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The following
guidelines are provided to assist you in conducting
activities properly as you seek employment after
you leave the Government-post-employment. These
guidelines do not address every aspect of post
employment. Therefore, if you have a specific
question, you should seek advice from your supervisor
and/or the Agency Ethics Office.
Post-Employment
- Lifetime Representation
Ban ["Hands-on Switching Sides"].
If an employee participates personally and substantially
in a particular Government matter, and the participation
happened after one or more specific non-Government
parties (such as a contractor, grantee, applicant,
claimant, opposing party, etc.) became involved
in the matter, then he or she may not, at any
time after leaving the Government, make an appearance
before or communicate with any Federal employee,
with the intent to influence that employee,
regarding that same particular matter. [18 USC
207(a)(1)] Behind-the-scenes assistance is generally
permitted. Also, you may represent yourself
as a person (but not as a corporation, etc.).
In addition to this ban, other bans may also
apply.
- Two-Year Representation
Ban ["Supervisory Switching Sides"].
If an employee has a particular Government matter
under his or her official responsibility during
his or her last year of Government service,
and the matter was under the employee's official
responsibility after the point when one
or more specific non-Government parties (such
as a contractor, grantee, applicant, claimant,
opposing party, etc.) became involved in the
matter, then he or she may not, for two years
after leaving Government service, make an appearance
before or communicate with any Federal employee,
with the intent to influence that employee,
regarding that same particular matter. [18 USC
207(a)(2)] If the ban applies, behind-the-scenes
assistance and self-representation are generally
permitted. In addition to this ban, other bans
may also apply.
- Definitions for Purposes
of the Lifetime and Two-year Representation
Bans.
- "Particular
matter" includes a broad spectrum
of Government actions, programs, efforts,
and initiatives, such as interpretive rulings,
decisions to undertake particular projects,
or determinations to open a project to competitive
bidding. It includes rulemaking, legislation,
formulation of general policy, standards or
objectives, or other actions of general application.
The term "particular
matter involving specific parties"
includes only those particular matters that
are proceedings that affect the legal rights
of the Federal Government and at least one
identifiable, non-Federal party-law suits,
loan or grant applications, contract bids,
investigations of named parties, etc. It does
not include rulemaking, legislation, formulation
of general policy, standards and objectives,
or other actions of general application.
- "To 'participate
personally' means to participate directly.
Also, it includes the direct and active supervision
of the participation of a subordinate in the
matter. To 'participate
substantially' means that the employee's
involvement is of significance to the matter.
However, it requires more than official responsibility,
knowledge, perfunctory involvement, or involvement
on an administrative or peripheral issue."
[5 CFR 2635.402(b)(4) & .603(d)] Examples
of "personal and substantial" participation
include, but are not limited to, serving as
a decision maker, an approval authority, an
advisor, a reviewer, an evaluator, an inspector,
or an investigator.
- "[T]he term '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 action." [18 USC 202(b)]
- "The scope
of an employee's official responsibility
is usually determined by those areas assigned
by statute, regulation, executive order, or
job description. All particular matters under
consideration in an agency are under the official
responsibility of the agency head, and each
is under that of any intermediate supervisor
having responsibility for the activities of
a subordinate employee who actually participates
in the matter. An employee's recusal from
or other non-participation in a matter does
not remove it from his official responsibility."
[Office of Government Ethics Summary of 18
USC 207, 17 Feb 00]
- "A 'communication'
can be made orally, in writing, or through
electronic submission. An 'appearance'
extends to a former employee's mere
physical presence at a proceeding when the
circumstances make it clear that his attendance
is intended to influence the United States.
An 'intent to influence'
the United States may be found if the communication
or appearance is made for the purpose of seeking
a discretionary Government ruling, benefit,
approval, or other action, or is made for
the purpose of influencing Government action
in connection with a matter which the former
employee knows involves an appreciable element
of dispute concerning the particular Government
action to be taken." [Office of Government
Ethics Summary of 18 USC 207, 17 Feb 00]
- Senior Employee One-Year
"Cooling Off" Ban. A "senior
employee" may not, for one year after leaving
the Government, make any communication to, or
appearance before, any employee of his former
agency, with the intent to influence that employee,
on behalf of any third person, in connection
with any matter on which the senior employee
seeks official action by his former agency.
[18 USC 207(c)] "Senior employee"
includes SES and other employees whose rate
of basic pay equals or exceeds 86.5 percent
of the rate for Level II of the Executive Schedule.
For OCFO personnel, "former agency"
generally means the Department of Agriculture.
- Senior Employee One-Year
Ban On Representing Or Advising Foreign Entities.
A "senior employee" may not, for one
year after leaving Government service, represent
a foreign entity before any United States (US)
Government agency with intent to influence a
decision by that agency, and may not aid or
advise a foreign entity with intent to influence
a decision by a US Government agency. "Foreign
entity" means a foreign Government or a
foreign political party. [18 USC 207(f)] "Senior
employee" has the same definition as in
the previous paragraph. The ban on aiding and
advising also prohibits behind-the-scenes assistance.
[Office of Government Ethics Summary of 18 USC
207, 17 Feb 00].
- One-Year Compensation Ban.
Employees who serve in any of the following
seven positions or make any of seven decisions
on a contract over $10 million (M) may not accept
compensation from the contractor for one year
[41 USC 423(d)]. The positions are procurement
contracting officer, source selection authority,
source selection evaluation board member, chief
of a financial or technical evaluation team,
program manager, deputy program manager, or
administrative contracting officer. The decisions
are:
- Decision to award a contract over $10M.
- Decision to award a subcontract over $10M.
- Decision to award a modification over
$10M of a contract, or a modification over
$10M of a subcontract.
- Decision to award a task order or delivery
order over $10M.
- Decision to establish overhead or other
rates for a contract or contracts valued
over $10M.
- Decision to approve issuance of a contract
payment or payments over $10M.
- Decision to pay or settle a contract claim
over $10M.
Even if there are no conflicts
of interest involved, there is always a sense
of uneasiness when Government employees see their
former fellow workers back in a contractor capacity.
To protect the rights of a former employee and
their future employment opportunities, post-employment
restrictions and laws are considerably narrow
so as to be fair.
Please remember that appearance
problems and post-employment issues go hand-in-hand.
To the extent that an individual is looking to
come back and work with their former employer,
they should ensure that there is not the appearance
that they are "swinging" business to
their new employer.
For more information on post-employment,
please visit the Ethics Website at http://www.usda-ethics.net/training/module_08/index.htm
and at http://www.usda-ethics.net/rules/postemployment.htm
If you have questions or encounter
situations not covered by this advisory, please
contact your supervisor. Supervisors with inquiries
should contact the Agency Ethics Office at 504-426-0308
or 504-426-0307.
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