[Federal Register: January 15, 1998 (Volume 63, Number 10)]
[Rules and Regulations]
[Page 2305-2306]

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 251

RIN 3206-AH72

Agency Relationships With Organizations Representing Federal
Employees and Other Organizations

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations governing agency relations with managerial, supervisory,
professional, and other organizations that are not labor organizations.
These regulations will permit greater employee representation of
employee organizations under certain circumstances.

EFFECTIVE DATE: January 15, 1998.

FOR FURTHER INFORMATION CONTACT: Lorraine Lewis, General Counsel, U.S.
Office of Personnel Management, Office of the General Counsel, 1900 E
Street, NW., Washington, DC 20415-0001, Telephone: (202) 606-1700, FAX:
(202) 606-2609.

SUPPLEMENTARY INFORMATION:

I. Background

    OPM published in the Federal Register on April 22, 1997, at 62 FR
19525, proposed regulations on agency relationships with organizations
representing Federal employees and other organizations. These
regulations reflected a provision of the Federal Employee
Representation Improvement Act of 1996 which modified the 18 U.S.C.
Sec. 205 restrictions to permit employee representation of employee
organizations under certain circumstances. The Federal Employee
Representation Improvement Act of 1996; Pub. L. 104-177, 110 Stat.
1563, August 6, 1996.
    As amended, 18 U.S.C. Section 205(d)(1)(B) allows a Federal officer
or employee, if not inconsistent with the performance of his or her
duties, to represent without compensation a non-profit cooperative,
voluntary, professional, recreational or similar organization if a
majority of the organization's or group's members are Government
officers or employees or their spouses or dependent children.
    Subsection (d)(2) of amended Section 205 sets forth the
circumstances in which a Federal employee may not act as agent or
attorney representing an employee organization. There are three
situations in which an employee is prohibited from representing the
views of the organization or group. The first situation prevents
employee representation when the subject of the representation is a
claim against the United States. 18 U.S.C. Sec. 205(d)(2)(A). The
second situation prohibits the prescribed action during a judicial or
administrative proceeding where the organization or group is a party.
18 U.S.C. Sec. 205(d)(2)(B). The third situation expressly disallows
Federal employees from requesting grants, contracts or Federal funds on
behalf of an employee organization. 18 U.S.C. Sec. 205(d)(2)(C).
Accordingly, paragraph (f) of the Part 251 regulation is being revised
to reflect the new law.
    The proposed rule requested comments and prescribed a 60-day
comment period. OPM received four comments on the proposed rule, three
by public interest organizations and one by a Federal department. The
four comments were timely. OPM has carefully considered the points made
in the comments and reviewed the entire Part 251 regulation and
relevant portions of the Federal Employee Representation Improvement
Act of 1996. OPM has decided to make no change to the proposed rule.

II. Summary of Comments

    The three public interest organizations that commented on the
proposed rule expressed concern that as currently written it may tend
to discourage Federal employees from exercising representation rights
they may have. It is suggested that the language of the proposed rule
is unnecessarily negative in tone and gives the appearance that its
primary purpose is to caution Federal employees against serving as
representatives for organizations other than labor organizations. The
Federal department that commented on the proposed rule asserts that the
third situation set out in the supplementary information portion of the
proposed rule in which an employee is still prohibited from
representing the views of the organization or group is not altogether
clear.

III. Analysis of Comments

    The three public interest organizations that commented on the
proposed rule were concerned that the language of the rule is
unnecessarily negative in tone and could have the effect of
discouraging Federal employees from serving as representatives for
organizations under the terms and conditions of the proposed rule. It
is suggested that the regulation focuses on the remaining restrictions
in 18 U.S.C. Sec. 205 and gives the appearance that its primary purpose
is to caution Federal employees against serving as representatives for
organizations. When the 5 CFR part 251 regulations were first
published, they provided for the new statutory exception and contained
a reference in 5 CFR 251.101(f) to the 18 U.S.C. Sec. 205 restrictions
which remained. 60 FR 51371-51373, October 2, 1995. The intent was to
caution Federal employees and make them aware that this authority
exists and restricts them under certain circumstances from representing
organizations before Federal agencies. In the Supplementary Information
to the final rule OPM responded to a commenter who took issue with the
inclusion of subpart (f):

    OPM is bound by the Department of Justice's interpretation of 18
U.S.C. Sec. 205 and it would be improper for the regulation to
authorize employees to represent non-labor organizations as part of
their official duties. Indeed, it was out of concern that some
officials might misconstrue these regulations as authorizing
dealings with employee representatives of non-labor organizations
without regard to 18 U.S.C. Sec. 205 as interpreted by the
Department of Justice that OPM included the cautionary note of
section 251.101(f). Should a law be passed making the cautionary
note unnecessary, OPM will modify its regulations. 61 FR 32914, June
26, 1996.

