Checklist · Government

Entering or Leaving Government Service: A Practical Ethics Checklist

18 U.S.C. § 208

Type
Checklist
Jurisdiction
National
Date
2025-01-08
Topic
Government

This checklist runs a government ethics question from the first call through departure and afterward. It opens with the analytic sequence for a financial conflict, including the exemption screen that resolves most questions without divestiture, and the instruments that convert a prohibited situation into a permitted one. It covers disclosure and the ethics agreement that determines what an official may work on for an entire tenure, gift analysis with the aggregation and personal relationship traps, the impartiality rule that reaches relationships the criminal statute does not, and outside activities. It sets out the post-employment bars by tier with the screening arrangements that let a firm keep the matter, political activity including social media, lobbying and foreign agent registration, procurement integrity, and the narrowed criminal standards. It closes with self-correction, investigation response, and the three documents that actually protect people.

Entering or Leaving Government Service: A Practical Ethics Checklist

Government > Government Ethics, Conflicts of Interest, and the Revolving Door | Published 8 January 2025 - Updated 22 August 2025 | UpLaw - uplaw.us

Part 0 — The analytic sequence for any conflict question

☐ 1. Is there a particular matter? ☐ Involving specific parties, or of general applicability ☐ ☐ 2. Is the official participating personally and substantially? ☐ Decision ☐ approval ☐ recommendation ☐ advice ☐ investigation ☐ otherwise ☐ ☐ 3. Is there a financial interest, of the official or an imputed person? ☐ self ☐ spouse ☐ minor child ☐ general partner ☐ organization where the official serves as officer, director, trustee, general partner, or employee ☐ prospective employer ☐ ☐ 4. Is the interest exempt? — 5 C.F.R. Part 2640 ☐ diversified fund ☐ small publicly traded holding ☐ federal retirement benefit ☐ matter of general applicability ☐ too remote or inconsequential ☐ ☐ 5. If not exempt, which instrument applies? ☐ waiver ☐ recusal ☐ divestiture with a certificate ☐ resignation from the outside position ☐ ☐ 6. Does the impartiality rule apply even absent a financial interest? ☐ ☐ 7. Is it documented? ☐ ☐ ⚠️ The answer is almost never "no." It is "yes, after this document exists." ☐ Governing provisions — 18 U.S.C. § 208 ☐ 18 U.S.C. § 216 ☐ 5 C.F.R. Part 2635 ☐

Part 1 — Entering service

☐ Inventory assembled: investments ☐ income ☐ transactions ☐ liabilities ☐ agreements with former and future employers ☐ outside positions ☐ spousal employment ☐ retirement and deferred compensation ☐ nonprofit board seats ☐ ☐ Filing obligation determined: public ☐ confidential ☐ Rules — 5 C.F.R. Part 2634 ☐ ☐ Screening performed against the actual position description ☐ ☐ Ethics agreement negotiated: recusals ☐ resignations ☐ divestitures ☐ qualified trust ☐ screening arrangement ☐ durations ☐ ☐ ⚠️ This document determines what the official may work on for the entire tenure ☐ Drafted at the moment of least attention and nearly impossible to revisit. ☐ Exemptions checked before divesting anything ☐ ☐ Certificate of divestiture requested where divestiture is genuinely required ☐ ☐ Screening arrangement executed with staff and a designated alternate ☐ ☐ Update obligations understood: report changes when they occur ☐

Part 2 — Gifts

☐ Prohibited source analysis: seeking official action ☐ doing business with ☐ regulated by ☐ interests substantially affected ☐ ☐ Exception identified and documented for every accepted item ☐ ☐ ⚠️ Aggregation checked — per source, per occasion, per year ☐ ☐ ⚠️ Personal relationship exception applied correctly — did the relationship or the position motivate the gift? ☐ ☐ Widely attended gathering determination obtained in writing before attendance ☐ ☐ Travel and reimbursement acceptance documented under the applicable authority ☐ ☐ Cross-branch prohibition — 5 U.S.C. § 7353 ☐ ☐ Private salary supplementation prohibited — 18 U.S.C. § 209 ☐ ☐ Gift acceptance log maintained: item ☐ source ☐ value ☐ exception ☐ date ☐

