Toolkit · Government

The Conflict Screening, Recusal Memo, and Post-Employment Analysis Toolkit

18 U.S.C. § 208

Type
Toolkit
Jurisdiction
National
Date
2024-12-02
Topic
Government

This toolkit supplies the working documents for government ethics practice. It opens with a conflict analysis worksheet running the statutory elements in order, including the exemption screen that resolves most questions without divestiture, and an instrument selection table so that officials do not divest holdings that were already exempt. It provides a written ethics advice request, a recusal memorandum, a screening arrangement, and a gift acceptance log — the documents that later prove an official did the right thing. It includes an ethics agreement outline for appointees, a post-employment analysis worksheet with the three bars and their expirations, a firm screening memorandum, a disclosure update notice, a self-report letter, an investigation interview preparation sheet built around the false statement exposure, and an authority reference sheet.

The Conflict Screening, Recusal Memo, and Post-Employment Analysis Toolkit

Government > Government Ethics, Conflicts of Interest, and the Revolving Door | Published 2 December 2024 - Updated 24 December 2025 | UpLaw - uplaw.us

How to use this toolkit

Tool 1 analyzes the question. Tools 2 through 6 produce the documents that resolve it. Tools 7 through 10 handle departure and private practice. Tools 11 and 12 handle correction and investigation. Tool 13 is the authority.

⚠️ Every instrument here takes minutes to create and is unavailable retroactively. Investigations that end badly for officials who behaved correctly are almost always investigations in which nothing was written down.

Tool 1 — Conflict analysis worksheet

Official ______ Position ______ Matter ______ Date ______

Step Question Answer
1 Is there a particular matter? Involving specific parties, or of general applicability?
2 Is participation personal and substantial? (decision, approval, recommendation, advice, investigation)
3 Is there a financial interest? Whose?
4 Imputed persons checked: spouse ☐ minor child ☐ general partner ☐ organization where the official serves ☐ prospective employer ☐
5 Is the interest exempt under 5 C.F.R. Part 2640? Which exemption?
6 If not exempt, which instrument? waiver / recusal / divestiture / resignation
7 Does the impartiality rule apply even without a financial interest?
8 Is the instrument documented and distributed?

☐ Governing provisions — 18 U.S.C. § 208 ☐ 18 U.S.C. § 216 ☐ 5 C.F.R. Part 2635 ☐ ☐ ⚠️ The answer is almost never "no." It is "yes, after this document exists."

Tool 2 — Instrument selection table

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

☐ ⚠️ Officials routinely divest holdings that were already exempt, and establish trusts where a single divestiture would suffice. Select the least drastic effective instrument.

Tool 3 — Written ethics advice request

REQUEST FOR ETHICS ADVICE To: Designated Agency Ethics Official From: ______ Position: ______ Date: ______

1. The facts. [State them completely and accurately, including amounts, dates, names, and relationships. Do not characterize — describe.]

2. The matter. [Identify the particular matter, the parties, and the official's role in it.]

3. The interest. [Identify the holding, position, or relationship, with its value or nature. If a spouse or family member is involved, say so explicitly.]

4. The question. [Ask it precisely.]

5. What the official proposes to do. [Participate / recuse / seek a waiver / divest.]

6. Timing. [When a decision is needed and why.]

☐ ⚠️ Incomplete facts destroy the protection. Advice is only as good as its premises; describing a holding as "small" without the amount protects nothing. ☐ Answer retained with the request ☐ Filed where it can be found years later ☐ ☐ Requested before acting ☐

Tool 4 — Recusal memorandum

MEMORANDUM OF RECUSAL From: ______ To: [supervisor, staff, records] Date: ______

Effective immediately, I am recused from participating personally or substantially in the following:

☐ Specific matter: ______ ☐ Category of matters: all particular matters involving specific parties in which ______ is a party or represents a party.

Reason: ______ [financial interest / impartiality / prospective employment / former employer]

Duration: ______ [until divestiture completes / for the duration of employment discussions / permanently]

Alternate decision-maker: ______

Instructions to staff: Do not brief me on, forward to me, or seek my approval on any matter within the scope above. Route such matters to the alternate named. If you are uncertain whether a matter is within scope, route it to the alternate and notify the ethics official.

