- Additional Comments
18. Other
Ethics Staff conducted a periodic review of the regional offices’ ethics training and financial disclosure programs. 21. Please list any significant accomplishments your ethics program achieved in 2014.
The Commission’s significant accomplishment for 2014 is that all political employees (excluding five Commissioners) and all headquarters career staff (including non-filers) attended live, comprehensive ethics training, for the first time in years. In 2014, Ethics Staff prepared and presented live comprehensive ethics training. The basic training was the same for all political and career staff, with modifications for Commissioners, other political employees, and OGE 278 filers.
The comprehensive training was about an hour and a half long and included the following:
• Criminal laws
• 14 Ethical Principles
• Standards of Conduct regulations
• Commission’s Supplemental Outside Employment regulations - 5 CFR Part 7801 (not applicable to Commissioners)
• STOCK Act (only for OGE 278 filers)
• Ethics Pledge (for political employees excluding the Commissioners)
• Safe Harbor provisions
• DAEO/ADAEO responsibilities
• OGE YouTube video on “Integrity in Public Service”
Audience participation was required during the presentation. In addition, there were exercises to assess each attendee’s knowledge of the ethics rules after the training. Based on attendees’ answers to the exercises, almost all understood basic ethics authorities after the training.
(Five Commissioners, as well as regional staff did not attend the live comprehensive ethics training in 2014. For additional information, please refer to the Commission’s response to question #22 below about ethics challenges. )
22. Please list the greatest challenges facing your ethics program in the next 1-3 years.
The ethics program faces challenges related to Leadership Changes, Regional Office Ethics Programs, and Commissioners. OGE’s Ethics Program Review Report #15-05, dated November 2014 (hereinafter referred to as the “Report”) mentions all of these challenges, which are discussed in more detail below.
Leadership Changes
According to the Report:
In 2011, OGE examined the Commission’s ethics program. Because the Commission was undergoing major transitions in leadership and staff, OGE decided that a consultation review would be more appropriate than a compliance-based plenary review. (page 6)
At the time of OGE’s on-site examination in June 2013, the Commission was again under the direction of new leadership, and was again working to overcome profound management challenges, which have developed over a period of many years, to address longstanding concerns voiced by Congress, the Government Accountability Office (GAO), and others about the agency’s management. (page 6)
OGE offered the following recommendation in the Report:
Recommendation 1
OGE recommends that the Commission ensure that specific ethics leadership strategies are developed and incorporated into the day-to-day management of the Commission’s ethics program.
Recently, the current Staff Director informed staff that she will be leaving in February 2015, so the Commission will be without an agency head in the very near future. It is unknown as to when another Staff Director will be appointed by the President, so the Commission could be without an agency head for months or even years. (Most recently, from January 2011 to June 2013, the Commission was without a permanent Staff Director.)
It will be a challenge for Ethics Staff to maintain a viable ethics program without a permanent Staff Director to provide leadership support.
Regional Office Ethics Programs
The DAEO and ADAEO oversee the Commission’s ethics program. However, neither the DAEO nor ADAEO have supervisory authority over regional offices staff, who serve as Deputy Ethics Counselors (DECs). The DECs are supposed to perform ethics duties for all SAC members (a/k/a Special Government Employees or SGEs). Specifically, DECs are responsible for collecting and reviewing SAC members financial disclosure forms, ensuring that SAC member complete ethics training, and providing ethics guidance and advice to SAC members.
According to the Report:
OGE’s examination found deficiencies in the provision of ethics-related services provided to the Commission’s State Advisory Committee (SAC) members. OGE did not find consistency in the filing of financial disclosure reports or the completion of annual ethics training among the SACs examined. Lack of adequate staffing within some of the regions was also cited as a contributing factor. OGE found this to be the weakest element of the Commission’s ethics program.
OGE offered the following recommendations:
Recommendation 3
Ensure that the OGE-approved alternative financial disclosure form used to help screen SAC Board members for potential conflicts is filed in a timely manner.
Recommendation 4
Ensure that all SAC Board members receive annual ethics training in accordance with the exception at 5 CFR § 2638.705(d)(2).
Recommendation 5
Provide stronger oversight and compliance monitoring of the ethics program services provided to all SACs.
It is a challenge for Ethics Staff to oversee the regional office ethics program, because they do not have supervisory authority over regional offices and management support, so they cannot require regional staff to comply with ethics requirements. Below are some specific examples, which demonstrate this challenge.
