The United States military is losing its technical edge to adversaries like China and Russia. What the Department of Defense (DoD) is doing about it is no secret — acquisition rules are being bent, and every effort is being made to embrace nontraditional defense contractors. But with the stakes as high as they are, the DoD needs to go further and bend the federal ethics rules to its favor. By doing so, participation in public-private exchange programs like the Intergovernmental Personnel Act (IPA) mobility program will drastically increase, and the U.S. military will have unbridled access to the nation’s top scientists.
Through the IPA mobility program, personnel such as leading researchers are able to embed themselves into governmental positions and bring a unique perspective to issues critical to our national security.Unfortunately, the current structure of the IPA mobility program is problematic. In particular, researchers on an IPA assignment are deemed to be federal employees and are consequently subject to criminal conflict of interest statutes, including post-employment restrictions.This has contributed to the underutilization of the IPA mobility program across agencies, with an average assignment of only about ten non-federal employees per year between 2004 and 2009. It is time to reassess the ethics rules for non-federal employees on IPA assignments. This article will first provide an overview of the IPA program and the current ethics rules associated with non-federal participants in the IPA program (IPA or IPAs). Second, it will discuss the problems associated with the current ethics rules. Lastly, the article will make recommendations for improvement.
The IPA is a personnel mobility exchange program that enables specific non- federal organizations to exchange personnel with the federal government and vice versa.Exchanges under the IPA mobility program have been very successful for both the government and the participating non-federal organization in closing a large science and technology gap that exists within the federal government.And while many other types of personnel exchange programs are authorized by Congress, the IPA mobility program is uniquely geared towards partnering with nonprofits, universities, and Federally Funded Research and Development Centers (FFRDCs).
The IPA mobility program was established under the Intergovernmental Personnel Act of 1970. It is codified at 5 U.S.C. §§ 3371–3375 and permits the temporary assignment of personnel back and forth between federal agencies, state and local governments, Indian tribal organizations, and “institutions of higher education and other eligible organizations.”These “other organizations” include nonprofits and FFRDCs.“These assignments are intended to facilitate cooperation between the [f]ederal [g]overnment and the non-[f]ederal entity through the temporary assignment of skilled personnel.”
Initially, the IPA aimed at improving the personnel resources of state and local governments only, and most of the assignments were from the federal government to state and local governments. This is evident from the title of the Act (“Assignments To and From States”); 5 U.S.C. § 3372(e)(2) further clarified that “assignment[s] of an employee of an other organization or an institution of higher education to a [f]ederal agency . . . shall be treated in the same way as an assignment of an employee of a [s]tate or local government to a [f]ederal agency.” As the program evolved, some agencies within the federal government realized they benefited more through exchanges with college and university personnel seeking government experience and consequently shifted focus towards those types of exchanges. Today, IPA exchanges are generally used to achieve the following objectives:
[1.] [Strengthen] the management capabilities of [f]ederal agencies, [s]tate, local and Indian tribal governments, and other eligible organizations;
[2.] [Assist] the transfer and use of new technologies and approaches to solving governmental problems;
[3.] [Facilitate] an effective means of involving state and local officials in developing and implementing [f]ederal policies and programs; and,
[4.] [Provide] program and developmental experience which will enhance the assignee’s performance in his or her regular job.
As the objectives are broad, all agencies can utilize the IPA mobility program authority.While the Office of Personnel Management (OPM) provides implementation regulations at 5 C.F.R. Part 334, each agency is responsible for actually administering its own programs.The process for effectuating a personnel exchange can be quite cumbersome and complex, depending on the specific agency.For example, some agencies have “dedicated personnel” handling the matter of administration, while others leave the individuals on their own, which can result in confusion and additional delays.
A key benefit of the IPA mobility program is the technology transfers that result. For agencies that have large budgets and that focus on science and technology, such as the DoD, the National Aeronautics and Space Administration (NASA), and the Department of Energy (DoE), these exchanges are critical and serve to “fill in gaps in expertise and knowledge.” The individual IPAs themselves benefit immensely from gaining an outside perspective, learning about different processes and structures, and developing new skills which can be transferred back to his or her home entity.
