Excerpt From Testimony of David H. Martin, Esq., The Chairman. Thank you. Now Mr. Martin, do you have a statement? You understand what this hearing is all about? Mr. Martin. Yes. I do, Senator. I have a brief- The Chairman. And you have been requested to come and testify here. And do you have a statement you would like to present to the Committee? Mr. Martin. I have a brief statement, some notes that I put together, that I would, Senator. The Chairman. All right. You may proceed. Mr. Martin. Thank you. I would like to take this opportunity to explain to you what we do in the Office Of Government Ethics, when confronted with what we call an appearance problem. As you know, there is a rule in the Executive Branch regarding appearances, whose coverage is very broad. It provides that an employee should avoid any actions which might result in, or create the appearance of a number of things, and let's call them an impropriety, for now. Might result in or create This rule is aspirational in nature. That is, we all the appearance. try to avoid that, creating an appearance, but as we know in the public sector, that is often difficult to do. Our attitude is, when there is an appearance problem, that the persons involved have done no wrong, have committed no improprieties, and are presumed to have acted ethically. It is an appearance only. However, the job of the Agency ethics official, and those of my staff, is to determine whether or not there is any substance or reality to the appearance. If there is not, there has been no violation of the standards of conduct, except the broad-based rule, which I read to you, which cautions against creating an appearance. We should all, in the public sector, strive to avoid appearances of impropriety. ( Excerpt From Testimony of David H. Martin, Esq., Senator Quayle: Do you have jurisdiction over actual cass that are filed alleging conflict of interest or violations of standards once they leave Government? Mr. Martin: That is a Department of Justice function. We do interpret that law along with the Department of Justice. Senator Quayle: Your function is basically prospective; is that right? Mr. Martin: Yes, it is. Senator Quayle: In other words, you don't have a handle cases have been filed or allegations that have on how ma ny Mr. Martin: There are not many. My recollection is maybe one ΟΙ two prosecutions. It is limited. because we are dealing with it before it occurs. It may be Senator Quayle: If we are dealing with it before it occurs, that is fine with the law. The question is whether we need to tighten up the law or expand the prohibitions. There has been conflicting testimony today. You have sat and listened for the last two and a half hours of testimɔny. From your viewpoint, do you have any advice about areas that we ought to give additional clarification to that might be helpful to you in giving counsel to people who are going out to the private sector? up? Are there some gray areas that might need some tightening Mr. Martin: I agree with much of the testimony about the 'subjective influence. I do believe it exists, but I don't know how to deal with it. I think you cannot make an appearance problem a violation of law. I think it is unenforceable. I think there are certain constitutional freedoms of association problems with restricting where you can go tc work and for whom you may associate when you leave the Government. I think it would be