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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

ethics matters.

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."

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of interest by "ordering corrective action on the part of agencies and

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Congressional Intent concerning the Authority of the Office
of Government Ethics Over Individual Ethics and Conflicts
of Interest Matters

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).

77-23.

Earlier recommendations for a centralized

ethics office with authority to coordinate ethics and conflict of interest

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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

ethics cases.

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.

Russello v.

United States, 464 U.S. 16, 23

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(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

matters.

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

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