110 S2270 IS: Executive Branch Accountability and Transparency Act of 2023
U.S. Senate
2023-07-12
text/xml
EN
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II
118th CONGRESS
1st Session
S. 2270
IN THE SENATE OF THE UNITED STATES
July 12, 2023
Mr. Grassley (for himself, Mr. Peters, Mr. Padilla, and Mr. Lankford) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs
A BILL
To establish and maintain a database within each agency for executive branch ethics records of noncareer appointees.
1.

Short title
This Act may be cited as the “Executive Branch Accountability and Transparency Act of 2023”.
2.

Agency databases for publicly available government ethics records
(a)

Definitions
In this section:
(1)

Agency
The term agency means each Executive agency, as defined in section 105 of title 5, United States Code, and each component of the Executive Office of the President, including those components established under title 3, United States Code.
(2)

Covered employee
(A)

Inclusions
The term covered employee includes the following individuals:
(i)
Each individual who is—
(I)
a noncareer employee; and
(II)
is described in paragraphs (3) through (8) of section 13103(f) of title 5, United States Code.
(ii)
Each individual serving in a position with respect to which a determination has been made under section 7511(b)(2) of title 5, United States Code.
(iii)
Each special Government employee, as defined in section 202(a) of title 18, United States Code, who is employed in the Executive Office of the President, other than a special Government employee serving solely on a Federal advisory committee or presidential advisory committee.
(iv)
An individual who previously served in the Federal Government in a capacity described in clause (i), (ii), or (iii) during the preceding 10-year period.
(B)

Exclusion
The term covered employee excludes any individual described in section 13107(a)(1) of title 5, United States Code.
(3)

Covered ethics record
(A)

Inclusions
The term covered ethics record—
(i)
with respect to any individual, means—
(I)
each approval granted pursuant to subsection (b) or subsection (c) of section 908 of title 37, United States Code; and
(II)
each report to Congress required under section 908(d) of title 37, United States Code; and
(ii)
with respect to a covered employee, means—
(I)
each public financial disclosure report filed pursuant to section 13103 or section 13105(l) of title 5, United States Code;
(II)
each amendment to a public financial disclosure report filed pursuant to section 13103 or section 13105(l) of title 5, United States Code;
(III)
each waiver of—
- (aa)
a post-employment restriction, pursuant to subsection (c)(2)(C) or subsection (k) of section 207 of title 18, United States Code;
- (bb)
section 208(a) of title 18, United States Code, that has been issued pursuant to section 208(b)(1) of title 18, United States Code;
- (cc)
the cover letter regarding a public financial disclosure requirement, pursuant to section 13103(h)(2)(i) of title 5, United States Code;
- (dd)
the cover letter regarding the requirement to disclose a gift, pursuant to section 13104(a)(2)(C) of title 5, United States Code; and
- (ee)
a provision of any regulation of the Office of Government Ethics, supplemental agency ethics regulation, or executive order pertaining to Government ethics, or any successor thereto;
(IV)
each written authorization of an individual to participate in a matter from which recusal would otherwise be required under any provision of law, regulation, executive order, or policy pertaining to Government ethics and applicable to the individual as an employee of the executive branch;
(V)
each written approval or written authorization permitting an individual to accept a gift from an outside source that would otherwise be prohibited under section 7353 of title 5, United States Code, or any other provision of law, regulation, executive order, or policy pertaining to government ethics and applicable to the individual as an employee of the executive branch;
(VI)
each written determination—
- (aa)
that a position may be excluded from otherwise applicable public financial disclosure requirements, pursuant to section 13103(f)(5) of title 5, United States Code;
- (bb)
that an employee of the executive branch, or the spouse or minor child of an employee of the executive branch, must divest a financial interest; or
- (cc)
regarding an individual that is required to be made pursuant to any other provision of law, regulation, executive order, or policy pertaining to Government ethics and applicable to the individual as an employee or former employee of the executive branch;
(VII)
each written ethics agreement, recusal, or screening arrangement pertaining to employment in the executive branch;
(VIII)
each record of the completion by a presidential appointee of ethics training required under a regulation of the Office of Government Ethics;
(IX)
each certificate of divestiture issued pursuant to section 1043 of the Internal Revenue Code of 1986 and each request that resulted in the issuance of a certificate of divestiture;
(X)
each qualified blind trust agreement and each record described in section 13104(f)(5)(D) of title 5, United States Code;
(XI)
each record submitted pursuant to section 13103(b)(1) of title 5, United States Code, for the purpose of making current, with respect to income and honoraria, a financial disclosure filed pursuant to that paragraph;
(XII)
each notice submitted pursuant to section 13111 of title 5, United States Code, and any certification by a Senate-confirmed presidential appointee as to compliance with an ethics agreement, whether submitted to the respective agency, the Office of Government Ethics, or the Senate;
(XIII)
any written opinion issued pursuant to section 847 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181; 10 U.S.C. 1701 note), except that the agency may redact the name of an individual or organization with whom an individual has not yet accepted an offer of employment or compensation;
(XIV)
any notification filed pursuant to section 17 of the STOCK Act (5 U.S.C. 13103 note), except that the agency may withhold the public release of any such notification unless and until such time as the employee has accepted an offer of employment or compensation from an individual or organization that is the subject of the notification;
(XV)
each certification made pursuant to—
- (aa)
section 203(e) of title 18, United States Code;
- (bb)
section 205(f) of title 18, United States Code; or
- (cc)
section 207(j)(5) of title 18, United States Code; and
(XVI)
any other category of records that the Director of the Office of Government Ethics determines is appropriate for inclusion in the database of an agency under this Act.
(B)

