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Seeking Employment Restrictions

Provided by Office of Counsel

Published Oct. 16, 2013

Document 1
SEEKING EMPLOYMENT (RESTRICTIONS, RULES WHEN YOU ARE LOOKING FOR A NEW JOB)


PURPOSE:
This document summarizes the Government ethics rules which may impose certain

restrictions on your activities in search of outside or post-Government employment.

LEGAL NOTICE: This information merely identifies statutes and regulations that restrict or

otherwise affect activities of DoD personnel after they leave Government service. Because

restrictions are dependent on specific facts, and because this information is a summary of the

rules, USACE Louisville District personnel should contact Office of Counsel at (502) 315-6641

or by e-mail atjanice.e.lengel@usace.army.mil to discuss their particular situation. DoD

personnel served by other ethics offices should consult with their ethics officials. You may also

consult with your personal attorney.

Advice from ethics officials with respect to these matters is advisory only, and is provided in

accordance with 5 C.P.R.§ 2635.107 and 41 U.S.C. § 2104 (Procurement Integrity Act). Ethics

officials are acting on behalf of the United States Government, and not as your personal

representative. No attorney-client relationship is created.

Part 1: Restrictions While Seeking Private Employment

(BEFORE You Leave USACE)

1.1.1 SIMPLIFIED RULE: Once you have started seeking employment with a prospective

employer, you may not take any official action that will affect the financial interests of that

prospective employer.

1.1.1 RULE: An officer or employee may not participate personally and substantially

in a particular matter that, to his knowledge, will have a direct and predictable effect on the

financial interests of a prospective employer with whom the employee is seeking employment (5

C.P.R. § 2635.604).

1.1.1.1 "Particular Matter" - matters that involve deliberation, decision, or action

that is focused on the interests of specific persons or a discrete and identifiable class of persons.

These matters may include a contract, claim, application, judicial or other proceeding, request for

a ruling or other determination, controversy, investigation, or charge. A particular matter could

even include legislation or policy-making that is narrowly focused on the interests of a discrete

and identifiable group of parties or organizations, e.g., DoD policy affecting only military

aircraft manufacturers.

1.1.1.2 "Personal and substantial" participation - This means that you are directly

participating in the matter or that one or more of your subordinates, whom you are directing, is

participating. Also, the participation must be of significance to the matter, which may be based

on the amount and importance of your effort. One act, such as approving a critical step, may be

substantial. Likewise, if you have to review and approve a certain step, and work would stop if

you did not approve,

then your participation is substantial, even though it may have seemed like a paperwork exercise to you.

On the other hand, an entire series of peripheral acts may not be substantial.

If you merely have knowledge of the matter, routine or superficial involvement,

or involvement on a peripheral or administrative issue, you are not "substantially" involved. If you are

not involved in the substantive merits, you may not be substantially involved, even though you put a lot

of time into the matter. If you are merely responsible for reviewing the matter for compliance with

administrative or budgetary considerations, you are also not substantially involved.

1.1.1.3 "Direct and Predictable Effect" - There must be a close, causal link

between any action taken on the matter and any expected effect of the matter on the financial interest.

An effect may be direct even though it does not occur immediately. A matter that may affect the

financial interest only because of its effects on the general economy is not direct. There must also be a

real, not speculative, possibility that the matter will affect the financial interest, but the size of the gain

or loss is not relevant.

1.1.1.4 "Seeking employment" - If the above definitions apply to your situation,

then you must complete a disqualification for those non-Federal entities with whom you are "seeking"

employment. "Seeking employment" includes your inquiries regarding potential future employment,

including negotiations; and your responses, other than an immediate and clear rejection, to an

unsolicited communication regarding possible employment. "Seeking employment" does not include

requesting a job application, but does include forwarding a resume. If you send a resume, you are

considered to be "seeking employment" for 2 months unless either you or the company rejects the

possibility of employment prior to that time.

1.2 Disqualification: Disqualification is simple - Do not do ANY work on the task! To

help you accomplish this, DoD also requires that you give a written disqualification to your supervisor

(5 C.P.R.§ 3601.105(c); section 2-204c of DoD 5500.07-R, Joint Ethics Regulation (JER)). The written

disqualification must state that you will not participate in any official matter that has a direct and

substantial effect on the prospective employer(s) that you identified. A sample disqualification form is

included in this package.

EXAMPLE: If a company has no relationship or dealings with your current work or

office, or there is no opportunity for a "particular matter" to "directly and predictably"

affect its financial interests, or even an opportunity for you to participate in such a matter,

you will not have to disqualify yourself before seeking employment with that company.

