USDA Ethics

A Walk Through Post-Employment

I. Seeking Employment
        A. Searching for Employment While Still a Federal Employee?
        B. Terminating the Employment Search
II. Post-Employment Restrictions
        A. General Prohibitions on Representation
        B. Trade or Treaty Information
        C. "Senior" and "Very Senior*" Employee Bars
        D. Foreign Entities
        E. Federal Procurement Prohibitions

I. SEEKING EMPLOYMENT

A. Searching for Employment While Still a Federal Employee?

If you are seeking non-Federal employment, you MAY NOT participate personally and substantially in any official matter involving the financial interests of your prospective employer. 18 U.S.C. 208.

1. Are you considering or actively pursuing, or have you actively pursued opportunities for, post-Federal employment within the past 6 months, with a person* whose financial interests may be affected by the performance of your Federal duties?

    YES.   Go to the next question.
    NO.   Go to "II. POST-EMPLOYMENT RESTRICTIONS."

* "Person" includes individuals and entities, such as corporations, partnerships, etc.

2. During the past 6 months, did you directly (yourself) or indirectly (through an employment search firm, or other agent hired by you):

    a.     engage in discussion or communication (i.e., NEGOTIATIONS*) with another person aimed at reaching agreement regarding conditions for possible non-Federal employment;
    b.     make/send an unsolicited communication (e.g., phone call or resume) to any person regarding possible employment with that person**; or
    c.     receive an unsolicited communication from any person (including an employment search firm or other agent that has identified its client to you) regarding possible employment with that person?
    YES, I engaged in discussions [a]. Go to Question 1 under Part I.B. "Terminating the Employment Search."
    YES, I made and unsolicited communication [b]. Go to Question 3, below.
    YES, I received an unsolicited communication [c]. Go to Question 1 under Part I.B., "Terminating the Employment Search."
    NO. Go to "II. POST-EMPLOYMENT RESTRICTIONS."

*  "Negotiations" include discussions concerning possible positions, as well as of any terms and conditions of employment (not just compensation).
** If through employment search firm, or other agent, hired by you, such communication would be considered as “seeking employment” only if you knew of the identity of the recipient when the communication was made.

3. Was this unsolicited communication aimed solely to request a job application?

    YES.   Go to “II. POST-EMPLOYMENT RESTRICTIONS.”
    NO.   Go to Question 4, below.

4. Was this communication to submit a resume to a person who, while affected by the performance of your official duties, was only affected only as part of a larger industry, economic sector, or other class?

    YES.   Go to “II. POST-EMPLOYMENT RESTRICTIONS.”
    NO.   Go to Question 2, Part I.B.

B. Terminating the Employment Search.

1. Did one of the following occur:

    a.     Did you reject (in writing or orally to the prospective employer) any possibility of employment and have you terminated further employment discussions with that employer; or
    b.     Did the prospective employer reject (in writing or orally to you) any possibility of your prospective employment of you and has the prospective employer terminated further employment discussions with you?

    YES.   You have terminated the Employment Search. [See “Note,” below, and then proceed to “II. POST-EMPLOYMENT RESTRICTIONS,” below.

    NO.   You are still “seeking employment” in a manner covered by 18 U.S.C. 208. Seek ethics advice prior to taking any official action involving the interests of the prospective employer, or its competitors. Proceed to “II. POST-EMPLOYMENT RESTRICTIONS,” below.

2. Have more than 2 months passed since you sent the unsolicited resume or employment proposal to the prospective employer without hearing or receiving any indication of interest from that employer?

    YES.   You may consider your resume to have been rejected and your employment search with that employer to have been terminated. [See “Note,” below, and then proceed to “II. POST-EMPLOYMENT RESTRICTIONS,” below.

    NO.   Until you receive a response from the employer, or until the two-month period has lapsed, you are still “seeking employment” in a manner covered by 18 U.S.C. 208. Seek ethics advice prior to taking any official action involving the interests of the prospective employer, or its competitors. Proceed to “II. POST-EMPLOYMENT RESTRICTIONS,” below.

