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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments A Members of the Panel on Presidentially Appointed Scientists and Engineers Kenneth W. Dam, the panel chairman, is Vice President, Law and External Relations, IBM, and is currently serving as President and Chief Executive Officer, United Way of America. He was Deputy Secretary of State, 1982–1985, and before that, Provost, University of Chicago, 1980–1982. William T. Coleman, Jr., is Senior Partner, O'Melveny & Myers, in Washington, D.C. He was Secretary of Transportation, 1975–1977. John M. Deutch is Institute Professor of Chemistry, Massachusetts Institute of Technology, where he was also Provost, 1985–1990. He was at the Department of Energy as Under Secretary, 1979–1980; Acting Assistant Secretary for Energy Technology, 1979; and Director, Office of Energy Research, 1977–1979. John S. Foster, Jr., was Vice President for Research and Technology, TRW Inc., 1979–1988. He served as Director, Defense Research and Engineering, Department of Defense, 1965–1973. E. Pendleton James is Chairman, Pendleton James & Associates, an executive recruiting firm in New York. He was Assistant to the President for Presidential Personnel, 1981–1982. G. Calvin Mackenzie, Professor of Government, Colby College, was Director of the Presidential Appointee Project, National Academy of Public Administration, 1984–1985. He has written and edited several books on the presidential appointments process, including The Politics of Presidential Appointments, 1981, and The In-and-Outers: Presidential Appointees and Transient Government in Washington, 1987.
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments Charles Schultze is Senior Fellow, Brookings Institution. He was Chairman of the President's Council of Economic Advisers, 1977–1981; Assistant Director, U.S. Bureau of the Budget, 1962–1964; and Director, U.S. Bureau of the Budget, 1965–1967. Robert C. Seamans, Jr., is Senior Lecturer, Department of Aeronautics and Astronautics, Massachusetts Institute of Technology, where he also served as Dean, School of Engineering, 1978–1981. He was Administrator, Energy Research and Development Administration, 1974–1977; Secretary of the Air Force, 1969–1973; and Deputy Administrator, 1965–1968, and Associate Administrator, 1960–1965, National Aeronautics and Space Administration. J. Jackson Walter is President, National Trust for Historic Preservation. He also served as Director, Office of Government Ethics, 1979–1982; and President, National Academy of Public Administration, 1982–1984. Anne Wexler is Chairman, Wexler, Reynolds, Harrison, & Schule, Inc. She was Assistant to the President, 1978–1981; Deputy Under Secretary for Regional Affairs, Department of Commerce, 1977–1978; and personnel advisor, Carter-Mondale transition planning group, 1976–1977. R. James Woolsey is Partner, Shea & Gardner, Washington, D.C. He was U.S. Representative to the Negotiations of Conventional Forces in Europe, U.S. State Department; Under Secretary of the Navy, 1977–1979; and General Counsel, Senate Committee on Armed Services, 1970–1973. James B. Wyngaarden is Foreign Secretary, National Academy of Sciences and the Institute of Medicine, Washington, D.C.; and Professor of Medicine, Duke University, Durham, North Carolina. He also served as Director, National Institutes of Health, 1982–1989; and Associate Director, White House Office of Science and Technology Policy, 1989–1990.
