The Twilight Zone: Postgovernment Employment Restnetions Affecting Retired and Former Department of Defense Personnel

• Author: Major Kathryn Stone
• Pages: 02

1. Introduction

The internal effects of a mutable policy are . . calam- . . . It will be of little avail to the people that the laws are made by men of their own chose, if the law3 be so volurnmous that they cannot be read, or so incoherent that they cannot be understood; if they be . . . revised before they are promulgated, or undergo such mcessant changes that no man who knows what the law IS today can guess what it will be tamomow. . . . [Hlaw can that be a rule, which is little known and less flued?'

A United States Amy colonel visits an installation ethics counselorZ (counselor), wanting advice on the ethics laws that will affect

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hlm after he retires in a few months. The colonel informs the counselor that for the last two yean, he has not served as a contracting officer or representative thereof and did not, in his opinion, serve as a procurement official. The colonel intends to seek postgovernment employment with several defense contractors with whom he works as a liaison officer on valious Army contracts. On further questioning, the counselor discovers that the colonel routinely exercised decisionmaking authonty over two mejor defense systems, and remewed and approved the statements of work for several procurements. The colonel's colleagues advised him to speak with an ethics counselor before seeking postgovernment employment. What should the ethics counselor's advice be?

Ethics counselors encounter this type of scenario on a daily basis; it 1s particularly acute at contracting commands and installations, and at the Pentagon.3 Department of Defense (DOD) reguiatmns require DOD personnel to conmlt a DOD component legal counsel or, If appropriate, the DOD component's Desimated Agency Ethics Official (DAEO) "[ilf the propriety of a proposed action or decision ism question because it may be contrary to law or reguiati~n.''~

Executive Branch regulations encourage employees to seek the advice of their agency DAEOs when they have questions regard. ing standards of conduct 5

No easy answer exists to the question: "What should the ethics counselor's advice be?'' Department of Defense officials, especially miiitary officers, are subject to complex and canfusmg postgovernment employment restnctmns. Accordingly, postgovernment employment ethics counseling is fraught with danger. Same of the

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*Standardsot Conduct. 32 C FR B 40 4(aX31(19821 j 5 C FR. 8 2638 ;07(h) These regulations further prohlhif dlrclpilnary aetlon for vlolafrng these regulations agamst an employee who 'ha engaged Ln conduct /ngoodfarth rehance upntheadwce of anagencyeth'ca officlal 'Id Mthoughreliance on an elhlcs counselor'^ adwee wdU not protect a W D offlclal from proseeutlon for vlolaflng a cnmlnal statule, these regulallons plnf out that such rellance ' IS B fBCtUT that map be taken into account by the Department of Ju~Llee 'Id

postgovernment employment laws apply only to retired military offi-ceis;e othen apply to fmprocurement personnel;' and still others apply to former and retired officers and employees government-wide.*

If the foregoing paragraph is confusing, the reader is experiencing a normal reaction on entering the twilight zone nf postgovernment employment conflict of interest laws. The five redundant cnnfict of interest laws addressed in this article are obscure, confusing, overlapping, often unnecessary, and difficult to explain.

Although other ethics laws affect present and former DOD officials, they are beyond the scope of this artic1e.O Instead, this article will examine the five postgovernment employment laws and propose that Congress repeal four of them because they are no longer necessary to achieve the congressional goal of safeguarding the integity of the DOD procurement program. Section I1 of this article provides a brief overview of these five laws. Section Ill examines the history and government-wide application of 18 U.S.C. 207 (restnctions on former officers, employees, and elected officials of the executive and legislative branches), which sufficiently protects the DOD procurement program from postgovernment employment conflicts of interest. Section IV examines the Nstory of the remaining four post-government employment laws and argues for their repeal. Section V concludes the article.

11. Entering the Twiiight Zone: Postgovernment Employment Restrictions

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BFor the sake of eompletenes. in this area. ethics c~unielomshould be alert to these Pddlfional laws becaule many of them subject the violator to substantial penal-fie8 Theae ethics laws mclude' 18 US C 5 200 (recewmg compensatmn from a pn"ate M Y ~ C ~ for government work), 18 U S C. $5 203 and 205 (aetmg for an outside inferell m certain deahgs uith the government); 18 U S.C 8 285 (unauthodzzed u s of documents relatlng to cI-I from or by the g~vemmentl, 60 US C 5 783(unauthorked dlsclorure of elassifled lnfomafmnl. 18 US C 5 1906 (unauthomed disclosure of confidential information). and C.S. Consf. BR 1, 8 8 (unauthomd acceptance, by m y pemn holding any office of profit or trust in the federal govem-ment. of any presnl. emolument, office 01 title, from any king, prince, or foreignstate, includlng aU retired mlllfnry pe~nnell For an excceknl article on the duties of ethic8 counrelom and the dnngerr inherent ln counPellng prospectwe retirees, 8-Alan K Hahn, United States Y Hedger. pilrolln m Cmrnseling m t t w

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A. Purpose of the lMligkt Zone

Since the American Civil War, Congress has enacted several statutes that address conflicts of interest m federal agency pracurements. Some of these iaws imposed government-wide, postgovernment employment restrictions, while others imposed employment restrictions only on DOD personnel. In many cases these "DOD-unique" laws overlapped with restrictions imposed by the government-wide starutes.~~

Regardless of their applications, however, they shared the pulpose of protecting the integrity of the govern-ment's procurement process. Congress attempted to prohibit bidders and offerors for a federal agency procurement from garning unfair competitive advantages by using improper influence or unauthorized access to procurement-sensitive mformation.lz

Unfortunately, these individual iaws also have contributed a measure of uncertainty and compieuty to the postgovernment employment conflicts of interest iaws. This result LS not surprising. Congress did not adopt these ~tatutes as a package, but enacted them one at a tlme in response to existing evils that ais0 were important political ~ssues.13 The executive branch ethics program. and inparticular the DOD's ethics program. 1s "encumbered by a complex, multitieied system of statutory restrictions" that make effective ethics training and counseling difficult to provide.'4 With this foun-dation, let us briefly consider these statutory restrictions.

B. Oueruierof theFiveStatufes in the 'Ibilight Zone

1. Government-Wide Postgovernmnt Emploptent Restrie-tiom.-Title 18, United States Code, 5 207, applies to former or retired officers or employees of the executive or leadative branches It sets forth six substantive prohibitions restricting certain postgovernment empioyment activities of these individuals, with additional reStiictions an certain "senior-ievel" personnel. Only two

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of these substantive prohibitions, 5 207(a) and 5 207(c), are relevant to this discussion.

Subsection 207(a)(l) prohibits former officers and employees from communicating with, or appeanng before, Umted States employees on behaif of someone else, if they intend to influence those United States employees regarding a particular matter in which such former officers or employees participated personally and substantially while employed by...