IEC Journal

DC Bar Legal Ethics CLE Program

This 3 credit hour program could be of particular interest to lawyers from states whose bars require annual training on ethics topics. More information is available at the DC Bar web site:

Ethics and the Government Lawyer 2009: Hot Topics and Issues

Monday, June 22, 2009 5:30 PM to 8:45 PM

Description: In recent years, media and public attention have sharply focused on the ethics of prosecutors and government attorneys. The traditional reluctance to subject government attorneys to bar discipline is evaporating nationwide, making it more important than ever to know what the Rules of Professional Conduct require… even though they often fit imperfectly with the special circumstances of government practice. This up-to-date class will help you sharpen your ethical analysis skills and increase your sensitivity to lurking ethical problems. You will examine recent legal ethics developments as they apply to government practice, using interactive hypothetical scenarios and discussions of current cases.

Cost for government lawyers is $89.00.

Kerik Indicted for False Statements to White House Vetters

A New York TV station reports:

According to the new indictment, Kerik, in 1999 and 2000 when he was NYPD commissioner, spoke to city regulators on behalf of contractors who were seeking one or more permits to do business in and with the city.

The contractors then spent more than $255,000 renovating Kerik's apartment in Riverdale. In 2004, when Kerik was under consideration by the White House for the Homeland Security position, he gave false and misleading answers to questions by White House officials about his relationship with the contractors.

The indictment alleges that Kerik falsely denied that there was any possible concern the president should have about his relationship with the contractors, and that as a public official he had had any financial dealings with individuals seeking to do business with the City.

It also alleges Kerik sent an e-mail to a White House official containing false and misleading statements concerning the renovations to the apartment in Riverdale.

Proactive on Transit Subsidy?

Do all employees in your agency understand the rules concerning the commuter subsidy paid to federal employees?  This question is all the more important because the American American Recovery and Reinvestment Act provided a large increase in benefits through Jan. 1, 2011. Including this topic in your ethics training could prove useful. The Department of Transportation's TranServe website has information on transit subsidy rules.

Ethics Link from Agency Home Page?

The Inspector General Reform Act of 2008 mandates favorable treatment of Inspector General websites:

§ 8L. Information on websites of offices of Inspectors General

(a) Direct links to Inspectors General offices.--

(1) In general.--Each agency shall establish and maintain on the homepage of the website of that agency, a direct link to the website of the Office of the Inspector General of that agency.

(2) Accessibility.--The direct link under paragraph (1) shall be obvious and facilitate accessibility to the website of the Office of the Inspector General.

Does your agency give the same prominence to your ethics program, as does the Department of Transportation?

DoD Guidance for Consultants & Advisory Committee Members

The Department of Defense Standards of Conduct Office has issued a nine-page document entitled “An Ethics Guide for Consultants and Advisory Committee Members at the Department of Defense.” The first paragraph describes the purpose and scope:

At the Department of Defense (DoD), we are fortunate to have many experts and industry leaders from outside of the Government to provide advice to the Secretary as consultants or members of an advisory committee. Because many of you retain extensive links to Defense industries or other organizations related to national security, it is important that you understand potential conflicts of interest that may arise from your appointment to this Department. Recognizing your demanding schedules, this guidance only briefly summarizes those statutes and regulations most likely to affect you, and does not describe each element or exception.

Thanks to Mark Stone for the tip.

June 4th Meeting

Following up on the excellent presentation at our May meeting by Erica Dornburg and Cheryl Kane Piasecki, which included an outstanding overview of the Public Financial Disclosure Report (SF-278) review process, our June 4^th meeting will continue to focus on the SF-278.   Our June meeting will feature Mr. Arthur Goldberg, U.S. Department of Justice, Civil Division, Federal Programs Branch.  Mr. Goldberg will address what happens when an agency can't get a public financial disclosure filer to file the required report report, i.e. going to court to enforce the requirement.  He will share with us what the Department of Justice looks for from the agencies to build their case.  He will also share some case stories with the community.  Mr. Goldberg is looking forward to questions from the ethics community on this timely topic.

 

As usual, we will meet from 12:15-1:30 in the OTS auditorium and, as always, individuals who are on the IEC roster need not pre-register for this meeting.  Ethics officials who are not on our roster but who wish to attend can pre-register by contacting Patrick.Carney@fcc.gov not later than Monday, June 1st.  Those who are neither on the IEC roster nor pre-registered can still be admitted by showing a Government ID to OTS Security personnel.

 

We’d also like to take a moment to remind our membership to frequently check this website for word of future meetings, ethics job openings and other news of interest to the Federal ethics community.  As we’ve indicated previously, if you’ve noticed a lack of email notices lately, the RSS Feed service that a lot of us used was shut down a while back, so it's necessary to resubscribe in order to receive future notices of postings.  Please read our April 1 posting regarding receiving email notices of IEC postings.  It describes one option called FeedBlitz that seems to work well for many of us.  You can get to the April 1 posting by clicking on the link associated with that date on the calendar on the top right side of our homepage.

