DEFENSE INTELLIGENCE A GEN CY
GIGS, 13.0. 20340-5100

 

october 8, 20.14

VIA EMAIL

 

 

 

 

Dear LTG 

This letter reSponds to your request for a written opinion regarding the ethics restrictions
that apply to you after your retirement from the United? States Army,-

As you know, now that you have retired, there are certain post-employment restrict-ions
applicable to your activities as well as to the work that you may do for a ?xture employer These
restrictions generally do not bar you from accepting employment with any private or public
employer They do, however, unpose certain limitations on communications that you may make
as a representative of a third party back to the federal gover?nnient, as well as on certain types of
assistance diet you may provide to third parties. These. limitations do not generally restrict you
from reSponding to requests for information or advice initiated by the federal government, if you
are not representing a third party in your communications or the matter discussed. The purpose
behind the restrictions is to prevent you from ?switching sides" on a matter in which you were
involved when you worked in the government, and to provide a ?cooling off.? period in which
you are to refrain from seeking action from the Anny or the Defense lntelligenee Agency (DIA)
on any matter on behalf of a third party[Accordingly this letter
serves as an Overview of the rules. -

1. Lireage Ban --. 13 0.5.0. 207mm

Section 207(a)(1) imposes a lifetime prohibition on representing, with" intent to in?uence,
any person, other than yourself before the federal govcmment, on any particular matter
involving speci?c parties in which the United States 15 either a party or has a direct and
substantial interest, and in which you ?personally? and ?substantially" participated at any time
during your federal service. Examples of particular matters involving speci?c parties are
contracts, investigations, or litigation.

matters of general applicability such as ?[l]cgislation or rul'emaking of general
applicability and the Formulation of general policies, standards or objectives are not covered
by this prohibition. 5 C.F.R. International agreements (cg, treaties and trade

 

 

agreements), on the other hand, must be evaluated ?in light of all relevant circumstances" to
determine whether the prohibition would apply.

To participate? personally" in a matter means to participate directly, either on your own
or in combination with others. As with 13 S. C. 207(a)(2) (discussed below) the participation
of your subordinates 15 covered, although only insofar as you actually directed them In the
relevant matter.

?Substantially? here means that your involvement was ?of signi?cance? to the matter, or
created a reasonable appearance of signi?cance. Your efforts need not have been determinative
of the outcome: however, more is required than of?cial responsibility, knowledge. perfunctory
involvement. or-involveme?nt on an administrative or peripheral issue.

This is a pennanent restriction commencing upon your retirement from the Army and
lasting for the life of all such matters as they existed during your tenure as an Army of?cer New
matters or matters in which yen did not participate personally and substantially while on active
duty fall outside the prohibition.

2. Two?Year Ban 18 Use. 20mm}

Under 18 U.S.C. 207(c)(2), you are timber prohibited for two years from the date of your
retirement from communicating with or appearing before ?any of?cer or employee of any
department, agency, court, or court-martial? ofthc federal government regarding any ?particular
matter.? involving speci?c parties in which the United States has a direct and substantial interest,
and which you know or reasonably should know was actually pending under your ?official
responsibility? during the year prior to your retirement

Although 18 U.S.-C. 207(ij{3) defines ?particular matter" broadly for post-employment
PUTPOSCS to include ?any investigation, application, request for a ruling. or determination,
rulcmaidng, contract. controversy, claim, charge, accusation, arrest, or judicial or other
proceeding.? 18 U.S.C. and the implementing regulations provide that only
particular matters involving a speci?c party or parties falls within this prohibition, and

lanch a matter typically involves a speci?c proceeding ali?ecting the legal rights of the
parties or an isolatablc transaction or related set of transactions between identi?ed
parties, such as a speci?c contract, grant, license product approval application,
entoreement action, administrative adjudication or court case.

5 C.F.R. 2641.201lh). Matters not in existence at the time of your retirement b- such as those
entered into subsequently fall outside the rule. "Of?cial rcSponsibility? is defined in 18 U.S.C.
202th} as your ?direct administrative or operating authority, whether intermediate or ?nal, and
either exercisable alone or with others. and. either personally or through subordinates. to approve,
disapprove. or otherwise direct government actions.? Accordingly, all particular matters

involving speci?c parties handled by your subordinates, with or without your direct involvement,

tat-ill be subject to the restrictions in 18 U.S.C. 207(a)(2).

