DoD Officials Seeking Jobs with Its Contractors, DECLASSIFIED BOOKS
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Report No. DODIG-2014-050
Inspector General
U.S. Department of Defense
MARCH 31, 2014
Secion 847 Ethics Requirements
for Senior Defense Oicials Seeking
Employment with Defense Contractors
INTEGRITY
EFFICIENCY
ACCOUNTABILITY
EXCELLENCE
INTEGRITY
EFFICIENCY
ACCOUNTABILITY
EXCELLENCE
Mission
Our mission is to provide independent, relevant, and timely
oversight of the Department of Defense that: supports the
warfighter; promotes accountability, integrity, and efficiency;
advises the Secretary of Defense and Congress; and informs
the public.
Vision
Our vision is to be a model oversight organization in the federal
government by leading change, speaking truth, and promoting
excellence; a diverse organization, working together as one
professional team, recognized as leaders in our field.
For more information about whistleblower protection, please see the inside back cover.
Results in Brief
Section 847 Ethics Requirements for Senior Defense
Officials Seeking Employment with Defense Contractors
March 31, 2014
Objecive coninued
Objecive
Our objectives were to (1) address the
central database and DoD IG oversight provisions
of Public Law 110-181, “The National Defense
Authorization Act for Fiscal Year 2008,” Section
847, “Requirements for Senior Department
of Defense Officials Seeking Employment
with Defense Contractors,” January 28, 2008;
(hereinafter referred to as “section 847”) (2)
address subsequent direction from the House
Armed Services Committee (HASC); and (3)
accordingly determine:
° in which the written opinion was not provided to the
requesting official or former official of the Department
of Defense by the appropriate ethics counselor within 30
days after the request for a written opinion.”
Observaions
The DoD did not retain all required section 847 records in its
designated central repository, the After Government Employment
Advice Repository (AGEAR).
This occurred because the Department did not:
• implement the 2010 DoD Inspector General (IG) report
recommendation to transfer historical records into AGEAR
when the database became operational,
• Whether written legal opinions required
by section 847 were “being provided
and retained in accordance with the
requirements of this section.” (Public Law
110-181, section 847 [b][2]).
• centrally supervise section 847 activities by its decentralized
Components, and
• comply with Deputy Secretary guidance making AGEAR use
mandatory as of January 1, 2012.
• “The Department of Defense’s record of
compliance with section 847 of Public
Law 110-181.” (HASC Report on the
National Defense Authorization Act For
Fiscal Year 2013).
As a result:
• The AGEAR database was incomplete with limited or no use
by specific DoD organizations with significant contracting
activity.
• Quantitative data specified by the HASC,
as follows:
• Individual section 847 records were located in multiple
or decentralized locations, and in a number of cases were
inaccurate, incomplete, and not readily accessible for
examination.
° “the total number of opinions issued,
° the total number of opinions retained
in accordance with section 847,
° any instances in which a request for
a written opinion pursuant to section
847 lacked a corresponding written
opinion, or
Discussion
On January 28, 2008, Public Law 110-181, “The National Defense
Authorization Act for Fiscal Year 2008,” was enacted. Section 847 of
the law, “Requirements for Senior Department of Defense Officials
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Seeking Employment with Defense Contractors,” required all officials covered by the law request
an ethics opinion from a DoD ethics counselor before starting employment with a DoD contractor.
Defense contractors are required to ensure that covered officials have received the required
opinions before employing them. The law’s recordkeeping requirement also mandated that DoD
retain in a “central database or repository for not less than 5 years”:
• All opinion requests pursuant to the section.
• All opinions provided pursuant to those requests.
On June 18, 2010, DoD IG report,
Review of Department of Defense Compliance with Section 847 of
the National Defense Authorization Act for Fiscal Year 2008
(Report No. SPO-2010-003) concluded
that the DoD Office of General Counsel (OGC) Standards of Conduct Office (SOCO), had initiated
but not completed development and implementation of a central DoD repository to record
requests for written opinions and to store copies of opinion letters issued. The report
recommended that DoD OGC-SOCO:
• expeditiously develop the repository,
• obtain from DoD Components all requests and opinions rendered since section 847 became
law, and
• when the repository became operational, transfer all records into it.
The DoD OGC concurred with this report, explained they were working with information
technology experts to develop the AGEAR, and that after AGEAR rollout, they would transfer all
existing records into it.
On September 19, 2011, the Deputy Secretary of Defense announced that the Army OGC had
developed AGEAR to “capture and store opinions required under section 847;” designated the
Secretary of the Army as the DoD Executive Agent to operate, maintain, manage, and fund the
system; and made DoD-wide AGEAR use mandatory effective January 1, 2012.
On May 11, 2012, the HASC directed that DoD Office of Inspector General (OIG) “review
the database established pursuant to section 847 of Public Law 110-181,” report on DoD’s “record
of compliance with section 847 of Public Law 110-181,” and determine specified quantitative
data as previously noted in the “Objectives” section.
As indicated in the “Observation” section, the database was incomplete, and individual records
were located in multiple or decentralized locations, and were, in a number of cases, inaccurate,
incomplete, and not readily accessible or available for examination. Those conditions existed
because the Department did not centrally supervise section 847 compliance, implement the
2010 DoD IG report recommendation to transfer historical records into the AGEAR central
repository when the database became operational, or comply with the 2011 Deputy
Secretary’s directive that made DoD-wide AGEAR use mandatory as of January 1, 2012.
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The DoD OGC-SOCO acknowledged that DoD did not upload pre-existing records when AGEAR
became operational in 2010, and did not centrally supervise section 847 compliance by DoD’s
decentralized Components. In explanation, OGC-SOCO asserted that:
• AGEAR roll out was an unfunded mandate during a time of critically constrained resources.
• The Federal regulatory scheme decentralized the DoD ethics program and allowed records
to be stored in multiple locations.
• “In the ethics realm,” for personnel assigned outside of the Office of the Secretary of Defense,
the role of the Secretary of Defense, and hence SOCO, is generally one of “policy setting,” not
“central supervisory authority.”
• The U.S. Office of Government Ethics (OGE) had designated 17 “independent” DoD
Components responsible to OGE for performance, and subject to OGE audit.
In a follow-on meeting with senior OGE officials and in subsequent written explanation to
DoD OIG, OGE explained that with regard to DoD ethics programs:
• they did not supervise DoD or its Components,
• they did not decentralize the DoD ethics program or establish independent DoD Components,
and
• they had concurred with a DoD request to appoint a designated agency ethics official (DAEO)
in each of the separate DoD Components.
The OGE also emphasized that, regardless of the separate DAEO structure, OGE “viewed DoD
as one agency” with the Secretary of Defense as the “head of the agency,” and that the separate
DAEO structure did not relieve the Secretary of Defense of supervisory responsibility for DoD
ethics programs.
Conclusion
The assessment team concluded that the AGEAR database was not complete, that required section
847 records were located in multiple and decentralized locations, and that the records were not
readily available for examination.
We concluded that AGEAR was of marginal value for management of DoD section 847 ethics
opinions, and, therefore, that DoD may not have fully complied with the intent of this law.
As a result, we could not use AGEAR to reliably determine the quantitative data requested by
the HASC.
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