OFFICE OF GOVERNMENT ETHICS

                          81 x 6

Letter to an Agency General Counsel dated February 18, 1981


     This is in response to your request of February 4, 1981, for
our opinion on the question whether section 210 of Title II of the
Ethics in Government Act of 1978 applies to a commissioned Class
2 member of the Foreign Service.

     You have indicated that the affected officials are promoted
from class to class upon nomination by the President, by and with
the advice and consent of the Senate.  Appointments and promotions
are not to individual positions but to a class.  Appointments and
promotions are routinely handled by the Senate, and confirmation
hearings are not held except in the most rare instances.  The
affected officials are compensated at the rate of GS-16 or above. 
The Foreign Service pay rate equivalent of GS-16 is Class 2.

     For the reasons advanced below, we have concluded that
section 210 of Title II of the Ethics in Government Act of 1978
does not apply to career commissioned Class 2 officers of the
Foreign Service.

     As originally proposed, the so-called "Ashbrook Amendment"
would have extended the coverage of the 15 percent outside earned
income rule to all employees of the executive branch who are
compensated at a pay grade in the General Schedule of Grade 16 and
above.  The original amendment, however, was further narrowed by
a modification offered by Congressman Frenzel.  Under the Frenzel
modification the outside earned income limitation would apply only
to executive branch employees who are subject to appointment by
the President on the advice and consent of the Senate.
     At the time he offered the modification, Congressman Frenzel
indicated that the effect of the modification would restrict
coverage of the Ashbrook Amendment from about 14,000, as it was
originally offered, to about 750 of the key presidentially
appointed policymakers.  Congressman Frenzel's modification was
enacted without change.

     It can be discerned from this dialogue, which occurred on the
floor of the House of Representatives, that it was the intent of
the Congress to limit the outside earned income rule to those key
presidentially appointed policymakers whose positions appear in
the Presidential Personnel Appointments File maintained by the
Executive Office of the President.  Clearly, if career
commissioned Class 2 officers of the Foreign Service were to be
included in the class, a figure much larger than 750 would have
been mentioned by Congressman Frenzel at the time that he
introduced his modification to the amendment.

     Our opinion does not address any limitations to outside
earned income which may be included in current Standards of
Conduct Regulations which are uniquely applicable to [your
agency].

                                Sincerely,

                                J. Jackson Walter
                                Director