Application Guide for Post-Employment under the “Policy on Conflict of Interest and Post-Employment”

Table of Contents

  1. Introduction
  2. References and policy
  3. Designation of positions subject to post-employment restrictions
  4. Procedures for public servants
  5. Post-employment restrictions
  6. Post-employment restriction period: Waivers, reductions and enforcement
  7. Returning to the public service
  8. Case studies and examples

1. Introduction

Post-employment measures in the Policy on Conflict of Interest and Post-Employment reinforce the integrity of the public service by preventing public servants from improperly benefiting themselves or others after they leave their positions with the government. Improper benefits may arise, for example, from official dealings with external organizations or with individuals who could offer public servants employment opportunities in exchange for preferential treatment. Improper benefits could also arise from the misuse of confidential or non-public information for personal benefit after leaving the employ of government.

All public servants have a responsibility to minimize the possibility of real, apparent or potential conflict of interest between their responsibilities within the federal public service and their subsequent employment outside the public service.

2. References and policy

2.1 The Values and Ethics Code for the Public Sector

Integrity value

Integrity is the cornerstone of good governance and democracy. By upholding the highest ethical standards, public servants conserve and enhance public confidence in the honesty, fairness and impartiality of the federal public sector.

Expected behaviours

The Values and Ethics Code for the Public Sector includes the following behaviours under the integrity value:

Public servants shall serve the public interest by:

  • 3.1 Acting at all times with integrity and in a manner that will bear the closest public scrutiny, an obligation that may not be fully satisfied by simply acting within the law.
  • 3.2 Never using their official roles to inappropriately obtain an advantage for themselves or to advantage or disadvantage others.
  • 3.3 Taking all possible steps to prevent and resolve any real, apparent or potential conflicts of interest between their official responsibilities and their private affairs in favour of the public interest.
  • 3.4 Acting in such a way as to maintain their employer's trust.Footnote 1

2.2 Policy on Conflict (CoI & PE Policy)

Deputy head requirements

Under "Policy Requirements" (subsection 6.1.2), deputy heads must:

  • Designate positions in their organizations that may be at risk for post-employment concerns and that are subject to the restrictions in the CoI & PE, Appendix B, subsection 3.2 (normally including all positions in the executive (EX) category);
  • Remind public servants who have indicated an intention to leave their employment of the requirements of the CoI & PE Policy, and, when appropriate, reduce or waive the one-year limitation period, in consideration of the criteria set out in the CoI & PE Policy, Appendix B, subsection 3.3; and
  • Ensure that decisions taken to resolve post-employment situations are, where practicable, made in mutual agreement with the public servant in question, using fair and effective means to resolve disagreements regarding the decisions.

Public servants' responsibilities

Public servants' responsibilities when they intend to leave the public service are outlined in Appendix B of the CoI & PE Policy (section 3). As a first step, before leaving their employment with the public service, all public servants are to disclose their intentions regarding any future outside employment or activities that may pose a risk of real, apparent or potential conflict of interest with their current responsibilities and discuss potential conflicts with their manager or their deputy head or his or her delegate.

Public servants may be subject to restrictions if the employment outside the public service may constitute a conflict of interest with their public service duties. A restriction or "cooling off" period of one year may be applied in order to limit contacts between the ex‒public servant and private sector organizations with which that person had business dealings. Public servants in designated positions subject to a post-employment limitation period have specific responsibilities under the CoI & PE Policy, Appendix B, section 3.

2.3 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 take into account.

3. Designation of positions subject to post-employment restrictions

3.1 Ethical risks to consider in designating positions

In deciding which positions should be subject to post-employment restrictions, departmental 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 his or her oath of employment and the Policy on Government Security) to potential employers in exchange for employment opportunities; or
  • The former public servant may use his or her 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 restrictions 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 restrictions because of their seniority, visibility and delegated authority. The incumbents may also supervise staff that 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.

