in the sense that a person appears
before a regulatory agency to apply for a license.
Example. A government employee who-has assisted in
establishing requirements for a contract in his area of
expertise-leaves government employment to accept a
position with the agency contractor whose bid was
accepted. At a meeting at the contractor's plant to
discuss the project, there is a dispute as to what the
contract actually requires. The employee is called
upon to support the contractor's position against the
Government's representative.
3. While, in this hypothetical, the employee's participation.
might be prohibited as an attempt to influence the Government,
the facts might be altered slightly so that there is no
actual dispute involved. In such a situation, the employee
could be called upon at the joint request of the Government
and the contractor to interpret the contract requirements,
and to advise all parties of how the research ought to be
approached. Is this prohibited as an attempt to influence?
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Example. Employee returns to the university from which
he took a leave-of-absence to work for the government.
While so employed, he had made recommendations on the
types of work that might best be performed by outside
contractors. Back at the university (or think-tank)
once again, he is asked about the chances for securing
a government contract. May he help submit the bid
based upon what he knows from his government experience?
4. The question of whether the Act applies routinely
arises in situations, including those above, where the work
to be performed by the former employees inures to the mutual
benefit of the Government and its contractor. The difficulty
lies in attempting to determine whether the former employee
is representing anyone other than the United States. While
the statute clearly contemplates restrictions involving
adversary relationships--such as appearances before regulator
agencies--it is unclear to what extent being rehired by the
Government, whether directly or as a contractor's employee,
tends to eliminate potential for conflicts. When a former
employee is rehired as a consultant or independent contractol
there is no allegiance owed to anyone but the employer, the
United States, although in a technical sense that person is
looking out for himself. However, when the'former employee
performs for a third party the very tasks he could have
performed as an independent contractor, it is quite clear
that the U.S. may not have that person's undivided loyalty.
Yet, in both cases, the work is to be completed on the
Government's behalf.
Example 1. Former employee who established requirements
for a contract now forms a one-man corporation to
submit a bid for the contract, and is awarded the
contract because of his own expertise. Is this representing
someone (the corporation), other than the U.S.?
Example 2. Same employee instead accepts a job as an
employee with a research corporation that either
submits a bid--with that employee's participation--and
is subsequently awarded the contract or has been
awarded the contract (perhaps upon his recommendation)
prior to his employment. Because of his expertise, the
former government employee is assigned to complete the
study, or merely assists in completing the study, that
is to be presented before the Government upon its
completion.
While it is clear that these hypotheticals involve matters
that may be within the scope of the statute, the fact that
the services provide invaluable assistance to-the mission. of
.a U.S. Government agency might very well preclude any conflict.
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involves- with wor erformed on behalf of th Government,
and note any disparate treatment arising from the person's
status, whether it be as an independent contractor or
consultant, a member of a partnership, the founding officer
in a one or two-man corporation, or an employee of a major
corporation that has solicited a government contract.
5. The phrase "particular matter involving a specific
party or parties" suggests that a rather narrow interpretation
should be placed upon the lifetime and two-year bans, consistent-
also with the construction placed upon criminal laws,
generally. In the scientific world, where a project might.
last several years, the terms of the contract could be
modified several times before the project is completed. In
addition, an initial project might involve several different
technical disciplines that are only marginally related.. The
regulations should attempt to offer some guidance on the
scope of the restriction.
Example 1. Former government contracting officer for-
project XX is considering employment with the contractor
on that project and would be expected to:
a. assist in a dispute involving the terms of
the contract;
b. assist in a modification to the contract that
will save the Government and/or the contractor
money:
c. negotiate a contract that he recognizes will
be a logical follow-on to the initial contract..
Example 2. Officer who for the U.S. negotiated a
contract with company X for research of foreign economic
conditions accepts position with company X, not as a
contracting officer but:
a. to do the actual research;
b. as a security officer overseeing the contractor's
compliance with the security provisions of the
contract he negotiated;
c. in any other capacity involving the completion
of that contract to the Government's satisfaction.
Example 3. Official responsible for the security of
project XX at the contractor's plant leaves Government
service to become the security officer for the contractor
on that project.
Example 4. Government's technical representative on
project XX accepts position in any capacity with the
contractor to assist on the same project, e.g..
a. to oversee technical compliance;
b. to perform functions he would be monitoring if
he were still with the U.S., and which were in
fact being performed by the person he replaced.
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As is evidenced by the foregoing examples, not only contracting
officers and their technical representatives but also
security officers and other support personnel not ordinarily
thought to fall within problem areas might be involved in
potential conflicts. Presumably, however, the narrow
construction of the Act will continue to preclude prosecutions
for performance merely of technical work of the nature that.
is typically within the responsibility of the security or
other administrative type officer. Technical work, moreover,
might also include work typically performed by salesmen who
attempt to utilize their Government contacts for financial
gain, yet without any intent at coercion or undue influence.
