Seeking Non-Federal Employment
18 U.S.C. § 208 and 5 C.F.R. §§ 2635.601-607
While Federal ethics law does not prohibit executive branch employees from seeking non-federal employment, the “seeking employment” rules are broader, and apply earlier, than most employees realize. For that reason, if you begin any communications aimed at future employment with a person or entity that can be impacted by the work you do (even if the initial communication from the potential employer is unsolicited), it is important to reach out to your USDA ethics advisor for guidance on the need to recuse yourself from particular matters affecting your prospective employer’s interests. See below for additional details.
Conflicts of interest when seeking employment
The basic criminal conflict of interest statute, 18 USC 208, prohibits you, as an executive branch employee, from participating personally and substantially (through decision, approval, disapproval, recommendation, rendering advice, investigation, etc.) in a particular Government matter that will affect your own financial interests, as well as the financial interests of:
- your spouse or minor child;
- your general partner;
- An organization in which you serve as an officer, director, trustee, general partner or employee; or
- A person or entity with whom you are negotiating for or have an arrangement concerning prospective employment.
Negotiations under 18 USC 208, are communications between an employee and a potential employer mutually conducted with a view toward reaching an employment arrangement, which is more expansive than most people think when they hear the word “negotiating.”
Short of negotiating for employment, an employee is considered to be "seeking employment" with a potential employer when contact between an employee and a person about possible employment occurs, regardless of who initiates that contact.
Employees have an obligation to recuse from ANY particular matter affecting their prospective employer
An employee who is seeking employment with a nonfederal person or entity must immediately recuse, or disqualify, themselves from participating in any official USDA matter that could affect that prospective employer’s interest. An employee is no longer seeking employment when either he or the prospective employer rejects the possibility of employment and all discussions regarding possible employment have ceased.
Further, a response to a prospective employer that merely defers discussions until the foreseeable future (e.g. after separation or retirement) does not terminate employment discussions and does not qualify as a recusal. For example, if an employee were to respond to an unsolicited communication from a prospective employer by saying, “Let me call you after I finish this project to continue our discussion,” the employee would still be considered to be seeking employment with that prospective employer and, as a result, would still be required to recuse himself from any particular matter affecting the prospective employer’s interests.
The USDA Office of Ethics can assist you with drafting a recusal agreement and ensuring that you comply with the seeking employment rules.
Procurement rules when seeking employment
Under procurement law, an employee who personally and substantially participates in an agency procurement over $100,000 must report in writing to the employee's supervisor and designated agency ethics official any contacts with or by a bidder or offer regarding possible non-Federal employment. See 41 USC 2103. The employee making the report must either reject the possibility of non-Federal employment or recuse themselves from further personal and substantial participation in the procurement until the agency authorizes the official to resume participation.
OGE 278 Public Financial Disclosure Filers STOCK Act Disclosure Requirement
The Stop Trading on Congressional Knowledge Act of 2012 requires Public Financial Disclosure report (OGE Form 278e) filers to file a statement notifying their agency ethics official of any negotiation for, or agreement of, future employment or compensation with a non-Federal entity within three business days after commencement of the negotiation or agreement. (However, remember your recusal from participating in official matters affecting the non-Federal entity must be immediate.) To learn more, you may visit the following link: The required Notification to the Agency Ethics Office about Post-Employment Negotiation.