3.3 Transition period

Departments may choose to delay full implementation of new post-employment restrictions for incumbent public servants by implementing a transition period. During this period, departments are advised to minimize any vulnerability by ensuring that public servants understand the principles surrounding conflict of interest as well as any restrictions before and after implementation of the designation.

Decisions related to a transition period should take into consideration the risk factors listed in subsections 3.1 and 3.2, as well as operational matters such as changes of mandate. Bargaining agent feedback and departmental management considerations and direction are also key elements of the decision-making process.

4. Procedures for public servants

4.1 A public servant who decides to leave the public service must inform management as soon as possible in order to provide reasonable notice. The manager will then remind the public servant of his or her obligations to comply with the post-employment requirements set out in the CoI & PE Policy, Appendix B, section 3, and the relevant sections of the organizational code of conduct.

If the public servant judges that future employment could place him or her in real, apparent or potential conflict of interest, the public servant should inform the deputy head or delegate by submitting a report to the office responsible for conflict of interest and post-employment. Each organization shall establish its own reporting format and process. For organizational contacts, please see the Treasury Board of Canada Secretariat's list of contacts for departmental officers for conflict of interest and post-employment measures.

After assessing the report (including dialogue with the public servant as necessary), the deputy head or delegate will contact the public servant and inform that person in writing of the post-employment measures to be taken. In most cases, a one-year limitation period will be imposed in order to limit contacts between the ex‒public servant and private sector organizations with which that person had business dealings. However, depending on the situation, the deputy head may waive or reduce the limitation period, or impose conditions on the public servant to mitigate the conflict of interest risk.

5. Post-employment restrictions

5.1 What the restrictions are and what they mean

The CoI & PE Policy (Appendix B, subsection 3.2) outlines restrictions 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 restriction is that they may not:

a) Accept appointment to a board of directors of, or employment with, private entities with which they had significant official dealings during the period of one year immediately prior to the termination of their service. The official dealings in question may either be directly on the part of the public servant or through their subordinates.Footnote 2

It is important to note that the official dealings could be on the part of the public servant herself or himself or subordinates whom he or she supervises. 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 restriction is that these public servants may not:

b) Make representations on behalf of persons or entities outside of the public service to any government organization with which they had significant official dealings, during the period of one year immediately prior to the termination of their service. The official dealings in question may either be directly on the part of the public servant or through their subordinates.Footnote 3

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 Lobbyists 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 restriction is that public servants in designated positions may not:

c) Give advice to their clients or employer using information that is not publicly available concerning the programs or policies of the departments or organizations with which they were employed or with which they had a direct and substantial relationship.Footnote 4

Even after the post-employment restriction 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 breach of security.

For the first two restrictions above, the public servant is free to accept employment with any employer once the 12-month post-employment period is over, given that he or she is no longer subject to these restrictions. However, the third restriction applies even after the one-year limitation period has lapsed.

6. Post-employment restriction period: Waivers, reductions and enforcement

6.1 Waivers and reductions

If, through review of the public servant's report submitted to the office responsible for conflict of interest and post-employment, it is determined that the post‒public service employment opportunity presents no risk of conflict of interest, it is not necessary for the public servant to apply to the deputy head or delegate for a waiver or reduction of the restriction period.

If there is a risk of conflict of interest that can be mitigated, or if one or more of the factors outlined in the CoI & PE Policy, Appendix B, subsection 3.3, must be taken into consideration, it is necessary to apply to the deputy head or delegate for a reduction or waiver.

The public servant is to provide sufficient information to assist the deputy head in making a determination as to whether to grant the waiver, taking into consideration the following criteria:

  1. The circumstances under which the termination of their service occurred;
  2. The general employment prospects of the public servant or former public servant;
  3. The significance to the government of information possessed by the public servant or former public servant by virtue of that individual's position in the public service. In other words, the access the public servant has to current sensitive or non-public information, and the significance of the risk that the external employment, may jeopardize the confidentiality of this information;
  4. The desirability of a rapid transfer of the public servant's or former public servant's knowledge and skills from the government to private, other governmental or non-governmental sectors;
  5. The degree to which the new employer might gain unfair commercial or private advantage by hiring the public servant or former public servant;
  6. The authority and influence possessed by that individual while in the public service; or
  7. Any other consideration at the discretion of the deputy head.

