Post-Government Service Employment Restrictions

Margaret (Peggy) B. BainesAssociate Deputy General Counsel, Army Office of General Counsel

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Road Map

• Seeking Employment

• Post Federal Employment Restrictions

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Seeking Employment

• Your Best Friend

• Conflicts of Interest

• Gifts from Prospective Employers

• Working on Terminal Leave

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Seeking Employment – Your Best Friend• Information Papers! SOCO website, Army Office of Government

Ethics Milsuite website . . .

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Seeking Employment

• Conflicts of Interest

• Federal employees seeking non-federal employment may trigger the provisions of 18 USC §208, the criminal conflict of interest statute.

• It’s important to know when the employee is triggering this statute during the search for non-federal employment, and then, what the employee is supposed to do about this potential conflict of interest.

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Conflicts of Interest 18 U.S.C. §208, 5 C.F.R. §2635.402

• “an officer or employee of the executive branch of the United States Government, . . . including a special Government employee,

• [who] participates personally and substantially as a Government officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, in a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter

• in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer, director, trustee, general partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest—Shall be subject to the penalties set forth in section 216 of this title.”

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Conflicts of Interest 18 U.S.C. §208, 5 C.F.R. §2635.402

• In short – An employee should not take any official action that affects a company with which he or she is negotiating for employment or have an arrangement concerning prospective employment, without first consulting with an ethics counselor.

• JER 5-301 applies 18 USC 208 to Title 32 National Guard members and enlisted personnel

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Seeking Employment5 C.F.R.2635.603(b)

•You are “seeking employment” when you:

• Are engaged in negotiations for employment (“negotiations” defined as a “discussion or communication with another person, or such person’s agent or intermediary, mutually conducted with a view toward reaching an agreement regarding possible employment with that person.”)

• make an unsolicited employment contact (includes sending resume, excludes requesting job application) OR

• respond to unsolicited proposal (except unconditional rejection)

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Seeking Employment Examples5 C.F.R. 2635.603 (ten examples)

• Not seeking: • posting resume on line• stating “I am not talking to anyone about employment until I leave the

Government”

• Seeking• Deferring job discussion until the project is finished• When you learn the headhunter gave your resume to two companies and you

don’t reject one of the company’s overtures

• Beware of the “Informational Interview”!

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Termination of Seeking Employment

• You are no longer “seeking employment” when:

• either party rejects proposal and discussions have terminated, or• two months have passed after mailing resume and no response

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So you are “seeking employment.” How do you avoid a criminal conflict of interest? JER 2-204, 5 C.F.R. §2635.604 & 607, and STOCK Act

Take no official action involving the prospective employer without first consulting with the ethics counselor!

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So you are “seeking employment.” How do you avoid a criminal conflict of interest? JER 2-204, 5 C.F.R. §2635.604 & 607, and STOCK Act

• Public financial disclosure report filers who are negotiating for or have an agreement of future NFE employment must file a statement notifying an agency ethics official of such within three business days after the commencement of this negotiation or agreement (STOCK Act).

• “Negotiations” defined as a “discussion or communication with another person, or such person’s agent or intermediary, mutually conducted with a view toward reaching an agreement regarding possible employment with that person.”

• Templates available (SOCO website, Army OGC Ethics Milsuite site)

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So you are “seeking employment.” How do you avoid a criminal conflict of interest? JER 2-204, 5 C.F.R. §2635.604 & 607, and STOCK Act

• Best Practice - Public financial disclosure filers should file a written disqualification statement before negotiations begin (for example, after dropping a resume) which eliminates the need to file another notice once negotiations begin, especially if the prospective employer regularly interacts with or is interacting with the filer’s agency.

• Supervisor can decline to permit employee to disqualify (another best practice – check with supervisor BEFORE seeking employment with the NFE).

• Disqualification templates available – see SOCO website, Army OGC Ethics Milsuite site.

