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Please Note -- This packet was prepared with excerpts from various sources. Reference to any particular gender is intended to apply to both.
TITLE 18 UNITED STATES CODE SECTION 207
NONE OF THE PROVISIONS OF TITLE 18 U.S.C. 207 BAR ANY FEDERAL EMPLOYEE, REGARDLESS OF RANK OR POSITION, FROM ACCEPTING EMPLOYMENT WITH ANY PRIVATE OR PUBLIC SECTOR EMPLOYER. FORMER FEDERAL EMPLOYEES ARE SUBJECT TO A MINIMUM OF THREE OR A MAXIMUM OF SIX POST EMPLOYMENT PROHIBITIONS CONTAINED IN THIS SECTION OF THE UNITED STATES CODE.
Your rate of pay or your pay schedule at the time you leave federal service determines exactly which of these six provisions will apply to you. Specifically, when you terminate from Federal service under these laws:
If you are being paid at an annual rate which is less than the rate established for Level 5 of the Senior Executive Service (ES-5), currently $130,000, you will be subject to three prohibitions -- 18 U.S.C. 207(a)(1), (a)(2) and (b).
If you are in a position paid under the Executive Schedule (EL-II through EL-V) or if you are in a Senior Executive Service position paid at the ES-5 or ES-6 level, you will be subject to five prohibitions -- 18 U.S.C. 207(a)(1), (a)(2), (b), (c) and (f).
Finally, Executive Level I (EL-I, currently $166,700 per annum) employees who terminate from Federal service will be subject to all six post employment prohibitions -- 18 U.S.C. 207(a)(1), (a)(2), (b), (c), (d) and (f).
The six post employment prohibitions are explained on the following pages:
18 U.S.C. 207(a)(1). Lifetime ban on making a communication or appearance involving particular matters involving a specific party or parties.
Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency, or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when (1) the employee was personally and substantially involved in the matter as a Government employee and when (2) the United States is a party or has a direct and substantial interest in the matter. This restriction also applies to former special Government employees.
IMPORTANT DEFINITIONS
"Communication to or appearance before" means representational appearances and communications before a Federal Government department, agency or court, made in an attempt to influence the federal Government concerning a particular matter in which the former employee was personally and substantially involved.
"Particular matter involving specific parties" means a proceeding affecting the rights of the parties or an isolatable transaction or related set of transactions between identifiable parties, and the United States must be a party to OR have a direct and substantial interest in the matter.
Note: The term "particular matter involving specific parties" includes any investigation, application, request for a ruling or determination, rulemaking that applies to specific parties, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding. It does not include general rulemaking, general legislation or general policy issues.
"Personal and substantial participation" means direct participation as a Government employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise. It includes the participation of a subordinate when that subordinate was actually directed by the former employee in the matter. The participation must be of significance to the matter or form a basis for a reasonable appearance of such significance. Involvement on a peripheral issue may not be enough. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort.
Example 1.
A Program Analyst in the Fish and Wildlife Service works on a lawsuit involving Q Company. After leaving Federal service, the former employee accepts a job with a consulting firm that has Q Company as a client. She is asked by the consulting firm to represent it before the Environmental Protection Agency in connection with that same lawsuit.
Example 2.
A Government employee, who participated in recommending specifications for a contract awarded to Q Company for the design of certain ground water testing programs, joins Q Company and does work under the contract. He is asked to accompany a company vice-president to a meeting to state the results of a series of trial tests, and does so. No violation occurs when he provides the information to his former agency. During the meeting a dispute arises as to some terms of the contract, and he is called upon to support Q Company's position.
Prohibits all former Government employees from knowingly making, with the intent to influence, any communication to or appearance before an employee of any department, agency or court of the United States on behalf of any other person (except the United States) in connection with a particular matter involving a specific party or parties when the employee knows or reasonably should know that the matter was actually pending under his or her official responsibility during their last year of Government service.
IMPORTANT DEFINITIONS:
"Communication to or appearance before" - is defined the same way as for 18 U.S.C. 207(a)(1).