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments B Presidentially Appointed Science and Technology-Related Positions The following list of 78 positions illustrates the set of positions addressed in the report. They are presidentially appointed, Senate-confirmed (PAS) positions that are deemed to have important functional responsibilities in science and technology policymaking or program management. They are not all held by scientists or engineers. Other specialized skills may be equally important. For example, regulators like the Administrator of the Environmental Protection Agency and the Commissioner of the Food and Drug Administration have been lawyers. James Webb, a lawyer and businessman, was a very effective Administrator of the National Aeronautics and Space Administration (1961–1968) even though he was not himself a scientist or engineer (the Deputy Administrator and Associate Administrator—the latter the agency's general manager for day-to-day operations—were always technically qualified scientists and engineers) (Levine, 1982:Ch.3). Not surprisingly, however, given the types of positions involved and their responsibilities, many of the appointees to these positions have scientific or engineering training. The Director of Defense Research and Engineering has always been an engineer with a background in weapons development. The Director of the National Institutes of Health has traditionally been a leading biomedical researcher with a Ph.D. or M.D. or both. The Director of Energy Research is usually a physicist or chemist with a distinguished research record. Those that have other backgrounds usually have long experience in the relevant policy arena. Accordingly, the report addresses the problems of attracting and keeping highly specialized personnel—especially scientists and engineers—in presidentially appointed positions that are subject to the Senate confirmation process. The importance of the list is not that it is exact—it is not and never can be—but that a significant proportion of politically appointed leadership positions in the federal government, at least 78 of about 550, are heavily involved in science and technology functions important to the
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments effectiveness of the government and that many of them are held by individuals with advanced science, engineering, or health professional training, education, and experience. POSITION EXECUTIVE LEVEL Executive Office of the President Office of Science and Technology Policy Assistant to the President for Science and Technology* II Associate Director for Policy and International Affairs* III Associate Director for Life Sciences** III Associate Director for Physical Sciences and Engineering** III Associate Director for Industrial Technology** III Council of Economic Advisors Chairman* II Council on Environmental Quality Chairman* IV Departments Agriculture Assistant Secretary for Science and Education* IV Commerce Under Secretary, Technology* III Assistant Secretary, Technology Policy IV Director, Census Bureau* IV Assistant Secretary/ Administrator, National Telecommunications and Information Administration* IV Director, National Institute of Standards and Technology* IV * One of the 50 PAS positions also profiled in the Council for Excellence in Government's The Prune Book: The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992). ** These OSTP associate director positions are not separately profiled in The Prune Book because the job of the Associate Director for Policy and International Affairs represents all four of them in a general way.
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments POSITION EXECUTIVE LEVEL Under Secretary/Administrator, National Oceanic and Atmospheric Administration (NOAA)* III Assistant Secretary, Oceans and Atmosphere IV Chief Scientist, NOAA V Defense Director, Operational Test and Evaluation* IV Under Secretary for Acquisition II Principal Deputy Under Secretary for Acquisition III Assistant to the Secretary of Defense (Atomic Energy) V Director of Defense Research and Engineering* IV Assistant Secretary (Command, Control, Communications, and Intelligence)* IV Assistant Secretary (Health Affairs)* IV Air Force Assistant Secretary (Acquisition)* IV Army Assistant Secretary (Research, Development and Acquisition)*** IV Navy Assistant Secretary (Research, Development and Acquisition)*** IV Education Assistant Secretary for Educational Research and Improvement* IV Energy Director, Civilian Radioactive Waste Management IV Assistant Secretary for Environment, Safety and Health IV Assistant Secretary for Conservation and Renewable Energy IV Director, Office of Alcohol Fuels IV Director, Office of Energy Research* IV Assistant Secretary for Defense Programs* IV Assistant Secretary for Nuclear Energy* IV Assistant Secretary for Fossil Energy IV Administrator, Energy Information Service IV * One of the 50 PAS positions also profiled in the Council for Excellence in Government's The Prune Book: The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992). *** The assistant secretary for R&D positions in the Army and Navy are not described separately in The Prune Book because they are similar and the description of the Assistant Secretary of the Air Force for Acquisition position is representative.
