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08/9/2012

OGE Response Proves Need For Restructuring Of Ethics Oversight

 

On August 6th, Cause of Action released a memorandum on our recent investigation into the Office of Government Ethics (OGE) and their failure to properly review the ethics program of the General Services Administration (GSA).  Our investigation found that the OGE approved the ethics program of the GSA just three days after the now infamous Vegas conference that cost taxpayers $822,751.  We also noted that there were risk factors brought to the attention of OGE officers about GSA prior to this 2010 ethics report.

The OGE response to our findings was a claim that they are somehow not responsible for overseeing the GSA misconduct.  Specifically, an OGE representative claimed, “Laws and regulations regarding appropriations, travel, personnel, and government contracts are administered by a variety of agencies and are outside OGE’s purview.  OGE is not an investigatory agency, but routinely works closely with Inspectors General”.

The OGE didn’t contest the validity of our fact-finding or analysis, but merely claimed they are somehow not responsible for detecting these particular violations. The fact that OGE doesn’t dispute our conclusions and seems to shift responsibility to the Inspector General provides support for our request that President Obama and the Office of Budget Management consider transferring ethics oversight duties to the agency inspectors general.

As the chart below notes, OGE is responsible for a wide variety of ethics-related matters. Clearly an audit of the GSA Ethics program should have taken into account the warnings that the OGE previously received.  Furthermore, if the OGE is unable to truly discover these violations and are instead dependent on the Inspectors General, then would it not make sense to shift ethics oversight duties to the same Inspectors General that have the necessary investigative abilities? This is precisely what we asked in our letter to President Obama last Thursday.

Government agencies must be held accountable for their waste, fraud and mismanagement. It makes no sense to have a mechanism in place that allows for an agency to be given a clean bill of health for its ethics program just days after a huge ethics violation.  Taxpayers deserve a more efficient system that will prevent this type of disaster in the future.

 

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08/6/2012

Washington Post: GSA’s ethics program approved just days after scandal-plagued conference

Read the full story here. Washington Post

The letter and other documents were obtained through a Freedom of Information Act request made by Cause of Action, a nonpartisan government oversight group.“Specifically, we found that the [ethics] program was meeting the objectives for each of the required elements: financial disclosure, training, and advice and counseling. In addition, GSA’s ethics program has been enhanced by employing a number of what OGE considers to be model practices,” according to the OGE report.In January 2010, Leigh Snyder, an ethics expert on Zemple’s staff, raised concerns over the GSA’s history of controlling conflicts of interest, according to the FOIA documents.Snyder cited a high agency official’s involvement in the Jack Abramoff lobbying scandal and with former administrator Lurita Doan, who resigned in 2008 amid questionable contracting practices.“GSA’s mission and history of high-profile ethics violations make it susceptible to heightened public scrutiny,” Snyder wrote in the memo. “As such, GSA’s ethics program should be regularly reviewed to ensure it runs effectively.”This spring, Miller released a scathing report on waste and abuse in relation to the Las Vegas conference, which cost more than $800,000. The Justice Department also is investigating.“It is peculiar that Patricia Zemple ignored her ethics officer’s memorandum,” said Daniel Epstein, executive director of Cause of Action…”

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08/6/2012

Cause of Action Exposes OGE’s Failure to Act in GSA Spending Scandal

  Cause of Action Exposes OGE’s Failure to Act in GSA Spending Scandal

Watchdog Organization Calls on White House to Evaluate Careless Investigation and Lack of Oversight

WASHINGTON – Cause of Action released an investigative memorandum today detailing how the Office of Government Ethics (OGE) failed to detect ethics abuses by the General Services Administration (GSA), now infamous for the 2010 Western Regional Conference in Las Vegas that cost taxpayers $822,751.

 

The memorandum, The Office of Government Ethics Failed to Prevent Scandal at the General Services Administration, discloses years of mismanagement at OGE and waste at GSA that went unchecked until now.

 

“The enormous waste of taxpayer dollars by GSA over the last several years could have been prevented had GSA IG David Miller had the authority to investigate ethics abuses instead of the OGE maintaining that authority and simply ignoring its duties,” said Dan Epstein, executive director of Cause of Action (CoA). “Warning signs presented to OGE officials were ignored, and an OGE investigation bafflingly found GSA to be in compliance with ethics rules in 2010 during the time GSA employees were engaged in conflicts of interest and wasteful spending that violate both the letter and spirit of the Standards of Official Conduct.”

