In the sometimes mysterious and illogical world of government employee ethics, one rule that has limited but serious implications is the rule that prohibits certain senior personnel from contacting their former agencies for one year after leaving federal service if that contact is made with the intent to influence. The penalty for violating the rule is criminal prosecution.
In determining whether a problem might exist, think about the intent to influence in the terms of it being permissible to meet an old friend from the old office for lunch, so long as there is no discussion about your new private-sector employer’s business plans with your old agency until you have been gone for one year. Also, do not telephone or email anyone in your old office if the subject goes beyond arranging lunch.
Also, remember that the services of your former agency’s designated ethics official are available if you think an anticipated contact may fall in a grey area. It is better to be safe than sorry.
The categories of employees covered by the rule are: Executive Schedule appointees; senior executives and other employees whose base pay is more than $155,440 (this year); those who work directly for the president and vice president; military officers at the rank of O-7 and above; and private-sector employees who serve in federal positions under the Information Technology Exchange Program.
For civilian employees, the rule is that everyone whose base pay is 86.5 percent of Executive Schedule II, the deputy secretary level, is covered. For this year and the two prior years, the pay for these positions is $179,700. That means those earning $155,440 — 86.5 percent of $179,700 — are covered.
Most senior executives and many senior-level, scientific and professional employees — plus higher-paid employees in exempt agencies, such as the Securities and Exchange Commission and the banking agencies — are probably at the $155,440 base pay level. No GS employees are at that level because the maximum GS base pay is $145,700. Locality pay does not count in determining whether an employee is covered by the one-year, no-contact rule.
The law specifically prohibits any knowingly made communication or appearance at the former agency if that communication or appearance is made with the intent to influence and the communication or appearance is made on behalf of any other person — including corporations, but excluding the federal government — if you are seeking official action by any officer or employee of the former employer.
This means that most senior executives or highly compensated specialists who have a second career at a government contractor that does business with their former agency cannot appear before that agency or communicate with that agency about the new employer’s business.
The safe course is to have no conversation or communication, especially emails, for one year after leaving government service. It does not violate the rule to work behind the scenes for a new employer so long as there is no contact. (Note: There are other ethics rules concerning treaty and trade negotiations where even behind-the-scenes work is prohibited. If in doubt, contact your former agency’s ethics officer.)
The Office of Government Ethics has issued complicated rules about how broad the definition of “former employee” is, and allowances have been made for agencies that may have at least somewhat unrelated components.
For example, can a former Air Force general contact the Navy about a contract? The answer, most likely, is yes. Check with your agency ethics officer, even if you are a former employee or are retired from military service, and get a written answer on what agency limits of the one-year, no-contact rule pertain to you. This is particularly true within the Defense Department.
The ban applies to any agency where the employee worked for the year preceding the end of federal employment.
Given the gray areas, it is best to review the rules before making the transition from federal service to the private sector and to seek guidance after accepting the new position and before reaching out to your former agency.
