You are looking for a job outside government, but you don’t want your current managers to know. Or you are about to retire and the company you have been working with on special projects might have a retirement job opportunity for you. Are there ethical concerns?
If your job prospect has nothing to do with your federal job and no one could say that your financial interests — e.g. receiving a future salary from a company that does business at your agency — would be affected by your performance of your government job, you are free to look for a job and not tell anyone about it.
If your job search concerns a person or entity that is part of your official duties, you can seek and accept a job, but you must disqualify yourself from that part of your job that concerns a prospective employer once your job search has started.
The rules on prospective employment are important because violating them can lead to criminal prosecution. Make sure you know the rules and, when in doubt, contact the free services offered by your agency’s designated ethics official. They will tell you how you can disqualify yourself from performing services for a prospective employer.
The first question is: When are you considered to be seeking employment? What if you just casually mention to a colleague from the contractor on the project you are overseeing that you would like to one day apply for a job with the contractor?
The Office of Government Ethics (OGE) has specific rules regarding negotiation of any kind for a position; the federal employee’s unsolicited communication about employment; and a response to an unsolicited offer of an employment possibility that is not a rejection.
An employee is permitted to make an unsolicited communication with a prospective employer solely to obtain an application or as part of an effort to send résumés to a class of potential employers. But be careful: If a résumé is sent to the contractor on your project and 15 other companies, as soon as your contractor responds with interest, you must disclose the job search and seek disqualification or a waiver concerning your performance of duties on behalf of that contractor.
According to OGE, the job search ends when the potential employer rejects that job possibility and all discussions about a job have stopped. Also, if two months pass after a résumé or job proposal is submitted without any indication of interest, the employee may consider the job search over. Attempts to bypass these requirements by delaying discussion of employment opportunities to a future date are not considered an end to the job search. So long as a job is a possibility, the employee must be disqualified or seek a waiver.
These rules are significant to the federal employee who works on a case or project with only a single possible outside employer. Disqualification means the employee might not be able to do his job, but failure to disqualify could result in a criminal prosecution.
The best advice is to seek assistance from the ethics official with a complete disclosure. This will likely prevent a criminal investigation or disciplinary action, but the ethics official has authority to extend a period of disqualification for appearance purposes even if a job possibility has ended.
Procurement professionals who participate in procurement decisions have a one-year ban on accepting compensation from a contractor who is awarded a contract over $10 million. The definition of procurement professional goes beyond a contracting officer and includes those who make procurement decisions or participate in technical evaluation teams or source selections authorities. It also can include a program manager. If in doubt, contact the ethics official.
If you are a procurement official and you are contacted for a job with a contractor or potential contractor during a procurement, you have an obligation to report the contact and to either reject the possibility of employment or disqualify yourself from further participation in the procurement.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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