Application Guide for Post-Employment under the Policy on People Management and the Directive on Conflict of Interest

2.1 Values and Ethics Code for the Public Sector

2.2 Policy on People Management

2.3 Directive on Conflict of Interest

2.4 Organizational code of conduct

An organization’s code of conduct may also contain requirements regarding post-employment pertaining to its own organizational risks and circumstances that public servants should consider.

3.1 Ethical risks to consider in designating positions

In deciding which positions should be subject to post-employment limitations, designated senior officials (on behalf of their deputy heads) should identify which types or classes of positions may be vulnerable to post-employment conflicts of interest. Examples of potential risks are as follows:

• The former public servant may take advantage of relationships with colleagues still in the department to obtain inside information or preferential treatment, or to make representations
• The public servant who is seeking external employment may give preferential treatment to potential employers with which they or their subordinates have official public service dealings
• The public servant who is seeking external employment may offer confidential or non-public information (which would violate their oath of employment and the Policy on Government Security) to potential employers in exchange for employment opportunities
• The former public servant may use their inside knowledge of strategy to take employment with the opposing side in departmental negotiations

This list is not exhaustive. Potential problems and risks should be identified as part of a comprehensive ethical and operational risk assessment.

3.2 Other factors to consider in designating positions

Positions may be designated according to such factors as their level, power of approval or recommendation, legislated and delegated authority, the degree to which that authority is or is not fettered, independence of operations, visibility, supervisory functions, and scope of influence.

Positions may also be designated for post-employment limitations by taking into consideration which operations or functions present the most ethical risks. These risks may be associated, for example, with the exercise of financial authority, procurement functions, regulatory functions, grants and contributions, and negotiations on behalf of the employer or the government, and so on. Again, this list is not exhaustive.

Positions in the EX-category and equivalents are normally subject to post-employment limitations because of their seniority, visibility and delegated authority. The incumbents may also supervise staff who carry out official duties with organizations that are in, or appear to be in, a position to offer the executive employment opportunities outside of the public service in exchange for consideration.

Positions at levels lower than the EX-category may also be at risk for post-employment concerns because of the regulatory or other operational functions the incumbents exercise, the authority to make recommendations or decisions, the degree to which their decisions are or are not subject to supervisory oversight, or the sensitive information to which they regularly have access. These positions may form the pool from which departments select candidates for EX positions as well.

Departments should carefully review their operations to identify positions on the basis of the factors identified above, consult with bargaining agents on the positions so identified, and communicate the final designation to the affected employees.

5.1 What the limitations are and what they mean

The directive (subsection 4.2.20.2) outlines limitations that public servants in positions designated by the deputy head (see section 3 of this guide) must respect during the one-year period after leaving the public service.

The first limitation is that they may not:

• a) accept an appointment to a board of directors of, or employment with, outside entities or individuals with which they had significant official dealings, either directly or through their subordinates, in the year immediately prior to leaving their employment in the public service

It is important to note that the official dealings could be on the part of the public servant themself or subordinates whom they supervise. The significance of the official dealings is defined on the basis of common sense and the risk for real or apparent conflict of interest. Awarding contracts and paying invoices, approving transfer payments, signing off on invoices, making recommendations to the minister on behalf of the organization, exercising delegated authority on behalf of the external organization, or negotiating on the opposing side of the organization are examples of what could be considered official dealings. It is up to organizations to clearly identify and be aware of the risks for conflict of interest in the official dealings that comprise their operations.

The second limitation is that these public servants may not:

• b) make representations on behalf of entities or individuals outside of the public service to any government organization with which they had significant official dealings, either directly or through their subordinates, in the year immediately prior to leaving their employment in the public service

Making representations may consist of many different activities, such as intervening on behalf of the external person or entity, lobbying as defined by the Office of the Commissioner of Lobbying of Canada, making sales calls, or acting as an official agent or advocate.

It should be noted that assistant deputy ministers and equivalents are also subject to the post-employment restrictions of the Lobbying Act.

The third limitation is that public servants in designated positions may not:

• c) give advice to their clients or any new employer by using information that is not publicly available concerning the programs or policies of the department or organization with which they were employed or with which they had a direct and substantial relationship

Even after the post-employment limitation period, public servants are restricted from divulging sensitive and classified information by their oath of employment and by the Policy on Government Security. However, assisting a person with finding public information about departments and programs is not a conflict of interest or a breach of security.

