116th CONGRESS 1st Session |
To amend the Ethics in Government Act of 1978 to require Federal political appointees to sign a binding ethics pledge, and for other purposes.
March 5, 2019
Mr. Gallagher introduced the following bill; which was referred to the Committee on Oversight and Reform
To amend the Ethics in Government Act of 1978 to require Federal political appointees to sign a binding ethics pledge, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Ethics pledge requirement for senior Executive branch employees.
The Ethics in Government Act of 1978 (5 U.S.C. App. 101 et seq.) is amended by inserting after title I the following new title:
“For the purposes of this title, the following definitions apply:
“(1) The term ‘executive agency’ has the meaning given that term in section 105 of title 5, United States Code, and includes the Executive Office of the President, the United States Postal Service, and Postal Regulatory Commission, but does not include the Government Accountability Office.
“(2) The term ‘appointee’ means any full-time, non-career Presidential or Vice-Presidential appointee, noncareer appointee in the Senior Executive Service (or other SES-type system), or appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C and other positions excepted under comparable criteria) in an executive agency, but does not include any individual appointed as a member of the Senior Foreign Service or solely as a uniformed service commissioned officer.
“(A) has the meaning given that term in section 2635.203(b) of title 5, Code of Federal Regulations;
“(B) includes gifts that are solicited or accepted indirectly as defined at section 2635.203(f) of such title; and
“(C) does not include those items excluded by sections 2635.204(b), (c), (e)(1)–(3) and (j)–(l) of such title.
“(4) The term ‘covered executive branch official’ and ‘lobbyist’ have the meanings given those terms in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602).
“(5) The term ‘registered lobbyist or lobbying organization’ means a lobbyist or an organization filing a registration pursuant to section 4(a) of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1603(a)), and in the case of an organization filing such a registration, ‘registered lobbyist’ includes each of the lobbyists identified therein.
“(6) The term ‘lobby’ and ‘lobbied’ mean to act or have acted as a registered lobbyist.
“(7) The term ‘particular matter’ has the meaning given that term in section 207 of title 18, United States Code, and section 2635.402(b)(3) of title 5, Code of Federal Regulations.
“(8) The term ‘particular matter involving specific parties’ has the meaning set forth in section 2641.201(h) of title 5, Code of Federal Regulations, except that it shall include any meeting or other communication relating to the performance of one’s official duties with a former employer or former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties.
“(9) The term ‘former employer’ is any person for whom the appointee has within the 2 years prior to the date of his or her appointment served as an employee, officer, director, trustee, or general partner, except that ‘former employer’ does not include any executive agency or other entity of the Federal Government, State or local government, the District of Columbia, Native American tribe, or any United States territory or possession.
“(10) The term ‘former client’ is any person for whom the appointee served personally as agent, attorney, or consultant within the 2 years prior to the date of his or her appointment, but excluding instances where the service provided was limited to a speech or similar appearance. It does not include clients of the appointee’s former employer to whom the appointee did not personally provide services.
“(11) The term ‘directly and substantially related to my former employer or former clients’ means matters in which the appointee’s former employer or a former client is a party or represents a party.
“(12) The term ‘participate’ means to participate personally and substantially.
“(13) The term ‘post-employment restrictions’ includes the provisions and exceptions in section 207(c) of title 18, United States Code, and the implementing regulations.
“(14) The term ‘Government official’ means any employee of the executive branch.
“(15) The term ‘Administration’ means all terms of office of the incumbent President serving at the time of the appointment of an appointee covered by this title.
“(16) The term ‘pledge’ means the ethics pledge set forth in section 202 of this title.
“(17) All references to provisions of law and regulations shall refer to such provisions as in effect on the date of enactment of this title.
“Each appointee in every executive agency appointed on or after the date of enactment of this section shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee:
As a condition, and in consideration, of my employment in the United States Government in a position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law:
‘(1) Lobbyist Gift Ban. I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee.
‘(2) Revolving Door Ban—All Appointees Entering Government. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
‘(3) Revolving Door Ban—Lobbyists Entering Government. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment:
‘(A) participate in any particular matter on which I lobbied within the 2 years before the date of my appointment;
‘(B) participate in the specific issue area in which that particular matter falls; or
‘(C) seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.
‘(4) Revolving Door Ban—Appointees Leaving Government. If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions for a period of 2 years following the end of my appointment.
‘(5) Revolving Door Ban—Appointees Leaving Government to Lobby. In addition to abiding by the limitations of paragraph 4, I also agree, upon leaving Government service, not to lobby any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration.
‘(6) Employment Qualification Commitment. I agree that any hiring or other employment decisions I make will be based on the candidate's qualifications, competence, and experience.
‘(7) Assent to Enforcement. I acknowledge that title II of the Ethics in Government Act of 1978, which I have read before signing this document, defines certain of the terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that title as a part of this agreement and as binding on me. I understand that the terms of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Federal Government service.’ .
“(a) The Director of the Office of Management and Budget, in consultation with the Counsel to the President, may grant to any current or former appointee a written waiver of any restrictions contained in the pledge signed by such appointee if, and to the extent that, the Director certifies (in writing) that—
“(1) the literal application of the restriction is inconsistent with the purposes of the restriction; or
“(2) it is in the public interest to grant the waiver.
