Following are portions of a new OPM guide to the presidential transition process that pertain to career federal employees.
Federal Employees Seeking Non-Federal Employment
Pursuant to 18 U.S.C. 208, executive branch employees are generally prohibited from performing work in their Government jobs on matters that would affect the financial interest of someone with whom they are negotiating for employment. The Standards of Ethical Conduct for Executive Branch Employees [5 CFR part 2635] have a similar rule that applies even before back-and-forth negotiations begin, and may apply even when an employee has only sent a résumé to a prospective employer. Participation in some procurement matters can subject employees to additional requirements relating to private employment contracts.
In accordance with the Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act), any employee who is required to file a public financial disclosure report must file a signed notification statement with his or her agency ethics official within three business days after commencing negotiations or entering into an agreement with a non-Federal entity to accept post- Government employment or compensation. The statement must identify the entity and specify the date the negotiations or agreement commenced. A public filer must also document his or her disqualification from any particular matter that would have a direct and predictable effect on the financial interests of the entity and submit that signed disqualification document to his or her agency ethics official.
Employees should be careful not to misuse Government resources (such as official time, the services of other employees, equipment, supplies, or restricted information) in connection with job-seeking. After an employee has accepted a job outside the Government, he or she must continue to refrain from working on matters in his or her Government job that would affect the financial interest of the future employer.
If an agency offers outplacement services to all its employees, departing noncareer employees may use these services. However, an agency may not establish outplacement services for noncareer employees only.
There are certain restrictions on employees after their separation from Government service.
Generally, these restrictions apply to representational activities, and their application varies depending on the employee’s duties and level of authority [18 U.S.C. 207]. Additional restrictions were imposed by Executive Order 13490. Information on these restrictions may be accessed at the Office of Government Ethics website (www.oge.gov) including, FAQs on Post- Employment Under the Ethics Pledge. Agency ethics officials are also available to provide more specific advice on post-employment restrictions before and after Government service.
Protecting Federal Records from Unauthorized Removal
National Archives and Records Administration (NARA) guidance reminds heads of Federal agencies that official records must remain in the custody of the agency. Federal officials should be aware that there are criminal penalties for the unlawful removal or destruction of Federal records [18 U.S.C. 2071] and the unlawful disclosure of national security information [18 U.S.C. 793, 794, and 798]. Departing Federal officials should contact their agency records officer if they have questions about maintaining and disposing of records and extra copies of records.
Agency records officers should have copies of Documenting Your Public Service and Agency Recordkeeping Requirements, two NARA publications that address records creation and maintenance procedures and distinguishing between records and personal documentary materials. These publications are available on the NARA website at http://www.archives.gov/records-mgmt/policy/documenting-your-public-service.html and at http://www.archives.gov/records-mgmt/policy/agency-recordkeeping-requirements.html, respectively. NARA records management regulations address the identification and protection of Federal records and are also accessible at 36 CFR Chapter XII, Subchapter B.
Details to the Transition Team
The Presidential Transition Act of 1963, as amended, establishes the transition team as a Federal entity to provide for the orderly transfer of power between administrations [3 U.S.C. 102 note].
In addition to providing that the transition team may hire its own staff, the Act provides for the detail of Federal employees to the transition team after the November election as follows:
• Any employee of any agency of any branch of the Government may be detailed to the office staff of either the President-elect or the Vice President-elect.
• The employee must be detailed on a reimbursable basis, and the detail must be with the consent of the lending agency head.
Overlapping in Key Positions
Agencies cannot employ two individuals in the same position at the same time (“dual incumbency”). However, to provide continuity in key positions and meet other transition needs, agencies can use the following options: • When an incumbent’s intention to leave has been documented, an agency may establish a different position to employ a designated successor for a brief period pending the incumbent’s departure. For example, when an office director is leaving, the agency may establish a temporary special assistant position for a short period to facilitate orientation of the incoming director to the office’s operations.
