Department of the Army
Office of the General Counsel
104 Army Pentagon
Washington DC 20310-0104
[Requestor First MI Last]
[Requestor Street 1]
[Requestor Street 2]
[Requestor City, State, Country, Zip/Postal Code]
Re: Post-Employment Restrictions/Section 847
Dear [Requestor First MI Last]:
The following information is in response to your request for a legal opinion on post-Government employment restrictions because you contemplate working for a DoD Contractor within two years after you leave/left the Department. To assist us, you submitted information in your request that I have incorporated in this opinion.
My advice with respect to these matters is advisory only and is provided in accordance with section 2641.105 of title 5, Code of Federal Regulations. I am providing this advice in my official capacity, on behalf of the United States, and not as your representative. Neither the information you provided to receive this advice, nor the provision of this letter, creates an attorney-client relationship between you and an attorney rendering such advice. The information provided to me is not confidential and is necessary to provide written ethics advice. Further, the advice is based upon the information provided in your questionnaire [and during your meeting with me].
There are a number of restrictions applicable to your post-Government employment activities. I want to emphasize recent restrictions imposed by section 847 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Certain current or former DoD officials, who within two years of leaving DoD expect to receive compensation from a defense contractor, must request and receive a written opinion regarding the applicability of post-employment restrictions to activities that official may undertake on behalf of a defense contractor before receiving pay. It applies if you are a current or former DoD official who participated personally and substantially in an acquisition with a value in excess of $10M while serving in: (1) an Executive Schedule position; (2) a Senior Executive Service position; (3) a general or flag officer position; or (4) in a position of program manager, procuring contracting officer, administrative contracting officer, source selection authority, member of the source selection evaluation board, or chief of a financial or technical evaluation team.
You served in one of these covered positions, that is in a [identify from those above] position, and you personally and substantially participated in an acquisition valued in excess of $10M, the [Name] acquisition, explained in greater detail herein. Accordingly, you are required to receive an ethics opinion that addresses post-Government employment restrictions as they pertain to your employment with [Contractor Employer Name]. Should you leave your prospective position with [Contractor Employer Name] and obtain employment with any other defense contractor within the two-year period after you depart DoD service, you are required to seek another ethics opinion.
Background. You have served as the [DoD Position] and will terminate your current employment on [Date]. You intend to start your new employment as [Title of position] at [Contractor Employer Name] on or about [Date]. [Contractor Employer Name] is a DoD contractor. You signed a Disqualification memorandum on [Date], indicating your intention to seek employment with it. You also provided information concerning your DoD duties and a synopsis of the duties to be performed by you in your prospective employment with [Contractor Employer Name] with your request for an opinion. [Additionally, we met on [Date]].
a. Paragraph describes duties during last year of Federal service.
b. Paragraph describes prospective duties with future employer.
Discussion. Once an individual has left Government service, there is a wide array of post-employment restrictions that are applicable to former Government employees. The following is a synopsis of these applicable restrictions.
Title 18, United States Code, Section 207 (18 U.S.C. § 207). The primary source of post-Government employment restrictions for former Federal employees or officers is found at 18 U.S.C. § 207. The intent of this statute is to prevent former Government employees or officers from exerting undue influence gained from Government employment and using information gained while working for the Government to unfairly benefit a new employer. While none of these title 18 provisions bar any individual, regardless of rank or position, from accepting employment with any private or public employer after Government service, section 207 prohibits individuals from engaging in certain activities on behalf of persons or entities other than the United States, whether or not done for compensation. These statutorily restricted activities are representations of other entities before United States officials. None of the section 207 restrictions bar self-representation.
Lifetime ban. Title 18 U.S.C. § 207(a) places a permanent, life-time ban on employees of the Federal government, prohibiting them from representing others on “particular matters.” Specifically, the statute prescribes criminal penalties for any employee or officer who, after he terminates his employment, knowingly makes, with the intent to influence, any communication with or appearance before any person employed by the United States, on behalf of another in connection with a particular matter. The particular matter must be one in which (a) the United States is a party or has a direct and substantial interest; (b) the person participated personally and substantially as an employee or officer; and (c) there was a specific party involved at the time of such participation.
