US Office of Government Ethics
KeywordsPublic Trust Conduct Regulation Ethic Program Executive Order Executive Branch
US Executive Branch agency responsible for the oversight of the federal executive branch administrative ethics program including the confidential, public financial disclosure and standards of conduct programs.
In the aftermath of the Watergate scandal (1972–1974), which led directly to the resignation of President Richard Nixon and the criminal convictions of a number of his closest White House aides, Congress passed the Ethics in Government Act of 1978 in an effort to restore public trust in the federal government (Gilman 1995; Roberts 1988; Walter 1981). The Ethics Act embraced much stricter compliance-based ethics regulation as the solution for the restoration of public trust in government. Advocates of compliance-based or rule-driven ethics argue that providing government employee with clear rules governing their conduct is the most effective way to deter official misconduct and to maintain public trust in government.
Due to growing concerns over the impact of financial conflicts of interest on public trust of the federal government, between 1961 and 1968, Congress and the presidential administrations John F. Kennedy and Lyndon Johnson put in place much stricter criminal public corruption and conflict of interest restrictions as well as new administrative standards of conduct directed at regulations for federal executive branch employees. In 1965, President Lyndon Johnson issued Executive Order 11222 that established new standard of conduct regulations for federal executive branch employees and officials and requiring tens of thousands of executive branch officials to file annual confidential financial disclosure statements. The new ethics directives dealt with issues such as acceptance of gifts and other non-criminal conflict of interest issues. Subsequently, each federal agency and department adopted their own standard of conduct rule patterned on the guidelines established by Executive Order 11222. However, these reforms did not prevent the Watergate scandal and an explosion in serious conflict of ethics controversies involving high-level executive branch employees and officials. Elected to the presidency in 1976, Jimmy Carter had pledged to restore trust in the federal government. The Ethics in Government Act of 1978 (Ethics Act) passed Congress with strong support from President Carter. With the goal of increasing the financial transparency of high-level executive branch officials, members of Congress, and federal judges, the Ethics Act required high-level officials in all three branches of the federal government to file annual public financial disclosure statements and also to restore trust in criminal investigations of high-level executive branch officials, including the President of the United States.
In 1989, President George H. W. Bush signed Executive Order 12674 that replaced individual agency standards of conduct with a single set of ethical standards applicable to federal executive branch employees. On August 7, 1992, the USOGE issued the first set of comprehensive executive branch standard of conduct regulations. These were codified in 5 C.F.R. Part 2635.
The Responsibilities of the US Office of Government Ethics
The Ethics Act of 1978 and subsequent executive orders gave the USOGE responsibility for (1) the oversight of the existing confidential financial disclosure program, (2) the oversight of the new public financial disclosure program for high-level executive branch officials, (3) providing interpretations of presidential standard of conduct executive orders, (4) the issuance of advisory opinions regarding the application of standard of conduct rules and regulations, (5) the approval of blind trust to resolve potential financial conflicts of interest issues, and (6) the oversight of agency ethics programs. Of particular importance, Congress did not give the USOGE any authority to investigate or prosecute possible violations of criminal public corruption or conflict of interest laws.
A presidential appointee subject to Senate confirmation serves as the Director of the USOGE. The Director of USOGE serves a 5-year term. One hundred and thirty federal organizations appoint their own designated agency ethics officials (DAEOs) to assist some 2.7 million executive branch employees in identifying and resolving potential conflicts of interests. Presently, some 5,600 full-time and part-time ethics officials work to educate employees regarding ethics rules and regulations and help employees to recognize and resolve actual and potential conflicts of interest. The USOGE has a staff of 80 full-time equivalent employees and a budget of $15 million. In comparison to other executive branch public integrity units, the USOGE is a small organization. As a result, the USOGE relies heavily upon agency DAEOs to handle the day-to-day management of agency ethics programs. Even though the USOGE provides extensive training for agency DAEOs, the USOGE lacks the authority to appoint or remove agency ethics officials.
The USOGE devotes much of its resources on the oversight of the executive branch confidential and public financial disclosure systems. In 1965, President Lyndon Johnson issued Executive Order 11122, prescribing standards of ethical conduct for government officers and employees. Besides establishing new standards of conduct for executive branch employees, the executive order put in place a confidential financial reporting program for tens of thousands of federal employees. The order delegated to each federal agency or organization responsibility for collecting and reviewing confidential disclosure statements. Pursuant to the requirements of the 1978 Ethics Act, agency ethics officials annually collect and review some 384,000 confidential financial disclosure statements and 26,000 public financial disclosure statements. Of these forms, the USOGE only has responsibility for reviewing public financial disclosure statements filled by presidential appointees subject to Senate confirmation.
