DAOD 7021-2, Post-Employment


1. Introduction

Date of Issue: 2000-07-07

Date of Last Modification: 2015-05-06

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers of the Canadian Armed Forces (CAF members).

Supersession:

  • CPAO 7.10, Conflict of Interest
  • CFAO 19-37, Conflict of Interest and Post-Employment Compliance Measures
  • NDHQ Policy Directive P5/89, Conflict of Interest Supplementary Compliance Measures

Approval Authority: Chief Review Services (CRS)

Enquiries: Director Defence Ethics Programme (DDEP)

2. Definitions

conflict of duties (tâches conflictuelles)

A conflict that arises, not because of a DND employee’s or CF member’s private interests, but as a result of one or more concurrent or competing official responsibilities. For example, responsibilities associated with his or her primary official duties compete with his or her responsibilities in a role outside of DND or the CF, such as an appointment to a board of directors, or other outside function, when that role is also part of his or her official duties. (Department of National Defence and Canadian Forces Code of Values and Ethics)

organizational conflict of interest (conflit d’intérêts organisationnel)

A situation in which the action or decision of a DND employee or CF member calls into question the integrity, objectivity, impartiality or non-partisanship of the DND or the CF. As a result, the situation could be perceived by a reasonable observer as placing the DND or the CF in a conflict of interest with the public interest. A real organizational conflict of interest is defined as existing at the present time in a situation; an apparent organizational conflict of interest could be perceived by a reasonable person to exist in the situation, whether or not it is the case; and a potential organizational conflict of interest could reasonably be foreseen to exist in the future. An apparent organizational conflict of interest is just as serious as a real or potential organizational conflict of interest. (Department of National Defence and Canadian Forces Code of Values and Ethics)

personal conflict of interest (conflit d’intérêts personnel)

A situation in which a DND employee or CF member has private interests that are not an integral part of their public role and that could improperly influence the performance of his or her official duties and responsibilities or in which the DND employee or CF member uses his or her office for personal gain. A real conflict of interest is defined as existing at the present time in a situation; an apparent conflict of interest could be perceived by a reasonable observer to exist in a situation, whether or not it is the case; and a potential conflict of interest could reasonably be foreseen to exist in the future. Conflicts of interest may arise in the following circumstances: outside activities (including political activities); acceptance of gifts, hospitality and other benefits; post-employment activities; and any other activity or decision incompatible with the official duties and responsibilities of a DND employee or a CF member. An apparent personal conflict of interest is just as serious as a real or potential personal conflict of interest. (Department of National Defence and Canadian Forces Code of Values and Ethics)

significant official dealings (relations officielles importantes)

Any dealings with any person or entity, external or internal to the DND or the CAF, that are conducted by a DND employee or CAF member in the course of their official duties or responsibilities, whether directly or through a subordinate, including dealings of a commercial nature and interactions where an exchange of information may occur. This does not include contacts which are strictly of a social nature. (Defence Terminology Bank record number 693782)

3. Overview

General Expectation

3.1 Upon cessation of their employment or service, all DND employees and CAF members are expected to avoid situations which could give rise to a conflict of interest (COI) with respect to their most recent official duties without unduly restricting their ability to seek employment.

Note – In this DAOD, a COI is an organizational COI, a personal COI or a conflict of duties, as applicable.

Persons Subject to Specific Restrictions

3.2 This DAOD establishes specific post-employment restrictions applicable to:

  1. any DND employee occupying a position classified at EX minus 1 or above;
  2. any Regular Force officer of the rank of lieutenant-colonel or commander or above;
  3. any Reserve Force officer of the rank of lieutenant-colonel or commander or above serving on Class “B” or Class “C” Reserve Service; and
  4. any incumbent of a position designated as being subject to post-employment compliance measures.

3.3 The post-employment limitations in this DAOD do not apply to the Deputy Minister (DM), the Associate DM, the Chief of the Defence Staff (CDS), the Judge Advocate General (JAG), the Principal of the Royal Military College of Canada or a military judge. These persons are reporting public office holders who are subject instead to the provisions of the Conflict of Interest Act and should consult with the Office of the Conflict of Interest and Ethics Commissioner in order to obtain information pertaining to their post-employment obligations.