The term “particular matter” includes any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding. General rule-making is usually excluded from the term “particular matter,” since general rule-making seldom involves specific parties. Consequently, it is possible that an employee who participated in a rule-making while employed by the Government will, after leaving Government service, be able to appear before his former agency concerning the application of the rule to his new private sector employer without violating the lifetime restrictions. The term does not encompass any matter before the Government; only those matters that arise to particular matters. The provision further requires that an employee’s official participation in a particular matter must have taken place at a time when the matter involved a non-Federal party (or parties) and also involve such a party or parties at the time of the proposed representation, although these can be different parties. Finally, the restriction remains for the lifetime of the particular matter. For example, when a contract is re-competed and awarded, the new contract is generally considered a new particular matter.
To participate “personally” means directly, and includes participation of a subordinate if actually directed by you in the matter.
To participate “substantially” means that your involvement is either of significance to the matter or forms a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality may be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving may be substantial. In addition to approval, other acts may also be considered “substantial,” such as participation in a critical step.
Appearance and Communication. These are the terms contemplated by the act of representation, which should not be considered a formal representation as when an attorney represents a client. A communication occurs when you impart or transmit information of any kind -- including facts, opinions, ideas, questions or direction -- to an employee of the United States, whether orally, in written correspondence, by electronic media, or by any other means. This includes those communications with respect to which you intend that the information conveyed will be attributed to you, although it is not necessary that any employee of the United States actually recognize you as the source of the information. An appearance occurs when you physically present yourself before an employee of the United States, in either a formal or informal setting. Although an appearance also may be accompanied by certain communications, an appearance need not involve any communication by you. Mere presence in a meeting may be considered an appearance. Behind-the-scenes or in-house assistance to a private employer is legally permissible. Although you are unable to telephone, sign your name to a letter addressed to, or attend a meeting with, a Government official, you may legally tell your employer the name of the Government employee to call or write, or with whom to meet.
The restriction prohibits only those communications and appearances that are made to a Federal employee with the “intent to influence,” which include any that may be interpreted as an attempt to persuade that employee to take action. An “intent to influence” the United States may be found if the communication or appearance is made for the purpose of seeking a discretionary Government ruling, benefit, approval, or other action, or is made for the purpose of influencing Government action in connection with a matter which the former employee knows involves an appreciable element of dispute concerning the particular Government action to be taken. Accordingly, the restriction is inapplicable to a communication or appearance involving purely social contacts, a request for publicly available documents, or a request for purely factual information or the supplying of such information.
The communication or appearance must be made on behalf of someone else. You may always represent yourself. Note that the restriction does not apply to communications or appearances before Congress.
Applicability of 18 U.S.C. § 207(a)(1) to your prospective employment. Based on your duties in the various positions described here, you personally and substantially participated in certain particular matters:
a. [Name]. [Name] is a particular matter involving specific parties, [Name’s)]. You personally and substantially participated in [Name]. [Add other information as appropriate.] [Add other particular matters as appropriate.]
Accordingly, the representation ban of 18 USC 207(a)(1) is applicable to you as an employee of [Contractor Employer Name], so you may not represent [Contractor Employer Name] for the lifetime of the particular matters at a[. and others if applicable] above. You are prohibited from representing any other non-Federal entity (not just the prime or sub-contactors associated with these actions) before any Executive (or Judicial) Branch employee concerning those matters.
Please note that this list of particular matters is not meant to be exclusive or exhaustive and is based on the post employment information you provided. There may be other particular matters in which you personally and substantially participated. Should you recall other matters or should they come to your attention while serving as a support contractor, you should be sensitive to other matters in which you personally participated and bring them to our attention for further consideration and analysis.
Two-year ban. Under the provisions of 18 U.S.C. § 207(a)(2), you have a two-year ban on attempting to influence Federal officials on behalf of another on particular matters that were under your official responsibility during your last year of Government service. The two-year ban begins to run when your Federal employment terminates and applies even if you did not personally or substantially participate in the matter. As with section 207(a)(1), this ban applies to representing another party before the United States (except Congress), with the intent to influence. Behind-the-scenes or in-house assistance is legally permissible.
“Official responsibility” is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, to approve, disapprove, or otherwise direct Government action. Accordingly, a matter is under your “official responsibility” if you had the power, either directly or through a subordinate, to approve, disapprove, or otherwise direct a Government action. Those areas assigned by statute, regulation, executive order, or job description usually determine the scope of an employee’s official responsibility. All particular matters under consideration in an agency are under the official responsibility of the agency head, and each is under that of any intermediate supervisor having responsibility for the activities of a subordinate employee who actually participates in the matter.