The Resolution of Financial Conflicts of Interest and the Presidential Nominee
Prior to the passage of the Ethics Act of 1978, the Senate system for reviewing the financial affairs of presidential appointees for financial conflicts of interest effectively broke down. Senate committees responsible for reviewing the qualifications of presidential nominees lacked uniform standards for identifying and resolving actual or potential financial conflicts of interests the resolution of financial conflict of interest. This situation seriously complicated efforts by presidential administrations to recruit individuals to serve in crucial policy-making positions. Rules regarding the establishment of blind trusts did not exist. Presidential nominees needed to negotiate recusal or divestiture agreements with individual committees.
To speed up the review of the financial affairs of presidential appointees subject to Senate confirmation, Ethics Act of 1978 assigned to the USOGE the responsibility for reviewing the public financial disclosure statements of presidential appointees subject to Senate confirmation and to make sure that nominees took appropriate steps to resolve and financial conflict of interest issues. Subsequently, Senate committees adopted a policy of not proceeding with the confirmation of presidential nominees until the USOGE informed the committee that it had reviewed their public financial statements and the nominee had agreed to resolve any actual or potential financial conflict of interest involving the nominee and the spouse and or minor children of the nominee. The system has proven remarkably successfully in the resolution of financial conflicts of interest which might otherwise derail a nominee’s effort to obtain Senate confirmation.
Under the present system, a presidential nominee submits their public financial form to the DAEO of the agency or department they will serve. The DAEO then conducts an independent review of the financial affairs of the nominee for any actual or potential financial conflicts of interest and negotiates with the nominee how to resolve any conflicts. The agency DAEO then forwards the nominee’ financial disclosure statement to the USOGE for a second review. In consultation with the nominee and the appropriate agency ethics officials, the USOGE works to resolve any financial conflict of interest not taken care of satisfactorily at the agency level. Historically, the USOGE has relied upon a number of different remedies. Some nominees agree to recuse or disqualify themselves from participating in certain matters in which the nominee or immediate family member has a financial conflict of interest. Recusal agreements, however, have a major disadvantage of making it more difficult for a nominee efficiently perform their official duties. To deal with this problem, some nominees decide a blind trust to resolve financial conflict of interest issues without having to sell off any financial holdings. Blind trusts must meet strict statutory requirements.
Between the enactment of the Ethics Act of 1978 and the late 1980s, complaints increased that it worked an undue financial hardship to force nominees to sell of certain financial holdings or carry the expense of setting up and managing a blind trust which might subject them to substantial capital gains taxes. To lessen the burden on nominees and other executive branch employees and officials required to sell off certain financial assets, the Ethics Reform Act of 1989 granted the Director of the USOGE the authority to issue a so-called certificate of divestitures which permits officials to defer capital gains taxes on assets sold to comply with financial conflict of interest rules and regulations.
During a presidential transition, not surprisingly, the role of the USOGE in the review of the financial affairs of presidential nominees becomes much more important. A new administration wants to get their nominees through the confirmation process as quickly as possible. To accomplish this objective, the USOGE must process hundreds of public financial disclosure forms and negotiate often complex ethics agreements over a particularly short period of time. The USOGE has proven remarkably successful in meeting these extremely tight timetables. From Republican to Democratic administrations or Democratic to Republican administrations, the USOGE established a reputation of professionalism in the resolution of complex financial conflict of interest issues.
Employee Standards of Conduct Oversight and the USOGE
The management of the executive branch standards of conduct program constitutes the second major responsibility of the USOGE. During the 1990s, the USOGE took the important step of issues detailed regulations dealing with a number of important standards of conduct issues covered by a series of executive branch standard of conduct executive orders (5 C.F.R. Part 2635). The USOGE issued the new regulations with the goal of establishing a uniform set of administrative ethics rules for all executive branch employees. Executive branch employees found responsible for violating these rules face disciplinary action but do not face criminal sanctions. Some of the topics dealt with by these standard of conduct regulations include (1) gifts to executive branch employees from outside sources, (2) gifts between executive branch employee, (3) conflicting financial interests involving executive branch employees, a spouse or minor child, (4) impartiality in performing official duties, (5) executive branch employees seeking outside employment, (6) misuse of position by executive branch employees and officials, and (7) outside activities by executive branch employees. Significantly, the USOGE has limited authority to enforce these standards of conduct regulations or order corrective action by federal executive branch employees. The Ethics Act of 1978, the Ethics Reform Act of 1989, and a series of executive orders place responsibility for the enforcement of standards of conduct regulations on individual agencies and departments.
The regulation of the acceptance of gifts and private hospitality by executive branch employees constitutes one of the most difficult standards of conduct issue dealt with by federal agencies and departments and the USOGE. Regulations issued by the USOGE prohibit executive branch employees and officials from accepting most gifts or private hospitality from prohibited sources. Gift acceptance regulations prohibit all executive branch employees and officials from accepting most types of gifts and private hospitality from a “prohibited source.” A “prohibited source” includes anyone seeking business with or official action by an employee’s agency and anyone substantially affected by the performance of the employee’s duties. Exceptions to the gift acceptance prohibition include unsolicited gifts worth less than $20 per occasion, gifts motivated by a personal or family relationship and entertainment, and food and refreshments at certain widely attended gatherings.