Thus for We years after retiring, you may not have any representational contacts with
federal government employees on particular matters that were pending under your of?cial
responsibility to your last year of service

3. Ono-Year Cooling?Off Period for Senior Employees re 13 U.S.C. 207k!)

As a retired General Officer, you were a Senior employee who is new subject to this
restriction. The law provides that? you are praidbtt?edJor a period ofonayear a?eryour
service in your senior position terminates, from communicating With or appearing before. on
behmffofana?ter with the intent to in?uence, of?cers and ampiayees ofrhe Army or DIA on
any matter on which of?cial action is sought. This one-year ?cooling-oft? period is designed to
diminish any appearance that government decisions might be unduly affected or in?uenced by
the involvement ofa recently~dcpartcd senior official. It is irrelevant for purposes of 18 U.S.C.
207(c) that you did not work on the matter while in service. lmpartantbr, this
restriction Only bars your appearances before and communications with personnel of the
Army and BM. You are Free to appear before of?cials of any other tinned service, other 
intelligence agencies, any other components or organittations, and the Of?ce of the
Secretary of Defense provided that no Army or DIA of?cials are present at such appearances
In addition this one~year ban does not apply to your communications with personnel of any non-
or non government Organization

"the cooling~off provision does not prohibit you from providing ?behind the Scenes?
assistance to your new employer or other entity. In interpreting these restrictions. the Of?ce of
Government Ethics (0GB) advises that the prohibition against representational activities befOre
your former organizations includes written or oral communications aimed at influencing the
government, but does not prohibit you from giving assistance concerning such matters to your
new employer. See 5 C.F.R. 2637.201 OGH also advises that these reatrictions do not
apply to an appearance or communication to request publicly-available documents or purely
factual information, or to provide such infomiatiOn to the government.

The one-year cooling-off restriction does not prohibit purely social contacts with
your Former colleagues or appearing before the govenunent representing yourself.

4. OneyYear Ban on Aiding or Advising? In Any Ongoing Trade or Treaty Negotiation -
.- .18 U. S. C. .207be

Section 207(h) prohibits you. for one year after leaving l?ederal service. from knowingly
representing, aiding or advising an employer or any entity regarding ongoing trade or treaty
negotiations based on information you had access to and that is exempt from dlselosure under the
Freedom Act. This restrictions begins upon retirement From govenunent service
and, unlike 18 U.S.C. 2071200 and (2). discussed above, prohibits former of?cials from
providing ?behind the scenes? assistance on the basis of the covered information to any person-or
entity. The restrict-ion applies only il?you were personally and substantially involved in ongoing
trade or treaty negotiations within the last year of your government service. It: is not necessary
that you had contact with the fureigtt parties in order to have participated personally and
substantially in a trade or treaty negotiation. The treaty negotiations covered by this section are

those that result in international agreements that require the advice and consent of the Senate 18
U.S.C. The trade negotiations covered are those that the President undertakes
under section 1102 of the Omnibus Trade and Competitiveness Act ol?1988. 18 

seawater

5. OnesYear Barr on Assistance to Fereig Governments 18 201m

Section 207 oi?tit-le 18 also contains a one-year restriction on aiding, advising, or
representing a foreign government or foreign political party with the intent to in?uence the U.S.
government Unlike the other representational bans. this one does not permit ?behind the
scenes? assistance to a foreign government or political party am! the representation prohibition
applies to all branches ofthe federal govenunent. This restriction, like 18 U.S.C. 207(0), only
applies to senior employees. You were a senior employee. for purposes of this provision of law.
Thus, for a period of one year alter your retirement, you may not knowingly represent a foreign
government or foreign political party heibrc an of?cer or employee of the federal government, or
aid or advise sueh a foreign entity with the intent to influence a decision of such of?cer or
employee. Again, no behind the scenes assistance is permitted.

 

Please note that retired militaryr of?cers representing a foreign government o?er
expiration of the one~ycar ban must register under the Foreign Agents Registration Act.

6. Foreign Commnsation Requires AdvanceApproval'

The Emoluments Clause of the 0.3. Constitution, article 1, section 9: clause 8, as
interpreted in Comptroller General opinions and by the Department of Justice Of?ce of Legal
Counsel, prohibits receipt ofeonsuitiugfees, gifts, travel expenses, honorarr'o, or salogr by of!
retired mir'irary personnel, amt-er and en listed; reguiar and reserve, from oforeign
government unless congressional consent r?s?rst obtained. Consent is provided by Congress
under 37 13.8.0. .908, which requires advance approval from the relevant service secretary and
the Secretary of State befOre accepting employment, consulting fees, gifts, travel expenses, -
honoraria, or salary from a foreign goverrunent. 'l?he penaltyF for violating this law is suspension
ot?retiremem pay for military members during the period. of the violation.