A matter was “actually pending” under a former employee’s official responsibility if the matter was in fact referred to or under consideration by persons within the employee’s area of responsibility. It is important to note that unlike section 207(a)(1), this restriction is triggered simply by virtue of the fact that the particular matter was pending under your official responsibility and does not require that you personally and substantially participated in the matter.
Applicability of 18 U.S.C. § 207(a)(2) to your prospective employment. You should be cautious in your post-Government employment activities in regard to this particular ban. This two-year representation ban applies to any particular matter involving a specific party if you know or reasonably should know that it was pending under your official responsibility as [Position] during your last year with the Government. (5 C. F. R. § 2641.202(j)(7)) For example, the [Name and description] is such a particular matter that was under your official responsibility as [Position] during your last year of Government service and in which you did not participate personally and substantially. Accordingly, you are prohibited from representing [Contractor Employer Name] (or any other non-Federal entity) on this particular matter for a two year period beginning on [Date]. Please bring any other such matters to our attention at any time in the future for further consideration and analysis.
One year Trade or Treaty Assistance ban. Title 18 U.S.C. § 207(b) provides that for a period of one-year after leaving Government service, former employees or officers may not knowingly represent, aid, or advise someone else on the basis of covered information, concerning any ongoing trade or treaty negotiation in which the employee participated personally and substantially in his or her last year of service. This one-year ban applies to all employees; it is not limited to senior officials. Trade negotiations are those undertaken pursuant to the Omnibus Trade and Competitiveness Act of 1988. (19 U.S.C. §2902) Treaties are international agreements that require the advice and consent of the Senate. “Covered information” is information found in agency records accessible to the employee but exempt from disclosure under the Freedom of Information Act. Based upon your duties [and our discussions], this ban is inapplicable to your post-Government employment activities while employed by [Contractor Employer Name]. [Note, this is the language generally used. If, however, the particular individual did so participate, insert the applicable analysis.]
[Include the following six paragraphs for senior officials.]
One year “Cooling-Off Period”. Title 18 U.S.C. § 207(c) is a one-year cooling off period applicable to senior officials. It prohibits you from representing another before any officer or employee of a former agency in which you served in your last year, in this instance the Army, on any matter. [Note: If the requestor is a general officer who has been assigned to another component during the last year, then 18 U.S.C. § 207(c) is also applicable to this component and needs to be included throughout the discussion of this section.] During the first year after your departure from the position of [name], you may not communicate to or appear before any Army employee, department, or agency, with the intent to influence, on behalf of any other person and in connection with any matter in which official action by an Army officer or employee is sought. The restriction is measured from the date when you cease to be a senior employee, not from the termination of Government service, unless the two occur simultaneously. This period is designed to prevent any appearance that former senior officers are able to influence government decision improperly because of their former senior positions. You should note that unlike the proscriptions found in 18 U.S.C. §§ 207(a)(1) and (2), which pertain to particular matters, 18 U.S.C. § 207(c) pertains to any matter in which official action by an Army officer or employee is sought.
Applicability of 18 U.S.C. § 207(c) to your prospective duties. The one year cooling off period is applicable starting after termination of your service as [position], on [date], and is applicable to any representation of another before any member or employee of the Army. This provision is very broad in its application as it relates to communications with or appearances before Army employees. For example, you will be unable to attend meetings on behalf of [Contractor Employer Name] at which Army employees are also in attendance, even though you do not speak. This attendance ban applies to meetings with DoD agencies, Joint Commands, or other Government departments or agencies at which Army personnel are assigned or detailed and attend the meeting in question.
Restriction on representing or aiding foreign entities. Title 18 U.S.C. § 207(f) provides that, for a period of one year after leaving a senior position, former senior employees or officers may not knowingly, with the intent to influence a decision of an employee of a department or agency of the United States in carrying out his official duties, represent a foreign entity before any department or agency of the United States, or aid or advise a foreign entity. The restriction is measured from the date when an employee ceases to be a senior employee, not from the termination of Government service, unless the two occur simultaneously. This restriction prohibits a former senior official from representing, aiding, or advising a foreign entity with the intent to influence certain governmental officials.
