Presentation on theme: "Representation Representation, for the purpose of this discussion, means knowingly making, with intent to influence, a communication (orally or in writing)"— Presentation transcript:
1 RepresentationRepresentation, for the purpose of this discussion, means knowingly making, with intent to influence, a communication (orally or in writing) to, or appearance before (including mere attendance at a meeting with), any Federal officer or employee on behalf of any person other than yourself.
2 18 USC § 203 CompensationThis statute bars employees from seeking or accepting compensation for assisting in representing another before the executive branch, or Federal courts or receiving money for anyone else’s representation.
3 18 USC 205 Claims Against The Government And Representation Prohibits a federal employee acting as an agent or attorney for:-- prosecuting any claim against the US or sharing in the claim;-- anyone else before a federal agency or court on a matter in which the US has an interest.No switching sides
4 Prohibition on Federal Employees Representing Parties Outside the Government Federal employees may not act as an agent or attorney (representing) anyone in a claim or other matter before a department or agency in which the United States has a direct and substantial interest.While a federal employee, you may not switch sides and work against the government. What that means is if you have a friend or relative who is facing some legal trouble or has a dispute with another federal agency, you may not represent them to that other agency, while being employed by the federal government, even though you work for a different agency.
5 Agreements or Arrangements Seeking Employment and Post-Government Employment Restrictions.Now we will discuss the rules regarding seeking employment while working for the federal government and post-government employment.
6 Non-Federal Employment Contacts Procurement Integrity Act (PIA) restrictions on non-federal employment contacts.An agency official who is participating personally and substantially in an acquisition over the SAT must report employment contacts with bidders and offerors (FAR (a)).Report required even if contact is through an agent (headhunter).SAT means Simplified Acquisition Threshold (under $100K)Regarding Headhunters: Must report as soon as employee becomes aware that headhunter has submitted their resume to contractor.
7 Seeking EmploymentProcurement Integrity Act (PIA) 41 USC 243(b). During the conduct of a procurement, a procurement official may not knowingly, directly or indirectly, solicit or accept from, or discuss with, any officer, employee, representative, agent, or consultant of a competing contractor, any future employment business opportunity.( 5 CFR )
8 “Seeking Employment” Defined (JER) Engaging in negotiations (solicited or unsolicited) for employment with any person, including entering into discussions, or communications with another person, their agent or intermediary, with a view toward reaching an agreement regarding possible employment.Unless the employee clearly rejects unsolicited communication regarding possible employment, they are seeking employment.An employee is not “seeking employment” if they merely request a job application.You are also not seeking employment if at least 2 months have transpired since the employee submitted their resume or discussion took place regarding the potential employment and they have not heard back form the potential employer.
9 What to do about employment contacts? Notify Supervisor and DAEOIN WRITING (If procurement official)Agency official must eitherpromptly reject the employment offer, orRequest to recuse him/herself from the procurementALWAYS Avoid APPEARANCE of ImproprietyIf you have duties involving a contractor with whom you are seeking employment, you must seek recusal BEFORE you contact contractor for employment, ie. Before discussing job and before sending resume, etc.If Contractor Initiates Contact: Notify Supervisor and DAEO IMMEDIATELY AND Reject in writing immediately, or request recusal.If using a headhunter – Becomes a conflict as soon as employee is notified that contractor has their resume, either by contractor or by headhunter.
10 Seeking Employment And Post Employment ALWAYS avoid an appearance of impropriety!Bottom Line: If you are not sure what to do, seek advice from your DAEO’s Office.If anything doesn’t feel quite right, ask for advice. Better safe than sorry!Darlene Druyun, former #2 Acquisition Executive for Air Force, sentenced to 9 months in prison October 2004 for negotiating a job with Boeing while negotiating Ks with them. Boeing is 2nd largest DoD contractor. Also fined $5,000 and will serve 150 hours community service.Plea Agreement Druyun stated, “she did favor the Boeing Company in certain negotiations as a result of her employment negotiations and other factors provided by Boeing to her.”Failed a lie detector- then confessed to favoring Boeing. Also, tried to doctor personal journal to eliminate the conflict. Admitted to 4 specific negotiations where she favored Boeing.LESSON LEARNED: No one is above reproach.
11 Post Employment Restrictions of 18 U.S. Code § 207 Applies to all former officers and civilian employees.Includes employees on terminal leave.Once a Gov employee leaves Federal service, he still might have restrictions regarding what type of work he can do for specific companies.