Part 3 — Impartiality, outside activities, and misuse of position

☐ Covered relationships identified: business or contractual relationship sought or held ☐ household member ☐ relative with a close personal relationship ☐ entity employing spouse, parent, or dependent child in a covered capacity ☐ entity for which the official served in such a capacity within the last year ☐ ☐ Would a reasonable person with knowledge of the facts question impartiality? ☐ ☐ Written determination or authorization by the designated official ☐ ☐ Misuse of position: private gain ☐ nonpublic information ☐ government property ☐ official time ☐ subordinates ☐ ☐ Outside activities: prior approval ☐ teaching and speaking limits ☐ fundraising restrictions ☐ conflicting employment ☐ ☐ Representational restrictions — 18 U.S.C. § 203 ☐ 18 U.S.C. § 205 ☐

Part 4 — Leaving service

☐ Written post-employment analysis obtained before departure ☐ ☐ Lifetime bar matters — personal and substantial participation — identified and listed ☐ ☐ Two-year bar matters — under official responsibility in the final year — listed ☐ ☐ One-year senior bar — no appearance before the former agency on any matter ☐ Expiration calendared ______ ☐ Very senior bar applicable? ☐ Period and covered agencies ______ ☐ Trade and treaty negotiation restriction ☐ Foreign entity representation restriction ☐ ☐ Framework — 18 U.S.C. § 207 ☐ Guidance — 5 C.F.R. Part 2641 ☐ ☐ ⚠️ These restrict representation and communication, not employment or internal advice ☐ ☐ ⚠️ They apply to the individual, not the firm ☐ Screen executed in writing at the new employer ☐ Acknowledgments collected ☐ ☐ Firm conflict system flagged for restricted matters ☐ ☐ Lobbying registration analyzed — 2 U.S.C. § 1601 ☐ ☐ Foreign agent registration analyzed rather than assumed exempt — 22 U.S.C. § 611 ☐

Part 5 — Political activity

☐ Framework — 5 U.S.C. § 7321 ☐ 5 U.S.C. § 7323 ☐ 5 U.S.C. § 7324 ☐ 5 U.S.C. § 7301 ☐ 5 C.F.R. Part 734 ☐ ☐ Employee category: ordinarily restricted ☐ further restricted ☐ ☐ Prohibited for all: activity on duty ☐ in a government building ☐ in uniform ☐ using government equipment ☐ soliciting contributions ☐ using official authority to affect an election ☐ partisan candidacy ☐ ☐ ⚠️ Social media is on duty when the employee is ☐ Posts ☐ likes ☐ shares ☐ profile content ☐ ☐ Constitutional framework — United States Civil Service Commission v. National Association of Letter Carriers ☐ United Public Workers of America v. Mitchell ☐ United States v. National Treasury Employees Union ☐ ☐ Agency grassroots lobbying restriction — 18 U.S.C. § 1913 ☐

Part 6 — Procurement integrity

☐ Provisions — 41 U.S.C. § 2102 ☐ 41 U.S.C. § 2103 ☐ 41 U.S.C. § 2104 ☐ 48 C.F.R. Part 3 ☐ ☐ Contractor bid or proposal information and source selection information identified and protected ☐ ☐ ⚠️ Employment discussions with an offeror require report and disqualification, before the conversation ☐ ☐ Post-employment compensation restrictions calendared for officials in defined roles ☐ ☐ Company-side exposure understood — the prohibition reaches the offeror as well ☐

Part 7 — Criminal standards as they now stand

☐ Bribery and gratuities — 18 U.S.C. § 201 ☐ Gratuity requires a link to a specific official act — United States v. Sun-Diamond Growers of California ☐ ☐ "Official act" narrow — McDonnell v. United States ☐ Setting up a meeting or hosting an event is not one. ☐ Honest services reaches bribes and kickbacks only — Skilling v. United States ☐ 18 U.S.C. § 1346 ☐ 18 U.S.C. § 1341 ☐ 18 U.S.C. § 1343 ☐ ☐ Property means property — Kelly v. United States ☐ Right-to-control rejected — Ciminelli v. United States ☐ ☐ Private person duty limits — Percoco v. United States ☐ ☐ Federal program bribery excludes gratuities — Snyder v. United States ☐ 18 U.S.C. § 666 ☐ ☐ Extortion under color of official right — Evans v. United States ☐ Contributions require explicit quid pro quo — McCormick v. United States ☐ ☐ ⚠️ False statements — 18 U.S.C. § 1001 ☐ What most commonly converts an administrative problem into a criminal one.

