Conflict-of-Interest Controls: Documented Recusal Obligations of Top
Political Appointees in DOE and EPA (Fact Sheet, 03/07/95,
GAO/GGD-95-81FS).
This fact sheet identifies the extent of and the bases for the promises
made by 41 Senate-confirmed political appointees in the Energy
Department and the Environmental Protection Agency to disqualify
themselves from agency matters that might present conflicts between
their personal lives and their governmental responsibilities. Such
disqualifications are referred to as "recusals" in federal
conflict-of-interest regulations. GAO also identifies the extent to
which these individuals took other steps to address conflicts of
interest. About half of the appointees were the last incumbents in the
Senate-confirmed positions during the Bush Administration. The other
half are Clinton Administration appointees.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-95-81FS
TITLE: Conflict-of-Interest Controls: Documented Recusal
Obligations of Top Political Appointees in DOE and EPA
DATE: 03/07/95
SUBJECT: Conflict of interest
Lawyers
Ethical conduct
Federal personnel law
Presidential appointments
Congressional/executive relations
Regulatory agencies
Public officials
Documentation
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Cover
================================================================ COVER
Fact Sheet for the Ranking Minority Member, Committee on Commerce,
House of Representatives
March 1995
CONFLICT-OF-INTEREST CONTROLS -
DOCUMENTED RECUSAL OBLIGATIONS OF
TOP POLITICAL APPOINTEES IN DOE
AND EPA
GAO/GGD-95-81FS
Conflict of Interest
(966608)
Abbreviations
=============================================================== ABBREV
DAEO - Designated agency ethics official
DOE - Department of Energy
EPA - Environmental Protection Agency
OGE - Office of Government Ethics
Letter
=============================================================== LETTER
B-259424
March 7, 1995
The Honorable John D. Dingell
Ranking Minority Member
Committee on Commerce
House of Representatives
Dear Mr. Dingell:
The principal purpose of this fact sheet is to identify the extent of
and the bases for the promises made by 41 Senate-confirmed political
appointees in the Department of Energy (DOE) and the Environmental
Protection Agency (EPA) to disqualify themselves from certain agency
matters to avoid conflicts between their personal interests and their
governmental responsibilities. (Such disqualifications are referred
to as "recusals" in federal conflict-of-interest regulations.) We
have also identified the extent to which these individuals took other
remedial actions to address actual or potential conflicts of
interest. About half of the appointees (20) were the last incumbents
in the Senate-confirmed positions during the administration of
President Bush and are referred to in this report as Bush appointees.
The other half (21), referred to as Clinton appointees, were serving
in the administration of President Clinton at the end of 1993.
Our specific objectives were to document:
-- the extent to which nominees to Senate-confirmed positions in
DOE and EPA promised to recuse themselves from official
government matters during the two administrations, including any
changes between administrations in the frequency of occurrence
of documented recusal promises or obligations;
-- the bases cited in agency records for the recusal obligations of
the appointees, including a description of the recusal
obligations made by each nominee; and
-- the extent to which appointees with nominee recusal obligations
had also documented taking other remedial actions to comply with
criteria governing their participation in official government
matters, i.e., divestitures of financial interests, agency
waivers of statutory participation prohibitions, and any recusal
obligations following Senate confirmation.
BACKGROUND
------------------------------------------------------------ Letter :1
Each presidential nominee confirmed by the Senate must undergo a
conflict-of-interest analysis by both the employing agency and the
Office of Government Ethics (OGE).\1 These analyses involve review
and approval of a public financial disclosure report filed by the
nominee and the preparation of opinion letters by agency ethics
officials certifying that there are no unresolved conflicts of
interest under applicable laws and regulations.
To address any actual or potential conflicts that have been
identified, federal ethics law requires the nominee to enter into an
ethics agreement. An ethics agreement, according to OGE, describes
the actions that a nominee has agreed to take to resolve conflicts of
interest, including recusals when the need may arise, divestitures of
financial interests, waivers of participation restrictions, and
resignations from outside positions.
--------------------
\1 OGE was established by the Ethics in Government Act of 1978 and is
responsible for providing overall direction of executive branch
policies related to the prevention of conflicts of interest by
officers and employees of the executive branch.
CRITERIA FOR DOCUMENTING
RECUSAL OBLIGATIONS
---------------------------------------------------------- Letter :1.1
Statutory criteria governing how an obligation to recuse should be
documented originated from a 1983 amendment to the Ethics in
Government Act of 1978 (Sec. 9 of P.L. 98-150, Nov. 11, 1983,
codified at 5 U.S.C. App. 6, Sec. 110). These criteria require
presidential appointees and other filers of public financial
disclosure reports to put in writing those subjects to which the
recusal obligation will apply and the process for determining whether
the individual must recuse himself or herself in a specific
instance.\2
Under regulations and guidance implementing this statutory provision,
OGE considers a copy of the recusal statement with details on the
matters covered and method of enforcement as satisfactory evidence of
the appointee's fulfillment of an ethics agreement containing a
recusal obligation. The law requires that these recusal statements
be prepared within the time prescribed by the ethics agreement or not
later than 3 months after the date of the agreement if no date is
specified. OGE has determined that the day a presidential appointee
is confirmed is the day an ethics agreement becomes effective and
considers any agreements containing a recusal obligation to be
delinquent if the appointee has not approved a recusal statement more
than 90 days after confirmation. Although the appointee is
responsible for approving and executing the recusal statement, such
statements are typically prepared by agency ethics officials.
As part of the recusal execution process, a "screening official" is
to be designated in the recusal statement to help identify any
disqualifying matters that may arise, and a "referral official" is to
be designated to act in place of the appointee on any particular
disqualifying matters. However, neither the appointee nor the
screening or referral official is required by law or OGE regulation
to notify anyone of the appointee's actions to recuse from specific
matters. Neither OGE nor the agencies maintain comprehensive data on
the specific agency matters that individual appointees did not
participate in because of their recusal obligations.
--------------------
\2 In contrast, recusals for the majority of federal employees who do
not file public financial disclosure reports need not be in writing.
Recusals for these employees are to be accomplished simply by their
not participating in matters that could affect their financial
interests. Agency ethics officials or supervisors, however, have the
discretionary authority under OGE regulations to request
notifications of a recusal in writing, or an employee may voluntarily
elect to put a recusal in writing.
LEGAL BASES CITED FOR TYPES
OF REMEDIAL ACTIONS TAKEN TO
RESOLVE IDENTIFIED CONFLICTS
---------------------------------------------------------- Letter :1.2
Table 1 gives a brief description of the key legal bases cited in
agency records for the various types of remedial actions taken by the
Senate-confirmed appointees in DOE or EPA to resolve situations
identified as an actual or potential conflict of interest. As shown
in the table, several of these legal requirements were either
repealed or added during the administrations of both Presidents Bush
and Clinton.
Table 1
Key Legal Bases Cited for Types of
Remedial Actions
Source Description
---------------------------------- ----------------------------------
Executive branch laws and regulations
----------------------------------------------------------------------
18 U.S.C. 208 (basic statute Participation restriction:
effective since 1962, last amended Prohibits executive branch
in 1989 with passage of Ethics employees from participating
Reform Act of 1989) "personally and substantially" in
an official capacity in any
"particular matter" in which, to
their knowledge, they or any
person whose interests are imputed
to them under this statute has a
"financial interest," if the
particular matter will have a
"direct and predictable effect" on
that interest.
Waiver authority: The appointing
official or authorized agency
designee may grant an individual
waiver when a determination is
made that the "interest [in the
matter] is not so substantial as
to be deemed likely to affect the
integrity of the services which
the Government may expect" from
the appointee. Where practicable,
agencies are required to consult
with OGE prior to granting the
waiver.
Executive Order 12674 (as modified Appearance recusal authority:
by E.O. 12731), Principles of Established a set of principles of
Ethical Conduct for Government ethical conduct for all executive
Officers and Employees (Effective branch employees that included the
April 12, 1989) general requirement that
"Employees shall endeavor to avoid
any actions creating the
appearance that they are violating
the law or the ethical standards
promulgated pursuant to this
order."
Subpart D, 5 C.F.R. 2635, Financial interest recusals:
Conflicting Financial Interests Provides for the recusal from
(effective February 3, 1993) participation in particular
matters that will have a direct
and predictable effect on the
appointee's direct or imputed
financial interests. This subpart
is the key regulation implementing
the statutory prohibition in 18
U.S.C. 208.
Subpart E, 5 C.F.R. 2635, Appearance recusals based on
Impartiality in Performing personal and business
Official Duties (effective relationships: Provides for (1)
February 3, 1993) recusal from participation in
particular matters involving
specific parties where the
appointee's work is likely to have
a direct and predictable effect on
the financial interests of a
member of his or her household, or
a person with whom he or she has a
"covered relationship," and if the
appointee determines that a
reasonable person with knowledge
of all the relevant facts would
question his or her impartiality
in the matter; and (2) recusal for
2 years from participating in any
particular matter beginning on the
date of receipt of an
extraordinary payment (with a
value in excess of $10,000) from a
former employee.
Subpart F, 5 C.F.R. 2635, Seeking Future employment recusals:
Other Employment (effective Provides for recusal from
February 3, 1993) participating in particular
matters involving a prospective or
other employer when the
appointee's work would have a
direct and predictable effect on
the financial interests of a
person with whom the appointee has
an arrangement concerning future
employment or is negotiating
employment.
DOE-specific laws and congressional policy
----------------------------------------------------------------------
Section 606 of the Department of Recusal requirement: Required
Energy Organization Act (Pub. L. newly appointed "supervisory
95-91, Aug. 4, 1977) (Repealed by employees" who were formerly
Section 3161(a) of Pub. L. 103- employed by an "energy concern"
160, Nov. 30, 1993.) (Suspended from participating for a period of
from Dec. 1, 1989, through May 31, 1 year from certain departmental
1991, by Section 507 of Pub. L. proceedings involving the
101-194, Nov. 30, 1989, and individual's former employer.
Section 815(a)(4) of Pub. L. 101-
510, Nov. 5, 1990.)
Waiver authority: The Secretary of
Energy was authorized to waive
this recusal requirement when
exceptional hardship would result,
or when in the national interest.
Any such waivers were to be in
writing by the Secretary.
Section 602 of the Department of Divestiture requirement: Prohibits
Energy Organization Act (Pub. L. "supervisory employees" of DOE
95-91, Aug. 4, 1977) from knowingly receiving
compensation from, holding any
official relation with, owning
stocks or bonds of, or having any
pecuniary interest in any "energy
concern."
Waiver authority: The Secretary of
Energy is authorized to waive this
divestiture requirement when
exceptional hardship would result,
or when the interest is a pension,
insurance, or other vested
interest. Certain information
regarding such waivers must be
published in the Federal Register.
United States Senate Committee on Recusal requirement: This policy
Energy and Natural Resources was adopted by the Committee to
Recusal Policy (effective May 6, "make applications of recusals
1993) consistent" for presidential
nominees to positions requiring
the Committee's confirmation. As a
condition of appointment, each
nominee is required to recuse
himself or herself in writing from
participation in certain matters
involving former employers or
service relationships for either
the duration of their service in
office, or a period of 1 year.
EPA-specific laws
----------------------------------------------------------------------
Section 318 of the Clean Air Act Divestiture requirement: EPA
(42 U.S.C. 7618(c) and (d)) officials occupying certain
(Repealed by Section 108(q) of positions of a regulatory or
Pub. L. 101-549, Nov. 15, 1990.) policymaking nature were
prohibited from (1) having any
official or contractual
relationship with certain
specified groups related to air
quality or (2) having financial
interests determined by the
Administrator of EPA to be
inconsistent with EPA employment.
----------------------------------------------------------------------
DATA LIMITATIONS
------------------------------------------------------------ Letter :2
The recusal obligations we identify in this fact sheet may not
account for every recusal obligation entered into by the appointees
whose records we examined. OGE regulations do not require appointees
to notify agency ethics officials of recusal obligations made
following their Senate confirmation, nor are agency ethics officials
required to maintain data on these recusals. The ethics agreement
tracking system maintained by OGE is limited to agreements made by
the appointee during the nomination and confirmation process.
While the data presented in this fact sheet may not represent the
entire scope of recusal obligations of the appointees whose records
we examined, the data reflect all the written obligations of the
appointees made that were recorded in DOE, EPA, and/or OGE records at
the time of our review. Unlike the data in OGE's tracking system,
our data also include as separate recusal obligations any temporary
recusal obligations pending divestiture or waiver of financial
interests. We established a cutoff date of December 31, 1993, for
recording the recusal obligations made by the Clinton appointees
whose records we examined.
