Post-Government Employment

Recusal While "Seeking Employment"

A criminal conflict of interest statute, 18 U.S.C. § 208, prohibits an employee from participating personally and substantially, in an official capacity, in any "particular matter" that, to the employee's knowledge, would have a direct and predictable effect on the employee's financial interests or on the financial interests of a person or organization with whom the employee is negotiating or has an arrangement concerning prospective employment.  A related executive branch-wide regulation, Subpart F of 5 C.F.R. part 2635, prohibits an employee from working on a particular matter if the employee is "seeking employment" with a person or organization affected by that matter, even though the employee's job search has not progressed to actual negotiations. An employee who complies with the recusal requirements in Subpart F will ensure compliance with the conflict of interest statute.

An employee is "seeking employment" as defined in Subpart F, and the recusal requirement applies, if:

• the employee is engaged in actual negotiations for employment;
• a prospective employer has contacted the employee about possible employment and the employee makes a response other than rejection; or
• the employee has contacted a prospective employer about possible employment, unless the sole purpose of the contact is to request a job application. (An employee is seeking employment with any person to whom he sends an unsolicited resume, regardless of how many resumes the employee sends to other employers at the same time.)

If a search firm, an online resume distribution service, or other intermediary is involved, recusal is not triggered unless the intermediary identifies the prospective employer to the employee.

If the recusal requirement applies, it extends to any particular matter (virtually any Government matter) that would have a direct and predictable effect on the financial interests of the prospective employer. However, an employee may work on particular matters of general applicability that affect the prospective employer if the employee's only communication with the prospective employer is the submission of an unsolicited resume and the prospective employer has not responded to indicate an interest in employment discussions. Here, work on this category of particular matters is permissible until the employee receives an expression of interest from the employer.

An employee is no longer seeking employment if:

• Two months have elapsed since the employee's dispatch of an unsolicited resume and the employee has received no expression of interest from the prospective employer; or
• Either the employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have ended.  A response that merely defers discussion until the foreseeable future does not constitute rejection.

Example: Ted has met with representatives of several companies while working on a rulemaking that will affect the financial interests of those companies. One of the representatives asks Ted if he would be interested in discussing a job opening. If Ted responds that he "would like to discuss the opening, but not until the rulemaking is final," he has not rejected the possibility of employment. 2

Notification and Documentation of Recusal

When an employee becomes aware of the need to be recused from a particular matter, the employee should notify the person responsible for his or her assignments, and may choose to document the recusal in writing. Notification permits a supervisor to minimize any disruption of the agency's mission by arranging assignments accordingly.

Restrictions pursuant to 18 U.S.C. § 207

A former employee is generally prohibited from having contact with an employee of any Federal agency or court, on behalf of another person or entity, concerning an official matter involving a specific party with which the former employee was involved as a Government employee. 18 U.S.C. § 207(a).

Lifetime Restriction 18 U.S.C. § 207(a)(1)

If you participated personally and substantially in any particular matter (grants, contracts, licenses, permits, applications, litigation, etc.), involving specific parties, you may never communicate with the intent to influence on behalf of any non-Federal entity, to any Federal department, agency, or court regarding that same particular matter.

Two-Year Restriction 18 U.S.C. § 207(a)(2)

For matters under your official responsibility during your last year of Government service, you are restricted for two years after you leave Government service from representing any non-Federal entity to any Federal department, agency, or court regarding those matters.

Ethics guidance from the Departmental Ethics Office in the Department of Interior: https://www.doi.gov/ethics/restrictions-on-post-government-employment