[Federal Register Volume 61, Number 63 (Monday, April 1, 1996)]
[Notices]
[Pages 14326-14328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7661]
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OFFICE OF GOVERNMENT ETHICS
Revocation of Post-Employment Waiver
AGENCY: Office of Government Ethics (OGE).
ACTION: Notice; revocation of waiver.
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SUMMARY: The Office of Government Ethics is giving notice of the
termination, effective in three months, of a short-term post-Government
employment waiver of certain ``senior employee'' restrictions it
granted earlier this year to position holders in Senior Executive
Service (SES) level 4. At the time the waiver was issued, OGE indicated
that it was only a temporary measure to allow affected employees, their
agencies and OGE itself adequate notice of, and time to respond to, the
otherwise sudden imposition of certain senior employee restrictions as
a result of 1996 increases to rates of basic pay.
EFFECTIVE DATE: July 1, 1996.
ADDRESSES: Copies of the OGE materials discussed in the Supplementary
Information section below may be obtained, without charge, by
contacting William E. Gressman, Office of Government Ethics, Suite 500,
1201 New York Avenue, NW., Washington, DC 20005-3917. The materials are
also available on OGE's electronic bulletin board TEBBS (``The Ethics
Bulletin Board Service''). Information regarding TEBBS may also be
obtained from Mr. Gressman.
FOR FURTHER INFORMATION CONTACT: Mr. Gressman at OGE, telephone: 202-
523-5757, ext. 1110; FAX: 202-523-6325.
SUPPLEMENTARY INFORMATION: On January 4, 1996, pursuant to its
authority under 18 U.S.C. 207(c)(2)(C), the Office of Government Ethics
granted a temporary waiver, effective until June 30, 1996, from the
``senior employee'' post-Government employment restrictions of 18
U.S.C. 207(c) and consequently subsection (f) to a specified group of
executive branch employees. Under 5 CFR 2641.201(d) of OGE's post-
employment regulations, a position waiver (exemption) determination is
not required to be published in the Federal Register (the January 4,
1996 waiver determination was not published in the Federal
[[Page 14327]]
Register but was disseminated at that time to the executive branch
departments and agencies.) Rather, there is provision for publication
of any needed annual update to the compilation of exempted positions or
categories of positions in appendix A to part 2641 (no update has been
published thus far in 1996). Moreover, 90-day advance notice of any
revocation of a position waiver, such as is being done in this
document, is required to be published in the Federal Register.
The group of employees granted the waiver last January was
constituted of all executive branch employees whose rate of basic pay
on December 28, 1995 was less than the rate of basic pay payable for
level V of the Executive Schedule and who as a direct result of
Executive Order 12984, or any other Executive order or statute the
terms of which are tied to the pay raise effected through that
Executive order, would have their basic rate of pay increased to an
amount equal to or greater than the rate of basic pay for level V of
the Executive Schedule and whose position would then be described in 18
U.S.C. 207(c)(2)(A)(ii). See OGE's January 4, 1996 Memorandum (# DO-96-
001) to heads of agencies, designated agency ethics officials and
inspectors general.
On December 28, 1995, President Clinton signed Executive Order
12984, ``Adjustments of Certain Rates of Pay and Allowances.'' See 61
FR 237-246 (part III of the January 3, 1996 issue), as amended by E.O.
12990 of February 29, 1996 as to the uniformed services (see 61 FR
8467-8470 (March 5, 1996 issue)). Under Executive Order 12984, one
effect of the pay raise, which was to take effect as early as January
7, 1996, was to make the rate of basic pay for Senior Executive Service
level 4 (ES-4), at $109,400 per year, greater than the rate of basic
pay for level V of the Executive Schedule, at $108,200 per year (the
latter not having been increased since January 1993).
Thus, under the definitional provisions of the post-Government
employment conflict of interest statute, 18 U.S.C. 207(c)(2)(A)(ii),
employees at SES level 4, without any accretion in duties or
responsibilities, were to become ``senior employees'' for purposes of
section 207 and hence subject to more restrictive post-employment
prohibitions. The ES-4 employees, the significantly large middle level
of the SES who represent over 40% of the SES workforce, would thus have
quickly become subject to the one-year ``cooling off'' restrictions at
section 207(c) and the foreign entities restrictions at section 207(f),
which apply to, inter alia, persons subject to section 207(c)
restrictions. Further, this development was unrelated to the purposes
underpinning the more restrictive post-employment prohibitions for
higher-level ``senior employees.'' Instead, the impact on SES level 4
positions arose only from the combined effect of the Congressional
freeze on Executive Schedule level V basic pay and E.O. 12984, and not
an increase in level of responsibility.
