Post-separation employment

Post-separation employment is the situation where a public official leaves the public sector and obtains employment in the private sector. The principle underlying the management of post-separation employment is the need to ensure that public sector decisions are made only on their merits and not compromised by extraneous considerations or personal interests. The Department of Premier and Cabinet Personnel Handbook refers to this issue in Section 8-12:

Employees should not use their position to obtain opportunities for future employment. They should not allow themselves or their work to be influenced by plans for, or offers of, employment outside the department.  

The type of employment which may be cause for concern is that which bears a close or sensitive relationship with the person's former position as a public official. Examples might be regulators who go to work in an industry they formerly regulated, an adviser or chief executive who resigns from the public service to work in the private sector in the area of his or her former expertise, or a former government minister who obtains work as a political lobbyist.

The risk of corruption is higher if the post-separation work involves contact with the former department, colleagues, or staff of the former public official. For the most part former public officials have no restrictions imposed on the type of employment they can obtain after they leave the public sector, and many post-separation employment problems only emerge after the public official has left public sector employment.

Corrupt conduct related to the post-separation employment of a public official can occur either before or after the official leaves public employment.


Corruption risks

A risk assessment of the management of post-separation employment is likely to identify some or all of the following corruption risks:

  • A current public official using their position to obtain an advantage for their future employment.  
  • A former public official attempting to influence former colleagues to make decisions that favour their new employment or private business.
  • A former public official establishing their own business in the same field as the public agency and approaching the agency's clients for business, using confidential information gained from the agency.
  • A former public official becoming a lobbyist for a private organisation or specialist group and trying to gain confidential information or favourable treatment from former colleagues.        
  • A current public official stealing information, intellectual property, or other resources to develop their own business and/or to enhance employment prospects with other agencies and organisations.

 

Managing corruption risks

As a minimum your agency should:

  • Introduce policy and procedures for allocating resources to clients which contains elements listed in the Policy Development Guide and Checklist (see Tips and tools below).
  • Include in the policy sanctions for any breach of the policy and procedures.
  • Review the policy every two years.
  • Refer to the management of post-separation employment in relevant corporate documents such as codes of conduct.
  • Train all relevant employees in the policy and procedures to ensure they are aware of their accountabilities and responsibilities.
  • Include the management of post-separation employment as a risk to be assessed in the agency's internal audit and corruption risk management processes.
  • Include the obligation to protect confidential information as a condition of the employment of new employees and ensure this is reflected in the agency's code of conduct.

 

Risk management strategies

Following your risk assessment of post-separation employment you should consider these risk management strategies:

  • Protecting the agency's information by:
    • Assigning all agency documents a security rating that is recorded on all printed and electronic copies and  denotes their accessibility.
    • Maintaining a record of who has access to confidential information with an audit trail to monitor this access.  
    • Keeping a record, as part of the agency's exit processes and protocols, of the return of all agency resources allocated to departing employees.
  • Managing external relationships by:
    • Including information about post-separation employment in the agency's statement of business ethics.    
    • Including a specific statement in the agency's code of conduct about the ethical issues and corruption risks raised by post-separation employment and stating the restrictions on employees.
    • Requiring employees to advise the agency when they are contemplating leaving the public sector for employment that may have a sensitive relationship to their work as a public official.  
    • Considering implementing "cooling off periods" for positions where it is likely that public officials may take up employment in businesses that have a close or special relationship to their former roles as public officials.
    • Requiring current employees to conduct their official dealings with former colleagues at arm's length, for example former employees who tender for contracts with the agency.
    • Requiring current employees to report all non-routine contacts by their former colleagues which involves attempts to influence or lobby the remaining employees.

 
Case studies

Case study 1
A former officer in a council's health and sanitation department established his own commercial waste facility shortly after leaving his council position. This new business competed directly with council. During social calls to his former colleagues the former officer also requested information about any new or upcoming council tenders for waste disposal. These officers informed the general manager about the contact and request from their former colleague.  

The council also learned that this former officer had approached one of the council's long-term clients indicating that he knew the price of the client's contract with council, and offering services at a lower price. The council provided guidance to employees about dealing with former employees in the course of their duties, and the corruption risks arising from post-separation employment.
Case study 2
In November 2002 the then NSW Minister for Gaming and Racing announced that he would not be standing for the next state election. A media release he issued said he believed he would be able to use his experience and expertise in the liquor, racing and gaming industries and the region of NSW where he had been the elected member for several years.  

As a Member of Parliament, the Minister was provided a fully-equipped and staffed office in order to perform his parliamentary duties. An ICAC investigation found that he  had misused these resources to establish a consultancy business he proposed to operate after his retirement from Parliament.

The ICAC's recommendations included that the Government introduce rules to restrict the range of employment that ministers can take up immediately after leaving office.

 

Frequently asked questions

Aren't the risks from post-separation employment only relevant to agencies that do a lot of work with the private sector?  

Most agencies have frequent contact with the private sector whether to purchase goods and services from private businesses or to provide public services to individuals and businesses. The agency's statement of business ethics or other information for external contacts can include an explanation of the requirements on public officials to maintain a professional distance from those they deal with in the course of their work.   

Which positions in the agency should attract special rules or cooling off periods?   

Statutory cooling-off periods generally only apply where there is significant risk and it is important to reassure the public that the question of improper influence is taken seriously. Restrictions should be commensurate with the degree of risk to the agency.     

The positions most at risk include key executives, technical specialists, procurement staff, and those positions with access to confidential information or strategic plans or in business relationships with potential employers.  Employees in regulatory roles - such as inspecting, auditing or investigating – can be particularly exposed to attempts to influence them with possible future employment. Employees that are in a position to leave an agency to work as lobbyists are particularly at risk. 

How much time should elapse before a former public official can engage in similar business?

There is no specific timeframe. Agencies should be guided by the level of risk attached to the position. The regulatory requirements range from 12 months up to four years before a person leaving a public position can take up a position directly related to, and likely to utilise the experience and contacts gained in, the former position.

What can agencies do if there are no statutory provisions that apply to their employees?     

Your agency may be able to impose some restrictions using your employees' contracts of employment. You can also introduce policies and protocols that control the extent and type of contact that current employees have with former employees in occupations that may present a risk to the agency.

Resources

Other publications

  • Personnel Handbook, Public Service Commission NSW
     
  • The Model Code of Conduct for local councils, NSW Division of Local Government
  • NSW Lobbyists Code of Conduct. Memorandum M2014-13, NSW Department of Premier and Cabinet
     
  • Behaving Ethically: A guide for NSW government sector employees, Public Service Commission NSW
  • APS Values and Code of Conduct in Practice – Section 4: Personal Behaviour, Australian Public Service Commission, Chapter 12: Post Separation Employment
  • Public duty: private interests: Issues in pre-separation conduct and post-separation employment in the Queensland public sector. A report arising from the investigation into the conduct of former Director-General Scott Flavell, Crime and Misconduct Commission, Brisbane, December 2008.
     

Legislation

There is no overarching legislative framework in NSW to manage the risks of corruption arising from post-separation employment but the following legislation contains some relevant provisions:

  • The Local Government Act 1993, section 354 places restrictions on the employment of former mayors and councillors
  • Casino Control Act 1992, section 147

 

Relevant websites

 

Related topics on the ICAC website

 

Tips and tools

  • Managing Conflicts of Interest in the public sector – Guidelines and Toolkit, ICAC and Crime and Misconduct Commission (Queensland), Sydney & Brisbane, November 2004.