 

In addition to highlighting the failures of the OGE investigation, the memorandum also highlights several key gaps in the administration of the ethics program at the GSA.

 

“Quite obviously the GSA was running amuck with taxpayer dollars, and yet no one at the GSA seemed concerned. Perhaps this is because the person who should have been sounding the alarm—the Designated Agency Ethics Officer—didn’t exist; in fact, that position within the GSA sat vacant for at least four years,” said Epstein.

 

The memorandum is based upon the findings from CoA’s April 19, 2012, Freedom of Information Act (FOIA) request to OGE asking for “all documents referring or relating to any Office of Government Ethics investigation into or determination made regarding the GSA’s compliance with the Standards of Ethical Conduct for Employees of the Executive Branch between January 1, 2009 and the present.”

 

Some of the key findings include:

  • In November 2010, one month after the Western Regional Conference, OGE reported to GSA Inspector General Brian Miller, that “GSA’s ethics program appears to be effectively administered and in compliance with applicable laws, regulations, and policies”.  In fact, OGE considered GSA to have “model practices” in place.

 

  • OGE had both specific and prior knowledge that significant ethics risks existed at the GSA. GSA failed to fill a Designated Agency Ethics Officer (DAEO) position from 2007 to at least 2010. According to The Standards of Ethical Conduct for Employees of the Executive Branch, all agencies are required to have a DAEO to supply ethics advice to employees. GSA has eleven regional offices with no full-time ethics officials.

 

  • According to documents produced by OGE, GSA’s ethics program is principally administered by eleven regional ethics offices. Yet OGE reviewed only five of GSA’s eleven regional offices for compliance with applicable laws, regulations, and policies.

 

  • OGE lacks the oversight and accountability of an Inspector General. Any mismanagement or fraud within the Office of Government Ethics is subject to review only by OGE itself. OGE missed allegations of waste, fraud and mismanagement by GSA that occurred before and during OGE’s investigation of GSA. GSA’s ethics abuses were investigated and later documented by its own IG, not the OGE.

 

“In response to our findings we are sending a letter to the White House calling for the President to consider the cost to taxpayers involved in keeping the OGE as opposed to strengthening the roles of sitting Inspectors General,” continued Epstein.

The letter, addressed to President Obama, reads in part, “Given your commitment to ethics and transparency in government, we recommend that you have the Office of Management and Budget consider whether the OGE should be abolished and its authority transferred to the Inspectors General, who, as is the case with GSA IG Brian Miller, have the authority to address issues of waste, fraud, and mismanagement in the Federal Government.”

 

The full memorandum and letter to White House can be viewed here.

 

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08/1/2012

Recent Report Demonstrates Need for Clearer FOIA Rules on Personal E-mails

 

Cause of Action’s Dan Epstein and Michael Pepson recently wrote an article in Engage, a publication of the Federalist Society, discussing the legal implications of government officials using their personal e-mail accounts to do official business and whether these e-mails should be accessible to the public. Now, Politico is reporting that a “House Energy and Commerce Committee report out Tuesday is stocked with emails sent from private addresses,” of former White House staff. These e-mails included discussions of how to influence pending bills and specific ways to avoid disclosure rules by meeting outside the White House. Despite the Administration’s claims of transparency, these e-mails clearly violate that spirit.

What is raised in the Engage article is that if e-mails such as these had been requested through a Freedom of Information Act request, it is unclear whether a court would grant such access based on the current rules.  This example makes the case even clearer that FOIA requests should sometimes include personal e-mails dealing with official business and therefore Congress needs to create definitive rules as to what those requests cover. The public having access to these e-mails could make it much harder for businesses and government officials to abuse their power and attempt to influence legislation through crony deals.  Legislative bills should be negotiated in front of the public, not in secret behind closed doors during off-site meetings with lobbyists.

Cause of Action is dedicated to promoting economic liberty, and cronyism is antithetical to that principle. A more transparent and engaged government is the only way that officials in government, especially in the large administrative bureaucracy, can be held accountable to the public.

As Pepson and Epstein conclude in their article, “Ultimately, unless Congress legislatively clarifies whether the FOIA’s disclosure provisions apply to communications sent or received via private e-mail accounts and personal communications devices, a federal district court will be compelled to squarely and comprehensively opine on the application of FOIA’s disclosure provisions to federal employees’ work-related communications sent through personal channels in the course of adjudicating whether a particular agency has improperly withheld agency records.”

