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ETHICS IN GOVERNMENT: OFFICE OF

GOVERNMENT ETHICS

MONDAY, SEPTEMBER 29, 1986

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INVESTIGATIONS,
COMMITTEE ON Post OFFICE AND Civil SERVICE,

Washington, DC The subcommittee met, pursuant to call, at 9:35 a.m.,

in room 311, Cannon House Office Building, Hon. Gerry Sikorski (chairman of the subcommittee) presiding.

Mr. SIKORSKI. Good morning.

This is a hearing before the Subcommittee on Investigations of the Committee on Post Office and Civil Service. Under Rule X of the House of Representatives, this subcommittee is responsible for "the investigation, review, and study, on a continuing basis, of the application, administration, and execution of those laws, the subject of which is within the jurisdiction of the committee.”

The Committee on Post Office and Civil Service has played a major role in defining and shaping the ethics laws and standards of the Federal Government. The efforts of the committee culminated in the enactment of the Ethics in Government Act of 1978, landmark legislation which created the current Federal ethics system. In 1983, the committee worked to pass major amendments which clarified and strengthened the provisions of the Ethics Act.

The Subcommittee on Investigations' initial involvement in the issue of government ethics grew out of our examination of the activities of Mary Ann Gilleece, former Deputy Assistant Secretary for Acquisition Management at the Department of Defense.

While still employed by Defense, Ms. Gilleece solicited business from major defense contractors she was regulating, raising serious questions about the adequacy of the ethics advice given her, as well as the adequacy of DOD's entire ethics program.

During the course of the subcommittee's investigation, it became clear that many inconsistencies in the conflict-of-interest statutes exist which hinder the implementation and enforcement of ethical standards throughout the Federal Government.

As a result of the subcommittee's findings in the Gilleece case and the large and growing list of Federal officials alleged to have violated ethics laws, last year the subcommittee expanded its inquiry to focus on the entire Executive Branch ethics program.

The long parade of government officials and high-level employees under indictment, forced to resign, dismissed or under siege, has shaken the public's confidence in our government. The apparent

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lack of concern and lax enforcement have led some Americans to believe that there is a double standard. One for them and one for the "big guys:" If you are powerful, politically connected, an appointee of a popular President, and your conduct is questionable, OGE acts like a St. Bernard and comes to the rescue. If you aren't big, aren't connected, aren't wealthy, the Feds come on like Doberman pinschers-tough luck.

Today's hearing is the first in a series on ethics in government. We will today begin to examine the mission, organization, operation and performance of the Office of Government Ethics.

The Office of Government Ethics, or OGE, was established under Title IV of the Ethics in Government Act to provide direction to the Executive Branch on policies aimed at preventing conflict-of-interests by Federal employees.

Specifically, OGE was empowered to implement financial disclosure requirements, enforce ethical standards of conduct, develop regulations on post-employment activities and monitor and investigate executive agency ethics programs.

For some months, the subcommittee has dissected the Office of Government Ethics under our microscope. After that examination, we have found that Congress is not getting what it expected when it created OGE to oversee the Executive Branch Ethics Program. Our investigation has disclosed that while OGE is fulfilling some of its mandated responsibilities, it has been lax in carrying out its most important duties.

The subcommittee staff found that OGE was quite responsive in providing prompt legal advice, and in conducting ethics training for some government employees. These are important services and certainly help to prevent ethics violations.

However, when it comes to tackling the more difficult challenges of the job-such as providing ethics policy guidance to the many departments and agencies, or ensuring that the ethical standards of conduct are uniformly and stringently enforced-OGE has simply failed to fill the leadership role which Congress outlined for it in the Ethics Act.

Further, OGE does not regularly collect any basic management data to fulfill its responsibilities for continuously monitoring Federal agency ethics programs. As a result, OGE is out of touch with the agencies and is often unable to identify and correct problems before they become crises.

Finally, it is important to note that OGE was created by Congress to fill an enforcement vacuum. Congress decided in 1978 that a central office was needed which would vigilantly enforce administrative sanctions against those Federal officials and employees who violated the ethical standards of conduct.

Congress concluded that the agencies were not adequately enforcing those standards. Thus, OGE was given administrative enforcement authority and a clear mandate to use it.

As we will hear from several of our witnesses today, OGE has failed to exercise this crucial authority. Some have suggested that this supposed watchdog is more a toothless terrier on valium.

In the wake of revelations about Michael Deaver's post-White House conduct, and in light of the apparent interest of some to "deregulate" or "privatize" the Executive Branch Ethics Program, a number of laws have been proposed to tighten ethical standards, particularly the criminal post-employment laws which apply to former government officials.