Non-federal government employees may be either appointed to a federal agency or “be deemed on detail to the [f]ederal agency.”Under an appointment, the employee is entitled to pay from the federal agency and is also deemed an employee of that federal agency.In contrast, under a detail, the non-federal government employee “is not entitled to pay from the [federal] agency” unless the pay received from the non-federal entity “is less than the appropriate rate of pay” for the duties undertaken at the agency.Interestingly, the non-federal employee is also deemed an employee of the federal agency for purposes of tort liability and certain federal ethics rules. The distinction is important in theory because IPAs on detail are deemed to be federal employees for limited purposes but also remain employees of their home organization — they wear two hats. This means that an IPA on detail “may only serve in an advisory capacity” and cannot supervise federal personnel, sign documents, or issue policy. Conversely, IPAs on appointment are considered federal employees only and have no restrictions as to what positions they can fill and what access to information they can have. That said, since the ethics rules apply equally to both detailed employees and appointed employees, there is no practical distinction.
“Organizations interested in participating in the IPA mobility program” are required to seek approval and “have their eligibility certified by the [f]ederal agency with which they are entering into an assignment.”FFRDCs are automatically eligible to participate in the program, while all other entities must request certification.The OPM has final authority in eligibility determinations. IPA assignments are encouraged where the partner organization and the government benefit from participation. The benefits should be shared and are the primary consideration when initiating the assignment. Nevertheless, assignments are voluntary, and participation by the employee cannot be required.
The length of an IPA assignment is initially authorized for up to two years but may be extended by mutual agreement.After four years, the employee must return back to his or her home organization for a twelve-month period before becoming eligible again for an IPA assignment. Thus, the cycle can continue many times over and with minimal breaks, and IPA assignments could last indefinitely. In fact, overdue assignments are not uncommon and have been an issue for agencies in the past.
Once an IPA assignment has been approved, there is a requirement to enter into a written agreement.“[T]he agreement should specify that the [non-federal] employee can return to the non-[f]ederal position occupied prior to the assignment or to one of comparable pay, duties and seniority and that the employee’s rights and benefits will be fully protected.”The agreement should also include the goals of the assignment and how they will be achieved, the applicability of the federal conflict of interest laws, as well as what expenses, costs, and benefits are covered.
A number of ethics rules are applicable to IPAs.Specifically, conflicts of interest rules may apply during the IPA assignment, but some carry over even after the assignment is terminated. Both the non-federal organization and the individual IPA have to be aware of these rules and the resulting impact that the rules will have on their work before, during, and after assignment. This can lead to some challenging situations because many times IPA assignees are forward deployed, meaning that they are already sent to a government agency prior to the assignment officially beginning. This schedule complicates matters for ethics determinations, since it is not yet known what role the IPA assignee will have and training will not yet have been provided. Unfortunately, the rules simply do not account for these situations. A brief overview of the relevant rules, along with a discussion of ways in which common problems can arise, is discussed below.
18 U.S.C. § 203 and § 205 are considered representation bans and prohibit employees from representing anyone before a federal agency “in connection with any covered matter in which the United States is a party or has a direct and substantial interest. . . .” The difference between the two sections is that under § 203, the employee receives or solicits compensation.
Where these prohibitions often come into play is through grants or other agreements between the home organization and the federal agency.For example, a Principal Investigator (PI) on a grant is prohibited from representing his or her employer before the agency to which he or she is assigned.This restriction means that he or she cannot sign or submit grant paperwork or applications to the agency, as it would be a violation of the “representation” prohibition. Because many universities and professors apply to and rely on grants and regularly submit research proposals for such grants,this becomes a trap for the individual IPA. If the IPA is on a full-time detail as opposed to working part-time for the agency, then it would be wise for the IPA to no longer be the PI on the grant. Part-time IPAs on detail may continue to work on the grant but should be careful not to sign anything.
18 U.S.C § 208 addresses personal financial conflict of interest prohibitions. Section 208 “prohibits an employee from participating personally and substantially in any particular matter that would have a direct and predictable effect on his [or her] own financial interests.”The prohibition extends to financial interests of any organizations where he or she “serves as [an] officer, director, trustee, general partner or employee[,] or any person or organization with which he [or she] is negotiating for, or has any arrangement concerning, future employment.”
Problems can arise here when the IPA is not aware that certain actions could financially benefit his or her organization. For example, an IPA working in an agency may influence a program manager to award a contract or increase work under an existing contract at his or her home organization. The problem here is that the home organization would receive a financial benefit where the IPA is still an employee of that organization.