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments POSITION EXECUTIVE LEVEL Health and Human Services Assistant Secretary for Health* IV Surgeon General, Public Health Service* PHS Administrator, Alcohol, Drug Abuse, and Mental Health Administration IV Director, National Institutes of Health* IV Director, National Cancer Institute* PA Commissioner, Food and Drug Administration* IV Housing and Urban Development Assistant Secretary for Policy Development and Research* IV Interior Assistant Secretary—Fish and Wildlife, and Parks IV Director, U.S. Fish and Wildlife Service V Assistant Secretary for Water and Science* IV Commissioner, Bureau of Reclamation V Director, Bureau of Mines V Director, U.S. Geological Survey* V Justice Director, Bureau of Justice Statistics IV Labor Commissioner of Labor Statistics* V Assistant Secretary for Occupational Safety and Health* IV Assistant Secretary for Mine Safety and Health IV State Under Secretary for International Security Affairs* III Assistant Secretary, Oceans and International Environmental and Scientific Affairs* IV Under Secretary for Economic Affairs* III Transportation Administrator, Federal Aviation Administration* II Deputy Administrator, Federal Aviation Administration IV Administrator, National Highway Traffic Safety Administration III * One of the 50 PAS positions also profiled in the Council for Excellence in Government's The Prune Book: The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments POSITION EXECUTIVE LEVEL Veterans Affairs Chief Medical Director III Independent Agencies Agency for International Development Assistant Administrator, Science and Technology* IV Consumer Product Safety Commission Chairman* III Environmental Protection Agency Administrator II Deputy Administrator III Assistant Administrator for Water IV Assistant Administrator for Solid Waste and Emergency Response IV Assistant Administrator for Air and Radiation* IV Assistant Administrator for Pesticides and Toxic Substances* IV Assistant Administrator for Research and Development* IV National Aeronautics and Space Administration Administrator* II Deputy Administrator III National Science Foundation Director* II Deputy Director* III National Transportation Safety Board Chairman III Nuclear Regulatory Commission Chairman* II * One of the 50 PAS positions also profiled in the Council for Excellence in Government's The Prune Book. The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments POSITION EXECUTIVE LEVEL Tennessee Valley Authority Chairman* III U.S. Arms Control and Disarmament Agency Assistant Director, Verification and Implementation* IV Assistant Director, Nonproliferation Policy* IV * One of the 50 PAS positions also profiled in the Council for Excellence in Government's The Prune Book. The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992). NOTE: The list includes the 50 PAS positions profiled in the Council for Excellence in Government's new publication, The Prune Book: The 60 Toughest Science and Technology Jobs in Washington (Trattner, 1992). It does not include 17 positions in The Prune Book that are Senior Executive Service or equivalent nonappointed. positions (e.g., the Director of the Defense Advanced Research Projects Agency) or that are in the legislative branch (e.g., Director of the Office of Technology Assessment). Neither list includes cabinet secretaries (executive level I) or deputy secretary positions (level II). Our list also includes 34 PAS positions beyond those listed by the CEG. In most cases these are positions under those profiled in the Prune Book. For example, The Prune Book includes the Under Secretary /Administrator of the National Oceanic and Atmospheric Administration (NOAA) in the Department of Conunerce (level III) but not the Assistant Secretary for Oceans and Atmosphere (level IV) or the Chief Scientist of NOAA (level V) positions, which are included here. Thus the list has a higher proportion of level IV-assistant secretary and level V-commissioner/director positions than the CEG's group. In some cases, The Prune Book described a single position as representative or a composite of several. For example, the responsibilities and activities of the Associate Director of the Office of Science and Technology Policy for Policy and International Affairs are considered parallel to those of the other three associate directorships. Finally, CEG left some positions out that are included here, such as the Under Secretary of Defense for Acquisition, because they were already included in the CEG's earlier publication, The Prune Book. The 100 Toughest Management and Policymaking Jobs in Washington (Trattner, 1988).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments C Postgovernment Employment Restrictions This appendix reviews the major conflict-of-interest laws governing the postgovernment employment activities of federal officials and forms the basis for the panel's conclusions and recommendations in chapter 2: (1) that a comprehensive, uniform law be adopted and periodically updated that carefully balances the government's twin needs to ensure ethical behavior by public officials and to secure the services of highly qualified and experienced scientists, engineers, and other professionals; and (2) that overlapping and conflicting statutes be repealed, especially those affecting particular employees of the departments of Defense and Energy and those affecting a specific class of employees involved in procurement governmentwide. THE MAZE OF POSTEMPLOYMENT RESTRICTIONS In response to recommendations of the President's Commission on Federal Ethics Law Reform (1989:Ch. 4), the Ethics Reform Act of 1989 (P.L. 101–194) made major revisions in the criminal postemployment statute that applies to every former officer or employee of the executive branch (18 U.S. Code §207). Section 207 was revised to establish a comprehensive, uniform, and reasonable postemployment statute covering former personnel of the legislative and executive branches.1 Also, to encourage enforcement by making a range of graduated sanctions available, the act established a new class of misdemeanor violations and added civil penalties and injunctive relief to 1 Section 207 was itself the result of a codification in 1962 of a maze of postemployment. restrictions that had developed piecemeal since the Civil War, and it had been updated in 1978 by the Ethics in Government Act (Perkins, 1963; Roberts, 1988).