Also, in interpreting data in this fact sheet on the extent of
nominee recusal obligations, it is important to recognize that the
key objective being sought through the recusal obligations is the
appointee's nonparticipation in any particular disqualifying matter.
In this regard, a recusal statement is meant to serve primarily as a
tool for assisting in the implementation of ethics agreements during
the appointee's term in office and also to serve as an announcement
of the appointee's intent to not participate if disqualifying matters
arise. However, the nonexistence of a written recusal statement does
not affect the legal obligation of appointees to not participate if
other matters arise in which they have a conflict of interest. This
legal obligation begins at the time of federal appointment and
extends until termination of appointment, or until the appointee no
longer has the conflict of interest or is granted a waiver.
RESULTS
------------------------------------------------------------ Letter :3
We reviewed the financial disclosure records of 54 presidential
appointees in DOE and EPA for evidence of any promises made by them
to disqualify themselves from any governmental matters due to an
actual or potential conflict of interest. Forty-one appointees, or
76 percent, made documented recusal obligations as a result of the
nomination and confirmation process. More specific summary data on
the recusal obligations of the 41 appointees are presented in table
2. Among other things, the data show that EPA and DOE had about the
same percentage of appointees with nominee recusal obligations (74
percent in EPA, or 17 of 23 appointees, and 77 percent, or 24 of 31
appointees in DOE).
Table 2
Summary of Nominee Recusal Obligations
of Top Political Appointees in DOE and
EPA During the Bush and Clinton
Administrations
DOE EPA DOE EPA Totals
============================== ------ ------ ------ ------ ------
Number of presidential 21 15 20 13 69
appointee positions requiring
Senate confirmation
Number of positions vacant or 4 2 6 3 15
nominee data not available
Number of filled positions 17 13 14 10 54
with data available on
nominee ethics agreements
Number of above appointees 12 8 12 9 41
with nominee recusal
obligations (as of 12/31/93)
----------------------------------------------------------------------
Source: GAO analysis of agency and OGE financial disclosure records.
Overall, we found a total of 124 nominee recusal obligations
documented in the financial disclosure records maintained by the
agencies on the 41 Senate-confirmed appointees in DOE and EPA
included in our review. The single most frequently cited basis for
these obligations was the criminal conflict of interest statute, 18
U.S.C. 208, or its key implementing regulation, which accounted for
46 (37 percent) of the 124 obligations. Appearance-based obligations
accounted for the remaining nominee recusal obligations. Agency
ethics officials cited different reasons for the appearance-based
obligations. In order of frequency of occurrence, we have
categorized them as follows:
-- General agency and appointee discretion (30 nominee recusal
obligations): This category consists of (1) 18 recusal
obligations that cited general appearance concerns before OGE's
standard-of-conduct regulation became effective in February
1993, and (2) 12 recusal obligations based on EPA's practice of
having certain nominees make recusal obligations for the
duration of their tenure. The financial disclosure records we
reviewed generally did not indicate whether these recusal
obligations were initiated by the appointee or agency ethics
officials.
-- Mandatory recusal under DOE-specific restrictions (29 nominee
recusal obligations): This category consists of (1) 18 recusal
obligations made to comply with a recusal policy established by
the Senate Energy and Natural Resources Committee in May 1993,
and (2) 11 recusal obligations required of DOE appointees by a
DOE-specific statute that was repealed in November 1993.
-- Agency and appointee discretion under the appearance standard of
OGE's regulation (5 C.F.R. 2635.502) (17 nominee recusal
obligations): Under this standard, every executive branch
employee is obligated to consider and address the appearance
implications of participating in agency matters with former
employers. This standard provides a maximum 1-year period from
the last day of former employment in which the employee is
required to consider recusal from a former employer. Using the
process established in OGE's regulation, the employee and agency
ethics official have the discretion to (1) decide whether the
circumstances would raise questions of impartiality significant
enough to warrant recusal and (2) establish the period of time
the recusal obligation is to remain in effect.
-- Mandatory recusal under the extraordinary payment standard of
OGE's regulation (5 C.F.R 2635.503) (two nominee recusals of DOE
appointees): Under this standard any employee who receives an
extraordinary payment greater than $10,000 from a former
employer is required to recuse from agency matters involving the
entity for a period of 2 years from the date the payment is
received, unless granted a waiver.
Appendixes I through IV categorize the individual nominee recusal
obligations we found documented in the financial disclosure records
of each of the 41 appointees according to the bases cited by agency
ethics officials for these obligations. In addition, these
appendixes identify other restrictions governing participation in
government matters that were determined to be applicable to each
appointee, including divestitures, waivers of participation
restrictions, and any recusals made following Senate confirmation
that we observed in the records maintained by the agencies and OGE.
As shown in figure 1, the proportion of nominee recusal obligations
addressing financial interests versus appearance concerns associated
with a nominee's personal or business relationships changed between
the Bush and Clinton appointees. Although the number of recusal
obligations addressing conflicts involving continuing financial
interests in each agency remained about the same, the number of
appearance-based obligations by Clinton appointees was more than
double those obligations of the Bush appointees in each of the two
agencies (2.6 times in DOE, and 2.2 times in EPA).
Figure 1: General Types of
Conflicts of Interest Addressed
by Nominee Recusal Obligations
of 41 Presidential Appointees
in DOE and EPA (1989-1993)
(See figure in printed
edition.)
Source: GAO analysis of DOE, EPA, and OGE financial disclosure
records.
DOE APPOINTEES
------------------------------------------------------------ Letter :4
Overall, 24 nominees to DOE Senate-confirmed positions during the
administrations of Presidents Bush and Clinton documented a total of
78 recusal obligations to address an actual or potential conflict of
interest under applicable restrictions to their participation in
governmental matters. A total of 268 organizational entities were
cited as the subjects of the 78 recusal obligations. Table 3
provides specific information on the frequency in which DOE records
cited the key legal bases for each type of nominee recusal obligation
and the related number of involved entities.
Table 3
Documented Nominee Recusal Obligations
of 24 Nominees to Senate-Confirmed
Positions in DOE
Number Number
of of
entiti entiti
Bases for type Number of Number of es Number of Number of es
of remedial appointee nominee involv appointee nominee involv
action s obligations ed s obligations ed
---------------- --------- ----------- ------ --------- ----------- ------
To address 18 10 15 42 10 16 52
U.S.C. 208
financial
interests
Waiver of 18 2 3 3 2 3 3
U.S.C. 208
To address 4 6 32 NA NA NA
appearance
concerns before
uniform
standards-of-
conduct
regulation
To address NA NA NA 4 5 6
appearance
concerns under
uniform
standards-of-
conduct
regulation (5
C.F.R. 2635.505
or 2635.503)
To address NA NA NA 9 18 58
concerns under
recusal policy
of the Senate
Energy and
Natural
Resources
Committee (DOE
specific)
To comply with 4 5 10 3 6 61
section 606 of
the DOE
Organization
Act (appearance
concerns
related to
prior
employers) (DOE
specific)
Waiver of 1 1 1 0 0 0
section 606,
DOE Act
================================================================================
Total recusal- 12 30 88 12 48 180
related
--------------------------------------------------------------------------------
Note: The number of nominee recusal obligations of each of these 24
appointees ranged from 1 to 7 obligations.
Source: GAO analysis of OGE and DOE financial disclosure records.
There were 29 total recusal obligations based on DOE-specific
requirements. Of these, most (18) resulted from DOE's implementation
of a recusal policy established by the Senate Energy and Natural
Resources Committee in May 1993. These obligations dealt solely with
concerns about appearance of conflicts of interest related to the
appointee's prior employment and service relationships. Such
appearance-type recusal obligations had also been addressed by
section 606 of the DOE Act until it was repealed on November 30,
1993. In fact, section 606 accounted for the remaining six
DOE-specific recusal obligations by the Clinton appointees and all
five of the DOE-specific recusal obligations by Bush appointees.
It should be noted that the Senate Committee recusal policy is more
restrictive in dealing with appearance concerns than either OGE's
current uniform standards of conduct or the repealed DOE Act
provisions. First, the Senate Committee policy requires recusal from
certain matters related to former employers without providing for the
possibility of a waiver. Both the uniform standards of conduct and
the DOE Act provided specific waiver authority. Second, the Senate
Committee policy requires recusals involving specific matters in
which the nominee participated personally and substantially to last
for the duration of his or her service in DOE. Similar recusals
based on either the uniform standards of conduct or the DOE Act are
or were for a 1-year period.
As summarized in table 4, divestitures were used as a
conflict-of-interest remedy by 14 of the 24 appointees. Because each
of the appointees had also entered into at least one recusal
obligation, the divestiture-related actions shown in table 4
represent remedial actions in addition to the recusal remedies. Of
these divestiture-related actions, 11 were taken to comply with the
divestiture requirement of section 602 of the DOE Organization Act.
This requirement prohibits certain DOE employees, including
Senate-confirmed presidential appointees, from owning stock or having
interests in an "energy concern," whether or not the situation
presents an actual or apparent conflict of interest with the
employee's duties. In an April 1994 report to Congress,\3 DOE
concluded that this requirement "...is obsolete, overly broad, and
unnecessary, and should be repealed." The report, among other things,
stated that this divestiture requirement was an absolute proscription
that prohibited every covered DOE employee from holding any interests
in energy concerns and regardless of whether or not the ownership of
an energy concern interest would create either an actual or an
apparent conflict of interest with respect to the employee's duties.
Table 4
Documented Divestiture-Related
Obligations of 24 Nominees to Senate-
Confirmed Positions in DOE
Bases
for type Number of Number of Number of Number of
of nominee divested nominee divested
remedial Number of obligation or waived Number of obligation or waived
action appointees s interests appointees s interests
-------- ---------- ---------- ---------- ---------- ---------- ----------
To 2 2 2 1 2 14
comply
with 18
U.S.C.
208
To 1 1 1 0 0 0
address
appeara
nce
concern
s
To 5 6 21 4 5 21
comply
with
section
602 of
the DOE
Organiz
ation
Act
(DOE
specifi
c)
Waiver 2 2 2 4 4 4
of
section
602,
DOE Act
A 1 1 1 0 0 0
require
ment of
Senate
confirm
ation
================================================================================
Total 8 12 27 6 11 39
divesti
ture-
related
--------------------------------------------------------------------------------
Note: The number of nominee divestitures made by each of these 24
appointees ranged from 1 to 25 divestitures.
Source: GAO analysis of OGE and DOE financial disclosure records.
Specific information on the remedial obligations of each DOE
appointee is presented in appendixes I and II.
--------------------
\3 Report to the Congress As Required by Section 3161 of the National
Defense Authorization Act for Fiscal Year 1994 (DOE's Office of
General Counsel, April 1994)
EPA APPOINTEES
------------------------------------------------------------ Letter :5
Overall, 17 nominees to EPA Senate-confirmed positions during the
administrations of Presidents Bush and Clinton documented a total of
61 nominee recusal obligations to address an actual or potential
conflict of interest under applicable restrictions to their
participation in governmental matters. A total of 252 organizational
entities were cited as the subjects of the 61 recusal obligations.
Table 5 provides specific information on the frequency in which EPA
records cited the key legal bases for each type of nominee recusal
obligation and the related number of involved entities. Unlike DOE,
EPA has no recusal obligations based on agency-specific statutes or
Senate confirmation committee requirements.
Table 5
Documented Nominee Recusal Obligations
of 17 Nominees to Senate-Confirmed
Positions in EPA
Bases
for type Number of Number of
of nominee Number of nominee Number of
remedial Number of obligation entities Number of obligation entities
action appointees s involved appointees s involved
-------- ---------- ---------- ---------- ---------- ---------- ----------
To 6 8 7 5 7 56
address
18
U.S.C.
208
financi
al
interes
ts
Waiver 1 2 2 6 6 50
of 18
U.S.C.
208
To 7 12 45 NA NA NA
address
appeara
nce
concern
s
before
uniform
standar
ds-of-
conduct
regulat
ion
To NA NA NA 8 14 46
address
appeara
nce
concern
s under
uniform
standar
ds-of-
conduct
regulat
ion on
covered
relatio
nships
(5
C.F.R.
2635.50
2)
EPA NA NA NA 9 12 46
practice
in
address
ing
"other"
appeara
nce
concern
s under
uniform
standar
ds-of-
conduct
regulat
ion (5
C.F.R.
2635.50
2(a)(2)
)
================================================================================
Total 8 22 54 9 39 198
recusal-
related
--------------------------------------------------------------------------------
Note: The number of nominee recusal obligations made by each of
these 17 appointees ranged from 2 to 6 obligations.
Source: GAO analysis of OGE and EPA financial disclosure records.
