What restrictions, if any, should apply to former government officials who seek or accept private employment? Chapter 5 of the Government Ethics project examines the ethical concerns that arise when public servants move on to private sector employment.

Presented below is § 501 from the 2018 Annual Meeting draft. The Introductory Note and Black Letter text are included. The full draft contains Comments and Reporters’ Notes.

Chapter 5. Post-Government Employment Restrictions

§ 501 Introductory Note: Elected officials may be term-limited out of office, defeated for re-election, or choose to leave politics, and senior appointees holding political positions may lose office following elections or as a result of political decisions. Even long-time civil servants may choose to retire from public service early enough to pursue a private-sector career. In some fields, public service is often just one step in a career ladder that may involve starting in, or returning to, the private sector. In many cases, the post-public-employment work may involve dealing with the public servant’s former government agency or department. The public servant may have developed considerable subject-matter expertise in the area in which he or she worked that could be very attractive to a private employer. So, too, the public servant may have valuable inside knowledge concerning the informal workings of his or her former agency or department, and may continue to have personal or social ties to, or enjoy the special respect of, his or her former government coworkers that could prove useful in dealings with that agency or department on behalf of a private client or employer. Some of the very features that make the former public servant appealing to the private sector may be a source of ethical concern, leading to conflicts of interest that may result in a loss of public confidence that government decisions are being taken in the public interest. Indeed, public concern about the impact of the so-called “revolving door” on the ability of government to pursue the public interest has been a major driver of post-employment regulation.

There is, however, a real public interest in the turning of the revolving door. Public service in the United States benefits when government is able to hire talented individuals who wish to work in the public sector for a period of time but thereafter intend to return to the private sector. There are benefits for government as well when experienced former public servants who enter the private sector are able to use their expertise to enable private actors to better understand and comply with government regulations and requirements. The principles governing the revolving door, thus, need to balance the public’s interest in preventing the misuse of public office for private benefit and guarding against the appearance of impropriety, on the one hand, with the public’s interest in being able to attract public servants who may also want to consider spending part of their careers in the private sector, on the other hand. In other words, post-government employment restrictions must be strong enough to prevent the exploitation of public office for private gain, but not so onerous as to discourage public service or to preclude the former public servant’s legitimate use for private interests of the knowledge and expertise about public policy and government gained while in public service.

 This Chapter addresses the principles that ought to apply when a public servant leaves public employment for a private-sector position. It consists of four Sections. Section 501 articulates a set of general principles intended to avoid the conflicts of interest and the appearance of conflicts of interest that may arise when a public servant seeks or accepts private-sector employment; when a former public servant works for a private interest on a matter in which he or she was involved while in public service; and when a former public servant appears before or communicates with his or her former agency or department shortly after leaving public service. Sections 511, 512, and 513 then provide more specific provisions to guide the application of § 501’s general principles.

PART A. GENERAL PRINCIPLES

§ 501. Avoidance of Conflict of Interest On and After Leaving Public Service

(a) A public servant should avoid both the possibility of conflict of interest and the appearance of such conflict that would arise if the public servant seeks or accepts an offer of employment from a private individual or organization when the public servant is personally and substantially involved in addressing a particular matter involving the prospective employer. 

(b) A former public servant should avoid both the possibility of conflict of interest and the appearance of such conflict that would arise if, after leaving government employment, the former public servant works for a private employer on a particular matter in which he or she was personally and substantially involved while in public service. 

(c) A former public servant should avoid both the possibility of conflict of interest and the appearance of such conflict that would arise if the former public servant appears before or communicates with his or her former government agency or department within a defined period of time after leaving public service.

 

Richard Briffault

Reporter, Government Ethics

Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. His research, writing, and teaching focus on state and local government law, legislation, the law of the political process, government ethics, and property. In 2014, he was appointed chair of the Conflicts of Interest Board of New York City. He was a member of New York State’s Moreland Act Commission to Investigate Public Corruption from 2013 to 2014, and served as a member of, or consultant to, several city and state commissions in New York dealing with state and local governance.

Kathleen Clark

Associate Reporter, Government Ethics

Kathleen Clark, John S. Lehman Research Professor at Washington University Law, is a leading expert on legal ethics and serves on the D.C. Bar Rules of Professional Conduct Review Committee. She also teaches and writes about ethics standards for current and former government officials and government contractors as well as the law of whistleblowing. Her extensive academic work on government ethics and corruption has been cited in hundreds of books and articles, and her scholarship has been excerpted in casebooks. She has led ethics workshops in Nigeria, Venezuela, Russia, Japan, Poland, Australia & Canada and conducted in-person and web-based ethics training for federal, state and local agencies. Clark recently served as Special Counsel to the Attorney General of the District of Columbia; wrote an Ethics Manual for the District’s 32,000 employees; and provided advice on ethics, open government and campaign finance laws.

Richard Painter

Associate Reporter, Government Ethics

Richard W. Painter is the S. Walter Richey Professor of Corporate Law at University of Minnesota Law School.  From February 2005 to July 2007, he was associate counsel to the president in the White House Counsel’s office, serving as the chief ethics lawyer for the president, White House employees, and senior nominees to Senate-confirmed positions in the executive branch. He has also been active in the Professional Responsibility Section of the American Bar Association. He is a board member and vice chair of Citizens for Responsibility and Ethics in Washington as well as a founding board member of Take Back our Republic, a campaign finance reform organization.

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *