5 C.F.R. Part 2636: Limitations on Outside Earned Income, Employment and Affiliations for Certain Noncareer Employees
Text of Regulation
5 C.F.R. part 2636 interprets and implements provisions in 5 U.S.C. app. 4 §§ 501-505 applicable to certain noncareer employees. More specifically, it implements the 15 percent outside earned income limitation at 5 U.S.C. app. 4 § 501(a) and the limitations at 5 U.S.C. app. 4 § 502 on outside employment and affiliations. Review the rulemaking history of 5 C.F.R. part 2636.
Note: When initially published in 1991, Part 2636 included provisions implementing the honoraria ban at 5 U.S.C. app. 4 § 501(b). However, in National Treasury Employees Union v. United States, 513 U.S. 454 (1995), the U.S. Supreme Court overturned the honoraria ban as to most executive branch employees. Subsequently, the Department of Justice determined that because of the scope of the Supreme Court decision, the statutory honoraria ban was inoperative as to all Government employees. Accordingly, in 1998, OGE published a rulemaking that removed from Part 2636 that portion of the regulation that had implemented the honoraria ban. The 1998 rulemaking also removed a provision requiring the confidential reporting of information about payments to charitable organizations in lieu of honoraria, a requirement that would have implemented 5 U.S.C. app 4. § 501(c) but that never became effective. To date, Subpart B of the regulation remains "reserved."
Brief Summary of 5 C.F.R. Part 2636
Subpart A – General Provisions
Subpart A establishes the framework for the rest of the regulation. It includes definitions, addresses enforcement and penalties, and implements the statutory provision, at 5 U.S.C. app. 4 § 504(b), concerning advisory opinions.
Subpart B [Reserved]
Subpart C – Outside Earned Income Limitation and Employment and Affiliation Restrictions Applicable to Certain Noncareer Employees
Subpart C warns that some Presidential appointees are subject to an outside earned income ban, defines additional terms (including "covered noncareer employee"), and contains provisions explaining the 15 percent outside earned income limitation and the limitations on outside employment and affiliations in 5 U.S.C. app. 4 §§ 501(a) and 502:
- Section 2636.304 describes the statutory provision in 5 U.S.C. app. 4 § 501(a) that prohibits a covered noncareer employee from receiving, in any calendar year, outside earned income attributable to that calendar year which exceeds 15 percent of a specified dollar threshold.
- Sections 2636.305-307 describe the statutory provisions in 5 U.S.C. app. 4 § 502. Under those provisions, a covered noncareer employee may not:
- receive compensation for practicing a profession which involves a fiduciary relationship;
- receive compensation for affiliating with or being employed to perform professional duties by an entity which provides professional services involving a fiduciary relationship; or
- permit the use of the employee's name by an entity which provides professional services involving a fiduciary relationship;
- receive compensation for serving as an officer or member of the board of an entity; or
- receive compensation for teaching without having first obtained advance authorization.