Rules Concerning Looking for a Job Outside of the Government and Post-Government Employment

One more thing: Provided that you have disqualified yourself from official involvement with a prospective employer, you may accept offers from that prospective employer to pay for interview trips and entertainment.

OVERVIEW OF POST-EMPLOYMENT RULES

• There are a number of restrictions imposed on Federal employees once they leave the Government. It is important to bear in mind that none of these post-employment restrictions prohibits a Federal employee from going to work for any non-Federal employer after leaving the Government. The only restriction is on what the Federal employee can DO for that employer. These restrictions on activities are what we will be discussing in more detail.
• Some of the restrictions apply to ALL Federal employees, regardless of grade. The rest apply only to officials working on procurements, trade negotiators, or senior employees.
• These post-employment rules do not apply to Guest Researchers, Special Volunteers, National Research Council Research Associates, or others who have not been appointed as regular employees or special Government employees.

FIVE-YEAR BAR FOR EMPLOYEES TAKING BUYOUTS

• Many of you may be thinking of, or know someone else who is thinking of, taking advantage of the "buyout" or voluntary separation incentive payments offered by some components for leaving the Government under the Federal Workforce Restructuring Act.
• Under these "buyout" provisions, Federal employees are prohibited for 5 years from entering into a personal services contract with the Government.
• There are exceptions, however, which allow the Government to contract with former employees for certain services.

LIFETIME BAR ON MATTERS INVOLVING DIRECT AND PERSONAL PARTICIPATION

• This is the main post-employment restriction (18 U.S.C. 207) and it applies to all employees. It is sometimes called the "lifetime bar." Under the lifetime bar, after you leave the Government, you are permanently restricted from making a communication or appearance (that means: calling or writing letters, or even attending meetings) on behalf of someone else, to the Government, with the intent to influence the Government on a particular matter involving specific parties (like a contract, grant, approval, or decision) in which you were personally and substantially involved when you worked for the Government. This is generally known as the prohibition against "switching sides."

  Example: An ASPE project officer is working with ResearchTech, a research company, on a grant to develop a welfare reform proposal. After the project officer leaves ASPE, she goes to work for ResearchTech. The former ASPE employee is permitted to do technical work on the grant and discuss with ASPE only technical, factual information regarding the grant. She may NOT argue for increased ASPE funding of the grant, because that would be a communication to the Government with the intent to influence (representational).

TWO-YEAR BAR ON MATTERS UNDER OFFICIAL RESPONSIBILITY

• This restriction is almost the same as the preceding one, except that it applies to managers and supervisors. Under this restriction, for two years after leaving the Government, you may not represent anyone else back to the Government, with the intent to influence, on a particular matter involving specific parties which was under your official responsibility in the last year you worked for the Government.
• Two points to remember:
  • First, when we talk about a lifetime bar, or a two-year bar, we are talking about the lifetime of the particular matter. Once that matter has expired, we don't have to worry about it any more.
  • Second, these restrictions only apply to communications made with the intent to influence the Government. Communications of a purely factual, scientific or technical nature are not usually made with the intent to influence, and, as a result, would NOT be subject to these restrictions.
  Example: After leaving CDC, a CDC employee may apply as the principal investigator for a CDC grant, so long as the grant was not pending under his official responsibility while he was at CDC. If, however, the former employee is asked to become co-principal investigator on a grant which had been pending under his official responsibility during his last year at CDC (or one which he had reviewed at any time while he was a Government employee), he must be very careful that any communications he makes to CDC are for the purpose of imparting only factual or scientific/technical information. In the second example, the former employee must strictly avoid making any statements that could be viewed as "representational."
• As you can see, these post-employment rules allow a fair amount of flexibility, provided that you pay attention to the restrictions!

ONE-YEAR BAR ON TRADE AND TREATY NEGOTIATIONS

Have you been involved in trade or treaty negotiations? This restriction under 18 U.S.C. 207 prohibits all employees from knowingly representing, aiding or advising any other person concerning any ongoing trade or treaty negotiation in which they participated during their last year of Government service. Note that this bar prohibits behind-the-scenes aid or advice to anyone other than the United States in connection with the trade or treaty negotiations--not just representational activities which we just talked about with the first two restrictions.

REPRESENTING POLITICAL CANDIDATES

An exception has been added to 18 USC 207(j) which permits former agency officials to represent political candidates, political committees, or political parties back to their former agencies.

"SENIOR" EMPLOYEES

There are two additional restrictions which apply to "senior employees," that is, employees in the Senior Executive Service paid at level 5 and above.

• The first restriction for senior employees is found in 18 U.S.C. 207(c), and is known as the one-year "cooling-off" period. This rule prohibits former senior employees from communicating or making an appearance before their former component agency, with the intent to influence, for one year after leaving senior service. Note that this rule applies not just after leaving the Government, but after leaving senior service.

  Also, this ban--unlike the permanent and two-year bans discussed above--is not limited to "particular matters involving specific parties." It covers general regulations, legislation and policy issues.

  Example: Under this restriction, the former Commissioner of FDA would be prohibited, for one year, from calling or writing to FDA to advocate adoption of tougher guidelines for promoting objectivity in research.

