Commissioned Corp Personnel: Post Employment Restrictions

Definitions:

Employment:
Includes all Federal or non-Federal employment, contracting arrangements involving professional or personal services (e.g., consulting), or board memberships (compensated and noncompensated). International organizations, tribal organizations, professional or trade associations, universities, non-profit corporations, and for-profit companies are examples of non-Federal employers covered by these rules.  Retiring Commissioned Officers may work for the Federal Government following retirement without reduced compensation.
 
Seeking Employment:
This includes an unsolicited communication by an employee regarding possible employment. Seeking employment includes sending a "targeted" resume to a particular person with whom you are in regular contact in the course of your official duties. It does NOT include submitting an unsolicited resume to a person affected only as a member of a class of similarly situated persons. For example, if an FDA employee were working on new regulations that would affect all medical oxygen distributors, the employee could send an unsolicited resume to any given distributor(s). On the other hand, if the employee were working on a compliance matter, such as an inspection or a seizure, that uniquely and distinctly affected the distributor, the exception would not apply. You are no longer "seeking employment" if you receive (or make) a rejection, or if two months have passed since you sent an unsolicited resume without a response. If you defer discussion of an offer, this is still considered "seeking employment."

Questions:

1) Are there differences in the rules/restrictions between GS and CO employees?
One of the main differences between COs and GS/SES/SBRS/SSS employees is that COs are subject to the standards of conduct whether they are retired, inactive, or on active duty whereas the other employees are restricted after retirement only for periods of time specific to certain activities. This is because COs continue to hold commissions as retirees and inactive reserve officers so, if they want to retain their commissions, they are bound by the standards of conduct long after the restrictions specific to the other employees have lapsed.
 
2) What is specifically prohibited, e.g. who can’t an officer talk to or interact with about post-retirement employment? What are the criteria?
You are permanently restricted from making a communication or appearance on behalf of someone else (any third party) to the Government with the intent to influence the Government on a particular matter involving specific parties in which you were personally and substantially involved when you worked for the Government. This is the main post-employment restriction (18 U.S.C. 207) and it applies to all employees.

What does it mean? It's generally known as the "lifetime bar" or the "prohibition against switching sides."

What can you not do after you leave Federal service? You can never represent a third party to the Government, call, write letters, or even attend meetings about work you did as a government employee (such as on a contract, grant, approval, or other decision) with the intent to influence the Government in some way. Nor can you, for two years after leaving Federal employment, represent anyone else back to the Government about work that your subordinates did during the last year that you were a Federal employee with the intent to influence the Government.

What can you do?
1) Since the bar only applies to work that you did or supervised as a Federal employee, you can represent others, call, write letters, etc. about anything else on which you neither worked nor supervised others; or
2) If you want to work on something that you worked on as a government employee, you and the Government employees you work around will have to be very careful to ensure that you are not put in a position where it even appears that you are trying to influence a Government official or decision. You can provide factual, scientific or technical information to the Government since those types of things are not usually made with the intent to influence.  Any other type of communication to the Government would have to come from your new employer, not you. As far as what you can tell or do for your new employer, you can advise them about anything you want and work "behind the scenes" on any project they give you that's related to work you did as a Government employee. They, in turn, then can make recommendations about that same project to the Government based on information you gave them.
 
3) Are there restrictions on working with a current NIH contractor who does the same type of thing that a CO employee is skilled in? Are there time restrictions on doing this after retirement?
Once a Commissioned Office retires, he/she may accept employment with any entity.  There are some restrictions under the Procurement Integrity Act which prohibit any employee from accepting compensation from the new employer if the employee worked on a contract with that new employee and the contract was valued over $10 million.  If you are involved in such a contract, talk with your Deputy Ethics Counselor or Ethics Coordinator before proceeding with employment negotiations.

A retiring Commissioned Officer may accept Federal employment following retirement without losing retirement benefits.  The old dual compensation offset has been removed.  In addition, the retiring CO may accept Federal employment during terminal leave, which is requested via the HHS 520, Request for Approval of Outside Activity.  See the document entitled "Commissioned Officers and Ethics" for additional information on working for the Federal Government during terminal leave.

It’s important to remember that post-employment restrictions don’t prohibit a Federal employee from working for any non-Federal employer after leaving the Government. The only restriction is on what the former Federal employee can DO for that employer.

4) What does an officer’s status as a project officer have to do with the process or restrictions?
Project Officers are in a decision-making capacity on any project they oversee. Because of that, they have a direct influence on the outside organization’s financial interests through, for example, evaluations of the contractor’s performance and product delivery. They also influence the contract itself from a Government perspective. Any connection between a contractor and a Project Officer must be evaluated for a conflict of interest.
 
5) What approvals are necessary or advisable?
The only specific approvals include the following:

Foreign Employment. Officers who are on Terminal Leave, have retired from the Public Health Service, or are on inactive reserve must seek prior approval through the HHS Division of Commissioned Personal (DCP) for foreign employment. Officers may work for a foreign government while on Terminal Leave, if they have consulted with DCP and received prior approval which includes official approval from HHS and the State Department. Officers should seek DCP's or their Agency's Ethics Coordinator's advice when seeking employment with private companies doing business in foreign countries.

Professional/Personal Services Contracts (PSCs). It is recommended that retired officers submit PSCs to DCP for review before starting the activity.

For more information, contact your IC's Deputy Ethics Counselor or Ethics Coordinator.

Updated: 2/19/13