12 Representational Restrictions of 18 U.S. Code § 207 Prohibits employees from “switching sides” after leaving government service.Does not prohibit employee from working for KTR, but restricts how the employee may work.Does not bar behind the scenes involvementFormer employee may:ask questions about the status of a particular matterrequest publicly available documents.communicate factual information unrelated to an adversarial proceeding.(18 USC 207)These rules deal with leaving Federal Service to work for a Contractor.A Federal Employee CAN leave federal service, use their expertise gained while working for the federal government, and get a job with a contractor. Still, there are limitations on what that former federal employee can do.Rules regarding Leaving a Contractor position and coming to work for Federal Government:5 CFR (Tab D p. 43) and JER state that where an employee received an extraordinary payment (over $10,000) from a contractor, they are disqualified for 2 years from the time when they received a payment and may not participate on any matter involving that contractor for that 2 year period. (Regular severance payment is NOT an extraordinary payment.)
13 Post-Government Employment Representational Restrictions 18 USC 207 Applies to all former officers and civilian employees.Includes employees on terminal leave.Excludes enlisted personnel.Imposes 3 Levels of RestrictionsLifetime Ban.2-year Ban.1-year “No Contact” Ban.When an employee leaves the federal government, the American tax payer wants to be assured that the employee does not have an unfair advantage in dealing with government officials based on:experience with a matter,official responsibility with a matter orthe status of the ex employee’s former position.Therefore, there are three separate rules regarding representing a company back to the Federal Government.
14 Representational Restrictions of 18 U.S. Code § 207 Prohibits employees from “switching sides” after leaving government service.but restricts how the employee may workDoes not bar behind the scenes involvementFormer employee may:ask questions about the status of a particular matterrequest publicly available documentscommunicate factual information unrelated to an adversarial proceedingBasically, the new civilian employer may use the ex-fed in the background on matters that they worked on while in federal service, but they may not officially represent that matter back to the government.These rules merely deal with representation, not with employment with that company in general. An employee might still be able to work for that company, just not represent them back to the government for a specified period of time, on a specific matter.The term “Represent” means that the ex-government employee may not sign letters, make phone calls, or attend meetings with the government on any matters covered under this rule.Now lets go over the three different representational restrictions…
15 Representational Restrictions of 18 U.S. Code § 207 Lifetime BanFormer employee is forever barred from communicating or appearing with the intent to influence concerning a particular matter on behalf of anyone other than the government if:The government is a party or has a direct and substantial interest:former employee participated personally and substantially in the matter; andSpecific parties other than the government were involved at the time of the participationThe ex-federal employee may never work on a project, if while they were a while a federal employee, they participated personally and substantially in the matter. That is, they were involved in:drafting, reviewing, or approving a statement of work or government requirements;preparing or developing the solicitation;evaluating bids or proposals or selecting a source;negotiating contract price or terms and conditions; orreviewing and approving the award or modification.
16 Representational Restrictions Ban does not prohibit former employee from working for a division or affiliate that does not produce the same or similar product or servicesAgency officials may request an ethics advisory opinion regarding whether they are precluded from accepting compensationThe ex-fed can work for the organization in a different department that is not involved with the same products or services they work on while a federal employee.Generally, these restrictions don't affect what you can work on "behind-the-scenes" or "in-house" even if it involves someone else representing to the Federal government. Only your ability to represent back to the government is affected by these restrictions.
17 Representational Restrictions of 18 U.S. Code § 207 Two-Year BanFormer employees are prohibited for 2 years from communicating or appearing with the intent to influence a particular matter on behalf of anyone other than the government if:government has a direct and substantial interest;the matter was pending under the employee’s official responsibility during the 1 year period prior to leaving service; andspecific parties other than the government were involved at the time of the participationB. Two-Year Restriction Concerning Particular Matters Under Official Responsibility.You cannot knowingly communicate with, or appear before, a current employee of the United States on behalf of any other person (except the United States), with the intent to influence the current employee in a particular matter involving one or more specific parties which you knew or should have known was under your official responsibility within a period of 1 year before the date of the termination of your Federal employment. For a violation to occur, the United States must be a party or have a direct and substantial interest in the particular matter.Example of violation — A division director retires. At the time of his or her retirement, a loan application was being processed by a member of the division director's staff. Within 2 years, the former director contacts a current department employee with the intent to influence that employee's recommendation on the specific loan application.
18 Representational Restrictions of 18 U.S. Code § 207 One-Year “No Contact” BanProhibits former senior employees (> O-6/GS-15) from communicating or appearing with the intent to influence concerning a particular matter on behalf of anyone other than the government for 1 year if:the matter involves the department or agency the employee served with during his/her last year of federal service; andperson represented by the former employee seeks official departmental or agency action concerning the matterAnd ARE BARRED for 1 YEAR on pending mattersRepresenting on any "particular matter" pending before previous agency in which the previous agency has a direct and substantial interest.II. ONE-YEAR RESTRICTION DUE to Your Government Rank/Status: This restriction prohibits any SES or General/Flag Officer from representing any company back to the Government for one year after they leave Federal Service. The theory is that due to your high level as a government employee, your mere presence at meeting could result in an inappropriate influence on existing government employees. Therefore, these is a one-year cooling off period. However, again, the employee may conduct behind-the-scenes work, just not represent the company to the Government (letters, phone calls, meetings, etc.)