counterproductive to limit, certainly as Senator Glenn suggests, going into an industry or even to prohibit somebody from going to work for a company. The furthest I would gɔ in that area is to maybe prohibit somebody as we do in the legal profession now, through bar association rules, prohibit somebody who has had substantial particiption in the Government from going and participating in a matter in that company. But how would you ever enforce that, I don't know. I don't know how you would. It is just like now the se laws we have on the books are difficult to enforce once somebody leaves the Government. (Statement made by David H. Martin) May 19, 1985 SUBCOMMITTEE ON DEFENSE ACQUISITION POLICY OF THE SENATE COMMITTEE ON ARMED SERVICES MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: I APPRECIATE THE INVITATION TO APPEAR BEFORE THIS SUBCOMMITTEE TO ANSWER QUESTIONS WHICH THE LIMITATIONS ON COMMITTEE MEMBERS MAY HAVE ON POST-GOVERNMENT EMPLOYMENT, OR THE SO-CALLED "REVOLVING DOOR" ISSUE. I WOULD PROVIDE THE FOLLOWING OBSERVATIONS. TITLE V OF THE ACT AS YOU ALL KNOW, THE ETHICS IN GOVERNMENT ACT WHICH WAS SIGNED INTO LAW ON OCTOBER 26, 1978, WAS ENACTED TO PRESERVE AND PROMOTE THE INTEGRITY OF PUBLIC OFFICIALS AND INSTITUTIONS. AMENDED TITLE 18 U.S.C. SECTION 207, CRIMINAL PROVISIONS DESIGNED TO DISQUALIFY FORMER OFFICERS AND EMPLOYEES FROM PARTICIPATING IN MATTERS RELATING ΤΟ THEIR PREVIOUS OFFICIAL ACTIVITIES AND RESPONSBILITIES. SECTIONS 207(A) AND (B) ARE DESIGNED TO PREVENT ANY FORMER EMPLOYEE FROM "SWITCHING SIDES" AND REPRESENTING A PRIVATE CLIENT IN THE SAME MATTER FOR WHICH HE HAD PREVIOUSLY REPRESENTED THE GOVERNMENT. SECTION 207(C), SINCE IT IS NOT LIMITED TO MATTERS IN WHICH THE EMPLOYEE WAS INVOLVED, RESTS ON A DIFFERENT THEORY. IT INTERDICTS ATTEMPTS BY FORMER HIGH-RANKING EMPLOYEES TO EXERCISE INFLUENCE OVER THEIR FORMER COLLEAGUES AND SUBORDINATES. A PUBLIC POLICY-MAKER WHO LEAVES OFFICE IS NOT PERMITTED TO BENEFIT FROM HIS GOVERNMENT EXPERIENCE BY EXPLOITING ANY "CLOUT" WITH HIS FORMER AGENCY FOR ONE YEAR. POST-EMPLOYMENT RESTRAINTS SHOULD ACCOMMODATE THE NEED TO ATTRACT AND RETAIN A QUALIFIED AND EXPERIENCED WORK FORCE AND SHOULD RECOGNIZE THAT THERE ARE ADVANTAGES ASSOCIATED WITH THE MOVEMENT OF EMPLOYEES BACK AND FORTH BETWEEN GOVERNMENT AND THE PRIVATE SECTOR. THE GOVERNMENT COULD INSIST UPON A STRICT STANDARD OF SEPARATION BETWEEN ITS EMPLOYEES AND THE PRIVATE ECONOMIC WORLD, IF IT KEPT GOVERNMENT AND NON-GOVERNMENT OPERATIONS CLEARLY SEPARATE. IN THE PRESENT SYSTEM, WE DO NOT. WE STAFF OUR POSITIONS TEMPORARY APPOINTEES. WE CONTRACT OUT BIG WITH IN-AND-OUT GOVERNMENT JOBS AND THEN MUST FIND LIAISON MEN TO BRIEF BOTH SIDES. WE HAVE DELIBERATELY CONSTRUCTED INSTITUTIONS OF DUAL, OR blended LOYALTIES, AND MUST BE PREPARED TO LIVE WITH THE POTENTIAL CONFLICT OF INTEREST CONSEQUENCES. THE RESULT IS THAT ANY PROGRAM OF RESTRAINTS FOR THE GOVERNMENT MUST BE CONTENT WITH APPROXIMATIONS. THERE MUST BE A PROPER BALANCING BETWEEN MAINTAINING INTEGRITY AND ENSURING AN ABLE WORK FORCE. I WOULD LIKE TO CLOSE MY REMARKS WITH A SIMPLE QUOTE WHICH HAS BEEN ATTRIBUTED ΤΟ BAYLESS MANNING, ONE OF THE FOREMOST COMMENTATORS IN THIS FIELD OF LAW. MR. MANNING SUGGESTED THAT "PLATO'S PHILOSOPHER KINGS COULD ISOLATE THEMSELVES FROM PRIVATE INTERESTS: AMERICA'S DEMOCRATIC GOVERNMENT CANNOT." THAT THIS THOUGHT WOULD ASSIST THE COMMITTEE IN THEIR DELIBERATION HERE THIS MORNING. I WOULD HOPE |