Aug 27

Legal Considerations for Military Leaders in Transition

Cal Lederer Senior military leaders have many issues to address as they prepare to transition from military service. Not the least of these include the legal aspects that must be carefully considered.

I asked Cal Lederer, a senior federal sector attorney who also served on active duty, for his thoughts on this issue.  (Please note that Mr. Lederer’s comments do not represent the views of any government agency and should not be considered legal advice.)

VSB: Recognizing that each case is different, what are some of the general legal considerations senior military leaders should consider before, during and after they leave military service?

Lederer: Senior leaders are regularly reminded about the Standards of Ethical Conduct for Employees of the Executive Branch and may become accustomed to frequently recurring circumstances that raise ethical issues. Transition introduces a number of new rules and senior leaders have to pay scrupulous attention to them during the job search and after departure because violations can result in investigations and notoriety, and some can result in criminal liability. Most of the rules that apply to looking for work are in 5 C.F.R. Part 2635, Subpart F (accessible at www.usoge.gov) which is readable and provides helpful examples. The post-employment rules are in 5 C.F.R. Part 2641 and, among other issues, address:

  • the one-year cooling off period that prevents most senior leaders from communicating to or appearing before the agency;
  • the two-year ban on representation in connection with a particular matter involving specific parties which was pending under the leader’s official responsibility, and;
  • a lifetime ban on switching sides in particular matters in which the officer personally and substantially participated.

Every agency has ethics attorneys who will provide briefings on ethical implications of post-government service. Often, these attorneys make themselves available after separation to address questions that may arise; senior officers should not hesitate to take advantage of this service.

VSB: At what point, from a strictly legal perspective, may senior military leaders still on active duty begin to have informal conversations with prospective civilian employers, assuming the employers are not currently conducting business with the individual’s military service?

Lederer: Basic obligations of public service are:

  1. not engaging in activities, including seeking or negotiating for employment, that conflict with official duties and responsibilities and:
  2. avoiding any actions creating the appearance of violating the law or ethical standards.

A flag or general officer can talk with any potential non-federal employer before leaving federal service but seeking or negotiating for employment before the retirement date triggers reporting requirements and generally requires disqualification from duties affecting potential employers.

Seeking employment occurs when the senior leader directly or indirectly engages in negotiations for employment or makes an unsolicited communication to a person regarding possible employment. This does not preclude submitting a resume even to an entity generally within an industry or other discrete class that can be affected by how the leader performs official duties, but it’s not permissible to send a resume to an entity that may be particularly affected by the officer’s activities.

Once a response to a resume is received indicating an interest in discussing employment, the senior leader is considered to be seeking employment. An overture to a senior leader isn’t a problem if the leader rejects the possibility of employment and avoids any discussions; deferring discussion to a later time, however, isn’t rejection.

Reporting requirements include a written report of employment discussions with the ethics attorney. If the employment contact is with a known or anticipated competitor for a federal contract in which the officer is involved, a report to both the officer’s superior and the ethics attorneys and is necessary. Once an officer is seeking or negotiating employment, the officer can’t thereafter participate in any particular matter that will have a direct and predictable effect on the financial interests of the potential non-federal employer.

There isn’t likely going to be the requisite effect where a potential employer hasn’t done business in the past with the officer’s particular service and isn’t likely to in the future, but it can’t be automatically ruled out – hence the value of consulting with the ethics attorney.

Quite apart from bright lines in the rules, or the potential ability to seek disqualification, a senior officer ought to assess how people in the service or in the public will view employment discussions with particular people or companies.

VSB: Is there anything illegal or inappropriate about doing research about a new civilian career while still on active duty?

Lederer: There’s nothing illegal or inappropriate about doing research about a new civilian career while still on active duty. That can include talking with others who are not potential employers or agents or intermediaries of potential employers.

VSB: Any other general things senior military leaders should keep in mind as they prepare for transition into the civilian workforce?

Lederer: Quite apart from ethical issues, senior leaders should review their personal affairs upon retirement. That includes in particular estate planning and their amenability to state and local taxation once they are no longer on active duty.

VSB: How about Reserve officers?

Lederer: Reserve flag and general officers who serve on voluntary or involuntary active duty are treated the same as active duty officers for purposes of the employment search conflict of interest rules as well as the post-federal service ethics rules, including the one and two-year rules, and the lifetime ban on switching sides. Officers who only perform their routine inactive duty for training are not affected by the one-year rule that places the service off-limits for that period, but would be affected by the other rules which are based on the actual exercise of their official duties.



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