some 100,000 federal employees. They expressed fear that the requirements would be challenged in court and that special Government employees would refuse to accept advisory positions with the Government as a result of the requirement. The need to hire additional employees and the expenses attendant to collection and review of the statements were also cited as matters of concern.

OGE was of the opinion that a confidential reporting system in the same form as the public reporting system had to be adopted by reason of an opinion of the Office of Legal Counsel (OLC) of the Department of Justice to that effect, A number of agencies joined in a request of OLC to reconsider its opinion, which it did. However, it adhered to its original conclusion.

As a result of OLC's opinions and the agencies' strong reaction to the adoption of a confidential system requiring the same form as the public reporting system, OGE feels that the only viable recourse is legislation. We are working on a proposal to seek a legislative change, which will be circulated for agency views before an administration concensus can be reached as to its necessity. In the interim, Executive Branch agencies continue to collect confidential statements.

POST-EMPLOYMENT CONFLICTS OF INTEREST

At the time the Ethics in Government Act was signed into law, Title V of the Act contained the amendments to 18 U.S.C. Section 207, a criminal provision designed to disqualify former officers and employees from participating in matters relating to their previous official activities and responsibilities. Sections 207(a) and (b) were designed to prevent any former employee from switching sides and representing a private client in the same matter for which he or she 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. Former high-ranking employees are barred for one year from representing anyone before or, with the intent to influence, doing business with their former agencies.

In 1983, when this Office testified before your subcommittee on post-employment we mentioned certain areas of particular concern to the Office. These areas continue to concern us. We also advised that the post-employment rules have long been a subject of debate. They continue to be an area of controversy today. Since nothing in the Act requires a former employee to decline employment with any organization, regardless of dealings with that organization while a Government employee, critics suggest that broader restrictions are required in order to prevent subjective influence on federal employees, to protect the Government's interest in confidential information made available to its employees, and to guard against the appearance of conflict of interest on the part of its employees. On the other hand, opponents of further restrictions contend that the exchange of employees from private industry to government and vice versa is beneficial to the government to the extent such restrictions impose burdens on departing employees, they make public employment less attractive, and thus burden the Government itself. We have very little empirical data to support either side of the controversy. Our experience has not revealed, however, that the agencies have difficulty in implementing current laws and regulations.

In summary, Mr. Chairman, we feel that the Office of Government Ethics continues to implement fully its statutory mandates and to provide a valuable service in directing the overall Executive Branch policies regarding conflicts of interest.

I will be happy to answer any questions you may have.

Senator COHEN. Our next witness will be Bernhardt Wruble, the first director of the Office of Government Ethics. Shortly after the Ethics in Government Act of 1978 was signed into law, Mr. Wruble set up the OGE and directed it for its first year. He has had a distinguished legal career both in the public and private sector. We appreciate your taking time to come testify.

TESTIMONY OF BERNHARDT K. WRUBLE, FIRST DIRECTOR,
OFFICE OF GOVERNMENT ETHICS (1979)

Mr. WRUBLE. Good morning, Mr. Chairman, Senator Levin. Thank you for the opportunity to testify today.

I have submitted a written statement. I don't propose to read it here. I will state so much of my position as is necessary to explain it, and thereafter, would welcome any questions you may have.

I was the first director of the Office of Government Ethics. Executive Order 11222 was the law then, as it is now. We took the Executive order as being the restrictions under which we were operating.

I want to speak with particular reference to the question of the "appearance of impropriety" standard, which is set forth in the Executive order. In addition, it has been adopted in the regulations issued by the Office of Personnel Management and the individual Government agencies, including the Executive Office of the President, in an even more direct fashion. That is, the language promulgated by the agencies states categorically that employees "shall" avoid actions, which, whether or not specifically prohibited, would create an appearance of impropriety.

This is stronger language than that contained in the Executive order.

I heard Mr. Martin testify today in a manner different from the statements attributed to him previously. He stated that the appearance of impropriety standard is not merely aspirational, but that there is some sort of bond between aspiration and proscription. I think it is not something we merely hope for. I think it is a prohibition we do, in fact, need to enforce. And I think that is the way that the Executive order has been treated since its issuance, which was 20 years or so ago-as actual prohibition, in fact. And such actual prohibition should be maintained.

The Government is properly concerned with appearances. Appearances are key here, because we are dealing with trust in Government. The Executive order affects the public's perception of what their Government is about. If you worry about such perceptions, you, by force of logic, are immediately concerned, not just with the actuality of an act, but with the appearance of the act. Basically, this Government of ours is government represented by fairness and by concern for just dealings, not dealings that are swayed by unspoken influences. It is a bedrock principle, without which I think this Government cannot properly function. There are, at least, two commonsense reasons why the Executive order should bar actions which appear improper, not merely those in which impropriety is shown.