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So you are “seeking employment.” How do you avoid a criminal conflict of interest? JER 2-204, 5 C.F.R. §2635.604 & 607, and STOCK Act

• Best business practice - any Federal employee should disqualify in writing if the prospective employer regularly interacts with the employee’s agency.

• Copy to supervisor, relevant subordinates, ethics counselor

• No written disqualification necessary if the agency does not regularly interact with the prospective employer, but employees should recuse themselves should they later be asked to participate personally and substantially in a particular matter involving the prospective employer.

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So you are “seeking employment.” How do you avoid a criminal conflict of interest?

JER 2-204, 5 C.F.R. §2635.604

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So you are “seeking employment.” How do you avoid a criminal conflict of

interest?• Oracle American, Inc., Plaintiff v. The United States,

Defendant, and Amazon Web Services, Inc., Intervenor, Court of Federal Claims, July 26, 2019: Judge Eric G. Briggink.

• Oracle’s objection to the DoD Joint Enterprise Defense Infrastructure Cloud procurement choice of AWS

• Contracting Officer’s “Determinations Regarding Conflicts of Interest”

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So you are “seeking employment.” How do you avoid a criminal conflict of

interest?• Oracle American, Inc., Plaintiff v. The United States, Defendant, and

Amazon Web Services, Inc., Intervenor. • The contracting officer found that two DoD officials

negotiated for AWS employment while working on this procurement.

• “While there is nothing per se illegal about capitalizing on relevant experience in moving to the private sector, the larger impression left is of a constant gravitational pull on agency employees by technology behemoths. The dynamic apparently is real enough that one would hope the agency would be more alert to the possibilities of an erosion of public confidence, particularly given the risk to the agency in having to redo a procurement of this size. “ 19

Former Procurement Integrity Act

• Special reporting rules for procurement officials/contacts with bidders/offerors in procurements ≥$250K

• Reject the offer• Submit written “contact report”• Disqualify in writing and do no further work on the task until agency

authorizes

• Pre-award disclosure of procurement information prohibited (present and former officials)

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Gifts From Prospective Employers5 C.F.R. §2635.204(e)(3)

• May accept meals, lodging, transportation, etc. if customarily offered• Disqualify in writing if “prospective employer has interests that could

be affected by performance or nonperformance of the employee’s duties”

• Report as a gift on next financial disclosure report if total gifts from one company exceed $415 excluding any individual gifts less than $166 in value.

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Working During Terminal Leave• For Military - Is it terminal leave or transition leave (DoDI 1327.06,

Subject: Leave and Liberty Policy and Procedures, June 16, 2009)?

• Transition Leave - Participation in pre-separation job search and house hunting activities that facilitate relocation or transition of the Service member to civilian life is authorized under this paragraph for service members being involuntarily separated under honorable conditions or retiring from active duty. NOT for WORKING!

• Terminal Leave – absence at time of retirement, separation, or release from active duty without returning to separation site provided conditions met.

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Working During Terminal Leave18 U.S.C. § 203/205

• Employees may work while on terminal leave PROVIDED:

• They not represent anyone before the Federal Government, with or without compensation, on a matter in which the United States is a party or has a substantial interest.

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Working During Terminal Leave18 U.S.C. § 203/205

• Employees may work while on terminal leave PROVIDED:• They not represent anyone before the Federal Government, with or without compensation, on a matter in which the United States is

a party or has a substantial interest.

• This means they may not interact or appear on behalf of the non-federal-entity employer before Federal employees – whether or not in a Federal workplace.

• Being present in Government offices on behalf of a contractor inherently is a representation. Working for a defense contractor is permissible only "behind the scenes" at a contractor office or otherwise away from the Federal workplace.

• They may not receive compensation for the representation of anyone before an agency or court of the Federal Government on a matter in which the United States is a party or has a substantial interest; this prohibition applies whether the employee provides representation him/herself or shares in the compensation from someone else's representation.

• Not applicable to enlisted members.

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Working During Terminal Leave

•Employees may work while on terminal leave PROVIDED:

•OGE 278e Financial disclosure form filers obtain agency designee approval if employer is/will be prohibited source (JER 2-206).

