This is in response to your letter of May 16, 1985 requesting certain information pertaining to your subcommittee's April 24th hearing on the Office of Government Ethics. I understand that this request was informally handled by a member of my staff on May 16th, when copies of several informal advisory opinions rendered by the Office of Government Ethics on the issue of the appearance of impropriety were forwarded to your subcommittee staff. This is in response to your request of January 15, 1980, for our opinion on the question whether section 207 (c) of the Ethics in Government Act (Ethics Act), 5 U.S.C. App. 207(c), has eliminated the public financial reporting requirements of the following statutory provisions: § 26(e) of the Toxic Substances Control Act, 15 U.S.C. 2625(e); § 1007 of the Solid Waste Disposal Act, 42 U.S.C. 6906; § 318 of the Clean Air Act, 42 U.S.C. 7618, and § 12 of the Environmental Research, Development and Demonstration Authorization Act of 1978, P.L. 95-155, 91 Stat. 1263. These statutory requirements are substantially similar in their language and effect, and all were adopted by Congress before the passage of the Ethics Act. They oblige policy-making officials who work in their respective areas of application to report certain personal financial interests for public disclosure and they authorize criminal prosecution for a failure to comply. Section 207 (c) of the Ethics Act reads as follows in The provisions of this title requiring the For the reasons advanced below, we have concluded that section 207 (c) has displaced the four cited provisions of law and brought the provisions of Title II of the Ethics Act into play in their stead. The language of § 207(c) lays down only two pre-requisites for the supersession by Title II of a statutory or regulatory reporting requirement. The first is that a "general" requireDent must be involved and the second is that the requirement be aimed at real or apparent conflicts of interest. Applying these pre-requisites in reverse order, we first join in your conclusion, derived in part from legislative history, that the subject statutory provisions were indeed intended to prevent conflicts of interest. As for the other pre-requisite, since each statutory reporting provision is applicable to the occupants of positions in your agency that are categorized by the provision in general terms (§ 26(e) of the Toxic Substances Control Act is also applicable in the Department of Health, Education and Welfare), each in our opinion is unquestionably a general requirement within the meaning of § 207(c). Cf. H. Rept. No. 95-642, Part 1, 95th Cong., 1st sess., p. 51 (1977), where the Committee on Post Office and Civil Service cited the financial reporting system created for employees of the Department' of Energy by P.L. 95-91, §§ 603 and 604, 42 U.S.C. 7213 and 7214, as an example of a requirement intended for supersession by what is now 207 (c) of the Ethics Act. It should be noted also that our answer to your inquiry is strongly supported by the obvious Congressional purpose of establishing uniform financial reporting requirements and procedures throughout the Executive Branch by means of § 207 (c). To repeat, we are of the opinion that § 207 (c) has made a dead letter of the four financial reporting enactments you called to our attention and has made Title II of the Ethics Act operative in their stead. Sincerely, John M. Harmon Assistant Attorney General - 2 JAK 15 330 Ronorable John Warmon Dear Mr. Harmon: As the Environmental Protection Agency (EPA) official responsible for advising the Agency concerning the various conflict of interest and financial reporting laws which affect Agency employees, I request that the Office of Legal Counsel answer the following question: Does Section 207(c) of the Ethics in Section 12 of the Environmental Research, This question has been unanswered since the passage of the Ethics in Government Act. It was our understanding that the Office of Legal Counsel would render its opinion on the effect of the Ethics in Government Act financial reporting provisions on prior financial disclosure statutes, such as the four above, which affect Executive Branch employees. I have recently been informed that the Office of Legal Counsel has no inmediate plans to issue such an opinion. 2 I believe that it is very important to answer this question. The Agency's employees are subject to a number of duplicative financial reporting provisions: the Ethics in Government Act, Executive Order 11222, and the provisions of the four statutes mentioned above. Sore employees ray have to file as many as four overlapping public financial reports each year, as well as a confidential report under the Executive Order. The public reports represent a potential invasion of the privacy interests of the Agency's employees. It is our legal opinion that Section 207 (c) of the Ethics in Government Act clearly eliminates the reporting requirements of the Toxic Substances Control Act (TSCA), the Solid Waste Disposal Act (SDA), the Clean Air Act (CAA), and the Environmental Research, Development, and Demonstration Authorization Act of 1978 (EPDDAA). However, since there is a criminal penalty under each of these statutes for failure to make required reports, we are seeking a ruling from the Department of Justice consistent with the Department's often-stated position that only the Department can interpret criminal laws. Because of the potential criminal sanctions for failure to file reports, it is imperative that the Department rule on this issue. Section 207(c) states in pertinent part: The provisions of this title requiring This language makes it clear that the comprehensive finan reporting scheme of the Ethics in Government Act was to replace such reporting requirements under more narrow pre existing statutes. The House Judiciary Committee on November 2, 1977 r ported its version of the Act containing the same wordin of Section 207 (c) and stated: "Subsection (c) provides that the provisions of title I of the bill as to the reporting of information are to supersede any other sta' requirement for reporting of information for the purpos preventing conflicts of interest or apparent conflicts interest...."(House Report No. 95-800, page 43) |