CPM 2004-01

January 6, 2004

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

As a follow-up to my memorandum of December 16, 2003, concerning the new performance-based pay system for the Senior Executive Service (SES) (CPM 2003-19), I am providing additional guidance on the new salary-based threshold for determining the applicability of certain post-employment conflict of interest restrictions to SES members. Under current law, those restrictions, as set forth in 18 U.S.C. 207(c), cover SES members paid at levels ES-5 and ES-6. However, effective on the first day of the first applicable pay period beginning on or after January 1, 2004 (January 11, 2004, for most employees), those restrictions will cover the following categories of employees:

• Any individual whose rate of basic pay is equal to or greater than 86.5 percent of the rate for level II of the Executive Schedule (i.e., equal to or greater than $135,805); and

• Any individual who, as of the day before November 24, 2003 (the date of enactment of Public Law 108-136, the National Defense Authorization Act for Fiscal Year 2004) was paid at a rate of basic pay, exclusive of any applicable locality-based comparability payment, equal to or greater than the rate of basic pay for ES-5 (i.e., $134,000).

The Administration is considering a technical amendment to the statute. However, unless and until the law is changed, the number of SES members subject to these post-employment restrictions will increase substantially.

The new law requires that an individual who becomes subject to these post-employment restrictions must receive written notification of such coverage. In consultation with the Office of Government Ethics (OGE) and the Department of Justice, the Office of Personnel Management (OPM) will issue regulations regarding this notification requirement as soon as possible. Until then, we ask that you identify those SES members who will be covered by these restrictions as of January 11, 2004, and provide notice to them as soon as possible. We have attached sample notices which you may use for this purpose.

In addition, agencies should document such post-employment restrictions coverage for affected SES members using remarks code "M97" on the SF-50 effecting their conversion to the new SES pay system. Additional guidance on processing the personnel actions necessary to convert all SES members to the new SES pay-for-performance system will be issued by OPM in the near future.

For additional guidance, agency Chief Human Capital Officers and Human Resources Directors should contact the Center for Leadership & Executive Resources Policy on (202) 606-1050. Questions from agencies' legal counsel should be directed to Mark A. Robbins, OPM's General Counsel, at (202) 606-1700. Staff inquiries should be referred to the appropriate OPM Human Capital Officer.

cc: President's Management Council
Chief Human Capital Officers
Human Resources Directors

• Attachment: Sample Notices of Post-Employment Restrictions