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Working During Terminal Leave10 U.S.C 973

• Employees may work while on terminal leave PROVIDED:

• Regular active duty officers (and certain reserve officers) not hold or exercise the functions of:

• a Federal elective office, or a Presidentially appointed/Senate approved position, or certain SES positions (includes cabinet heads, sub-cabinet members, agency top staff and commission members) or

• a state elected or appointed office• Exercise Sovereign Power - USA/DA/City Attorney; AUSA/ADA

• Penalty – forfeiture of commission/military pay during terminal leave (10 U.S.C. §973, 56 Comp Gen 855)

• If not serving in a “civil office,” military may receive pay for Federal position and military pay and allowances during terminal leave (5 U.S.C. 5534a).

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Post Federal Employment Restrictions• 6 month cooling off period• FY 2009 NDAA Section 847• Representational Restrictions

• Lifetime ban• –2-year ban• –1-year cooling-off period for senior employees• Section 1045• –1-year ban on treaty negotiations• –1-year ban on senior employees representing foreign entities

• Procurement Integrity Act• Ethics Pledge• Foreign Government Employment – Emoluments Clause

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Keeping Track of Post-Government Employment Restrictions

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6-month cooling-off periodbefore working in DoD

2020 • No civilian employment within DoD for 6 months (5

U.S.C. 3326)• Applies to all retired military members• Waivers available from Secretary of hiring

component • Emergency exception no longer available

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Helpful Hints• DD 2945 – Your Best Friend

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Helpful Hints• Templates –

• on the SOCO website -

• Army – with class materials and on the Army OGC Ethics Milsuitesite.

https://dodsoco.ogc.osd.mil/ETHICS-TOPICS/Post-Government-Employment-and-Procurement-Integrity/Toolbox-PGE-and-PI/

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Helpful Hints

• Make PGE a priority!

• Best Business Practice – Tailored Opinion vice General Opinion

• “Self-Certification Letter”

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PGE Advice Threshold Issue

• Is the individual seeking PGE advice a covered official under FY 2008 National Defense Authorization Act (NDAA) Section 847?

• Why? Because this public law affects HOW the current or former government employee asks for PGE.

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FY 2008 NDAA Section 847P.L. 110-181, section 847

• Congress sought to create a database of PGE opinions for:• SES, General, and Flag Officers paid at 0-7 or above; • Procurement Officials set forth in 41 U.S.C. 423 which is now 41

U.S.C. 2101-2107; • and those officials in an Executive Schedule position under

subchapter II of Chapter 53, Title 5, United States Code (political appointees),

• who, within two years of departing DoD, expect to receive compensation from a defense contractor under certain circumstances.

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FY 2008 NDAA Section 847P.L. 110-181, section 847

• These officials must request a written opinion from a DoD ethics official before accepting any compensation from a DoD contractor (defined as an entity listed on the current FY “DoD Vendors with Awards of $25,000 or more” SOCO website), if they participated personally and substantially in an acquisition in excess of $10,000,000 within two years of departure from DoD while serving in the positions previously described.

• Centralized Database is AGEAR (After Government Employment Advisory Repository)

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FY 2008 NDAA Section 847• Public Law provides that requestor may accept compensation from

defense contractor if an ethics counselor does not provide an opinion within 30 days of request. 30 day timeline is tolled for waiting for additional information from requestor.

• Use “Request More Information” AGEAR tab to explain delays

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FY 2008 NDAA Section 847P.L. 110-181, section 847

• Congress sought to create a database of PGE opinions for:• SES, General, and Flag Officers paid at 0-7 or above; • Procurement Officials set forth in 41 U.S.C. 423 which is now 41 U.S.C. 2101-2107; • and those officials in an Executive Schedule position under subchapter II of Chapter 53, Title

5, United States Code (political appointees),

• Who are “Procurement Officials set forth in 41 U.S.C. 423 which is now 41 U.S.C. 2101-2107”?