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 she or he is subject. The onus for compliance is on the individual in question. Once an individual has left office, he or she is 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 he or she may be in breach of her or his obligations, the department should write to the former employee reminding the individual of his or her obligations, outlining specific measures that must be taken to resolve the situation and to request that the former employee let the employer know how he or she intends 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 CoI & PE Policy and their departmental code of conduct by providing the ex‒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 Values and Ethics Code for the Public Service.

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.Footnote 5

For further information, please see "Context and purpose of the Code" 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 public servant in breach of post-employment restrictions. 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 his or her 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. Returning to the public service

7.1 Indeterminate or term employment

The post-employment requirements of the CoI & PE Policy 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 restriction 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 his or her 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, Footnote 6 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 Public Service Labour Relations Act, they are considered public servants for the purposes of the Values and Ethics Code for the Public Sector and the CoI & PE Policy.

Candidates for casual employment may be former public servants who are potentially subject to the post-employment measures and the limitation period outlined in Appendix B, section 3, of the CoI & PE Policy, depending on their department's designation, especially if they have recently retired or otherwise left the public service. The post-employment measures, however, 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 restrictions 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 CoI & PE Policy stipulates that the limitation period is normally one year; however, the CoI & PE Policy also provides that the limitation period may be reduced by the deputy head upon consideration of the factors outlined in the policy's Appendix B, subsection 3.3. 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.

8. Case studies and examples

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 restriction 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.

Factors to consider

  • Did Jeffrey violate his ethical responsibilities under the Values and Ethics Code for the Public Sector, the CoI & PE Policy and the departmental code of conduct?
  • Is there anything the department can or should do about this?

References

The Values and Ethics Code for the Public Sector (subsection 3.2) requires that public servants never use their official roles to inappropriately obtain an advantage for themselves or to advantage or disadvantage others.

The CoI & PE Policy, Appendix B, section 3, states that all public servants have a responsibility to minimize the possibility of real, apparent or potential conflict of interest between their most recent responsibilities within the federal public service and their subsequent employment outside the public service.

Suggested solution

Even though his position is not subject to a restriction period, Jeffrey nevertheless has responsibilities with respect to avoiding post-employment conflicts of interest. Jeffrey violated the Values and Ethics Code for the Public Sector and the CoI & PE Policy (and possibly the organizational code of conduct). He has taken advantage of information that is not available to the public. Jeffrey could be disciplined for this breach of the Code, up to and including termination of his public service employment. His actions may have also jeopardized the outside firm's chances of winning the contract and its future relationship with the department. See also section 6.2, "Enforcement," of this guide for more information.

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 restrictions.

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 make 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.

Factors to consider

  • Does the CoI & PE Policy apply in Dr. Smith's case?
  • What steps must Dr. Smith follow to avoid any real, apparent or potential conflict of interest?
  • How can her current department ensure that there will be no perception of preferential treatment or undue influence on Dr. Smith's part as she prepares to assume her new role?
  • Could a third party have reasonable doubts about Dr. Smith's neutrality or objectivity as a public servant?

Reference

The CoI & PE Policy, Appendix B, subsection 3.2, states, "Deputy heads are responsible for designating positions of risk for post-employment conflict of interest situations as per subsection 6.1.2.(f)(i) of this policy."Footnote 7

Public servants in these designated positions are subject to a one-year limitation period after leaving office. Before leaving office and during this one-year limitation period, these public servants are to report to their deputy head all firm offers of employment or proposed activity outside the public service that could place them in a real, apparent or potential conflict of interest with their public service employment. They are also to disclose immediately the acceptance of any such offer. In addition, these public servants may not, during this one-year period, without their deputy head's authorization:

