MIT Employees Considering Service as a Special Government Employee: Important Topics for Review Beforehand
Recently several MIT employees have been approached to serve federal agencies in a Special Government Employee (“SGE”) capacity.
Service as an SGE, often – though not always – through membership on a federal advisory committee, provides MIT employees with deep exposure to and involvement in pressing national issues, while also allowing the federal government to access expertise it otherwise does not possess. There are, however, important restrictions applicable to SGEs that MIT Employees must consider in advance of accepting an assignment.
Created by Congress in 1962 as a specific category of federal employee, an SGE serves as a federal officer or employee who is retained, designated, appointed, or employed to perform temporary duties, with or without compensation, for not more than 130 days during any period of 365 consecutive days.
As federal employees SGEs are subject to extensive federal ethics rules, but there are four critical legal provisions in particular that a prospective SGE should be cognizant of: the service duration limitation, the recusal requirement, financial compensation, and the post-federal employment ethics restrictions.
Service Limitation
The standard SGE service limitation is 130 days within the preceding 365 days. If, in the course of their primary employment for MIT, the SGE will represent MIT (or MIT Lincoln Laboratory) before any U.S. federal agency or court, then the SGE’s term of federal employment is further limited to a maximum of 60 days within the preceding 365 days.
The 60 day limit is prescribed by 18 U.S.C. Sections 203 and 205, which prohibit federal employees from representing anyone before a U.S. agency or court either for compensation (Section 203) or even on an uncompensated basis (Section 205). The 60 day limitation in effect constitutes an exception to 18 U.S.C. §§ 203 and 205, and allows and SGE to represent their non-federal employer before U.S. agencies and courts as long as the SGE has not served for more than an aggregate of 60 days within the preceding 365 days.
For purposes of the 60 and 130 day limitations, SGE service for any portion of a day generally constitutes a full-day of service. Thus, even a 1 hour substantive teleconference on a given day will count as a full day toward the 60 or 130 day limits. Determining what activities constitute federal service in an SGE capacity can be complicated, and MIT employees should seek legal advice on this issue from the Office of General Counsel to avoid an outcome in which the employee is barred from undertaking key responsibilities on behalf of MIT after exceeding the 60 day limit.
Recusal/Disqualification Requirement
SGEs are subject to the statutory and regulatory conflict of interest laws applicable to all Executive Branch employees. Accordingly, upon beginning federal service an SGE must sign a disqualification statement pursuant to 18 U.S.C. § 208(a) recusing him or herself from any involvement as an SGE in a matter that may affect their personal financial interests, which includes the interests of their non-federal employer. For example, an MIT or MIT Lincoln Laboratory employee serving as an SGE may not participate as an SGE in matters involving MIT or MIT Lincoln Laboratory.
Salary
As noted, SGEs may be compensated or uncompensated, and regardless of compensation status they may receive federal reimbursement for travel and incidental expenses. Generally, an SGE appointed under existing federal authority as a consultant or expert (5 U.S.C. Section 3109, as implemented by the Office of Personnel Management) may be paid a maximum daily rate corresponding to the GS-15, Step 10 level (currently $161,900 for the Washington, D.C. metro area).
SGEs are not subject to the 18 U.S.C. § 209 prohibition against accepting compensation for services to the government from anyone but the government. As a practical matter, SGEs typically take MIT vacation time while serving in their federal employee capacity.
Post-Federal Employment Restriction
A former SGE is prohibited from representing anyone else before the government on a particular matter (for example, a contract or research program) involving specific parties in which the SGE participated personally and substantially while working for the government and in which the U.S. is a party or has a substantial interest. (18 U.S.C. § 207(a)(1)). Thus, personal and substantial involvement in a matter as an SGE will preclude involvement in the same matter upon return to MIT.
The Office of General Counsel can help ensure that participation in an SGE assignment does not foreclose the ability to continue critical research in one’s field of study upon return to MIT. If you have any questions about the post-federal employment restrictions generally, or their applicability to specific SGE assignment responsibilities, please contact David Suski at 781-981-7094, or dsuski@mit.edu.