Seeking Employment | Employee Contact by a Bidder | Post-Government Employment Restrictions | Payment by Contractor to Former Officials
An employee may not take official action on a matter which can affect the financial interests of an organization with which she is negotiating or has an arrangement for future employment. The remedy is disqualification.
18 U.S.C. § 208
In addition, an employee may have to disqualify herself from working on a matter when she is merely seeking employment, but before actually negotiating for a job. An employee would be considered to be seeking employment if she sends her resume to companies or if she is approached by someone about a position with a company and she responds that she is interested.
5 C.F.R. § 2635.601 (see Subpart F - Seeking Other Employment)
Three-Day Notice Requirement for Negotiations/Agreements
This requirement applies only to employees who file a Public Financial Disclosure report. Public Financial Disclosure filers must inform their Deputy Designated Agency Ethics Official ( DDAEO ) of any negotiation or agreement for post-government employment or compensation within three (3) business days of commencing negotiations or reaching agreement (whichever occurs first) . An approved format for this notification and recusal may be found here. You may send a digitally signed PDF copy to your Deputy DAEO. Deputy DAEOs should then digitally sign and retain the form.
The notification requirement is two-fold:
1) First, the requirement to send the notice to your Component’s Deputy DAEO is triggered when you enter into discussions or communications with another person, or such person’s agent or intermediary, that is mutually conducted with the goal of reaching an agreement regarding possible employment or compensation. Simply submitting resumes to several law firms without prior invitation is not a negotiation. As soon as a communication takes place that is a meaningful step toward reaching an agreement (e.g., discussing the specific terms of a partnership offer), you must send the notice to your Deputy DAEO within 3 business days.
2) Second, if the negotiation or agreement results in a conflict of interest, or appearance of a conflict, you must also sign the recusal statement at the bottom of the notice. However, filers should sign the recusal statement when submitting the negotiation notice even if a conflict does not currently exist, to serve as an acknowledgement to abide by the recusal obligation should it arise.
REMEMBER: The 3-day notice requirement does not change the longstanding obligation under the conflict of interest regulations (5 CFR 2635.601, et al) to recuse yourself from working on matters affecting a potential employer when you are seeking employment. The seeking employment recusal obligation will occur before your obligation to submit the negotiation/recusal statement arises, so you must be aware of both mandates at all times once you commence seeking employment with anyone.
Employee Contact by a Bidder
An employee participating in a procurement over $100,000 shall notify his supervisor and the designated agency ethics official in writing when he contacts or is contacted by a bidder regarding the possibility of employment. The employee must either reject the possibility of employment or disqualify himself from further participation in the procurement.
48 C.F.R. § 3.104-4(c) and 104-6
Post-Government Employment Restrictions
After leaving government employment, former Federal employees may face restrictions on their new employment activities. These restrictions particularly apply to activities that involve appearing before or communicating with Federal agencies or courts after the former Federal employee has left the government. The post-government employment statute, 18 U.S.C. § 207, does not prohibit former Federal employees from working for any particular employer (although other authorities may limit permissible compensation), but it does restrict what former Federal employees can do for their new employers.
All DOJ employees need post-government employment advice before leaving the Federal government. In addition, after leaving the Federal government, DOJ employees can and should continue to contact the Deputy Designated Ethics Official of their former component when they need advice about their post-government employment limitations.
The following are Section 207’s main restrictions:
Lifetime Ban - An employee is prohibited from communicating with or appearing before the government on a particular matter involving specific parties in which the employee participated personally and substantially during government service.
Two-Year Ban - An employee is prohibited for two years from communicating with or appearing before the government on a particular matter involving specific parties that was pending under that employee’s official responsibility during their last year of government service. “Official responsibility” means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct government actions.
One-Year Ban - A senior employee is prohibited from communicating to, or appearing before, the agency in which the former senior employee served during the last year of government service. Whether a former employee is a "senior employee" depends on their rate of basic pay during their last year of service. Note that for the purposes of this provision, many DOJ components are their own separate “agencies.” Former and current DOJ employees can contact their Deputy Designated Ethics Official for information on whether they are a senior employee and whether their component or office is considered separate.
Additional restrictions - There are additional post-employment restrictions for certain employees, or for specific types of matters. For additional information on these less common restrictions contact your Deputy Designated Ethics Official.
18 U.S.C. § 207, 5 C.F.R. § 2641
Payment by Contractor to Former Officials
A former employee is prohibited from accepting compensation from a contractor within one year after such employee served, at the time of selection of the contractor or the award of a contract to that contractor, in certain positions or made certain decisions on the resulting contract. This prohibition only applies to contracts in excess of $10 million.
48 C.F.R. § 3.104-4(d)