December 28, 2000
                                   DO-00-048


MEMORANDUM

TO:       Designated Agency Ethics Officials

FROM:     Amy L. Comstock
          Director
                    
SUBJECT:  Presidential Transition


     Designated Agency Ethics Officials have an important role to
play during the transition to the new Presidential Administration. 
They review financial disclosure reports of prospective
Presidential nominees and prepare ethics briefings and training
materials for incoming senior officials.  In addition, ethics
officials may find themselves confronting questions concerning the
activities of members of the President-elect's Transition Team.  

     The answers to some of these questions will depend upon the
circumstances and employment status of individual members of the
President-elect's Transition Team.  The President-elect's Transi-

tion Team includes people from a variety of backgrounds, such as
campaign staff, unpaid volunteers, experts from previous
administrations, and the private sector.  Most of these people are
not current Federal employees, although some may have prior
executive branch experience.  It is critical to know whether an
individual member of the President-elect's Transition Team is a
current or former Federal employee whenever a question arises
concerning a particular activity. 

     The purpose of this memorandum is to provide guidance on these
and other relevant transition issues.


Standards of Conduct and Disclosure Requirements Applicable to
Transition Team Members

     The President-elect's Transition Team is not a Federal agency,
and, except for limited purposes not relevant here, its members do
not become Federal employees by virtue of their service on it. 
Accordingly, members of the President-elect's Transition Team who
are not otherwise executive branch employees are not subject to the
ethics laws and regulations applicable to members of the President-
elect's Transition Team who are executive branch employees.

     Following the practice of recent transitions, the President-
elect's Transition Team has adopted its own code of ethical conduct
to which its members must agree to abide as a condition of service. 
A copy of the "Transition Code of Ethical Conduct" is attached. 
Note that while it resembles the Standards of Ethical Conduct for
Employees of the Executive Branch, it is not enforceable through
agency processes.  Also attached are a copy of the Memorandum of
Understanding (MOU) entered into between the current Administration
and the Chairman of the President-elect's Transition Team, and a
copy of a policy statement accompanying the MOU regarding the
identification of individuals charged with transition responsibil-
ities and the disclosure of information to transition personnel.

     Members of the President-elect's Transition Team do not file
the public or confidential financial disclosure reports required of
executive branch employees.  However, they are subject to reporting
requirements under the Presidential Transition Act.  Section 5(b)
of the Act, as amended by the Presidential Transitions
Effectiveness Act, provides that the names and most recent
employment of the personnel of a department or agency's transition
team, as well as information regarding the sources of funding that
support the transition activities of each member of that team,
shall be made public before the initial contact by the department
or agency transition team.  This applies whether the team member is
full or part-time, a Federal or non-Federal employee, or a
volunteer.  This information must be updated as necessary. 
Pursuant to the above-referenced MOU, the Office of the President-
elect is designating department and agency transition team chiefs
and members, and providing the information required to be made
public about those individuals, in letters to the current
Administration.  The current Administration, in turn, through the
Office of the Chief of Staff to the President (which is serving as
the Office of the President's Transition Team), is providing to
each department's and agency's designated transition point of
contact updated copies of the official register of individuals on
the President-elect's Transition Team authorized to work with that
department or agency.


Transition Team Members Who Are Former Government Employees

     For members of the President-elect's Transition Team who are
former executive branch employees, consideration must be given to
potential post-employment issues.  For example, a question may
arise regarding the applicability of the one-year no-contact bar
under 18 U.S.C. § 207(c) where a former senior official who, within
one year after having resigned his or her position with the agency,
becomes a member of the President-elect's Transition Team and is
assigned to work on transition matters involving their former
agency.  For very senior employees subject to the one-year bar
under 18 U.S.C. § 207(d), the scope of the restriction could
potentially apply to contacts across the executive branch.

     Section 207(j)(7) provides an exception to the one-year no-
contact ban where the "communication or appearance is made solely
on behalf of a candidate in his or her capacity as a candidate
. . . ."  In a recent opinion, the Office of Legal Counsel (OLC) at
the Department of Justice determined that a candidate for President
of the United States remains a candidate, for purposes of 18 U.S.C.
§ 207, until he or she assumes that office.  Consequently, notwith-
standing the post-employment restrictions at 18 U.S.C. §§ 207(c)
and (d), a member of the President-elect's Transition Team who
otherwise meets the conditions of the section 207(j)(7) exception
may continue to communicate on behalf of the President-elect until
he assumes office.  This OLC opinion, as well as the relevant
DAEOgram dated November 17, 2000, are available on the Office of
Government Ethics (OGE) Website at www.usoge.gov. 


Transition Team Members Who Are Current Government Employees

     Questions may also arise with regard to the assignments of
current Federal employees who are detailed to the President-elect's
Transition Team.  Consistent with its prior holding in 4 Op. O.L.C.
498 (1980) and with advice OLC provided to this Office in 1988, it
is OLC's view that agency contacts made by current Federal
employees who are detailed to the President-elect's Transition Team
do not violate 18 U.S.C. §§ 203 and 205.


Processing Nominee Reports During the Transition

     Under an arrangement with the Transition Clearance Counsel,
draft financial disclosure reports for potential nominees will come
to the Office of Government Ethics (OGE) which, in turn, will
forward them to the appropriate Designated Agency Ethics Official
(DAEO).  It is our plan that nominee forms will be reviewed by OGE
and the agency concurrently.  An OGE reviewer will contact you as
soon as we receive a form for your agency.

     In a separate DAEOgram we hope to provide you with the names
and telephone numbers of persons to whom you may address questions
concerning interpretations of the Transition Code of Ethical
Conduct, and questions concerning the clearance of nominee
financial disclosure reports.  In the meantime, please do not
hesitate to contact OGE with any questions you may have about the
information in this DAEOgram.

Attachments