How to Recruit Government Workers
They also can play a key role in resolving the pressure on both agencies and their contractors to realize greater efficiencies and reduce costs of work performed by contractors. There are a panoply of rules, however, that regulate the hiring of current and former government personnel.
Conflict of interest laws and regulations require a government employee to disclose contacts with potential employers to her supervisor and recuse herself from any agency matters involving the potential employer. These rules restrict and often require the disclosure of any gifts including travel and meals paid for by the prospective employer as part of the interviewing process.
Also, ex-government employees may not “represent” or accept compensation from contractors for one year after being involved, on the government side, in procurement or other actions that affect the contractor.
There are also restrictions on government employees’ use and disclosure of nonpublic, government-sensitive information. A host of statutes and regulations prohibit or restrict the release of nonpublic information and impose criminal and administrative liability on unauthorized disclosures of such information acquired during government service.
Violating the law may result in criminal and civil liability for both the former government employee and for the contractor, as well as administrative penalties, including suspension and debarment, and adverse contractual actions such as termination for default, or a finding of ineligibility for future work.
Recruiting current and former government personnel, if undertaken consistent with the rules, however, can be rewarding for both the employee and the contractor. The following is not a comprehensive listing of all of the applicable laws and regulations, but provides a starting point for ensuring a successful and compliant recruiting and retention program, listing some essential “do’s” and “don’ts.”
First on the “do” list is performing a reasonable level of diligence on candidates who now, or previously, worked with the government. Confirm whether they “personally and substantially” worked in any “particular matter” that may be subject to the lifetime ban on activities on behalf of the contractor.
For personnel who held supervisory positions, check whether any particular matters were pending under their supervision that may be subject to the two-year ban on representational activities. Senior officials — including general officers and members of the senior executive service — will also be subject to a one-year “cooling off” period during which they generally cannot contact their former agency on behalf of any third party.
Employers should ask whether the government employee was involved in any significant procurement action, such as an award or modification of a contract or order, or approving payments or claims, with a value exceeding $10 million, which would trigger a one-year ban on accepting any compensation from the affected contractor. Note that these prohibitions do not restrict former government employees from performing “behind-the-scenes” work for a new employer, such as providing strategic advice and analyzing pending proposals that do not involve contact with their former agency.
Do document all key aspects of recruiting contacts with government employees. Customary recruiting expenses, such as travel and meals, are excepted from the bar on gifts to government employees, but the worker may be required to disclose these gifts on annual disclosure forms.
Requirements that a government employee disclose and recuse from any matter involving a potential employer generally do not apply once employment discussions have clearly ended unsuccessfully. Thus, the date and circumstances under which discussions ended should be clearly documented.
And do ask any current government employee candidate to confirm in writing compliance with any requirements concerning disclosure of employment discussions and recusal from any matters involving the contractor.
Prospective employers must require the government employee to obtain written ethics opinion from their designated agency ethics official confirming the absence of any bar from working on key projects for the new employer. Review the ethics opinion carefully to ensure that the government employee disclosed all relevant background information concerning the new position, and that it clearly permits the contemplated work.
For any former government employee who assists in bid and proposal development efforts, consider disclosing his or her role to the contracting officer at an early stage so that any concerns he may have can be resolved.
Finally, erect needed firewalls around a former government employee to show compliance with applicable restrictions.
There are a number of “don’ts” for recruiting and retaining government employees as well.
For example, never expose an ex-government employee subject to any of the foregoing restrictions to marketing or to interfacing directly with a former agency. Be mindful that even sending a former government employee to an otherwise public meeting such as a pre-proposal conference may set the stage for prohibited representational activity, such as discussions with a former government boss or co-workers.
Also, never solicit any information from a government employee without first confirming that such data is available without any restrictions on its further release.
And never forget that government employees on final or “terminal” leave are still government employees, and that additional approvals from their agency may be needed in order for them to work for contractors or other nongovernmental organizations until actual termination.
Terry Elling is a partner in Holland & Knight LLP’s government contracts practice. He thanks his colleagues Ron Perlman and Robert Tompkins for their input on this article.