THE UNDER SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Hon. ALAN BIBLE, Chairman, Committee on District of Columbia, U.S. Senate, Washington, D.C. DEAR SENATOR BIBLE: This is in reference to the Committee's consideration of Mr. Stanley J. Anderson, a nominee for membership on the new District of Columbia City Council. Mr. Anderson, who has been the Director of the Roving Leader Program in the Recreation Department of the District of Columbia, has had a number of years of significant experience in an area of work of vital concern to the Children's Bureau. Because of this we have offered Mr. Anderson a position in the Children's Bureau as Youth Services Adviser. Mr. Anderson's qualifications and experience are well known to the specialists in his field of work. We believe he will make an important contribution to programs throughout the nation in the new assignment we have offered him. Sincerely yours, WILBUR J. COHEN, DEPARTMENT OF JUSTICE, Hon. ALAN BIBLE, Washington, D.C. DEAR SENATOR BIBLE: Section 207 (c) of the conflict of interest statute (18 U.S.C. 201, et seq) applies to activities of partners of government employees in relation to any "particular matter in which the United States is a party or has a direct and substantial interest." This letter is in response to the request of Mr. Chester Smith, Staff Director of the Senate Committee on the District of Columbia, asking for the position of the Department of Justice as to whether the reference to the United States in the quoted phrase of section 207(c) includes the government of the District of Columbia, or is limited to purely federal interests. The position of the Department is that the interests of the District Government are included in that phrase as it is used throughout the conflict of interest statute. This has been the understanding both of this Office and of the Criminal Division which has investigative responsibility with respect to this statute. Accordingly, the partners of a Member of the D.C. Council are barred by section 207 (c) from acting as agent or attorney in connection with any proceeding in which the District of Columbia has a direct and substantial interest and in which the Council Member has personally participated or which lies within the official responsibility of the Council. Under the definition of official responsibility in section 202, partners of a Council Member would be precluded from acting in any such matter over which the Council has "direct administrative or operating authority." Both section 297 (c) and the Memorandum of the Attorney General explaining the conflict of interest statute issued at the time of its enactment, make clear that partners of a government employee, as such, are subject to the conflict of interest provisions only as expressly provided in section 207(c). Sincerely, FRANK M. WOZENCRAFT, EXCERPT FROM HOUSE COMMITTEE REPORT No. 748, 87TH CONGRESS (1ST SESSION), RE H.R. 8140 (P.L. 87-849) (18 U.S.C. 201 ET. SEQ.)-JULY 20, 1961 On page 2 of this Committee Report the following words are contained: "The purpose of the bill is (1) to strengthen, revise, and simplify existing Federal conflict of interest laws, (2) to make appropriate general provision for consultants and temporary employees in the Executive Branch, the independent agencies and the District of Columbia, and (3) to integrate these conflict of inter est laws with recodified prohibitions of bribery and graft all to the end that improper and unethical practices will be prevented without depriving the Government of the services of competent and conscientious men and women.' Hon. ALAN BIBLE, WASHINGTON, D.C., October 26, 1967. Chairman, District of Columbia Senate Committee, DEAR SENATOR BIBLE: Mr. Chester Smith, Staff Director of the District of Columbia Senate Committee has asked me to respond to the following three questions which the committee members desired answered to assist the committee in its consideration of my nomination to the new District of Columbia City Council: 1. Will you be willing to withdraw from all pending cases or other proceedings in which you are now representing clients against the District of Cloumbia? Answer-Yes. 2. Will you agree that you will not represent clients in the future in cases or other proceedings against the District of Columbia? Answer-Yes. 3. Will you agree that neither you nor your firm will represent a client in any matter pending before the District of Columbia Council or pending before a District of Columbia agency over which the Council has administrative or operating control, whether intermediate or final? Answer-Yes. If there is additional information that you or your committee members desire, I will be available at your request. With high personal regards, I am, Respectfully yours, Hon. ALAN BIBLE, WILLIAM S. THOMPSON, U.S. CIVIL SERVICE COMMISSION, Chairman, District of Columbia Committee of the Senate. DEAR MR. CHAIRMAN: This is in response to an inquiry by Mr. Chester H. Smith, Staff Director of the District of Columbia Committee of the Senate, in connection with the hearings on the nominees for the District of Columbia Council. The inquiry is whether the Commission knows of an instance in which a Federal employee has been placed on leave without pay from his basic employing agency and while on such leave is employed and paid by another Federal agency. The answer is "Yes". In July 1965, before the effective date of the Voting Rights Act, I approved this type of dual employment in connection with the Voting Rights Program. In that situation the Commission employed Federal employees who were on leave without pay from other Government agencies. The leave without pay for those employees was limited to 6 months, however, that time limitation was considered desirable for policy not legal reasons. A period of leave without pay for a longer or shorter period would be equally valid. The law on the matter of dual employment has been quite clear since the enactment of the Dual Compensation Act in 1964 (Public Law 88-448). Therefore, an agency that sought to use that procedure would probably have done so without consulting the Commission. If such an inquiry had been made, however, I would have advised, in accordance with the position taken in July 1965, that such dual employments were authorized with payment of salary by the second agency. Sincerely yours, L. M. PELLERZI, [From the Congressional Record, October 30, 1967] DISTRICT OF COLUMBIA COUNCIL NOMINEES Mr. DOMINICK. Mr. President, on Friday, October 20, 1967, the Senate District of Columbia