Word to the wise before going to the private sector

When senior federal employees consider leaving the government for the private sector,
they must do their best to distinguish the companies whose growth can be expected to
continue from those that may implode. Similarly, companies need to identify those
government employees who will help them sustain rapid growth.


Finding a match that works is itself hard work and depends on luck and friendship.
After seeing lots of successful courting and good matches, as well as some of the ones
that go bust, I'd like to offer some practical and legal thoughts on how to get involved
in a good relationship.


First, government employees in positions of authority must recuse themselves from
dealing with companies they have employment discussions with. Similarly, companies should
not engage in such discussions without asking the government employee to recuse himself or
herself.


A two-line letter from the employee to a supervisor or a designated agency ethics
officer will suffice to start the process. It also should give everyone involved a gut
check--are the government employee and the company serious enough about each other to see
that down the road an offer may be made and accepted?


Second, before a company makes an offer to any federal employee whose compensation
exceeds $100,000, I recommend a revolving-door analysis and a letter reporting on the
analysis. The potential employee not only should see this letter but also should make the
effort to understand its contents.


Any company that expends the funds for such a review is a quality company. And everyone
involved should be aware of the specific limitations on the business activities of a
former government executive.


Without such a process, a company sometimes hires an employee to open up a particular
government market, only to find that the former government employee is blocked from
helping the company at that agency for one or two years. Such mistakes are poison to a
good relationship.


One of the laws that must be reviewed is the governmentwide revolving-door law (18
U.S.C. 207), which includes a lifetime ban against representational activity for discrete
issues where the government employee was personally and substantially involved. It also
includes a one-year cooling-off period for senior employees from contact with their former
agency for representational purposes and a further separate ban on representational
activity within the sphere of the employee's authority.


Giving practical advice on the boundaries of permitted and prohibited activity under
this provision can be tricky, particularly when a uniformed flag officer has been serving
in a Joint Staff or Office of the Secretary of Defense post.


The analysis cannot end there. For example, the revised Procurement Integrity Act still
contains revolving-door provisions. Other statutes also may need to be reviewed. But
Congress has done a superlative job of cleaning up this area of law by repealing some of
the oldest and least intelligible such statutes.


Some of the questions a prospective employee should ask about a company are obvious:
Does the company have an essentially sound business plan? Is it threatened by changes in
technology? Is it highly regarded by its customers?


Government employees also should listen carefully to the tone of the employment
discussion. Is the contractor signaling that its only interest is in exploiting the
potential employee's relationships with the agency where he or she now works? If so,
subtle pressure to breach the revolving-door laws in the interest of sales may make the
experience most unpleasant.


If a senior government employee goes to work for a contractor and helps the new
employer win a contract at his or her old agency, bid protests and complaints will expose
such activity.


Potential employees should find out how other former civil servants have fared in jobs
with the contractor. Are the others happy? Are they still there? Have they been given
expanded responsibilities as they have demonstrated that their skills are transferrable?
Are they used only back at their former agency?


Agency ethics officers generally do a good job of advising employees who are thinking
about leaving. The ethics officers do not have time to write comfort letters describing
the rules for each person. Most have assembled helpful information packets that they
provide on request. However, ethics officers sometimes lapse into boilerplate instead of
providing hard-edged advice.


As for money, a government executive needs to have a well-grounded notion of what he or
she is worth to a company. Some government executives ask for sums that are
unrealistically high. Remember, you cannot make up decades of lower salaries in two or
three years.


Others do not ask for as much as they are worth. How do you establish your worth? Talk
to people. Talk to headhunters. Establish your value before you receive an offer.


Stephen M. Ryan is a partner in the Washington law firm of Brand, Lowell &
Ryan. He has long experience in federal information technology issues.



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