December 28, 2000DO-00-048
Designated Agency Ethics Officials
Amy L. ComstockDirector
Designated Agency Ethics Officials have an important role to play during the transition to the new Presidential Administration. They review financial disclosure reports of prospective Presidential nominees and prepare ethics briefings and training materials for incoming senior officials. In addition, ethics officials may find themselves confronting questions concerning the activities of members of the President-elect's Transition Team.
The answers to some of these questions will depend upon the circumstances and employment status of individual members of the President-elect's Transition Team. The President-elect's Transition Team includes people from a variety of backgrounds, such as campaign staff, unpaid volunteers, experts from previous administrations, and the private sector. Most of these people are not current Federal employees, although some may have prior executive branch experience. It is critical to know whether an individual member of the President-elect's Transition Team is a current or former Federal employee whenever a question arises concerning a particular activity.
The purpose of this memorandum is to provide guidance on these and other relevant transition issues.
Standards of Conduct and Disclosure Requirements Applicable to Transition Team Members
The President-elect's Transition Team is not a Federal agency, and, except for limited purposes not relevant here, its members do not become Federal employees by virtue of their service on it. Accordingly, members of the President-elect's Transition Team who are not otherwise executive branch employees are not subject to the ethics laws and regulations applicable to members of the President- elect's Transition Team who are executive branch employees.
Following the practice of recent transitions, the President- elect's Transition Team has adopted its own code of ethical conduct to which its members must agree to abide as a condition of service. A copy of the "Transition Code of Ethical Conduct" is attached. Note that while it resembles the Standards of Ethical Conduct for Employees of the Executive Branch, it is not enforceable through agency processes. Also attached are a copy of the Memorandum of Understanding (MOU) entered into between the current Administration and the Chairman of the President-elect's Transition Team, and a copy of a policy statement accompanying the MOU regarding the identification of individuals charged with transition responsibil- ities and the disclosure of information to transition personnel.
Members of the President-elect's Transition Team do not file the public or confidential financial disclosure reports required of executive branch employees. However, they are subject to reporting requirements under the Presidential Transition Act. Section 5(b) of the Act, as amended by the Presidential Transitions Effectiveness Act, provides that the names and most recent employment of the personnel of a department or agency's transition team, as well as information regarding the sources of funding that support the transition activities of each member of that team, shall be made public before the initial contact by the department or agency transition team. This applies whether the team member is full or part-time, a Federal or non-Federal employee, or a volunteer. This information must be updated as necessary. Pursuant to the above-referenced MOU, the Office of the President- elect is designating department and agency transition team chiefs and members, and providing the information required to be made public about those individuals, in letters to the current Administration. The current Administration, in turn, through the Office of the Chief of Staff to the President (which is serving as the Office of the President's Transition Team), is providing to each department's and agency's designated transition point of contact updated copies of the official register of individuals on the President-elect's Transition Team authorized to work with that department or agency.
Transition Team Members Who Are Former Government Employees
For members of the President-elect's Transition Team who are former executive branch employees, consideration must be given to potential post-employment issues. For example, a question may arise regarding the applicability of the one-year no-contact bar under 18 U.S.C. § 207(c) where a former senior official who, within one year after having resigned his or her position with the agency, becomes a member of the President-elect's Transition Team and is assigned to work on transition matters involving their former agency. For very senior employees subject to the one-year bar under 18 U.S.C. § 207(d), the scope of the restriction could potentially apply to contacts across the executive branch.
Section 207(j)(7) provides an exception to the one-year no- contact ban where the "communication or appearance is made solely on behalf of a candidate in his or her capacity as a candidate . . . ." In a recent opinion, the Office of Legal Counsel (OLC) at the Department of Justice determined that a candidate for President of the United States remains a candidate, for purposes of 18 U.S.C. § 207, until he or she assumes that office. Consequently, notwith- standing the post-employment restrictions at 18 U.S.C. §§ 207(c) and (d), a member of the President-elect's Transition Team who otherwise meets the conditions of the section 207(j)(7) exception may continue to communicate on behalf of the President-elect until he assumes office. This OLC opinion, as well as the relevant DAEOgram dated November 17, 2000, are available on the Office of Government Ethics (OGE) Website at www.usoge.gov.
Transition Team Members Who Are Current Government Employees
Questions may also arise with regard to the assignments of current Federal employees who are detailed to the President-elect's Transition Team. Consistent with its prior holding in 4 Op. O.L.C. 498 (1980) and with advice OLC provided to this Office in 1988, it is OLC's view that agency contacts made by current Federal employees who are detailed to the President-elect's Transition Team do not violate 18 U.S.C. §§ 203 and 205.
Processing Nominee Reports During the Transition
Under an arrangement with the Transition Clearance Counsel, draft financial disclosure reports for potential nominees will come to the Office of Government Ethics (OGE) which, in turn, will forward them to the appropriate Designated Agency Ethics Official (DAEO). It is our plan that nominee forms will be reviewed by OGE and the agency concurrently. An OGE reviewer will contact you as soon as we receive a form for your agency.
In a separate DAEOgram we hope to provide you with the names and telephone numbers of persons to whom you may address questions concerning interpretations of the Transition Code of Ethical Conduct, and questions concerning the clearance of nominee financial disclosure reports. In the meantime, please do not hesitate to contact OGE with any questions you may have about the information in this DAEOgram.