For the first two limitations above, the public servant is free to accept employment with any employer once the one-year post-employment period is over, given that they are no longer subject to these limitations. However, the third limitation applies even after the one-year period has lapsed.

6.1 Waivers and reductions

A public servant who holds a designated position may make a written request to the deputy head for a waiver or a reduction of the one-year post-employment period. It is important to note that a public servant’s request can apply to one or more of the limitations. So, for example, the deputy head may waive or reduce the one-year post-employment period for the public servant to accept an appointment to a board of directors, but maintain the full one-year period for the other limitations. However, as stated above, the one-year post-employment period can never be reduced or waived with respect to the third limitation. All public servants are restricted, in perpetuity, from divulging sensitive and classified information by their oath of office.

If, through analysis of the public servant’s report submitted in accordance with organizational procedures, it is determined that the post-employment opportunity presents no risk for conflict of interest, it is not necessary for the public servant to apply to the deputy head for a waiver or reduction of the one-year post-employment limitation period.

If there is a possibility of a risk of post-employment conflict of interest and after analysis there are reasonable mitigation strategies that can be put in place, the public servant or former public servant can apply in writing to the deputy head for a waiver or reduction in accordance with the organization’s procedures. In accordance with the directive, the public servant or former public servant must provide information to assist the deputy head in deciding whether to grant the waiver or reduction. At minimum this information should include:

• the circumstances under which they are leaving or left their public service employment
• their general employment prospects
• the significances to the government of the information they possessed by virtue of their position or former position in the public service
• the desirability of a rapid transfer of their knowledge and skills from the government to private, other governmental or non-governmental sectors
• the degree to which their new employer might gain unfair commercial or private advantage
• the authority and influence they possessed while in the public service

6.2 Enforcement

Once a public servant has left the public service, there are no simple procedures that a department can use to check whether that public servant is respecting the post-employment compliance measures to which they are subject. The onus for compliance is on the individual in question. Once an individual has left office, they are no longer a public servant; hence, managers no longer have any authority over that individual. Public servants who are no longer employed in the public service cannot be subject to disciplinary measures.

This does not mean that the department cannot take any action. Once a public servant has left and it comes to the department’s attention that they may be in breach of their obligations, the department should write to the former public servant reminding the individual of their obligations, outlining specific measures that must be taken to resolve the situation and to request that the former public servant let the employer know how they intend to comply.

Departments should take all possible steps to internally manage any situation where a possible breach of the post-employment measures may put at risk the integrity of departmental programs or operations. For example, the employer can ensure that former colleagues do not contravene the directive and their departmental code of conduct by providing the former public servant with inside information or preferential treatment. Departments may take action against a contractor who has violated the Code of Conduct for Procurement , which states:

Vendors will not hire directly, or through a third party, former public servants during their one-year cooling-off period where this would constitute a violation of post-employment measures under [the Directive on Conflict of Interest] that complements the Values and Ethics Code for the Public Sector.

It will be a condition of all contracts that the vendor has read and agrees to be bound by the terms of this Code of Conduct for Procurement.

For further information, please see the “Context and purpose of the Code” section of the Code of Conduct for Procurement.

In other examples, the deputy head may instruct departmental program staff to cease negotiations with an entity that has hired a former public servant in breach of post-employment limitations. Departments are to also impose, as a condition of contribution funding to certain non-governmental organizations, that the organization not employ a former public servant who is in breach of their post-employment obligations.

Other authorities available to the employer may include the Oath of Office, signed by the majority of public servants when hired, or, in serious cases, invoking such legislation as the Criminal Code or the Security of Information Act through referral of some matters to the appropriate police or security investigative body, if the post-employment breach has contributed to a criminal act. Employers should seek legal advice or advice from departmental security services when faced with situations that cause concern. Every situation should be examined on a case-by-case basis.

7.1 Indeterminate or term employment

The post-employment requirements of the directive do not restrict a former public servant from returning to public service employment as an indeterminate or term employee.

7.2 Contracting

Employment during the limitation period with a firm contracting with the government with which the former public servant had significant official dealings is a violation of the post-employment requirements. However, a former public servant contracting individually with their former department is not normally in violation of the post-employment requirements as long as such contracting is in the public interest. It is important that the contracting process be carried out in a manner that will bear the closest public scrutiny.