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments postgovernment employment restrictions. As amended in 1989, section 207 strictly limits former government employees in representing private parties before their former agencies and in participating in matters in which the former employee were involved personally and substantially while in government. The basic restrictions are: A lifetime ban against acting as a representative on particular matters in which an individual participated ''personally and substantially'' as a government officer or employee (18 U.S. Code §207(a)). A two-year ban on representing anyone on particular matters that were under the former employee's "official responsibility" during his or her last year of government service (18 U.S. Code §207(b)). A two-year ban on certain former "senior employees" prohibiting their representation by personal presence in particular matters in which they participated personally while in the government (18 U.S. Code §207(c)). A one-year ban on communications by former employees at level GS-17 or higher made with intent to influence their former agencies in any particular matter pending before that agency (18 U.S. Code §207(d)). In addition to the comprehensive governmentwide postemployment and other conflict-of-interest provisions of the 1999 Ethics Reform Act, at least four other sets of statutes affect former (and current) personnel involved in procurement-related activities: The Procurement Integrity Act of 1988 added a new provision, section 27, to the Office of Federal Procurement Policy Act, which prohibits for two years participation of any former federal officer or employee (a) in negotiations with the government on behalf of a competing contractor concerning a procurement action or subsequent contract they participated in personally and substantially while in the government and (b) in the performance of such contract (41 U.S. Code §423) (Maskell, 1989); 10 U.S. Code §2397 through 2397c, passed in 1985 and 1986,
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments which (a) prohibit certain former high-level Department of Defense (DOD) officers and employees from working in any capacity for particular major defense contractors for two years if they participated in specified procurement-related functions with those contractors during their last two years of service in DOD and (b) strictly regulate employment-related contacts of those same officials with contractors with which they are participating in procurement activities while the officials are still in the government; Military "selling" statutes at 37 U.S. Code §801(b) and 18 U.S. Code §281, respectively a civil statute prohibiting retired officers of the armed services, National Oceanic and Atmospheric Administration, or the Public Health Service from selling goods (but not services) for three years to the service from which they retired and a criminal statute prohibiting retired regular officers of the armed services for two years from representing any person from selling goods or services to the service from which they retired; and Section 605 and related sections of the Department of Energy Act, which prohibit for one year a former "supervisory employee" from appearing before or communicating with DOE with the intent to influence a pending department action.2 PROBLEMS POSED BY OVERLAPPING AND CONFLICTING LAWS These provisions were all adopted before the 1989 Ethics Reform Act (some before the 1978 Ethics in Government Act) to address specific abuses or create civil remedies for behaviors prohibited by criminal conflict-of-interest statutes. In 1989, recognizing that they overlapped and conflicted with the new and expanded governmentwide 2 The DOE Act also requires supervisory employees (defined as anyone above GS-15 or deemed to have important decisionmaking or regulatory authority) to divest themselves of all assets or other interests in energy concerns and to recuse themselves for one year from any proceedings involving a former employer (and for five years from any matter over which they had direct responsibility or were personally and substantially involved while working for a private employer).