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FY 2008 NDAA Section 847P.L. 110-181, section 847

• Procurement Officials originally set forth in 41 U.S.C. 423 (which is now 41 U.S.C. 2101-2107);

• Served as a • program manager, • deputy 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

• for a contract in an amount in excess of $10,000,000.

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FY 2008 NDAA Section 847P.L. 110-181, section 847

• How do we define “program manager”?

• Interpret liberally - If the individual took any substantial action on a contract in excess of $10,000,000 within two years of departing DoD, assume the individual is covered under section 847.

• “Designated individual with responsibility for and authority to accomplish program objectives for development, production, and sustainment to meet the user's operational needs. The PM shall be accountable for credible cost, schedule, and performance reporting to the Milestone Decision Authority (MDA).” Defense Acquisition University Glossary, https://www.dau.edu.glossary

• “Milestone Decision Authority” – “Designated individual with overall responsibility for a program. The MDA will have the authority to approve entry of an acquisition program into the next phase of the acquisition process and shall be accountable for cost, schedule, and performance reporting to higher authority, including Congressional reporting.” id.

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FY 2008 NDAA Section 847

•The AGEAR “Business Rules” require that Army ethics counselors use the template provided for opinion (SOCO template).

•Opinions retained for 6 years.•DoDIG conducts periodic reviews to ensure opinions are provided and retained

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Representational Restrictions18 U.S.C. §207

• Designed to curb “switching sides”•DOES NOT prohibit acceptance of employment•MAY restrict scope of former employee’s activities

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Representational Restrictions18 U.S.C. §207; 5 C.F.R. 2641

• Prohibits representing another before U.S. Government with intent to influence

• Lifetime ban• 2-year ban• 1-year cooling-off period for senior employees• 1-year ban on treaty negotiations• 1-year ban on senior employees representing foreign

entities

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18 U.S.C. §207(a)(1)

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not:

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another • With “intent to influence”

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another • With “intent to influence”• Regarding a “particular matter”

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another • With “intent to influence”• Regarding a “particular matter”• Involving specific parties

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another • With “intent to influence”• Regarding a “particular matter”• Involving specific parties• Where the employee participated “personally and

substantially” in a Federal capacity

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Lifetime Ban 18 U.S.C. §207(a)(1)

• All employees may not: • Communicate/appear on behalf of another • With “intent to influence”• Regarding a “particular matter”• Involving specific parties• Where the employee participated “personally and

substantially” in a Federal capacity• Behind-the-scenes assistance permitted

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“Communicate/appear on behalf of another:” Communication or Appearance

5 C.F.R. 2641.201(d)

• Communication–any oral, written, or electronic communication that former employee intends to be attributed to him/herself

•No requirement that former employee be recognized by current employee

•Appearance–Physically present or Virtually present•Behind the scenes assistance–permitted but be careful of 3rd

party intermediary communications

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With “Intent to Influence” 5 C.F.R. 2641.201(e)

• “Intent to Influence” exists when communication is made for the purpose of seeking a government ruling, benefit, approval, or other discretionary action or affecting government action in a matter involving a dispute or controversy

• No “intent to influence” when communication made for the purpose of making routine requests not involving a potential controversy, factual statements not involving element of dispute or effort to seek discretionary act of government, and social contacts

• Mere physical presence–relevant factors to consider set forth in 5 C.F.R. 2641.201e(4)

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Particular matter involving specific parties

• Particular matter –includes a judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, or investigation. Generally, does not include rulemaking, formulation of general policy, standards or objectives, or other matters of general application.