There were 26 recusal obligations addressing appearance concerns made
by the Clinton appointees and 12 appearance-type recusal obligations
made by 7 Bush appointees before OGE's uniform standards of conduct
became effective in February 1993. Of the 26 obligations by Clinton
appointees, 14 addressed appearance concerns related to covered
relationships under the uniform standards-of-conduct regulation. The
remaining 12 recusal obligations involved former employment
relationships of nine appointees, all but three of whom were
attorneys.
As a matter of practice, EPA generally treated attorneys
restrictively. EPA nominees who were attorneys coming from public
interest groups, state governments, and law firms were required to
recuse themselves for the duration of their EPA service from matters
in which they personally and substantially participated as employees
with these groups, states, or firms. Such "permanent" recusal
obligations are not specifically required by OGE's appearance
standard. As previously noted, every executive branch employee is
obligated to consider and address the appearance implications of
participating in agency matters with former employers for a maximum
1-year period from the last day of former employment. Using the
process established in OGE's regulation, the employee and agency
ethics official have had the discretion to (1) decide whether the
circumstances would raise questions of impartiality significant
enough to warrant recusal and (2) establish the period of time for
which the recusal obligation is to remain in effect.
In providing us their views on the results of our analysis, EPA
ethics officials pointed out that their practice of recusing
attorneys from participation in "specific party" matters in which
they participated before government service was based not only on
OGE's regulation but also on the rules of the American Bar
Association (ABA). They said that the ABA model rules of
professional conduct provide that, unless specifically authorized,
lawyers serving as public officers or employees shall not participate
in a matter in which they participated personally and substantially
while in private practice.
As shown in table 6, the EPA Bush appointees in our review made few
divestiture obligations. A statutory divestiture requirement that
was applicable to three Bush appointees included in our review was
repealed in November 1990. This provision, Section 318 of the Clean
Air Act, had prohibited EPA officials occupying certain positions of
a regulatory or policymaking nature from having any official or
contractual relationship with certain specified groups related to air
quality. The provision barred EPA employees from participation in
professional societies, which EPA regarded as an excessive
restriction. In recommending repeal of Section 318, EPA's Office of
General Counsel said it largely duplicated the criminal conflict of
interest statute, 18 U.S.C. 208, and EPA's regulatory "appearance"
standards.
Table 6
Documented Divestiture-Related
Obligations of 17 Nominees to Senate-
Confirmed Positions in EPA
Bases
for type Number of Number of
of nominee Number of nominee Number of
remedial Number of obligation divested Number of obligation divested
action appointees s interests appointees s interests
-------- ---------- ---------- ---------- ---------- ---------- ----------
To 1 1 5 7 10 30
comply
with 18
U.S.C.
208
To 3 3 4 NA NA NA
comply
with
section
318 of
the
Clean
Air Act
(repeal
ed in
Nov.
1990)
================================================================================
Total 3 4 9 7 10 30
divesti
ture-
related
--------------------------------------------------------------------------------
Note: The number of nominee divestitures made by each of these 17
appointees ranged from 1 to 17 obligations.
Source: GAO analysis of OGE and DOE financial disclosure records.
Specific information on the remedial obligations of each EPA
appointee is presented in appendixes III and IV.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :6
Information in this fact sheet was drawn primarily from the financial
disclosure records of the appointees maintained by OGE and the
designated agency ethics officials at DOE and EPA. We supplemented
the agency records with the views of agency ethics officials in
instances where the basis for a specific recusal obligation was
unclear from the records. Appendix V provides a description of the
purpose and scope of each type of record we examined for each
appointee included in our review, including a description of related
regulatory criteria.
To determine the extent to which nominees in the two agencies made
obligations to recuse themselves from official government matters, we
took the following steps:
-- We generally defined the population as those appointees who were
serving in Senate-confirmed positions at the end of the
administration of President Bush in December 1992 and the end of
the first year of the administration of President Clinton in
December 1993. To this group, we added eight appointees serving
in the Bush administration who were the last incumbents serving
in the positions because their positions were vacant in December
1992 (four appointees in DOE and four in EPA). We included
these appointees in order to get the widest possible
representation of Senate- confirmed positions in both agencies
for which nominee data was available. Nominee data were not
available for the appointees filling the positions of Inspector
General at DOE and EPA or for two Bush appointees filling other
positions (the Director of the Office of Alcohol Fuels in DOE
and the Assistant Administrator for External Affairs in EPA).
Because these four appointees had been in office for more than 6
years, their nominee or new entrant records were routinely
disposed of in accordance with OGE regulations.
-- We reviewed the financial disclosure records of each appointee
in the population for evidence of any recusal obligation made
related to the appointee's nomination and confirmation. We
completed a data collection instrument to uniformly describe
from the records certain characteristics of each appointee's
recusal or other participation obligations. Among other things,
we gathered data on the nature of the continuing financial
interests or personal and business relationships that were
viewed as an actual or potential conflict of interest requiring
a remedial action.
-- We then used the data obtained to determine how often nominee
recusal obligations were documented by appointees in the two
administrations. For purposes of our analysis, we considered
any recusal obligation that agency records or ethics officials
had identified a distinct basis for as a single obligation
regardless of how many entities, matters, or subjects may have
been covered by the recusal obligation. The appendixes present
specifically what we considered a single recusal obligation for
each appointee we examined.
To determine the bases cited for the recusal obligations of the
appointees, we included in our data collection instrument a
description of the recusal obligations made by each nominee and the
basis cited in the records reviewed. As previously noted, we
supplemented the agency records with the views of agency ethics
officials in instances where records did not clearly establish the
basis. Thus, the bases cited represent the views of DOE and EPA
ethics officials.
To determine the extent to which appointees with nominee recusal
obligations had also taken other remedial actions to comply with
criteria governing their participation in official government
matters, we included in our data collection instrument an
identification of divestitures of financial interests, agency waivers
of statutory participation prohibitions, and instances where
appointees created recusal obligations after the Senate confirmation
process. The recusal obligations occurring after Senate confirmation
are presented in the appendixes under the "other" remedial action
category. We did not include remedial actions involving resignations
from outside employment that are governed by different criteria.
According to OGE, Senate-confirmed political appointee have
traditionally been forbidden by the White House from continuing any
outside positions with for-profit entities, and the White House has
allowed positions with nonprofit entities to continue only after a
case-by-case review.
We did our work at the DOE, EPA, and OGE headquarters in Washington,
D.C., from June 1993 to July 1994 in accordance with generally
accepted government auditing standards.
AGENCY VIEWS
------------------------------------------------------------ Letter :7
We discussed information in this fact sheet with the designated
agency ethics officials in DOE and EPA in January 1995 and with OGE
officials, including OGE's General Counsel and Associate Director of
the Office of Program Assistance and Review, in October 1994. They
provided suggestions for improving the clarity and accuracy of our
analyses, which we incorporated where appropriate.
OGE officials expressed the view that the practice of
Senate-confirmed political appointees documenting their recusal
obligations is a legitimate tool for the prevention of conflicts of
interest. In particular, OGE views written recusal statements as
helping to make appointees more sensitive to circumstances that would
require actual recusal and considers such statements to be an
important mechanism for protecting the appointee from charges of
conflict of interest.
Both DOE and OGE officials offered suggestions to improve our summary
accounting of the recusal and divestiture obligations of the
presidential appointees. In response to their comments, we revised
the summary tables in the letter and appendixes to provide specific
information on the number of nongovernmental entities involved in the
recusal and divestiture obligations. As a result, our summary tables
now account for three characteristics of the recusal obligations.
For example, as shown in table 4, the documented nominee recusal
obligations and other remedial actions of 12 Bush appointees in DOE
are accounted for by (1) the number of appointees for whom agency
records cited a specific basis for recusal from any disqualifying
matters, (2) the number of different times that specific basis was
cited for these appointees in one or more written recusal statements,
and (3) the total number of nongovernmental entities whose financial
interests were the subject of each specific recusal basis.
---------------------------------------------------------- Letter :7.1
As arranged with your office, unless you publicly announce its
contents earlier, we plan no further distribution of this fact sheet
until 30 days from its issue date. At that time, we will send copies
to the Chairman and Ranking Minority Member of the Senate Committees
who were principally involved in confirming the DOE and EPA
appointees included in our review. In addition, we will send copies
to the Secretary of Energy, Administrator of EPA, Director of OGE,
and other interested parties. We will also make copies available to
others on request.
The major contributors to this fact sheet are listed in appendix VI.
Please contact me on (202) 512-5074 if you or your staff have any
questions.
Sincerely yours,
Nancy Kingsbury
Director
Federal Human Resource Management
Issues
DOCUMENTED RECUSAL OBLIGATIONS OF
TOP BUSH ADMINISTRATION DOE
OFFICIALS
=========================================================== Appendix I
The Department of Energy (DOE) had 21 positions that required Senate
confirmation of presidential appointments. Table I.1 lists these DOE
positions, the names of the incumbents during President Bush's
administration whose financial disclosure records we reviewed at the
Office of Government Ethics (OGE) in August 1993 and at DOE in
October 1993, and the 12 appointees whom we found had executed
recusal statements related to their nomination to the
Senate-confirmed positions. All but four of the appointees listed in
table I.1 were serving at the end of the Bush administration in 1992.
Table I.1
Top DOE Officials in the Bush
Administration With Nominee Recusal
Statements
Senate-confirmed Incumbent records Nominee recusal
position reviewed statement
---------------------- ---------------------- ----------------------
Secretary James D. Watkins Yes-1989
Deputy Secretary W. Henson Moore Yes-1989
Under Secretary John C. Tuck None required
Administrator-Energy Calvin A. Kent Yes-1990
Information
Administration
Administrator- Chandler L. van Orman Yes-1987
Economic Regulatory
Administration\a
Asst. Sec.- Gregg Ward Yes-1991
Congressional and
Intergovernmental
Affairs
Asst. Sec.- J. Michael Davis Yes-1989
Conservation and
Renewable Energy
Asst. Sec.-Defense Richard A. Claytor Yes-1990
Programs and 1991
Asst. Sec.- Paul L. Zeimer Yes-1990
Environment, Safety
and Health
Asst. Sec.- Leo P. Duffy Yes-1991
Environmental
Restoration and Waste
Management
Asst. Sec.-Fossil Robert H. Gentile None required
Energy\a
Asst. Sec.- John J. Easton Jr. Yes-1989
International Affairs
and Energy
Emergencies\a
Asst. Sec.-Nuclear William H. Young None required\b
Energy
Chief Financial Vacant -
Officer
Director-Office of David M. Lindahl Nominee data not
Alcohol Fuels\a available
Director-Office of John W. Bartlett Yes-1990
Civilian Radioactive
Waste Management
Director-Office of William Happer Yes-1991
Energy Research
Director-Office of Melva G. Wray None required
Minority Economic
Impact
General Counsel John J. Easton, Jr. None required
Inspector General John C. Layton Nominee data not
available
Deputy Inspector Vacant
General
----------------------------------------------------------------------
\a Because this position was vacant on December 31, 1992, we included
the last incumbent of the position in this analysis.
\b While OGE viewed a proposed recusal as an ethics agreement for
this nominee, the recusal was not subsequently executed because an
agency-specific statute that was the basis for the recusal had been
suspended. Thus, the need to execute the recusal was no longer
necessary, according to a DOE letter to OGE dated April 30, 1990.
Source: GAO analysis of financial disclosure records on file at OGE
and DOE.
OUTCOME OF DOE'S APPLICATION OF
PARTICIPATION RESTRICTIONS
--------------------------------------------------------- Appendix I:1
As shown in table I.1, 12 of the 17 Bush appointees whose financial
disclosure records we reviewed had made obligations to recuse
themselves from certain official DOE matters as part of their
nomination to the Senate-confirmed position. Among other things:
-- The 12 appointees with recusal obligations represent 71 percent
of the 17 incumbents in Senate-confirmed positions for whom
financial disclosure data was available on their nominations to
the positions at OGE during our work. All but 2 of the 12
appointees were serving at the end of the Bush administration in
1992.
-- There were 10 types of recusal or divestiture obligations that
were applicable to these 12 DOE Bush administration appointees.
In total, there were 30 obligations related to recusals and 12
to divestitures. The 30 recusal-related obligations involved a
total of 88 organizational entities, and the 12
divestiture-related obligations involved a total of 27
organizational entities.
-- The three most frequently occurring types of remedial
obligations were recusals to comply with 18 U.S.C. 208,
recusals to address appearance concerns, and divestitures to
comply with legislation applicable to only DOE employees
(section 602 of the DOE Organization Act).
Table I.2 identifies the frequency of occurrence of each of the 10
types of remedial obligations.
