B-218648, AUG 13, 1985

B-218648, AUG 13, 1985

OFFICERS AND EMPLOYEES - CONFLICT OF INTEREST STATUTES - DUTIES RELATING TO PRIVATE INTERESTS DIGEST: ALTHOUGH THE LANGUAGE OF 18 U.S.C. 208(B)(1) CAN BE INTERPRETED AS REQUIRING THAT THE CONFLICT OF INTEREST WAIVER BE DIRECTED AT A PARTICULAR PROCEEDING, THE DEPARTMENT OF JUSTICE HAS RECOGNIZED ANTICIPATORY WAIVERS THAT DEAL WITH A PARTICULAR INDIVIDUAL AND A PARTICULAR FINANCIAL INTEREST, BUT WHICH ARE OTHERWISE DIRECTED TO ALL FUTURE MATTERS.

THE HONORABLE AUGUSTUS F. HAWKINS: CHAIRMAN, COMMITTEE ON EDUCATION AND LABOR HOUSE OF REPRESENTATIVES

THIS IS IN RESPONSE TO YOUR LETTER OF JUNE 14, 1985 ASKING THAT WE ADDRESS CRITICISMS MADE BY MR. JONATHAN BENNETT IN REGARD TO A CONFLICT OF INTEREST WAIVER GRANTED TO MR. ROBERT ROWLAND, THE FORMER ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH.

IN APRIL, WHEN YOU FIRST RAISED A QUESTION CONCERNING MR. ROWLAND'S GOVERNMENTAL PARTICIPATION IN CERTAIN MATTERS IN WHICH HE HAD A FINANCIAL INTEREST, WE REFERRED THE FILE TO THE OFFICE OF GOVERNMENT ETHICS FOR APPROPRIATE ACTION. BY LETTER DATED MAY 24, 1985, THE DIRECTOR OF THE OFFICE OF GOVERNMENT ETHICS POINTED OUT THAT MR. ROWLAND HAD BEEN GIVEN A WAIVER UNDER 18 U.S.C. SEC. 208(B)(1) WHICH PERMITTED HIM TO PARTICIPATE WITH IMPUNITY IN THOSE MATTERS, NOTWITHSTANDING HIS FINANCIAL INTERESTS. THE DIRECTOR NOTED, MOREOVER, THAT THE GRANTING OF WAIVERS UNDER SUBSECTION 208(B)(1) IS A MATTER COMMITTED TO THE DISCRETION OF THE APPOINTING OFFICIAL.

MR. BENNETT NOTES THAT AS A CONDITION PRECEDENT TO THE GRANTING OF A SUBSECTION 208(B)(1) WAIVER, THE STATUTE REQUIRES THE EMPLOYEE TO ADVISE THE APPOINTING OFFICIAL OF "THE NATURE AND CIRCUMSTANCES OF THE JUDICIAL OR OTHER PROCEEDING, APPLICATION, REQUEST FOR RULING *** OR OTHER PARTICULAR MATTER." MR. BENNETT VIEWS THIS STATUTORY LANGUAGE AS CONTEMPLATING THAT WAIVERS BE ADDRESSED TO AN EMPLOYEE'S PARTICIPATION IN A SPECIFIC PROCEEDING, ALL THE CIRCUMSTANCES OF WHICH ARE KNOWN AT THE TIME THE WAIVER IS GRANTED. HE CRITICIZES THE OFFICE OF GOVERNMENT ETHICS' LETTER FOR ITS APPARENT ACQUIESCENCE IN THE GRANT OF A GENERAL WAIVER TO MR. ROWLAND IN CONTEMPLATION OF HIS PARTICIPATION IN A CLASS OF MATTERS, THE SPECIFICS OF WHICH HAD NOT YET BEEN IDENTIFIED.

THE WAIVER GRANTED TO MR. ROWLAND EXTENDS TO ALL OF THE INTERESTS LISTED IN HIS FINANCIAL DISCLOSURE REPORT. THESE INCLUDE STOCK HOLDINGS IN SUCH COMPANIES AS EXXON, TENNECO, KODAK, JOHNS MANVILLE AND MONSANTO. PERMITS MR. ROWLAND TO PARTICIPATE IN THE "SETTING OF POLICY *** LEGISLATIVE MATTERS, RULEMAKING, SAFETY AND HEALTH STANDARDS AND ADMINISTRATIVE MATTERS" THAT MAY AFFECT THOSE FINANCIAL INTERESTS. SPECIFICALLY PRECLUDES HIS PARTICIPATION IN "PARTICULAR INVESTIGATIONS, INDIVIDUAL EXEMPTIONS, ADVISORY OPINIONS, VARIANCES, ENFORCEMENT ACTIONS, LITIGATION, GRANTS, CONTRACTS OR OTHER PARTICULAR MATTERS IN WHICH THE INTERESTS INDICATED IN YOUR FINANCIAL DISCLOSURE REPORT ARE PARTIES, SUBJECTS, APPLICANTS, PETITIONERS, RESPONDENTS OR DEFENDANTS." AS NOTED BY MR. BENNETT, THE WAIVER WAS NOT GRANTED IN CONTEMPLATION OF MR. ROWLAND'S INVOLVEMENT IN A SPECIFIC PROCEEDING.