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07/30/2012

Federalist Society’s Engage Journal: When Politics Gets Personal, Does the Public Have a Right to Know?

Engage: Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?

Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?

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07/30/2012

Washington Post: Blowing the whistle on the federal Leviathan

Blowing the whistle on the federal Leviathan

By George F. Will

 

The huge humpback whale whose friendliness precipitated a surreal seven-year — so far — federal hunt for criminality surely did not feel put upon. Nevertheless, our unhinged government, with an obsession like that of Melville’s Ahab, has crippled Nancy Black’s scientific career, cost her more than $100,000 in legal fees — so far — and might sentence her to 20 years in prison. This Kafkaesque burlesque of law enforcement began when someone whistled.

Black, 50, a marine biologist who also captains a whale-watching ship, was with some watchers in Monterey Bay in 2005 when a member of her crew whistled at the humpback that had approached her boat, hoping to entice the whale to linger. Back on land, another of her employees called the National Oceanic and Atmospheric Administration (NOAA) to ask if the whistling constituted “harassment” of a marine mammal, which is an “environmental crime.” NOAA requested a video of the episode, which Black sent after editing it slightly to highlight the whistling. NOAA found no harassment — but got her indicted for editing the tape, calling this a “material false statement” to federal investigators, which is a felony under the 1863 False Claims Act, intended to punish suppliers defrauding the government during the Civil War.

A year after this bizarre charge — that she lied about the interaction with the humpback that produced no charges — more than a dozen federal agents, led by one from NOAA, raided her home. They removed her scientific photos, business files and computers. Call this a fishing expedition.

She has also been charged with the crime of feeding killer whales when she and two aides were in a dinghy observing them feeding on strips of blubber torn from their prey — a gray whale.

To facilitate photographing the killers’ feeding habits, she cut a hole in one of the floating slabs of blubber and, through the hole, attached a rope to stabilize the slab while a camera on a pole recorded the whales’ underwater eating.

So she is charged with “feeding” killer whales that were already feeding on a gray whale they had killed. She could more plausibly be accused of interfering with the feeding.

Never mind. This pursuit of Black seems to have become a matter of institutional momentum, an agent-driven case. Perhaps NOAA, or the Justice Department’s Environmental Crimes Section, has its version of Victor Hugo’s obsessed Inspector Javert.

In any event, some of the federal government’s crime-busters seem to know little about whales — hence the “whistle-as-harassment” nonsense.

Six years ago, NOAA agents, who evidently consider the First Amendment a dispensable nuisance, told Black’s scientific colleagues not to talk to her and to inform them if they were contacted by her or her lawyers. Since then she has not spoken with one of her best friends.

To finance her defense she has cashed out her life’s savings, which otherwise might have purchased a bigger boat. The government probably has spent millions. It delivered an administrative subpoena to her accountant, although no charge against her has anything to do with finances.

In 1980, federal statutes specified 3,000 criminal offenses; by 2007, 4,450. They continue to multiply. Often, as in Black’s case, they are untethered from the common-law tradition of mens rea, which holds that a crime must involve a criminal intent — a guilty mind. Legions of government lawyers inundate targets like Black with discovery demands, producing financial burdens that compel the innocent to surrender in order to survive.

The protracted and pointless tormenting of Black illustrates the thesis of Harvey Silverglate’s invaluable 2009 book, “Three Felonies a Day: How the Feds Target the Innocent.” Silverglate, a civil liberties lawyer in Boston, chillingly demonstrates how the mad proliferation of federal criminal laws — which often are too vague to give fair notice of what behavior is proscribed or prescribed — means that “our normal daily activities expose us to potential prosecution at the whim of a government official.” Such laws, which enable government zealots to accuse almost anyone of committing three felonies in a day, do not just enable government misconduct, they incite prosecutors to intimidate decent people who never had culpable intentions. And to inflict punishments without crimes.

By showing that Kafka was a realist, Black’s misfortune may improve the nation: The more Americans learn about their government’s abuse of criminal law for capricious bullying, the more likely they are to recoil in a libertarian direction and put Leviathan on a short leash.

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07/23/2012

Lars Larson Show: Dan Epstein Discussing the Free Market System

Dan Epstein – Lars Larson Show, July 18, 2012

Dan Epstein, Executive Director of Cause of Action joined Lars Larson to discuss the Free Market System. The show also focused on recent comments by Mitt Romney and President Obama on what makes a successful business.

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