Example. Former librarian or historian whose U.S.
duties involved buying X journal each week takes a job
with the bookseller to sell the same publication to his
replacement.
6. Moreover, the regulations should also clarify the
extent to which there will be restrictions placed not only
on the officials involved in existing government contracts
but also on those who are not. ,For example, many agencies
utilize the services of outside specialists.--university
professors, consultants, economic forecasters--who serve the
Government for two or three years as employees and return to
the private sector. Such individuals thereafter might be
called upon occasionally to conduct certain research. for the
Government on matters that were within their official
responsibility before the termination of their official
duties.
Example 1. A former weapons analyst involved in, for
example, SALT verfication, returns, after agency X
rejects his conclusions, to university/think-tank to
continue his research. Thereafter, another agency of
the U.S. attempts to utilize the think-tank to oppose
the position of agency X. May the analyst assist as an
employee of the university/think-tank?
Example 2. Political analyst whose area of expertise
is Soviet propaganda leaves Government service and:
a. writes an article about Soviet propaganda efforts;
b. , accepts a position with the Brookings Institute,
which publishes a report on Soviet propaganda;
c. accepts a position with a lobbyist who is
involved in a case where Soviet propaganda is an
issue.
Example 3. Former intelligence analyst who monitored
anticipated oil deal between company X and country A
leaves Government service to work on that deal for the
oil company (or the country) involved.
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intended by the Act, if the facts were changed so that the
former official prepares appropriate environmental impact
statements for the EPA, it certainly raises questions of
whether U.S. interests might include matters solely of
informational/intelligence value, which the regulations
should make clear are not particular matters.
Example. Former official, expert on country X economic
matters, including T.V. exports, represents country X
in efforts to export T.V. sets to the U.S. including
dealing with such departments and agencies as Inter-
national Trade Commission, Office of the Special
Representation for Trade Negotiations, Treasury Depart
ment, Commerce Department, etc. Any conflict of
interests?
7. Several other questions arise from the language of
the Act and could be addressed in the regulations.. First,
the regulations should clarify how far down the chain of
command an official may be and still have significant
decision-making or supervisory responsibilities so as to be
precluded from assisting others (S 207(b)(ii)) or contacting
their former agencies (? 207(c)). Some officials, for
example, may not take official action without case-by-case
approval of a.reviewing official.
8. Second, the regulations should address the waiver
permitted for communications involving scientific, technological,
or other technical disciplines and should provide guidance
on the extent to which a waiver may be granted for former
officials involved in economics, political science, or even.
patent law. While this Agency will attempt to determine
what officials ought to be designated under the Act, we have
not yet reached any conclusions. However, it would be
useful for the waiver provisions to focus not only on the.
area of expertise but also on how the information is provided,
e.g. individual consultant vs. contractor's employee;
mutually beneficial vs. adversary relationship; gratuitous
vs. compensated communications.
9. Third, the Act provides that a special government
employee who serves for less than sixty days in a calendar
year is not subject to the restrictions of ? 207(c).. Since,
however, a special government employee is defined in ? 202
as one who works not more than 130 days, such officials seem
to be exempt from the restriction if they work for 59 days
at the end of one year and 59 days at the beginning of the
next. Is this a correct interpretation?
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10. Finally, the regulations should address two
matters that are of particular concern to legal staffs.
First, to what extent is an agency expected to determine,
prior to awarding a contract, whether a former employee
might be involved in a possible conflict of interests? We
would strongly urge that the regulations make clear that an
agency does not have to decline to award a contract on the
basis that a conflict might result. Any restriction must,
rest lie solely on the individual and possibly, tangentially,
on the current employer. In the past this Agency has made
such determinations beforehand to avoid later flap potential;
however, some former employees have objected to the Agency's
involvement. While we may well decide to continue that
practice, the regulations should make it clear that the
ultimate burden lies on the employee who is or has left
government service. Second, you might give some guidance to
legal staffs on the possible liability that government
attorneys face in giving advice to employees who intend to
accept post-emgloyrient positions, or upon agencies, generally,
for unnecessarily declining to permit an employee's new boss
to utilize that employee on a Government project.. Are there
due process considerations involved?
11. This memorandum has attempted to focus on typical
concerns of Agency employees. Naturally, each situation
that arises will be considered on a case-by-case basis;
however, guidance from the Ethics. Office will be most
useful in helping employees avoid conflicts before they
occur. Therefore, I thank you for the opportunity to offer
these few remarks. These are some of our initial thoughts.
As we work with this, we may have further questions that we
may ask you to address. If you have any questions or
comments, please do not hesitate to contact me at
ST
ST
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