[Federal Register: June 6, 1996 (Volume 61, Number 110)]
[Notices]
[Page 28908-28910]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jn96-146]

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OFFICE OF GOVERNMENT ETHICS


Extension and Revocation of Post-Employment Waiver

AGENCY: Office of Government Ethics (OGE).

ACTION: Notice; extension and revocation of waiver.

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SUMMARY: The Office of Government Ethics is giving notice of the
extension, for up to an additional four months (until November 1, 1996
or the effective date of any corrective legislation, if earlier), of a
short-term post-Government employment waiver of certain ``senior
employee'' restrictions it granted earlier this year to position
holders who, but for the pay raise authorized by Executive Order 12984
(or a pay raise tied thereto), would not receive a rate of basic pay
equal to or greater than the rate of basic pay for level V of the
Executive Schedule. This additional extension is provided to allow time
for full consideration of legislation pending in this Congress which
contains a new definition of ``senior employee'' complementary to this
waiver. This shall also serve as

[[Page 28909]]

notice that the waiver is revoked as of the same date.
EFFECTIVE DATE: June 6, 1996.

ADDRESSES: Copies of the OGE Memorandum 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. That document is
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-
208-8000, ext. 1110; FAX: 202-208-8037 (please note the new OGE
telephone and FAX numbers).

SUPPLEMENTARY INFORMATION: 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)).
Executive Order 12984 raised the rate of basic pay for Senior Executive
Service (SES) level 4 to $109,400 per year, an amount greater than the
rate of basic pay for level V of the Executive Schedule, at $108,200
per year. Since the Executive Schedule level V rate of basic pay (which
has not been increased since January 1993) is the threshold level for
``senior employee'' status under 18 U.S.C. 207(c)(2)(A)(ii) of the
post-Government employment conflict of interest statute, the pay raise
would have subjected employees occupying positions at SES level 4, and
other similarly situated positions, to the ``senior employee''
restrictions set forth in 18 U.S.C. 207 (c) and (f).
    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 for six months, until June 30, 1996, from the ``senior
employee'' post-Government employment restrictions of 18 U.S.C. 207 (c)
and (f) to a specified group of executive branch employees. The group
of employees to which OGE 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 had 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. The Office of Government Ethics clarifies that the
waiver also is (and has been) applicable to any otherwise covered
position for which the rate of basic pay is (or was) administratively
determined by an agency, provided that such determination is (or was)
tied to the raise effected by E.O. 12984.
    Thus OGE's waiver, in describing the persons covered by reference
to Executive Order 12984 which dealt in part with the Senior Executive
Service pay raise, directly and expressly covered those holding SES
level 4 positions. In addition, the waiver also covered all other
Federal executive branch personnel similarly situated in different
personnel schedules and systems meeting the above-noted criteria for
coverage under the waiver. The Office of Government Ethics is further
clarifying that, during the period of this waiver from January 1, 1996
until its extended expiration and revocation no later than November 1,
1996, the waiver also covers all persons hired at, promoted into or
otherwise entering an SES level 4 position (but not an SES level 5 or 6
position), or an equivalent level position in another executive branch
schedule/system. Moreover, as to any such persons who leave a position
covered by the waiver during its term of application, the post-
employment waiver from senior employee status becomes permanent--they
will not be subject to the restrictions at 18 U.S.C. 207 (c) and (f).
    The Office of Government Ethics was not required by 5 CFR
2641.201(d) to publish its position waiver (exemption) determination in
the Federal Register. Instead, the January 4, 1996 waiver determination
was disseminated by memorandum and notice on OGE's electronic bulletin
board to the executive branch departments and agencies. The Office of
Government Ethics is required to publish any annual update to the
compilation of exempted positions or categories of positions in
appendix A to 5 CFR part 2641. Thus far, no update has been published
in 1996. Moreover, OGE is also required to publish a 90-day advance
notice of any revocation of a position waiver in the Federal Register.
In accordance with that notice requirement, OGE earlier published a
revocation notice at 61 FR 14326-14328 (April 1, 1996), indicating that
the original six-month waiver would expire and was to be revoked
effective July 1, 1996. The newly extended waiver revocation date
announced in this notice supersedes the waiver revocation date set
forth in the April Federal Register notice.
    In granting the waiver last January, OGE indicated several reasons
for its issuance. In addition to providing adequate notice to about-to-
be newly affected ``senior employees'' as well as their agencies, one
primary reason was to give OGE time to discuss with 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. 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, and those in equivalently compensated positions, have not been
subject to ``senior employee''-level restrictions.
    With regard to the legislative initiative, the bill in the House of
Representatives to reauthorize the Office of Government Ethics (H.R.
3235) now contains a provision that would key ``senior employee''
status under section 207(c)(2)(A)(ii) to employment in a position for
which the basic rate of pay (excluding any locality-based pay
adjustment or comparable adjustment pursuant to interim authority of
the President) is equal to or greater than the rate of basic pay
payable for level 5 of the SES, rather than that for level V of the
Executive Schedule. H.R. 3235 was recently reported out of the House
Committee on the Judiciary.
    Thus, in OGE's view, there is sufficient progress on the above-
noted proposed amendment to section 207 for OGE to extend the January
4, 1996 waiver for up to four more months, beyond the previously
scheduled expiration date of July 1, 1996, until November 1, 1996 at
the latest to allow for the possible passage, signature and
effectiveness of this corrective provision and thereby avoid a gap in
waiver coverage in the interim. If the statutory amendment were to take
effect before November 1, 1996, the terms of the new law would then
govern and this waiver would lapse by operation of law. If not, under 5
CFR 2641.201(d)(4), OGE hereby gives notice that the above-

[[Page 28910]]

referenced post-employment waiver, granted in its January 4, 1996
Memorandum and as extended in this document, will expire and is revoked
effective on November 1, 1996. The Office of Government Ethics will
keep agencies informed of further progress on the legislative
initiative.
    Even if the post-employment law is not amended, executive branch
departments and agencies can still over the next several months
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 (exemption) is warranted with respect to a qualified position or
a category of positions if he finds that 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 exemption would not create the
potential for use of undue influence or unfair advantage based on past
Government service. See 18 U.S.C. 207(c)(2)(C) and 5 CFR
2641.201(d)(5). In light of the pendency of a possible legislative
amendment and because of this extension of the existing waiver, OGE
requests that departments and agencies wait until late summer before
filing any requests for exemption as to SES level 4 and similarly
situated positions which are covered by the current OGE waiver and
which they believe should be permanently exempted based on the
statutory and regulatory criteria.

    Approved: May 22, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
[FR Doc. 96-14199 Filed 6-5-96; 8:45 am]
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