• OPM may authorize the use of SES limited appointment authorities for short periods of time for temporary executive positions. [5 CFR 317.601(c)(2)] • Agencies may also establish temporary transitional Schedule C positions for similar nonexecutive positions to help with transitions. [5 CFR 213.3302]
Suspension of Processing of SES Candidates
In accordance with 5 CFR 317.502(d), OPM will suspend processing of an agency’s SES Qualifications Review Board (QRB) cases when the agency’s head departs or announces his or her departure. This is done to provide the incoming head of that agency with a full opportunity to exercise his or her prerogative to make or approve executive resource decisions that will affect the agency’s performance during his or her tenure. To that end, OPM will impose a moratorium on the processing of a particular agency’s SES QRB cases when the head of that agency departs for any reason, effective immediately upon the effective date of his or her departure. A QRB moratorium will also be imposed when the head of an agency announces his or her intention to leave that office, effective immediately upon that announcement.
While a QRB moratorium is intended to preserve the prerogatives of an incoming agency head, this must be balanced against the need for continuity of agency operations during such transitions. Accordingly, OPM will consider requests for exceptions to an agency’s QRB moratorium on a case-by-case basis. Requests for exceptions should be signed by the agency head or the official who is designated to act in the agency head’s absence and must specifically address the potential for adverse impact on national security, homeland security, or critical agency mission, program, or function if a particular SES candidate is not immediately considered for certification.
Moratorium on SES Career Reassignments
Agencies may reassign SES career appointees to any SES position in the agency for which they are qualified, following a 15-day advance written notice for a reassignment that does not require a geographical move. Consultation with the executive, followed by 60 days’ advance written notice, is required for a reassignment that includes a geographical move.
However, when there are changes in agency political leadership, the law provides for a 120-day moratorium on involuntary reassignments of career SES appointees. Career executives are always prepared to serve new leadership. Balancing continuity and change is the fundamental responsibility of the senior executive. The moratorium was established to prevent peremptory reassignments by new appointees without adequate knowledge of the career executives. An SES career appointee may not be involuntarily reassigned within 120 days of the appointment of a new agency head (including recess appointment) or within 120 days after the appointment of a career appointee’s new noncareer supervisor who has the authority to make that career appointee’s initial performance appraisal. A voluntary reassignment during the 120-day period is permitted, but the appointee must agree in writing before the reassignment.
The appointment of a new agency head always starts a 120-day moratorium. Another official may not take a reassignment action, even if that official has been in office more than 120 days.
If a moratorium results from appointment of a new noncareer supervisor, the agency head may not take an involuntary reassignment action, even if the agency head has been in office more than 120 days.
Designating an “acting” agency head or noncareer supervisor (e.g., by a detail or when a deputy acts in the position) is not the same as making an appointment. Therefore, the statutory moratorium does not come into play. However, the agency, at its discretion, may choose to apply the moratorium in such situations. In this case, if the “acting” individual later receives a permanent appointment to the position without a break in service, time spent under the agencyimposed moratorium counts toward the 120-day moratorium initiated by the permanent appointment.
In calculating the 120-day moratorium, any days (not to exceed a total of 60) during which the career appointee is serving on a detail or other temporary assignment apart from the appointee’s regular position are not counted. However, the moratorium provision does not restrict the total length of a detail; i.e., it may exceed 60 days. [See 5 U.S.C. 3395; 5 CFR part 317, subpart I].
Career Appointees Who Accept Presidential Appointments
Presidential appointees are among the executives subject to change in a new administration.
However, a former SES career appointee who was appointed by the President to a civil service position outside the SES without a break in service, and who leaves the Presidential appointment for reasons other than misconduct, neglect of duty, or malfeasance, is entitled by law to be reinstated to the SES. If not voluntarily reinstated through direct negotiations with an agency, the former career appointee may apply to OPM up to 90 days after separation for a directed reinstatement. [See 5 U.S.C. 3593(b) and 5 CFR 317.703.]