If, however, you work on any project, program, or a specific task that can directly and

predictably affect a potential employer, you must disqualify yourself from any such

further work before you start to seek employment with that employer. If your office

works on these types of tasks, even though you are not personally involved, you should

also disqualify yourself so that you do not inadvertently start to work, or that your boss

does not assign you a task, in that area. If you don't disqualify yourself, and an

assignment does land on your desk, you must immediately disqualify yourself and not do

any work on the task. If you are in charge of an office and any of your employees work

on such tasks, you must disqualify yourself from participating "personally and

substantially" before seeking employment with the organization.

2

1.2.1 Withdrawal of Disqualification: When negotiations have terminated with a

decision not to work for the prospective employer, you should withdraw your disqualification.

1.2.2 Procurement Personnel: You may not participate personally and substantially in a

DoD procurement valued at more than $150,000 when seeking employment with a bidder or offeror.

The rules require that personnel file written disqualification statements with the contracting officer,

source selection authority, and immediate supervisor, identifying the procurement, describing the nature

and specific dates of participation in the procurement, and identifying the bidder or offeror and describe

its interest. Further, you must promptly report, in writing, to their supervisors and ethics officials, any

employment contact with a bidder or offeror in a DoD procurement valued at more than $150,000, even

when you promptly reject the employment contact.

1.3 Supervisory Determination: When you are "seeking employment," but have not yet

entered into negotiations with the prospective employer, your supervisor may authorize your

participation in a matter if he or she determines that the Government's interests outweigh the concern

that the integrity of the agency's program and operation may be questioned. The supervisor must

consider at least six factors and must consult with OC before making the determination.

Part 2: Restrictions While Negotiating Private Employment

2.1 SIMPLIFIED RULE: Once you have started negotiating with a prospective employer,

you may not take any official action that will affect the financial interests of that prospective employer.

2.1.1 RULE: An officer or employee may not personally and substantially participate

in a particular matter in which, to the officer or employee's knowledge, the officer or employee, his/her

spouse, child, partner, organization in which the officer or employee serves as an officer, director,

trustee, partner, or employee, or organization with whom he or she is negotiating or has any

arrangement concerning prospective employment has a financial interest. An arrangement or

negotiation for prospective employment is considered to create a financial interest of the officer or

employee in the company with whom he or she is seeking employment. It has the same effect as if the

employee purchased stock in the company (18 U.S.C. § 208).

2.1.1.1 "Negotiating" - any discussion with the organization, or an agent, with the

mutual view of reaching an agreement regarding possible employment. It is not limited to just

discussing specific terms and conditions of employment in a specific position.

2.1.1.2 See the preceding section for the definitions of "particular matter,"

"personal and substantial" participation, and "direct and predictable effect."

2.2 Disqualification: See the preceding section for an explanation. Even i.f you~ supervisor

has authorized your participation in a matter while seeking employment, you must dtsquahfy yourself

the moment you start "negotiating."

2.3 Waiver: The official responsible for your appointment to your posit!on. is the ~nly one

who can grant a waiver of this disqualification. He or she must find that your financml mterest IS not so

3

substantial as to be deemed likely to atfect the integrity of your services. The official must consult with

OC bet\.)re granting a waiver allowing your participation in the matter. DoD recommends that

the granting of waivers be carefully scrutinized in the light of all the facts and circumstances.

This guidance was produced by the DoD Standards a_{ Conduct Office

Rev. 1/2012

4

ENCLOSURE- SAMPLE DISQUALIFICATION

[insert date]

MEMORANDUM FOR [insert supervisor title]

SUBJECT: Disqualification Statement (Seeking Employment)

I anticipate commencing employment discussions with the companies listed below. In

accordance with section 208 of title 18 of the United States Code, a criminal statute, and section

2635.604 oftitle 5 of the Code of Federal Regulations, I am disqualified from participating

personally and substantially as a Government officer or employee in any particular matter that

would have a direct and predictable effect on the financial interests of them, their parent

companies, subsidiaries, affiliates, and joint ventures (covered parties).

Covered Parties:

[insert name of company(ies)]

This disqualification remains in effect until further notice. In the event of changed

circumstances, such as rejecting the possibility of employment with one of the covered parties or

the passage of a 2 month period during which I have received no indication of interest in

employment discussions from one of the covered parties, I will consult an ethics counselor,

update this memorandum and notify everyone concerned.

cc: Office of Counsel

(Room 812, CELRL)

[insert name]