The guidance allowed that even though agencies have
“legitimate interests in regulating the flow of work among
its employees and preventing situations that could result
in actual or apparent conflicts of interest,” recusal from
taking part in a matter in which a prospective employer has
a financial stake could alert a supervisor to a job search
prematurely, which OGE said is addressed in 5 C.F.R. 2635.604B.
It said that under that provision, upon becoming aware of the
need to recuse, an employee should notify the person responsible
for his assignment, and if the employee is responsible for
their own assignment, the employee “should take whatever steps
are necessary to ensure that he does not participate in the
matter” — though it added that the provisions “fall short of
a mandatory notification duty.”
An employee can be granted a waiver permitting involvement in
a particular matter affecting a prospective employer “if the
employment contacts have already reached the stage of
bilateral negotiations or have resulted in an arrangement
for prospective employment.”
The official responsible for an employee’s appointment may
grant a waiver of the recusal requirement if he makes a
certain written determination in advance of the employee’s
participation in the matter, according to the guidance.
It said that the standard for making that determination is
that the affected financial interest “is not so substantial
as to be deemed likely to affect the integrity of the
employee’s services,” and emphasized that the deciding
official should weigh both the financial interests of the
employee as well as that of the prospective employer.
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