Committee conducted hearings on the nominations for Chairman, Vice Chairman, and members of the District of Columbia Council. At that time I raised certain questions with respect to possible conflicts of interest and conflict of duties as far as two nominees were concerned. I also raised questions with respect to the American Bar Association Canons of Ethics and their effect on one nominee, Mr. Thompson. Because of the nature of my questions and the considerable attention which they have received, I want to make my position clear prior to consideration of the nominations by the Senate. First, let me emphasize that I do not question the qualifications of Mr. Thompson. I have been most favorably impressed with his background, education, and experience, and in my contact with him since his appointment. He has been at all times very cooperative. However, during his testimony before the committee Mr. Thompson stated his intention to continue his partnership with the other members of his law firm during his service as a member of the Council. Certainly, it is not improper for him to do so, but the potentiality for possible conflicts of interest is obvious unless certain safeguards are met. I am deeply concerned that our first Council under the newly reorganized government for the District of Columbia get off to a start with a clean bill of health. To this end I have endeavored, while at the hearings and during this past week, to explore thoroughly and bring to the forefront items which in my mind should be fully aired now and not later. Since Mr. Thompson is a well-qualified attorney and member of the American Bar Association who is seeking public office, the canons of ethics of that association seem to me to be legitimate matters for public inquiry. Mr. President, I do not view the Senate District of Columbia Committee or the Department of Justice as judge_of_what_is proper under the canons of ethics of the American Bar Association. Indeed, I would resist any attempt by either to assume such a role. Procedures are available to Mr. Thompson and the members of his firm, if they feel it necessary, to seek out an opinion on any potential conflicts from the Standing Committee on Professional Ethics of the American Bar Association. But the Senate District of Columbia Committee or any Senate committee with the responsibility for reviewing nominations and making recommendations for or against confirmation has a duty, in my judgment, not only to study the nominee's qualifications but to fully disclose matters in which the interest of the public is a part. The PRESIDING OFFICER. The time of the Senator has expired. Mr. BYRD of West Virginia. Mr. President, I ask unanimous consent that the Senator from Colorado [Mr. DOMINICK] may be permitted to proceed for 10 additional minutes. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. DOMINICK. I thank the distinguished Senator from West Virginia. The time lapse which it has taken to look into the ethics issue should not be construed to mean the committee felt a definite conflict existed. Nor should a favorable report on the Thompson nomination by the committee be construed to mean potential future conflicts have been precluded. Mr. President, with the caution that the canons and ethics opinions of bar associations are subject to interpretation, I would like to make some legislative history as to the reasons for my concern. I have previously made available to Mr. Thompson the citations to the opinions which have troubled me. One opinion of the Colorado Bar Association is particularly illustrative. In ethics opinion 18, the Colorado Bar Association held that neither a city councilman nor members of his firm could represent a client before any administrative departments or agencies of the city. I hasten to add, of course, that that opinion is not applicable to Mr. Thompson since he is not a member of that association. I have examined a number of opinions, both formal and informal, of the American Bar Association to which he does belong. To the best of my knowledge, but not surprisingly, there has been no decision directly in point. Three opinions in particular caught my eye. In formal opinion 192 one of the issues was to what extent it was proper for a firm, one of the members of which had accepted public office, to accept professional employment requiring dealings with the employer of the firm member. The decision held: "There is no objection to his retaining his membership in a law firm or in sharing the earnings of the law firm, provided such firm does not represent interests adverse to the employer. In formal opinion 306 the ABA Ethics Committee decided to permit members of a law firm to appear before legislative committees even though a member of the firm is also a member of the legislature. I might say at this point, Mr. President, that this is a change from ethics rulings which had previously been issued by the American Bar Association Ethics Committee. Prior to this particular ruling, the ABA committee had held that it was not ethical for any member of a firm to appear before a legislative committee or a legislative body on behalf of a client, where a member or an associate of that firm was a member of the legislative body. This was true even though the member of the legislative body had said that he would not share in the profits of his law firm while he was holding such position. So this formal opinion No. 306 is a change, and it indicates, once again, the difficulty of the Senate District of Columbia Committee trying to interpose itself as a judge in this type of situation. Even ethics committee rulings change from time to time. Opinion No. 306 went on to say that such appearances are authorized whenever there are constitutional, statutory, or legislative provisions which expressly or by necessary implication recognize such action as proper, or where a provision permits a member of the legislature to disclose his conflict and withhold his vote on the matter. It may be that the Federal conflict of interest law, in particular, 18 United States Code 207, is the type of consent contemplated by this opinion. Finally, I would call the attention of the Senate to formal opinion No. 315. Decided in 1965, this opinion involved, among other issues, the nature of business which a firm could conduct after one of its members was elected Governor of the State and remained a partner of the firm. The ethics committee referred to formal opinions Nos. 192 and 306, and in its conclusions cautioned: "The firm must be extremely careful to