Exclusions
The term covered ethics record excludes—
(i)
classified information, as defined in section 798 of title 18, United States Code;
(ii)
the subject of any ongoing law enforcement matter that, in the opinion of the agency, requires the information or record to be kept confidential;
(iii)
information, including any confidential financial disclosure report, filed pursuant to section 13109 of title 5, United States Code, except that such exclusion shall not be construed to exclude from inclusion in any database established under this Act, or to authorize redaction of, any conflict of interest waiver issued to the filer of the confidential financial disclosure report; or
(iv)
individualized ethics counseling or advice concerning an interpretation of applicable legal requirements that has been provided by an ethics official to an individual, except that such information or record shall not be excluded if such information or record is a covered record under subparagraph (A).
(4)

Noncareer employee
The term noncareer employee means an individual who is—
(A)
serving in a position to which the President appointed the individual (without regard to whether the advice and consent of the Senate was required with respect to that appointment), other than an individual who is—
(i)
a member of a uniformed service, as that term is defined in section 210(m) of the Social Security Act (42 U.S.C. 410(m)); or
(ii)
a member of the Foreign Service serving under a career appointment, as described in section 301 of the Foreign Service Act of 1980 (22 U.S.C. 3941);
(B)
a noncareer appointee, as that term is defined in section 3132(a) of title 5, United States Code;
(C)
serving in a position in a Federal executive system that is comparable to the Senior Executive Service, the appointment to which is not made through merit-based procedures, such as a position in the Transportation Security Executive Service; or
(D)
serving in a position with respect to which a determination has been made under section 7511(b)(2) of title 5, United States Code.
(b)

Specifications of databases
Not later than 120 days after the date of enactment of this Act, the Director of the Office of Government Ethics shall publish guidance for a searchable, sortable database created by each agency through which members of the public can access covered ethics records and that shall each be—
(1)
hosted on an official website of each agency without charge and without a requirement that members of the public register for access;
(2)
accessible through an application programming interface;
(3)
fully compliant with—
(A)
section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d); and
(B)
the most recent Web Content Accessibility Guidelines (or any successor guidelines); and
(4)
accessible through the website of each agency and through a single webpage operated by the Office of Government Ethics.
(c)

