New ethics legislation could affect Cabinet-level executives

New ethics legislation, which has passed both chambers of Congress but still needs President Bush's signature, would extend the cooling-off period for very senior executives who leave government from one year to two years.

During this time, former executives are banned from interacting with agency officials in any capacity that can be construed as lobbying or attempting to influence policy. The new legislation defines very senior employees as Cabinet-level officials, the vice president and high-level White House staff.

The Honest Leadership and Open Government Act (S. 1) passed the Senate in January and the House in late July, but still has some hurdles to jump before becoming law. Federico de Jesús, a spokesman for Sen. Harry Reid, D-Nev., Senate majority leader, said lawmakers have held off on sending the legislation to the president's desk because he threatened a pocket veto. De Jesús said Congress will hold on to the legislation until there is a clear indication that the president will sign it or that Congress could override a potential veto.

Bill Bransford, general counsel of the Senior Executives Association, noted that even if Bush does sign the bill into law, it will affect only a very narrow segment of the executive branch.

"It doesn't have any impact on career employees, only on very senior employees - essentially Cabinet secretaries and senior White House staff," Bransford said. "Anyone in a career SES job isn't affected by that."

In addition to specific changes, the legislation includes a "Sense of the Congress" statement that restrictions applicable to congressional officers and employees should extend to employees of the executive and judicial branches. Such a provision allows lawmakers to express a non-binding opinion on a matter they feel needs to be addressed.

In an Aug. 14 letter to agency ethics officials, Office of Government Ethics Director Robert Cusick said while the bill clearly states that revised ethics and lobbying requirements should extend to employees of all three branches of government, it "does not include any provisions binding on the executive branch to effectuate this sense of the Congress," aside from the provisions directly pertaining to agency officials.

Cusick's letter detailed the provisions of the legislation that could affect the executive branch, but did not mention specific action the ethics office plans to take if the bill is signed into law.

Bransford said the Sense of the Congress portion of the bill is more of a reiteration than a major policy adjustment.

"It seemed to me, for the most part, the ethics rules had already applied to executive branch employees, that they are already as restrictive [as those that apply to legislative employees]," Bransford said. "I don't know that this will actually mean a change.… If the president does sign it, it will be interesting to see if he directs OGE to initiate some changes or any applicable restrictions … reading the letter from OGE I don't get that sense."

Bransford said the legislation could possibly tighten the regulations on gifts for federal employees. He said the existing rule allows gifts worth up to $20 per occasion or $50 per year from one person or group, but this legislation prevents congressional employees from accepting gifts from lobbyists unless they would have received one anyway outside of a business situation (from a close friend or family member, for instance). If the legislation became law, the president could direct the Office of Government Ethics to apply these tighter restrictions to executive branch employees as well, he added.

If signed, the law would go into effect the last day of this year or on the day the 110th Congress adjourns, whichever comes first. "It appears that it will have a pretty narrow impact on career agency employees, but it will have a big impact on lobbying and on the Hill," Bransford said.

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