With 9 months left of President Barack Obama’s administration, some federal employees might be considering a move in 2017 — and a new rule proposed by the Office of Government Ethics could help outgoing workers stay on the right side of the law.

The rule addresses the gray area of social media and employment opportunities, and includes new examples and clarified language for the Standards of Ethical Conduct for Employees of the Executive Branch. Comments on the proposed rule are due by April 18.

The rule updates the definition of “seeking employment” to provide additional clarity for federal employees.

Under the proposed rule, an executive branch employee is seeking employment if the person has directly or indirectly:

• Engaged in negotiations for employment with any person.
• Made an unsolicited communication to any person, or such person’s agent or intermediary, regarding possible employment with that person.
  • The employee has not begun seeking employment if that communication was for the sole purpose of requesting a job application.
• Made a response, other than rejection, to an unsolicited communication from any person, or such person’s agent or intermediary, regarding possible employment with that person.

Under the proposed rule an employee is no longer seeking employment if:

• The employee or the prospective employer rejects the possibility of employment and all discussions of possible employment have terminated.
• Two months have transpired after the employee’s dispatch of an unsolicited resume or employment proposal, provided the employee has received no indication of interest in employment discussions from the prospective employer.

The rule also stated that a response that postpones employment discussions “does not constitute rejection of an unsolicited employment overture, proposal or resume, nor rejection of a prospective employment possibility.”

Online opportunities

The rule provided a new definition of a “prospective employer,” suggesting that “online resume distribution services are treated like employment search firms for purposes of determining when an employee has begun seeking employment.”

When it comes to online job seekers, “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,” the rule states. “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.”

Clearer language

Another aspect of the proposed rule clarifies lines in the Stop Trading on Congressional Knowledge (STOCK) Act, which relates to recusal requirements. This clarification in part emphasizes that when an employee is looking for a job, they would not be required “to notify anyone that the employee is seeking employment unless a notification is necessary to implement a recusal.”

“Employees are encouraged to consult with their ethics officials if they have any questions about how this subpart may apply to them,” the rule states. “Ethics officials are not obligated by this subpart to inform supervisors that employees are seeking employment.”

The rule gives an example of an Education Department employee who sends her resume to the University of Delaware after hearing about a job opening from a friend.

“Because she is not participating in any particular matters affecting the University of Delaware, she is not required to notify anyone that she has begun seeking employment,” the rule states.

But if that same employee has been approached by the University of Maryland for a job opportunity at the school, and she knows the school has also applied for grants that she has previously worked on, the Education worker should contact her ethics official to tell them she is not “participating in any particular matters affecting the University of Maryland.”

“As a result, the ethics official advises the employee that she will have no notification obligations. … However, the ethics official cautions the employee that, if the employee is assigned to participate in a particular matter affecting the University of Maryland while she is seeking employment with the university, she would normally need to notify her supervisor in order to avoid working on the grant.”  

The proposed rules also added a new example regarding “recusal obligation,” and suggests revising a section of the rule that urges employees “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.”

The Office of Personnel Management also is helping to prepare federal employees for the end of the Obama administration.

Acting OPM Director Beth Cobert wrote a memo in January to remind agency heads of policies in place that prevent political hires from switching over to positions in the competitive service. Under current procedure, OPM reviews applications for anyone who held a political position within the last five years and wants to continue as a career appointee.

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