employee participated in personally and substantially at any time while in government service. This restriction has the same effect as the representational restriction described previously in 18 U.S.C. §§ 203 and 205 and it should make sense intuitively. Put in the most basic terms possible, if you are working on a Coast Guard particular matter that involves specific parties (e.g. a contract, a grant, an investigation, a facility inspection, etc.) you simply cannot take your uniform off and represent a non- federal entity back to the Coast Guard on that same particular matter. This lifetime representational restriction, effective for the lifetime of the particular matter in question, does not legally bar employment itself with any non-federal employer and does not legally restrict any in-house (sometimes called “behind the scenes”) employment activities for any non-federal employer. See 5 C.F.R. § 2641.201(d)(3). For example, if a Reserve officer on extended active duty or active duty for operational support were to serve as contracting officer’s representative on a contract they would be forever barred from leaving the service and making a communication or an appearance on behalf of the non-federal entity (called the specific party) hired to perform that contract. Another example might be where a Reserve officer on active duty recommends issuance of a civil penalty during a facility inspection. That same officer could not be hired by that company at the end of orders and then represent that company back to the Coast Guard in an appeal of that civil penalty. It is important to recognize that this ban does not prevent a Reserve officer from being hired, it only prevents certain representational activities where an officer who was formerly involved in a particular matter then attempts to switch sides and makes an appearance or communication back to the Government with the intent to influence a federal decision on the same particular matter the employee was previously involved in. (2) 18 U.S.C. § 207(a)(2) and 5 C.F.R. § 2641.202 prohibits Reserve officers (but not enlisted members) from switching sides during the first two years following their transition, and making a representational appearance before, or having a representational communication or contact with, any member of the executive or judicial branches of the federal government, on behalf of any person or non-federal entity, with the intent to influence a federal decision, in connection with any of the same “particular matters” involving a specific party or parties that the transitioned officer was officially responsible for during that person’s last year of federal service, but did not work personally and substantially. This rule applies whether or not you were personally and substantially engaged in the particular matter. All that is required is that the particular matter involving a specific party or parties fell within your official cognizance and was handled by one of your subordinates during your last year of federal service and that you either knew or should have known (at the time that you were making the representation) that this was the case. Similar to the rule above, this rule does not bar employment and a member, if authorized to accept the position, can work all matters behind the scenes and can represent their non-federal employer back to the Coast Guard on most matters, just not the particular matters that fell under their official cognizance during their last year of federal service. Additionally, the “one-year cooling off period” set forth in 18 U.S.C. § 207(c) prevents retired flag officers from representing any non-federal entity back to the DHS or any sub-component also applies to reserve flag officers. However, the application of section 207(c) is limited, based on the number of days the individual served during the last year in a senior position. Specifically, the one-year cooling off period applies only to former reserve flag officers who served 60 days or more during the one-year period before terminating their services as a senior employee. Article I, Section 9, Clause 8 of the Federal Constitution prohibits United States citizens who “hold office” from being employed by any foreign government or any entity owned or controlled by a foreign government absent express Congressional approval. Reserve officers and enlisted members “hold office” as that concept is used in this provision of the Constitution. In 37 U.S.C. § 908, Congress authorizes all Reserve (and retired) military members to work for foreign governments (and entities owned or controlled by foreign governments) provided the Reserve (or retired) Coast Guard member first obtains written approval from the DHS Secretary and the Secretary of State. Commandant (CG-1332) processes these approval requests. Failure to obtain advance approval can result in the loss of all military or retired pay for the period of time during which the member engaged in unauthorized foreign Reserve officers are subject to the provisions of the Procurement Integrity Act, 41 U.S.C. § 423 and 48 C.F.R. § 3.104- 3 to the same extent as all former federal employees. This rule does not apply to enlisted members. Ordinarily, reservists are not involved in the procurement process unless they are on active duty and fully trained in all of the laws and regulations relating to procurement. Notwithstanding official involvement in the procurement process, every reservist must avoid a conflict of interest concern relating to their non-federal 50 RESERVIST � Issue 1 • 2021 employment. Application of this rule can be tricky. For example, there is case law that establishes the principle that even an employee of a U.S. company who works overseas may be subject to this restriction if that employee’s activities are directly controlled by the foreign government or is paid with funds received from that foreign government. Reservists considering foreign employment, even with a municipal school system or other seemingly benign activity, should seek advice from their servicing legal office. In addition to the Emoluments Clause, there are other ethics laws prohibiting SGEs from acting as an agent for a foreign principal or relating to aiding or advising foreign governments including on trade or treaty negotiations. Any reservist who works for, aids, or advises foreign governments should seek ethics advice on the impact of these laws and regulations on their foreign employment. employment as discussed in the last article. One Procurement Integrity Act rule potentially affecting reserve officers who are not involved in the procurement process is the prohibition against contracting officers awarding contracts to federal employees. Pursuant to 48 C.F.R. § 3.601, a contracting officer shall not knowingly award a contract to a government employee or to a business concern or other organization owned or substantially owned or controlled by one or more government employees. This policy is intended to W orking for a foreign government or advising on treaties Procurement-related laws