avoid any representation which involves even the appearance of a conflict with the governor's duties." Mr. President, the four opinions which I have just mentioned-Colorado Bar Association Opinion No. 18 and ABA Opinions Nos. 192, 306, and 315-are important, and I feel it is in the public interest that these as well as three others— ABA Informal Opinions Nos. 691, 700, and 855—receive widespread distribution. I ask unanimous consent that they be printed in the Record at the conclusion of my remarks. The PRESIDING OFFICER. Without objection, it is so ordered. (See exhibit 1.) Mr. DOMINICK. In order that the record may be complete, I would merely mention that other opinions which have been considered as possibly having some relation to the problem are: ABA Formal Opinions Nos. 16, 30, 34, 49, 128, 135, 188, 262, and 278, and ABA Informal Opinions Nos. 564, 674, and 772. Prior to Senator Bible's departure from Washington, I asked the staff and the chairman if it would be possible for us to obtain a letter from Mr. Thompson's firm with respect to these issues, indicating specifically what they would and what they would not be willing to do. Such a letter was received. In general, Mr. Thompson has said that he would not represent any client against the District, that his firm would not represent any client before an administrative agency over which the council has jurisdiction, and that he would not, of course, act adversely to the interests of the District in any situation that might arise. I believe this is an indication of the high quality of Mr. Thompson and his ethical considerations, and I am deeply appreciative of his cooperation and the effort that he has made to resolve these possible conflicts. There is one other question which I would like to take up, and that is as to another nominee, Mr. Anderson. He is a highly qualified man also, and a very fine person. However, at the time he was nominated to the Council for the District of Columbia, he was a GS-13 working for the District of Columbia in the Recreation Department. That created an impossible situation as to him, because his Recreation Department job provided him with more personal funding than the Council job, and he would, as a Council member, have had jurisdiction over the very role that he was playing as a salaried employee. 84-529-67-18 All of a sudden, the administration came up with a new job for Mr. Anderson. If his nomination is confirmed by the Senate, he will be employed by HEW in the Children's Bureau as Youth Services Adviser. I am not sure whether his salary range will be any different, but it seems to me we still have the same problem in a slightly different context. No longer will he have jurisdiction over his own job, as he would had he remained with the District of Columbia Recreation Department, but he does have a situation where he is being given a job in the Children's Bureau, an area in which the administration claims his services are badly needed. Yet at the same time he will promptly be given an enormous amount of time off to start out on District of Columbia Council work. A broad question in my mind is whether any Federal employee, at least initially, should serve on a city council, when we know that the work of the council is going to take so much time that the Federal employee would very patently not be able to spend the amount of time that has heretofore been considered necessary in the Federal job in which he has been employed or to which he is being appointed. I believe this should be a matter of serious concern to all of us. What we can do about it I do not know. There is no law against it, as far as I am able to determine, at the present time. We do have a personnel problem, it seems to me, of major importance; and I should like to discuss the matter at greater length at a later time. I do wish to say publicly, as I have said before to the staff and to the committee members, that I do not intend to oppose any of these nominees, but I do wish to bring the questions out, so that Senators can look at the problems and determine what they want to do, in the interests of future policy. In concluding I would like to express my appreciation and extend my compliments to the staff of the District of Columbia Committee, particularly to Mr. Chet Smith, staff director, for the work which has been done since our hearings. Chet has been in daily contact with my own staff in an effort to resolve all of my questions regarding the nominees, and I would just like the RECORD to reflect my own high regard for the quality of the materials which I have received as a result. I thank the Senator from West Virginia for giving me this time. EXHIBIT 1 [Colorado Bar Association] OPINION NO. 18, ADOPTED JANUARY 20, 1961 SYLLABUS It is improper for an attorney who is also a city councilman (a) to appear on behalf of a defendant who is charged with violation of a city ordinance in the muncipal court of that city; and (b) to represent a client before administrative departments or agencies of that city. It is also improper for a member or associate of the law firm of which the city councilman is a member to act as an attorney in either of the above situations. FACTS An attorney in the private practice of law is also a member of the city council. The city council does not appoint municipal judges or administrative department or agency heads, but does appoint the members of the board of adjustment which hears zoning and building appeals. The limits of the salaries of municipal judges are established by city charter but the council has authority to fix the salary within such limits. The council approves the budget of the municipal court and appropriates funds for the operation of that court as well as all city departments and agencies. OPINION In Opinion No. 14 this Committee concluded that in a situation where the city council hired the municipal judge and fixed his salary it was improper for an attorney-councilman to practice in the municipal court on behalf of defendants charged with violations of city ordinances. The practice there condemned is equally improper where the council, although not directly appointing the judge, must approve the court's budget and appropriate funds for its operation. The same conclusion must be reached with respect to the representation of a client by an attorney-councilman before an administrative department or agency of the city. Even though the conduct of both the department and the attorney is scrupulously correct, it is likely that an individual client, or the public, will |