“(b) Any waiver under this section shall take effect when the certification is signed by the Director.
“(c) For purposes of subsection (a)(2), the public interest shall include exigent circumstances relating to national security or to the economy. De minimis contact with an executive agency shall be cause for a waiver of the restrictions contained in paragraph 3 of the pledge.
“(a) The head of each executive agency shall, in consultation with the Director of the Office of Government Ethics, establish such rules or procedures (conforming as nearly as practicable to the agency’s general ethics rules and procedures, including those relating to designated agency ethics officers) as are necessary or appropriate to ensure—
“(1) that every appointee in the agency signs the pledge upon assuming the appointed office or otherwise becoming an appointee;
“(2) that compliance with paragraph 3 of the pledge is addressed in a written ethics agreement with each appointee to whom it applies, which agreement shall also be approved by the Counsel to the President prior to the appointee commencing work;
“(3) that spousal employment issues and other conflicts not expressly addressed by the pledge are addressed in ethics agreements with appointees or, where no such agreements are required, through ethics counseling; and
“(4) compliance with this title within the agency.
“(b) With respect to the Executive Office of the President, the duties set forth in subsection (a) shall be the responsibility of the Counsel to the President.
“(c) The Director of the Office of Government Ethics shall—
“(1) ensure that the pledge and a copy of this title are made available for use by agencies in fulfilling their duties under subsection (a);
“(2) in consultation with the Attorney General or the Counsel to the President, when appropriate, assist designated agency ethics officers in providing advice to current or former appointees regarding the application of the pledge; and
“(3) in consultation with the Attorney General and the Counsel to the President, adopt such rules or procedures as are necessary or appropriate—
“(A) to carry out the responsibilities assigned by this subsection;
“(B) to apply the lobbyist gift ban set forth in paragraph 1 of the pledge to all executive branch employees;
“(C) to authorize limited exceptions to the lobbyist gift ban for circumstances that do not implicate the purposes of the ban;
“(D) to make clear that no person shall have violated the lobbyist gift ban if the person properly disposes of a gift as provided by section 2635.205 of title 5, Code of Federal Regulations;
“(E) to ensure that existing rules and procedures for Government employees engaged in negotiations for future employment with private businesses that are affected by their official actions do not affect the integrity of the Government’s programs and operations; and
“(F) to ensure, in consultation with the Director of the Office of Personnel Management, that the requirement set forth in paragraph 6 of the pledge is honored by every employee of the executive branch;
“(4) in consultation with the Director of the Office of Management and Budget, report to the President on whether full compliance is being achieved with existing laws and regulations governing executive branch procurement lobbying disclosure and on steps the executive branch can take to expand to the fullest extent practicable disclosure of such executive branch procurement lobbying and of lobbying for presidential pardons, and to include in the report both immediate action the executive branch can take and, if necessary, recommendations for legislation; and
“(5) provide an annual public report on the administration of the pledge and this title.
“(d) The Director of the Office of Government Ethics shall, in consultation with the Attorney General, the Counsel to the President, and the Director of the Office of Personnel Management, report to the President on steps the executive branch can take to expand to the fullest extent practicable the revolving door ban set forth in paragraph 5 of the pledge to all executive branch employees who are involved in the procurement process such that they may not for 2 years after leaving Government service lobby any Government official regarding a Government contract that was under their official responsibility in the last 2 years of their Government service, and to include in the report both immediate action the executive branch can take and, if necessary, recommendations for legislation.
“(e) All pledges signed by appointees, and all waiver certifications with respect thereto, shall be filed with the head of the appointee’s agency for permanent retention in the appointee’s official personnel folder or equivalent folder.
“(a) The contractual, fiduciary, and ethical commitments in the pledge are solely enforceable by the United States pursuant to this section by any legally available means, including debarment proceedings within any affected executive agency or judicial civil proceedings for declaratory, injunctive, or monetary relief.
“(b) Any former appointee who is determined, after notice and hearing, by the duly designated authority within any agency, to have violated his or her pledge may be barred from lobbying any officer or employee of that agency for up to 5 years in addition to the time period covered by the pledge. The head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish procedures to implement this subsection, which procedures shall include providing for fact-finding and investigation of possible violations of this title and for referrals to the Attorney General for consideration pursuant to subsection (c).
“(c) The Attorney General is authorized—
“(1) upon receiving information regarding the possible breach of any commitment in a signed pledge, to request any appropriate Federal investigative authority to conduct such investigations as may be appropriate; and
“(2) upon determining that there is a reasonable basis to believe that a breach of a commitment has occurred or will occur or continue, if not enjoined, to commence a civil action against the former employee in any United States District Court with jurisdiction to consider the matter.
“(d) In any such civil action, the Attorney General is authorized to request any and all relief authorized by law, including—
“(1) such temporary restraining orders and preliminary and permanent injunctions as may be appropriate to restrain future, recurring, or continuing conduct by the former employee in breach of the commitments in the pledge he or she signed under this title; and
“(2) establishment of a constructive trust for the benefit of the United States, requiring an accounting and payment to the United States Treasury of all money and other things of value received by, or payable to, the former employee arising out of any breach or attempted breach of such pledge.”.