§ 2635.604 - Recusal while seeking employment.

§ 2635.604 Recusal while seeking employment.

(a) Obligation to recuse.

(1) Except as provided in paragraph (a)(2) of this section or where when the employee's participation has been authorized in accordance with § 2635.605, the employee may not participate personally and substantially in a particular matter that, to the employee's knowledge, has a direct and predictable effect on the financial interests of a prospective employer with whom the employee is seeking employment within the meaning of § 2635.603(b). Recusal is accomplished by not participating in the particular matter.

(2) The employee may participate in a particular matter under paragraph (a)(1) of this section when:

(i) The employee's only communication with the prospective employer in connection with the search for employment is the submission of an unsolicited resume or other employment proposal;

(ii) The prospective employer has not responded to the employee's unsolicited communication with a response indicating an interest in employment discussions; and

(iii) The matter is not a particular matter involving specific parties.

Example 1 to paragraph (a): A scientist is employed by the National Science Foundation (NSF) as a special Government employee to serve on a panel that reviews grant applications to fund research relating to deterioration of the ozone layer.

She

The scientist is discussing possible employment with a university that received an NSF grant several years ago to study the effect of fluorocarbons but has no current grant applications pending before NSF. The employee is seeking employment, but

she

does not need to recuse because there is no particular matter that would have a direct and predictable effect on the financial interests of the prospective employer. Recusal would be required if the university submits a new application for the panel's review.

Example 2 to paragraph (a): An employee of the Food and Drug Administration is developing a regulation on research criteria for approving prescription drugs.

She begins

They begin discussing possible employment with a pharmaceutical company. The employee may not participate personally and substantially in the development of the regulation because

she has

they have begun employment discussions with the pharmaceutical company and the regulation is a particular matter of general applicability which would have a direct and predictable effect on the financial interests of the pharmaceutical company.

Example 3 to paragraph (a): A special Government employee of the Federal Deposit Insurance Corporation (FDIC) is assigned to advise the FDIC on rules applicable to all member banks.

She

The employee mails an unsolicited letter to a member bank offering

her

services as a contract consultant. Although the employee is seeking employment, the employee may participate in this particular matter of general applicability until

she receives

receipt of some response indicating an interest in discussing

her

the employment proposal. A letter merely acknowledging receipt of the proposal is not an indication of interest in employment discussions.

Example 4 to paragraph (a): An employee of the Occupational Safety and Health Administration is conducting an inspection of one of several textile companies to which

he

they sent an unsolicited resume. The employee may not participate personally and substantially in the inspection because

he is

they are seeking employment and the inspection is a particular matter involving specific parties that will affect the textile company.

(b) Notification. An employee Employees who becomes become aware of the need to recuse from participation participating in a particular matter to which the employee has they have been assigned must take whatever steps are necessary to ensure that the employee does they do not participate in the matter. Appropriate oral or written notification of the employee's their recusal may be made to an agency ethics official, coworkers, or a supervisor to document and help effectuate the employee's recusal. Public filers must comply with additional notification requirements set forth in § 2635.607.

Example 1 to paragraph (b): An employee of the Department of Veterans Affairs (VA) is participating in the audit of a contract for laboratory support services. Before sending

his

a resume to a lab which is a subcontractor under the VA contract, the employee should recuse from

participation

participating in the audit.

Since he

Because the employee cannot withdraw from

participation

participating in the contract audit without

the

supervisor approval

of his supervisor

,

he

the employee should notify

his

the supervisor of

his

the need to recuse for ethics reasons so that appropriate adjustments in

his

work assignments can be made.

Example 2 to paragraph (b): An employee of the Food and Drug Administration (FDA) is contacted in writing by a pharmaceutical company concerning possible employment with the company. The employee is reviewing an application from the same pharmaceutical company, which is seeking FDA approval for a new drug product. Once the employee makes a response that is not a rejection to the company's communication concerning possible employment, the employee must recuse from further participation in the review of the application.

Where he

When the employee has authority to ask

his

a colleague to assume

his

reviewing responsibilities,

he

they may accomplish

his

recusal by transferring the work to the

employee designated to cover for him

colleague. However, to ensure that

his

the colleague and others with whom

he

they had been working on the review do not seek

his

their advice regarding the review of the application or otherwise involve

him

them in the matter, it may be necessary for

him

the employee to advise those individuals of

his

the recusal.

(c) Documentation. An employee Employees, other than a public filerfilers, need not file a written recusal statement unless the employee is statements unless they are required by part 2634 of this chapter to file written evidence of compliance with an ethics agreement with the Office of Government Ethics or a designated agency ethics official, or is are specifically directed by an agency ethics official or the person responsible for the employee's assignment their assignments to file a written recusal statementstatements. However, it is often prudent for an employee employees to create a record of his or her their actions by providing written notice to an agency ethics official, a supervisor, or other appropriate official. Public filers must comply with the documentation requirements set forth in § 2635.607.

Example 1 to paragraph (c): The General Counsel of a regulatory agency will be engaging in discussions regarding possible employment as corporate counsel of a regulated entity. Matters directly affecting the financial interests of the regulated entity are pending within the Office of General Counsel, but the General Counsel will not be called upon to act in any such matter because signature authority for that particular class of matters has been delegated to an Assistant General Counsel. Because the General Counsel is responsible for assigning work within the Office of General Counsel,

he

they can, in fact, accomplish

his

recusal by simply avoiding any involvement in matters affecting the regulated entity. However, because it is likely to be assumed by others that the General Counsel is involved in all matters within the cognizance of the Office of General Counsel,

he

they would benefit from filing a written recusal statement with an agency ethics official or the Commissioners of the regulatory agency and providing

his

their subordinates with written notification of

his

the recusal.

He

The General Counsel may also be specifically directed by an agency ethics official or the Commissioners to file a written recusal statement. If the General Counsel is a public filer,

he

they must comply with the documentation requirements set forth in § 2635.607.

(d) Agency determination of substantial conflict. Where When the agency determines that the employee's action in seeking employment with a particular person will require the employee 's recusal to recuse from matters so central or critical to the performance of the employee's official duties that the employee's ability to perform the duties of the employee's position would be materially impaired, the agency may allow the employee to take annual leave or leave without pay while seeking employment, or may take other appropriate action.