NOTE: When you have terminated you job search with a prospective employer, you no longer would violate 18 U.S.C. 208 by participating in matters involving the former prospective employer. However, under 5 C.F.R 2635.606(b), the Designated Agency Ethics Official (DAEO) may, in appropriate cases, impose a further period of disqualification from participating in official matters involving the former prospective employer where the DAEO determines that the concern that a reasonable person may question the integrity of the agency’s decisionmaking process outweighs the governmental interest in the employee’s participation therein.

II. POST-EMPLOYMENT RESTRICTIONS.

A. General Prohibitions on Representation.

1. Once you have left Federal employment, do you expect to “represent”* (communicate in writing or orally) before Federal agencies (not just USDA) or meet with Federal personnel, on behalf of non-Federal parties other than yourself**?

    YES.   Go to Question 2.
    NO.    Go to “Part II.B., “Trade or Treaty Information.”

* You are not representing another before the Federal Government if you solely act behind-the-scenes, or “in house,” for your future employer.
** You may represent yourself as a private individual. However, if you represent the interests of your private company, you are representing another.

2. Will you “represent” others on:

    a.     Contracts, loans, grants, litigation, administrative proceedings, claims against the government, investigations, negotiations, or controversies involving identifiable persons or entities (these are “particular matters involving specific parties”); or
    b.     General policy matters, such as regulations, that are not focused on specific persons, entities, or groups, but are focused more on general areas of the populace, or on a particular economic sector?

    • If you answered (a), go to Question 3, below.
    • If you answered (b) and paid less than SES Level 5 (ES-5), complete Parts II.B., II.D., and II.E.
    • If you answered (b) and paid at or above ES-5, complete Parts II.B., II.C., II.D., and II.E.

3. Will the intended representation or appearance be on behalf of an international organization in which the United States participates and which the Secretary of State has certified, in advance, that such representation is in the interests of the United States?

    YES.   Representation/appearance is exempt from 18 USC 207. Go to Part II.E, “Federal Procurement Prohibitions.”
    NO.    Go to Question 4, below.

4. Did you participate officially in this particular matter at any time during your Federal service through, recommendation, advice, investigation, analysis, decision, substantive review?

    YES.   Go to Question 5, below.
    NO.    Go to Question 7, below

5. Was your official participation direct (hands-on) or through a subordinate under your close supervision?

    YES.   Go to Question 6, below
    NO.   Go to Question 7, below

6. Was your participation significant to the matter (did it have a substantive impact on the decisionmaking process on that matter (even if a decision has not yet been made)?

    YES.   YOU MAY BE PERMANENTLY BARRED (LIMIT: The life of the same matter; or your life, whichever comes first) FROM REPRESENTING ANOTHER BEFORE THE FEDERAL GOVERNMENT ON THAT MATTER. 18 U.S.C. 207(a)(1). SEEK ADVICE BEFORE SUCH REPRESENTATION. You may also be subject to additional restrictions.
    NO.   Go to Question 7, below

7. Was the particular matter actually pending for action or consideration before any employee or organization under your authority at any point during your last year of Federal employment?

    YES.   YOU MAY BE BARRED FOR 2 YEARS FROM YOUR DATE OF TERMINATION FROM FEDERAL SERVICE FROM REPRESENTING ANOTHER BEFORE THE FEDERAL GOVERNMENT ON THAT MATTER. 18 U.S.C. 207(a)(2). SEEK ADVICE BEFORE SUCH REPRESENTATION. You may also be subject to additional restrictions.
    NO.   Go to Part II.B.

B. Trade or Treaty Information.

1. During your last year of Federal employment, were you involved in trade or treaty negotiations?

    YES.   Go to Question 2, below.
    NO.   Go to Part II.C. “’Senior’ and ‘Very Senior’ Employees,” below, or Part II.D. “Foreign Entities,” as appropriate (see Answers to Question A.2., above).

2. Do you expect to represent, aid, or advise another person concerning those trade or treaty negotiations within 1 year of terminating your Federal employment?

    YES.   Go to Question 3, below.
    NO.   Go to Part II.C. or Part II.D., as appropriate.

