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Post-Employment Restrictions

Summary of the Rule

Do not go to work for a company that did work for you as a state employee.

Noteworthy Changes - Effective July 1, 2015

Clients and customers of sole proprietorships and professional practices are now considered employers.  If you participated in a contract with an employer that ended more than two years ago you may be exempt from the required one-year waiting period.  ALJs are subject to the one-year waiting period.  Post-employment waivers have additional new criteria, are reviewed by the State Ethics Commission, and are posted on the OIG website.

Examples of the Rule

  • You are an employee of the Family & Social Services Administration (FSSA) and would like to leave your state employment to work for a vendor that has a contract with FSSA. While you did not negotiate the contract, you were personally responsible for arranging meetings and performing research related to the contract. If you leave your state employment to work for the vendor, you cannot work on the contract the vendor has with FSSA.
  • You work for the Utility Regulatory Commission making regulatory decisions concerning a public utility company. You may not work for this utility company for a year.
  • You work for FSSA and have decided to start a family automotive parts business with your son. You may commence such employment immediately upon leaving your employment with the state.
  • You work as a local office director for DCS.  You resign to start your own consulting firm.  A service provider whose contract with DCS you helped administer three months ago wants to hire you for a project.  You cannot consult for this service provider for a year.
  • You are a Deputy Commissioner at the Indiana Department of Transportation (INDOT). You participate in deciding which engineering firms should be awarded contracts. You resign from INDOT. You may not work at any of these firms for a year unless the contracts you awarded were completed at least two years ago.
  • You are a caseworker for FSSA. You help clients receive job training and welfare benefits from the state. You resign from FSSA and become an attorney. One of your former clients comes to you for advice because their new caseworker lowered their welfare benefits. You may not assist the person in that matter.

Past Advisory Opinions on the Rule

The Rule: 42 IAC 1-5-14 Post-Employment Restrictions

  1. As used in this section, "particular matter" means any of the following:
    1. an application;
    2. a business transaction;
    3. a claim;
    4. a contract;
    5. a determination;
    6. an enforcement proceeding;
    7. an investigation;
    8. a judicial proceeding;
    9. a lawsuit;
    10. a license;
    11. an economic development project; or
    12. a public works project.
      The term does not include the proposal or consideration of a legislative matter or the proposal, consideration, adoption, or implementation of a rule or an administrative policy or practice of general application.
  2. A former state officer, employee, or special state appointee may not accept employment or receive compensation:
    1. as a lobbyist;
    2. from an employer if the former state officer, employee, or special state appointee was:
      1. engaged in the negotiation or the administration of one (1) or more contracts with that employer on behalf of the state or an agency; and
      2. in a position to make a discretionary decision affecting the:
        1. outcome of the negotiation; or
        2. nature of the administration; or
    3. from an employer if the former state officer, employee, or special state appointee made a regulatory or licensing decision that directly applied to the employer or to a parent or subsidiary of the employer; before the elapse of at least three hundred sixty-five (365) days after the date on which the former state officer, employee, or special state appointee ceases to be a state officer, employee, or special state appointee.
  3. A former state officer, employee, or special state appointee may not represent or assist a person in a particular matter involving the state if the former state officer, employee, or special state appointee personally and substantially participated in the matter as a state officer, employee, or special state appointee, even if the former state officer, employee, or special state appointee receives no compensation for the representation or assistance.
  4. A former state officer, employee, or special state appointee may not accept employment or compensation from an employer if the circumstances surrounding the employment or compensation would lead a reasonable person to believe that:
    1. employment; or
    2. compensation;
      is given or had been offered for the purpose of influencing the former state officer, employee, or special state appointee in the performance of the individual's duties or responsibilities while a state officer, an employee, or a special state appointee.
  5. A written advisory opinion issued by the commission certifying that:
    1. employment of;
    2. consultation by;
    3. representation by; or
    4. assistance from;
      the former state officer, employee, or special state appointee does not violate this section is conclusive proof that a former state officer, employee, or special state appointee is not in violation of this section.
  6. Subsection (b) does not apply to the following:

1.  a special state appointee who serves only as a member of an advisory body.
2.  A former state officer, employee, or special state appointee who has:
A.  not negotiated or administered any contracts with that employer in the two (2) years before the beginning of employment or consulting negotiations with that employer; and
B.  any contract that:
i.  the former state officer, employee, or special state appointee may have negotiated or administered before the two (2) years preceding the beginning of employment or consulting negotiations: and
ii.  is no longer active.

g.  An employee's or a special state appointee's state officer or appointing authority may waive application of subsection (b) or (c) in individual cases when consistent with the public interest. A waiver must satisfy all of the following:
1.  The waiver must be signed by an employee's or special state appointee's:
A.  State Officer or appointing authority authorizing the waiver, and
B.  Agency ethics officer attesting to form.
2.  The waiver must include the following information:
A.  Whether the employee's prior job duties involved substantial decision-making authority over policies, rules, or contracts.
B.  The nature of the duties to be performed by the employee for the prospective employer.
C.  Whether the prospective employment is likely to involve substantial contact with the employee's former agency and the extent to which any such contact is likely to involve matters where the agency has the discretion to make decisions based on the work product of the employee.
D.  Whether the prospective employment may be beneficial to the state or the public, specifically stating how the intended employment is consistent with the public interest.
E.  The extent of economic hardship to the employee if the request for a waiver is denied.
3.  The waiver must be filed with and presented to the commission by the state officer or appointing authority authorizing the waiver.
4.  The waiver must be limited to an employee or special state appointee who obtains the waiver before engaging in the conduct that would give rise to a violation of subsection (b) or (c).

The commission may conduct an administrative review of a waiver and approve a waiver only if the commission is satisfied that the information provided under subdivision (2) is specifically and satisfactorily articulated.  The inspector general may adopt rules under IC 4-22-2 to establish criteria for post employment waivers.
h.  Subsection (b) applies, subject to waiver under subsection (g), to a former state officer, employee, or special state appointee who:
1.  Made decisions as an administrative law judge; or
2.  Presided over information gathering or order drafting proceedings; that directly applied to the employer or to a parent or subsidiary of the employer in a material manner.
i.  A former state officer, employee, or special state appointee who forms a sole proprietorship or a professional practice and engages in a business relationship with an entity that would otherwise violate this section must file a disclosure statement with the commission not later than one hundred eighty (180) days after separation from state service.  The disclosure must:
1.  be signed by the former state officer, employee, or special state appointee;
2.  certify that the former state officer, employee, or special state appointee is not an employee of the entity; and
3.  state in detail the treatment of taxes, insurance, and any other benefits between the entity and the former state officer, employee, or state appointee.
J.  The inspector general may not seek a state elected office before the elapse of at least three hundred sixty-five (365) days after leaving the inspector general position.