☐ Distributed to supervisor ☐ staff ☐ records ☐ ethics official ☐ ☐ Acknowledgments collected ☐ Filed ☐ ☐ ⚠️ A recusal honored but undocumented is indistinguishable, three years later, from one that never happened ☐

Tool 5 — Screening arrangement

Element Detail
Official recused
Scope of recusal
Alternate decision-maker
Who maintains the recusal list
System in which the list is enforced (case assignment, workflow, correspondence)
Procedure when a matter of uncertain scope arises
Notification to external parties, if any
Review date

☐ Recusal integrated with the case assignment or workflow system where one exists ☐ ☐ ⚠️ Where recusals are not integrated with assignment systems, they fail — not through bad faith, but because a busy official cannot personally screen every incoming matter. ☐ Staff briefed and acknowledgment recorded ☐ ☐ Arrangement reviewed on any change of duties ☐

Tool 6 — Gift acceptance log

Date Item or benefit Source Prohibited source? Value Exception relied on Written determination? Aggregate to date, this source, this year

Exception codes: NV = nominal value · RF = refreshments not a meal · DISC = discount available to the public or all employees · AWARD = bona fide award for meritorious public service · PR = personal relationship · WAG = widely attended gathering · SOC = social invitation from a non-prohibited source

☐ ⚠️ Aggregation checked per source, per occasion, and per year ☐ ☐ ⚠️ Personal relationship exception applied only where the relationship, not the position, motivated the gift ☐ ☐ Widely attended gathering determinations obtained in writing before attendance ☐ ☐ Cross-branch prohibition noted — 5 U.S.C. § 7353 ☐ Salary supplementation prohibited — 18 U.S.C. § 209 ☐

Tool 7 — Ethics agreement outline for an appointee

ETHICS AGREEMENT — [nominee] — [position]

1. Assets. I will divest the following within ______ days of confirmation: ______. I will seek a certificate of divestiture for each. Until divestiture, I will not participate personally and substantially in any particular matter that to my knowledge has a direct and predictable effect on these interests.

2. Positions. I will resign from the following positions upon confirmation: ______.

3. Former employer. For ______ after my last day of employment with ______, I will not participate personally and substantially in any particular matter involving specific parties in which ______ is a party or represents a party, unless authorized.

4. Continuing arrangements. I have the following continuing financial arrangements with a former employer: ______. I will not participate in matters affecting that entity while they continue.

5. Spousal and family interests. ______

6. Screening. I will establish a written screening arrangement with my staff naming ______ as the alternate decision-maker for recused matters.

7. Retirement plans. ______

8. Duration. Each commitment above continues until ______.

☐ ⚠️ 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 agreeing to any divestiture ☐ ☐ Durations stated for every commitment ☐

Tool 8 — Post-employment analysis worksheet

Departing official ______ Last day ______ Seniority category ______

Bar Scope Matters identified Expires
Lifetime — particular matters involving specific parties, personal and substantial participation Never
Two-year — particular matters involving specific parties pending under official responsibility in the last year
One-year senior — any communication or appearance before the former agency with intent to influence All matters n/a
Very senior — extended period, wider set of agencies
Trade and treaty negotiation
Foreign entity representation

☐ 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 ☐ ☐ Lobbying registration analyzed — 2 U.S.C. § 1601 ☐ Foreign agent registration analyzed — 22 U.S.C. § 611 ☐ ☐ Procurement post-employment restrictions checked — 41 U.S.C. § 2104 ☐ ☐ Expiration dates calendared with reminders ☐

Tool 9 — Firm screening memorandum

SCREENING MEMORANDUM — [former official] — effective [date]

[Name] joined the firm on [date] after service at [agency]. Under 18 U.S.C. § 207, [name] is restricted as follows: [list bars and expirations].

Accordingly, effective immediately:

  1. [Name] will not communicate with or appear before [agency] on behalf of any client until [date].
  2. [Name] will not work on, be consulted about, or receive information regarding the matters listed in Schedule A at any time.
  3. Firm personnel will not discuss those matters in [name]'s presence or send materials concerning them to [name].
  4. Electronic files for those matters are restricted; [name]'s access has been removed.
  5. [Name] will receive no share of fees from the matters in Schedule A.
  6. Questions about scope go to [conflicts counsel] before, not after, any contact.

Please acknowledge receipt.

☐ Executed before the first day ☐ Acknowledgments collected from every person on the matter teams ☐ ☐ Conflict system flagged ☐ File access restricted and verified ☐ ☐ Fee-sharing exclusion implemented in the accounting system ☐

Tool 10 — Disclosure update notice

DISCLOSURE UPDATE — [official] — [date]

Change: ☐ asset acquired ☐ asset disposed ☐ liability incurred ☐ outside position accepted or resigned ☐ spousal employment change ☐ gift or reimbursement received ☐ agreement with a former or future employer ☐ inheritance or gift received

Details: ______ Effective date of the change: ______

Matters currently pending in which the official participates that may be affected: ______

Action proposed: ☐ none required (exempt) ☐ recusal ☐ waiver request ☐ divestiture ☐ resignation

☐ Filed when the change occurs, not at the annual deadline ☐ ☐ Any affected pending matter identified and addressed the same day ☐ ☐ ⚠️ An omission on a disclosure report becomes a false statement problem far larger than the omitted asset — see 18 U.S.C. § 1001.