Accordingly. if you are ever in a position where you would receive an emolument from a
foreign government or From an entity that might be controlled by a foreign government, he sure
to obtain advance approval from the-Army prior to acceptance.

The FCC for Army approval is:

us. Army Human Resources Command
AHRC-PDR

[600 Spearhead Division Avenue
Department 420

Fort Knox. KY 40 i 232-5402

Phone: Sl)2~613~8980.

 

 

7. Statutorv Exceptions to the Post-Employment Ethics Restrictions

There are a number of statutory exceptions in 13 U.S.C. 2070) to the restrict-ions on post?
employment communications and representational activities. First, none of these restrictions
applies to activities that you may perform on behail' of the United States or the District of
Columbia or as an elected ot?licial of?a State or local government. 18 U.S.C. 2070)( i There
is also an exceptiOn for certain acts that you may perform on behalf of tribal governments. Sac
id. at Second, the restrictions do not apply to you, if you are acting on behalf of an
agency or instrumental?ity ol?a state or local government, an accredited degree-granting
institution ofhighcr education, or a hospital or medical research organization exempted under
26 501(c)(3). Id. at Additional exceptions apply for the provision of testimony,
the provision of?seientific or technological information under certain circumstances, and the
provision by a former employee of information about which the former employee has Special.
knowledge when no compensation is received, id. at You should consult with
legal counsel before relying on any of these exceptions. 

8. Additional Best?etions and Reminders

After your retirement, you remain subject to the restrictions of 18 .S.C. 203, which bars
all fonnerfedcral of?cials and employees from sharing in fees for representational services -
rendered by another at the time of their federal government employment on matters in which the
United States is a party or has a direct and substantial interest. This means that, should you enter
into a partnership agreement or other arrangement involving equity participation, you must be
especially mindful not to receive or accept any compensation for any representational services
rendered by your new colleagues ?in relation to any proceeding, application, request for a rating
or other dctennination, contract, claim, controversy, charge, accusation, arrest, or other particular
matter? that was pending ?before any department, agency, court, officer, or commission? during
the time of your service.

Asa general matter, there are few limitations on your ability to teach, write, or speak
after you have ?nished your government service. However, you may not use nonpublic
information in your teaching, speaking, and writing. Nonpublic information is information that
you gained by reason of your federal employment and that you. know or should know has not
been made available to the general public. You should be careful not to use information in year
future endeavors that: is exempt from disclosure by statute, iixecutive Order or regulation;
is designated as non-public or classi?ed by the United States; or 3) has not been
disseminated to the general public and is not authorized to be made available to the public upon
request. in other words, there is a lifetime ban on your ability to disclose private personnel
information, national security infonnat-ion, or con?dential government data to unauthorized
persons. This, however, does not limit your ability to teach, speak, or write on a subject within
your inherent area of expertise based on your educational background or experience even if the
teaching, speaking, or writing deals generally with a subject within your Former area of
responsibility.

 

 

When participating in l?undraising activities. it is generally permissible to reference your
former of?cial posit-ion. l-lowever. in that context. we recommend that you make reference to
your Former of?cial position merely as one of many biographical details rather than giving it
unique prominence over and above other personal information.

As a retiree. you may use your military rank in private, commercial, or political activities -
as long as your retired status is clearly indicated. no appearance of 001) (including the Army and
DIA) or US. government endorsement is created, and is not otherwise discredited by its
use. Joint Ethics Regulation, paragraph 2-304. Also, as a retiree, you may wear youruniform
only in accordance with Amy regulations.

 

 

 

 

 

 

[Should you pursue future Employment opportunities, or have

speci?c questions about the prop?cty of a proposed course of action in light of these rules1

please do not hesitate to contact my office for more specific advice,

You are respectfully reminded that you are responsible for ensuring compliance with
these post-government restrictions. Became these statutes carry criminal sanctions, it" you have
any doubts about the propriety of a particular course of action, you should obtain legal advice
before acting to ensure that you do not unwittingly violate one of these statutes-

If you have Army-speci?c questions, please contact?in the Army Q?ice
of The Judge Advocate General or by email atl 1 . I

 

 

If you have any questions regarding this letter or the application of these post-
employment restrictions to futUre employment, please do not hesitate to contact me or Cl

 



lie the BIA Otiice of the General Counsel.
Sir. congratulations on year retirement and your distinguished service to our country.

Very Respectfully,