Table I.2
Outcome of DOE's Application of
Participation Restrictions to 12 Top
Political Appointees Serving in the Bush
Administration
Number of
Number of nominee Number of
applicable obligation entities
Basis for type of remedial action appointees s involved
---------------------------------- ---------- ---------- ----------
======================================================================
Recusal-related: 12 30 88
To comply with 18 U.S.C. 208 10 15 42
To address appearance concerns (no 4 6 32
specific criteria cited)
To comply with section 606 of the 4 5 10
DOE Organization Act
Waiver of 18 U.S.C. 208 2 3 3
Waiver of section 606 of the DOE 1 1 1
Act
======================================================================
Divestiture-related: 8 12 27
To comply with section 602 of the 5 6 21
DOE Organization Act
To comply with 18 U.S.C. 208 2 2 2
Waiver of section 602 of the DOE 2 2 2
Act
A requirement of Senate 1 1 1
confirmation
To address appearance concerns 1 1 1
======================================================================
Total 12 42 115
----------------------------------------------------------------------
Source: GAO analysis of financial disclosure records on file at OGE
and DOE.
CASE HISTORY SUMMARIES
--------------------------------------------------------- Appendix I:2
For the 12 Bush appointees in DOE with nominee recusal agreements on
file with OGE, the following case histories summarize information
from the financial disclosure records maintained at either OGE or DOE
by the designated agency ethics official (DAEO). We selected
information that would provide an overview of the outcome of DOE's
entire application of restrictions governing participation in
official government matters by Bush appointees. Beyond individual
recusals, we identified when DOE used divestitures or waivers to
resolve a conflict situation or concern. We summarized the
underlying conflict situation or concern that the specific remedial
action addressed. We generally categorized the conflict situation or
concern as involving a continuing financial interest or a
personal/business relationship. While many of the appointees had
more than one paid or uncompensated position before Senate
confirmation, we selected the previous employer that appeared to be
the principal source of the appointee's recusal obligations. (App.
V provides further details on the general types of DOE records we
examined for each appointee and a description of related regulatory
criteria.)
SECRETARY OF ENERGY
--------------------------------------------------------- Appendix I:3
Appointee: James D. Watkins
Previous employer: Members of Boards of several private corporations
or organizations (federal service included the U.S. Navy)
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Mutual Divest
stock
fund
holdings
(energy
concern)
Personal
/
business
relation
ship
Former Recuse
energy (durat
concern ion)\a
employer
(Board
of
Director
s at
Philadel
phia
Electric
)
Former Recuse
employer (duratio
(Board n)\b\
of
Advisors
at Ford
Aerospac
e)
Other
Negotiat Recuse
ing for
employme
nt with
seven
entities
--------------------------------------------------------------------------------
\a The appointee executed the recusal for the "duration of my
employment with the Department;" however, the DAEO ethics advice
stated the DOE act required recusal "for a period of one year from
the termination of his employment with Philadelphia Electric
Company."
\b The appointee made this recusal obligation on his own initiative
according to a DOE ethics official (included in the executed recusal
statement, but not addressed in DAEO ethics advice to nominee).
DEPUTY SECRETARY OF ENERGY
--------------------------------------------------------- Appendix I:4
Appointee: W. Henson Moore
Previous employer: Law firm of Sutherland, Asbill & Brennan
Conflic
t DOE Waiver 18 18 Waiver, Waiver
situati Act of DOE U.S. Appearan U.S. 18 DOE of DOE Appearan
on/ Sec.60 Act- C. ce C. U.S.C. Act- Act- ce
concern 2 602 208 concern 208 208 606 606 concern
------- ------ ------ ---- -------- ---- -------- ----- ------ --------
Continu
ing
financi
al
interes
t
Spouse' Divest
s
direct
ownersh
ip of
Exxon
common
stock
Spouse' Recu Waiver\a
s se (8/4/
interes (unl 89)
t in a ess
trust waiv
holding ed)
Exxon
common
stock
A Waiver\a
particu (12/12/
lar 91)
matter
that
arose
with
Exxon
Persona
l/
busines
s
relatio
nship
Any Recuse\b
matter
directl
y
relatin
g to
award
of
Strateg
ic
Petrole
um
Reserve
contrac
t in
which
he gave
legal
service
s
Any 1-Year
particu recuse
lar
matter
involvi
ng
former
law
firm as
a
specifi
c party
Any 1-Year
particu recuse
lar
matter
involvi
ng any
of 26
former
legal
clients
--------------------------------------------------------------------------------
\a First waiver covered oil and gas industry generally; second waiver
covered Exxon specifically.
\b Although the basis for this recusal was a general appearance
concern according to DOE ethics officials, DOE records also cited a
rule of professional conduct of the Louisiana State Bar as a factor
in the decision to recuse. DOE said, however, that it has no
responsibility for interpreting such state bar rules for private
attorneys entering federal service.
ADMINISTRATOR, ENERGY
INFORMATION ADMINISTRATION
--------------------------------------------------------- Appendix I:5
Appointee: Calvin A. Kent
Previous employer: Professor, Baylor University
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Holdings Divest
in two Recuse
energy (befor
concerns e
(Ashland divest
Oil\a )
and
Norfolk
Southern
Corporat
ion)
Holdings Recuse
in four
U.S.
firms
(two of
which
represen
t
spousal
interest
s)
Tenured Waiver Recuse
position
at
Baylor
Universi
ty (an
energy
concern)
(leave
of
absence)
Personal
/
business
relation
ship
None
--------------------------------------------------------------------------------
\a Ethics advice said that despite being a small holding paying less
than $20 per year, divestiture was necessary.
ADMINISTRATOR, ECONOMIC
REGULATORY ADMINISTRATION (ERA)
--------------------------------------------------------- Appendix I:6
Appointee: Chandler L. van Orman (Recess appointment) (Nominated by
President Reagan)
Previous employer: Deputy Administrator, ERA
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Interest Recuse
s in
four
companie
s (IBM,
Schlumbe
rger,
Foster
Wheeler
Corp., &
Fairchil
d
Industri
es)
Personal
/
business
relation
ship
Member Recuse
of
National
Boating
Safety
Advisory
Council
--------------------------------------------------------------------------------
ASSISTANT SECRETARY FOR
CONGRESSIONAL AFFAIRS
--------------------------------------------------------- Appendix I:7
Appointee: Gregg Ward
Previous employer: Vice-President of External Affairs, American
Institute of Architects
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Interest Recuse
s in two
firms:
Laidlaw
Inc. and
Law
Office
of
Deborah
Steelman
(spouse)
Holdings Divest
in a
nonenerg
y
concern,
Noxso
Corporat
ion
(coal
pollutio
n
control)
Personal
/
business
relation
ship
Matters 1-
personal Year
ly recuse
involved
with two
former
energy
concern
employer
s (Duke
Power
Co. and
Gulf
States
Utilitie
s)
--------------------------------------------------------------------------------
ASSISTANT SECRETARY,
CONSERVATION AND RENEWABLE
ENERGY
--------------------------------------------------------- Appendix I:8
Appointee: Jon M. Davis
Previous employer: President, Glowcore Colorado Inc.
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Presiden Divest Recuse
t and \a (until
owner of divest
Glowcore )
, a
commerci
al
mechanic
al
engineer
ing firm
engaging
in
heating,
ventilat
ion, and
air
conditio
ning
products
Personal
/
business
relation
ship
None
Other
Five Recuse
incumben
t
recusals
(negotia
ting
future
employme
nt)
dated
within 6
months
of
departur
e from
DOE
--------------------------------------------------------------------------------
\a While DOE had determined that a recusal could have satisfied
requirements of 18 U.S.C. 208, the appointee chose to divest his
interests in this firm according to DOE ethics officials.
ASSISTANT SECRETARY, DEFENSE
PROGRAMS
--------------------------------------------------------- Appendix I:9
Appointee: Richard A. Claytor
Previous employer: Principal Deputy Assistant Secretary for Nuclear
Energy
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Holdings Divest
in three Recuse
energy (befor
concerns e
(Exxon, divest
Freeport )
McMoran,
and
American
Electric
Power
Company)
AT&T The
stock Senate Recuse
holdings Armed (befor
Servic e
es divest
Commit )\a
tee
requir
ed
divest
iture
Holdings Recuse
in U.S.
West
Inc.
(nature
of
business
not
describe
d)
Personal
/
business
relation
ship
None
--------------------------------------------------------------------------------
\a While DOE had determined the AT&T holdings did not constitute a
disqualifying financial interest under 18 U.S.C. 208, the appointee
subsequently agreed to execute a recusal covering AT&T "in view of
his stock ownership." DOE had contractual relations with AT&T, but
none of these contracts were with the Office of Defense Programs.
ASSISTANT SECRETARY FOR
ENVIRONMENT, SAFETY AND HEALTH
-------------------------------------------------------- Appendix I:10
Appointee: Paul L. Ziemer
Previous employer: Professor, Purdue University
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Leave of Recuse
absence
from
Purdue
Universi
ty
Personal
/
business
relation
ship
None
--------------------------------------------------------------------------------
ASSISTANT SECRETARY,
ENVIRONMENTAL RESTORATION AND
WASTE MANAGEMENT
-------------------------------------------------------- Appendix I:11
Appointee: Leo P. Duffy
Previous employer: Westinghouse (also Director, Office of
Environmental Restoration and Waste Management just before
confirmation)
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Stock in Divest
Boeing
(an
energy
concern)
Holdings Recuse
in three
companie
s
(Rockwel
l, AT&T,
Bell
Telephon
e)
Vested Waiver\a Waiver\
interest a
s in
pension
and
retireme
nt plans
and
deferred
compensa
tion
from
Westingh
ouse (an
energy
concern)
Personal
/
business
relation
ship
None
--------------------------------------------------------------------------------
\a These two waivers were initially granted by the Secretary of
Energy when the appointee was a Special Assistant to the Secretary,
but the waivers were reaffirmed by the DAEO during the confirmation
process as sufficient to cover his service as Assistant Secretary.
ASSISTANT SECRETARY FOR
INTERNATIONAL AFFAIRS AND
ENERGY EMERGENCIES
-------------------------------------------------------- Appendix I:12
Appointee: John J. Easton, Jr.
Previous employer: Law firm of Miller, Eggleston and Rosenberg, Ltd.
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
None
Personal
/
business
relation
ship
Any 1-Year
private recuse
discussi
ons of
official
business
matters
with
former
law firm
employme
nt and
one
client
(Champla
in
Pipeline
Company)
Any 1-
departme Year
ntal recuse
proceedi
ng
related
to legal
services
provided
to a
former
energy
concern
client
(Green
Mountain
Power
Corp)
--------------------------------------------------------------------------------
DIRECTOR, OFFICE OF CIVILIAN
WASTE MANAGEMENT
-------------------------------------------------------- Appendix I:13
Appointee: John W. Bartlett
Previous employer: Manager, The Analytic Sciences Corporation
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Common Recuse
stock
holdings
in
previous
employer
and
interest
in
profit-
sharing
retireme
nt fund
Personal
/
business
relation
ship
None
Other
To avoid Recuse\a
an
appearan
ce of a
conflict
in the
award of
a
manageme
nt and
operatin
g
contract
(incumbe
nt
recusal
followin
g Senate
confirma
tion)
--------------------------------------------------------------------------------
\a The appointee was not required to execute this incumbent recusal
but did so on his own initiative according to DOE ethics officials.
DIRECTOR, OFFICE OF ENERGY
RESEARCH
-------------------------------------------------------- Appendix I:14
Appointee: William Happer
Previous employer: Professor, Princeton University
Conflict DOE Waiver, DOE
situatio Act Waiver of 18 18 18 Act Waiver Appearan
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 of DOE ce
concern 2 602 208 208 208 6 Act-606 concern
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Holdings Divest Recuse
in 13 (befor
energy e
concerns divest
)
Common Recuse
stock
holdings
in four
nonenerg
y
concerns
Tenured Divest
position /
at resign
Princeto
n
Universi
ty (an
energy
concern)
Personal
/
business
relation
ship
Any 1-
Departme Year
ntal recuse
matter
involvin
g three
former
energy
concern
employer
s
(Princet
on,
Universi
ty of
Californ
ia,
Schlumbe
rger-
Doll
Laborato
ries)
Matters 1- Partial
personal Year waiver\a
ly recuse
involved
for 5
prior
years
with
former
energy
concern
employer
s
Other
Negotiat Recuse
ing
employme
nt with
six
entities
--------------------------------------------------------------------------------
\a Certain matters were excluded from the waiver (thus continuing the
participation prohibition), including Departmental proceedings
related to the Physics Department at Princeton.
