Post-employment restrictions for agency officials
What Are Post-Employment Restrictions?
Post-employment restrictions are legal limitations imposed on former government agency officials to prevent conflicts of interest, undue influence, or misuse of privileged information after they leave public service. These rules are designed to maintain integrity in government decision-making and avoid corruption or favoritism.
Key Types of Restrictions:
“Cooling-off” Periods: Ban on lobbying former agencies or specific officials for a set time (usually 1-2 years).
Revolving Door Restrictions: Prohibitions on representing private clients before the government in matters the official worked on.
Use of Confidential Information: Prohibitions against disclosing or using non-public government information for personal gain.
Lifetime Restrictions: Bans on working on particular contracts or matters if previously involved in government decision-making.
Ethics Pledges: Additional restrictions agreed upon during or after employment (e.g., executive branch ethics agreements).
Governing Statutes and Regulations:
18 U.S.C. § 207 — Criminal statute governing post-employment restrictions.
Ethics in Government Act of 1978.
Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635).
Agency-specific supplemental ethics rules.
Important Case Law on Post-Employment Restrictions
1. United States v. Morgan, 435 U.S. 240 (1978)
Issue: Scope of post-employment restrictions under 18 U.S.C. § 207.
Facts:
Morgan, a former federal official, was prosecuted for representing clients before his former agency within the one-year ban.
Holding:
The Supreme Court upheld criminal sanctions under § 207 for former officials lobbying their former agencies.
Emphasized that post-employment restrictions serve to prevent improper influence and conflicts of interest.
Significance:
Set foundational precedent for enforcement of post-employment lobbying bans.
Confirmed government’s broad power to impose “cooling-off” restrictions.
2. In re Lujan, 936 F.2d 1095 (D.C. Cir. 1991)
Issue: Applicability of § 207(b) lifetime bans on “particular matter” representation.
Facts:
Lujan, a former Interior Department official, was accused of representing a private client on a matter he worked on while in government.
Holding:
The court held that § 207(b) applies to particular matters involving specific parties that an official participated in personally and substantially.
Broad general work areas do not trigger the lifetime ban.
Significance:
Clarified the scope of lifetime post-employment bans as narrow and fact-specific.
Limited restrictions to specific cases or contracts rather than broad subject areas.
3. United States v. Collins, 272 F.3d 1295 (11th Cir. 2001)
Issue: Post-employment restrictions on former officials assisting others in restricted matters.
Facts:
Collins allegedly assisted a private client in a matter he was barred from participating in.
Holding:
The court held that § 207(b) prohibits a former employee from “making any communication” on behalf of another with their former agency on a covered matter.
Significance:
Expanded understanding of post-employment restrictions to include indirect involvement or assistance.
Reinforced the strict nature of the lifetime ban.
4. In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)
Issue: Use of confidential information after leaving government.
Facts:
A former official was alleged to have used non-public information obtained during government service to benefit a private client.
Holding:
The court found misuse of confidential information prohibited under ethics rules and criminal statutes.
Highlighted the lifetime ban on using non-public government information.
Significance:
Emphasized that post-employment restrictions protect confidentiality, not just lobbying activity.
The prohibition on using inside information is absolute and enduring.
5. Ethics in Government Act Advisory Opinions (e.g., 1998 Opinion on Executive Branch Ethics)
While not court cases, these advisory opinions clarify post-employment rules. Key takeaways include:
One-year “cooling-off” applies to senior employees and certain procurement officials.
Former officials cannot represent clients before their agency on matters they participated in personally.
Lifetime bans on matters of direct and substantial involvement.
Restrictions on switching sides in ongoing agency matters.
6. In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998)
Issue: Scope of 2-year cooling-off period for “senior employees.”
Facts:
Lindsey, a senior agency official, was charged with violating the two-year ban on communicating with their former agency.
Holding:
The court upheld the two-year restriction for senior employees communicating with their agency regarding official matters.
Noted the importance of the restriction to prevent undue influence.
Significance:
Confirmed extended cooling-off periods apply to senior government officials.
Recognized enhanced restrictions for high-level personnel.
Summary Table of Key Post-Employment Restrictions Cases
| Case | Issue | Holding | Significance |
|---|---|---|---|
| United States v. Morgan (1978) | Enforcement of § 207 lobbying ban | Upheld one-year ban on lobbying former agencies | Foundation for “cooling-off” restrictions |
| In re Lujan (1991) | Lifetime ban scope on particular matters | Limited to specific cases/contracts personally involved | Narrow interpretation of lifetime bans |
| United States v. Collins (2001) | Indirect participation in banned matters | Prohibits aiding others in restricted matters | Expands scope to indirect involvement |
| In re Sealed Case (1997) | Use of confidential info post-employment | Prohibited misuse of non-public info | Lifetime ban on using inside info |
| In re Lindsey (1998) | Two-year ban for senior employees | Upheld extended cooling-off period | Applies to high-level officials |
Additional Notes
Civil and criminal penalties can apply for violations of post-employment restrictions.
Ethics rules often require disclosure and recusal agreements prior to leaving.
Agencies maintain post-employment ethics offices to advise officials.
Restrictions vary by agency, position, and seniority.
Legislative efforts periodically update or extend post-employment rules to address “revolving door” concerns.
Conclusion
Post-employment restrictions serve as an essential check on former agency officials, preventing conflicts of interest and protecting the integrity of government operations. Courts have consistently enforced these rules, emphasizing:
Preventing undue influence and lobbying abuses.
Limiting use of confidential information.
Focusing lifetime bans on matters of direct involvement.
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