FAA Whistleblowers Blog

The FAA Whistleblowers blog provides a different perspective. As the tagline states: "This blog has been created by, for, and about FAA Whistleblowers. Come in and read about the individuals who have put it all on the line by making safety disclosures which placed their careers in jeopardy."

Removal sustained (false statement and misuse of equipment)

Former DHS employee fired for lying duirng an official investigation and misuse of government equipment.  See full case at http://www.fedsmith.com/articles/records/file/Hernandez09-3038(2).pdf.

Recovery Act Restrictions on Lobbyists

The President's memo on implementing the Recovery Act contains the restrictions below on lobbyists. OMB has issued interim guidance, and OMB Watch's analysis is also available.

Sec. 3. Ensuring Transparency of Registered Lobbyist Communications. (a) An executive department or agency official shall not consider the view of a lobbyist registered under the Lobbying Disclosure Act of 1995, 2 U.S.C. 1601 et seq., concerning particular projects, applications, or applicants for funding under the Recovery Act unless such views are in writing.

(b) Upon the scheduling of, and again at the outset of, any oral communication (in-person or telephonic) with any person or entity concerning particular projects, applications, or applicants for funding under the Recovery Act, an executive department or agency official shall inquire whether any of the individuals or parties appearing or communicating concerning such particular project, application, or applicant is a lobbyist registered under the Lobbying Disclosure Act of 1995. If so, the lobbyist may not attend or participate in the telephonic or in-person contact, but may submit a communication in writing.

(c) All written communications from a registered lobbyist concerning the commitment, obligation, or expenditure of funds under the Recovery Act for particular projects, applications, or applicants shall be posted publicly by the receiving agency or governmental entity on its recovery website within 3 business days after receipt of such communication.

(d) An executive department or agency official may communicate orally with registered lobbyists concerning general Recovery Act policy issues; provided, however, that such oral communications shall not extend to or touch upon particular projects, applications, or applicants for funding, and further that the official must contemporaneously or immediately thereafter document in writing: (i) the date and time of the contact on policy issues; (ii) the names of the registered lobbyists and the official(s) between whom the contact took place; and (iii) a short description of the substance of the communication. This writing must be posted publicly by the executive department or agency on its recovery website within 3 business days of the communication.

(e) Upon the scheduling of, and again at the outset of, any oral communications with any person or entity concerning general Recovery Act policy issues, an executive department or agency official shall inquire whether any of the individuals or parties appearing or communicating concerning such issues is a lobbyist registered under the Lobbying Disclosure Act. If so, the official shall comply with paragraph (d) above.

Subisdizing Attendance At Awards Ceremonies

When can the government subsidize attendance at an awards ceremony? Air Force lawyer Mark Stone provides a number of Department of Defense and Air Force references in his e-mail newsletter, as well as the following other authorities:

• 70 Comp. Gen. 440, B-241987, April 25, 1991 (spouse travel to attend an award ceremony)

• 69 Comp. Gen. 38, B-233607, Oct. 26, 1989 (spouse travel to attend an award ceremony)

• 55 Comp. Gen. 1332 (1976) (travel to accept an award from a non-Federal organization)

• 5 USC 4503 (awards by Federal agencies to Federal employees)

• GAO guide, Principles of Federal Appropriations Law, Third Edition, Jan. 2004, Volume I, page 4-167. [The March 2009 update to the guide does not have guidance on this issue.]

Contact Mr. Stone to be added to his mailing list (address disguised to throw off automated address-gathering software used by spammers): mark_dot_ stone--AT--wpafb _dot_af_dot_mil.

The Air Force Materiel Command (AFMC) ethics website (registration required) has more ethics information:

http://afmcethics.wpafb.af.mil

DOI Inspector General Ethics Attorney vacancy (GS 13-14)

Department of the Interior (DOI) has a vacancy for a GS 13-14 (promoption potential to a GS 15) Associate Ethics Counselor in the OIG’s Office of General Counsel (OGC).  The vacancy announcement is open until May 26, 2009.  For full details, please see the OPM announcement at: http://jobsearch.usajobs.opm.gov/getjob.asp?JobID=80871903&jbf574=IN24&brd=3876&AVSDM=2009%2D05%2D08+08%3A01%3A01&sort=rv&vw=d&Logo=0&FedPub=Y&caller=%2Fagency%5Fsearch%2Easp&FedEmp=Y&SUBMIT1.x=74&SUBMIT1.y=12&ss=0&TabNum=7&rc=3

Indictment on 23 counts of bribery and honest service fraud

A recently unsealed 23-count indictment alleges that a civilian contractor paid more than $2.8 million in bribes to a U.S. Army contracting official stationed at Camp Arifjan, an Army base in Kuwait, and the official’s wife, and that the three individuals committed honest services fraud and money laundering offenses in connection with the same conduct.

