OGE says the current approach "does not fully address" potential conflicts.
The federal government’s ethics watchdog is preparing to issue a first-of-its kind formal rule on federal employees who accept donations to pay for legal fees, seeking public input as high-profile Trump administration officials have drawn scrutiny for their use of such funds.
The Office of Government Ethics has never issued a rule on legal defense funds for executive branch workers, instead providing input on a case-by-case basis along with broad advisories. By formalizing its approach, OGE said it hopes to boost its scrutiny of the process.
“There is currently no statutory or regulatory framework in the executive branch for establishing a legal expense fund, and OGE has not approved or disapproved any specific legal expense funds,” the agency said in a notice of proposed rulemaking in the Federal Register this week.
Its current procedures, OGE said, fall short of providing the type of analysis the agency typically strives for in ensuring federal employees comply with ethics laws.
“This limited approach to legal expense funds does not fully address potential appearance concerns with the creation and operation of legal expense funds for the benefit of executive branch employees,” OGE wrote.
The agency provided an update with a legal advisory in September 2017, when it said federal employees’ legal defense funds “must be operated consistent with the ethics rules.” Laws and regulations related to the acceptance of gifts also apply to the expense funds, OGE said. After a brief period of confusion after a previous advisory was removed from its website, OGE clarified that all such funds must include a clause that prohibits employees from accepting anonymous donations.
OGE asked stakeholders for input on the forthcoming rule on a wide array of topics, including potential limits on types of donors, amount of donations, what should qualify as a donation and transparency of the funds. The agency asked for advice on whether, for example, donors to such funds should be publicly disclosed. It requested specific input on matters such as whether pro bono legal services should be included as donations. OGE asked about management of the funds, such as if they should be part of a trust and what limits should be placed on the solicitation of donations.
Former Environmental Protection Agency Administrator Scott Pruitt sparked controversy for accepting donations to his legal fund from wealthy individuals without seeking advice from the agency’s ethics officials. President Trump also maintains a legal fund, though he has repeatedly claimed that ethics laws do not apply to the presidency.
OGE will hold a public hearing next month for input on its rule. All comments must be submitted by June 14.