Tool 11 — Self-report letter

VOLUNTARY DISCLOSURE — [official] — [date]

I am reporting the following, which I identified on [date]:

What occurred: ______ [precisely; dates, matters, and actions taken] Why it may present an issue: ______ What I did on identifying it: ______ [ceased participation, notified supervisor, corrected the record] Whether the action can be unwound, and how: ______ What I propose going forward: ______ [recusal, screening, divestiture] Documents attached: ______

☐ Filed promptly after identification ☐ ☐ ⚠️ Self-correction is treated very differently from discovery — frequently the difference between a counseling memorandum and a referral ☐ ☐ Record corrected wherever the affected action appears ☐ ☐ Counsel consulted before filing where criminal exposure is conceivable ☐

Tool 12 — Investigation interview preparation

☐ Separate counsel engaged where the official's interests may diverge from the agency's ☐ ☐ Document preservation instruction issued ☐ ☐ All written ethics advice located and reviewed ☐ ☐ All recusal memoranda, screening arrangements, and gift log entries assembled ☐ ☐ Timeline reconstructed from documents, not memory ☐ ☐ ⚠️ Prepare with 18 U.S.C. § 1001 firmly in view ☐ The underlying violation is frequently minor; the answer given from memory produces the serious charge. ☐ Practiced: answer the question asked ☐ do not speculate ☐ say "I do not recall" when true ☐ ask to see the document ☐ ☐ Understand that the ethics official's advisory relationship is not privileged in the way an attorney-client relationship is ☐ ☐ Post-interview memorandum prepared the same day ☐

Tool 13 — Authority reference sheet

Conflicts and related prohibitions

Political activity

Registration and procurement

Criminal standards

Adjudicative disqualification

Tool 14 — Recurring situations and the correct sequence

Each of these arrives regularly. Each has a settled answer, and the answer is a sequence rather than a rule.

Situation Sequence
Official offered a job by a party to a matter she is deciding Stop the conversation → notify ethics official and supervisor in writing → recuse with a memorandum and a named alternate → then resume the discussion. ⚠️ Finishing the evaluation first is the violation.
Invitation to a contractor's event Prohibited source analysis → exception identified → written determination before attending → logged
Spouse hired by a regulated company No conflict from hiring; interest arises through salary and equity, imputed → recusal from particular matters involving that company → screening arrangement → impartiality analysis for adjacent matters
Departing lawyer joins a firm representing a regulated company List lifetime-bar matters → list two-year-bar matters → calendar the one-year expiration → firm screen executed before day one → he may advise internally throughout
Council member's company is low bidder Read the state contracting prohibition (most are absolute) → check narrow exceptions → advisory opinion before the bid is submitted
Industry award with paid travel Award exception analysis → separate travel acceptance analysis → widely attended gathering analysis for the ceremony. Frequently the award may be accepted and the travel may not.
Partisan social media post during the workday Prohibited regardless of device or account → immediate deletion → self-report → documented reminder. A repeat is treated as willful.
Inherited stock in a regulated entity Update disclosure immediately → exemption screen → if not exempt, recusal or divestiture with a certificate
Former colleague calls asking a favor during the one-year bar Decline the communication → refer to a non-restricted colleague → document the refusal

☐ Sequence followed and each step documented ☐ ☐ ⚠️ The pattern across all of them: the answer is almost never "no." It is "yes, after this document exists."

Tool 15 — Program self-assessment for an institution

Element Present? Evidence Owner
Ethics office exists and is resourced
Advisory requests answered within a defined time
Recusals integrated with case assignment or workflow ⚠️ Where absent, recusals fail
Training delivered and completion documented
Entry disclosure reviewed against the position description
Departure counseling routine, not optional
Gift logs and recusal memoranda retained centrally
Screening arrangements reviewed on change of duties
Advisory relationship's non-privileged character communicated
Program measured by calls received before acting, not violations found

☐ ⚠️ Programs experienced as obstacles produce fewer calls, later, about worse facts ☐ ☐ Annual report to leadership with metrics on advice volume and turnaround ☐ ☐ Recusal list reconciled with actual case assignments quarterly ☐

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