DOCUMENTED RECUSAL OBLIGATIONS OF
TOP CLINTON ADMINISTRATION DOE
OFFICIALS
========================================================== Appendix II
The Department of Energy (DOE) had 20 positions that required Senate
confirmation of presidential appointments during the first year of
President Clinton's administration. Table II.1 lists these DOE
positions, the names of the incumbents whose financial disclosure
records we reviewed at the Office of Government Ethics (OGE) in
December 1993 and at DOE in March 1994, and the 12 appointees whom we
found had executed recusal statements related to their nominations to
the Senate-confirmed positions. All these appointees were serving at
the end of the first year of the Clinton administration in 1993.
Table II.1
Top DOE Officials in the Clinton
Administration With Nominee Recusal
Statements as of December 31, 1993
Senate-confirmed Incumbent records Nominee recusal
position reviewed statement
---------------------- ---------------------- ----------------------
Secretary Hazel R. O'Leary Yes
Deputy Secretary William H. White Yes
Under Secretary Vacant -person
nominated but not
confirmed as of 12/
31/93
Administrator, Energy Jay E. Hakes Yes
Information
Administration
Administrator, Vacant
Economic Regulatory
Administration
Assistant Secretary, William J. Taylor III Yes
Congressional,
Intergovernmental and
International Affairs
Assistant Secretary, Christine A. Ervin Yes
Energy Efficiency and
Renewable Energy
Assistant Secretary, Victor H. Reis Yes
Defense Programs
Assistant Secretary, Susan F. Tierney Yes
Domestic and
International Energy
Policy
Assistant Secretary, Tara J. O'Toole None on file as of 12/
Environment, Safety 31/93
and Health
Assistant Secretary, Thomas P. Grumbly Yes
Environmental
Restoration and Waste
Management
Assistant Secretary, Vacant
Fossil Energy
Assistant Secretary, Archer L. Durham None required
Human Resources
Administration
Chief Financial Vacant
Officer
Director, Office of Daniel A. Dreyfus Yes
Civilian Radioactive
Waste Management
Director, Office of Martha A. Krebs Yes
Energy Research
Director, Office of Corlis S. Moody Yes
Minority Economic
Impact
Director, Office of Vacant
Nuclear Energy
General Counsel Robert R. Nordhaus Yes
Inspector General John Layton (carryover Nominee data not
from previous available
administration)
----------------------------------------------------------------------
Source: GAO analysis of OGE and DOE financial disclosure records of
top political appointees serving during first year of President
Clinton's administration.
OUTCOME OF DOE'S APPLICATION OF
PARTICIPATION RESTRICTIONS
-------------------------------------------------------- Appendix II:1
As shown in table II.1, as of the end of 1993, 12 of the 14 Clinton
appointees whose financial disclosure records we reviewed had made
obligations to recuse themselves from certain official DOE matters as
part of their nomination and confirmation to the DOE positions.
Among other things:
-- The 12 appointees with recusal obligations represent 86 percent
of the 14 DOE political appointees who were Senate confirmed at
the end of 1993 and for whom nominee ethics agreement data were
available.
-- There were 8 types of recusal or divestiture obligations that
were applicable to the 12 DOE Clinton administration appointees.
In total, there were 48 obligations related to recusals and 11
related to divestitures. The 48 recusal-related obligations
involved a total of 180 organizational entities, and the 11
divestiture-related obligations involved a total of 39
organizational entities.
-- The 3 most frequently occurring types of remedial obligations
were recusals to address appearance concerns under the May 1993
recusal policy of the Senate Energy and Natural Resources
Committee (16 obligations), recusals to comply with a criminal
conflict-of-interest statute (18 U.S.C. 208) (16 obligations),
and recusals to comply with agency-specific legislation (section
606 of the DOE Act) (6 obligations).
Table II.2 identifies the frequency of occurrence of each of the
eight types of remedial obligations.
Table II.2
Outcome of DOE's Application of
Participation Restrictions to 12 Top
Political Appointees Serving in the
Clinton Administration
Number of
Number of nominee Number of
applicable obligation entities
Basis for type of remedial action appointees s involved
---------------------------------- ---------- ---------- ----------
======================================================================
Recusal-related: 12 48 180
To address appearance concerns 9 18 58
under recusal policy of the
Senate Energy and Natural
Resources Committee
To comply with 18 U.S.C. 208 10 16 52
To address appearance concerns 4 5 6
under executive branch-wide
standards of conduct (5 C.F.R.
2635.502 and 2635.503)
To comply with section 606 of the 3 6 61
DOE Organization Act
Waiver of 18 U.S.C. 208 2 3 3
======================================================================
Divestiture-related: 6 11 39
To comply with section 602 of the 4 5 21
DOE Organization Act
Waiver of section 602 of the DOE 4 4 4
Organization Act
To comply with 18 U.S.C. 208 1 2 14
======================================================================
Total 12 59 219
----------------------------------------------------------------------
Source: GAO analysis of financial disclosure records on file at OGE
and DOE.
CASE HISTORY SUMMARIES
-------------------------------------------------------- Appendix II:2
For the 12 Clinton appointees in DOE with nominee recusal agreements
on file with OGE, the following case histories summarize information
from the financial disclosure records maintained at either OGE or DOE
by the designated agency ethics official (DAEO). We selected
information that would provide an overview of the outcome of DOE's
entire application of restrictions governing participation in
official government matters of Clinton appointees at the end of 1993.
Beyond individual recusals, we identified when DOE used divestitures
or waivers to resolve a conflict situation or concern. We summarized
the underlying conflict situation or concern that the specific
remedial action addressed. We generally categorized the conflict
situation or concern as involving a continuing financial interest or
a personal/business relationship. While many of the appointees had
more than one paid or uncompensated position before Senate
confirmation, we selected the previous employer that appeared to be
the principal source of the appointee's recusal obligations. (App.
V provides further details on the general types of DOE records we
examined for each appointee and a description of related regulatory
criteria.)
SECRETARY OF ENERGY
-------------------------------------------------------- Appendix II:3
Appointee: Hazel R. O'Leary
Previous employer: Northern States Power Company
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec. DOE Act- U.S.C. U.S.C. U.S.C Sec.60 C.F.R. Senate
concern 602 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Seven Divest Recuse
energy /
concern until
holdings divest
Holdings Divest
in an
energy
concern
gifted
to a son
(not
minor or
dependen
t)
Interest Recuse
s in
Eastman
Kodak,
General
Public
Utilitie
s, and
Minnesot
a Mining
&
Manufact
uring
Survivor Waiver Waiver
benefits 1/21/93 8/08/
and 93
deferred
compensa
tion
from an
energy
concern
(General
Public
Util.)
Personal
/
business
relation
ship
Former 1-
energy Year
employer recuse
(Norther
n States
Power)
Matters 1-
personal Year
ly recuse
involved
for 5
prior
years
with
above
employer
Other
Extraord 2-Year
inary recuse
payment
from
Northern
States
Power
Co.
--------------------------------------------------------------------------------
DEPUTY SECRETARY OF ENERGY
-------------------------------------------------------- Appendix II:4
Appointee: William H. White
Previous employer: Law firm of Susman Godfrey, L.L.P.
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. concern-
concern 2 602 208 208 208 6 2635 Senate
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Spousal Recuse
interest \a
in
Browning
-Ferris
Industri
es;
other
interest
s in
Eastman
Kodak,
IBM,
Mead
Corp.
Personal
/
business
relation
ship
Any of 1-
16 Year
former recuse
legal
clients
Matters 1-
personal Year
ly recuse
involved
for 5
prior
years
with 23
former
legal
clients
Any of Recuse
five
entities
for
which
appointe
e served
as
officer,
director
,
trustee
or
general
partner
just
before
DOE
service
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt with
any of
above
five
entities
Other
Extraord 2-Year
inary recuse
payment
from
former
law firm
(Susman
Godfrey,
L.L.P.)
--------------------------------------------------------------------------------
\a Ethics agreement also cited a May 1993 recusal policy of the
confirmation committee as the basis for this recusal.
ADMINSITRATOR, ENERGY
INFORMATION ADMINISTRATION
-------------------------------------------------------- Appendix II:5
Appointee: Jay E. Hakes
Previous employer: Adjunct Professor at Florida State University
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Spouse Recuse
employme
nt by
Florida
State
Universi
ty
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as
employee
of
Florida
State
Universi
ty
Any 1-year
matter Recuse
raising
question
s of
impartia
lity due
to
Florida
State
employme
nt
--------------------------------------------------------------------------------
ASSISTANT SECRETARY,
CONGRESSIONAL,
INTERGOVERNMENTAL, AND
INTERNATIONAL AFFAIRS
-------------------------------------------------------- Appendix II:6
Appointee: William J. Taylor III
Previous employer: Law firm of Hutcheson and Grundy, L.L.P.
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Spouse's Recuse
mineral \a
royalty
interest
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as an
officer,
director
, or
employee
in nine
entities
,
includin
g former
law firm
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt
relation
ship
with any
of above
nine
entities
--------------------------------------------------------------------------------
\a Ethics agreement also cited a May 1993 recusal policy of the
confirmation committee as the basis for this recusal.
ASSISTANT SECRETARY, ENERGY
EFFICIENCY AND RENEWABLE ENERGY
-------------------------------------------------------- Appendix II:7
Appointee: Christine A. Ervin
Previous employer: Director, Oregon Department of Energy
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Spousal Recuse
employme \a
nt
Oregon
State
Universi
ty and
interest
s in
Oregon
Public
Employee
s
Retireme
nt
System
and
Universi
ty of
Missouri
Deferred
Retireme
nt Plan
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as an
employee
of
Oregon
Dept. of
Energy
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
relation
ship
with
previous
employer
--------------------------------------------------------------------------------
\a Ethics agreement also cited a May 1993 recusal policy of the
confirmation committee as the basis for this recusal.
ASSISTANT SECRETARY, DEFENSE
PROGRAMS
-------------------------------------------------------- Appendix II:8
Appointee: Victor H. Reis
Previous employer: Director, Defense Research and Engineering, DOD
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Pension Waiver Recuse
interest (8/93)
in
Massachu
setts
Institut
e of
Technolo
gy (an
energy
concern
due to
holdings
in oil
and gas
properti
es)
Personal
/
business
relation
ship
None
--------------------------------------------------------------------------------
ASSISTANT SECRETARY, DOMESTIC
AND INTERNATIONAL ENERGY POLICY
-------------------------------------------------------- Appendix II:9
Appointee: Susan F. Tierney
Previous employer: Executive Office of Environmental Affairs,
Commonwealth of Massachusetts
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
None
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as
officer,
director
, or
employee
of the
Office
of
Environm
ental
Affairs
Commonwe
alth of
Massachu
setts or
the
Massachu
setts
Water
Resource
s
Authorit
y
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt
relation
ship
with any
of above
two
entities
--------------------------------------------------------------------------------
ASSISTANT SECRETARY,
ENVIRONMENTAL RESTORATION AND
WASTE MANAGEMENT
------------------------------------------------------- Appendix II:10
Appointee: Thomas P. Grumbly
Previous employer: President, Clean Sites, Inc.
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
None
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as
officer,
director
, or
employee
of Clean
Sites,
Inc.,
and five
other
entities
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt
relation
ship
with any
of above
six
entities
--------------------------------------------------------------------------------
DIRECTOR, OFFICE OF CIVILIAN
RADIOACTIVE WASTE MANAGEMENT
------------------------------------------------------- Appendix II:11
Appointee: Daniel A. Dreyfus
Previous employer: Special Assistant to the Secretary just prior to
nomination; prior to that he was Vice-President of Gas Research
Institute
Confli
ct
situat Waiver, DOE Appearan Appearan
ion/ Waiver of 18 18 18 Act ce -5 ce -
concer DOE Act DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
n Sec.602 602 208 208 208 6 2635 policy
------ -------- --------- ------ ------ ------- ------ -------- --------
Contin
uing
financ
ial
intere
st
Vested Waiver\a
intere (8/93) Recuse
st in (12/
the 93)
Gas
Resear
ch
Instit
ute
(GRI)
(an
energy
concer
n)
Intere Recuse
sts in
IBM
Person
al/
busine
ss
relati
onship
Any 1-Year
matter recuse
raisin
g
questi
ons of
impart
iality
due to
employ
ment
relati
onship
with
any of
two
entiti
es
(GRI
and
Gas
Techno
logy
Inform
ation)
Any 1-Year
matter recuse
raisin
g
questi
ons of
impart
iality
due to
former
member
ship
on
board
of
direct
ors of
Americ
ans
for
Energy
Indepe
ndence
--------------------------------------------------------------------------------
\a Authorized by the Secretary when Mr. Dreyfus was a Special
Assistant to the Secretary for the duration of his DOE employment as
a supervisory employee.