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Particular matter involving specific parties

• Would not include matters of general applicability (legislation or rulemaking)

• International agreements –maybe depending on focus (e.g. specific claim)

• Must be specific parties at all relevant times (both when participating as a government employee and making the post-employment communication or appearance)

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Same Particular Matter Involving Specific Parties5 C.F.R. §2641.201(h)(5)

• Contracts, grants, or agreements• Generally new particular matter does not arise simply because of a

contract modification• Generally successive or otherwise separate contracts are new

particular matters• Generally, a contract is a single particular matter• Individual delivery order or task order could be a separate particular

matter in some cases

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Before an Employee of the US5 C.F.R. §2641.201(f)

• Includes any current Federal employee• “Public Commentary” circumstances:

• Address at a public gathering, conference, seminar, or other similar forum as a speaker or panelist is not a prohibited communication if forum is not Government sponsored or co-sponsored

• Attended by a large number of people

• Significant portion of attendees are not US employees

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On Behalf of Another Person5 C.F.R. §2641.201(g)

• “Person” broadly defined. It includes an individual, corporation, company, association, firm, partnership, society, joint stock company or any other organization, institution, or entity.

•It does not include the former employee himself or any sole proprietorship owned by the former employee

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Personal and Substantial

• Participate personally and substantially–to participate directly and significantly by decision, approval, recommendation, rendering of advice or investigation. Includes actions of a subordinate if actually directed by the former employee.

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Representational Restrictions2-Year Ban - 18 U.S.C. §207(a)(2)

• May not, within 2 years of termination of Government service, communicate/appear on behalf of another

• With “intent to influence”• Regarding a “particular matter”• Involving specific parties• Under “official responsibility” during last year of Government

service

•Behind-the-scenes assistance permitted

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Representational Restrictions

• Official responsibility –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.

• “Acting” –official responsibility may be affected• Leave status –official responsibility is not affected by annual,

sick, or terminal leave, excused absence or leave without pay.• Disqualification –official responsibility is not affected

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Representational Restrictions1-Year Cooling-Off Period - 18 U.S.C. §207(c)

• Applies to former senior employees (personnel whose basic pay exceeded 86.5 percent of the rate for level II of the Executive Schedule (EL II))

–Prohibits communication or appearance before former agency, on behalf of another with intent to influence, on any matter where official action is sought

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DoD 10 Separate Components for Purposes of 18 U.S.C. section 207

• Defense Information Systems Agency• Defense Intelligence Agency• Defense Logistics Agency• Defense Threat Reduction Agency• Department of the Air Force• Department of the Army• Department of the Navy• National Geospatial-Intelligence Agency• National Reconnaissance Office• National Security Agency

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Section 1045 of the National Defense Authorization Act for FY 2018

• DoDI 1000.32, Prohibition of Lobbying Activity by Former DoD Senior Officials, March 26, 2020 – excellent explanations!

• Applies to GO’s and SES’s personnel departing the Department of Defense after December 12, 2017 - must be subject to 18 U.S.C. §207(c) to be subject to Section 1045.

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Section 1045 of the National Defense Authorization Act for FY 2018

• Prohibits “lobbying contacts” and “lobbying activities” directed towards “covered executive branch officials” on behalf of a non-federal entity regarding DoD matters for a one or two year period after departure:

• O-9 and O-10 and SES Tier 3 have a two year cooling off period• O-7 and O-8 and SES Tier 1 and 2 have a one year cooling off period

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Section 1045 of the National Defense Authorization Act for 2018

• “Covered Executive Branch Official” includes all executive branch political appointees (non-career SES and Schedule C employees) and O-7 and above military members.

• So you could lobby a career SES or a GS-15 or below or a COL or below

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Lobbying Contact

• A “prohibited lobbying contact” includes any oral or written communications to a covered executive branch official that is made on behalf of a client with regard to:

• (1) The formulation, modification, or adoption of federal legislation, including legislative proposals;

• (2) The formulation, modification, or adoption of a federal rule, regulation, Executive order, or any other program, policy, or position of the U.S. Government;

• (3) The administration or execution of a federal program or policy, including the negotiation, award, or administration of a federal contract, grant, loan, permit, or license; or

• (4) The nomination or confirmation of a person for a position subject to confirmation by the Senate.

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Lobbying Activity

• Prohibited lobbying activities include lobbying contacts AND efforts in support of such contacts, including preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others.

• The main difference between “lobbying contacts” and “lobbying activities” is that “lobbying activities” means efforts in support of a lobbying contact, which includes some behind the scenes assistance. “Lobbying contact” does not prohibit any behind the scenes assistance.