3. Are the trade or treaty negotiations ongoing?

    YES.   Go to Question 4, below.
    NO.   Go to Part II.C. or Part II.D., as appropriate.

4. Did you participate directly AND with significant impact on these negotiations?

    YES.   Go to Question 5, below.
    NO.   Go to Part II.C. or Part II.D., as appropriate.

5. Did you have access to information concerning those negotiations that is/was designated by USDA, or appropriate component thereof, as being exempt from disclosure under the Freedom of Information Act?

    YES.   Go to Question 6, below.
    NO.   Proceed to Part II.C. or Part II.D., as appropriate.

6. Did you know, or should you have known, that this information had been designated as being exempt from disclosure under FOIA?

    YES.   TO THE EXTENT THAT SUCH INVOLVEMENT IS NOT ALREADY PROHIBITED UNDER 18 U.S.C. 207(a)(1) OR (a)(2), YOU MAY BE BARRED FOR 1 YEAR FROM THE DATE ON WHICH YOU LEFT YOUR FEDERAL POSITION FROM REPRESENTING, AIDING, OR ADVISING ANOTHER ON SUCH NEGOTIATIONS BASED ON THE EXEMPT INFORMATION. 18 U.S.C. 207(b). SEEK ADVICE BEFORE SUCH ACTIONS. You may also be subject to additional restrictions.
    NO.   Proceed to Part II.C. or Part II.D., as appropriate.

C. "Senior" and "Very Senior*" Employee Bars.

Representation of another is not a violation for most Federal employees, if it merely involves general policy matters, rather than matters involving the legal rights or interests of identifiable parties. However, a “cooling off” bar may apply if you are serving in any Executive Level positions, or are in a position in which the rate of basic pay exceeds 86.5% of the basic pay for Level II of the Executive Schedule (ES II).

* The only "Very Senior" USDA employee is the Secretary of Agriculture.

1. Is your intended representation already barred under the general prohibitions found in Part II.A., or the Trade or Treaty Information prohibition in Part II.B?

    YES.   Those prohibitions govern. Proceed to Part II.D.
    NO.   Go to Question 2.

2. Do you plan to represent another before USDA or before USDA personnel within one year of leaving service as a “senior” or “very senior” employee?

    YES.   Go to Question 3, below.
    NO.   If you are a:
      a. “Senior” employee (ES-5 and 6, and Exec. Levels II-V), go to Part II.D.
      b. A former Secretary of Agriculture, go to Question 4, below.

3. Do you expect to represent before USDA or before USDA personnel within this one-year period concerning a matter on which the represented party seeks official action by USDA?

    YES.   Go to Question 5, below.
    NO.   Go to Part II.D.

4. Do you expect to communicate with any other Executive Branch officials paid at Executive Schedules I through V, in writing or orally, or be present at meetings with such personnel, within one year of having left your post as Secretary?

    YES.   Go to Question 5, below.
    NO.   Go to Part II.D.

5. Will your representation be on behalf of, and in carrying out official duties as an employee of, any of the following:

    a. an agency/instrumentality of a State or local government;
    b. an accredited, degree-granting institution of higher education under Section 1201(a) of the Higher Education Act; or
    c. a non-profit, charitable hospital or medical research organization?

    YES.   Your representation is exempt from 18 USC 207(c). Go to Part II.D.
    NO.   Go to Question 6, below.

6. Will your representation be in the form of a statement based on your own special knowledge in a particular area and for which you receive no compensation?

    YES.   Your representation is exempt under 18 USC 207(c). Go to Part II.D.
    NO.   Go to Question 7, below.

7. Will your representation consist of making a communication solely to furnish scientific or technological information under procedures acceptable to the agency and where the agency and Office of Government Ethics have certified, as published in the Federal Register, that you have outstanding qualifications in such matters and national interest is served by your participation?

