The Office of Government Ethics has finalized rules changes it proposed earlier this year regarding restrictions on outside job-seeking by federal employees, addressing matters such as what activities on social media are considered job searches under the rules and an employee’s obligation to withdraw from certain agency decision-making while seeking outside employment. Apart from some technical changes, the finalized rules adopt the changes as proposed. Following is a summary of the changes, from the original notice.
1. Definition of “Employment”
OGE proposes to add a new example to § 2635.603(a) to clarify that certain volunteer activities are not considered “employment” under this subpart. In the preamble to the final rule, 57 FR 35006, Aug. 7, 1992, OGE discussed the types of volunteer services, such as washing dishes one night a week at a soup kitchen, that do not involve an employment or other specified relationship. Consistent with that discussion, a new example illustrates the types of informal, uncompensated, and non-fiduciary volunteer services that are not considered “employment” under this subpart.
2. Definition of “Seeking Employment”
OGE is amending the definition of “seeking employment” in several ways to provide additional clarity. To begin, OGE proposes to delete the exclusion at § 2635.603(b)(1)(ii)(B) and incorporate this provision as a limitation to the recusal obligation in § 2635.604. This makes no substantive change to the regulation. The only effect of the exclusion at § 2635.603(b)(1)(ii)(B) was to limit an employee’s recusal obligations. Accordingly, OGE believes that this provision is more appropriately included as a limitation to the recusal obligation in § 2635.604. OGE also proposes to revise and move the two corresponding examples from § 2635.603(b), Examples 4 and 5, to § 2635.604(a) as Examples 3 and 4, to clarify the limitation to the recusal obligation under § 2635.604.
OGE is also adding new and revised examples to address informational discussions; highlight the distinction between seeking employment within the meaning of § 2635.603(b)(1)(ii) or (iii) and negotiating for employment within the meaning of § 2635.603(b)(1)(i); address whether an employee is “seeking employment” when the employee uses a social networking or resume-posting site; and provide practical guidance on rejecting employment inquiries from prospective employers.
In regard to social media, which has not been explicitly addressed in subpart F, three new examples clarify that the rules in this subpart apply regardless of the method the employee uses when seeking employment. Specifically, these examples illustrate that the posting of a profile, resume, or other employment information that is not targeted to a specific person is not considered an unsolicited communication with an entity regarding possible employment. Rather, such a posting would be akin to posting a resume on a bulletin board. Likewise, the employee would not be seeking employment with a person if the employee received a notification or email from a person until the employee makes a response other than a rejection.
3. Definition of “Prospective Employer”
A new example in the proposed regulation illustrates that online resume distribution services are treated like employment search firms for purposes of determining when an employee has begun seeking employment.
4. Definition of “Public Filer”
Section 17 of the STOCK Act establishes new notification requirements for an individual required to file a financial disclosure report under section 101 of the Ethics in Government Act of 1978 (5 U.S.C. app. 101). OGE proposes to include a definition of “public filer” describing the individuals who must submit such notification statements.
C. Section 2635.604—Recusal While Seeking Employment
OGE proposes to revise § 2635.604 for clarity and reorganize § 2635.604(a) into two subsections. As discussed above, the proposed language includes a new § 2635.604(a)(2) to replace an exclusion to the definition of “seeking employment” in § 2635.603(b)(1)(ii)(B). This is not a new exception; rather, it merely moves the exclusion found at § 2635.603(b)(1)(ii)(B) to a more logical location in the subpart.
OGE has added a new example to emphasize that the recusal obligation in § 2635.604(a) is not limited to particular matters involving specific parties but is also applicable to particular matters of general applicability. In addition, OGE proposes to revise § 2635.604(b) to emphasize that employees are obligated to take whatever steps are necessary to ensure that they do not participate in particular matters from which they are recused. The proposed revision emphasizes that these steps can include written recusals, which employees may file with ethics officials.
D. Section 2635.605—Waiver or Authorization Permitting Participation While Seeking Employment
OGE proposes to add a new requirement that any authorizations under § 2635.605(b) must be in writing.
E. Proposed § 2635.607—Notification Requirements for Public Financial Disclosure Filers Regarding Negotiations or Agreement of Future Employment or Compensation
OGE proposes to add a new § 2635.607 to implement section 17 of the STOCK Act. Section 17 of the STOCK Act requires a public filer who is negotiating for or has an agreement of future employment or compensation to file a statement notifying the agency ethics official of such negotiation or agreement within three business days after commencement of the negotiation or agreement. A public filer who files a notification statement regarding the negotiation or agreement also must file a notification regarding recusal whenever there is a conflict of interest or appearance of a conflict of interest with respect to the entity identified in the notification. In addition, this section affirms the recusal obligations addressed in the Standards of Ethical Conduct and, where applicable, 18 U.S.C. 208.
OGE issued interpretive guidance for implementing section 17 of the STOCK Act on April 6, 2012, and April 25, 2013. See OGE, LA 12-01, available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/LA-12-01—Post-Employment-Negotiation-and-Recusal-Requirements-under-the-STOCK-Act/, and OGE, LA 13-06, available at http://www.oge.gov/OGE-Advisories/Legal-Advisories/LA-13-06—Notification-of-Negotiations-for-Post-Government-Compensation-under-Section-17-of-the-STOCK-Act/. New § 2635.607 is consistent with this guidance.
Pursuant to OGE’s authority under the Ethics in Government Act and Executive Order 12731, and consistent with OGE’s interpretive guidance, OGE proposes to extend the notification requirement to negotiations for or agreements of future employment or compensation with all non-federal entities. The notification requirements under section 17 of the STOCK Act apply only to “private” entities. Because the potential for conflicts of interest is not limited to private entities, the proposed regulations cover all prospective non-federal employers. In addition, OGE proposes to include a provision allowing public filers to elect to file the notification statement, recusal statement, or both before negotiations have commenced and before an agreement of future employment or compensation is reached. Public filers who elect to file the notification statement, recusal statement, or both prior to the commencement of negotiations or an agreement are deemed to have met the statutory requirements because the statements will continue to be in a “filed” status after the commencement of the negotiations. The statements must name the private entity or entities involved in the negotiations and an estimated date of the commencement of the negotiations or agreement. While not required, the option to file in advance enhances the access of public filers to advice from ethics officials.