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Section 1045 of the National Defense Authorization Act for 2018

• So - “Behind the Scenes” assistance is prohibited only when performed by a former senior official in support of a lobbying activity with a covered executive branch official outside of the Department of Defense (DoD) pertaining to a matter with respect to the DoD.

• “Behind the scenes” assistance is NOT prohibited in support of lobbying activities with a covered executive branch official in DoD. Former senior officials are still prohibited from participating in a lobbying contact with a covered executive branch official in DoD or outside of DoD pertaining to a matter with respect to DoD

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Examples

• Former Army Tier 1 SES Jones may try to convince Air Force COL Smith to contract with his employer for widgets. SES Jones may not try to convince any GO, Schedule C, or non-career SES employee executive-branch-wide to contract with his employer within one year of his departure from the Army.

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Examples

• During his two year Section 1045 restriction period, retired Army LTG Rogers may work behind the scenes in support of his new employer ABC Inc’s efforts to convince the Secretary of the Navy to contract for its widgets,

• But, during this same time period, he may not work behind the scenes in support of ABC Inc’s effort to convince the Secretary of Energy to adopt new standards for Navy widget development.

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1-Year Cooling-Off Period under 18 U.S.C. section 207 but not 1045

• 18 USC 207 –• Behind-the-scenes assistance permitted• Communications to other DoD components permitted

• Section 1045 –• Behind-the-scenes assistance permitted only under certain circumstances• Restrictions apply to all “covered branch executive officials” in all DoD

components

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18 U.S.C. §207 and Section 1045 Exceptions/Waivers

• See table in 5 C.F.R. 2641.301(l) and DoDI 1000.32 for specific applicability

•Include:• Acting on behalf of State or Local government, hospital or medical research

organization, accredited degree granting institutions• Furnishing scientific or technological information• Testimony under oath

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Section 1045 Exceptions Based on the Lobbying Disclosure Act

• See DoDI 1000.32 for specific applicability. Includes:

• Request for a meeting, a request for the status of an action, or any other similar administrative request.

• Required by subpoena, civil investigative demand, or otherwise compelled by statute, regulation, or other action of the Congress or an agency, including any communication compelled by a federal contract, grant, loan, permit, or license.

• Made in response to a notice in the Federal Register, Commerce Business Daily, or other similar publication soliciting communications from the public and directed to the agency official specifically designated in the notice to receive such communications.

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Representational Restrictions1-year Ban on Treaty Negotiations

• 18 U.S.C. §207(b). May not represent, aid, or advise anyone concerning ongoing treaty negotiations if:

• participated personally and substantially in negotiations during last year of service,

• had access to inside information,• representation, assistance, or advice is based on such inside information

• NO behind-the-scenes assistance allowed

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Former Procurement Integrity Act

• No longer has a name; codified on 1/4/11 at 41 U.S.C. 2101-2107• Still applies to employees who retire on or after 1 January 1997; just finally codified• Bars acceptance of compensation from contractor for 1 year after certain participation in procurement of contracts, subcontracts, modifications, and other actions > $10M

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Triggers

• Served as Procuring Contract Officer, Source Selection Authority, Source Selection Evaluation Board Member, Chief of Financial or Technical Evaluation Team for procurement > $10M

• Served as Program Manager, Deputy Program Manager, or Administrative Contracting Officer for procurement > $10M

OR

• Personally made decision to: • award a contract, subcontract, modification, or task order > $10M • establish overhead or other rates applicable to contract > $10M• approve issuance of a contract payment > $10M• pay or settle a claim > $10M

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Executive Order 13770 and Pledge

• Applies to Civilian Political Appointees• Cannot engage in lobbying activities with “covered executive branch

officials” until administration is over • Cannot engage in lobbying activities with respect to agency (Army) for

5 years after terminating government service at DoD • Behind the scenes support prohibited

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Foreign Government Employment

• Constitution, Article I, §9, clause 8: No title of nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

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Foreign Government Employment37 USC 908

• Includes retired military personnel members (officers and enlisted) and reserve service members as federal employees subject to the Emoluments Clause (due to ability to recall and receipt of retired pay).