"Particular matter involving specific parties" - is defined the same way as for 18 U.S.C. 207(a)(1)
"Official Responsibility" - means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action. Official responsibility is usually defined by statute, regulations, written delegation of authority or job description. AN EMPLOYEE'S RECUSAL FROM OR OTHER NON-PARTICIPATION IN A MATTER DOES NOT REMOVE IT FROM HIS OR HER OFFICIAL RESPONSIBILITY.
"Actually pending" - means the matter was in fact referred to or under consideration by persons within the employee's area of responsibility.
"Last Year of Service" - means this two-year prohibition only applies to matters that were under one's official responsibility during the former employee's last year of service.
Example 1.
During his tenure as Division head, an officer's subordinates undertook major changes in agency general enforcement standards. Eighteen months after terminating Government employment, he is asked to represent Z Company which believes it is being unfairly treated under the enforcement program. The Z Company matter first arose on a complaint filed after the Division head terminated his employment.
Example 2.
Within two years after terminating, a bureau's former Budget Officer is asked to represent Q Company in a dispute arising under a contract which was in effect during the officer's last year in office. The dispute concerns an accounting formula under the contract, a matter which a subordinate of the former officer was consulted.
For one year after Government service terminates, no former employee may knowingly REPRESENT, AID OR ADVISE, on the basis of covered information, any other person (except the United States) concerning any ongoing trade or treaty negotiation in which, during his/her last year of Government service, he/she participated personally and substantially as an employee.
Note: Unlike the lifetime and two-year bans, this restriction prohibits behind the scenes AID OR ADVICE to anyone other than the United States in connection with the particular trade or treaty negotiation.
IMPORTANT DEFINITIONS:
"Trade negotiation" - means negotiations which the President determines to undertake to enter into a trade agreement pursuant to section 1102 of the Omnibus Trade and Competitiveness Act of 1988, and does not include any action taken before that determination is made. A trade negotiation commences to be "ongoing" when, at least 90 days before entering into a trade agreement, the President notifies both the House of Representatives and the Senate of his intention to enter into an agreement.
"Treaty" - means an international agreement made by the President that requires the advice and consent of the Senate. A treaty negotiation commences to be "ongoing" at the point when both (1) the determination has been made by a competent authority that the outcome of a negotiation will be a treaty, and (2) discussions with a foreign government have begun on a text.
"Covered Information" - means agency records which were accessible to the employee, which he or she knew or should have known were designated as exempt from disclosure under the Freedom of Information Act and which concern a negotiation in which the employee participated personally and substantially during his or her last year of Government service.
EXAMPLE: A former employee attends a hearing on a treaty in which she had participated while in her last year of Government service. She speaks with the representative of a private party during the hearing. If, during that conversation, the former employee lends assistance to the representative, a violation occurs.
(Senior Employee means all positions paid under the Executive Level (EL) pay scale and all Senior Executive Service Employees paid at the ES-5 or ES-6 pay level.
For one year after service in a "senior" position terminates, no former "senior" employee may knowingly make, with the intent to influence, any communication to or appearance before an employee of a department or agency in which he/she served in any capacity during the one-year period prior to termination from "senior" service, if the communication or appearance is made on behalf of any other person (except the United States), in connection with any matter concerning which he/she seeks official action by the employee.
IMPORTANT FACTORS:
1. Unlike the lifetime, two-year and other one-year bans, this one-year "cooling off" ban does not require that the former employee have ever been in any way involved in the matter that is the subject of the communication or appearance.
2. This ban only prohibits communications to or appearances before employees of any department or agency in which he or she formerly served in any capacity during the one-year period prior to his or her termination from senior service.
3. For most former Department of the Interior employees, the term "agency" is defined to mean each individual bureau or office within the Department. For example, The one-year restriction under 18 U.S.C. 207(c) prohibits a former National Park Service senior employee from communications to or appearances only before the National Park Service; it does not prohibit the former senior employee from contacting any other bureau or component of the Department of the Interior, such as the U.S. Geological Survey or the Office of the Secretary.