See article at http://www.al.com/printer/printer.ssf?/base/news/1241770570203800.xml&coll=2

See DOJ press release http://www.usdoj.gov/opa/pr/2009/May/09-crm-449.html

Sixth Circuit Interprets Bribery Statue

 The May issue of The Informer, the publication of the Federal Law Enforcement Training Center's Legal Division, highlights a recent bribery case, U.S. v. Abbey, 560 F.3d 513 (6th Cir. 2009). The Sixth Circuit summarized its holding as follows:

Abbey’s appeal boils down to a single assertion: that the government, to sustain a conviction under 18 U.S.C. § 666 or the Hobbs Act, 18 U.S.C. § 1951, must prove a direct link between a specific gift given to a public official and an explicit promise by that official to perform a specific, identifiable official act in return. Though Abbey is correct that the government did not prove such a link at trial and that the jury instructions did not so instruct, we nevertheless reject his argument because neither statute contains such a heightened requirement. We thus affirm Abbey’s convictions and sentence.

Legislation of Interest

At today's meeting two new legislative efforts were notified of interest of the ethics community:

• S. 49 - Public Corruption Prosecution Improvements Act (Reported in Senate) was introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and committee member John Cornyn (R-TX).  It was recently approved by the panel and is awaiting Senate action.  It is intended to provide new tools to help prosecutors target corruption among public officials.  It would rewrite and expand the "illegal gratuities" statute ( 18 USC 201) by eliminating the requirement that there be a linkage between a gift and an official action by a public official.  Under this provision, the gratuities statute would be violated whenever a gift is given to a public official "for or because of the official's or person's official position," regardless of whether any official action was taken.  It would effectively overrule Sun-Diamond holding. http://thomas.loc.gov/cgi-bin/query/D?c111:2:./temp/~c111J85Vvd::

• HR 2128 was reintroduced.  This bill would require Public Financial Disclosure Report filers to report their residence and mortgage. http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.2128:

WH Special Counsel May 5 Presentation on Ethics

Norm Eisen, White House Special Counsel for Ethics and Government Reform, recent presentation at the George Washington University on May 5, 2009.  See video at: http://undertheinfluence.nationaljournal.com/2009/05/white-house-ethics-adviser-lob.php (approx. 13 minutes long).

Interesting Article on Improving the Ethics Pledge

In this commentary in the Washington Examiner, Gary Bass of OMB Watch offers 4 steps the President can take to address problems with the Pledge, if there was clearer WH guidance on implementation (e.g., clear principles on waivers).

See full article at http://www.washingtonexaminer.com/opinion/columns/More-OpEd-Contributors/How-to-improve-Obamas-ethics-and-lobbying-executive-order-44482042.html.

DOJ Authors of Controversial Memos Seek Consideration

A Washington Post story explains:

Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

DOD Inspector General Withdraws Report on Retired Officers

Today's New York Times reports in part:

In a highly unusual reversal, the Defense Department’s inspector general’s office has withdrawn a report it issued in January exonerating a Pentagon public relations program that made extensive use of retired officers who worked as military analysts for television and radio networks.

Donald M. Horstman, the Pentagon’s deputy inspector general for policy and oversight, said in a memorandum released on Tuesday that the report was so riddled with flaws and inaccuracies that none of its conclusions could be relied upon. In addition to repudiating its own report, the inspector general’s office took the additional step of removing the report from its Web site.

USDA Senior Ethics Specialist vacancy (GS 14)

The USDA Office of Ethics is advertising for a GS-14 Senior Ethics Specialist.  Announcement closes: June 03, 2009.  See full announcement at: http://jobsearch.usajobs.gov/getjob.asp?JobID=80803286

OGE Ethics Specialist vacancies GS 9 and 13 (closes May 20)

VACANCY ANNOUNCEMENT

OGE is seeking a Government Ethics Specialist to join a team of dedicated professionals in the Office of Agency Programs at the U.S. Office of Government Ethics (OGE). The ideal candidate will have superb organizational and analytical skills and a strong desire to make a positive and practical impact in the Federal Government.

The position closes Wednesday, May 20, 2009.

Interested candidates should refer to 09-OGE-009P or 09-OGE-008 (see links below). Questions about the position should be directed to Trish Zemple, Associate Director, Program Services Division.

09-OGE-009P -

http://www.usoge.gov/careers.aspx#09oge009p

09-OGE-008 -

http://www.usoge.gov/careers.aspx#09oge008

New Whistleblower Protections in the Works?

Joe Davidson reports in his May 1 Federal Diary column that a bipartisan group of legislators is asking the President to issue an Executive Order protecting whistleblowers.

Meanwhile, two whistleblower bills are showing signs of possible life:

• S 372

• HR 1507