David R. Scott, Esquire (4) (5) a presidential nominee, do you believe that such information should be reported to the Senate confirmation committee? Under what circumstances? Under what circumstances do you believe that During your tenure at the OGE, did any issues arise concerning the legal basis for the confidential financial disclosure system? What was your position on the legal authority of agencies to administer and enforce this system? I greatly appreciate your assistance to the Subcommittee in its examination of these issues. Please send your response to the Subcommittee on Oversight of Government Management, 326 Dirksen Senate Office Building, Washington, D.C., 20510 by March 28. If you have any questions, please contact Mary Gerwin of the Subcommittee staff at (202) 224-5538. With best wishes, I am WSC:mbg Sincerely, Bill Rem William S. Cohen Chairman March 28, 1985 Honorable William S. Cohen, Chairman Subcommittee on Oversight of Government Management United States Senate April 2, 1985 Oversight Hearing Dear Mr. Chairman: On behalf of your Subcommittee, you wrote to me on March 14, 1985, requesting that I submit written answers to certain questions you posed for the hearing on oversight of the Office of Government Ethics to be held on Tuesday, April 2, 1985. I will respond to your questions in the same order that you asked them and will try to make my answers as brief as possible. (1) Please describe the positions you held, with accompanying dates, at the Office of Government Ethics. I was appointed the first Chief Counsel ("Counsellor") of the Office of Government Ethics ("OGE") in May 1980 and remained in that position until I resigned from the Government on June 8, 1984 in order to take the position of general counsel of Rutgers, The State University of New Jersey. In addition to my duties as Chief Counsel of OGE, I was also the Acting Director of that Office from September 1982 to July 1983 (after the resignation of Jack Walter and before the confirmation of David Martin). Honorable William S. Cohen March 28, 1985 Page 2 (2) Please respond to the following questions concerning Executive Order 11222 and regulations governing standards of conduct for Executive Branch personnel. (a) Is conduct by an Executive Branch employee which creates the appearance of a conflict of interest a violation of Executive Order 11222 or standards-of-conduct regulations? Yes. Both Executive Order 11222 (signed by President Johnson on May 8, 1965, 30. F.R. 6469) and the Standards of Conduct which pertain generally to. the executive branch, 5CFR § 735. 101 et seq., are explicit on this point. Section 201(c) of Executive Order 11222 states: "(c) It is the intent of this section [201] that employees avoid any action, whether or not specifically prohibited by subsection (a), which might result in, or create the appearance of (1) using public office for private gain; omitted). (Emphasis added.) Similarly, the pertinent Standard of Conduct proclaims: "An [executive branch] employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of: (a) Using public office for private gain; (b) Giving preferential treatment to any person; (b) The current OGE director, David Martin, has described Section 201(c) of the Executive Order as "aspirational" in nature. this interpretation? No. Do you agree with As I explained above, Section 201(c) of Executive Order 11222 plainly equates an "appearance of a conflict of interest" with an actual Honorable William S. Cohen Page 3 conflict of interest. The violation of either would subject an executive branch employee to possible disciplinary action. The section of the Standards of Conduct which interpret section 201 (c) of the Executive Order make this point in a very straightforward manner by including "appearance" problems on an equal footing with other "proscribed actions." See 5 CFR § 735.20la entitled "Proscribed actions" "An employer shall avoid any action, result in, or create the appearance of: which might " (a) Using public office for private gain; Finally, OGE regulations themselves state that an appearance of a violation of a standard of conduct is subject to the same administrative actions as an actual (c) During your tenure at the OGE, what was the position of the OGE As explained in (a) and (b) above, an "appearance of a conflict of interest" was necessarily by Executive Order, the Standards of Conduct and OGE Regulations put on an equal footing with an actual conflict of interest. (d) During your tenure as Acting Director or General Counsel of the OGE, how did OGE advise designated agency ethics officials to interpret the Executive Order in situations involving the appearance of conflicts of interest? Did the OGE training programs address this issue? In the same manner as above. This issue was addressed in OGE training programs from time to time, especially through question and answer sessions with the designated agency ethics officials who participated. Honorable William S. Cohen Page 4 (e) What procedures did the OGE follow in instances where an Executive Branch employee violated the standards-of-conduct regulations? What types of corrective action were pursued by the OGE in such instances? Were these decisions on corrective action made by the OGE or the agency's designated agency ethics official? In such instances, did the OGE follow up to determine if action had been taken by the DAEO? In its Regulations promulgated under Title IV of the Ethics in Government Act of 1978 ("the Act"), OGE set forth the procedures for the designated agency ethics official to fulfill his or her responsibility to ensure that "[p]rompt and effective action including administrative action is undertaken to remedy: (i) Violations or potential violations, or (ii) The failure to file a financial (iii) Potential or actual conflicts of interest, or appearances thereof, which were and (iv) Potential or actual violations of other OGE's role is to advise and help the designated agency ethics officials fulfill this responsibility "when requested" (Section 402 (b) (7) of the Act) and to order ".. corrective action on the part of agencies and employees which the Director [of OGE] deems necessary" (Section 402(b) (9) of the Act). Thus, as the statutory and regulatory scheme suggests, the designated agency ethics |