OGE training: How agencies should draft and organize 18 U.S.C. 208(b)(1) waivers

Cheryl Kane Piasecki, senior instructor at the Office of Government Ethics (OGE), and Melba Melton, assistant counsel in OGE’s ethics, law, and policy branch, presented a training module on drafting and organizing waivers under 18 U.S.C. 208(b)(1).

The presenters said agencies must treat waivers both as legal determinations and public notice. "A waiver cannot, I repeat, a waiver cannot be given for conduct that has already occurred," Piasecki said, underscoring that waivers must be prospective and issued before an employee takes any action covered by the waiver.

OGE’s guidance lists the core required elements: a written waiver issued by the appointing official (or a delegated official), timing that is strictly prospective, a full disclosure by the employee of the disqualifying financial interest, and a waiver document that describes the interest, the particular matter(s) affected, the employee’s specific role, any limitations on participation, and the statutory basis for the agency’s determination.

Melton walked attendees through a model waiver outline agencies should follow. The recommended introductory paragraph should identify the document, name the employee and position, cite the basic prohibition in 18 U.S.C. 208(a) and the waiver standard in 18 U.S.C. 208(b)(1), and state the agency’s initial recommendation based on facts provided by the employee. The training stresses documenting why the employee needs to participate and how their duties relate to the particular matter.

The presenters advised agencies to identify alternatives before choosing a waiver, such as automatic regulatory exemptions under 5 C.F.R. part 2640 subpart B, recusal or reassignment, or divestiture when feasible. They also described common examples of disqualifying interests—stock ownership, a spouse’s employment or retirement assets, contractual rights, or prospective job offers—and urged that waiver text be tailored to the facts.

For the 208(b)(1) substantiality analysis, Melton said agencies should consider factors listed in the regulation (dollar value of potential gain or loss, the nature and importance of the employee’s role, and the extent of discretion exercised) and identify mitigating factors—such as lack of independent authority or added layers of oversight—that may help justify the waiver while addressing appearance concerns.

Agencies were instructed to draft a clear limitations section describing permitted participation and any monitoring or restrictions (for example, on fundraising or lobbying). Melton also reminded attendees that other statutory restrictions, including those in 18 U.S.C. 203 and 205, continue to apply.

On consultation and public notice, Melton cautioned that agencies may include an OGE consultation statement in a waiver only after consultation is complete and OGE did not object. "You cannot use this statement until you, number 1, actually completed your consultation with OGE, and number 2, OGE did not object to the issuance of the waiver," she said. She added that waivers are publicly available under the applicable regulation at 5 C.F.R. 2640.4304.

The session closed with practical drafting advice: confirm the employee has not already acted, submit the waiver with sufficient lead time for consultation, write clearly for both employees and the public, and ensure a properly completed signature block signed by the appointing official or delegated authority (DAO/ADAO) attesting the 208(b)(1) standard has been met. Melton warned agencies not to issue waivers for past conduct and to avoid last-minute submissions that undercut deliberation and consultation.

OGE said it will continue the series with a final module on what happens to a waiver after it is submitted for consultation.