[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Notices]
[Pages 28908-28910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14199]



=======================================================================
-----------------------------------------------------------------------

OFFICE OF GOVERNMENT ETHICS


Extension and Revocation of Post-Employment Waiver

AGENCY: Office of Government Ethics (OGE).

ACTION: Notice; extension and revocation of waiver.

-----------------------------------------------------------------------

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]
BILLING CODE 6345-01-U