Assembly of covered ethics records
Except as provided in subsection (f), the head of each agency shall—
(1)
not later than 270 days after publication of guidance under subsection (b), compile electronic copies of covered ethics records that originated with the agency, in such format and through such means as is necessary to permit their inclusion in the database of the agency pursuant to the requirements published under subsection (b); and
(2)
ensure that the contents of all such records are machine-readable and compliant with the requirements published under subsection (b).
(d)

Establishment of databases
Not later than 1 year after the date on which the Director of the Office of Government Ethics publishes the guidance under subsection (b), each agency shall create a database that complies with all requirements under the guidance published under subsection (b).
(e)

Applicability of other inspection procedures
(1)

In general
Subject to paragraph (2), no identifier shall be required to search or sort the data contained in the databases established pursuant to subsection (d).
(2)

Downloading data
A login protocol that includes the name of the user shall be utilized by any person downloading data contained in the records compiled pursuant to subsection (c).
(3)

Inspection of reports
For purposes of this section, section 13107(b) of title 5, United States Code, shall not apply to any records compiled pursuant to subsection (c).
(f)

Redactions
(1)

Contents of reports
Nothing in this section shall be construed to permit the redaction of any information required to be released pursuant to section 13104 of title 5, United States Code.
(2)

Prohibitions
Covered ethics records may not be redacted except to the extent necessary to—
(A)
ensure the exclusion of information described in subsection (a)(3)(B);
(B)
prevent the release of trade secrets or commercial information that is privileged or confidential, unless the disclosure of such information is required pursuant to section 13104 of title 5, United States Code; or
(C)
prevent the release of information, other than information required to be reported under section 13104 of title 5, United States Code, that, in the opinion of the agency, poses an identifiable risk to the safety of an individual, such as a street address, the name of a minor, or a brokerage account number.
(g)

Records predating establishment of the database
(1)

Search for older information
Not later than 18 months after the publication of guidance under subsection (b), each agency shall complete a search reasonably calculated to find covered ethics records that were created during the 9-year period preceding the date of enactment of this Act.
(2)

Included information and certification
Each search carried out pursuant to paragraph (1) shall include all materials in the possession of the ethics office of an agency or readily accessible materials in any other office within the agency that the designated agency ethics official certifies in writing is the most likely office to possess covered ethics records.
(3)

Exclusion from search
In carrying out this subsection, each agency shall exclude information described in subsection (a)(3)(B) from the search carried out pursuant to paragraph (1).
(4)

Report
Not later than 30 days after the completion of the search carried out pursuant to paragraph (1), each designated agency ethics official shall provide the Director of the Office of Government Ethics with a report that describes—
(A)
the scope of the search and steps undertaken to identify information;
(B)
a copy of the certification required under paragraph (2);
(C)
the best estimate as to the completeness of the collection of information provided to the Director of the Office of Government Ethics;
(D)
an identification of any categories of information known to the agency that the agency was unable to find; and
(E)
a certification signed by the designated agency ethics official affirming that the agency made reasonable efforts in good faith to identify and obtain covered ethics records.
(5)

Publication
The Director of the Office of Government Ethics shall publish the report under paragraph (4) on the official website of the Office of Government Ethics.
(h)

Removal of records
Notwithstanding any other law regarding the disposition of records or information, all covered ethics records relating to noncareer employees that are required to be included in the database of an agency pursuant to this section shall remain publicly available through the database for a period of not less than 10 years after the date on which the covered ethics record is first published in the database.
(i)

Reports
(1)

Initial report
Not later than 30 days after the establishment of a database under subsection (d), the relevant designated agency ethics official shall provide the Director of the Office of Government Ethics with a report that certifies the completeness of records in the database of the agency and any information that is known to be incomplete under the guidance published under subsection (b).
(2)

Annual reports
Based on the information collected under subsection (g)(4), and as necessary under section 2638.207 of title 5, Code of Federal Regulations, the Director of the Office of Government Ethics shall report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives regarding compliance with the requirements under this Act each year until each agency has complied with subsections (d) and (g).
(j)

Severability
If any provision of this Act or the application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this Act, and the application of the remaining provisions of this Act to any person or circumstance, shall not be affected.