18 U.S.C. 207 "lifetime representation ban" opinions: a lifetime's work for agency ethics officials and advisors

Air Force Law Review, Spring, 2009 by Allen B. Coe

  I. INTRODUCTION

 II. LIFETIME REPRESENTATION BAN--18 U.S.C. [section] 207(a)(1)
     A. "Former officers, employees and elected officials of
        the executive and legislative branches"
     B. "Knowingly makes"
     C. "With intent to influence"
     D. "Any communication to or appearance before any officer
        or employee of any department, agency, court, or court-martial
        of the United States"
     E. "On behalf of any other person (except the United States
        or the District of Columbia)"
     F. "In connection with a particular matter"
     G. "In which the United States is a party or has a direct and
        substantial interest"
     H. "In which the person has participated personally and
        substantially"
     I. "Which involved a specific party or specific parties at the
        time of such participation"

III. REQUIREMENTS TO PROVIDE ADVICE REGARDING
     APPLICABILITY OF 18 U.S.C. [section] 207(a)(1)
     A. New Act
     B. New Regulation

 IV. 18 U.S.C. [section] 207(a)(1) OPINIONS
     A. Generally
     B. Have a Template Ready
     C. Avoid Contractor-Specific Opinions
     D. Have Caveats Ready
     E. Have Questions Ready and Limit Information Seeking
     F. Oral Advice
     G. Getting Into Specifics
     H. Limitations on Ability to Discuss Certain Elements of
        Statute
     I. After-the-Fact Advice
     J. Conducting Your Own Investigation
     K. Understand Special Categories of Employees
        1. Enlisted Military Personnel
        2. Special Government Employees
        3. Military Reserve Officers
        4. Intergovernmental Personnel Act and Information
           Technology Exchange Program Personnel
        5. National Guard Officers
        6. Senior Employees

 V. CONCLUSION

I. INTRODUCTION

Recent legislation and regulations are likely to cause a substantial increase in the number of 18 U.S.C. [section] 2071 opinions that agency ethics officials are requested to provide as well as the depth and breadth of those reviews. The vast majority of additional reviews will be targeted at 18 U.S.C. [section] 207(a)(1), otherwise known as the "lifetime representation ban," which applies to all officers and employees of the executive branch and certain other agencies. Accordingly, it is extremely valuable for ethics advisors to understand the new statutes and regulations as well as 18 U.S.C. [section] 207(a)(1).

This article will first review the elements of 18 U.S.C. [section]207(a)(1) and the interpretation of those elements as can be gleaned from Office of Government Ethics (OGE) regulations, OGE opinions, Department of Justice memoranda, court cases, and other sources. Second, the article will focus on recent legislation and rulemaking and the specific responsibilities of government ethics advisors to provide 18 U.S.C. [section] 207(a)(1) opinions. Finally, the article will offer practical suggestions for drafting 18 U.S.C. [section] 207(a)(1) opinions recognizing the limitations inherent in providing prospective 18 U.S.C. [section] 207(a)(1) advice. This article is focused primarily on ethics advice within the Department of Defense (DOD), although it may have broader applicability.

II. LIFETIME REPRESENTATION BAN--18 U.S.C. [section] 207(a)(1)

The text of 18 U.S.C. [section] 207(a)(1) is not extensive, but almost every word merits additional definition and interpretation. The statute reads as follows:

Restrictions on former officers, employees, and elected officials of the executive and legislative branches

(a) Restrictions on all officers and employees of the executive branch and certain other agencies.

(1) Permanent restrictions on representation on particular matters. Any person who is an officer or employee (including any special Government employee) of the executive branch of the United States (including any independent agency of the United States), or of the District of Columbia, and who, after the termination of his or her service or employment with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia) in connection with a particular matter--

(A) in which the United States or the District of Columbia is a party or has a direct and substantial interest,

(B) in which the person participated personally and substantially as such officer or employee, and

(C) which involved a specific party or specific parties at the time of such participation, shall be punished as provided in section 216 of this title. (2)

A. "Former officers, employees and elected officials of the executive and legislative branches"

By its terms, 18 U.S.C. [section] 207(a)(1) applies to all "former" officers or employees of the Department of Defense for life (or at least for the life of the particular matters in which a person participated personally and substantially during his or her government employment) no matter how long they were an employee. The statute applies to all former employees, including employees hired "to perform temporary duties either on a full-time or intermittent basis, with or without compensation." (3) It includes employees under the Intergovernmental Personnel Act (4) and Information Technology Exchange Program (5). However, it does not apply to enlisted military personnel. (6)