  1. Accept appointment to a board of directors of, or employment with, private entities with which they had significant official dealings during the period of one year immediately prior to the termination of their service. The official dealings in question may either be directly on the part of the public servant or through their subordinates.Footnote 8

Suggested solutions

  • As a senior manager in the department, Dr. Smith must comply with the CoI & PE Policy and with her organizational code of conduct, and she must report the offer of employment with the university and her acceptance of the offer.
  • If it is determined that Dr. Smith has significant official dealings with the University of Waterloo in her role as Associate ADM, Research Branch, she should be assigned new responsibilities as quickly as possible. She should also submit a request for a reduction of the limitation period when she accepts the university position. The period following her reassignment to new duties would be considered the limitation period.
  • Since the work to be carried out by Dr. Smith with the university will benefit the public service, she can request a reduction of the limitation period as provided for in the CoI & PE Policy, Appendix B, subsection 3.3.

Scenario 3: The World-Renowned Expert

Dr. O'Brien is a MD-MOF-2. His position was designated as subject to post-employment restrictions by his department. He was brought in to the public service for a two-year term to manage a contribution to the World Health Organization (WHO) headquarters outside Canada for a project involving the classification of rare veterinary diseases in the developing world. He is one of three people in the world in 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?

Factors to consider

  • Would restricting Dr. O'Brien from accepting the offer have an impact on his future employability?
  • Would it be in the public interest of Canada for him to accept the offer?
  • What risks could arise from Dr. O'Brien accepting this offer? How could it be perceived by the public?

Reference

The CoI & PE Policy, Appendix B, subsection 3.3, Waiver or reduction of limitation period applies to this example.

A public servant or former public servant may apply to the deputy head for a written waiver or reduction of the limitation period. The public servant is to provide sufficient information to assist the deputy head in making a determination as to whether to grant the waiver, taking into consideration the following criteria:

  1. The circumstances under which the termination of their service occurred;
  2. The general employment prospects of the public servant or former public servant;
  3. The significance to the government of information possessed by the public servant or former public servant by virtue of that individual's position in the public service;
  4. The desirability of a rapid transfer of the public servant's or former public servant's knowledge and skills from the government to private, other governmental or non-governmental sectors;
  5. The degree to which the new employer might gain unfair commercial or private advantage by hiring the public servant or former public servant;
  6. The authority and influence possessed by that individual while in the public service; and/or
  7. Any other consideration at the discretion of the deputy head.Footnote 9

Suggested solution

Dr. O'Brien could possibly accept this position, provided he obtained a waiver of the limitation period from the deputy head. He would have to present a request, based on the expiration of his term (which is not in his control) and based on the limitations on his employment prospects in his field because of his specialization and the public interest of Canada to have him continue this work. Should the waiver be denied, the department may want to be prepared for a possible adverse public reaction.

Scenario 4: A New 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 restrictions.

Jean‑Jacques was enjoying his retirement when, 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, 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.

Factors to consider

  • Would Jean‑Jacques be able to take this opportunity?
  • As Jean‑Jacques is no longer a public servant, is he still subject to the CoI & PE Policy and his former department's code of conduct?
  • Would a third party raise concerns that Jean‑Jacques obtained his new position because he was in charge of the program that provided the organization's funding or be concerned that he was taking advantage of his previous connections to lobby the department?

Reference

The CoI & PE Policy, Appendix B, subsection 3.2 states that, during the restriction period, a public servant may not make representations to any government organization on behalf of persons or entities outside of the public service with which they had significant official dealings, during the period of one year immediately prior to the termination of their service. The official dealings in question may either be directly on the part of the public servant or through their subordinates.

Suggested solutions

  • During the year following his retirement, if Jean-Jacques is considering accepting such an offer, he is required to report it to his former department and seek its advice.
  • Unless the deputy head is of the opinion that there is sufficient cause to waive or reduce the restriction period, Jean-Jacques may not accept the position or others like it until one year after his retirement date without violating the CoI & PE Policy.
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