    The Federal Employee Representation Improvement Act of 1996; Public
Law

[[Page 2306]]

104-177, 110 Stat. 1563, August 6, 1996, modifying the 18 U.S.C.
Sec. 205 restrictions to permit employee representation of employee
organizations under certain circumstances, prompted OPM to modify its
final rule regarding 5 CFR part 251.
    OPM, in its proposed rule, captures the essence of that relaxed
restriction, while noting that subsection (d)(2) of amended Section 205
sets forth the circumstances in which a Federal employee may not act as
agent or attorney representing an employee organization. It would be
misleading to exclude the restrictions the law maintains, especially
since violations of the Section 205 restrictions subject individual
employees to the civil and/or criminal penalties set forth in 18 U.S.C.
Sec. 216.
    The Federal department commented on the third restriction set forth
in the amendment and reflected in the supplementary information portion
of the proposed rule. The commenter suggested that the third situation
which disallows Federal employees from requesting grants, contracts or
Federal funds on behalf of an employee organization is not clear in the
supplementary information portion of the proposed rule. It is suggested
that the language does not make clear whether an employee could
negotiate with a Federal agency on behalf of an organization over the
terms of a contract. The commenter points out that a review of the law
and the legislative history make it clear that the restriction is meant
to apply only when the contract involves the expenditure of Federal
funds. For example, an employee could represent a day-care center in
the day-care center's rent, but the employee could not represent the
center in the center's application for a grant from the U.S. Department
of Education.
    We agree with the commenter that the restriction on representation
remains for any matter that ``involves a grant, contract, or other
agreement (including a request for any such grant, contract, or
agreement) providing for the disbursement of Federal funds to the
organization or group.'' Federal Employee Representation Improvement
Act of 1996, Public Law 104-177, Sec. 2(d)(2)(C). The relevant
legislative history states: ``[d]ue to limited Federal resources,
employee organizations should be on the same footing as other[s]
looking for Federal funds.'' House Report No. 104-230, August 4, 1995.
OPM believes, however, that the language in the supplementary
information of the proposed regulations is clear and does not need
modification.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it will only
affect Federal Government employees and non-labor organizations
representing such employees.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 251

    Government employees.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM is amending 5 CFR part 251 as follows:

PART 251--AGENCY RELATIONSHIPS WITH ORGANIZATIONS REPRESENTING
FEDERAL EMPLOYEES AND OTHER ORGANIZATIONS

    1. The authority citation for part 251 continues to read as
follows:

    Authority: 5 U.S.C. Sec. 1104; 5 U.S.C. Chap 7; 5 U.S.C.
Sec. 7135; 5 U.S.C. Sec. 7301; E.O. 11491.

    2. In Sec. 251.101, paragraph (f) is revised to read as follows:

Sec. 251.101  Introduction

* * * * *
    (f) Federal employees, including management officials and
supervisors, may communicate with any Federal agency, officer, or other
Federal entity on the employee's own behalf. However, Federal employees
should be aware that 18 U.S.C. 205, in pertinent part, restricts
Federal employees from acting, other than in the proper discharge of
their official duties, as agents or attorneys for any person or
organization other than a labor organization, before any Federal agency
or other Federal entity in connection with any matter in which the
United States is a party or has a direct and substantial interest. An
exception to the prohibition found in 18 U.S.C. 205 permits Federal
employees to represent certain nonprofit organizations before the
Government except in connection with specified matters. Agency
officials and employees are therefore advised to consult with their
designated agency ethics officials for guidance regarding any conflicts
of interest that may arise.

[FR Doc. 98-974 Filed 1-14-98; 8:45 am]
BILLING CODE 6325-01-P