[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2637.101]

[Page 614-616]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER XVI--OFFICE OF GOVERNMENT ETHICS
 
PART 2637_REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST--Table 
 
                      Subpart A_General Provisions
 
Sec. 2637.101  Purpose and policy.


    (a) Authority. Section 401(a) of the Ethics in Government Act of 
1978 (the

[[Page 615]]

``Act''), as amended by Public Law 100-598 (Nov. 3, 1988), established 
the Office of Government Ethics (``OGE'') as a separate agency in the 
executive branch, effective October 1, 1989. (OGE was formerly a part of 
the Office of Personnel Management (``OPM'')). Sections 402 (a) and (b) 
of the Act, as amended, provide that the Director of the Office of 
Goverment Ethics (``the Director'') shall provide, in consultation with 
OPM, overall direction of executive branch policies related to 
preventing conflicts of interest on the part of officers and employees 
of any executive agency as defined in section 105 of title 5, United 
State Code, and shall propose, in consultation with the Attorney General 
and OPM, rules and regulations to be promulgated by the President or by 
OGE pertaining to conflicts of interest and ethics in the executive 
branch. The purpose of this part is to issue regulations prepared by the 
Director which give content to the restrictions on post employment 
activity established by title V of the Act (18 U.S.C. 207) for 
administrative enforcement with respect to former officers and employees 
of the executive branch; generally to guide agencies in exercising the 
administrative enforcement authority reflected in section 18 U.S.C. 
207(j); to set forth the procedures to be employed in making certain 
determinations and designations pursuant to the Act; and to provide 
guidance to individuals who must conform to the law. Criminal 
enforcement of the provisions of 18 U.S.C. 207 remains the exclusive 
responsibility of the Attorney General.
    (b) Consultation with the Attorney General. In proposing these 
regulations, the Director consulted with the Attorney General as to the 
content of regulations governing substantive prohibitions as well as 
other matters. The Attorney General has advised that such regulations 
are consistent with his opinion as to the interpretation of the Act.
    (c) Policy and limitations. These regulations bar certain acts by 
former Government employees which may reasonably give the appearance of 
making unfair use of prior Government employment and affiliations.
    (1) When a former Government employee who has been involved with a 
particular matter decides to act as the representative for another 
person on that matter, such ``switching of sides'' undermines confidence 
in the fairness of proceedings and creates the impression that personal 
influence, gained by Government affiliation, is decisive.
    (2) Similarly, when a former high-level employee assists in 
representing another by personal presence at an appearance before the 
Government regarding a matter which is in dispute, such assistance 
suggests an attempt to use personal influence and the possible unfair 
use of information unavailable to others. Different considerations are 
involved, however, with respect to assistance given as part of customary 
supervisory participation in a project funded by a Government contract 
or grant, since a former employee's knowledge may benefit the project 
and thus the Government, and regular communications with associates may 
properly be regarded as inherent in managerial responsibility. Such 
assistance, when not rendered by personal presence during an appearance, 
is not covered by the statute.
    (3) When a former Senior Employee returns to argue a particular 
matter to the employee's former agency in the period immediately 
following the termination of official employment, it appears that 
Government-based relationships are being used for private ends.
    (4) Former officers and employees may fairly be required to avoid 
such activities in the circumstances specified by statute and in these 
regulations.
    (5) The provisions of 18 U.S.C. 207 do not, however, bar any former 
Government employee, regardless of rank, from employment with any 
private or public employer after Government service. Nor do they 
effectively bar employment even on a particular matter in which the 
former Government employee had major official involvement except in 
certain circumstances involving persons engaged in professional 
advocacy. Former Government employees may be fully active in high-level 
supervisory positions whether or not the work is funded by the United 
States

[[Page 616]]

and includes matters in which the employee was involved while employed 
by the Government. The statutory provisions are not intended to 
discourage the movement of skilled professionals in Government, to and 
from positions in industry, research institutions, law and accounting 
firms, universities and other major sources of expertise. Such a flow of 
skills can promote efficiency and communication between the Government 
and private activities, and it is essential to the success of many 
Government programs. Instead, only certain acts which are detrimental to 
public confidence in the Government are prohibited.
    (6) Departments and agencies have primary responsibility for the 
administrative enforcement of the post employment restrictions found in 
the Act. The Department of Justice may initiate criminal enforcement in 
cases involving aggravated circumstances; agency heads are required to 
report substantiated allegations of violations of 18 U.S.C. 207 to the 
Department of Justice and the Director, OGE. It is essential that title 
V of the Act be enforced so as to advance its objectives, which include 
improvement in government efficiency, equal treatment for equal claims, 
greater public confidence in the integrity of their government, 
elimination of the use of public office for private gain, and securing 
the integrity of the government's policy-making processes. Departments 
and agencies should avoid enforcement actions that do not advance these 
objectives but instead frustrate the Government's ability to employ the 
skilled persons who are needed to make the programs of the Federal 
Government succeed. Special attention should be given to the need to 
preserve the free flow of expertise, especially in scientific, 
technological and other technical areas, from private activities to the 
government.
    (7) The examples contained in these regulations are intended to give 
guidance, but are illustrative, not comprehensive. Each agency may 
provide additional illustration and guidance in its own regulations, 
consistent with that contained herein, in order to address specific 
problems arising in the context of a particular agency's operations.
    (8) Agencies have the responsibility to provide assistance promptly 
to former Government employees who seek advice on specific problems. The 
Office of Government Ethics will provide advice, promptly, upon request, 
to designated agency ethics officials in such situations, but will first 
coordinate with the Department of Justice on unresolved or difficult 
issues.
    (9) These regulations do not supplant restrictions that may be 
contained in laws other than 18 U.S.C. 207 and do not incorporate 
restrictions contained in the code of conduct of a profession of which 
an employee may be a member.

[45 FR 7406, Feb. 1, 1980; 45 FR 9253, Feb. 12, 1980, as amended at 49 
FR 33118, Aug. 21, 1984; 50 FR 1203, Jan. 10, 1985. Redesignated at 54 
FR 50230, Dec. 5, 1989; 55 FR 27179, July 2, 1990; 55 FR 27933, July 6, 
1990]