• The second restriction for senior employees under 18 U.S.C. 207(f) is a one-year bar that prohibits the former senior employee from knowingly aiding, advising or representing a foreign entity, with the intent to influence the official actions of ANY employee of the Government.

SENIOR APPOINTEE PLEDGE

• Executive Order 12834 (also known as the "Senior Appointee Pledge") was the first executive order signed by President Clinton. This Executive Order requires that all full-time, non-career Presidential, Vice Presidential, or agency head appointees (senior appointees) be subject to additional restrictions.

  NOTE: Non-career SES political appointees paid at ES-4 are not subject to the Senior Appointee Pledge.

• The Senior Appointee Pledge applies only to new political appointees and not to career SES or holdover appointees.
• The Pledge effectively extends the one-year restrictions previously described for "senior" employees to a five-year period and limits representation of foreign governments, foreign political parties, and foreign business entities.

TWO-YEAR BAR FOR PROCUREMENT OFFICIALS

• The next restriction applies only to former procurement officials who retired prior to January 1, 1997.
• The Procurement Integrity Act post-employment restriction says that for TWO YEARS from the LAST DAY YOU PARTICIPATED IN A PROCUREMENT, you may not participate, in any manner, in negotiations leading to the award, modification or extension of the procurement. And, for that same two-year period, you may not participate personally and substantially on behalf of a competing contractor in the performance of the contract.
• It's up to the employee to keep track of when he or she was last involved in the procurement. Failing that, the day that the contract was awarded, or the employee left Government service--whichever is earlier--will be used. Note that this is NOT a representational restriction. You can't represent your new employer to the Government on the procurement, and you can't even help, or give advice behind-the-scenes to your new employer in performance of the contract.

  Example: On May 15, 1993, Ms. Smith, a procurement official with ASMB, reviewed and approved the extension of a contract for ABC Inc. In September 1993, Ms. Smith left ASMB to work for XYZ Corp. Unsatisfied with that job, on May 15, 1994, she left XYZ Corp. to take a new position with ABC Inc. Because it has been only one year since her last participation in the procurement extending the contract to ABC Inc., Ms. Smith is prohibited for one MORE year from performing work under that contract for ABC Inc. She could, however, perform other work for the company, including working on an ASMB contract awarded in May 1991. Note that, if Ms. Smith had participated in the award of the 1991 ASMB contract to ABC Inc., she may be permanently barred from negotiating for any changes in that contract, or making any other representational communications to ASMB on behalf of ABC Inc., although she could still work "behind-the-scenes" on the contract.

  If you retire after January 1, 1997 and you worked on a contract in excess of $10,000,000, you are prohibited from receiving compensation from that contractor within one year after you:

  1. Served as contracting officer, as a member of a source selection board, or as chief of a technical evaluation team;
     OR

  2. served as the program manager, deputy program manager, or administrative contracting officer;
     OR

  3. 3. personally made certain decisions, including establishing overhead or settling a claim.

If you are uncertain whether this prohibition may apply to you, you may request an advisory opinion from your Deputy Ethics Counselor.

EXCEPTIONS

Exceptions to (ALMOST) all post-employment statutes--

• An exception is provided most of the post-employment restrictions when the post-employment activities are performed:
  • In carrying out official duties on behalf of the United States
    (DOES NOT APPLY TO THE "BUYOUT" LAW), OR
  • In carrying out official duties as an elected official of a state or local government (DOES NOT APPLY TO THE PROCUREMENT INTEGRITY RULES).
• An exception is provided to all the restrictions of 18 U.S.C. 207 for former employees employed by a recognized Indian tribe when communicating on behalf of the tribe. This applies to ALL former employees, not just IHS employees. In order for this exception to apply, the former employee must provide written notification to the head of the department, agency, court, or commission with which he or she is dealing or appearing on behalf of the tribe of any personal and substantial involvement he or she may have had as an employee of the United States in connection with the matter involved. 25 U.S.C. 450i(j).
• Another exception is provided to all the restrictions of 18 U.S.C. 207 for former employees when communicating on behalf of, or advising or aiding, an international organization in which the United States participates, such as NATO, the UN, or WHO, if the Secretary of State certifies in advance that such activity is in the interests of the United States.

Exception for former senior employees--

An exception is provided to former senior employees for the one-year "cooling-off" (and the five year senior appointee pledge period) when the communication or appearance is made in carrying out official duties as an employee of, and on behalf of:

• An agency or instrumentality of a State or local government,
• An accredited degree-granting institution of higher education as defined in section 1201(a) of the Higher Education Act of 1965, or
• A hospital or medical research organization exempted and defined under section 501(c)(3) of the Internal Revenue Code of 1986.

PUBLIC FINANCIAL DISCLOSURE REPORTS (SF 278)

For those employees required to file a Public Financial Disclosure Report (SF 278) and must report arrangements for future employment on Schedule C, Part II, two additional matters must be addressed:

• First, whether or not employment negotiations are successful, the employee should report any payment received from prospective employers for interview trips, etc.
• Second, all such employees are required, within thirty (30) days of leaving Federal service, to file a termination SF 278 report.