First, if a particular activity that looks wrong and has bad appearances can be explained away merely by technical compliance,

public confidence would be shaken. It does not matter that there may be some technical out. If it appears wrong, it has done damage to the Government.

Second, it is difficult in particular cases to go behind the scenes and prove that actual impropriety has taken place. In exactly the kind of circumstances where you want compliance, you encounter special difficulties in proof. I think putting that kind of burden of proof on the Government on a continual basis would frustrate the system.

The problem that arises when somebody throws doubt upon the propriety of the appearance standard, throws doubt upon its validity or enforcement, is that it, too, creates a perception problem. It is the kind that Senator Levin referred to previously. Once you cast doubt upon the propriety of the standard in any way, you immediately impart the message that the standard may not be enforced. If the standard isn't enforced, if public officials get that idea, then it gives them more flexibility in their own thinking as to what is required of them in ethical areas.

That is intolerable. I don't think that you attack this problem by rolling back the standard. I don't think this is the time to ask less of Federal employees with regard to their ethical obligations. What needs to be done is to particularize the standards. That is, we talk about the "appearance of impropriety" in broad terms. What we need to do is the hard work of particularizing what that phrase means, and the kinds of instances that we're concerned with. It can be done.

This may seem like a job that is governmentwide and very broad, but there is nothing that prevents drafting regulations and explications of what "appearance of impropriety" means. Let me go back. The issue has been posed as to whether an act that has the appearance of impropriety is a "violation" of an Executive order. The answer is, I think, yes, it is a violation of an Executive order. It is also a violation of the regulations which have been issued to implement that Executive order. But there are problems in reaching that conclusion, and there are problems remaining even after stating that it is simply a "violation.

First of all, it doesn't end the "wiggle room." That is, you do close a gap when you say that an act that has the appearance of impropriety is a "violation," but not entirely. You create another set of problems because somebody can still take the position that a particular set of actions did not sufficiently create an improper appearance as to fall under the standard.

Thus, once you close one door, all you do is show that there is another door to open.

The only way to address those problems ultimately is to begin to bring some concreteness to ethical requirements. For exampleand I am not saying what the results should be in this particular case-but in the area involving the appointment by a Federal official or a person to a job with an agency or board, the issue may be raised whether or not someone who has dealt with the candidate, in business circumstances, must recuse himself, or provide disclosure before he can go forward, or can participate in that without recusing himself. That kind of situation can be considered in advance. And we ought to talk about it in advance and tell the offi

cial what is required in that situation, for two reasons. One, so that he does the right thing. And two is, so that afterward, we don't get into a debate about it and try to decide, afterward, what the standard should have been in that case.

We get compliance, and he gets fairness.

This would let us avoid the kind of discussion that took place this morning. Mr. Martin expressed concern, perhaps justifiably, that in the case of an employee who has done something which appears to be improper, Mr. Martin would be more effective in counseling him by not listing on his record or publishing for press review that a violation occurred. He said that would be counterproductive.

Well, maybe that would be, but I think somebody said that minimum of anything in the universe is two. If you're going to create that ripple on the one side, what are you creating on the other side?

The problem is that the argument therefore not labeling something a violation is then used in a case where someone has done something that you think is improper, or truly appears to be improper. And now you are forced to say, Well, it's just an appearance; we can't call it a violation.

In other words, the argument used in a counseling situation, for not casting something as a violation is that you should not unnecessarily tar somebody's career. But if you accept that, it leaves a legal manuever open so that when somebody has done something that has a very basic appearance of impropriety, you no longer can cast it as a violation, and so you let him off the hook.

The question arises, why is it so important to call something a violation? I have, at times, experienced the same reluctance to do that as Mr. Martin mentioned this morning. In counseling situations, or other situations where you want to take corrective action, it may interfere with the objective you truly want to reach.

But the situations we are most concerned about are those where the public is involved and the press is involved, and we are dealing with public trust in government as the basic issue. The press wants to know whether there has been a violation, because the public wants to know it. They want to know it for a basic human reason. They want to reach a conclusion about the ethical sensitivity and moral fiber of the individual involved.

And they want the work done for them by someone in charge, like the Director of the Office of Government Ethics, or someone in the Attorney General's Office, because they find it difficult to reach such conclusions on their own.

They make demands to know whether or not it is a "violation" because they believe they're entitled to know. It is not merely a technicality. It fulfills an expectable human need.

So, again, the way I think you deal with a situation like this, if there's a word for it-you "demurkify" it. You take away the clouds and the murkiness: You tell people what they can do in particular situations so they know what's permissible.

If there are situations that you can't define and can't address, so be it. Let them ride. Let's direct our attention and our energies to that percentage of situations, which I think is high, that we can address. This performs two functions. It not ony addresses some sit