Part 8 — Adjudicative disqualification

☐ Does the official decide individual cases? ☐ ☐ Direct pecuniary interest — Tumey v. Ohio ☐ Extraordinary support creating a serious risk of bias — Caperton v. A. T. Massey Coal Co. ☐ ☐ Applicable statutory and code standards identified ☐ ☐ Agency rules — 28 C.F.R. Part 45 ☐ Ethics office procedures — 5 C.F.R. Part 2638 ☐ ☐ Fee- or fine-funded decision bodies flagged ☐

Part 9 — State and local systems

☐ Disclosure obligations and thresholds ☐ ☐ Conflict rules ☐ ⚠️ Frequently reach immediate family and business associates more broadly than the federal statute. ☐ Gift limits and exception structure ☐ ☐ Revolving door period ☐ Nepotism rules ☐ ☐ Contracting prohibitions — no interest in contracts with the official's own agency ☐ Exceptions narrow ☐ ☐ ⚠️ Written advisory opinion obtained before acting ☐ Nearly always available, nearly always dispositive, nearly never requested.

Part 10 — The three documents that protect

☐ Written advice request and answer — full and accurate facts ☐ Incomplete facts destroy the protection ☐ ☐ Recusal memorandum — matter or category ☐ reason ☐ effective date ☐ alternate decision-maker ☐ distributed ☐ acknowledged ☐ filed ☐ ☐ Gift acceptance log — item ☐ source ☐ value ☐ exception ☐ date ☐ ☐ Plus, on departure: the written post-employment analysis ☐ and, at a firm: the screening memorandum with acknowledgments ☐ ☐ ⚠️ All take minutes to create and are unavailable retroactively. Investigations that end badly for officials who behaved correctly are almost always investigations in which nothing was written down.

Part 11 — Self-correction and investigation response

☐ If the official calls before acting: facts in writing ☐ interest and exemption analysis ☐ impartiality analysis ☐ instrument selected and drafted ☐ alternate confirmed ☐ ☐ If the official calls after acting: establish precisely what was done and when, before offering a view ☐ personal and substantial? ☐ particular matter involving specific parties? ☐ exemption applicable? ☐ ☐ If a violation occurred: notify the ethics official ☐ correct the record ☐ unwind where possible ☐ self-report ☐ ☐ ⚠️ Self-correction is treated very differently from discovery — frequently the difference between a counseling memorandum and a referral ☐ ☐ If an investigation has begun: separate counsel from the agency's ☐ preserve documents ☐ identify all written advice ☐ prepare the interview with the false statement exposure in view ☐ ☐ ⚠️ The underlying violation is frequently minor; the answer given from memory produces the serious charge.

Part 12 — What actually goes wrong

☐ The job negotiation started before disqualification ☐ ☐ An inherited or spousal holding not reflected in the disclosure ☐ ☐ The unpaid nonprofit board seat nobody screened ☐ ☐ Accumulated small gifts exceeding the annual aggregate ☐ ☐ The personal relationship exception invoked for a relationship formed through the position ☐ ☐ A partisan social media post from a personal account during the workday ☐ ☐ The former official's "just asking a question" call during the one-year bar ☐ ☐ A disclosure omission that becomes a false statement problem ☐ ☐ A recusal honored but never documented ☐

Part 13 — Worked situations, with the correct sequence

A program official is offered a job by a company whose grant application she is evaluating. ☐ Stop the conversation immediately ☐ ☐ Notify the ethics official and the supervisor in writing ☐ ☐ Recuse from the grant matter with a written memorandum and a designated alternate ☐ ☐ Only then resume the employment discussion ☐ ☐ ⚠️ The frequent error is finishing the evaluation first "to avoid disrupting the process." That is the violation.

An inspector is invited to a contractor's holiday party. ☐ Prohibited source? ☐ Exception available: social invitation from a non-prohibited source ☐ widely attended gathering ☐ ☐ Written determination obtained before attending ☐ ☐ ⚠️ The frequent error is attending and documenting nothing.

A senior official's spouse is hired by a regulated company. ☐ No conflict from the hiring itself ☐ Financial interest arises through salary and equity, imputed to the official ☐ ☐ Recusal from particular matters involving that company, documented, with a screening arrangement ☐ ☐ Impartiality rule considered for adjacent matters ☐

A departing agency lawyer joins a firm representing a company he regulated. ☐ Lifetime bar matters identified and listed ☐ Two-year bar matters listed ☐ One-year bar expiration calendared ☐ ☐ Firm may take the work with the individual screened ☐ He may advise internally throughout ☐ ☐ ⚠️ The frequent error is a call to a former colleague during the first year.

