New Rule Dictates How Feds Can Ethically Apply for Jobs Outside Government

Federal employees seeking a new job as the Obama administration comes to an end should take caution to recuse themselves from any government business involving the potential employer, according to new regulations issued by the Office of Government Ethics on Tuesday.

One in four federal employees would consider leaving the federal service if Donald Trump is elected president, according to a recent poll, but those workers could wind up in prison if they mix the responsibilities of their current positions with their future jobs. In a rule finalizing a proposal put forward in February, OGE said feds must avoid “personally and substantially” involving themselves in agency decision-making that could have a “predictable and direct effect on the financial interests” of a person or company with whom the employee is in communication about potential employment. Violating those rules could wind up sending an employee to prison for up to five years and subject them to fines.

In the final rule, OGE offered several examples to clarify when and how employees must recuse themselves from government business while seeking new employment.

• If an Education Department employee is in communication with the University of Maryland about a job opening, the employee is in the clear even if the university has previously applied for grants in the employee’s work area. If the university applies for a new grant, however, the employee must “take whatever steps necessary” to remove himself from the grant decision process.
• If a Food and Drug Administration employee is in communication about a job with a pharmaceutical company, then that employee cannot work on a regulation that would affect drug research because it would have “general applicability” to the potential employer.
• If the FDA employee had applied for a job at the pharmaceutical company but never heard back, then he could work on the regulation.
• If an Occupational Safety and Health Administration employee was tasked with inspecting a textile plant at a company to which she had applied, she must recuse herself -- even if she had never heard back. The specific inspection creates a stricter set of rules than the “general applicability” scenario.
• A Securities and Exchange Commission employee previously sought a job with a law firm, but was rejected. The SEC is now investigating a broker, which has hired the same law firm to represent it. The employee may recuse himself because “a reasonable person may question the integrity of the agency’s decision-making process” if the employee continues involvement.

Generally, employees are considered to be “seeking employment” if they proactively communicate with a company about a job opening in any manner other than simply asking for an application. Any negotiation with a company, or response to an unsolicited communication from an interested employer other than a flat-out rejection, is considered to be seeking employment. A general discussion between employee and employer about an opening and a potential fit opens the employee to potential recusal, as does responding to an inquiry by deferring until after a set amount of time (e.g. after the completion of a specific project). Simply posting a resume online on a site like LinkedIn does not qualify a fed as seeking employment.

OGE no longer considers employees to be seeking employment if the federal worker or potential employer rejects an offer or application, or if two months have passed without communication. Employees can be subject to recusal rules even if they are unpaid, such as if they join a company’s board of directors.

When employees recuse themselves from official work, they must disclose it to a supervisor unless they have the authority to defer work to others. In that case, employees can simply notify their colleagues who will take on the work.

In some cases, employees can seek written waivers to continue working on issues from which they must otherwise recuse themselves. Private sector employees given a two-year unpaid sabbatical to work in government on a fixed term, for example, may request such a waiver. OGE advised employees to consult with their agencies’ ethics officers if they are uncertain of their required actions.

The new rule also applies to a 2012 law requiring federal employees who have to file a financial disclosure report and are negotiating future employment or already have an agreement in place. That provision of the Stop Trading on Congressional Knowledge Act requires such employees to notify ethics officers of their negotiations or agreements within three days.