FDA employees should be aware of the ethical considerations when leaving federal service. It is important to note that there are a number of restrictions. Some apply depending upon on whether you served in a senior-level position at the FDA.
After you leave federal service, you are prohibited from making a communication to or appearance before the Government on behalf of your new employer or anyone else regarding a “particular matter involving specific parties” in which you participated personally and substantially.
Examples of “particular matters involving specific parties” include: contracts, grants, cases, claims, investigations, or other matters focused on identified parties.
This post-Government employment restriction on communications and appearances is permanent and continues for the entire life of the particular matter.
Two-Year Official Responsibility Provision
The post-employment statute also includes a restriction that prohibits you from making, with the intent to influence, any communication to or appearance before a federal employee on behalf of another regarding a “particular matter involving specific parties” if you were not personally involved in the matter but the matter was pending under your “official responsibility” at any time during your last year of Government service. This post-Government employment restriction on communications and appearances continues for two years after you leave the Government.
Please note that these representational restrictions only apply to your communications and appearances that seek Government action and do not apply to work that you do that is completely “behind the scenes” where there is no communication to or appearance before the Government.
Under section 207(b)(1) of the statute, you may be prohibited from providing certain assistance to another person or entity concerning an ongoing trade or treaty negotiation (even where the assistance does not involve contact with a Government employee).
Are there restrictions on accepting compensation or employment?
You may be prohibited from sharing in profits earned by others if the money was earned from having contact with the Government on behalf of third parties (e.g., clients) while you were still in Government. 18 U.S.C. § 203.
Under the Procurement Integrity Act, you may be prohibited from accepting compensation from a contractor if you served in a Government position or made a Government decision involving more than $10,000,000 given to that contractor. See 41 U.S.C. § 2104 (formerly 41 U.S.C. § 423).
If you were a “senior employee” at FDA, you may not make, with the intent to influence, communications to and appearances before FDA on behalf of any other person for one year after you ceased to be a “senior employee.” This additional restriction applies to any matter on which you seek official action, including a new matter that was not pending when you were in Government. The concept of a “matter” is very broad. Examples of communications seeking action on official matters include discussing broad policy options and expressing concern about regulatory changes FDA is considering.
One-Year Foreign Entity Provision
If you were a “senior employee” at FDA, you may not, for one year after completing service in a “senior” position, knowingly represent, aid, or advise a foreign government or foreign political party with the intent to influence any officer or employee of the United States.
The post-employment statute defines “senior employee” as employees that held a position at:
Executive Levels II through V;
Uniformed Service Pay Grades O-7 or above;
SES and Employees in other Pay Systems with an Annual Rate of Basic Pay (Excluding Locality-Based Adjustments) at or above $160,111.50 (NOTE: this threshold amount is adjusted annually and calculated for calendar year 2016).
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Under the Emoluments Clause of the U.S. Constitution, a retired member of the uniformed services (e.g., a FDA commissioned corps officer) may not accept employment (or compensation for that employment) from a foreign government unless he or she first obtains approval from the Department of State and the Department of Health and Human Services.