Another example of a potential conflict is highlighted in an Air Force ethics opinion involving a Dr. Bravo from The Center for Applied Technology (TCAT) on an IPA assignment with the Air Force Surgeon General’s Department.In the opinion, the Air Force discusses a potential violation of 18 U.S.C. § 208(a) and 5 C.F.R. § 3562.402.The facts from the opinion are as follows:
[TCAT is] affiliated with Texas A&M University. Pursuant to an IPA, [Dr. Bravo] was appointed to serve as the Director of the Office of Applied Solutions in Operational Medicine (ASOM), which is a position within the Air Force Medical Services Agency. ASOM is responsible for development of a research and development program called Portable Remote Diagnostics, Information and Telecommunications Suite (PoRDITS). Currently, the Air Force has a research and development contract with TCAT to explore the feasibility of PoRDITS. This raises a potential conflict of interest because Dr. Bravo heads ASOM at the same time he has a “covered relationship” with TCAT.
The issue presented in the ethics opinion is “whether Dr. Bravo should be permitted to provide technical advice and consulting on the project, as well as training and other non-contracting activities involving PoRDITS.”In its analysis, the Air Force discussed the key to correctly applying the conflict of interest restriction: to “identify those duties that will have a ‘direct and predict- able’ effect on TCAT’s financial interests, because their interests are attributable to Dr. Bravo.”Breaking this analysis down further, the Air Force stated that activities such as training would not directly provide a financial benefit to either TCAT or Dr. Bravo. On the other hand, providing technical advice or consulting is fact-specific — and because Dr. Bravo was also the director of the agency, technical advice could be seen as a directive as opposed to advice. Advice from the director could be critical to the project and thus trigger the conflict of interest restriction. Another matter discussed in the opinion was the appearance of a conflict of interest under 5 C.F.R. § 2635.502.The Air Force concluded that until a clear consensus was reached between Dr. Bravo and his legal advisors as to what activities are permissible, activities related to PoRDITS should be avoided.
In another example, a technical member of a Federal Laboratory on IPA with the Office of the Secretary of Defense (OSD) was found to violate § 208 when he engaged in conversations, technical interchanges, and related procurement activities with his Federal Laboratory employer. As a corrective action, the technical member was made to completely discontinue any programmatic interactions with the Federal Laboratory and seek training and legal opinions from OSD, and the Federal Laboratory was required to disclose the conflict to the Inspector General.
As discussed above, violations under § 208 are potentially one of the largest pitfalls for IPAs.Many IPAs on assignment influence policy and technology objectives within federal agencies or departments.This is the benefit that the government receives — experts and strategic thinkers who bring innovative insights to the government. Despite these numerous benefits, that conflicts can hamper the development of IPAs remains a significant challenge. In the case of an FFRDC, many times the FFRDC is the only entity capable of per- forming the innovative work. In some cases, when an FFRDC is operated by a university, this can be true for universities as well. Therefore, engaging in conversations about how the work can be carried out with the FFRDC or the university and the agency is vital. Yet, it remains problematic under the current ruleset and counterproductive to the intent of the IPA itself. While careful consideration must be given to avoid these types of conflicts, particularly special consideration should be applied in cases where organizations have unique capabilities unmatched by others in industry. For example, the Government Accountability Office (GAO) has studied the problem of conflicts of interest within the Department of Homeland Security (DHS), particularly the agency’s internal controls designed to mitigate such conflicts.In response to its study of the DHS’s ethics management controls, the GAO recommended that management controls be improved, including conducting regular ethics trainings for IPA participants and establishing monitoring and oversight programs for IPAs.
With legislative leaders cognizant of some of these problems, a specific exemption was carved out for university employees, found at 5 C.F.R. § 2640.203(b). This exemption essentially allows for the employee to violate § 208 relating to matters of “general applicability affecting the financial interests of the institution from which he [or she] is on [official] leave ” That said, the FFRDC example noted above would not be excused in this case. The regulation includes the following example on this exact point:
An employee on leave from a university could not participate in the development of an agency program of grants specifically designed to facilitate research in jet propulsion systems where the employee’s university is one of just two or three universities likely to receive a grant under the new program. Even though the grant announcement is open to all universities, the employee’s university is among the very few known to have facilities and equipment adequate to conduct the research. The matter would have a distinct effect on the institution other than as part of a class.