Oversight & Compliance Monitoring
In order to prepare this 2014 Agency Ethic Program Questionnaire for OGE, Ethics Staff requested ethics information from all five of the regional office regarding SAC members filing of financial disclosure form in a timely manner and ethics training. According to Commission procedures, the regional offices are required to provide ethics information for the annual questionnaire. However, as noted in the “Additional Comments” section for Parts 6 and 11, Ethics Staff only received a response from three regional offices.
Ethics Staff notified both the supervisor of all the regional offices and the Staff Director, and asked for their assistance obtaining the information from the other two regions.
It is a challenge for Ethics Staff to provide stronger oversight and compliance monitoring of the ethics program services provided to all SAC members, when they cannot obtain ethics information from all of the regional offices and have management support.
Ethics Education and Training
Ethics Staff prepared the Commission’s annual ethics training plan for 2014 that set forth the initial and annual ethics training requirements for headquarters and regional offices. All regions were informed in writing about the 2014 training requirements. According to Commission procedures, the regional offices are required to follow the ethics training plan. However, based upon information provided by the three regional offices that submitted ethics information, two of the three offices did not follow the plan’s requirements for new SAC members’ initial ethics orientation.
It is a challenge for Ethics Staff to ensure that all SAC Board members receive ethics training when regional offices do not follow the annual ethics training plan.
The Commission’s significant accomplishment in #21 above was that all political staff (except for five Commissioners) and all headquarters career staff attended live comprehensive annual ethics training in 2014. Regional offices staff did not attend the 2014 training, but were supposed to receive the same ethics presentation in January 2015, with supplemental ethics guidance about regional offices ethics responsibilities, along with other training at headquarters in Washington, DC. The training has been postponed.
Commissioners Enforcement of Ethics Authorities The Commission has eight part-time Commissioners. The President, with the concurrence of a majority of the Commission's members, appoints a Chairperson and Vice Chairperson. Neither the Chairperson nor Vice Chairperson has any statutory duties or authorities under the Commission’s legislation, the "Civil Rights Commission Amendments Act of 1994" (42 USC 1975).
The President with the concurrence of a majority of the Commission appoints a full-time Staff Director who serves as the “administrative head” of the Commission. The Staff Director has supervisory control over career staff and can enforce ethics authorities among those employees. (Recently, the current Staff Director announced that she will leave the Commission in February 2015.) The Chairperson, Vice Chairperson, and Staff Director do not have any supervisory authority over other Commissioners. Likewise, the DAEO and ADAEO do not have supervisory authority over Commissioners. Therefore, no one at the Commission has authority to enforce or ensure Commissioners compliance with ethics authorities. (Pursuant to 28 U.S.C. 535 and 5 CFR §2635.107, the DAEO and ADAEO are required by to report information relating to a Commissioner’s criminal ethics violation to the U.S. Department of Justice.)
Overall, the Commissioners do not appear to support the agency’s ethics program, which staff have noticed. (Examples are Commissioners using agency letterhead for personal matters, untimely filing of financial disclosure reports, and not attending ethics training.) In fact, at 2014 ethics training sessions, career staff often asked why they have to follow ethics rules when the Commissioners are not required to follow them. It is difficult for Ethics Staff to answer this question and only makes enforcement and compliance more challenging. Ethics Staff tried to address ethics issues with Commissioners. Instead of supporting the ethics program, some Commissioners require written legal authorities for ethics requirements such as financial disclosure reporting and training.
It is a challenge for Ethics Staff to ensure Commissioners compliance with ethics authorities, when Commissioners do not appear to support the agency’s ethics program.
Ethics Training
As stated in #21 above, the Commission’s significant accomplishment in 2014 was that all political staff (except for five Commissioners) and all headquarters career staff attended live comprehensive annual ethics training in 2014. Originally, the comprehensive ethics training was targeted for Commissioners, so they were aware of applicable ethics authorities. Alarmingly, only three out of eight attended the live training.
Ethics Staff emailed the Commissioners advance notice of the live ethics training sessions, which were scheduled after two different monthly business meetings. They were asked to select which month they planned to attend the ethics training. Unfortunately, although some did choose a training session, they did not attend the training. Others did not reply to attend at all.
As a last minute option, Ethics Staff sent emails to the five Commissioners asking them to satisfy annual ethics training requirements by taking OGE’s Ethics Training for Special Government Employees course at: http://www.oge.gov/Education/Education-Resources-for-Federal-Employees/Ethics-Training-for-Special-Government-Employees-WBT. The emails stated Commissioners were supposed to complete the online course by 12/31/2014 and email Ethics Staff a copy of the completion certificate or a freeze shot of the last page as proof of completion. One Commissioner did not timely complete the online course. Another Commissioner did not provide proof of completion stating the completion certificate was optional (not according to Ethics Staff’s email), his printer was low on ink, so he did not print it, and he did not know how do a freeze shot.