Interpretation

3.4 In this DAOD, a “person with post-employment restrictions” is any person referred to in paragraph 3.2 but not an office holder referred to in paragraph 3.3.

4. Post-Employment Restrictions

Restricted Activities

4.1 Any person with post-employment restrictions is subject to a one-year post-employment limitation period during which time the person must not, without a waiver or reduction of the limitation period or the restrictions:

  1. make contact directly in any capacity, including that of an observer, with the DND or the CAF on behalf of themselves or any external entity or individual;

Note – This does not include any inquiry made by the person as a private citizen by means of a point of contact normally available to the public.

  1. make contact directly in any capacity, including that of an observer, with any other Government of Canada (GC) organization, on behalf of themselves or any external entity or individual, if the person with post-employment restrictions had significant official dealings with that GC organization, including any meeting on a joint project with that organization, at any time during the period of one year immediately prior to the cessation of their DND employment or CAF service;
  2. accept employment with an external entity or individual with which the person had significant official dealings at any time during the last year of their DND employment or CAF service; or
  3. give advice to an external entity or individual, or new employer, using information that is not publicly available concerning the programs or policies of the DND, the CAF or any other GC organization in which the person was employed or with which the person had significant official dealings.

4.2 The one-year post-employment limitation period for a person with post-employment restrictions commences:

  1. the first day of retirement, or first day after resignation or termination from the public service, whichever comes first, in the case of a DND employee;
  2. the first day of retirement leave or release, whichever comes first, in the case of a Regular Force officer; and
  3. the day following the end of Class “B” or Class “C” Reserve Service, or release from the CAF, whichever comes first, in the case of a Reserve Force officer.

4.3 In addition to the restrictions in this DAOD associated with the one-year post-employment limitation period, Public Works and Government Services Canada (PWGSC) also requires that any bidder on a contract with the GC be free of COI. In accordance with PWGSC Standard Instructions – Goods or Services Competitive Requirements, clause 18 – Conflict of Interest – Unfair Advantage, a contract bid may be rejected on the basis of a COI or the appearance of a COI or if a person, such as a DND employee or CAF member, has worked on the statement of requirements or statement of work for a GC project and the person is employed or was employed by the company bidding on the contract.

Limitations if in Receipt of a Pension, Lump Sum Payment or Early Departure Allowance

4.4 Treasury Board (TB) has set specific limits on DND authority to award a contract to any person in receipt of a pension under the Public Service Superannuation Act, but not if solely in receipt of a pension under the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act. These limits are set out in A-FN-100-002/AG-006, Delegation of Authorities for Financial Administration for the Department of National Defence (DND) and the Canadian Armed Forces (CAF). For any amount above the specific limits, TB approval is required prior to awarding a contract.

4.5 In accordance with A-FN-100-002/AG-006, a DND employee, former DND employee, CAF member or former CAF member must satisfy COI and post-employment obligations regarding any contract offered to them. As a result, CRS must be consulted in writing prior to making a contractual commitment. Form DND 2840-E, Post-Employment Declaration, must be used for this purpose.

4.6 Regardless of the value of the proposed contract, any former DND employee in receipt of a pension under the Public Service Superannuation Act, a lump sum payment or an early departure allowance, may be subject, in accordance with A-FN-100-002/AG-006, to fee abatement. The Director Materiel Policy and Procedures is to be consulted with respect to the terms and conditions of such a contract.

5. Compliance

Disclosure Process

5.1 To ensure compliance with this DAOD, a person with post-employment restrictions must disclose to the DDEP, using form DND 2840-E:

  1. all offers of employment from any external organization with which they have had significant official dealings at any time during the last year prior to their retirement, resignation, termination or release;
  2. all offers of employment from any external organization having dealings with the GC;
  3. any offer of employment that they accept, without exception; and
  4. any intention to provide professional services to the DND, the CAF or any other GC organization with which they had significant official dealings at any time during the last year of their DND employment or CAF service.

