Before Leaving Government
August 25, 2016
In general, an executive branch employee is free to seek post-Government employment, but the employee may need to be recused from working on some Government matters while doing so.
Recusal While "Seeking Employment"
A criminal conflict of interest statute, 18 U.S.C. § 208, prohibits an employee from participating personally and substantially, in an official capacity, in any "particular matter" that, to the employee's knowledge, would have a direct and predictable effect on the employee's financial interests or on the financial interests of a person or organization with whom the employee is negotiating or has an arrangement concerning prospective employment. A related executive branch-wide regulation, Subpart F of 5 C.F.R. part 2635, prohibits an employee from working on a particular matter if the employee is "seeking employment" with a person or organization affected by that matter, even though the employee's job search has not progressed to actual negotiations. An employee who complies with the recusal requirements in Subpart F will ensure compliance with the conflict of interest statute.
An employee is "seeking employment" as defined in Subpart F, and the recusal requirement applies, if:
- the employee is engaged in actual negotiations for employment;
- a prospective employer has contacted the employee about possible employment and the employee makes a response other than rejection; or
- the employee has contacted a prospective employer about possible employment, unless the sole purpose of the contact is to request a job application. (An employee is seeking employment with any person to whom he sends an unsolicited resume, regardless of how many resumes the employee sends to other employers at the same time.)
If a search firm, an online resume distribution service, or other intermediary is involved, recusal is not triggered unless the intermediary identifies the prospective employer to the employee.
If the recusal requirement applies, it extends to any particular matter (virtually any Government matter) that would have a direct and predictable effect on the financial interests of the prospective employer. However, an employee may work on particular matters of general applicability that affect the prospective employer if the employee's only communication with the prospective employer is the submission of an unsolicited resume and the prospective employer has not responded to indicate an interest in employment discussions. Here, work on this category of particular matters is permissible until the employee receives an expression of interest from the employer.
An employee is no longer seeking employment if:
- Two months have elapsed since the employee's dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer; or
- Either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended. A response that merely defers discussion until the foreseeable future does not constitute rejection.
Example: Ted has met with representatives of several companies while working on a rulemaking that will affect the financial interests of those companies. One of the representatives asks Ted if he would be interested in discussing a job opening. If Ted responds that he "would like to discuss the opening, but not until the rulemaking is final," he has not rejected the possibility of employment.
Notification and Documentation of Recusal
When an employee becomes aware of the need to be recused from a particular matter, the employee should notify the person responsible for his or her assignments, and may choose to document the recusal in writing. Notification permits a supervisor to minimize any disruption of the agency's mission by arranging assignments accordingly.
Any employee who is a public financial disclosure report filer must file a signed notification statement with his or her agency ethics official within three business days after commencing negotiations or entering into an agreement with a non-Federal entity to accept post-Government employment or compensation. The statement must identify the entity and specify the date the negotiations or agreement commenced. A public filer must also document his or her recusal from any particular matter that would have a direct and predictable effect on the financial interests of the entity and submit that signed recusal document to his or her agency ethics official. The notification statement and written recusal may be combined in a single submission. A public filer may elect to file advance notification and recusal statements before negotiations have commenced and before an agreement of future employment or compensation is reached. If a public filer elects to file a notification or recusal statement in advance, he or she need not file the document again upon commencing negotiations or reaching an agreement of future employment or compensation.
Some agencies may have established additional requirements concerning notification or the documentation of recusals (and see below concerning additional requirements for some procurement officials).
If recused as necessary in accordance with Subpart F, an employee may accept gifts of meals, lodging, transportation, and other benefits customarily provided by a prospective employer in connection with bona fide employment discussions. This gift provision is published at 5 C.F.R. § 2635.204(e)(3). However, when the prospective employer is a foreign government or international organization, the employee must also comply with the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342.
Possible Recusal After Employment Search
If an employee accepts an offer of post-Government employment, the period of recusal must continue until the end of Government service. If an employee's search for other employment proves unsuccessful, the recusal requirement ends, unless the agency imposes an additional period of recusal.
Additional Requirements for Some Procurement Officials
If an employee is working "personally and substantially" on a procurement for a contract worth more than the simplified acquisition threshold, 41 U.S.C. § 2103 requires that the employee provide written notice of a contact with an offeror about prospective employment, even if the employee or contractor immediately rejects the possibility of employment. This "procurement integrity" provision also requires the employee to file a written disqualification memorandum if the employee commences to seek employment. Guidance concerning the particular requirements of this provision is published in the Federal Acquisition Regulation (FAR), at 48 C.F.R. part 3.
The information on this page is not a substitute for individual advice. Agency ethics officials should be consulted about specific situations.