[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2635.604]

[Page 577-578]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER XVI--OFFICE OF GOVERNMENT ETHICS
 
PART 2635_STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE 
BRANCH--Table of Contents
 
                   Subpart F_Seeking Other Employment
 
Sec. 2635.604  Disqualification while seeking employment.

    (a) Obligation to disqualify. Unless the employee's participation is 
authorized in accordance with Sec. 2635.605, the employee shall not 
participate personally and substantially in a particular matter that, to 
his knowledge, has a direct and predictable effect on the financial 
interests of a prospective employer with whom he is seeking employment 
within the meaning of Sec. 2635.603(b). Disqualification is 
accomplished by not participating in the particular matter.
    (b) Notification. An employee who becomes aware of the need to 
disqualify himself from participation in a particular matter to which he 
has been assigned should notify the person responsible for his 
assignment. An employee who is responsible for his own assignment should 
take whatever steps are necessary to ensure that he does not participate 
in the matter from which he is disqualified. Appropriate oral or written 
notification of the employee's disqualification may be made to coworkers 
by the employee or a supervisor to ensure that the employee is not 
involved in a matter from which he is disqualified.
    (c) Documentation. An employee need not file a written 
disqualification statement unless he is required by part 2634 of this 
chapter to file written evidence of compliance with an ethics agreement 
with the Office of Government Ethics or is specifically asked by an 
agency ethics official or the person responsible for his assignment to 
file a written disqualification statement. However, an employee may 
elect to create a record of his actions by providing written notice to a 
supervisor or other appropriate official.

    Example 1: An employee of the Department of Veterans Affairs is 
participating in the audit of a contract for laboratory support 
services. Before sending his resume to a lab which is a subcontractor 
under the VA contract, the employee should disqualify himself from 
participation in the audit. Since he cannot withdraw from participation 
in the contract audit without the approval of his supervisor, he should 
disclose his intentions to his supervisor in order that appropriate 
adjustments in his work assignments can be made.
    Example 2: An employee of the Food and Drug Administration is 
contacted in writing by a pharmaceutical company concerning possible 
employment with the company. The employee is involved in testing a drug 
for which the company is seeking FDA approval. Before making a response 
that is not a rejection, the employee should disqualify himself from 
further participation in the testing. Where he has authority to ask his 
colleague to assume his testing responsibilities, he may accomplish his 
disqualification by transferring the work to that coworker. However, to 
ensure that his colleague and others with whom he had been working on 
the recommendations do not seek his advice regarding testing or 
otherwise involve him in the matter, it may be necessary for him to 
advise those individuals of his disqualification.
    Example 3: The General Counsel of a regulatory agency wishes to 
engage in discussions regarding possible employment as corporate counsel 
of a regulated entity. Matters

[[Page 578]]

directly affecting the financial interests of the regulated entity are 
pending within the Office of General Counsel, but the General Counsel 
will not be called upon to act in any such matter because signature 
authority for that particular class of matters has been delegated to an 
Assistant General Counsel. Because the General Counsel is responsible 
for assigning work within the Office of General Counsel, he can in fact 
accomplish his disqualification by simply avoiding any involvement in 
matters affecting the regulated entity. However, because it is likely to 
be assumed by others that the General Counsel is involved in all matters 
within the cognizance of the Office of General Counsel, he would be wise 
to file a written disqualification statement with the Commissioners of 
the regulatory agency and provide his subordinates with written 
notification of his disqualification, or he may be specifically asked by 
an agency ethics official or the Commissioners to file a written 
disqualification statement.
    Example 4: A scientist is employed by the National Science 
Foundation as a special Government employee to serve on a panel that 
reviews grant applications to fund research relating to deterioration of 
the ozone layer. She is discussing possible employment as a member of 
the faculty of a university that several years earlier received an NSF 
grant to study the effect of fluorocarbons, but has no grant application 
pending. As long as the university does not submit a new application for 
the panel's review, the employee would not have to take any action to 
effect disqualification.

    (d) Agency determination of substantial conflict. Where the agency 
determines that the employee's action in seeking employment with a 
particular person will require his disqualification from matters so 
central or critical to the performance of his official duties that the 
employee's ability to perform the duties of his position would be 
materially impaired, the agency may allow the employee to take annual 
leave or leave without pay while seeking employment, or may take other 
appropriate administrative action.

[57 FR 35042, Aug. 7, 1992, as amended at 64 FR 13064, Mar. 17, 1999]