Former Officers and Employees—Conflict of Interest (18 U.S.C. § 207)—Contract—Disqualification Connected With Former Duties or Official Responsibilities, 78-70

• Decision Date: 29 December 1978
• Docket Number: 78-70
• Citation: 2 Op. O.L.C. 313
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Former Officers and Employees—Conflict of Interest 18 U.S.C. § 207—Contract—Disqualification Connected With Former Duties or Official Responsibilities

2 Op. O.L.C. 313

Former Officers and Employees—Conflict of Interest 18 U.S.C. § 207—Contract—Disqualification Connected With Former Duties or Official Responsibilities

No. 78-70

United States Department of Justice

December 29, 1978

Leon Ulman Deputy Assistant Attorney General Office of Legal Counsel.

Former Officers and Employees—Conflict of Interest (18 U.S.C. § 207)—Contract—Disqualification Connected With Former Duties or Official Responsibilities

MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL NUCLEAR REGULATORY COMMISSION

This responds to your request for our opinion on a matter calling for an interpretation of 18 U.S.C. § 207, establishing postemployment restrictions on Federal employees. The relevant facts are as follows:

Mr. C a geologist employed in the Commission's Office of Nuclear Reactor Regulation (NRR), serves on a Commission task force charged with developing data to assist the Commission in formulating regulations concerning the long-term storage of high-level nuclear waste. In that capacity he reported in 1977 to appropriate Commission officials that the Commission needed additional data on certain geological issues, which it was not equipped to obtain.

In March of that year he met in his official capacity with representatives of a laboratory, a Government contractor, and of a private consulting firm. They discussed the data that C believed was required. He then submitted a memorandum to the task force leader listing certain NRR geoscience research requirements and subsequently submitted more detailed specifications.

During 1977 and 1978, C met several times with the Commission's Office of Nuclear Material Safety and Safeguards (NMSS), the office with primary responsibility for nuclear waste management, and reiterated his concern that the needed geological research was not being conducted. In September 1978, NMSS decided that the research was indeed necessary and asked the laboratory to undertake it, which it has recently agreed to do by contract. The consulting firm, subcontractor of the laboratory, anticipates that it will be requested by the laboratory to do the research.

In October 1978, the consulting firm offered C a position to begin in January 1979, contingent upon his availability to work on the subcontract. Should the laboratory subcontract the performance of technical and scientific components [ 314] of the contract to the consulting firm, C would represent the consulting firm in meetings with the NRC's scientific staff to exchange scientific information.

We understand that C played no role in selecting the laboratory to do the research, and that the laboratory has not yet begun the work on the project.

The legal issue is whether § 207 prohibits C from acting for the consulting firm in connection with its performance of the subcontract. We conclude that C would not violate § 207 if his activities are confined as discussed below: Section 207 reads in relevant part as follows:

(a) Whoever, having been an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, or of the District of Columbia including a special Government employee, after his employment has ceased, knowingly acts as agent or attorney for anyone other than the United States in connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge accusation, arrest, or other particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which he participated personally and substantially as an officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, while so employed, . . ..

(b) * * * * *

Shall be fined not more than $10, 000 or imprisoned for not more than two years, or both: Provided, That nothing in subsection (a) or (b) prevents a former officer or employee, including a former special Government employee, with outstanding scientific or technological qualifications from acting as attorney or agent or appearing personally in connection with a particular matter in a scientific or technological field if the head of the department or agency concerned with the matter shall make a certification in writing, published in the Federal Register, that the national interest would be served by such action or appearance by the former officer or employee.^[1]

I.

We consider first whether, if C accepts the position, he would be required to act as an agent or attorney for the consulting firm in connection with a particular matter in which he personally and substantially participated while a Government employee.

This issue concerns the degree of the connection C had with the laboratory contract, i.e., whether he had the requisite personal and substantial participation therein. He concededly participated in the proposal which led to the Commission's offering the laboratory the contract. He was primarily responsible [ 315] for the Commission's requesting an outside firm to do the research.^[2] He was further intimately involved in the decision concerning the nature of the required research. However, he participated only in the inchoate stage of what would later develop into a contract.

Nevertheless, we are of the opinion that § 207 covers such participation. Implicit in § 207 is the notion that one may not, as a Government employee, having participated personally and substantially even in the preliminary stages of a particular contract, thereafter leave the Government to act as an agent or attorney for a private party with respect to the contract. Were this not so, the policies underlying that provision would be frustrated. Section 207 was primarily intended to prevent situations in which a former Government employee could use inside information or his influence with respect to a matter on which he worked as a Government employee. Much of the work with respect to a particular matter is accomplished before the matter reaches its final stage. For example, an attorney might conduct an exhaustive investigation whether the facts and the law warrant the Government's filing a contemplated lawsuit. Further, he might recommend that the lawsuit be brought. If he could at that point, before the actual filing of the case, leave the Government and contend that he was not barred by § 207 because his work did not extend to participation in an actual "judicial or other proceeding" the purpose of § 207 would be undermined. The same holds true with respect to the preliminary steps leading to a contract. Thus, § 207, if its purpose is to be served, should be read to include personal and substantial participation in the preliminary stages of particular matters.

Moreover, the express terms of § 207 deal with preliminary aspects of particular matters. The section covers participation through decision, approval, disapproval, recommendation, the rendering of advice, investigation, etc. Such activity is frequently associated with preliminary aspects. Indeed, in this case C rendered advice, made a recommendation, and conducted an investigation with respect to the matter that eventually resulted in the laboratory contract.

For these reasons, we conclude that C's activities are covered by § 207.

II.

We now turn to the question whether Mr. C's duties with the consulting firm, as you describe them, would violate § 207. Although the language of § 207(a) is quite broad and encompassing, there is no doubt that C may work on the consulting firm's subcontract if he limits himself to in-house work not involving his contact with the Government. See the comment in the Attorney General's 1963 Interpretive Memorandum (reprinted at 18 U.S.C. §201 [ 316] note).^[3] However, the consulting firm job offer is contingent upon C's availability to meet with the Commission's...