5.2 The disclosure is processed as follows:

The … must …
person with post-employment restrictions
  • submit a disclosure to the CRS using form DND 2840-E; and
  • include the certification of a supervisor or commanding officer (CO) as to whether the person did or did not have significant official dealings with the prospective employer or client during the last year either prior to their retirement, resignation, termination or release, or the day following the end of their Class “B” or “C” Reserve Service.
CRS
  • advise a DND employee occupying a position classified at or above EX-03 if a contract of employment or professional services contract may be pursued or accepted; and
  • advise a CAF member of the rank of major-general or rear-admiral or above if a contract of employment or professional services contract may be pursued or accepted.
DDEP
  • analyze the disclosure and solicit additional information as required;
  • advise a DND employee occupying a position classified at EX minus 1 to EX-02 inclusively if a contract of employment or professional services contract may be pursued or accepted; and
  • advise a CAF member of the rank of lieutenant-colonel or commander to brigadier-general or commodore inclusively, if a contract of employment or professional services contract may be pursued or accepted.

5.3 Any person with post-employment restrictions who may be required to make a disclosure under paragraph 5.1 should contact the DDEP to be informed of all applicable policies of the DND, the CAF and the GC relating to post-employment.

5.4 Supervisors must closely monitor the official dealings of their subordinates to ensure compliance with this DAOD.

6. Waiver or Reduction of a Post-Employment Limitation Period or Restrictions

Application to the DM or the CDS

6.1 A person who is subject to a one-year post-employment limitation period may apply to the DM or the CDS, as applicable, for a waiver or reduction of the limitation period or the applicable restrictions in section 4. The application may be made:

  1. simultaneously with the disclosure of a prospective contract of employment, or professional service contract, if performance of the contract could violate one or more post-employment restrictions; or
  2. after the person has been advised that a prospective contract of employment or professional services contract would violate one or more post-employment restrictions.

Criteria for Waiver or Reduction

6.2 When balancing the broader public interest with the risk to the integrity of the DND and the CAF, the DM or the CDS may grant a waiver or reduction, taking into consideration the following:

  1. the extent of any underlying COI risk and the potential for adverse public perception of the integrity of the DND or the CAF;
  2. the existence of an identifiable and important benefit which would accrue to the DND or the CAF as a result of the requested waiver or reduction being granted;
  3. the potential for the prospective employer or client to gain an unfair commercial or private advantage;
  4. the sensitivity of information possessed by the person by virtue of their employment, former employment, service or former service;
  5. the extent of the person’s authority and influence within the DND or the CAF;
  6. the circumstances under which the person’s employment or service ended;
  7. the person’s general employment prospects;
  8. the presence of any undue hardship created by the post-employment restrictions;
  9. the disposition of similar cases; and
  10. any other considerations that the DM or the CDS considers relevant.

6.3 On the basis of the above criteria, a waiver or reduction may be granted with or without further restrictions.

6.4 Any person with post-employment restrictions is permitted to take steps to be assigned new duties before their departure from the DND or the CAF with the intent of seeking a waiver or reduction of their one-year limitation period. Approval by the manager or CO of such a reassignment of duties is subject to DND priorities and the exigencies of the service.

Process

6.5 The request for a waiver or a reduction is processed as follows:

Step The … must …
1 person with post-employment restrictions
  • complete and submit form DND 2841-E, Request for a Waiver or Reduction of Post-Employment Restrictions, to the DDEP; and
  • submit, if not already provided with form DND 2840-E, the certification of their supervisor or CO as to whether the person did or did not have significant official dealings with the prospective employer or client during the last year either before their retirement, resignation, termination or release, or the day following the end of their Class “B” or “C” Reserve Service.
2 DDEP
  • conduct a case analysis and submit a recommendation to the CRS.
3 CRS
  • review the case and submit a recommendation to the DM or the CDS, as applicable.
4 DM or the CDS, as applicable,
  • make a decision on the case.
5 DDEP
  • inform the applicant in writing of the decision made by the DM or the CDS if the applicant holds or held a classification of EX-02 or below or a rank of brigadier-general or commodore or below.
6 CRS
  • inform the applicant in writing of the decision made by the DM or the CDS if the applicant holds or held a classification of EX-03 or above or a rank of major-general or rear-admiral or above.

7. Reconsideration

Application to the DM or the CDS

7.1 Any person with post-employment restrictions may apply to the DM or the CDS, as applicable, for the reconsideration of any determination made under this DAOD concerning their compliance with post-employment limitations.

8. Privacy

Protected Information

8.1 Information concerning offers of employment for DND employees, former DND employees, CAF members and former CAF members that is provided to the DDEP is designated as “Protected B” and is contained in personal information banks DND PSE 915 – Values and Ethics Codes for the Public Sector and Organization Code(s) of Conduct. Personal information is protected under the Privacy Act.