A “foreign entity" means the government of a foreign country as defined in section 1(e) of the Foreign Agents Registration Act of 1938 (22 U.S.C. § 611) or a "foreign political party.” The government of a foreign country includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country (other than the United States) or any part of such country, and includes any subdivision of any such group and any group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated.
A “foreign political party” includes any organization or any other combination of individuals in a country (other than the United States), or any unit or branch thereof, having for an aim or purpose, or which is engaged in any activity devoted in whole or in part to, the establishment, administration, control, or acquisition of administration or control, of a government of a foreign country or a subdivision thereof, or the furtherance or influencing of the political or public interests, policies, or relations of a government of a foreign country or a subdivision thereof. A foreign commercial corporation will not generally be considered a "foreign entity" for purposes of Section 207(f) unless it exercises the functions of a sovereign.
A former senior official represents a foreign entity when he acts as an agent or attorney for or otherwise communicates or makes an appearance on behalf of that entity to or before any employee of a department or agency. He "aids or advises" a foreign entity when he assists the entity other than by making such a communication or appearance. This ban is broader than that found in 18 U.S.C. §§ 207(a) and (c) because it also prohibits behind-the-scene assistance, if such advice or aid is rendered with the intent to influence an official discretionary decision of a current Federal departmental or agency employee. Such behind-the-scenes assistance to a foreign entity could, for example, include drafting a proposed communication to an agency, advising on an appearance before a department, or consulting on other strategies designed to persuade departmental or agency decision makers to take certain action. Again, such representation, aid, or advice is only prohibited if made or rendered with the intent to influence an official discretionary decision of a current Federal employee. Unlike the prohibitions found in 18 U.S.C. §§ 207(a) and (c), section 207(f) prohibits representation before Congress.
Exceptions. There are exceptions to the restrictions in 18 U.S.C. § 207, including acts pursuant to official U.S. Government duties, and aiding, advising, and representing certain international organizations with prior Secretary of State certification. Restrictions under 18 U.S.C. § 207(c) do not apply to employees of state or local Governments, hospitals, medical research organizations, or degree-granting institutions of higher learning, when making representations on those institutions’ behalf. Additionally, if individuals are not compensated, they may make statements based on special knowledge. Restrictions based on 18 U.S.C. §§ 207(a) and (c), which apply to communications that furnish scientific or technical information, may be waived by the Secretary of Defense. There are special rules regarding testimony under oath. Please consult this office for further guidance.
None of the above restrictions prohibits you from accepting any employment with any person or organization. The restrictions apply only to specific post-Government employment activities—such as representing, aiding, or advising another in connection with certain official matters—not to the mere fact of being employed by any particular entity. Additionally, the only restriction outlined above that prohibits a former executive branch employee from representing others before Congress is 18 U.S.C. 207(f). Self-representation or the expression of personal views that are not advanced as agent or representative of another person, whether or not those views are specifically solicited by the Government, is permissible. Nor do the restrictions outlined above prohibit communications or contacts that are not made with the intent to influence the Government, such as requests for the status of a matter or for publicly available information.
In addition to the above proscriptions imposed by 18 U.S.C. § 207, there are other statutory and regulatory restrictions applicable to post-Government employment. These are discussed below:
Compensation restriction – 18 U.S.C. § 203. There is a prohibition against sharing in any compensation for representational services, rendered personally or by another as agent, attorney, or otherwise, before the Government at a time when the former employee was still employed by the Government. Accordingly, after you leave Government service, you may not accept compensation for representational services, which were provided by anyone while you were a Government employee, before a Federal agency or court regarding particular matters in which the Government was a party or had a substantial interest. This prohibition may affect you when you leave the Government and share in the proceeds of a partnership or business for representational services that occurred before you terminated Federal service. (Examples of such representational activities include lobbying, consulting, and employment by law firms). This restriction is inapplicable to you at this time, based on the supplied information and the [Contractor Employer Name] compensation plan. [If the restriction is applicable, discuss.]
