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The criminal statute 18 USC § 208 bars Government personnel from participating personally and substantially in any particular Government matter that would have a direct and predictable effect on their own or imputed financial interests. A financial interest could arise from a negotiation or arrangement concerning prospective employment.
"Personal and substantial participation" in a contract not only encompasses those actions normally performed by a contracting officer during the procurement process, but also encompasses acts by other personnel. "Personal and substantial participation" includes decision, approval, disapproval, recommendation, rendering advice, investigation, or other similar action. Examples of "personal and substantial participation" include the administration of a contract (ordering changes in contract performance, or contract quantities), "teaming" with contractor employees on a project where the Government employee directs or otherwise steers the work of the project, evaluating contractor performance, ranking internal recommendations, providing formal or informal advice and recommendations to deciding authorities, and accepting or rejecting contractor products or services.
Additionally, approving any contractual documents including documents defining requirements, incentive plans, and evaluation criteria; evaluation of contractor performance, determining whether contract costs are reasonable, allocable, and allowable can constitute "personal and substantial participation."
As a best practice, if a Government employee desires to seek and negotiate employment outside the Government with an entity that potentially does business with his organization, the Government employee should disqualify himself from any action with that entity. Staying clear of regulatory and statutory violations is a relatively simple process and one that is within the control of a Government employee. A letter of disqualification to the Government employee's supervisor provides Government personnel with easy protection against claims of violating §208. Section 2-204 of DoD 5500.7-R (Joint Ethics Regulation) requires that the disqualification be in writing. This link will bring you to a sample letter of disqualification found on the SOCO website.
In a review of an Administrative Judge,s decision, a Merit Systems Protection Board (MSPB) agreed with and found for the petition of the Office of Special Counsel (OSC) in three recent cases involving enforcement of the Hatch Act. See the OSC press release.
OSC argued that the emails encouraging the election or defeat of a partisan political candidate were indistinguishable from other types of political activity prohibited by the Hatch Act. The cases included:
MSPB upheld sixty-day suspension for sending an email (to over 300 recipients) while on duty and in a federal building advertising a re-election party for a partisan candidate. The email described the candidate in favorable terms and encouraged attendance at the event advertised. The MSPB found the email to be obviously . . . directed toward the success of the candidates re-election campaign.
A picture of the President and an "I vote the Bible" slogan (sent to 27 recipients). The email also contained several statements in support of one candidate and a negative statement about the opposition candidate.
Subject line of "Why I am supporting candidate x for president" (sent to 22 recipients). The email contained several reasons to vote for a candidate and why the reader should not support the opposition party.
This memo spells out what political activities civilian DoD employees may do, and what activities they may not perform. See the guidance, which is very specific and very useful for ethics counselors, supervisors, and employees. (The guidance for military personnel is found in DoDD 1344.10.)
Don,t be surprised if you recognize this warning. It is similar to our previous advisory about active duty military officers working on terminal leave (see SOCO Advisories 06-02 and 06-03). The same rules and logic that apply to active duty officers working on terminal leave also apply to Government personnel (except enlisted military personnel) who seek outside employment "moonlighting" as contractor employees. There are at least four reasons why people are surprised:
Working as a Government employee and moonlighting as a contractor for the same organization may be permissible as long as the Government employee is not interacting with Government personnel while acting in his contractor employee status. This, of course, is almost impossible to do if physically located in the Federal workplace.
Generally, Government personnel (including lawyers) are unaware of the prohibitions of 18 USC 205 and 203 that prohibit Government personnel from acting as an agent for someone else before the Government. An employee acting within the scope of his duties is an agent for his employer.
Even those who know of 18 USC 205, tend to forget that it applies to Government personnel holding down a second part-time job.
The old view that "merely performing a contract" is not a representation was shot down by OGE in their opinion 99 x 19. OGE later advised that their logic in that opinion also applies to 18 USC 203 and 205. Hence, an Intelligence Analyst, preparing a report under an XCorp Government contract, represents XCorp to the Government when he submits his report. Regardless of whether the report is accurate, timely, useful, responsive, understandable, and comprehensive, it is the representation that is prohibited according to OGE.
Government personnel are prohibited by 18 USC 205 and 18 USC 203 from representing their second employer to the Government. This makes problematic the increasingly common practice of contractor personnel physically working in Government offices. The criminal statutes preclude a Government employee from interacting or appearing in the Federal workplace as a contractor employee. As we said regarding working during terminal leave, "moonlighting" in a Government office for a contractor almost always involves improper representation. Government employees may work with the contractor, but only "behind the scenes" at a contractor,s office or otherwise away from the Government workplace.
Government personnel may not engage in outside activities that conflict with their official duties if such activities are prohibited by statute or regulation or would require employee,s disqualification from matters critical his office. (5 CFR 2635.802)
Government personnel may not represent others to agencies of the Government on any matter in which the United States is a party or has a direct and substantial interest (18 USC §§203 and 205)
Employees who file financial disclosure reports must obtain prior written approval from their Agency Designee before working for a prohibited source. Permission shall be granted unless the outside activity involves conduct prohibited by statute or regulations (5 CFR §2635.803; JER 2-206 & 3-306).
Bottom line: It is almost impossible for a Government employee to work as contractor employee in the Government workplace, either as a second job or while on terminal leave. Moonlighting with a Government contractor is okay if they can work behind the scenes and outside of the Federal workplace.
DISCLAIMER: The purpose of this advisory is to disseminate relevant information and sources of general guidance, policy and law on Government Ethics issues to the Department of Defense ethics community. Advisories are not intended to be and should not be cited as authoritative guidance, DoD policy, or law.