7.3 Casual workers

Casual workers, who are generally hired for specified periods that may not exceed 90 working days in one calendar year, are hired on a non-competitive basis under the authority of section 50 of the Public Service Employment Act. Casual workers are most often hired as short-term replacements for staff and to help manage heavy workloads. At the more senior levels, casuals are used to bring in an expertise in order to support a special project or to transfer knowledge. Many times, the skill set of a former employee of the federal public service is ideal to support a special project, or it may be that the individual has key knowledge that would benefit federal public servants. Although casual workers are not employees as defined by the Federal Public Sector Labour Relations Act, they are considered public servants for the purposes of the Values and Ethics Code for the Public Sector and the directive.

Candidates for casual employment may be former public servants who are potentially subject to the post-employment limitations and period as outlined in the directive (subsection 4.2.20.2). The post-employment limitations are designed to minimize the possibility of conflict of interest arising from employment outside the public service and the public servant’s official responsibilities while employed full-time; therefore, the post-employment limitations do not restrict a former public servant from coming back into the public service as a casual worker. That said, casual workers should be hired in a fair and transparent manner, and there should be evidence that in the opinion of the manager, the person is competent to do the work.

When their period as a casual worker ends, they may be subject to a post-employment limitation period as determined by their department if they have a firm offer of employment from an entity outside the public service and if it presents a real, apparent or potential conflict of interest with respect to the official responsibilities they had during their casual employment.

The directive stipulates that the limitation period is normally one year; however, it also provides that the limitation period may be waived or reduced by the deputy head upon consideration of the factors outlined in the directive (Appendix A, subsection A.2.2.4.3). One of these factors is the circumstances under which the termination of the service occurred. Because casual employment is limited to 90 days in any one department in a calendar year with no extensions, the deputy head may take this factor into consideration when considering a request to reduce or waive the limitation period pertaining to the public servant’s most recent employment.

Scenario 1: Everyone has a responsibility

Jeffrey is a PG-02 purchasing officer and is responsible for administering large contracts with outside suppliers. His position was not designated as subject to the limitation period by his department. It is not public yet, but he knows that his department is planning a large move to a new building and will need to purchase a lot of new furniture. He contacts one of his regular suppliers and trades this knowledge for a new, higher-paying job, managing the contract with his former department. He brags about this to his colleagues in the department.

Scenario 2: A change of career

In six months, Dr. Smith, Associate Assistant Deputy Minister (ADM), Research Branch, will be leaving her department to join the University of Waterloo as Chair of the School of Applied Research in the science faculty. ADM positions have been designated by her deputy head as subject to post-employment limitations.

As part of her new duties, Dr. Smith will direct the school’s activities, including establishing links to government and non-government groups, and developing proposals to funding organizations that offer grants to support work in the fields of applied research.

The position involves establishing contacts with private and public sector organizations to carry out research and setting up an advisory committee for the school. The position also involves directing multi-disciplinary research teams and publishing the results of studies. The school could conduct research and scientific studies in applied sciences for Dr. Smith’s current department.

Dr. Smith’s future role seems to have advantages for her current department, in particular in generating research results and evidence-based decision making for policy development.

Scenario 3: The world-renowned expert

Dr. O’Brien is a MD-MOF-2. His position was designated as subject to post-employment limitations by his department. He was brought into the public service for a two-year term to manage a contribution to the World Health Organization (WHO) headquarters outside of Canada for a project involving the classification of rare veterinary diseases in the developing world. He is one of three people in the world with this specialty. The contribution program has a sunset clause, and his term and the program end at the same time. After his term ends, the WHO offers him a position to continue the work. Can he accept this position?

Scenario 4: A volunteer opportunity

Jean-Jacques Marcil was the director of the Transfer Payment Program in his department before he retired four months ago. His position in the EX-category was designated by the deputy head as one of those subject to the post-employment limitations.

Jean-Jacques was enjoying his retirement, but was seeking volunteer opportunities. During a round of golf, he met Ron Brown, the director of the non-governmental organization that his staff dealt with regularly regarding its transfer payment. During their informal conversation, Jean-Jacques asked Ron if his organization could use volunteer help. Ron mentioned that their community relations officer had left on maternity leave and that they were in a bind. He suggested to Jean-Jacques that it would really be helpful if he could come in part-time and help them out for a few months. Among other duties, the community relations position requires regular liaison with and representations to Jean-Jacques’ former department.