A council member's company is the low bidder on a municipal project. ☐ State contracting prohibition read — most are absolute and do not turn on price or competitiveness ☐ ☐ Exception requirements checked: disclosure ☐ abstention ☐ no other reasonably available source ☐ approval by remaining members ☐ ☐ ⚠️ Written advisory opinion obtained before the bid is submitted, not after it is accepted ☐

A regulator is offered an industry association award including paid travel. ☐ Award exception analyzed — does the association have interests substantially affected by the official's duties? ☐ ☐ Travel acceptance authorities analyzed separately ☐ Widely attended gathering exception for the ceremony ☐ ☐ ⚠️ Frequently the award may be accepted and the travel may not, or the agency may accept the travel on the employee's behalf under a separate authority.

An employee posts a partisan message from a personal account during the workday. ☐ Prohibited — the rules turn on being on duty or in the workplace, not on the device or account ☐ ☐ Immediate deletion ☐ self-report ☐ documented reminder ☐ A repeat is treated as willful.

Part 14 — Institutional program review

☐ Does an ethics office exist and is it resourced? ☐ ☐ Are advisory requests answered quickly enough that people actually use the office? ☐ ☐ Are recusals integrated with case assignment and workflow systems? ☐ ⚠️ Where they are not, recusals fail — not through bad faith, but because a busy official cannot personally screen every incoming matter. ☐ Is training documented, with completion records retained? ☐ ☐ Is departure counseling routine rather than optional? ☐ ☐ Are gift logs and recusal memoranda retained centrally? ☐ ☐ Are ethics officials distinguished from investigators, and is that distinction communicated? ☐ The advisory relationship is not privileged in the way an attorney-client relationship is. ☐ Is the program measured by how many officials call before acting, rather than by violations found? ☐ ☐ ⚠️ Programs experienced as obstacles produce fewer calls, later, about worse facts ☐

Part 15 — The two answers a client needs

☐ Answer one: is it lawful? ☐ Rule identified ☐ Instrument identified ☐ Documentation drafted ☐ ☐ Answer two: how will it be reported? ☐ Appearance assessed independently of legality ☐ ☐ ⚠️ Both can be accurate at once: "this is lawful" and "this will be reported as corrupt and you should not do it." Giving only the first is a disservice. ☐ Reverse case considered: conduct that draws no attention — a routine failure to recuse, an unreported gift, a disclosure omission — can produce a career-ending disciplinary finding that never appears in a news story ☐ ☐ Client advised that calibrating to what would be embarrassing is the wrong standard in both directions ☐

Where appearances are legally operative ☐ The impartiality rule ☐ Judicial and quasi-judicial disqualification ☐ State appearance-of-impropriety provisions ☐

Where appearances are legally irrelevant ☐ The criminal conflict statute, which requires a financial interest, not an appearance ☐ ☐ The corruption statutes, which now require an explicit exchange for an identified official act ☐

Part 16 — Advice discipline

☐ Do not moralize ☐ The official asking whether they may accept a plaque is trying to comply, not testing boundaries. Treating routine questions as dilemmas discourages the behavior the system depends on. ☐ Do not overstate ☐ Advising recusal from everything adjacent to a conflict disables the official and teaches them to stop asking. The exemptions exist to permit service. ☐ Do not understate ☐ The appearance answer is part of the advice. ☐ Be specific about the next step ☐ "You have a conflict" is not advice. "Recuse from this matter, here is the memorandum, send it to these three people, and here is who decides in your place" is. ☐ Engagement scope confirmed in writing where the official's interests may diverge from the agency's ☐ ☐ ⚠️ The system is designed to let capable people serve while holding ordinary lives — spouses with jobs, savings in the market, past employers, friends in the regulated industry. It works when officials use it early and openly, and fails reliably when they wait.

Part 17 — Instruments, compared

Instrument When used Who issues Written? Public?
Regulatory exemption Interest falls within a category at 5 C.F.R. Part 2640 Automatic; no issuer No instrument needed n/a
Individual waiver Interest not substantial enough to affect the integrity of the employee's services Appointing official Yes Frequently, for senior officials
Impartiality authorization Appearance concern with no financial interest Agency designated official Yes Usually internal
Recusal memorandum Non-exempt interest, participation avoidable The official Yes Internal, distributed
Screening arrangement Recurring matters implicating a recusal The official and supervisor Yes Internal
Divestiture with certificate Recusal impractical because the interest is pervasive Ethics office certifies Yes Filed
Qualified trust Very senior official with complex holdings Approved in advance Yes Public
Resignation from outside position Officer, director, or trustee role creating imputed interest The official Yes Disclosed

☐ Correct instrument selected for the situation, not the most drastic available ☐ ☐ ⚠️ Officials routinely divest holdings that were already exempt, and routinely establish trusts where a single divestiture would suffice ☐ ☐ Every instrument dated and retained for the life of the matter and beyond ☐

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