CONFLICTS OF INTEREST & SEEKING EMPLOYMENT: WHAT TO CONSIDER AND HOW TO REJECT UNSOLICITED OFFERS TO ENGAGE IN EMPLOYMENT DISCUSSIONS
Federal Employees should remain on alert to potential conflicts of interest between their official duties and their personal financial interests, such as the financial interest that an employee might have in non-federal employment. Employment activities are covered by criminal statutes, including specific statutes applicable to government employees involved in the federal procurement process. Such activities are also governed by regulatory restrictions. This paper briefly describes the circumstances that a federal employee should be aware of if they are approached by a contractor or other non-federal person or entity about the possibility of employment with a company outside the Government.
If you are exploring your options in the non-Federal sector while you are still a Government employee, be aware that 18 U.S.C. 208, a criminal statute, prohibits you from participating in any particular matter that will have a direct and predictable effect on the financial interest of any entity with which you are negotiating for employment or have any arrangement concerning prospective employment. There are two types of particular matters that create a potential conflict: (1) official activities that affect an organization as part of a group (e.g., legislation and rulemaking focused on a discrete and identifiable class of persons); and (2) activities that affect an organization specifically and uniquely (e.g., in a government contract, cooperative agreement, grant or a claim). For example, an employee negotiating for employment with a hot water heater manufacturer would be prohibited from personally and substantially participating in the drafting of a regulation relating to the energy efficiency of hot water heaters. They would also be prohibited from taking action related to a research grant given to the manufacturer to develop more energy efficient heaters.
The potential for conflict begins when you are determined to be seeking employment, which includes the following activities: when you send your resume (directly or indirectly) to a firm; when you and a firm are engaged in bilateral communications looking toward an agreement concerning future employment (regardless of whether you have reached any final negotiated agreement); or when you know that an employment agent is communicating on your behalf with a particular firm. In addition, if you are involved in the federal procurement process, be aware that a criminal statute called the Procurement Integrity Act, 41 U.S.C. 2104, imposes particular obligations on you if you are participating personally and substantially in an acquisition and are approached by a bidder offering to discuss outside employment opportunities. If these circumstances arise, you must promptly report the contact to your supervisor and the agency ethics official, and either reject the possibility of employment or recuse yourself from further work on the acquisition.
You must take action immediately if you intend to contact prospective employers, or if you are contacted by a prospective employer. Regulations require that you submit a written recusal to your supervisor and ethics counselor if you are assigned to a particular matter affecting the financial interest of the entity with whom you seek to be or are engaged in employment negotiations. Many employees find it more convenient to execute the written recusal as soon as they enter into employment discussions with a particular entity. This earlier recusal decreases the likelihood that the employee will be assigned a matter that could raise an allegation that the employee acted improperly.
If you do not wish to recuse yourself or you are not interested in pursuing an employment inquiry, you must terminate the discussions. There are two scenarios that terminate the offer to pursue employment. First, negotiations terminate when either you or the prospective employer rejects the possibility of employment and all discussions of possible employment have terminated. A response that defers discussions until a future time, certain or uncertain, does not constitute termination of employment discussions or the rejection of prospective employment. Second, negotiations terminate when two months have passed after you have sent an unsolicited resume or employment proposal to a particular firm and you have not received a response or other indication of interest in employment discussions.
DOE federal government workers frequently interact with contractor companies and contractor employees in the course of their day-to-day work. Because close working relationships develop from such contacts, contractor employees are often in a good position to identify and evaluate the skills of DOE employees. Sometimes these contractor employees make offhand remarks that indicate that they would like a particular DOE employee to join the company they work for, or that they would like to get a resume from the DOE employee so that they could forward it to a hiring manager in their company. Sometimes they even directly offer a DOE employee a job. While it may be flattering to receive such offers, DOE employees must keep in mind that responding affirmatively to these invitations constitutes “seeking employment” under the applicable ethical rules as noted above. In many of these situations, you are best served by immediately and unequivocally rejecting such an invitation. Here are four approved ways that you may respond to reject someone who has expressed an interest in hiring you or in discussing possible employment opportunities with you (use of any one variation from these examples is acceptable):
- I’m very happy with my job here at DOE and I’m not interested in another job. Thank you for your interest in having me work for you—I’ll remember it if I decide to leave federal service.
- All my time and attention right now are devoted to my Government job, and I am not in a position to discuss employment.
- I am not really planning on leaving Government in the near future but I will keep you in mind in case I ever change my mind.
- The ethics rules do not permit me to discuss possible employment with you while I am working on a matter involving your company, so I am afraid my answer has to be no.
FOR FURTHER ADVICE REGARDING “SEEKING EMPLOYMENT” CONTACT THE OFFICE OF THE ASSISTANT GENERAL COUNSEL FOR ETHICS AND PERSONNEL LAW AT [email protected].