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for the "overall direction of executive branch policies related to preventing
conflicts of interest on the part of officers and employees of any executive
agency" (5 U.S.C. App. § 402(a)), was apparently intended by Congress to be
accomplished in several ways.
OGE would act as a resource for executive
branch ethics regulation, would promulgate uniform ethics rules, provide
information and education to federal employees and officers, and provide
5/ employees and officers of the government with an advisory opinion service.
Secondly, OGE wouid consult with, and coordinate, provide oversight, guidance
and assistance to the individual executive branch agencies and their ethics
officers in their enforcement of ethics rules at the agency level concerning
6/ specific conflict of interest and ethics questions. Finally, as an enforce
ment and oversight device, the OGE would intervene and "order" an agency or
7/ an employee to take certain action on a specific case.
The OGE would thus act as a resource and a consultant for employees and
agency ethics officers, on request, on the one hand, but also have the spe
cific statutory authority, on the other hand, to require and order specific
corrective action by an agency or an individual on conflict of interest and
See 5 U.S.C. App. § 402(b)(9).
This latter authority was
conferred by Congress in direct response to criticisms under the old system
that the former Civil Service Commission lacked such enforcement authority
51 See, for example, 5 U.S.C. App. $ 402(b)(1),(2),(8),(14),(15).
6/ 5 U.S.C. App. $ 402(b)(7),(12).
21 5 U.S.C. App. $ 402(b)(9). "The responsibilities of the Director shall include ordering corrective action on the part of agencies and employees which the Director deens necessary."
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 of
ficers 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 of
fice was the legislative response to the most recent call for a central
ized 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, FPCD
(GAO Report of 1977).
Earlier recommendations for a centralized
ethics office with authority to coordinate ethics and conflict of interest
to order agency action.
GAO Report, supra at 24; H.R. Rpt. No. 95-800,
supra at 29-30; S. Rpt. No. 95-170, supra at 30-31.
It would appear, therefore, that with respect to enforcement of the
conflict of interest and ethics standards in individual cases that the OGE
has the specific statutory authority to take an active role in enforcement
of such standards at the agency level on its own initiative by way of or
dering agency or individual action.
Budgetary constraints and agency
priorities notwithstanding, the OGE does not appear to be required, nor
does it appear to have been specifically intended by Congress, to play
only a passive role of "resource" and "consultant" on ethics enforcement
merely when requested by the agencies.
It is interesting to note that although Congress specifically granted
OGE the authority to "order" agency action with respect to a particular
conflict of interest matter, there is no use of the specific term "in
vestigate" in the statutory language with regard to individual ethics
cases, as there is with respect to disclosure (see 5 U.S.C. App. § 402(b)
(3)), and other financial reporting matters.
5 U.S.C. App. § 402(b)(5)).
Similarly, the use of the terms "monitoring" or "conducting a review" are
used with respect to the Director's responsibilities concerning the fi
nancial disclosure and reporting requirements of agencies and employees
(5 V.S.C. App. § 402(b)(3),(4), and (5)), but are not used when describing
the responsibilities of the Director of OGE with respect to individual
When Congress uses a term in one section or subsection of
a law, but omits it from another section of that law the implication is
that such omission is intentional and is done with a specific purpose
in the disparate exclusion.
United States, 464 U.S. 16, 23
(1983). The monitoring and investigation which OGE performs with regard
to the disclosure and reporting requirements may arguably be intended by
Congress, therefore, to be of a different nature and character than the
oversight and enforcement activities which OGE is to perform with respect
to individual conflict of interest cases.
It may seem somewhat paradoxical and inconsistent that OGE may order
certain action by an agency or an individual on a specific ethics matter,
but that it 18 not authorized to "investigate" that matter beforehand.
The committees considering the Ethics in Government Act legislation in
dicated at various points, however, that an effective ethics agency must
look into, intervene in, and even "investigate" agency or individual com
pliance with conflict of interest regulations and laws in the course of
ordering agency or individual action (H.R. Rpt. No. 95-800, supra at
30; S. Rpt. No. 95-170, supra at 30), and it seems logically consistent
and necessary for OGE to look at, examine, or conduct some kind of inquiry
or study of a particular matter as a prelude to and as a concomitant part
of its authority to order action by an agency or an individual, regardless
of the absence of a specific statutory authority to "investigate“ such
The executive agencies are specifically directed by statute to
"furnish to the Director (of OGE) all information and records in its pos
session which the Director may determine to be necessary for the performance
of his duties." 5 U.S.C. App. § 403.
This provision would facilitate any
inquiry, investigation, or study of a particular ethics or conflict of in
terest matter in an agency by OGE.
The legislative history of the Ethics in Government Act of 1978 was not
particularly precise as to the extent of any independent inquiry by OGE of