Career Transitions, Conflicts of Interest
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By L. James D’Agostino and David Hickey
Employees by the thousands transition from military and civilian government service to the private sector. These employees and the companies recruiting and employing them must know the ethical rules applying to the different phases of this transition.
Rules governing conduct starting with negotiations while a federal employee and running through terminal leave to actual private sector employment must be understood both by the acquiring company and the employee. Those rules derive from the federal criminal conflict of interest statutes, the Ethics in Government Act, the Procurement Integrity Act, and implementing regulations including the FAR.
Recent violations of “revolving door” rules have prompted government investigations and prosecutions and Congress is focusing new ethics legislation this year on this subject. The restrictions seek to subordinate private industry interests to the public interest and prevent actual or perceived improper influence in executive branch decisions by recruiting or hiring key government employees.
The rules governing conduct when negotiating for employment in anticipation of leaving federal service, when on terminal leave, and once employed in the private sector have remained steady, but their application to specific situations raises some interesting points. The Defense Department’s standards of conduct office recently issued advisories highlighting some of these points. Employees on terminal leave understandably are eager to begin their new careers, and can, provided they do not represent their new employer anywhere in the federal government (this restrictions does not apply to enlisted military). This criminal statute targets “representational” activities or “acting as agent or attorney” before any government agency in any particular matter in which the United States is a party or has an interest.
For personnel slated to work on-site in government offices, these provisions raise serious challenges. The Defense Department’s bottom line is that it is virtually “impossible” for those on terminal leave to physically work for a contractor in the federal workplace. These employees must work elsewhere, advance their retirement date and relinquish their leave or not commence employment until official separation.
Rules for negotiating for employment while still on the U.S. payroll also are important. Some are commonsense. For instance, procurement officials may not negotiate employment with a bidder during an ongoing procurement under that official’s responsibility. Officials contacted by a bidder regarding employment during the conduct of a procurement must report the contact to their chain of command and ethics office in writing, and reject the offer or submit a written disqualification.
Subtle issues include rule “triggers,” including the definition of “negotiations,” which does not include a request for a job application, but does cover the submission of a resume followed by an interest in further discussions by a prospective employer. While negotiations are not forbidden, disclosure and possible recusal may be required. Employees are disqualified from taking any official action that affects their prospective employers. As a result of these rules, employees may have to inform their chain of command and ethics office, establish an “ethical wall” between official duties and issues affecting a prospective employer, and submit a disqualification letter.
Once terminal leave ends, negotiations are over and a job secured, post-employment restrictions come into play, including: the one year ban or “agency cooling-off period” for senior employees, the two-year ban for matters pending under one’s official responsibility, and the lifetime ban from participating in any matter previously worked on as a government employee. Properly applying each restriction requires an examination of an individual’s duties as a government employee, duties and activities in the civilian/private sector, and relevant time restrictions and statutory definitions.
The one-year ban bars former senior government officials, including flag and general officers, from knowingly making any representational contacts (as agent or attorney) before their former agency with intent to influence any official action. This one-year ban starts when the employee ceases to be a senior employee, which may or may not coincide with termination of government service. Similarly, procurement officials may not accept compensation from a contractor within a year after serving in specified procurement positions.
The two-year ban bars government officers and employees from representing a private entity, with the intent to influence, on any particular government matter involving a specific party (such as a contract, grant, or lawsuit) if that matter was pending under their responsibility during their last year of service. The key here is whether the matter was under an individual’s management authority in the last year of service, measured from the date when the employee’s responsibility in a particular area ends, not from the separation date.
The lifetime ban bars all government employees from making contacts to influence any federal agency or court, if that employee worked on the same matter and handled that matter personally and substantially while a government official. This is the literal “switching sides” situation where someone was involved in a matter and then attempts to represent another in the same matter after separation.
The fact that criminal penalties govern this conduct underscores its importance. Recent indictments for aiding and abetting violations of these laws show that contractors are not immune from oversight responsibility and liability. Compliance in this area requires a clear written policy, training and communications plan, reporting structure, and human resource process management and oversight.
Jim D’Agostino and David Hickey are attorneys at the international law firm of Greenberg Traurig. The opinions expressed here are solely those of the authors and are not intended to provide legal advice or represent the view of NDIA or the NDIA Ethics Committee.