DIRECTOR, OFFICE OF ENERGY
RESEARCH
------------------------------------------------------- Appendix II:12
Appointee: Martha A. Krebs
Previous employer: Lawrence Berkeley Laboratory, University of
California
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Holdings Divest Recuse
in an /
energy until
concern divest
(America
n
Electric
Power
Co.,
Inc.)
Vested Waiver Recuse Waiver\
Universi (1/94) / a (1/
ty until 94)
pension waiver
interest
s
Spouse's Recuse Waiver\
vested / a (1/
Universi until 94)
ty waiver
pension
interest
s
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as an
employee
of the
Universi
ty of
Californ
ia, or
as a
consulta
nt to
the Gas
Research
Institut
e or
Institut
e for
Defense
Analysis
Any 1-Year \
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt
relation
ship
with
Lawrence
Berkeley
Laborato
ry
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
service
as
consulta
nt with
the Gas
Research
Institut
e and
Institut
e for
Defense
Analysis
--------------------------------------------------------------------------------
\a Excludes matters specifically affecting the University's
retirement system.
DIRECTOR, OFFICE OF MINORITY
ECONOMIC IMPACT
------------------------------------------------------- Appendix II:13
Appointee: Corlis S. Moody
Previous employer: Northern States Power Company
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Common Divest Recuse
stock /
holdings until
in an divest
energy
concern
(Norther
n States
Power
Company)
Personal
/
business
relation
ship
Matters Recuse
personal
ly
involved
as
employee
of
Northern
States
Power
Company
Any 1-Year
matter recuse
raising
question
of
impartia
lity due
to
employme
nt with
Northern
States
Power
Company
--------------------------------------------------------------------------------
GENERAL COUNSEL
------------------------------------------------------- Appendix II:14
Appointee: Robert R. Nordhaus
Previous employer: Law firm of Van Ness, Feldman & Curtis
Conflict DOE Waiver, DOE Appearan Appearan
situatio Act Waiver of 18 18 18 Act ce -5 ce -
n/ Sec.60 DOE Act- U.S.C. U.S.C. U.S.C. Sec.60 C.F.R. Senate
concern 2 602 208 208 208 6 2635 policy
-------- ------ --------- ------ ------ ------- ------ -------- --------
Continui
ng
financia
l
interest
Holdings Divest Recuse
in 11 /
energy until
concerns divest
Spouse Divest Recuse
holdings /
in 13 until
entities divest
viewed
as
financia
l
interest
s under
18 USC
208
Financia Divest Recuse
l \a /
interest until
in divest
previous
law firm
employer
Personal
/
business
relation
ship
Legal 1-
services Year
to six recuse
energy
concern
clients
of
previous
law firm
Legal 1-
services Year
to 14 recuse
energy
concern
clients
(covers
5 years
of prior
personal
involvem
ent)
Matters Recuse
personal
ly
involved
in as
employee
with
previous
law firm
Any 1-Year
matter recuse
raising
question
s of
impartia
lity due
to
employme
nt with
previous
law firm
or any
immediat
e past
business
relation
ships
Other
Particip Recuse\b
ation in
certain
overchar
ge cases
pending
before
the
Federal
Energy
Regulato
ry
Commissi
on
(incumbe
nt
recusal
followin
g Senate
confirma
tion)
Particip
ation in Specific
revising auth.(5
a draft C.F.R.
report 2635.502
on (c))
contract
reform
(followi
ng
Senate
confirma
tion)
--------------------------------------------------------------------------------
\a The appointee divested pension and ownership interests in previous
law firm on his own initiative, according to a DOE ethics official.
\b A November 24, 1993, memorandum "memorializes previous
conversations" wherein the appointee recused himself from certain
matters, and a subsequent February 5, 1994, statement identified
screening and referral officials. Both of these actions were
initiated by the appointee, according to a DOE ethics official.
DOCUMENTED RECUSAL OBLIGATIONS OF
TOP BUSH ADMINISTRATION EPA
OFFICIALS
========================================================= Appendix III
The Environmental Protection Agency (EPA) had 15 positions that
required Senate confirmation of presidential appointments during
President Bush's administration. Table III.1 lists these EPA
positions, the names of the incumbents whose financial disclosure
records we reviewed at the Office of Government Ethics (OGE) in June
1993 and at EPA in August 1993, and the eight appointees whom we
found had executed recusal statements related to their nominations to
the Senate-confirmed positions. All but four of the appointees
listed in table III.1 were serving at the end of the Bush
administration in 1992.
Table III.1
Top EPA Officials in the Bush
Administration With Nominee Recusal
Statements
Senate-confirmed Incumbent records Nominee recusal
position reviewed statement
---------------------- ---------------------- ----------------------
Administrator William K. Reilly Yes-1989
Deputy Administrator Frank H. Habicht II Yes-1989
Assistant Charles Grizzle None on file
Administrator-
Administration and
Resources\a
Assistant William G. Rosenberg None on file\b
Administrator-
Air and Radiation
Assistant Herbert H. Tate Jr. Yes-1991
Administrator-
Enforcement and
Compliance
Assistant Jennifer Wilson Nominee data not
Administrator- available
External Affairs\a
Assistant Timothy B. Atkeson Yes-1989
Administrator-
International Affairs
Assistant Linda J. Fisher None on file
Administrator-
Pest and Toxic
Substances
Assistant J. Clarence Davies Yes-1989
Administrator-Policy/
Plan/Evaluate\a
Assistant Erich W. Bretthauer None on file
Administrator-
Research and
Development
Assistant Don R. Clay None on file
Administrator-
Solid Waste
Assistant LaJuana S. Wilcher Yes-1989
Administrator-
Water
Assistant Christian R. Holmes Yes-1992
Administrator
and Chief Financial
Officer
General Counsel\a Edwin Donald Elliot, Yes-1989
Jr.
Inspector General John C. Martin Nominee data not
available
----------------------------------------------------------------------
\a Because this position was vacant on December 31, 1992, we included
the last confirmed incumbent of the position in this analysis.
\b In providing us their views on the results of our analysis, EPA
officials provided us a post-confirmation recusal statement filed by
this appointee in 1989.
Source: GAO analysis of financial disclosure records on file at OGE
and EPA.
OUTCOME OF EPA'S APPLICATION OF
PARTICIPATION RESTRICTIONS
------------------------------------------------------- Appendix III:1
As shown in table III.1, 8 of the 13 Bush appointees whose financial
disclosure records we reviewed had made obligations to recuse
themselves from certain official EPA matters as part of their
nominations and Senate confirmation to the EPA positions. Among
other things:
-- The 8 appointees with recusal obligations represent 62 percent
of the 13 incumbents in EPA Senate-confirmed positions for whom
financial disclosure data were available on their nominations to
the positions at OGE during our work. All but two of the eight
appointees were serving at the end of the Bush administration in
1992.
-- There were five types of recusal or divestiture obligations that
were applicable to these eight EPA Bush administration
appointees. In total, 22 obligations were related to recusals,
and 4 were related to divestitures. The 22 recusal-related
obligations involved a total of 54 organizational entities, and
the 4 divestiture-related obligations involved a total of 9
organizational entities.
-- The specific basis for each type of remedial obligation was
often not described in the disclosure records maintained by
either OGE or EPA on these appointees. In these instances, an
EPA ethics official identified EPA's basis during interviews
with GAO officials.
Table III.2 identifies the frequency of occurrence of the five types
of remedial obligations.
Table III.2
Outcome of EPA's Application of
Participation Restrictions to Eight Top
Political Appointees Serving in the Bush
Administration
Number Number Number
of of of
applic nomine entiti
able e es
appoin obliga involv
Basis for type of remedial action tees tions ed
---------------------------------------------- ------ ------ ------
======================================================================
Recusal-related: 8 22 54
To address appearance concerns (before uniform 7 12 45
standards)
To comply with 18 U.S.C. 208 6 8 7\a
Waiver of 18 U.S.C. 208 1 2 2
======================================================================
Divestiture-related: 3 4 9
To comply with section 318 of the Clean Air 3 3 4
Act
To comply with 18 U.S.C. 208 1 1 5
======================================================================
Total 8 26 63
----------------------------------------------------------------------
\a One recusal obligation under 18 U.S.C. 208 cited no specific
entities; but rather the appointee disqualified himself from
participating in any EPA rulemaking or policy matters involving four
industries.
Source: GAO analysis of financial disclosure records on file at OGE
and EPA.
CASE HISTORY SUMMARIES
------------------------------------------------------- Appendix III:2
For the eight Bush appointees in EPA with nominee recusal agreements
on file with OGE, the following case histories summarize information
from the financial disclosure records maintained at either OGE or EPA
by the designated agency ethics official (DAEO). We selected
information that would provide an overview of the outcome of EPA's
entire application of restrictions governing participation in
official government matters by Bush appointees. Beyond individual
recusals, we identified when EPA used divestitures or waivers to
resolve a conflict situation or concern. We summarized the
underlying conflict situation or concern that the specific remedial
action addressed. We generally categorized the conflict situation or
concern as involving a continuing financial interest or a
personal/business relationship. While many of the appointees had
more than one paid or uncompensated position before Senate
confirmation, we selected the previous employer that appeared to be
the principal source of the appointee's recusal obligations. (App.
V provides further details on the general types of EPA records we
examined for each appointee and a description of related regulatory
criteria.)
ADMINISTRATOR, EPA
------------------------------------------------------- Appendix III:3
Appointee: William K. Reilly
Previous employer: President of the World Wildlife Fund, The
Conservation Foundation
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Sever contractual Divest Recuse-
relationship with Northeast (sec. until
Utilities by transferring 318) divest
deferred compensation into a
bank trust account
Personal/business
relationship
Any particular matter Recuse
involving eight former
employers or organizations
in which he served as an
officer, director, or
trustee
--------------------------------------------------------------------------------
DEPUTY ADMINISTRATOR, EPA
------------------------------------------------------- Appendix III:4
Appointee: F. Henry Habicht II
Previous employer: Perkins Coie/W.D. Ruckelshaus and Associates
(law firm)
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Financial interest in Recuse
Pyrotite Company (a small
nonpublicly traded company
that makes fire-retardant
materials)
Stocks in New Jersey Divest
Resources Corporation,
Boeing, Brunswick, Illinois
Central, and ATT
Personal/business
relationship
16 former employers or 1-Year
clients recuse
Resignation of positions in Resign
the Environmental Law (sec.
Institute and the Natural 318)
Resources Section of the
American Bar Association
--------------------------------------------------------------------------------
ASSISTANT ADMINISTRATOR,
ENFORCEMENT
------------------------------------------------------- Appendix III:5
Appointee: Herbert H. Tate Jr.
Previous employer: Prosecutor, Essex County, New Jersey
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Holdings in the New Jersey Two
Public Employees' Retirement waivers
System fund \a
Personal/business
relationship
Any EPA matters in which Recuse
Essex County is an adverse
party and in which he
represented or provided
legal advice
Any EPA matter that involves 1-Year
Essex County as a specific recuse
party
Any matter that involves the Recuse
State of New Jersey as a
specific party and in which
the State is an adverse
party, other than certain
enforcement matters
Other
Any involvement with Recuse
enforcement decisions or
otherwise with a specific
hazardous waste project
(following confirmation)
--------------------------------------------------------------------------------
\a One waiver permitted the appointee's participation in EPA matters
affecting these holdings; the other permitted participation in any
enforcement matter involving the State of New Jersey other than as a
specific adverse party.
