There is another significant means of enforcement available to government agencies: publication and distribution of its findings and orders. This means of enforcement is envisioned by the legislative history. In Barr v. Matteo, 360 U.S. 564, 568 (1959) the Court held that a press release issued by the head of a government agency, explaining the reasons for suspending two agency employees was within the agency head's line of duty and immune from judicial review. Ad the court noted, such press releases have become "standard agency practice." 360 U.S. at 574. This publication of the OGE's determinations could be a strong enforcement tool when used responsibly and appropriately. Finally, the law provides for authority to refer possible violations of conflict of interest laws to the Department of Justice for investigation. 5 U.S.C. App. § 402 (b) (13). This too, would seem to be a potent enforcement tool in aggravated cases which is found in many administrative schemes to buttress the authority of the agency charged with enforcement. this to be so when I was General Counsel to the Clerk of the House, who was a supervisory officer under the Federal Regulation of Lobbying Act, 2 U.S.C. § 261 et seq, in referring potential violations to the Department of Justice. I found There is perhaps one other means by which the OGE could force an agency to take required corrective action: suit brought to enjoin compliance. Generally, in the absence of express authority to sue to enforce its orders, an agency will not be deemed to have authority to seek judicial relief. However, there is a line of cases which establish the nonstatutory power to sue where a significant governmental or public interest will be harmed and Congress has legislated in the area. United States v. Bell Telephone Co. 128 U.S. 315 (1888) (suit for recision of fraudulently procured patent), In Re Debs, 158 U.S. 564 (1895), New York Times v. United States, 403 U.S. 713 (1971). In United States v. ICC, 337 U.S. 426 (1949) the government brought suit in district court to obtain relief from an order of the Interstate Commerce Commission imposing allegedly unlawful railroad rates on the United States as shipper. Of course, there is an issue with respect to whether the courts can entertain intra-branch suits between one government agency and another under the separation of powers doctrine. Ironically, this argument was raised by President Nixon and rejected by the Court in the Watergate tapes case. As the Court stated in United States v. Nixon, 418 U.S. 683, 689 (1984) "The mere assertion of a claim of an 'intra-branch dispute', without more, has never operated to defeat federal jurisdiction...[and] 'courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.'" The Court found the case was justiciable because one official of the Executive branch (the special prosecutor) was seeking to carry out his express authority while another executive (the President) resisted the demand. Certainly, the same could be said in an instance where OGE might seek to enforce 69-776 0 - 87 - 3 - 9 its corrective order against an agency resisting its authority to do so. This leads to my final point: lack of dispositive judicial construction to enforce a statute through suit is not necessarily a reason for not trying in an appropriate case. Government lawyers, if they can satisfy themselves that a good faith legal argument can be made in support of a particular construction of a statute, and the purpose served by that construction furthers the ends sought to be achieved in the law, will often move ahead even without conclusive legal proof that they will succeed. Indeed, government attorneys, through incremental interpretative efforts, are always expanding statutory schemes. In the Ethics-inGovernment Act itself, the Department of Justice brought a criminal case under the federal false statements statute for allegedly false financial disclosure statements required to be filed under EIGA despite the removal of criminal penalties from the legislation during its consideration in Congress. United States v. Hansen, F.2d (D.C. Cir. 1985). In summary, it appears that the statute and its history conclusively establish OGE's authority to order agencies to take corrective action it deems necessary and that it has an impressive array of means with which to do so. Mr. SIKORSKI. The Chair now calls David Martin, Director of the Office of Government Ethics. Mr. Martin, take a seat. I have a couple of preliminary questions. You are advised that a copy of the House Rules is available before you for your reference, in particular, Rule 11. Do you wish to have counsel present? Mr. MARTIN. Counsel? Mr. SIKORSKI. Yes. Mr. MARTIN. Well, I have my Chief Counsel with me. Mr. MARTIN. Mr. Covaleski is to my left, your right, Chief of the Monitoring Compliance Section in my office. To my right is Mr. Donald Campbell, who accompanies me, Chief Counsel of the office. Mr. SIKORSKI. He is here to testify, if necessary, on questions that are asked? Mr. MARTIN. He is here to assist me. Mr. SIKORSKI. He is not here as your counsel, however? Mr. MARTIN. My personal counsel? I am my personal counsel. Mr. SIKORSKI. Gentlemen, I take it, you two might be making comments or responding to questions as we go along. Do either of you wish to have counsel present. Mr. CAMPBELL. No. Mr. COVALESKI. No. Mr. SIKORSKI. Do any of you object to being sworn in? Mr. MARTIN. No. Mr. CAMPBELL. No. Mr. COVALESKI. No. [Witnesses sworn.] TESTIMONY OF DAVID H. MARTIN, DIRECTOR, OFFICE OF GOVERNMENT ETHICS, ACCOMPANIED BY DONALD CAMPBELL, CHIEF COUNSEL, OGE, AND JACK COVALESKI, CHIEF, MONITORING COMPLIANCE SECTION, OGE Mr. SIKORSKI. Mr. Martin, you may proceed with your statement. Mr. MARTIN. I submitted a statement for the record, and I apologize for it not arriving until this morning, but it was not cleared by OMB until late Friday. I ask that it be submitted for the record. I would amplify that statement by saying we are involved in ensuring that ethics are carried out in the Executive Branch, and we have, to that end, engaged in extensive and intensive training and dissemination of materials and information that would assist the various Executive Branch agencies in carrying out their duties. I specifically direct your attention to page 3 of my prepared statement where we, by bullet, list 1, 2, 3, 4, 5, 6, 9, specific things that we have been involved in. In particular, we are very proud of two things. One is the publication of this little pamphlet called, "How to Keep Out of Trouble, Ethical Conduct for Federal Employees." Over 400,000 have been distributed in the Executive Branch. It was done by our initiative in 1985. It has been received very well in the Executive Branch, and one of Mr. Covaleski's subordinates worked on it quite extensively. The other thing we are quite proud of is the newsletter that we have instituted in 1984 under a program to educate the DAEOS and General Counsels involved in the ethics matters. I would like to list the things we have discussed in that newsletter which are important in the ethics world. The review of public financial disclosure forms, spousal employment problems, Presidential transition aids, issues of negotiating for employment, severance payments, how to manage an ethics program, post-employment problems, issue of commercial discounts, the issue of participation in seminars, outside employment, a variety of recent Comptroller General opinions affecting ethics, and a general discussion of the criminal conflict of interest laws. These things, we think, are timely issues, and our publication is put out quarterly, and we think it has been a big help. Other than that, Mr. Chairman, we are prepared to answer any questions you may have about our program. [The statement of Mr. Martin follows:] |