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments ethics law, Congress suspended these additional laws to allow time to study them and consider their repeal or revision. The Office of Government Ethics and the Office of Federal Procurement Reform conducted a study and submitted draft legislation to Congress in June 1990 (resubmitted in February 1991) that would have repealed the statutes overlapping or conflicting with the Ethics Reform Act and enacted a new statute prohibiting release or receipt of procurement-sensitive information. Hearings on the administration's proposal were held before the Senate Committee on Governmental Affairs in February 1991, at which officials from the Department of Defense, Department of Energy, and the National Aeronautics and Space Administration presented testimony about the adverse effects that the Procurement Integrity Act (section 27 of the Office of Federal Procurement Policy Act) was having on their ability to recruit and retain highly qualified technical personnel (the testimony is summarized in the next section below) (U.S. Congress, 1991). The current conflict-of-interest statutes create three kinds of postemployment problems. The first two, which result from the multiplicity of statutes and the excessive administrative burdens imposed by the laws, are described in this section. The third problem, the overly broad reach of the postemployment restrictions, is discussed in the next section. Overlap and Confusion First, the multiplicity of related statutes has added unnecessary uncertainty and complexity to the effort to protect the integrity of government. Federal personnel are subject to overlapping, inconsistent, and sometimes conflicting rules. This creates confusion for the vast majority of federal employees trying to act ethically and makes it difficult for federal ethics officers to provide clear and effective ethics training and counseling. Uncertainty about postemployment restrictions and their application and interpretation several years hence is also a major disincentive for experts in the private sector who are asked to serve in top federal positions for a limited period before returning to their professional careers. According to Stephen Potts, Director of the Office of Government Ethics:
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments In administering the executive branch ethics programs, we at OGE face one unavoidable fact: In certain areas, the ethics rules have become so complicated that, frankly, I don't believe anyone can really understand them. Little by little, rule by rule, we have addressed a problem here, another problem there, with a quick statutory fix, stacked one on top of another until we have reached the point that even an employee who sincerely wants to follow the rules doesn't have the remotest chance of understanding them so that he can follow the rules (U.S. Congress, 1991:8). Potts went on to document the overcomplexity in the postemployment area. According to an OGE analysis, every government employee is subject to five postemployment restrictions under section 207, not counting the one-year cooling-off period for Cabinet and top White House officials (see Figure C-1). The Procurement Integrity Act of 1988 (section 27) adds two more for procurement officials concerning particular procurements they were involved in, for a total of seven: They cannot assist anyone for two years in negotiations leading to the award or modification of the contract; and They cannot perform any work under the contract for two years. If they have a supervisory role in procurement at the Department of Energy, they are subject to an eighth restriction: A one-year, no-contact ban similar to the one under section 207(d), except the latter applies only to higher-level officials. If they are involved in procurement at the Department of Defense, they are subject to three additional restrictions under 10 U.S. Code §2397b, for a total of ten. They are prohibited from employment with a particular contractor if, during their last two years of service, they were: Stationed more than fifty percent of their time at the contractor's plant;
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments Figure C-1. The Postemployment Maze. SOURCE: Office of Government Ethics
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments Performed a procurement function relating to a 82 major weapons system more than 50 percent of the time and had decision-making contact with a major weapons contractor; or At the Senior Executive Service level or above and served as a primary representative of the government in negotiating a contract or claim worth more than $10 million. If they are retired military officers, they are subject to two more restrictions under the military "selling" statutes, for a total of twelve different superimposed restrictions (U.S. Congress, 1991:45–50): A two-year prohibition on the sale of anything, including services, to the service from which they retired; and A three-year prohibition on the sale of supplies or war materials to any DOD component. Administrative Burden The second postemployment problem caused by current ethics rules is the excessive administrative burden involved in counseling individuals on legal postemployment conduct and in providing them with written legal opinions about the propriety of their postemployment arrangements. Two of the laws, the Procurement Integrity Act (section 27 of the Office of Federal Procurement Policy Act) and the DOD statute (10 U.S. Code §2397b), give employees the right to obtain "safe-harbor" opinions. Although the DOD law applies only to a small number of employees, less than 2 percent, industry has come to insist that they ensure that their employment cannot be questioned later and thus embarrass the company. Each opinion must be written by a lawyer to address the propriety of employment with a specific contractor based on the particular procurement duties the individual employee performed. OGE reported in June 1990 that DOD had provided 4,400 safe-harbor opinions over the previous two and half years, of which only 200 (41/2 percent) were actually affected by section 2397b ( Congressional Record, June 21, 1990: S8547). The burden of providing safe-harbor opinions under the Procurement Integrity Act, which applies across the government, is expected to be proportionately larger, since industry will no doubt expect them from all personnel involved in procurement activities.