    YES.   Your representation is exempt under 18 USC 207(c). Go to Part II.D.
    NO.   YOU MAY BE BARRED FOR 1 YEAR FROM THE DATE ON WHICH YOU LEFT YOUR “SENIOR EMPLOYEE” OR “VERY SENIOR EMPLOYEE” POSITION AT USDA FROM:
      a. REPRESENTING ANOTHER BEFORE USDA OR USDA OFFICIALS ON THAT MATTER. [18 U.S.C. 207(c)]; or
      b. (FORMER SECRETARY OF AGRICULTURE ONLY) REPRESENTING ANOTHER BEFORE ANY FEDERAL OFFICIAL SERVING IN A POSITION PAID AT EXECUTIVE LEVELS I THROUGH V [18 U.S.C. 207(d)].

    SEEK ADVICE BEFORE ENGAGING IN SUCH REPRESENTATION. You also may be subject to additional restrictions.

D. Foreign Entities.

1. Did you serve as a “senior” or “very senior” USDA employee within the past year?

    YES.   Go to Question 2, below.
    NO.   Go to Part II.E., below.

2. Do you expect to:

    a.        Represent (communicate with or appear before) Federal agencies or officials (not just USDA), on behalf of a foreign government or foreign political party within one year of having left such a position; or
    b.        Aid or advise (i.e., counsel “behind-the-scenes”) a foreign government or political party with intent to influence an officer or employee of any Federal agency within one year of terminating your service in a “senior” or “very senior” position?

    YES.   TO THE EXTENT THAT SUCH REPRESENTATION IS NOT ALREADY PROHIBITED, YOU MAY BE BARRED FOR 1 YEAR FROM THE DATE ON WHICH YOU LEFT YOUR “SENIOR” OR “VERY SENIOR” POSITION FROM REPRESENTING, AIDING, OR ADVISING A FOREIGN ENTITY BEFORE AGENCIES AND OFFICIALS OF THE FEDERAL GOVERNMENT. 18 U.S.C. 207(f). SEEK ADVICE BEFORE ENGAGING IN SUCH ACTIVITIES. You also may be subject to additional restrictions.
    NO.   Go to Part II.E., below.

E. Federal Procurement Prohibitions.

1. As a Federal employee, did you advise the Federal Government with respect to a Federal procurement that has not yet been awarded?

    YES.   Go to Question 2, below.
    NO.   Go to Question 3, below.

2. Did your involvement with that procurement give you access to contractor bid or proposal information, or source selection information?

    YES.   YOU MAY BE PROHIBITED FROM KNOWINGLY DISCLOSING SUCH INFORMATION PRIOR TO AWARD OF SUCH PROCUREMENT. 41 U.S.C. 423(a) and (b). SEEK ADVICE BEFORE ENGAGING IN SUCH ACTIVITIES. You also may be subject to additional restrictions, below.
    NO.   Go to Question 3, below.

3. Within one year of terminating your Federal employment, do you expect to receive compensation from a Federal contractor that was selected for award of a Federal procurement in excess of $10 million?

    YES.   Go to Question 4, below.
    NO.   You are done. If you are affected by any of the Federal post-employment restrictions, see your agency ethics advisor.

4. During your last year of Federal employment did participate in any of the following fashions with regard to a Federal procurement award in excess of $10 million:

    a.        Serve as: (1) procuring contracting officer; (2) source selection authority; (3) member of the source selection evaluation board; (4) chief of a financial or technical evaluation team; (5) program manager; (6) deputy program manager; or (7) administrative contracting officer; or
    b.        Personally make a decision for a Federal agency in an amount in excess of $10 million: (1) awarding a contract, subcontract, modification, task order or delivery order; (2) establishing overhead or other contract rates; (3) regarding a contract payment or payments; or (4) payment or settlement of a claim.

    YES.   YOU MAY BE PROHIBITED FROM RECEIVING ANY COMPENSATION FROM THAT CONTRACTOR FOR A PERIOD OF 1 YEAR AFTER SERVING IN SUCH CAPACITIES OR MAKING SUCH DECISIONS. 41 U.S.C. 423(d)(1). SEEK ADVICE BEFORE ENGAGING IN SUCH ACTIVITIES.
    NO.   You are done. If you are affected by any of the Federal post-employment restrictions, see your agency ethics advisor.