Additionally, this exemption only applies to institutes of higher education and thus misses the mark on all of the other eligible classes of participants in the IPA mobility program. The problem becomes even more nuanced given the fact that some FFRDCs are run by a university (e.g., the Software Engineering Institute, administered by Carnegie Mellon University), while others are not (e.g., the Center for Enterprise Modernization, administered by MITRE Corporation). Inconsistent application of the rules to FFRDCs has become a sore spot for many would-be participants in this important program.Additionally, the exemption is fact-specific and requires careful analysis.
As discussed below, 18 U.S.C § 207 contains expansive post-employment restrictions with various time limits. These restrictions follow the employee even after an IPA assignment is terminated. Many agencies provide IPAs returning back to their originating organization with a post-employment letter outlining which restrictions follow them back home. Moreover, certain DoD officials, who expect to receive compensation from a defense contractor within two years of leaving the DoD, must request a written opinion on the applicability of post-government employment restrictions. Importantly, the letters, while issued by government ethics advisors, are not considered legal advice to that particular individual.
i. Permanent Restrictions
Section 207(a)(1) contains what is known as a lifetime representation ban. This restriction applies to representing others before or against the U.S. Government in connection with a “particular matter” involving “specific parties” in which the former employee participated “personally and substantially.” This language is meant to cover a case of “switching sides,” where the employee worked closely on a matter for the government and then switches sides to the private sector and tries to influence the government on that very same issue.
While this prohibition is narrow in scope, it carries a lifetime requirement that can often be overlooked. For example, an IPA working for the Defense Advanced Research Projects Agency (DARPA) as a program manager will receive a lifetime ban from representing the non-federal entity on any acquisitions or contracts that the IPA personally or substantially was involved in during his time at the DARPA. While the lifetime ban does not apply to “behind-the-scenes” work, because the lifetime ban is fact-specific,it is prudent for an IPA returning from assignment to seek legal guidance on his or her specific situation. That said, potential IPAs learning of a lifetime ban may steer clear of certain assignments that they do not necessarily have to do or may choose to forego participation as an IPA altogether. A lifetime restriction hanging over the heads of IPAs is detrimental to the success of the IPA program even if it rarely occurs.
ii. Temporary Restrictions
Section 207(a)(2) contains a two-year restriction, which is similar to the life- time ban but removes the “personal and substantial involvement” requirement. Instead, former employees are prohibited from representing others in connection with the same particular matter involving specific parties that was pending under the employee’s official responsibility during the last year of his or her federal employment. Turning back to the DARPA example, a program manager may have official responsibility over a particular matter despite not personally participating in that matter and therefore would be subject to the two-year restriction.
Section 207(c) is a one-year restriction that applies to former senior employees.It prevents a former senior employee from representing anyone before his or her former agency or department in connection with any matter for one year after the termination of his or her employment. If, in the DARPA example, the program manager was not found to have official responsibility over a matter, but the manager was considered a senior employee, then the one-year restriction would still apply. This restriction is broad and means that the individual who has developed a strong relationship with an agency (in this example, DARPA) may not be able to work with DARPA in any capacity for one year.
Understanding the scope and breadth of these temporary restrictions is important. A “seniority” designation may apply based on salary alone, even where actual decision-making authority may be minimal. Imputing a one- year ban based on salary alone should be a cause for concern. Many experts are better compensated in the private sector, and the government has trouble recruiting and retaining these individuals partly due to lower compensation.The IPA mobility program serves as bridge between this disconnect, but these ethics rules could be a deterrent for participation in the program. Seniority should not be based on compensation alone for IPA assignees.
The Procurement Integrity Act (PIA), codified at 41 U.S.C. §§ 2101–2107, is implemented through Federal Acquisition Regulation (FAR) 3.104 and prohibits the release of source selection, contractor bid, or proposal information before a contract award.FAR 3.104-3(d) sets out prohibitions on a “former official’s acceptance of compensation from a contractor” within a period of one year after certain actions occur: the former federal official cannot accept compensation from a contractor as an employee where the official has served in a source-selection, Contracting Officer, or program management position, or made certain procurement-related decisions, such as awarding a contract for a contract greater than ten million dollars to the same contractor.
