Seeking Post-Government Employment: Three Rules to Remember

  • Published
  • By Capt. Michael L. Blauvelt
  • Edwards Staff Judge Advocate
Some members of the Edwards community may begin contemplating ways to turn their training and expertise into a new position with a private employer. However, the process of seeking post-government employment can be a minefield of Inspector General and criminal violations and investigations for the unwary. While there are many rules, three of the more important (and generally applicable to Edwards employees) rules are presented here.

Rule #1: Any discussion, however tentative, is negotiating for employment. You cannot negotiate for employment with a company before either disqualifying yourself (with your supervisor's permission) from any contact or actions affecting that company, or getting a waiver, which is rarely granted.

So what does that mean? If your job involves contact with, or actions affecting a company, you cannot engage in any discussions (no matter how "informal") with them until your supervisor gives you permission to disqualify yourself. You cannot send the company an e-mail asking about future openings, you cannot send your resume to the company, you cannot go for lunch/dinner/drinks to discuss future employment prospects. In short, any unsolicited communication by you to a person, company or agent about potential employment is negotiating for employment.

Edwards personnel are rightly in high demand in the private sector and sometimes receive unsolicited communications from a person, company or agent about potential employment. Any response to such a communication except a rejection constitutes seeking employment. There are no "magic words" for rejecting those communications, but the Office of Government Ethics suggests: "All my time and attention right now are devoted to my Government job, and I am not in a position to discuss employment." Or "I am not really planning on leaving the Government in the near future but I will keep you in mind in case I ever change my mind." Or "The ethics rules do not permit me to discuss possible employment with you while I am working on your contract/grant/case/etc., so I am afraid my answer has to be 'no.'"

Engaging in a negotiation for employment with a company that your government job requires you to contact, or that you affect with your actions before you get a waiver, then that is a violation of 18 U.S.C. § 208 and 5 C.F.R. § 2640.103. And while in the old days some employees were given retroactive waivers, the Office of Government Ethics recently advised ethics counselors that if they learn "an employee may have acted without obtaining a necessary waiver . . . the matter must be referred to the appropriate office (e.g., the agency's Office of Inspector General)" to determine whether an actual violation occurred.

Rule #2: If you are currently an officer or civilian employee, you may be subject to a lifetime or two-year prohibition against communicating or appearing before any agency of the Government. 18 U.S.C. § 207 imposes a lifetime ban on any officer or civilian employee who participated personally and substantially in a particular matter from representing anyone other than the Government in any communications or appearances about that matter before any agency of the Government, with the intent to influence.

In other words, you may not switch sides and work one month on a specific contract on behalf of the Government and then, after leaving the Government, communicate to the Government about that same contract on behalf of the contractor. You could work behind the scenes for the contractor, but for the lifetime of the specific matter, you could not represent anyone besides the Government regarding it. If you don't personally and substantially participate in a particular matter, but you have it under your direct responsibility, then you are subject to a similar ban, but only for two years.

Violate Section 207 and you can be imprisoned for up to five years and subject to a civil fine designed to confiscate whatever you earned from your violation.

Rule #3: If in doubt, ask a JAG. Our office has handouts describing the various regulations restricting your search for post-government employment and can provide you with an advisory opinion (commonly called a "30-Day Letter"). And if you believe your office or group would benefit from training on these issues, we would be more than happy to provide it for you.

This article summarizes some of the relevant ethics rules affecting post-government employment. It is not an exhaustive treatment of the legal issues that can arise. It is not intended to be and is not a substitute for specific legal advice regarding your individual circumstances.