ASSISTANT ADMINISTRATOR FOR
INTERNATIONAL ACTIVITIES
------------------------------------------------------- Appendix III:6
Appointee: Timothy B. Atkeson
Previous employer: Steptoe and Johnson (law firm)
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Steptoe and Johnson pension Recuse
interest (defined benefit
plan)
Any rulemaking or policy Recuse
matter that could affect any
financial interests of the
appointee, his wife, or
minor children in four
industries (such interests
were not specified in
recusal or ethics agreement)
Personal/business
relationship
Matters involving six former 1-Year
employers and clients recuse
--------------------------------------------------------------------------------
ASSISTANT ADMINISTRATOR FOR
POLICY, PLANNING, AND
EVALUATION
------------------------------------------------------- Appendix III:7
Appointee: J. Clarence Davies
Previous employer: The Conservation Foundation
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial interet
None
Personal/business
relationship
Any EPA matter that Recuse
specifically involves three
organizations in which he
recently served as officer
or employee, including The
Conservation Foundation
Other
Minority share in family Recuse
real estate business (after
confirmation the appointee
discovered that two
properties held by the
business have underground
storage tanks and added this
recusal to his nominee
ethics
agreement)
--------------------------------------------------------------------------------
ASSISTANT ADMINISTRATOR FOR
WATER
------------------------------------------------------- Appendix III:8
Appointee: LaJuana S. Wilcher
Previous employer: Bishop, Cook, Purcell & Reynolds of Washington,
D.C. (law firm)
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
None
Personal/business
relationship
Representative of Cave Recuse
Research Foundation, Yellow
Springs, Ohio, a scientific
nonprofit educational
organization
Matters involving 11 former 1-Year
employers and clients, recuse
including former law firm
(from whom she generated
more than $5,000 income)
Husband's employer, Recuse
Environmental Law Institute
Other
Husband's new employer, Recuse
Friends of the Earth
(following confirmation)
Any matter involving certain Recuse
specific EPA regulatory
issues with firm negotiating
for future employment
(following confirmation)
--------------------------------------------------------------------------------
ASSISTANT ADMINISTRATOR FOR
ADMINISTRATION AND RESOURCES
MANAGEMENT
------------------------------------------------------- Appendix III:9
Appointee: Christian R. Holmes
Previous employer: Acting Assistant Administrator for Administration
and Resources Management
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Stock interest in a computer Recuse
company, Digital Equipment
Corp.
Holding in Mesa, Ltd Recuse
(natural gas industry)
Personal/business
relationship
None
Other
Matters dealing with 25 Recuse
firms with whom appointee
had exploratory discussions
regarding possible
employment (25 individual
recusal documents sent to
EPA DAEO) (following
confirmation)
--------------------------------------------------------------------------------
GENERAL COUNSEL
------------------------------------------------------ Appendix III:10
Appointee: Edwin Donald Elliot, Jr.
Previous employer: Professor, Yale University
Waiver,
18
Clean Air 18 U.S.C. 18 U.S.C. U.S.C. Appearan
Conflict situation/concern Act 208 208 208 ce
---------------------------- --------- --------- --------- ------- --------
Continuing financial
interest
Employment interest in Yale Recuse
University Law School (leave
of absence)
Personal/business
relationship
University Fellow at Resign
Resources for the Future of (sec.
Washington, D.C. (nonprofit 318)
educational institution)
Member of Board of Advisors Recuse
in the Gruter Institute for
Law and Behavioral Research
Any EPA matter specifically 1-Year
involving five former recuse
employers or clients (from
whom he received more than
$5,000 in income)
--------------------------------------------------------------------------------
DOCUMENTED RECUSAL OBLIGATIONS OF
TOP CLINTON ADMINISTRATION EPA
OFFICIALS
========================================================== Appendix IV
The Environmental Protection Agency (EPA) had 13 positions that
required Senate confirmation of presidential appointments during the
first year of President Clinton's administration. Table IV.1 lists
these EPA positions, the names of the incumbents whose financial
disclosure records we reviewed at the Office of Government Ethics
(OGE) in December 1993 and at EPA in July 1994, and the nine
appointees whom we found had executed recusal statements related to
their nominations to the Senate-confirmed positions. All these
appointees were serving at the end of the first year of the Clinton
administration in 1993.
Table IV.1
Top EPA Officials in the Clinton
Administration With Nominee Recusal
Statements as of December 31, 1993
Senate-confirmed Incumbent records Nominee recusal
position reviewed statement
---------------------- ---------------------- ----------------------
Administrator Carol M. Browner Yes
Deputy Administrator Robert M. Sussman Yes
Assistant Mary D. Nichols Yes
Administrator-
Air and Radiation
Assistant Steven A. Herman None required
Administrator-
Enforcement and
Compliance
Assistant (unfilled)
Administrator-
International Affairs
Assistant Lynn R. Goldman Yes
Administrator-
Pest and Toxic
Substances
Assistant David M. Gardiner Yes
Administrator-Policy/
Plan/Evaluate
Assistant (unfilled)
Administrator-
Research and
Development
Assistant Elliot P. Laws Yes
Administrator-
Solid Waste
Assistant Robert W. Perciasepe Yes
Administrator-
Water
General Counsel Jean C. Nelson Yes
Assistant Jonathan Z. Cannon Yes
Administrator-
Administration and
Resources; Chief
Financial Officer
Inspector General John C. Martin Nominee data not
(carryover from available
previous
administration)
----------------------------------------------------------------------
Note: There are two fewer positions than in the Bush administration;
the Assistant Administrator position of Chief Financial Officer was
merged with the position for Administration and Resources, and the
Assistant Administrator position for External Affairs was deleted.
Source: GAO analysis of financial disclosure records on file at OGE
and EPA.
OUTCOME OF EPA'S APPLICATION OF
PARTICIPATION RESTRICTIONS
-------------------------------------------------------- Appendix IV:1
As shown in table IV.1, 9 of the 10 Clinton appointees whose
financial disclosure records we reviewed had made obligations to
recuse themselves from certain official EPA matters as part of their
nominations and confirmation to the EPA positions. Among other
things:
-- The 9 appointees with recusal obligations represent 90 percent
of the 10 EPA political appointees who were Senate confirmed at
the end of 1993 and for whom financial disclosure data were
available on their nominations to the positions at OGE during
our work.
-- There were five types of recusal or divestiture obligations that
were applicable to these nine EPA Clinton administration
appointees. In total, 39 obligations were related to recusals,
and 10 were related to divestitures. The 39 recusal-related
obligations involved a total of 198 organizational entities, and
the 10 divestitures involved a total of 30 entities.
-- The specific basis for each type of remedial obligation was
often not described in the disclosure records maintained by
either OGE or EPA on these appointees. In these instances, an
EPA ethics official identified EPA's basis during interviews
with GAO officials.
Table IV.2 identifies the frequency of occurrence of the five types
of remedial obligations.
Table IV.2
Outcome of EPA's Application of
Participation Restrictions to Nine Top
Political Appointees Serving in the
Clinton Administration at the End of
1993
Number of
Number of nominee Number of
applicable obligation entities
Basis for type of remedial action appointees s involved
---------------------------------- ---------- ---------- ----------
======================================================================
Recusal-related: 9 39 198
To comply with 18 U.S.C. 208 5 7 56
Waiver of 18 U.S.C. 208 6 6 50
To address appearance concerns of 8 14 46
covered relationships under
uniform standards of conduct (5
C.F.R. 2635.502)
EPA practice in addressing "other" 9 12 46
appearance concerns under the
uniform standards-of-conduct
regulation (5 C.F.R.
2635.502(a)(2))
======================================================================
Divestiture-related: 7 10 30
To comply with 18 U.S.C. 208 7 10 30
======================================================================
Total 9 49 228
----------------------------------------------------------------------
Source: GAO analysis of financial disclosure records on file at OGE
and EPA.
CASE HISTORY SUMMARIES
-------------------------------------------------------- Appendix IV:2
For the nine Clinton appointees in EPA with nominee recusal
agreements on file with OGE, the following case histories summarize
information from the financial disclosure records maintained at
either OGE or EPA by the designated agency ethics official (DAEO).
We selected information that would provide an overview of the outcome
of EPA's entire application of restrictions governing participation
in official government matters by Clinton appointees as of the end of
1993. Beyond individual recusals, we identified when EPA used
divestitures or waivers to resolve a conflict situation or concern.
We summarized the underlying conflict situation or concern that the
specific remedial action addressed. We generally categorized the
conflict situation or concern as involving a continuing financial
interest or a personal/business relationship. While many of the
appointees had more than one paid or uncompensated position before
Senate confirmation, we selected the previous employer that appeared
to be the principal source of the appointee's recusal obligations.
(App. V provides further details on the general types of EPA records
we examined for each appointee and a description of related
regulatory criteria.)
ADMINISTRATOR, EPA
-------------------------------------------------------- Appendix IV:3
Appointee: Carol M. Browner
Previous employer: Department of Environmental Regulation, State of
Florida
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
None
Personal/business
relationship
Any matter involving Recuse -
State as a specific EPA
party and in which practice
personally involved
as Secretary of the
Department of
Environmental
Regulation
Any EPA matter 1-Year
involving the State recuse
or political
subdivisions as a
specific party
Any particular matter Recuse
involving Citizen
Action as a specific
party as long as
spouse employed by
the entity
--------------------------------------------------------------------------------
DEPUTY ADMINISTRATOR, EPA
-------------------------------------------------------- Appendix IV:4
Appointee: Robert M. Sussman
Previous employer: Partner, Latham and Watkins (law firm)
5 C.F.R Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Holdings in Waiver
diversified stock and
bond fund accounts
considered equivalent
to "excepted
investment funds"
Interest in LBO Divest
Partners, Ltd.
(limited partnership)
Severance of Divest
partnership interest
in law firm (received
lump sum payment,
continued retirement,
and medical program)
Personal/business
relationship
Any matter involving Recuse -
former law firm as a EPA
specific party and in practice
which personally
participated on
behalf of the firm
No private 1-Year
communication recuse -
regarding official EPA
EPA matters with practice
employees of former
law firm or former
clients
Any matter involving 1-Year
any of 19 former Recuse
legal clients as a
specific party
(compensation over
$5,000)\a
Any matter with a Recuse
specific EPA
contractor (ICF
company) as long as
sister is employed by
the company\b
--------------------------------------------------------------------------------
\a The EPA DAEO advised this appointee in July 1993 that this recusal
obligation would not require the appointee to recuse himself from a
particular EPA matter involving one of his former legal clients.
\b The EPA DAEO provided this appointee additional guidance in July
1993 on the scope of this recusal obligation that, among other
things, stated the recusal was intended to include only specific
party matters involving ICF and not general rulemaking or policy
matters affecting ICF or EPA contractors as a whole. An example
cited of a specific party matter prohibited by the recusal would be
the appointee's involvement in approving or disapproving any request
for changes in funding for the ICF contract or any proposed
contractual remedies against ICF. An example cited of a nonspecific
party matter allowed under the recusal would be the appointee's
involvement in applying the Superfund indemnification rule to
existing contractors, even though ICF is one of the existing
contractors. Further, the guidance stated that the EPA Administrator
could authorize the appointee's participation in a specific party
matter involving ICF.
ASSISTANT ADMINISTRATION FOR
AIR AND RADIATION
-------------------------------------------------------- Appendix IV:5
Appointee: Mary D. Nichols
Previous employer: Senior Staff Attorney, Natural Resources Defense
Council
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 18 ce ce
Conflict situation/ 18 U.S.C U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
---------------------- --------- ----- -------- -------- -------- --------
Continuing financial
interest
Interest in 17 stocks Divest\a Recuse Waiver
likely to come to until until
attention of her divest divest\b
office and be affected
by particular matters
Personal/business
relationship
Any matter involving Recuse -
as a specific party EPA
the Natural Resources practice
Defense Council or
City of Los Angeles
Dept. of Water and
Power and in which
personally
participated on behalf
of these two former
employers firms
Any other matter 1-Year
involving as a recuse
specific party the
Natural Resources
Defense Council, the
University of Southern
California, or City of
Los Angeles Dept. of
Water and Power
Any EPA matter in Recuse
which the law firm of
O'Melveny and Meyers
provides
representational
services (spouse
employment)
Other
Any particular matter Recuse
involving the Walt
Disney Company as a
specific party
(following
confirmation)
--------------------------------------------------------------------------------
\a In January 1994 the DAEO endorsed a request for a Certificate of
Divestiture to OGE covering certain of these stock holdings. As part
of the justification, the DAEO stated that it is impractical for this
appointee to recuse herself from participation in matters that have a
direct and predictable effect on these financial interests because
such matters are an essential part of the duties of the Assistant
Administrator for Air and Radiation.
\b In December 1993 the DAEO granted an 18 U.S.C. 208(b)(1) waiver
to allow this appointee to participate in rulemaking or policy
matters that affect any of the 17 entities. The waiver did not
extend to matters involving the entities as specific parties. The
waiver justification cited the appointee's commitment to sell all the
stocks pursuant to a Certificate of Divestiture to be issued by OGE.
The DAEO viewed as small and insubstantial the appointee's financial
interest in any EPA rule or policy that could affect the value or
earnings of these stocks.