In many circumstances, IPAs are brought in to help manage a portfolio of programs and provide strategic guidance on technical issues. IPAs may be acting in the capacity of a program manager without knowing so under guidance contained in an obscure 1999 DoD Standards of Conduct Office (SOCO) memorandum.In the 1999 memorandum, the SOCO advised DoD Component ethics counselors to “consider the functions performed by the individual, for example whether he or she actively manages the program cost, performance and schedule of the assigned program, regardless of the title given the individual” when issuing an ethics advisory opinion.Therefore, the one-year restriction can be broadly enforced and may seriously impact the types of appointments an IPA can accept or, conversely, foreclose certain job opportunities upon returning back to his or her home organization. Further compounding the problem, FFRDCs often operate under single billion-dollar prime contracts, with projects spanning across dozens of government agencies, and therefore it would be easier for an IPA from an FFRDC to violate this rule.
An organizational conflict of interest (OCI) occurs where “a person is unable or potentially unable to render impartial assistance or advice to the [g]overnment, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.”The three basic types of OCIs are: (1) “biased ground rules (FAR 9.505-2)”; (2) “impaired objectivity (FAR 9.505-3)”; and (3) “unequal access to information (FAR 9.505-4).”FAR 9.508 contains specific examples of each of these types.
Impaired objectivity is one of the more relevant OCIs for the purposes of this article’s discussion. Impaired objectivity can occur where an IPA is on a source selection panel or part of the technical review team and may be reviewing his or her organization’s own proposal or technology. The agency where the IPA is working may want to discuss the proposal with the IPA or learn as much as possible while still toeing the ethics line. In such cases, the IPA should take care to stay far away from the proposal review. If the home organization continues to submit proposals and perform on current contracts, there is some risk of an ongoing OCI. All parties must therefore proactively work to avoid OCIs and appearance issues that can result from having someone on both sides of a proposal or contract.
Violations of the ethics rules carry stiff penalties for both IPAs and the non- federal partner. Avoiding violations may mean that a returning employee must find a position within his or her home organization that is different and distinct from what he or she is doing as an IPA. This may lead to a decreased benefit to the home organization.
18 U.S.C. § 216 is the penalties provision for violations under §§ 203, 205, 207 and 208. Penalties may include imprisonment for up to one year or fines. Willful violators may see up to five years’ imprisonment. Additionally, under FAR 52.203-13(b), contractors are required to disclose to both the agency’s Office of the Inspector General and the agency’s Contracting Officer any violation of federal criminal law involving conflicts of interest “in connection with the award, performance, or closeout” of a contract. DoD contractors would also need to comply with the requirements in Defense Federal Acquisition Regulation Supplement (DFARS) 252.203-7000 regarding restrictions on compensating former DoD officials. Consequences of violations of this clause include suspension and debarment. Therefore, even where the individual IPA is at fault for a violation of the ethics rules, the home organization as a contractor could still be subject to investigation and may face severe consequences, such as suspension and debarment.
Penalties under the PIA are covered in 41 U.S.C. § 2105 and FAR 3.104-8. Those penalties include both civil and criminal, along with harsh administrative penalties. Criminal penalties include imprisonment of up to five years and fines. Civil penalties include individual fines of up to “$50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct.” An organization itself may be civilly liable for up to “$500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct.” Administrative actions, including cancelling a procurement, rescinding a contract, or even suspension and debarment proceedings, may also be carried out.
Because the stakes are so high and there are many challenges associated with running a program, organizations may be reluctant to participate in the IPA mobility program. Many universities and nonprofits rely on federal funding to sustain their research. FFRDCs exist for the benefit of the government and are funded using federal dollars. If, for some reason, an IPA assignment creates an OCI or results in a violation of a criminal conflict of interest statute, the resulting liability could be devastating. The risks must be well understood, and plans to avoid and neutralize all conflicts of interest must be developed.
Post-employment restrictions can result in career-altering changes for IPA assignees. After fulfilling their assignments, which include providing expertise in unique areas of science and technology, assignees are often limited in or altogether prohibited from doing the same work within their home organizations. For example, an FFRDC with unique expertise on missile defense technology may send an employee to the missile defense agency on loan for several years through the IPA program. This exchange is designed to educate both the agency and the employee on agency needs and strategy on missile defense technology and strategies. Depending on the employee’s salary, status, and role within the agency, he or she may return back to the FFRDC with unmanageable restrictions relating to missile defense work. Such restrictions are detrimental to the federal government, the individual, and the home organization.