4. Former senior employees of the Office of the Secretary, Solicitor or Inspector General may not communicate or appear before any of those three offices but may appear before any other bureau or component of the Department of the Interior.
5. All designated components (bureaus) under the jurisdiction of a particular Assistant Secretary shall be considered a single component for purposes of determining the scope of 18 U.S.C. 207(c) as applied to senior employees serving on the immediate staff of that Assistant Secretary.
6. Individuals who have served as Secretary, Deputy Secretary, Solicitor, Inspector General, or as any of the six Assistant Secretaries, do not benefit from the special definition of "agency." These individuals are prohibited from communicating or appearing before any bureau or component of the Department of the Interior.
7. The matters covered by this ban are broader; they needn't involve specific parties, so the former employee could not, for example, attempt to influence general rulemaking, general policy issues orgeneral legislation.
Example 1.
A Senior Employee of the Bureau of Reclamation leaves Government employment for private practice and shortly thereafter telephones a former associate urging that the Bureau (a) adopt a new procedure to put a ceiling on costs of grants; (b) not adopt a particular rule proposed for drug testing of Federal employees; (c) oppose a bill pending in Congress relating to Bureau of Reclamation programs.
Example 2.
Eight months after he leaves, a former Senior Employee of the National Park Service is asked by his employer Z Company to represent them in a new matter pending before the Park Service. The former employee had no prior involvement in the matter and the matter was not previously pending before the Park Service when the employee worked there.
Example 3.
Eight months after he leaves, a former Senior Employee of the Office of the Assistant Secretary for Fish and Wildlife and Parks is asked by his employer Z Company to represent them on separate matters pending before the Fish and Wildlife Service and the Bureau of Land Management.
18 U.S.C. 207(f). One-year restriction relating to Foreign Entities. Prohibits former senior and very senior employees from knowingly, aiding, advising or representing a foreign entity, with the intent to influence the official actions of any employee of any U.S. agency or department.
IMPORTANT DEFINITION:
"Foreign Entity" - means a foreign government or political party as those two terms are defined in the Foreign Agents Registration Act.
Please note, this is another prohibition that not only prohibits direct representational activity by the former senior employee, but also prohibits aiding or advising others in their representation before federal entities.
ADDITIONAL RESTRICTION THAT APPLIES TO FORMER "VERY SENIOR EMPLOYEES" Very Senior Employee means Executive Level I employees (EL-I - currently $148,400 per annum)
18 U.S.C. 207(d). One-year restriction on communications with one's former agency and with any individual in an Executive Level position.
Prohibits former Executive Level I employees (the Secretary) and certain other very senior employees in the Executive Office of the President from knowingly making, with the intent to influence, any communication to or appearance before:
(1) Any individual appointed to an Executive Schedule position or,
(2) Any employee of a department or agency in which the former very senior employee served during the one-year period prior to termination from Government service.
The type of communication or appearance prohibited is one made on behalf of any other person (except the United States), in connection with any matter concerning which the former very senior employee seeks individual action by the individual or employee contacted.
1. For the One-Year Prohibitions of 18 U.S.C. 207 (c), (d) and (f): The one-year period is measured from the date when an employee ceases to be a senior or very senior employee, not from the termination of Government service, unless the two occur simultaneously.
2. An exception is provided to all of the post-employment statutes when the post-employment activities are performed:
(a) in carrying out official duties on behalf of the United States or,
(b) in carrying out official duties as an elected official of a state or local Government.
3. Exceptions are provided to former senior or very senior employees for the one-year bans of 18 U.S.C. 207 (c) and (d) when the communication or appearance is made in carrying out official duties as an employee of and is made on behalf of:
(a) an agency or instrumentality of a State or local Government,
(b) an accredited degree-granting institution of higher education as defined in section 1201(a) of the Higher Education Act of 1965,
(c) a hospital or medical research organization exempted and defined under section 501 (c) (3) of the Internal Revenue Code of 1986, or
(d) a candidate for Federal or State office or an authorized committee, a national committee, a national Federal campaign committee, a State committee, or a political party. For this last exception [Exception (d)] to apply, the former employee may not be employed by anyone other than a candidate, one of the specified political organizations, or a person or entity who represents or advises only such candidates or political organizations.
