Understanding the Revolving Door: How Ethics Rules Apply to Your Job Seeking and Post-Government Employment Activities
If you are planning to leave the current Presidential Administration and return to private employment, you need to know how the Federal ethics laws may affect you, both while you are looking for a job and after you leave the Government. This pamphlet sets forth the relevant restrictions that apply in these situations. As you will see, however, the rules in this area are very complex, so you should consult your agency’s ethics official for additional guidance.
Looking for a Job
This section identifies several issues that can arise when you are looking for employment outside the Government while you are still working in the executive branch. A criminal conflict of interest law (18 U.S.C. § 208) generally prohibits you from working in your Government job on a matter that would affect the financial interests of someone with whom you are discussing possible employment. The Standards of Ethical Conduct for Executive Branch Employees (5 C.F.R. part 2635) have a similar rule that applies even before employment discussions begin, and may apply even when you have just sent a resume. If you participate in certain procurement matters, you may be subject to additional rules, including the duty to report employment contacts made by you or a bidder or offeror.
During your job search, you must be careful not to misuse Government resources (such as official time, the services of other employees, equipment, supplies, and restricted information). As you look for a job, you also will want to keep the restrictions that will apply after you leave the Government (discussed below) in mind.
Finally, after you have accepted a job outside the Government, you must continue to refrain from working on matters in your Government job that would affect the financial interests of your prospective employer.
Restrictions on Employment after Government Service
This section briefly highlights the restrictions on your employment activities after you leave executive branch service. Your agency’s ethics official is available to provide more specific advice on these “post-employment” restrictions, both before and after you terminate Government employment.
18 U.S.C. § 207
This criminal law does not bar employment with any particular employer. Rather, its restrictions address certain activities that involve, or may appear to involve, the unfair use of prior Government employment.
Some of the restrictions apply to all former executive branch employees, whereas others restrict only former senior officials or those with specified duties.
· As an executive branch employee, you are barred permanently from trying to influence any Federal agency or court, by communications or appearances on behalf of someone other than yourself or the United States (i.e., “representational contacts”), on a matter that has parties (such as a contract, grant, or lawsuit), if you have worked on that matter as a Government employee. If the matter was under your official responsibility during your last year of Government service, even if you did not personally participate in it, you are barred from making representational contacts about that matter for two years.
· If you have served as a “senior employee” during your last year of Government service, you are restricted for one year from making any representational contacts to your former agency on any matter, regardless of whether the matter involves parties. Senior employees include people serving at Levels II-V of the Executive Schedule, those whose rate of basic pay equals or exceeds 86.5 percent of the rate of basic pay for Level II of the Executive Schedule (and, for 2 years after Nov. 24, 2003, those who, on Nov. 23, 2003, were paid at a rate of basic pay at least equal to the rate of basic pay for level 5 of the SES), military officers at 0-7 and above, some White House appointees, and private sector participants in the Information Technology Exchange Program. Unless your agency has separate components for post-employment purposes, this restriction on representational contacts generally extends to your entire former agency.
· If you have served as a “very senior employee,” you are covered by a similar one-year cooling off period with respect to your former agency and also a one-year ban on making representational contacts with any Executive Schedule employee serving in any agency. Very senior employees include people paid at a rate payable for Level I of the Executive Schedule, those serving in the Executive Office of the President and paid at a rate payable for Level II of the Executive Schedule, and certain other White House appointees.
· Former senior and very senior employees are restricted for one year after leaving Government service from representing, aiding or advising a foreign government or foreign political party, with an intent to influence any officer or employee of a Department or agency. You may also be prohibited from representing a foreign entity before Congress.
·
If you worked on
certain trade or treaty negotiations during your final year of Government
service and have had access to certain restricted information, you are barred
for one year from aiding or advising anyone other than the
·
If you were
assigned to an agency from the private sector as a participant in the
Information Technology Exchange Program, you may not aid, counsel, or assist in
representing anyone other than the
There
are several exceptions to some of these restrictions. For example, one exception permits former
employees to engage in post-employment activities performed in carrying out
official duties on behalf of the
Additional Restrictions
Depending on your current duties and your future employment, other restrictions may apply. If you will be working for a firm that has represented clients before either the executive branch or any court where the United States had an interest, another criminal law (18 U.S.C. § 203) prohibits you from sharing in the profits earned by the firm for those matters. The restriction applies if the firm’s work before the Government occurred while you were employed by the Government.
If you were involved in certain large procurements or in the administration of contracts, you may not be able to accept compensation from certain contractors for one year.
Some agencies also have special laws and regulations with post-employment provisions that may apply to you.
If you are an attorney or other licensed professional, you should consult your local bar rules or similar professional code for any special restrictions on employment following Government service.
Summary for Avoiding Trouble
Understanding the Federal ethics laws that govern your conduct while you are looking for a job and after you terminate Government service can be challenging. If you have any questions, you should seek help from your agency’s ethics official. Remembering a few key issues is critical to passing successfully through the revolving door.
Recap on Seeking Employment
You generally cannot work on a matter that will affect the financial interests of someone with whom you are seeking employment. This means that you may need to be disqualified from working on such a matter during your job search, as well as after you accept a job outside Government.
“Seeking employment” is defined broadly. You may be considered to be seeking employment before you are engaged in actual negotiations. For example, you may be seeking employment if either you or a prospective employer has made a contact about possible employment.
Working on certain procurement matters may trigger additional requirements.
Remember not to misuse Government resources while job-hunting.
Recap on Post-Government Employment
If you worked on a matter that had parties (e.g., a contract or lawsuit), you may be permanently barred from representing anyone back to any Federal agency or court on that matter. If such a matter was only under your official responsibility, a two-year bar may apply.
Senior employees are subject to a one-year bar on representational contacts with your former agency.
Very senior employees are also subject to a similar one-year bar, as well as a bar on making representational contacts with any high level executive branch officials.
Senior and very senior employees are subject to a one-year restriction regarding foreign governments or foreign political parties.
Employees who worked on certain trade or treaty negotiations may be subject to another one-year bar.
Employees who worked on certain procurements or contracts may be subject to additional restrictions.
Remember to consult bar rules, other professional codes, and your agency for other potential restrictions.
When in doubt, obtain advice from your agency’s ethics official.
Conclusion
This pamphlet is only a starting point. You should obtain specific guidance from your agency’s ethics official as to how these job-seeking and post-employment rules may apply to you.
Prepared
by
June 2004