Understandably, IPAs may be reluctant to share certain information with the federal government for fear of creating a conflict or violating a criminal prohibition. For example, the government may want an IPA assignee to share information about his or her home organization’s research programs and future research plans so that the agency and the organization can better align with each other. The idea, of course, is that everyone benefits from the relationship. This article argues that the ethics rules, as currently written, may actually prohibit this exchange. Depending on the specific facts of an exchange, the IPA or the home organization could end up violating any one of the previously discussed prohibitions, despite the fact that the program is designed so that all parties can reap the benefits of the exchange.
The current ruleset needs to be updated. While there are statutory and regulatory exceptions already in place, they are often fact-specific and can be unreliable if interpreted incorrectly, especially when the penalties can result in incarceration. And while incarceration may be appropriate in extreme cases and certainly works to stifle corruption and self-dealing in the commercial world, the backdrop of criminal sanctions hanging over nonprofit researchers should be seen as an overreaction. Applying a one-size-fits-all approach is simply not working anymore, and it is costing the government valuable intellectual capital and advice. The recommendations discussed below would help correct this imbalance.
The primary source for exceptions to the conflict of interest rules are found in 18 U.S.C. § 207(j). The Office of Government Ethics (OGE) provides additional guidance related to these specific exceptions in 5 C.F.R. § 2641. Section 207(j)(2) is an exception limited only to senior and very senior employees of state and local government, degree-granting institutions of higher education, hospitals, and medical research organizations. Specifically, § (j)(2) exempts senior and very senior positions from restrictions found in §§ 207(c), (d) and (e) in certain cases. To help understand these nuances, the OGE provides the following example:
A senior employee leaves her position at the National Institutes of Health (NIH) and takes a full-time position at the Gene Research Foundation, a tax-exempt organization pursuant to 26 U.S.C. 501(c)(3). As an employee of a 501(c)(3) tax-exempt medical research organization, the former senior employee is not barred by 18 U.S.C. § 207(c) from representing the Foundation before the NIH.
Thus, the above exception removes the very broad one-year post- employment restriction in § 207(c), but the two-year restriction in § 207(a) remains in place. IPAs are tasked with ensuring that their home organizations fit within the “specified entities” enumerated in the OGE guidance, which is why OGE provides specific examples on this matter. IPAs returning to FFRDCs may or may not be entitled to take advantage of this exception, depending on whether the FFRDC is or is not managed by a university. This exception needs to be broadened to include all FFRDCs because many of the IPAs are employed at a senior level. When they return to the FFRDC after an assignment, some may be disqualified from communicating with their agency, while others are indiscriminately allowed to make the same communications. Thus, this article recommends a wording change to this section that would explicitly add the word “FFRDC” to the exception.
Similar recommendations to those proposed in this article have been made on this issue. The DoD Panel on Contracting Integrity offered a fix to the FFRDC problem by recommending revising § 207(j). The National Academy of Public Administration convened an independent panel to review the DoD’s recommendation on post-employment restrictions and ultimately decided that the DoD’s recommendation did not go far enough because it was limited only to FFRDCs and did not address political appointees and acquisition personnel. The Section 809 Panel also brought attention to this acquisition issue in its Recommendation 61, where it called for a “comprehensive public-private exchange program for [the] DoD’s acquisition workforce.”
The Panel also made recommendations on ways to strengthen these programs while avoiding the many potential conflict of interest prohibitions; the recommendations included the establishment of a new program pursuant to Chapter 87 of Title 10 of the United States Code, with new authority to remove OCIs in certain circumstances. With the acquisition issue addressed, the FFRDC recommendation by the DoD should be revisited — especially where its applicability can be utilized government-wide and not just by the DoD. Furthermore, political appointees can be issued waivers from conflicts of interest by the President of the United States, and such practices are becoming more and more frequent. This may be an additional indication that the current ruleset needs adjustment.
