Under this statute, reserve officers receive special treatment because of their “special government employee,” or SGE, status. However, the law considers that some members may take orders for more than their two weeks of ADT and sets forth additional restrictions for those who serve between 61 and 130 days during the previous 365 days. Those who serve more than 130 days in the previous 365 days on voluntary orders are the most restricted under this rule and may be treated like any other full- time civilian employee or military officer. In the case of Lt. Cmdr. Baird (from the first article), his voluntary back-to-back orders totaled 208 days, and he was representing a company before his own department or agency, placing him in a situation where he was in violation of the representational restrictions set forth in 18 U.S.C. § 203. This rule can be tricky when triggered, because it not only prevents the individual reservist from carrying out certain representational activities (e.g. representing a third party back to their own department or agency) but may also prevent the reservist from receiving payments associated with the representational activities of others (e.g. a business or law firm partner). Ordinarily, unless a reserve officer has served on ADOS or on an EAD contract, they only incur representational restrictions relating to a particular matter involving a specific non-federal party or parties in which they have, at any time, participated personally and substantially as a reservist through decision, approval, recommendation, disapproval, the rendering of advice, investigation or otherwise. To put it another way, reserve officers cannot represent any non-federal employer back to the federal government on any project or other particular matter in which they participated if, at the time of their participation, that project involved identified non-federal parties. Under all of the conflict of interest statutes, you participate personally if you were involved in the project directly or directly supervised a subordinate; and your participation would be substantial if it was consequential to a particular matter as opposed to merely administrative. The concept of a “particular matter” is viewed broadly under the ethics regulations. Generally, the term “particular matter” includes “any investigation, application, request for a ruling or determination, rulemaking, contract, controversy, claim, charge, accusation, arrest, or judicial or other proceeding.” A reserve officer would have an additional representational restriction if they served on active duty more than 60 days during the previous 365. Here, in addition to the limitations cited above, the reserve officer could not represent a non-federal employer back to any federal agency or the federal judiciary on any particular matter involving a specific non-federal party or parties that was pending in the Department of Homeland Security or the Coast Guard. For a reservist, the practical implication of this rule is that once you have reached the 61st day of active duty service, the representational activities described above must stop until you no longer have 60 days of active service in the prior 365 days. Potentially more confusing is that Reserve officers with more than 130 days of active duty are treated like regular officers and civilian employees under the ethics laws and regulations. However, determining whether the reserve officer will have more than 130 days in a 365-day period must be done prospectively. For example, if a set of voluntary orders is received for more than 130 days, or it’s expected that the reserve officer will ultimately serve more than 130 days in a 365-day period, all representational activities must cease upon receipt of orders and not when the 130 day threshold is crossed. On the other hand, if a Reserve officer receives a set of orders for 90 days with no expectation that they will receive another set of orders, they are still treated as an SGE if they receive an unexpected extension past the 130-day mark. For example, Lt.j.g. Alpha is a Coast Guard officer who just started a one-year EAD contract. He is a 50 percent owner in Charlie Company, which provides ICS training to federal and state agencies and his business partner is a civilian. Once Alpha has entered into the EAD contract, he could no longer represent Charlie Company (e.g. serve as trainer in a FEMA facility) because he is treated like a regular active duty officer. If Alpha was brought on ADOS for 45 days, he would still be considered a SGE and could engage in representational activities that did not otherwise conflict with his federal duties so long as he had command approval and could do so without misusing his position or otherwise violate the Standards of Ethical Conduct. Once the time period has lapsed (you no longer have 60 days of service in the previous 365 days) your ability to be hired to serve in a representational capacity to the Coast Guard or DHS would not be impaired except for those particular matters in which you were personally and substantially engaged that involved a specific party or parties. If you accept another set of orders, the days counted to determine whether you have more than sixty days in the previous 365 accrue on a rolling basis. Even if you have over sixty days of active duty in the previous 365, however, once you leave active duty you may represent non-federal entities to non-DHS federal agencies, any state or local government, or to any non-federal entities barring certain post-employment representational restrictions relating to the particular matters that you worked on regardless of time served, which we’ll discuss in the next issue. Again, we can’t stress enough: these are difficult issues. Seek guidance from the servicing legal office to determine which, if any, restrictions apply to your particular set of circumstances. � — Story by by Capt. Mike Barton and Lt. Natalie Bernadt Issue 2 • 2020 � RESERVIST 41
