Ethics NewsGram: U.S. Office of Government Ethics Publishes Final Post-Employment Regulation
July 9, 2008
Most of us employed here at the SEC will not end our careers as Commission employees. When we leave, we are subject to a number of restrictions on what we may do afterwards: the criminal conflict-of-interest statute regarding post-employment, 18 U.S.C. 207; the Commission's own Rule 8 of the Conduct Regulation, 17 C.F.R. 200.735-8; and, if we are lawyers, the rules of professional responsibility of the jurisdiction in which we are licensed. The Ethics Office has often provided interpretations of these restrictions, offered training and education on the topic, and has published an Ethics Bulletin that you can find on the Ethics Office website.
The Office of Government Ethics issues regulations interpreting the federal conflict-of-interest statutes. Because section 207 had been extensively revised effective January 1, 1991, however, for the past 17½ years the OGE regulations have applied only to former government employees who left federal service before December 31, 1990. The wait for new binding regulation in this area is now over. On June 25, 2008, OGE published a final rule interpreting and implementing the federal ethics law on post employment conflicts, 18 U.S.C. § 207. The rule provides comprehensive interpretive guidance concerning the current version of section 207 and will be codified at revised part 2641 of 5 C.F.R. See 73 Federal Register 36168 (June 25, 2008) (PDF - HTML). See also OGE DAEOgram DO-08-020 (June 25, 2008) (PDF - HTML - TXT).
The substantive core of the rule contains separate provisions explaining each restriction in the revised statute applicable to former employees of the executive branch. The most relevant provisions are noted below:
Section 2641.201 sets out the statutory elements of the lifetime ban on representation in connection with a particular matter involving specific parties in which a former employee participated personally and substantially, 18 U.S.C. § 207(a)(1). Note that this section provides guidance with respect to a number of elements, such as "intent to influence," that are common to several of the prohibitions, and subsequent sections within subpart B contain cross-references to the discussion of these common elements in section 2641.201.
Section 2641.202 sets out the statutory elements of the two-year ban on representation in connection with a particular matter involving specific parties which was pending under a former employee's official responsibility, 18 U.S.C. § 207(a)(2).
One-Year Cooling-Off Ban for Former Senior Employees
Section 2641.204 sets out the statutory elements of the one-year cooling-off restriction applicable to former senior employees, 18 U.S.C. § 207(c). Even though the statute and new regulations define senior employee based on how much money you make, the Commission sought and obtained exemptions from this section of the statute from OGE. To avoid undue hardship for many Commission employees who would have become subject to the one-year cooling-off ban due to pay parity, OGE exempted all SEC SK employees from the cooling-off ban, no matter how much they earn. So, if you are an SK employee, even if you make more than the statutory amount, you need not worry about this restriction if you leave the Commission. The Solicitor, the Chief Litigation Counsel, and the Deputy Chief Litigation Counsel are also exempted from the one-year cooling-off ban. These exemptions remain in effect and may be found in Appendix A to the part 2641 regulations.
Please call or e-mail Ethics if you have any questions. Our phone number is (202) 551-5170 (ask for the Officer of the Day). Our e-mail address is Ethics@sec.gov.