Another post-government employment exception needing an update is § 207(j)(5). This exception to the ethics rules is reserved for communications made “solely for the purpose of furnishing scientific or technological information.” For the exception to apply, such communications must be either made (1) “under procedures acceptable to” the agency concerned with the matter; or (2) through certification by the head of the agency. The certification requires both consultation with the OGE and publication in the Federal Register. The publication must state that the former employee has “outstanding” scientific or technical qualifications, that the employee “is acting with respect to a particular matter which requires such qualifications, and that the national interest would be served by the participation” of the former employee. Subsections (a), (c), and (d) are exempt when these requirements are met.
The language is very specific, as it refers to communications being “solely for the purpose.” Additionally, the certification process is intended only to be used in “exceptional” cases. Agency heads may limit “their certification to only certain . . . substantive restrictions,” such as waiving only § 207(c). Both the procedures and certification standards are therefore problematic for former IPAs due to the limited scope of the exception and interpretation by the agency and OGE. Because the post-employment restrictions are already in place, the former IPA and employer must be very cautious here.
This article suggests including a broad-based communications exception for national security purposes or, alternatively, using the “best interest of the [government]” standard frequently cited in the FAR. The original 1962 certification process only required that the exception be made when in the “national interest” and when the employee possessed “outstanding scientific or technological qualifications.” Returning to a more flexible standard, especially where national security could be implicated, would benefit both the government and the former IPA.
As discussed throughout the article, the current and post-employment rules can be overwhelming and difficult to manage for all parties participating in the IPA mobility program. The OPM should mandate legal opinions from the OGE and perform ongoing assessments over both the lifetime of the IPA assignment and upon separation. Engagement early on and throughout the assignment under the current rules could help to avoid future conflicts and provide coverage where grey areas exist. Additionally, IPAs must receive updated and continuous training, which should be provided by the agency in consultation with the OGE where necessary. While this may require additional resources, the rules and associated penalties dictate that this approach is necessary.
Another potential remedy is to reclassify IPAs as something other than federal employees for ethics determinations. The government recognizes the concept of a “special [g]overnment employee” (SGE) in 18 U.S.C. § 202(a). An SGE is an officer or employee who is employed to perform temporary duties for not more than 130 days out of 365 consecutive days. SGEs are waived from many of the conflict of interest rules, including 18 U.S.C. §§ 203, 205, 207, and 208. Under this article’s proposal, IPAs could receive similar treatment under the regulations but for extended periods of time. This could be implemented within § 202 so that the definition of SGE includes IPAs. In the case of an IPA, the term limit could be limited to the duration of the IPA assignment. Understandably, eliminating many of the conflict provisions may be seen as radical, but combining this approach with additional training and consultation with the OGE may resolve many issues in advance. Clear lines can still be set out by the agency and the home organization such that the public interest is served while the intent of the IPA mobility program is also fulfilled.
Critics may argue that treating IPAs as SGEs — and thus bending the ethics rules more generously for IPAs — would create risks that the current rules are specifically designed to avoid. These fears are easily dissuaded. In the context of nonprofit research, there is simply no profit motive for these types of organizations, and therefore there is a reduced chance of self-dealing and ethical violations. Moreover, FFRDCs are already constrained in every way possible, from the amount of work that they can take on to the number of employees that they can retain to the type of work they can perform. FFRDCs must also be operated “in the public interest, free from organizational [and personal] conflict of interest” and must disclose their affairs to the government. Given all of these limitations, it seems clear that the proposed changes would not be very risky and would also strongly benefit national security. That being said, commercial contractors and industry may look to undermine some of these changes as they look to keep any potential advantage possible in winning new work. While this is a legitimate risk and could potentially explain why some of the changes have yet to be made, the defense budget is healthy, and industry partners continue to turn a large profit, with plenty of work to go around.
The current ethics rules are applied inconsistently and too narrowly for the IPA mobility program to truly benefit all parties involved in the exchange. There is often a one-sided benefit back to the government, which is contrary to the intent of the program. To reset this balance, changes to the ethics rules should be adopted quickly. As Congress continues to authorize the DoD with new authorities and a massive budget in order for the military to regain its technical edge, ethics rules should also become more flexible around technology and information exchanges. The proposed changes would not be difficult to implement, as all that is necessary are minor wording changes in 18 U.S.C. and additional policy from OPM. As the IPA is set to turn fifty soon, it is time to reflect on its serious drawbacks and make the case for national security.