4. An exception is provided to all of the prohibitions of 18 U.S.C. 207 for former employees employed by a recognized Indian tribe when communicating for the tribe. In order for this exception to apply, the former employee must advise in writing, the head of the department, agency, court, or commission with which he or she is dealing or appearing on behalf of the tribe of any personal and substantial involvement he or she may have had as an officer or employee of the United States in connection with the matter involved (See 25 U.S.C. 450i(j) ).
5. None of the restrictions apply to communications made solely for the purpose of furnishing scientific or technological information pursuant to agency procedures. The Governmentwide regulations treat this area realistically, providing for exchanges to determine the nature of technical problems facing the Government, to provide information to solve the problem, and to inform the Government of the practical significance of scientific and technological alternatives.
6. Contacts with and appearances before Congress are exempted from all of the post-employment requirements.
7. The exemption for elected officials or employees of a state or local government, does not extend to the lifetime and two-year bans unless the person is in a position whose powers and authorities are established by the constitution of any state of the United States.
Example:
A former Senior Employee of the Department of the Interior is appointed to the position of Secretary of Natural Resources for the State of Kansas. He would not be prohibited from transacting business with his former agency concerning new matters on behalf of the State. He would, however, be restricted as to 207(a) matters unless the authorities of his position were expressly stated in the constitution of the State of Kansas.
(a) Whoever engages in conduct constituting an offense of 18 U.S.C. 207 shall be imprisoned for not more than one year or fined an amount not to exceed $50,000, or both.
(b) Whoever WILLFULLY engages in conduct constituting an offense of 18 U.S.C. 207 shall be imprisoned for not more than five years or fined an amount not to exceed $50,000 or both.
(c) The Attorney General may bring a civil action in the appropriate U.S. District Court against any person who engages in conduct constituting an offense under Section 207 of Title 18 and, upon proof of such conduct by a preponderance of the evidence, such person shall be subject to a civil penalty of not more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. The imposition of such a civil penalty does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available to the U.S. or any other person.
(d) If the Attorney General has reason to believe that a person is engaging in conduct constituting an offense under 18 U.S.C. 207, the Attorney General may petition an appropriate U.S. district court for an order prohibiting that person from engaging in such conduct. The filing of such a petition does not preclude any other criminal or civil statutory, common law or administrative remedy, which is available to the U.S. or any other person.
THIS DOCUMENT PROVIDES ONLY A SUMMARY OF THE POST-EMPLOYMENT PROHIBITIONS OF 18 U.S.C. 207. IF YOU HAVE ANY QUESTIONS REGARDING ANY OF THESE RESTRICTIONS, YOU SHOULD SEEK THE ADVICE OF YOUR SERVICING ETHICS COUNSELOR , THE SOLICITOR'S OFFICE OR:
Ms. Shayla Freeman Simmons
Designated Agency Ethics Official
and Director, Department Ethics Office
Room 5013, Main Interior
(202) 208-7950
Mr. Arthur Gary
Alternate Agency Ethics Official and
Deputy Director, Department Ethics Office
Room 5013, Main Interior
(202) 208-7960
Mr. Mason Tsai
Senior Ethics Policy Official
Department Ethics Office
Room 5013, Main Interior
(202) 208-5916
Mr. Arthur Bennett
Ethics Training Coordinator
Department Ethics Office
Room 5013, Main Interior
(202) 208-3387
Mr. Timothy S. Elliott
Deputy Associate Solicitor
Division of General Law
Office of the Solicitor
Room 6414, Main Interior
(202) 208-4722
Mr. Robert Moll
Assistant Solicitor
Division of General Law
Office of the Solicitor
Room 6414, Main Interior
(202) 208-5216