Procurement Integrity Act. I note that the Procurement Integrity Act places restrictions on the acceptance of compensation from a contractor. It specifically provides that a former officer may not accept compensation as an employee of a contractor within a one-year period if the former officer: (1) served, at the time of selection of the contractor or time of award, as the procuring contracting officer, source selection authority, a member of the source selection evaluation board, or chief of a financial or technical evaluation team in a procurement in excess of $10 million; or (2) served as a program manager, deputy program manager or acquisition contracting officer for a contract in excess of $10 million; or (3) personally made a decision to award a contract or task order or delivery order in excess of $10 million to the contractor, or to establish rates applicable to a contract or contracts for that contractor that are valued in excess of $10 million. A program manager is one who actively manages the program cost, performance, and schedule, regardless of the title given to the individual. A Federal official who fits within one of these categories, however, is not prohibited from accepting compensation from any division or affiliate of a contractor, so long as that division or affiliate does not produce the same or similar products or services contract.
[Based upon the questionnaire submitted and your duties, you did not participate in a covered capacity on a $10 million contract, so it is my opinion that the compensation ban does not apply to you.]
[Based upon the questionnaire submitted and your duties, you did participate in a covered capacity on a $10 million contract, so it is my opinion that the Procurement Integrity Act (41 U.S.C. § 423) prohibits you from accepting compensation from ([Contractor Employer Name] until (insert date). [Describe which provision applies and how that impacts the employee.]
Use of Information. You are reminded that you are precluded from using information gained while employed by the agency that is generally not available to the public, (for example, proprietary or source selection information) if the use of that "inside" information would give you or anyone else an unfair financial or commercial advantage. Additionally, 18 U.S.C. §§ 793 and 794 protect and prohibit the use or disclosure of trade secrets, confidential business information, and classified information. Further restrictions are imposed by 10 U.S.C. § 130.
[Include the following paragraph if 278-filer.]
Public Financial Disclosure Report. If you are required to file a Termination Public Financial Disclosure Report, SF 278, please do so within 30 days of your final day of Government service in a covered position. We recommend that you try to complete your report before leaving your position so that we can review it in draft, resolve any issues, and have you sign it electronically in the Financial Disclosure Management (FDM) system on your last day. If you are in Army, you may access FDM through your AKO account using your current password for 180 days after leaving the Department.
[Add the following 3 paragraphs if military personnel.]
Further, while on transition (formerly terminal) leave, there are a number of restrictions applicable to you. While on active duty (including transition leave) military officers are prohibited by 10 U.S.C. § 973(b) from holding a "civil office" with a state or local government. Military personnel on transition leave are authorized to accept a civilian position in the U.S. Government and receive the pay and allowances of that position as well as their military pay and allowances (5 U.S.C. § 5534a). The 6-month waiting period prior to accepting a civilian position has been waived during the current period of national emergency.
Please remember that while on transition leave, you are still an active-duty service member, and the restrictions that apply to you while on active duty still apply. These restrictions include: (1) restrictions on political activities; (2) restrictions on outside employment; (3) prohibition on serving as a registered agent of a foreign principal; and (4) restrictions on representing others to the Federal Government (18 U.S.C. § 205). You should pay particular attention to the proscriptions of 18 U.S.C. § 205, which preclude you, like all Federal employees, from representing [Contractor Employer Name] or any other third party to any Federal agency. This makes problematic the increasingly common practice of contractor personnel physically working in Government offices. Accordingly, military officers are precluded from interacting or appearing in the Federal workplace of any agency as a contractor. Being present in Government offices on behalf of a contractor is a representation, which is prohibited by 18 U.S.C. § 205. Of course, military officers on transition leave may begin work with the contractor, but only "behind the scenes" at a contractor office or otherwise away from the Government workplace. Another issue concerns the appropriate use of permissive temporary duty (PTDY). The purpose of PTDY is to facilitate transition into civilian life for house and job hunting for soldiers. Thus, it is impermissible to work while on PTDY.
Finally, after retirement, you will forfeit your retirement pay if you perform services for a foreign government and have not received prior permission from your Service Secretary and the Secretary of State to do so. Please note that this may include services to the foreign government pursuant to your work as an employee or consultant for a U.S. contractor. Foreign governments may also include educational and commercial entities that are substantially owned or controlled by the government. You must start the request for permission process with your servicing legal office.
Please contact me if circumstances change or there are changes in your work plans or assignment so that I may amend this advice, if necessary. Do not hesitate to contact me at any time with questions that may pertain to these post-employment restrictions. I may be reached at [e-Mail Address], and Official Telephone]. Thank you for your service to our nation.