ML092110655
| ML092110655 | |
| Person / Time | |
|---|---|
| Issue date: | 08/03/2009 |
| From: | Szabo J NRC/OGC |
| To: | |
| Szabo, J (301) 415-1610 | |
| References | |
| Download: ML092110655 (4) | |
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June 2021 Life After NRC: Post-Employment Restrictions Applicable to NRC Employees Is there life after NRC?
The answer is a resounding "yes."
The post-employment law (18 U.S.C. § 207) is not intended to prevent private sector employment after an individual terminates Federal service. Instead, it restricts an individual from performing certain representational activities on behalf of someone else after the individual leaves Federal service. This article answers the major questions employees ask about post-employment prohibitions.
Who can I work for after I leave the NRC?
After termination, you can work for anyone, even an NRC licensee, or contractor. The Government-wide regulations implementing the post-employment law specifically state that this statute is not intended to discourage the movement of skilled Government workers to and from positions in the private sector. The regulations even provide that this flow of skills can promote efficiency and communication between the Government and private parties.
What can or can't I do for my new employer?
Two basic restrictions apply to all former Federal employees:
- 1. Lifetime ban: A former NRC employee, including a special Government employee, is prohibited for life, from communicating with or appearing before the government, with the intent to influence, on behalf of another (i.e., a non-federal government entity) on a particular matter involving a specific parties in which the former employee participated personally and substantially while at the NRC.
- 2. Two-year ban: A former supervisor, including a special Government employee, is prohibited for two years after terminating Federal service from making, with the intent to influence, any communication to or appearance before the Government on behalf of another regarding a particular matter involving specific parties if the former employee was not personally involved in the matter, but the matter was pending under his or her official responsibility at any time during his or her last year of employment at the NRC.
June 2021 What appearances or communications are prohibited under these two restrictions?
A prohibited appearance occurs when you are physically present at a proceeding when the circumstances make it clear that your attendance is intended to influence the Government or when you are conveying material to the Government in connection with a formal proceeding or application.
A prohibited communication is broader and would include correspondence, telephone calls, or other electronic transmission.
However, communications that are not intended to influence are not prohibited. These communications include purely social contacts, a request for publicly available documents, or a request for purely factual information (such as the status of an item), or the supplying of that information.
What particular matters am I barred from representing on after I leave the agency?
Particular matters include any specific NRC application, contract, licensing proceeding, investigation, enforcement action, or request for ruling involving a specific party, or parties.
Rulemaking, legislation, the formulation of general policy, standards, or objectives, or other actions of general application are excluded from this definition. Therefore, as a former employee you could represent another person even if the proceeding involved rules or policies that you had a role in establishing.
What is the personal and substantial participation under these restrictions?
Personal and substantial participation includes decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise. Personal participation means direct involvement and includes the participation of a subordinate when directed by the former employee. Substantial participation means that the involvement was either substantial or formed a basis for a reasonable appearance of significance and was more than perfunctory.
Under the two-year ban for supervisors, what is my official responsibility?
Even if you were not directly involved in an NRC particular matter, you are banned for two years from representing someone else if the matter was under your direct administrative or operating authority to approve or disapprove or otherwise direct Government action.
Your authority over the matter could be intermediate or final, exercisable alone, or with others and either personally or through subordinates.
The scope of official responsibility is usually determined by those areas assigned by statute, regulation, executive order, or job description.
June 2021 These restrictions seem to apply only for representing someone else. Does that mean that I could represent myself to the NRC on a separate matter that I was involved in as an employee?
Yes. These restrictions do not apply to representing yourself to the NRC.
What about working for my new employer on a separate NRC matter that I was involved in but never contacting anyone at the NRC about it?
These restrictions do not prohibit behind-the-scenes work. Therefore, you could prepare a paper for your new employer describing the NRC staff who should be contacted on the matter you worked on while at the NRC. You could also, develop a bid on a Request for Proposal you worked on at the NRC. The key is that you do not contact anyone at the NRC on these matters.
Keep in mind that if you worked on a procurement at the NRC that exceeded $10 million in a certain position (such as a contracting officer, program manager, source selection board member, or you made a decision to award a contract), you are prohibited under the Procurement Integrity Act for one-year from ceasing performance on that contract. You are prohibited from accepting any compensation from that contractor as an employee, officer, director, or consultant.
Are there special restrictions on former high-level officials?
For one-year after leaving the NRC, a former NRC employee, or special Government employee whose rate of basic pay is equal to or greater than 86.5% of basic pay for level II of the Executive Schedule cannot knowingly make any communication or appearance to an NRC employee with the intent to influence on behalf of any private person on any matter in which the former official seeks official action.
This restriction applies even though the former senior official was not in any way involved in the matter that is the subject of the representation and it applies to any matter, whether it involves a specific party.
This particular prohibition would not prohibit a former NRC senior official from representing another party to the Department of Energy or any other Federal agency.
The same former high-level officials, for one-year after termination, cannot represent, aid, or advise a foreign Government, or foreign political party with the intent to influence Governmental officials.
This restriction does not apply to an international organization in which the United States participates, such as the International Atomic Energy Agency, if the Secretary of the State certifies in advance that such activity is in the interest of the United States.
These same former high-level officials can also represent to the Government, within one-year of termination, State, or local governments and certain institutions of higher learning, hospitals, ad medical research organizations.
They can conduct private business at a nuclear utility and even meet with NRC staff at the
June 2021 facility if they do not attempt to influence an NRC employee on an agency matter.
Post-employment laws are enforced. For example, a former senior official of another agency agreed to pay $5,000 as a settlement of a complaint for violation of the post-employment law for arranging and attending, within one-year of her resignation, a meeting between for her former agency, and the company on which she was a member of the board of directors on a matter pending before the agency.
Please consult a Deputy Official in the Office of the General Counsel or your Regional Counsel if you have a post-employment question or issue.
When you leave NRC service, you will receive material on the post-employment restrictions, including the law, and regulations. Even after you leave the NRC, OGC will provide you, upon request, legal advice on post-employment restrictions.