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments Safe-harbor opinions are made necessary by the uncertainty stemming from the complicated and conflicting provisions of the several overlapping conflict-of-interest laws governing postemployment activities. Therefore, the committee recommends that they be made available generally to federal officials subject to such laws. The need for them, and the resulting administrative burden, would be much reduced, however, if our recommendation that the laws be simplified and codified in one place in the statutes is adopted (Recommendation A-2). Adverse Effects on Federal S&T Agencies The third problem, which is more substantive and difficult to address, concerns the extent to which postemployment restrictions go too far in limiting career choices and thus unnecessarily deter highly qualified experts from serving in important S&T leadership roles and deprive the government of the talent it needs. In testimony on the effects of the Procurement Integrity Act, Terrence O'Donnell, General Counsel of the Department of Defense, reported that two former Under Secretaries of Defense for Acquisition had cited postemployment restrictions in section 27 as factors in their resignations (U.S. Congress, 1991:116–118). John Tuck, Under Secretary of Energy, testified that postemployment restrictions in section 27 and in section 605 of the Department of Energy Act were "particularly problematical" for DOE, because much of the expertise required by DOE resides in its system of government-owned but contractor-operated national laboratories (U.S. Congress, 1991:140–142): It has been our experience that postemployment restrictions have discouraged senior National Laboratory employees from considering employment with DOE, and have deprived the Department of the technological and managerial know-how of National Laboratory employees whose career paths logically would have them wish to return to a senior Laboratory position after service in a senior DOE position. While existing post-employment restrictions would prohibit only certain communications with, or appearances before, the Government, the post-employment restrictions of the Procurement Integrity Act would prohibit certain officials who have been involved in the award, modification, or extension of a Laboratory contract from working for that National Laboratory at all for a period of two
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments years after participating in the procurement process. Thus, section 27(f) of the Procurement Integrity Act would deprive the Department of the expertise of those senior officials who seek to continue their careers in the National Laboratories.... Stuart Evans, Assistant Administrator for Procurement of NASA, cited the negative impact of new procurement integrity law on recruitment and retention of top scientists and engineers (U.S. Congress, 1991:189): Highly motivated and skilled engineers and scientists from both industry and educational institutions have cited the burdens, complexities, and ambiguities of the procurement integrity law as principal reasons for not wishing to devote part of their career to government service, or even "pro bono" as a public service. The most damaging impact of the procurement integrity law has been in the loss to the agency of key senior technical and managerial officials, many of whom, by virtue of their long tenure with the agency have contributed so dramatically to many of NASA's achievements. Many of these individuals have stated that they are unable to remain with NASA until a planned retirement, and have in fact left federal service early. The Augustine Commission, which assessed the future of the space program, reported in December 1990 that, along with inadequate compensation, recent postemployment restrictions on individuals—and particularly the future uncertainty of those restrictions and their interpretation—have been a deterrent to the recruitment of talented technical and managerial personnel into NASA. Key managers with extensive industrial experience in technical programs are particularly reluctant to commit to government service in areas where their talent could be effectively and immediately utilized—again because of concern over postemployment restrictions. These restrictions were, of course, imposed to preclude possible conflicts of interest, but have been found extremely difficult to draft with precision and balance. Last year, five individuals from industry were approached concerning one key executive level position at NASA. All declined,
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments primarily because of inadequate compensation and postemployment restrictions (Advisory Committee on the Future of the U.S. Space Program, 1990:44). Meanwhile, many of the agency's most talented and experienced senior executives have also left: The space station, to cite one prominent example, has had four managers in three years. During that same period, some three dozen of NASA's most senior executives have left, many to escape new ethics restrictions that limited their career choices (Goldstein, 1991; also, Marshall, 1989). Waivers The conflict-of-interest laws contain several limited provisions for waivers and exceptions to postgovernment employment restrictions. These provisions are intended to enable the government to take advantage of the expertise of exceptionally qualified former employees to deal with special situations. The Ethics Reform Act of 1989, for example, continued a provision that allows department and agency heads to exempt a former official from the postemployment restrictions in section 207 of 18 U.S.C., if they certify in the Federal Register that the former official has outstanding qualifications in a scientific, technological, or other technical discipline that are specifically needed by the government in the national interest.3 Similarly, the Secretary of Energy may grant limited waivers from the postemployment restrictions of the DOE act to former officials with outstanding scientific or technological qualifications if the Secretary certifies in the Federal Register that contact with the government that is otherwise prohibited would serve the national interest. In 1989, Congress added a provision in the Defense Authorization Act (P.L. 101–189) that waives the postemployment restrictions of the 3 The Senate Judiciary Committee added the provision when section 207 was created in 1962 because it recognized in its report that the section "would certainly and adversely affect recruitment by scientific agencies of the government of top-flight personnel," and it did not want to cut the agency off from the benefits of permitting the appearance of a former employee with "outstanding scientific qualifications" (quoted in Manning, 1964:210).