IN THE SENSE THAT IT PERMITS HIM TO PARTICIPATE IN A RANGE OF MATTERS THAT MAY ARISE, BUT WHICH HAVE NOT BEEN SPECIFICALLY IDENTIFIED, THE WAIVER GRANTED MR. ROWLAND IS WHAT HAS COME TO BE KNOWN AS AN "ANTICIPATORY GENERAL WAIVER." IT IS ANTICIPATORY IN THAT IT IS GRANTED IN ADVANCE OF THE SPECIFICS BEING KNOWN AND IT IS GENERAL IN THAT IT PERMITS PARTICIPATION IN A CLASS OF MATTERS RATHER THAN IN A SINGLE PROCEEDING. THESE ARE SOMETIMES CALLED BLANKET WAIVERS. WAIVERS OF THIS TYPE APPARENTLY HAVE BEEN USED WITHIN THE DEPARTMENT OF JUSTICE AND THROUGHOUT THE GOVERNMENT FOR SOME TIME. IN FACT, THE DEPARTMENT OF JUSTICE, IN THE ENCLOSED LETTER OF FEBRUARY 28, 1977, ADDRESSED TO SENATOR MAGNUSON, RECOMMENDED THE USE OF JUST SUCH A WAIVER IN THE CASE OF A PRESIDENTIAL APPOINTEE.

MR. BENNETT IS NOT ALONE IN HIS OBSERVATION THAT THE LANGUAGE OF SUBSECTION 208(B)(1) IS SUSCEPTIBLE OF AN INTERPRETATION LIMITING WAIVERS TO SPECIFIC PROCEEDINGS. SEE THE FOOTNOTE ON PAGE 4 OF THE ENCLOSED LETTER. FURTHER, IN A SPEECH DELIVERED AT THE OFFICE OF GOVERNMENT ETHICS 1981 ANNUAL CONFERENCE, MR. ROSWELL PERKINS, AN AUTHORITY IN THE FIELD OF GOVERNMENT ETHICS, STATED:

"I THINK THERE IS ROOM FOR MORE ACTIVE USE OF THE WAIVER POWER GRANTED TO THE APPOINTING AUTHORITIES UNDER SECTION 208(B)(1). HERE THE WAIVER MUST BE DIRECTED TO A PARTICULAR INDIVIDUAL AND A PARTICULAR FINANCIAL INTEREST. AN ARGUMENT CAN BE MADE THAT THE WAIVER WOULD ALSO HAVE TO BE DIRECTED TO A PARTICULAR PROCEEDING SINCE THAT KIND OF LANGUAGE APPEARS IN 208(B)(1). HOWEVER, A COUNTER-ARGUMENT CAN BE MADE THAT THERE IS NOTHING IN 208(B)(1) THAT PRECLUDES DEFINING A CLASS OF MATTERS OR, INDEED, MAKING IT A GENERALIZED WAIVER APPLICABLE TO ALL MATTERS WHICH COME BEFORE AN OFFICER OR EMPLOYEE, BUT LIMITING THE WAIVER TO THE POSSIBLE INVOLVEMENT OF A PARTICULAR SPECIFIED FINANCIAL INTEREST OF THE NAMED OFFICER OR EMPLOYEE. I AM ADVISED THAT THE JUSTICE DEPARTMENT HAS RECOGNIZED ANTICIPATORY WAIVERS THAT DEAL WITH A PARTICULAR INDIVIDUAL AND A PARTICULAR FINANCIAL INTEREST, BUT WHICH ARE OTHERWISE DIRECTED TO ALL FUTURE MATTERS. SUCH ANTICIPATORY WAIVERS DO, OF COURSE, SERVE TO PROMOTE THE POLICY OF ENABLING SECTION 208 TO OPERATE WITHIN A RULE OF REASON." /1/

WE HAVE NO AUTHORITY TO DETERMINE WHETHER A CRIMINAL STATUTE HAS BEEN VIOLATED OR, AS IN THIS CASE, WHETHER A WAIVER GRANTED UNDER A CRIMINAL STATUTE IS EFFECTIVE TO INSULATE THE EMPLOYEE INVOLVED FROM CRIMINAL PROSECUTION. IN VIEW OF THE POSITION OF THE DEPARTMENT OF JUSTICE WITH RESPECT TO ENFORCEMENT OF THESE CRIMINAL PROVISIONS, WE BELIEVE IT IS PARTICULARLY SIGNIFICANT THAT THE DEPARTMENT HAS SANCTIONED THE USE OF ANTICIPATORY GENERAL WAIVERS OF THE TYPE GIVEN MR. ROWLAND. WE KNOW OF NO INSTANCE IN WHICH JUSTICE HAS UNDERTAKEN TO PROSECUTE AN INDIVIDUAL FOR ACTION WITHIN THE SCOPE OF SUCH A WAIVER.

WE TRUST THE ABOVE INFORMATION WILL BE HELPFUL TO MR. BENNETT AND TO THE COMMITTEE.

/1/ OFFICE OF GOVERNMENT ETHICS: PROCEEDINGS OF THE FIRST AND SECOND ANNUAL CONFERENCES 1980 - 1981, OFFICE OF PERSONNEL MANAGEMENT (1982), P. 21.