CRS-7 and the House Post Office and Civil Service Committees, the Office of Legislative Affairs of the Department of Justice argued against making the OGE Director subject to removal by the President only for "cause", on the basis that OGE is an executive branch (and not an independent) agency which exercises specific executive functions, and thus the Director must be answerable directly to the President. Among the executive functions which OGE is authorized to perform, the Department of Justice noted: The OGE develops rules which regulate the OGE's statutory duties encompass considerable authority to direct other executive branch agencies. 4/ The statutory language of the Ethics in Government Act specifically authorizes the Director to order "corrective" action by agencies and employees. There may be credible arguments, therefore, based on a narrow reading of the term "corrective", that although the OGE may order an employee to, for example, recuse or disqualify himself from a governmental matter, to divest an asset, or to pay back money to the government or return a particular gift, or other orders to an agency to correct deficiencies in its ethics and financial disclosure systems, an order regarding the specific "discipline" or other administrative personnel action against an employee might arguably be "punitive" rather than "corrective" in nature. It may be argued, on the other hand, however, that 4/ H.R. Rpt. No. 98-89, Part I, supra at 19, 20, Letter of April 20, H.R. Rpt. No. 98-89, Part II, supra at 34-35. CRS-8 "corrective action" denotes a "broad grant" of remedial authority (Fitzgerald v. United States Civil Service Commission, 407 F. Supp. 380, 383 (D.D.C. 1975), reversed on other grounds, 554 F.2d 1186, 1187 (D.C. Cir. 1977)), and could Fischer v. Haeberle, 80 F. include the authority to order personnel actions. 5/ Supp. 652, 656 (D.N.Y. 1948). Even with a narrow rather than a broad construction of the term "corrective", in such a case it would appear that the Director of OGE could "order" the employee to take specific corrective action, and then could "recommend" to the agency appropriate administrative sanctions. As discussed by the Senate Governmental Affairs Committee in 1977:".. the Director may order the employee to take such action and recommend appropriate administrative action to the individual's agency." S. Rpt. No. 95-170, supra at 148. Emphasis added. As to the enforcement of the order against an officer or employee who refuses to comply with an order given under this statutory grant of authority, there is no specific mechanism provided in the Ethics in Government Act. Concerning any potential legal action which could theoretically apply, it may be noted that absent specific statutory grants of authority, the Department of Justice would conduct any litigation in which the United States, an agency or an officer or employee is a party. 28 U.S.C. § 516. In addition to the Director of OGE's authority to refer violations of the conflicts and ethics laws to the Department of Justice, and the substantial persuasive potential of issuing public statements, many of the "orders" issued by OGE could potentially be ... with 5/ The common definition of the word "correct" includes "to punish a view to reforming or improving." Webster's New Collegiate Dictionary, at 255, and the term "correctional facility" is often a euphemistic reference to a prison, in common usage. CRS-9 given enforcement effect by private parties and private litigants who are affected by an official's refusal to abide by a lawful order of OGE. For example, if the OGE "orders" the recusal or disqualification of an officer from a rulemaking matter, and the official refuses to disqualify himself, then private litigants may have substantial arguments that the rulemaking process is abrogated because of an "abuse of discretion" of the official involved. See discussion in Center for Auto Safety v. Federal Trade Commission, 61 586 F. Supp. 1245 (D.D.C. 1984). Similarly, unsuccessful bidders for a government contract might more successfully challenge a contract given to a competing private firm by an official who refused an "order" of the OGE not to participate in the matter or to divest interests or assets which may potentially be affected by his duties. Note discussion in CACI, Inc. Federal v. United States, 719 F. 2d 7/ 1567 (Fed. Cir. 1983). Policy considerations, staffing and budget concerns notwithstanding, there does not appear to be any statutory or legal impediments to the Director of the Office of Government Ethics exercising the express statutory authority specifically granted by Congress within the Ethics in Government Act of 1978, to direct or command agency or employee action in the area of ethics and conflicts 6/ The court found no "abuse of discretion" in this case in the official's refusal to recuse himself where no finding was made by the agency or other outside authority that the official's participation would constitute a conflict or an appearance of a conflict of interest. 7/ In the CACI, Inc. case no findings were made by the agency or outside ethics regulating body that the officials' participation was a conflict or an appearance of a conflict, and the court found that no private cause of action could be based merely on the ethical standards and guidelines in the agency reulations, as no criminal statutory violation was evident. CRS-10 of interest by "ordering corrective action on the part of agencies and employees which the Director deems necessary." 5 U.S.C. App. § 402(b)(9). Jack 4. Mrskell Jack H. Maskell SUBJECT : Congressional Intent Concerning the Authority of the Office This memorandum is submitted in response to the Committee request as discussed with Rick Shapiro of the Committee staff for information on the intent of Congress regarding the role of the Office of Government Ethics (OGE) in individual conflict of interest or ethics matters of federal officers and employees, particularly in relation to OGE's enforcement and investigatory authority in matters which do not arise in the course of their financial disclosure monitoring. The Office of Government Ethics was established in title IV of the Ethics in Government Act of 1978, P.L. 95-521. The creation of the office was the legislative response to the most recent call for a centralized governmental ethics office, as part of recommendations in a report by the General Accounting Office, "Action Needed to Make the Executive Branch Financial Disclosure System Effective," February 28, 1977, FPCD77-23. [GAO Report of 1977]. Earlier recommendations for a centralized ethics office with authority to coordinate ethics and conflict of interest |