Employment RestrictionsWHAT EVERY GOVERNMENTEMPLOYEE SHOULD KNOWABOUT - PDF document

1 Employment RestrictionsWHAT EVERY GOVERN
Employment RestrictionsWHAT EVERY GOVERNMENTEMPLOYEE SHOULD KNOWABOUT POST-FEDERALEMPLOYMENT RESTRICTIONSTimothy DakinThis paper discusses the three principal, yet conflicting, laws concerning thepost-federal employment restrictions on Government employees at present,especially for those employees involved in the acquisition process. Nor has the recent Federal AcquisitionStreamlining Act (FASA) succeeded incurement Integrity Act, applies only toThe Act contains civil, contractual, and

2 ad-FASA repealed one, 37 United States
ad-FASA repealed one, 37 United States Code Acquisition Review Quarterly Ð Summer 1995 is an assistant professor of contract law and contract management at officers engag-National Oceanic and Atmospheric Admin-istration, or the Public Health Service. For-he or she retired. FASA suspended this stat- with the acquisition process. Two of these The Office of Government independent contractors as well. Addition- 1The statute only applies to former officers and employees; it does not app

3 ly to former enlisted personnel.The OGE
ly to former enlisted personnel.The OGE regulation, of course, does not concern itself with the policy issue as to whether the Departmentof Defense should extend this coverage by regulation to enlisted personnel. However, the DoD supple-ment to the OGE regulation, DoD Directive 5500.7 (August 30, 1993), also known as the Joint EthicsRegulation (JER), stipulates that certain OGE regulations do apply to enlisted personnel. However, theregulations listed do not include 5 C.F.R. 2637. Thi

4 s is perhaps an oversight on the part of
s is perhaps an oversight on the part of the DoD,because one of the included regulations is 5 C.F.R. 2641, implementing the third restriction in 18 U.S.C.207, which by its terms only applies to senior officers in the grade of 0-7 and above and employees whosepay is equal to or greater than that for Level V of the Executive Schedule. This creates the interestingsituation of certain legal restrictions being applicable to enlisted personnel and senior-level officers andDoD civilian emplo

5 yees, but not to all other officers or D
yees, but not to all other officers or DoD civilian employees. Furthermore, it only seemsreasonable that DoD, were it to attempt to extend the statutory coverage by regulation to one portion of 18U.S.C. ¤207 (implemented by 5 C.F.R. 2641), would attempt to extend it to other portions of the samestatute (as implemented by 5 C.F.R. 2637). Not doing so appears to be an oversight. 5 C.F.R. ¤2637.201 does. It advises that a matter Òtypically involves a spe-Regarding personal and substan

6 tial par-tion directed by the former emp
tial par-tion directed by the former employee. participation is significant to a par- ...note that theserequirements areconjoined, implying thatoneÕs participationcould be personal butnot substantial... viewing part of a ÒRequest for Support Ser-vicesÓ memorandum forwarding the SOW.Textron Marine Systems5 C.F. R. 2637.202(b), interprets the term ...¤207 imposes a two-year bar against formeremployees acting in a responsibility. For example, simply becausetion for communications m

7 ade solely to¤207 contains no provision
ade solely to¤207 contains no provision concerningterms, 5 C.F.R. 2637.201(e) providesthat for Level V of the Executive Schedule.5 C.F.R. ¤2637.212 establishes an ad-ministrative enforcement procedureAlthough the Ethics Reform Act (1989) ¤207 contains no...guidance as to whetherviolate the law... not been revised to in the pay grade GS-12, Step 7. AnotherWithin the already limited group of DoD No other 2The statute specifies that the employee be the primary representative Òin the

8 negotiation of a settlement ofan unreso
negotiation of a settlement ofan unresolved claim of the contractor in an amount in excess of $10,000,000 under a Department ofDefense contract.Ó It is not clear whether the $10,000,000 limitation applies to the settlement amount or theclaim amount. It would seem as though Congress would have intended the limitation to be on the settle-ment amount, as that figure obligates the government. However, grammatically, the stronger argumentappears to be otherwise. sion. At any rate, person

9 s who do meet all ....it cannot be pre-s
s who do meet all ....it cannot be pre-sumed that one havingprocurement responsi-bilities performs aon any given working sonal and substantial participation, some-adopts the OGEC.F.R. ¤2635.402(b)(4). That Code of Fed- Recall that 5 C.F.R. stantially.Ó The 5 C.F.R. ¤2635.402 word-same as, that in 5 C.F.R. ¤2637.201(d). Itin 5 C.F.R. ¤2637.201(d). That would assureYet how far into the bowels of the systemtract for that system. Yet the prohibition 318 U.S.C. ¤208 concerns itself w

10 ith conflicting financial interests of c
ith conflicting financial interests of current federal employees, not theactivities of former federal employees which may subsequently limit their representational capabilities. It is obviously a limitingfactor, but we are lefttotally in the dark as tohow limiting. through others? Further, how much directstatuteÕs prohibitions? Remember the Òma-agency ethics official (DAEO) who is to of post-DoD employment.Following the law having become effectiveBased on the 30-day time limitation,

11 aflected in the DAEO opinion. That opin
aflected in the DAEO opinion. That opin-upon which it is based. Further, the effec- Integrity Act, applies to all federal procure- ...there were manyreports of prospectiveemployers not beingwilling even to discussemployment possibili- only to certain DoD officers and Federal agency procurement.Ó It is key,specified in any implementing regulation.The Federal Acquisition Regulation(FAR), which implements the law, adds twoÒPersonally and substantially,Ó as definedin FAR ¤3.104-49(g)

12 , tracks almost preciselythe definition
, tracks almost preciselythe definition in 5 C.F.R. ¤2637.201(d).FAR ¤3.104-4(c) indicates the period be- Since the lawÕs obviousaward phase... modifi-cations can be easily ing action. The FAR imposes a duty on bothcertain government contractors. The Pro-curement Integrity Act does not prevent theRather, it imposes two 2-year restrictionsserious restriction than that in 18 U.S.C.lem. Presumably, in a civil action alleging asubstantial participation occurred. No en-losing competitor

13 . From a practical ...the former employe
. From a practical ...the former employeemay not be violatingthe law by discussingemployment with alosing competitor. The Procurement Integrity Act is a highlypersonal and substantial activity as a CongressÕ choice of words here is unfortu-a DAEO concerning the lawÕs applicabilityProcurement Integrity Act does not servethe Procurement Integrity Act into believ- CongressÕ choiceof words here is Employment Restrictions the FY91 National Defense AuthorizationFreedom of Information Act

14 , could not rep-ute and the Procurement
, could not rep-ute and the Procurement Integrity Act onlying Act of 1993, introduced by Senator JohnGlenn (Ohio). However, FASA containspresent session. Yet, without the past mo- Ethics Reform Act, November 30, 1989,Federal Acquisition Streamlining Act of 5500.7R (Joint Ethics Regulation), AugustFederal Acquisition Regulation ¼3.104.Streamlining Defense Acquisition Law,Report of the DoD Acquisition Law Advi-S.1587, A Bill To Revise and Streamlinethe Acquisition Laws of the Federal G