Agency Relationships With Organizations Representing Federal Employees and Other Organizations

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.

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

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