9. Designated Public Office Holders

Application of the Lobbying Act

9.1 Any DND employee or CAF member who is a designated public office holder under the Lobbying Act may consult with the Office of the Commissioner of Lobbying concerning their obligations under that Act. Such office holders include the DM, CDS, Associate DM, Vice Chief of the Defence Staff, Commander Royal Canadian Navy, Commander Canadian Army, Commander Royal Canadian Air Force, Chief of Military Personnel (CMP) and JAG.

10. Consequences

Consequences of Non-Compliance

10.1 Non-compliance with this DAOD may have consequences for both the DND and the CAF as institutions, and for DND employees and CAF members as individuals. Suspected non-compliance will be investigated. The nature and severity of the consequences resulting from actual non-compliance will be commensurate with the circumstances of the non-compliance.

Note – In respect of the compliance of DND employees, see the TB Framework for the Management of Compliance for additional information.

Failure by a DND Employee to Comply

10.2 A DND employee who fails to comply with this DAOD, or the post-employment provisions of the Values and Ethics Code for the Public Sector or the Department of National Defence and Canadian Forces Code of Values and Ethics, may be subject to appropriate disciplinary action, up to and including termination of employment under DAOD 5016-0, Standards of Civilian Conduct and Discipline.

Failure by a CAF Member to Comply

10.3 A CAF member who fails to comply with this DAOD or the post-employment provisions of the Department of National Defence and Canadian Forces Code of Values and Ethics may be subject to one or more of the following:

  1. change of duties;
  2. release or other administrative action as set out in the Administrative Review (AR) Decisions paragraph of DAOD 5019-2, Administrative Review; or
  3. disciplinary action under the National Defence Act.

Recourse

10.4 Prior to retirement, resignation, termination or release, any DND employee or CAF member who disagrees with a decision on the appropriate arrangements necessary to achieve compliance with this DAOD, the Department of National Defence and Canadian Forces Code of Values and Ethics or, additionally in the case of a DND employee, the Values and Ethics Code for the Public Sector and the Policy on Conflict of Interest and Post-Employment, may have recourse by submitting a grievance in accordance with established processes.

11. Responsibilities

Responsibility Table

11.1 The following table identifies the responsibilities associated with this DAOD:

The … is responsible for …
CRS
  • sending an exit letter that describes the post-employment compliance measures that apply to a person with post-employment restrictions.
Assistant Deputy Minister (Human Resources – Civilian)
  • ensuring that any letter of appointment of a DND employee to a position classified at EX minus 1 and above, or to any position designated under subparagraph 3.2.d, informs the DND employee of their post-employment responsibilities;
  • ensuring that any letter of appointment of a DND employee who is a reporting public office holder under the Conflict of Interest Act provides information on how the DND employee may contact the Office of the Conflict of Interest and Ethics Commissioner for details of their post-employment responsibilities;
  • ensuring that any letter of appointment of a DND employee who is a designated public office holder under the Lobbying Act, provides information on how the DND employee may contact the Office of the Commissioner of Lobbying for details of their post-employment responsibilities; and
  • identifying to the CRS, as soon as the information becomes available, any DND employee who is a person with post-employment restrictions and who intends to leave the public service.
CMP
  • ensuring that any message for the promotion of a CAF member to the rank of lieutenant-colonel or commander or above, and any message for the posting of a CAF member to a position designated under subparagraph 3.2.d, informs the CAF member of their post-employment responsibilities;
  • ensuring that any letter of appointment of a CAF member who is a reporting public office holder under the Conflict of Interest Act provides information on how the CAF member may contact the Office of the Conflict of Interest and Ethics Commissioner for details of their post-employment responsibilities;
  • ensuring that any letter of appointment of a CAF member who is a designated public office holder under the Lobbying Act provides information on how the CAF member may contact the Office of the Commissioner of Lobbying for details of their post-employment responsibilities; and
  • identifying to the CRS, as soon as the information becomes available, any CAF member who is a person with post-employment restrictions and who intends to take their release from the CAF.
DDEP
  • notifying the CRS of any non-compliance with this DAOD.

12. References

Other References

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