Restrictions When Leaving Government Employment
These restrictions can be summarized in one sentence: You may not simultaneously work on a matter affecting a potential employer while seeking a job with it. The specific rules are:
18 USC 208 prohibits an employee from participating personally and substantially in a particular matter in which he knows a person with whom he is negotiating for employment or with whom he has an arrangement for future employment has a financial interest.
5 CFR 2635.604 prohibits an employee from participating personally and substantially in a particular matter that she knows will have an effect on the financial interests of a prospective employer with whom she is seeking employment.
The standard of conduct is much broader than the criminal statute. The employee must actually be negotiating or have an agreement for employment in order to trigger the criminal statute. Under the standard, simply sending a resume or not rejecting an approach by a potential future employer will trigger the standard. (1) The only remedy is disqualification as we generally do not waive disqualification for something so significant as the financial interests of as a future employer.
When are you seeking employment?
You are seeking employment under the standard when you send a resume or call a potential employer or you do not immediately reject the possibility of employment with someone who has approached you about a job. Postponing employment discussions until you have finished working on a matter does not absolve you of the conflict. You must either reject an unsolicited communication about a job, or if you want to follow up, you must disqualify yourself.
What if you receive no reply to your resume?
After two months with no response you no longer need to disqualify yourself from matters affecting that entity.
What if you are using a headhunter?
You must be disqualified if the headhunter tells you the name of the prospective employer he has approached on your behalf. Both the standard and the statute have a knowledge test. Once you know that a prospective employer has been supplied with your resume, you are disqualified from matters involving that entity.
May a prospective employer pay your travel expenses for an interview?
Yes, because such payment qualifies for the exception from the gift acceptance prohibition for a gift based on an outside business relationship. You do not need approval to accept, but if the amount of the reimbursement exceeds $335 you must report it on your financial disclosure report.
Post-Government Employment Restrictions
Most of the restrictions on former employees are found in 18 USC § 207, a criminal statute. None of the provisions bar self-representation or assisting behind the scenes in a representation, but lawyers must be mindful of their bar rules, which generally do bar behind-the-scenes assistance.
18 USC § 207(a)(1) prohibits a former employee from communicating to or appearing before a federal court or agency with the intent to influence on behalf of someone other than the United States on a particular matter involving specific parties in which he participated personally and substantially while with the government and in which the United States is a party or has a direct and substantial interest.
This is a lifetime bar and is very similar to the bar rule that prohibits switching sides. However, most bar rules also prohibit all aspects of representation, including counseling or other behind-the- scenes assistance. See ABA Model Rule 1.11.
18 USC § 207(a)(2) prohibits a former employee from communicating to or appearing before a federal court or agency with the intent to influence on behalf of someone other than the United States on a particular matter involving specific parties that he knows was pending under his official responsibility during his last year of government service and in which the United States is a party or has a direct and substantial interest .
This is a two-year bar and there is no parallel bar rule. Further, an employee's recusal from a matter does not remove it from his official responsibility. These are matters that the employee may not have worked on and may not have even known about. After you leave government, if you are not sure if something was pending under your official responsibility, you may call an ethics official with the Department who will find out.
Application of the two-year bar to heads and staff of Senior Management Offices.
Generally someone serving in a staff capacity, rather than a line capacity does not need to attribute to his official responsibility matters pending in components that he services. (2) For example, an Associate Deputy Attorney General does not have pending under his official responsibility every matter in the Bureau of Prisons (BOP) even though BOP may be his assigned area of responsibility. Conversely, everything pending in BOP (indeed in the entire Department) is pending under the Deputy Attorney General's responsibility. Similarly, everything in the Department is pending under the official responsibility of the Attorney General. The Associate Attorney General is responsible for everything pending in the components that report to him.
18 USC 207(b) bars a former employee from representing, aiding or advising on the basis of confidential information, on behalf of someone other than the United States on an ongoing treaty, or a trade negotiation under the Omnibus Trade and Competitiveness Act of 1988, in which she participated personally and substantially during her last year as a senior employee.
This is a one-year bar. The Department is not generally involved in trade agreements to which the statute applies but some Justice employees have been involved in treaty negotiations.
18 USC § 207(c) bars a former senior employee from communicating to or appearing before the agency in which he served during his last year of government service, with the intent to influence, on behalf of another person on a matter on which he seeks official action. A senior employee includes Executive Level officials, and any individual who is paid at a rate of basic pay equal to or greater than 86.5% of the rate for Level II of the Executive Schedule, which is $148,953 as of January, 2008. Therefore, SES officials whose pay is at least $148,953, and Senior Level or other employees whose basic pay is at least $148,953 are Senior Employees, and are covered by this bar.
This is a one-year bar and covers direct contacts with Department officials as well as appearances in court when representatives of the Justice Department are appearing. Senate-confirmed presidential appointees are barred from representations before the whole Department. Members of the SES in components designated as separate are barred only from representations to their own components, but SES staff of the senior management offices and SES in components not designated separate are barred from their own offices and from all components not designated separate. (3)
18 USC § 207(d) bars a former cabinet official from making, with the intent to influence, a communication to or appearance before, any Executive Level official in the Executive Branch on behalf of someone other than the United States.
This is a two-year bar.
There are some exceptions to subsections (c) and (d) for representing certain types of organizations such as a state or local government or an organization having 501(c)(3) status.
18 USC § 207(f) bars a former senior employee from representing a foreign entity before an agency of the United States or aiding or advising a foreign entity with the intent to influence an employee of a federal agency.
This is a one-year bar and covers employees paid at the Executive Level and those paid at a rate equal to or above ES-5 of the SES.
18 USC § 203 bars a former employee from sharing in fees for representations before a federal agency or a court rendered by another at the time she was with the government on matters in which the United States is a party or has a direct and substantial interest.
This means that if a former government employee joins a law firm that has a government practice, she should be on salary for a time or her share of fees must be screened so that her share does not include fees from cases with the United States that were earned by representations before a federal agency or a court while she was with the government.
1. An employee is not disqualified from a matter that has industry or class-wide applicability such as legislation or regulations, if he sends a resume to someone who is affected by such a matter. However, he would be disqualified if and when he receives a favorable response.
2. The term "official responsibility" is defined as "the direct administrative or operating authority ... to approve, disapprove or otherwise direct government action." The scope of an employee's official responsibility is usually determined by those areas assigned by statute, regulation, executive order, job description or delegation of authority.
3. Separate components include all bureaus, divisions, each U.S. Attorney's Office and each U.S. Trustee's Office, but not offices with broad jurisdiction such as the Senior Management Offices, JMD, OIG, OLC, OLA, OIP, OPD, OPR , PAO and PRAO. Other components not designated separate include COPS, EOIR, INTERPOL, NDS, OIPL and NDIC.