Restrictions Arising from Former Government Service: Two-Year Prohibition with Respect to Particular Matters Under Official Responsibility (18 USC § 207(a)(2))

1.11:620 Restrictions Arising from Former Government Service: Two-Year Prohibition with Respect to Particular Matters Under Official Responsibility (18 USC § 207(a)(2))

Section 207(a)(2) of the Act imposes on the same categories of persons that are subject to the lifetime bar of section 207(a)(1) (i.e., former officers and employees of the executive branches of the United States and District of Columbia) a bar on representational contacts with "intent to influence" with regard to particular matters involving a specific party or parties and in which the pertinent government is a party or has a direct and substantial interest, all of these elements being cast in terms identical to those of the lifetime bar. This bar, however, is broader as to subject matter and narrower as to time than the former prohibition. Specifically, rather than imposing a lifetime ban, applying only to matters in which the former government employee participated "personally and substantially," it applies to any particular matter that the former officer or employer "knows or reasonably should know was actually pending under his or her official responsibility . . . within a period of 1 year before termination of his or her service or employment" with the government in question, and the ban applies for just two years after termination of government service.
As described under 1.11:600, above, subsection (j) of section 207 sets out seven general exceptions to some or all of the post-employment prohibitions contained in that section. The prohibition of subsection (a)(2) is subject to the same four of those exceptions as that of subsection (a)(1), namely, nos. (1)—Official government duties; (3)—International organizations; (5)—Scientific or technological information; and (6) Testimony.

The discussion of section 207(a)(1), under 1.11:610 above, with regard to the term "particular matter" and the nature of the prohibited representational contacts, need not be repeated here, for the language of the two provisions on those points is identical. As to "official responsibility," that is defined by section 202(b) as "direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government actions." The OGE Summaryelaborates that

The scope of an employee’s official responsibility is usually determined by those areas assigned by statute, regulation, executive order or job description. All particular matters under consideration in an agency are under the official responsibility of the agency head, and each is under that of any intermediate supervisor having responsibility for the activities of a subordinate employee who actually participates in the matter. An employee’s recusal from or other non-participation in a matter does not remove it from his official responsibility.

Id. at 5. The Regulations also specify that an employee does not have "official responsibility" for the substance of a matter by virtue of "authority to review or make decisions on ancillary aspects of [it] such as the regularity of budgeting procedures, public or community relations aspects, or equal employment opportunity considerations." 5 CFR § 2637.202(b)(3) .

Since the bar applies only to a matter that the former official "knows or reasonably should know was actually pending . . . within a period of 1 year before the termination of his or her service," it will not apply if the matter was concluded earlier in the former employee’s tenure.

The OGE Summary states that "[a] matter was `actually pending´ under a former employee’s official responsibility if the matter was in fact referred to or under consideration by persons within the employee’s area of responsibility." Id. at 5.

The OGE Summary confirms that whether a former employee "knows or reasonably should know" that the matter had been under the former employee’s official responsibility relates to the state of the former employee’s knowledge at the time of the proposed post-employment representation, rather than to awareness of the matter while still in office. Id. at 5-6. "Reasonably should know" appears to suggest some degree of obligation to make appropriate inquiries of the former agency, at least, and perhaps the prospective client as well. As with the lifetime bar of section 207(a)(1), this bar applies only if the United States (or the District of Columbia) is a party to or has a substantial interest in the matter at the time of the post-employment representation. And as with that bar, this one does not prohibit representation through in-office assistance, such as drafting, counseling, and providing strategic advice. Also as with that bar, it restricts former federal employees only from contacts with agencies of the federal government, and former District of Columbia employees only from contacts with that government. Section 207(a)(3).