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5 July 2013

11 WG/JA

1500 W. Perimeter Rd. Ste 2110

Joint Base Andrews, MD 20762

Dear Mr. Rhodes,

You recently requested a review for a conflict analysis “30-day letter.” Upon review of your

request, I conclude you are not subject to the restrictions of either 18 U.S.C. §§ 207(a)-(c) or the

Procurement Integrity Act, 41 U.S.C. §§ 2101-2107.

The Procurement Integrity Act includes four provisions which target civilian employees who

work with contracts and in procurements. There are seven restrictions which apply to several authorities

on contracts over $10 million. Your previous duties (outlined below) as Chief Engineer at the AFSPC

and MCSW involve no contract procurement-related duties. Sections 2101 -2107 only apply to those

who either currently advise the government regarding procurement or have done so in the past. Because

you did not participate in any related work, this act does not apply to you.

18 U.S.C. § 207(a) includes two restrictions for all Air Force employees. § 207(a)(1) first, places

a lifetime ban on “making, with the intent to influence, any communication to or appearance before an

employee of the U.S. on behalf of any other person in a particular manner involving a specific party in

which the employee participated personally and substantially as an employee and in which the U.S. is a

party or has direct and substantial interest.” The term “particular matter” means the proceeding must be

the same one the officer or employee also worked on or was involved with during his/her time with the

government. Also, this work or involvement must have been personal even if directing a subordinate, as

well as substantial, or significant. Generally, § 207(a)(1) is concerned with government employees,

deeply involved in a particular matter, who switch to the private sector and represent others in the same

matter. This undermines the public’s trust in the fairness of their government. It seems as the employee’s

personal influence, gained while working for the Government, provides an advantage in the

Government’s decision-making process.

In your case, from June 2009-September 2012, you were a federal civilian employee for the Air

Force Space Command (AFSPC) and Space and Missile Command (SMC) MILSATCOM Systems Wing

(MCSW) as the Technical Director of Engineering and Chief Engineer. In this capacity you guided the

SMC organizational components through the Department of Defense and Air Force directives. In your

possible future position at Digital Prospectors Corporation (DPC) as Site Lead Engineer, you will be the

primary liaison to the Government, develop DPC’s understanding of relevant government activities, and

set up field sites. Accepting this new position is not restricted by 18 U.S.C. §207(a)(1). This is because

you will not be representing DPC on a particular matter which you also participated in personally and

substantially at the AFSPC and SMC. There is no indication from your job descriptions that you will

involve yourself at DPC in any of your former government projects, meaning this statute’s restrictions do

not apply to you.

Further, 18 U.S.C. §207(a)(2) includes a similar restriction as §207(a)(1), but applies for only two

years and only to those with official responsibility in particular matters pending in the last year of their

Government employment. “Official responsibility” here refers to an authority to approve or disapprove,

or otherwise direct a project or proceeding. “Particular matter” refers to an isolatable transaction such as

a contract, grant, license, product approval application, investigation or litigation.

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In your role as the Director of Engineering, you guided components through directives, and never

retained any ability to direct or stop development of a particular component. Thus you did not retain an

“official responsibility.” You duties were also only ensuring implementation of directives to all

organizational components, such as offices and laboratories. This was an administrative duty and not one

which involved particular or discrete matters. You mentioned no authority to create or discontinue

projects, and thus could not have materially affected the legal rights of parties. Without further details to

the contrary, it is clear that 18 U.S.C. §207(a)(2) does not apply to you either.

Next, 18 U.S.C. §207(c) includes what is commonly known as a “revolving door” restriction

which bars senior employees from making, with the intent to influence, any communication with an

employee of their former agency. This bar is limited to only a one-year “cool off” period. The purpose of

this statute is to reduce any appearance former senior employees are improperly influencing government

decisions.

At the AFSP and SMC you were the Technical Director, a GS-14 position. This is not considered

a “senior” or a “senior executive service” (SES) position, because SES employees are not designated

through the “GS” system. This means even though it has been less than a full year since your work with

the Government, you are exempt from 18 U.S.C. §207(c) because you were not in an applicable “senior”

position.

Ultimately, my conflict analysis shows your possible future position at DPC is not restricted by

either the rules of the Procurement Integrity Act. Your activities did not apply to the specifications of any

applicable statute. In my opinion, and based on your descriptions, I believe you may accept the position

at DPC free of restriction.

This opinion is that of the Department of the Air Force and is not binding on the Department of

Justice. I hope this information will be useful to you. This letter is an advisory opinion of an agency

ethics official based on the information provided by you.

V.R.

Rima Silenas