Federal agency ethics officials also devote considerable time to the management of financial conflicts of interest. Standards of conduct ethics regulations prohibit executive branch employees “from participating in an official government capacity in a matter in which he has a financial interest or in which his spouse, minor, child, employer, or any one of several other specified persons has a financial interest.” Regulations issued by the USOGE give agency DAEO’s broad authority to resolve financial conflicts of interest including requiring employees and officials to sell certain financial interests or to acquire certain types of financial interests. Again, the USOGE does not have a direct role in the resolution of the vast majority of financial conflict of interests involving executive branch employees. This responsibility rests with individual agencies and federal departments.
The regulation of the outside activities of executive branch employees has also proven a difficult public ethics issue for federal agencies and departments and the USOGE. The Hatch Act, for instance, places limits on the on political activities by off and on duty federal executive branch employees. Also, standards of conduct regulations permit federal agencies to require employees to obtain prior approval from their agency before engaging in outside activities that may create a financial conflict of interest (5 C.F.R. 2635.801). An employee of the Environmental Protection Administration, for example, receives a promotion. The employee’s new position will require the employee to write new hazardous waste disposal regulation. The employee also serves as a president of a nonprofit environmental organization that routinely submits comments on such regulations. Federal standards of conduct regulations would prohibit the EPA officials from continuing to serve as the president or officer of the nonprofit environmental organization (5 C.F.R. 2635.802).
Executive branch standards of conduct regulations also prohibit federal employees from misusing their public positions for private gain. This includes misuse of nonpublic information, misuse of government property and equipment, and making use of work hours to engage in activities unrelated to the employee’s official responsibilities and a range of other activities (5 CFR Part 2635).
The USOGE and the Restoration of Public Trust in Government
When one looks at the size of the USOGE, one might assume that it has a minor role in protecting public trust in the integrity of executive branch employees and officials. This would not be an accurate assessment of the role played by the USOGE since its establishment by the Ethics Act of 1978. In fact, it has emerged as one of the most effective federal public integrity units. First, the USOGE has proven remarkably successful in helping to eliminate financial conflicts of interest as a major barrio to the Senate confirmation of presidential nominees. The USOGE has worked effectively with both Republican and Democratic administrations to remove barriers to Senate confirmation. The USOGE has proven remarkably successful in working effectively with both the White House and Senate committees with respect to the Senate confirmation process. This has proven to be a remarkable achievement in the light of the problems created by financial conflict of interest issues prior to the passage of the Ethics in Government Act and the establishment of the USOGE.
Second, the USOGE has succeeded in putting place a uniform set of ethics guidelines dealing with a number of common conflict of interest issues that has the ability to seriously erode public trust in government. The existence of a uniform set of ethics guidelines has made it much easier for agency ethics officials to put in place ethics training programs directed at helping executive branch employee avoid conflict of interest controversies that have the potential to destroy their government careers and reduce public trust in government. As a result, the adoption of a uniform set of standard of conduct regulations has proven successful in reducing intentional and inadvertent standard of conduct violations.
Third, the USOGE plays a crucial role assuring the every federal agency takes seriously the importance of operating effective government ethics programs. The USOGE constantly monitors and evaluates the effectiveness of agency ethics programs. Even though the USOGE does not have the authority to appoint or remove agency ethics officers, it does have the authority to order federal agencies to make changes to their ethics programs if they do not meet standards established by the USOGE.
Fourth, the USOGE directly and indirectly provides the ethics officials of federal agencies education and training essential to the effective operations of agency ethics programs. As part of this mission, the USOGE provides agency ethics programs with up-to-date interpretations of standard of conduct regulations. With this information, agency ethics officials have a much higher probability of preventing federal employees from violating ethics rules. As a result, the USOGE places a high priority on the education and training of agency ethics officials in an effort to provide them the tools to work with large numbers of federal executive branch employee to avoid inadvertent violations of standard of conduct regulations.
Many critics of compliance or rule-driven ethics argue that there is little increase of public trust in government (Huddleston and Sands 1995). Although rule-driven ethics may not be the only way to restore public trust in government, it has a major role to play. The history of the USOGE demonstrates that effective public integrity management has the ability to reduce conduct that seriously undermines public trust in government (Roberts 2007).
- Roberts R (1988) White house ethics: the history of the politics of conflict of interest regulation. Greenwood Press, WestportGoogle Scholar
- United States Office of Government Ethics. Mission and Responsibilities. Retrieved August 23, 2016 https://www.oge.gov/web/oge.nsf/Mission%20and%20Responsibilities