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments Procurement Integrity Act and section 207 for up to 25 federal officials at a time who come from and go directly back to a government-owned, contractor-operated national laboratory. This was in response to the effects of the Procurement Integrity Act, which makes such movement of personnel virtually impossible because it prohibits for two years not just dealing with the government but also advising behind the scenes and working under contracts the individual was involved with personally while in the government. Since the national laboratories are operated mostly by government contract, individuals who expect to return to them because they are the best or only place to exercise certain kinds of expertise—for example, nuclear weapons construction and disposal—are very reluctant to take a government position. Although the 1989 law is unique in permitting a prospective waiver that lets the individual know beforehand their exact status, the process is so cumbersome it has never been used. Use of the waiver requires elaborate and time-consuming process of justification and must be granted by the President personally. Authority to grant conflict-of-interest and postemployment waivers is intended for special cases, however, not for general use. It cannot counteract the general effects of overly broad postemployment restrictions, although it is useful in specific instances. CONCLUSION The panel discussed the issue of appropriate postemployment restrictions at length at each of its meetings and concluded that, with the addition of legislation protecting procurement-sensitive information, the current restrictions in 18 U.S. Code §207 and related sections are a reasonable and appropriate basis for protecting the public's interest in assuring ethical conduct of former and current federal officials and at the same time for assuring a refreshing flow of top scientific and technical talent from the private sector and back (see Recommendation A-1). Section 207 of 18 U.S.C. includes several prohibitions against switching sides and improper use of influence, including the lifetime ban on representation with respect to particular matters involving a specific party, such as a contract or claim, in which the former official participated personally and substantially. Section 207 also contains a one-year ban on communications by former officials at level GS-17 or above made with intent to influence their former agencies and a one-year ban on any communication by former cabinet secretaries or high White House officials made with intent to influence their former agency or any
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Science and Technology Leadership in American Government: Ensuring the Best Presidential Appointments executive-level officials. Section 209 of 18 U.S.C. requires federal employees negotiating for other employment to disqualify themselves from participation in procurements or other particular matters affecting the prospective employer. Several of the statutes recommended for repeal impose additional restrictions to discourage improper influence or use of procurement-sensitive information. Under the Procurement Integrity Act, former federal employees are prohibited from assisting behind-the-scenes as well as by personal representation in the negotiation or modification of contracts they were involved in as federal employees, and they are prohibited from ever performing any work under such contracts. Under 10 U.S.C. §2397b, certain mid-and high-level DOD officials are prohibited from working for contractors at all for two years if they were involved in certain procurement-related functions with those contractors during their last two years in government. The underlying purpose of these laws is to prevent the use of inside information by former officials, but the public interest would be better met by a new statute that identifies the types of sensitive information that should be protected and prohibits their disclosure or receipt. This direct approach is preferable to an indirect attempt to prevent unwanted behavior by broad bans on employment or activities. Although such bans may reduce the opportunities to disclose source-selection or bid or proposal information, they also prohibit a broad range of activities based on knowledge and skills that are not based on involvement with a procurement while in the government. Thus, former federal officials who are highly qualified scientists and engineers are prevented from undertaking perfectly legitimate activities in the course of practicing their professions. As a result, the government's ability to recruit and retain highly qualified personnel for tours of duty in top S&T positions is unduly restricted, and the public interest suffers. The flat ban on performing any work under a contract for two years is also overly restrictive and may deprive the government of expertise needed to fulfill contract goals.
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Representative terms from entire chapter: