Federal Ethics Process Needs to Be Clear and Transparent

Yesterday, the Project On Government Oversight (POGO) sent a letter to the U.S. Office of Government Ethics (OGE) urging it to require agencies to issue more comprehensive ethics agreements. In these agreements, nominees and senior government officials acknowledge that they are prohibited from involvement in matters where they have conflicts of interest. Currently, these agreements cover everything required by various laws and regulations, but do not describe the applicable prohibitions in President Trump’s ethics pledge. The lack of comprehensive and detailed ethics guidance in one document can be confusing for nominees, the public, and former employers and clients.

Currently, ethics agreements only describe disqualification periods of one year, when in fact some appointees may be prohibited from participating in certain matters for two years. For example, an nominee who was a recent lobbyist is prohibited under the ethics pledge from participating for two years in matters related to their employers or clients on the issues they recently lobbied on. However, their ethics agreement only describes the one-year ban that is based on federal regulations. It does not lay out what is required of them under the ethics pledge. Improving these agreements could better inform everyone involved.

In related news, there is an ongoing struggle for transparency regarding waivers that some officials have been given excusing them from certain restrictions imposed by President Trump’s ethics pledge. Last month, Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Ranking Member Dianne Feinstein (D-CA), and Senator Gary Peters (D-MI) sent a letter to Office of Management and Budget (OMB) Director Mick Mulvaney, urging his office—which oversees and coordinates various administration-wide policies—to instruct all agencies to proactively provide the Office of Government Ethics (OGE) with all ethics waivers they issue to officials so that OGE can publish them on its website. The Trump administration did publish all existing waivers in June, but has not continued to do so since then.

Proactive disclosure of these waivers allows the public, press, and organizations like POGO access to the information without having to file Freedom of Information Act (FOIA) requests. Since agencies often take months and sometimes years to respond to FOIA requests, relying on the requests means that the public would effectively be kept in the dark about which officials have to follow the rules and which don’t.

“Public disclosure of these records, including ethics pledge waivers, is essential to ensuring that ethical commitments are maintained so that the American people can be confident that government employees are working in their interest,” wrote the Senators in their letter. “Please ensure that the practice of providing ethics pledge waivers and recusals to OGE contemporaneously upon their issuance is continued.”

In March, using FOIA, POGO requested waivers and related recusal records from 54 federal agencies. In the six months since filing, 29 of the 54 agencies have issued a final response; only 4 of the 29 are cabinet-level departments.

In the most extreme case, the State Department told POGO that it would take over a year for them to get to our request. The Department of Defense has exceeded the estimated delivery time they provided and has not given a new date. Other departments have not provided an estimated response time at all.

Chairman Grassley made the same demand for transparency in 2009. The Obama administration initially refused to post ethics waivers as they were issued—pointing to the fact that President Obama’s Executive Order on ethics only required an annual accounting of waivers (Trump’s Executive Order eliminated this annual requirement). Grassley, however, refused to back down and OGE began regularly posting the waivers and their justifications shortly thereafter—a precedent of transparency that Grassley, Feinstein, and Peters are now trying to preserve. If not done with full transparency, Grassley was concerned that these waivers “could be used to gut the ethical heart” out of Obama’s ethics pledge. The same concern applies today. After all, what good is an ethics pledge if everybody it would apply to secretly gets a waiver?

A lack of transparency weakens the government’s ethics program. While there may be exceptional situations where granting an official a waiver to ethics rules is warranted, the public should know when the government decides to issue such a waiver, the waiver’s scope, and the reasons it was issued. A copy of the waiver should also be made public immediately. This transparency puts a spotlight on the official and their involvement in government decision-making when they have a conflict of interest. And the attention created by this spotlight can help prevent abuse and the betrayal of the public trust. POGO agrees with Senators Grassley, Feinstein, and Peters: A step backwards on ethics transparency makes it more difficult to hold government officials accountable.