However, before Congress enacts this type of legislation, we ought to ask whether the problem is a lack of necessary laws or whether instead the problem is inadequate enforcement of the existing laws.

Our hearing today will attempt to answer these questions as they apply to the Federal Executive Branch.

Our witnesses will focus on a variety of subjects, all related to the operation of the Executive Branch Ethics Program and to OGE's role within it.

Our first witness this morning will be Mr. Fred Wertheimer, President of Common Cause, a citizens' organization that has made government ethics a major focus of its work.

We will then hear from Stanley Brand, who was General Counsel to the Clerk of the House of Representatives when the Ethics in Government Act was enacted. Mr. David H. Martin, the Director of the Office of Governments Ethics will then testify about the current Executive Branch Ethics Program. He will be followed by Gerald H. Yamada, Deputy General Counsel, designated Agency Ethics Official at the U.S. Environmental Protection Agency; and Mr. Gabriele J. Paone, Deputy Agency Ethics and Audit Coordination Official, U.S. Department of the Interior.

Mr. Yamada and Mr. Paone will discuss ethics problems at their agencies.

The witnesses are advised that a copy of the House rules is available for your reference and will be there at the table. I refer to House Rule XII, Clause (k).

Do you wish to have counsel with you, Mr. Wertheimer? TESTIMONY OF FRED WERTHEIMER, PRESIDENT, COMMON

CAUSE, ACCOMPANIED BY MICHAL FREEDMAN, ATTORNEY, COMMON CAUSE

Mr. WERTHEIMER. Not counsel, Mr. Chairman, but I am accompanied by Michal Freedman, who works on this issue on our staff and who is an attorney.

Mr. SIKORSKI. Will she be providing testimony?
Mr. WERTHEIMER. She may.

Mr. SIKORSKI. In that case, Ms. Freedman, do you wish to have counsel present?

Ms. FREEDMAN. No.
Mr. SIKORSKI. Do either of you have objections to being sworn?
Mr. WERTHEIMER. No.
[Witnesses sworn.]
Mr. SIKORSKI. Go ahead, Mr. Wertheimer.

Mr. WERTHEIMER. Mr. Chairman, we appreciate this opportunity to appear on behalf of Common Cause to discuss the role of the Office of Government Ethics in providing direction and oversight for Executive Branch ethics policy.

I have provided a more complete statement to the committee which we would like to ask be inserted in the record and then I will summarize my comments.

Mr. SIKORSKI. Without objection, that will be appropriate and we appreciate that.

I have had occasion to read it through and I think you have done an excellent job. I hope you don't rub too many edges away in your summary. Mr. WERTHEIMER. Thank you.

We believe that the standards of public service for this country are profoundly threatened today. We are faced with a crisis in the ethical standards and activities of our public officials.

We see this crisis in continuing revelations about ethics problems of high-level government officials and the crisis is exacerbated by an Office of Government Ethics not paying attention to the various ethics problems facing the government.

The problem really is twofold. You see a series of public stories, public allegations, charges, questions raised about the activities of public officials. That is one set of problems, and then almost invariably you see nothing done with those problems, you see no resolution, you do not see government statements explaining whether they are right or wrong, whether anyone objects to it, and that, of course, is a second set of problems and one that comes directly within the purview of the Office of Government Ethics.

We are very pleased that you are holding this subcommittee hearing and investigation into this matter. We believe as an organization that these questions are very fundamental questions. They are basic to the issue of whether you have an honest government, whether you have integrity in government, whether people can have confidence in government.

We also believe that a vigorous Office of Government Ethics could do much to ensure that government officials honor the highest standards of ethics. Instead, the current office in our view falls far short of that goal, providing virtually no leadership.

Congress did intend this office to play a forceful role in enforcement of ethics standards against even our highest officials. If we are to have an effective ethics government program, the agency must play an active role in identifying problem areas in the law, providing formal guidance and interpretation of those issues. It goes without saying that the Office of Government Ethics should avoid confusing and misinterpreting the law.

In our testimony, we set forth a review of the OGE's oversight of major allegations of unethical conduct by high-level officials. The review in our opinion indicates how reluctant OGE has been to pursue questionable conduct by senior officials. It discusses OGE's reluctance to issue regular public findings containing its evaluation of the conduct of high level officials about whom allegations of wrongdoing have been made, its apparent failure to order corrective actions and its apparent limited review of the allegations against such officials.

Abuse of the public trust by public officials as a potential problem of governing is not a new phenomenon. We have always faced the situation where individuals have been willing to compromise integrity and government for their private ends. That is not the issue.

The issue is how government deals with these problems, whether it treats them seriously, whether it tries to prevent them and

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