ASSISTANT ADMINISTRATOR FOR
PREVENTION, PESTICIDES AND
TOXIC SUBSTANCES
-------------------------------------------------------- Appendix IV:6
Appointee: Lynn R. Goldman
Previous employer: Public Health Medical Administrator, California
Department of Health Services
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Leave of absence from Resigned
previous employer
Interest in Waiver\a
California State
retirement system
(defined benefits
plan)
Personal/business
relationship
All lawsuits and Recuse -
other matters EPA
involving the State practice
of California as a
specific party and in
which personally
participated in
position of Public
Health Medical
Administrator
All other specific 1-Year
party matters (except recuse
lawsuits challenging
EPA rules) in which
the State of
California is a party
or has filed an
amicus brief unless
authorized by EPA
Administrator
Any EPA matter Recuse
involving the
American Academy of
Pediatrics as a
specific party
Any EPA matter 1-Year
involving as a recuse
specific party any of
nine positions
previously held
outside of U.S.
government
--------------------------------------------------------------------------------
\a This waiver applies to matters that involve the State of
California as a specific party as well as to rulemaking or policy
matters that distinctively affect state governments.
ASSISTANT ADMINISTRATOR FOR
POLICY, PLANNING AND EVALUATION
-------------------------------------------------------- Appendix IV:7
Appointee: David M. Gardiner
Previous employer: Employee, Sierra Club, Washington, D.C.
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Holdings of stocks or Divest Recuse
bonds in four until
entities divest
Personal/business
relationship
Any EPA matter Recuse -
involving Sierra Club EPA
as a specific party practice
and in which
personally
participated as
employee of the Club
Any EPA matter 1-Year
involving as a recuse
specific party any of
four positions
previously held
outside of U.S.
government
Any EPA matter Recuse
specifically
involving a Superfund
contractor, "CH2M
Hill," as long as
brother employed with
that company
Any EPA matter Recuse
specifically
involving the law
firm of Hazel and
Thomas of Alexandria,
Va. as long as
brother-in-law
employed with that
firm
--------------------------------------------------------------------------------
ASSISTANT ADMINISTRATOR FOR
OFFICE OF SOLID WASTE AND
EMERGENCY RESPONSE
-------------------------------------------------------- Appendix IV:8
Appointee: Elliott P. Laws
Previous employer: Partner (nonequity) in the law firm Patton, Boggs
and Blow, Washington, D.C.
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Stock in a single Divest Recuse Waiver
entity, Dominion until until
Resources\a divest divest
Leave of absence from Resign
previous law firm
employer (agreed to
completely sever
relationship)
Personal/business
relationship
Any EPA matter 1-Year
involving a specific recuse
party in which
previous law firm
employer is providing
legal services before
EPA unless authorized
by the EPA
Administrator
Any EPA matter 1-Year
involving 10 former recuse
clients of previous
law firm employer
(who received over
$5,000) unless
authorized by the EPA
Administrator
Any site-specific Recuse -
issue regarding 13 EPA
Superfund sites practice
represented as a
former client\b
--------------------------------------------------------------------------------
\a On Dec. 7, 1993, the DAEO granted this appointee an 18 U.S.C.
208(b)(1) waiver applying only to rulemaking or policy matters
affecting the utility industry. The waiver did not extend to matters
that involve Dominion Resources as a specific party. The waiver also
stated "EPA customarily and routinely grants waivers for rulemaking
and policy matters where, as here, the total value of stock in an
affected industry does not exceed $15,000." Further, the waiver
stated "... this waiver will cease to apply even to rulemaking or
policy matters if the value of your stock should ever exceed
$15,000." OGE issued a Certificate of Divestiture for this stock on
December 21, 1993. Evidence of actual divestiture on February, 10,
1994, was in EPA's records. While this recusal obligation was first
stated in the Sept. 15, 1993, ethics agreement, it was not included
in the formal recusal statement executed on Nov. 1, 1993.
\b In November 1993 an EPA ethics official provided advice on the
applicability of this recusal obligation to a Superfund site not
listed in his recusal statement but that involved as a "potential
third party defendant" a former client covered in the appointee's
recusal statement. The advice was that the appointee need not recuse
himself from issues associated with the Superfund site because the
former client had no direct dealings with EPA.
ASSISTANT ADMINISTRATOR FOR
WATER
-------------------------------------------------------- Appendix IV:9
Appointee: Robert W. Perciasepe
Previous employer: Secretary of Maryland Department of Environment
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Interest in Maryland Waiver\a
State retirement
system (defined
benefits plan)
Personal/business
relationship
All lawsuits and Recuse -
other matters EPA
involving the State practice
of Maryland as a
specific party and in
which personally
participated in
position as Secretary
of the Maryland
Department of the
Environment
All other specific 1-Year
party matters (except recuse
lawsuits challenging
EPA rules) in which
the State of Maryland
is a party or has
filed an amicus brief
unless authorized by
EPA Administrator
--------------------------------------------------------------------------------
\a This waiver applies to matters involving the State of Maryland as
a specific party and to rulemaking or policy matters distinctively
affecting state governments, including the Chesapeake Bay Program.
GENERAL COUNSEL
------------------------------------------------------- Appendix IV:10
Appointee: Jean C. Nelson
Previous employer: Chief Deputy Attorney General, State of Tennessee
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Any matter involving Divest Recuse
Chevron Corporation, until
Exxon Corporation, or divest
Dupont E.I. DeNemours
and participation
affecting any related
industries
Holdings in 29 stocks Recuse\a Waiver\b
or bonds (including
spouse and joint
holdings)
Retained pension Divest
benefits from former
law firm of Gullet,
Sanford, Robinson's,
Martin
Personal/business
relationship
All lawsuits and Recuse -
other matters EPA
involving the State practice
of Tennessee as a
specific party and in
which personally
participated in
position as Chief
Deputy Attorney
General
All lawsuits and Recuse -
other matters EPA
involving the practice
Southern
Environmental Law
Center as a specific
party and in which
personally
participated as a
member of the Board.
All other specific 1-Year
party matters (except recuse
lawsuits challenging
EPA rules) in which
Tennessee or the Law
Center is a party or
has filed an amicus
brief unless
authorized by EPA.
--------------------------------------------------------------------------------
\a The recusal obligation for each of these 29 entities (plus 2
additional entities) was first stated in the August 11, 1993, ethics
agreement. However, this obligation was not entirely included in the
formal recusal statement executed on December 23, 1993. The recusal
statement addressed specifically three of the entities and firms in
the computer industry. Addressing treatment of the other entities,
the recusal statement also said: "I or my husband have other
interests in several industries. Although I am aware that 18 U.S.C.
208(a) bars my participation in any EPA matter which involves any of
these entities as a specific party, I am not listing the individual
holdings because it is highly unlikely that the Office of General
Counsel will have occasion to deal with any 'particular matter' which
involves them as a specific party."
\b On Dec. 21, 1993, the DAEO granted this appointee an 18 U.S.C.
208(b)(1) waiver applying only to rulemaking or policy matters
affecting the 29 entities. The waiver did not extend to matters
involving any of the entities as a specific party.
ASSISTANT ADMINISTRATOR FOR
ADMINISTRATION AND RESOURCES
MANAGEMENT / CHIEF FINANCIAL
OFFICER
------------------------------------------------------- Appendix IV:11
Appointee: Jonathan Z. Cannon
Previous employer: EPA Acting Assistant Administrator, Office of
Policy, Plans, and Evaluation
5 C.F.R. Other
2635.502 uncovere
covered d
Waiver, appearan appearan
18 ce ce
Conflict situation/ 18 U.S.C. 18 U.S.C. U.S.C. relation relation
concern 208 Other 208 208 ship ship
--------------------- --------- ----- --------- -------- -------- --------
Continuing financial
interest
Stock in IBM Divest Recuse
until
divest
Personal/business
relationship
Any EPA matter in Recuse -
which provided legal EPA
services to any of 22 practice
entities while
employed with former
law firm (received
$5,000 or more)
--------------------------------------------------------------------------------
TYPES OF GENERAL FINANCIAL
DISCLOSURE RECORDS EXAMINED AND
RELATED REGULATORY CRITERIA
=========================================================== Appendix V
1. Copies of New Entrant (Nominee), Annual, and Termination Public
Financial Disclosure Reports (SF 278s)
As a means of increasing public confidence in federal officials,
public disclosure of certain financial information of elected and
high-level officials has been required by statute since 1979.
Presidential appointees requiring Senate confirmation are required to
file public disclosure reports (SF 278s) with the designated agency
ethics official (DAEO) at the employing agency. DAEO is required to
review the information disclosed in the report for compliance with
applicable conflict-of-interest laws and regulations, including those
governing recusals. In addition, the Office of Government Ethics
(OGE) further reviews the reports of all presidential appointees
requiring Senate confirmation. OGE views these financial disclosure
reports as an important safeguard for the individual, as well as the
government, in that they provide a mechanism for identifying and
resolving actual or potential conflicts between the individual's
public responsibilities and private interests.
2. DAEO Opinion Letter to OGE
This is one of several documents required by OGE financial disclosure
regulations that would address the recusal obligations of
presidential nominees (other related documents are described below.)
Current OGE regulations require DAEOs to write an opinion letter to
the OGE director certifying that DAEO's review of the presidential
nominee's disclosure report disclosed no conflict of interest under
applicable law and regulations and the DAEO's letter is supposed to
discuss:
"(A) Any actual or apparent conflicts of interest that were
detected during the review process; and
(B) The resolution of those real or apparent conflicts,
including any specific commitment, ethics agreement entered
under the provisions of subpart H of this part, or other
undertaking by the nominee to resolve any such conflicts. A
copy of any commitment, agreement, or other undertaking which is
reduced to writing shall be sent to the Director, in accordance
with subpart H of this part." [See 5 C.F.R.
2634.605(c)(2)(iii).]
Typically, these DAEO opinion letters will refer to any recusal
obligations made by the nominee.
3. DAEO Notification to OGE of Ethics Agreements
OGE's regulation requires DAEOs to (1) submit to OGE any ethics
agreement that a presidential nominee has made with the nominee's
financial disclosure report; (2) notify OGE immediately of any
additional agreements made by the nominee after submission of the
nominee's report; and (3) apprise OGE of any other ethics agreements
made by the individual as an incumbent in a Senate-confirmed
position, or that become known to DAEO during the incumbent's term in
office. [See 5 CFR 2634.803(a) and (b).] This regulation does not
specify a form for this notification (such as a letter).
4. OGE Opinion Letter to Senate Confirmation Committee
OGE's regulation requires the Director of OGE to provide Senate
confirmation committees a letter "expressing the Director's opinion
whether, on the basis of information contained in the report, the
nominee has complied with all applicable conflict laws and
regulations." [See 5 C.F.R. 2634.605(c)(3).]
5. The Appointee's Executed Recusal Statement
This document is viewed by OGE as evidence of satisfaction of a
formal ethics agreements under section 110 of the Ethics in
Government Act, as amended. OGE's regulation requires the appointee
to list and describe in the executed recusal statement the specific
matters or subjects to which the recusal applies; state the method by
which the agency will enforce the recusal; and list the positions of
those agency employees involved in the enforcement (i.e., the
individual's immediate subordinates and supervisors.) [See 5 C.F.R.
2634.804(b)(1).] Such recusal statements are considered as part of
the confirmation process and with OGE and DAEO opinion letters (see
above discussion) have been viewed by oversight committees as an
important institutional check against conflicts of interest by
presidential appointees.
6. Evidence of Ethics Agreement Compliance
OGE's regulation requires that evidence of any action taken to comply
with ethics agreements be submitted by the DAEOs, upon receipt, to
OGE and to the Senate confirmation Committee. [See 5 C.F.R.
2634.804(a).] The ethics agreement is required to specify that the
individual must complete action that he or she has agreed to
undertake within a period not to exceed 3 months from the date of the
agreement. The definition of ethics agreements includes any oral or
written promise by a reporting individual to alleviate an actual or
apparent conflict of interest, including "Preparation of a written
instrument for recusing (disqualifying) the individual from one or
more particular matters or categories of official action." [See 5
C.F.R. 2634.802(a)(1).]
7. OGE Ethics Agreement Tracking Form
This is an internal OGE form that OGE staff use to record the results
of their determinations of when the ethics agreements of presidential
appointees have complied with OGE's regulatory requirements. Using
this record, OGE enters into a computer database the status of each
appointee's compliance with any ethics agreement that generally
involves six types of actions: recusals, divestitures, resignations,
waivers, severance payments, and blind trusts. OGE prepares monthly
status reports from this data and has biennially provided Congress
information on the frequency of such agreements governmentwide.
MAJOR CONTRIBUTORS TO THIS FACT
SHEET
========================================================== Appendix VI
GENERAL GOVERNMENT DIVISION,
WASHINGTON, D.C.
Norman A. Stubenhofer, Assistant Director
John J. Tavares, Evaluator-in-Charge
Gary V. Lawson, Senior Evaluator
OFFICE OF THE GENERAL COUNSEL,
WASHINGTON, D.C.
Jill P. Sayre, Senior Attorney
*** End of document. ***