• Provides that retired military members and reservists may accept foreign government employment or compensation only with service secretary and the Secretary of State approval.

• Pending amendment will permit acceptance of other types of foreign government emoluments (speeches, travel, meals, lodging and registration fees, non-cash awards) with service secretary approval only.

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Foreign Government Employment 10 U.S.C. §1060

• Provides that retired service members may, with service secretary and Secretary of State approval,

• accept employment by, or hold an office or position in, the military forces of a newly democratic nation;  to include

• accepting compensation associated with such employment, office, or position.

• Service secretary and Secretary of State determine whether a country is a “newly democratic nation.”

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What is a “Foreign State” for Emoluments Clause Purposes?

Comptroller General Opinions

• Foreign governments

• Commercial entities owned or controlled by a foreign government

• Foreign public universities controlled by a foreign government

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What is a “Foreign State” for Emoluments Clause Purposes?

Office of Legal Counsel opinion

• Factors to consider when assessing whether a foreign entity is “controlled” by a foreign government and therefore should be deemed a “foreign state” for Emoluments Clause purposes:

• (1) whether a foreign government has an active role in the entity’s management,

• (2) whether a foreign government makes the ultimate decision regarding the emolument; and

• (3) whether a foreign government is a substantial source of funding for the entity.

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What is a “Foreign State” for Emoluments Clause Purposes?

DoD Financial Management Regulation (FMR) Vol 7B, Chapter 5, para. 050402

• Foreign control - does an employer-employee relationship exist between the retired military member and a foreign government, even if the member works for a privately owned corporation? Follow the common law rules of agency. Which entity controls:

• the selection and engagement of the employee, • the payment of wages, • the power to discharge, • the power to control the employee’s conduct, and • the relationship of the work to the employer’s business (whether the work is

a part of the regular business of the employer.91

RemedyDoD FMR

• “The compensation received from the foreign government without approval is considered received by the retired member for the United States. A debt in favor of the government is created which is to be collected by withholding from retired pay. The debt is an amount equal to the compensation received from the foreign government. When the compensation earned during the period of unauthorized employment exceeds the amount of retired pay accrued during the same period, only the retired pay amount may be collected.” Chapter 5, Section 050404.

• “Retired pay is withheld in an amount equal to the amount of compensation received from the foreign government. Compensation includes salary, free transportation, household goods shipments at employer’s expense, housing allowances, and gifts.” Chapter 5, Section 050401.

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Foreign Government Employment

• See SOCO deskbook for Foreign Government employment POCs for each service.

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“The Justice Department has filed a lawsuit against Omarosa Manigault Newman, a former aide in the Trump White House, for failing to file a legally required personal financial disclosure report after she was fired in 2017.

The lawsuit says Manigault Newman never filed the report required from departing senior staffers and largely ignored numerous requests from White House lawyers to submit the report following her acrimonious departure from her post as communications director in the Office of Public Liaison.

The complaint, filed Tuesday in U.S. District Court in Washington, asks a judge to order Manigault Newman to file the report and to pay a civil penalty of $50,000 for “willfully” defying the ethics mandate.”

Politico, Josh Gerstein, 6/25/2019 https://www.politico.com/story/2019/06/25/justice-department-omarosa-financial-disclosure-1382392 95

Termination Public Financial Disclosure Report 5 C.F.R. §2634.201

• Must file termination OGE 278e not more than 30 days after retirement date.

• OGE regulation permits filing up to 15 days before leaving.

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OPM Notice

• Departments and agencies must notify all public filers subject to 18 U.S.C. 207(c) what the restrictions are, restrictions regarding 18 U.S.C. 207(f), and the penalties for violating 18 U.S.C. 207. 5 C.F.R. part 730

• Filers certify that they have received this training via Integrity certification of annual/new entrant report.

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