Seeking Employment | Employee Contact by a Bidder | Post-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 signed PDF copy to your Deputy DAEO, but the original must also be sent.
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
There are statutory prohibitions on a former government employee that generally prevent her from “switching sides” after leaving the government. The following are the main restrictions:
Lifetime Ban - An employee is prohibited from representing anyone else before the government on a particular matter involving specific parties in which she participated personally and substantially.
Two-Year Ban - An employee is prohibited for two years from representing another person on a particular matter involving specific parties which was pending under her responsibility during her last year of government service.
One-Year Ban - A senior employee includes Executive Level officials and all other employees whose rate of basic pay is equal to or greater than 86.5% of the rate for Level II of the Executive Schedule, which is $160,112.00 as of January 2016. Therefore, SES officials whose pay is at least $160,112.00 are covered by this additional one year restriction. As of April, 2009, Senior Level (SL), Scientific or Professional (ST), or other employees whose pay is at least $160,112.00 are senior employees, and are also covered by the additional one year restriction. Although some GS-15 employees may receive more than $160,112.00 in overall pay, they are not covered by the additional one year restriction in that their rate of basic pay is below the threshold.
Certain components of the Department of Justice are considered separate for purposes of the one-year ban. An employee who works in a designated separate component is barred only from appearing before her own component. An employee not from a separate component is barred only from parts of the Department not designated as separate. An employee paid according to the Executive Schedule does not benefit from the separation of components. She is barred from representing before the whole Department. 5 C. F.R. § 2641
18 U.S.C. § 207 and 5 CFR 2641
There are restrictions on an employee receiving compensation, even after she leaves, based on anyone's representations before the Federal government that took place while she was still a government employee.
18 U.S.C. § 203
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)