Under 18 U.S.C. 207(c), a former ``senior employee'' of the
executive branch is prohibited from making certain communications or
appearances of behalf of another before an employee of a department or
agency in which the former senior employee served in any capacity
during the one-year period prior to his termination from a ``senior''
position. In addition, under 18 U.S.C. 207(f), for one year after
service in a ``senior'' position terminates, no ``senior employee'' may
knowingly, with the intent to influence a decision of an employee of a
department or agency of the United States in carrying out his official
duties, represent a foreign entity before any department or agency of
the United States or aid or advise a foreign entity (defined as a
government of a foreign country or a foreign political party). See the
OGE Memorandum of December 19, 1995 (# DO-95-045) to designated agency
ethics officials.
In its January 4, 1996 Memorandum, OGE noted that new post-
employment restrictions have historically not taken effect without some
notice to employees and agencies. Such notice permits employees to make
any needed career adjustments and also allows agencies to plan for any
resultant personnel changes. Last January, the very brief time frames
of the impending pay and consequent post-employment changes,
exacerbated by the extensive furloughs then prevailing, resulted in
very little, if any, effective notice to affected employees and
agencies. In these circumstances, OGE determined that the grant of a
six-month waiver for the about-to-be newly affected employees, the SES
level 4 incumbents, across the entire executive branch was appropriate.
In a related development, the White House Counsel, at the direction
of the President, informed all executive departments and agencies in a
January 5, 1996 Memorandum that Executive Order 12834 on post-
employment ethics pledges for certain senior officials did not apply to
employees paid at level 4 of the SES. See OGE's January 11, 1996
Memorandum (# DO-96-002) to designated agency ethics officials
forwarding a copy of the White House Memorandum.
The Office of Government Ethics had three reasons for granting the
January 4, 1996 short-term post-employment waiver. First, as noted, the
six-month waiver period granted was intended to give affected employees
fair notice of the otherwise sudden imposition of the section 207 (c)
and (f) restrictions (the exemption will become permanent as to any
such employee who leaves a senior employee position covered by the
waiver before the waiver terminates on July 1, 1996). Second, this
grace period, which continues through the end of June of this year,
allows executive branch departments and agencies time, in addition to
other personnel planning, to consider and prepare, if appropriate,
requests for the long-term exemption of individual positions or
categories of positions to be submitted to OGE for consideration
pursuant to 5 CFR 2641.201(d)(3) of OGE's post-Government employment
regulations. Under the statute and OGE's implementing regulations, the
OGE Director may determine that a waiver is warranted with respect to a
qualified position or a category of positions if the imposition of the
restrictions with respect thereto would create an undue hardship to the
department or agency concerned in obtaining qualified personnel to fill
the position(s) and that granting the waiver would not create the
potential for use of undue influence or unfair advantage. See 18 U.S.C.
207(c)(2)(C) and 5 CFR 2641.201(d)(5).
The third reason for OGE's short-term waiver earlier this year was
that the six-month waiver period would give OGE time to discuss with
the Congress any possible changes to 18 U.S.C. 207 that would take into
consideration the effect of pay compression on the applicability of
post-employment restrictions. As noted above, one underlying concept of
the post-employment restrictions is that the more severe restrictions
should only apply to those serving in the most senior career and
political positions. The Office of Government Ethics has seen no
evidence that the goals of the post- employment restrictions have not
been properly met since the new post-employment law took effect in
1991, during which time those at SES level 4 have not been subject
``senior employee''-level restrictions.
Under section 207(c)(2)(A)(ii), the term ``senior employee''
includes any employee who is employed in a position not under the
Executive Schedule (see 5 U.S.C. 5311-5318), including the Senior
Executive Service, for which the basic rate of pay, exclusive of any
locality-based pay adjustment under 5 U.S.C. 5302 (or any comparable
adjustment pursuant to interim
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authority of the President), is equal to or greater than the rate of
basic pay payable for level V of the Executive Schedule. Based on these
considerations, OGE has now, with the clearance of the Office of
Management and Budget, suggested to Congress that the section
207(c)(2)(A)(ii) be amended so that ``senior employee'' status
thereunder would be triggered by the rate of basic pay for level 5 of
the Senior Executive Service, rather than the rate of basic pay for
level V of the Executive Schedule. The Office of Government Ethics will
keep agencies informed of any progress on this legislative initiative.
Under 5 CFR 2641.201(d)(4), OGE hereby gives notice that the above-
referenced post-employment waiver, granted in its January 4, 1996
Memorandum, will expire and is revoked effective on July 1, 1996.
Approved: March 25, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
[FR Doc. 96-7661 Filed 3-29-96; 8:45 am]
BILLING CODE 6345-01-P