It is a challenge for Ethics Staff to ensure Commissioners compliance with ethics training requirements when Commissioners do not appear to support the agency’s ethics program.
Commissioners Use of Their Government Titles/Position/Authority
According to the Report: …certain Commissioners have used their government titles/position/authority and Commission resources to promote their personal views both on matters before the Commission and on matters not before the Commission. (page 3)
OGE offered the following recommendation:
Recommendation 6
Develop a formal policy that documents when a Commissioner may speak or write in his/her official capacity. This policy should also make clear that when a Commissioner is speaking or writing in his/her personal capacity, the Commissioner may not use his/her official title, the agency seal, agency letterhead or otherwise leave a third party to think that the speaking or writing has the sanction of the Commission. When expressing a personal view in an official capacity, Commissioners should make clear that he/she is not speaking for the Commission.
Several Commissioners have used his/her official government title/position/authority, the agency seal, agency letterhead, or government resources for his/her personal capacity. For example, a couple of Commissioners are members of New American Civil Right Project, a group of present and former members and staff of the Commission and its state advisory committees. The group’s website is: http://www.newamericancivilrightsproject.org
On the website, these Commissioners posted letters using agency letterhead, which express personal views on matters that are not within the agency’s business, such as a letter to “DC City Council Regarding Religious Liberty (November 2014).” (http://www.newamericancivilrightsproject.org/letters/#sthash.xohzTd3O.pdf )
The letter is in regards to D.C. City Council’s Proposed Bill 20-790, known as the “Reproductive Health Non-Discrimination Amendment Act of 2014,” and states:
Based on the statements of Rep. Grosso, one of the co-sponsors of the bill, it appears that this bill will be interpreted to require religiously-objecting employers to provide contraceptives, and perhaps elective abortions, as part of their health insurance plans.
Currently, the Commission does not have any projects regarding reproductive health. Furthermore, the Commission’s statute specifies that the Commission, its advisory committees, or any other person under its supervision or control, is NOT authorized to study and collect, make appraisals of, or serve as a clearinghouse for any information about laws and policies of the Federal Government or any other governmental authority in the United States, with respect to abortion. (42 USC 1975a (f)) Clearly, the Commissioner’s letter is personal and not related to his government position, so it should not be on agency letterhead.
The website contains more letters on agency letterhead that are of a similar personal nature. In fact, some letters state that if the addressee has any questions or concerns, he/she may contact the Commissioner’s special assistant at an official government email address.” This demonstrates a misuse of official government title/position/authority, government time, and resources (special assistant, government email and IT equipment) for personal matters.
Ethics Staff tried to educate the Commissioners about these issues through formal ethics training. The 2014 live comprehensive ethics training covered misuse of title/position/authority, time, and government resources, as well as the differences between official duty and personal activities. However, only three of eight Commissioners attended the live training (see Ethics Training above). For the most part, the Commissioners who did not attend the live training are the ones who misuse position, time, and government resources.
It will be a challenge for the Commission to follow OGE’s recommendation that the Commission implement a formal policy that cover the areas listed in the recommendation, as well as enforce the policy. First, some of the Commissioners take the position that they are not subject to policies developed by the Staff Director or career staff. Secondly, if the Commissioners implement a policy, it may allow them to use letterhead and resources for their personal matters. In fact, Ethics Staff have been informed that prior to their arrival at the Commission, the Commissioners tried to establish a policy allowing them to use agency letterhead in their personal capacities. Third, even if the Commission implements a formal policy, then the challenge will be who can enforce the policy (see Enforcement of Ethics Authorities above). Fourth, the Staff Director will leave the Commission in February 2015.
23. If applicable, please explain why some employees received IEO beyond the 90 day requirement or have yet to receive IEO.
Regional offices reported the following reason why some employees received IEO beyond the 90 day requirement or have yet to receive IEO: State Advisory Committee (SAC) members/ SGEs missed orientation meeting. 27. If applicable, please explain discrepancies between the number of employees who were required to receive training and the number of employees who received training.
At headquarters, an OGE 278 filer did not complete online ethics training by 12/31/2014, even though he had been notified of the due date. Instead, he completed the training in January 2015. Regional offices reported the following reasons why some employees did not receive annual ethics training in 2014: □ Did not respond to multiple requests from regional office
□ Reasons unknown to regional office 76. Which office provides the training?
Each regional office is supposed to ensure that SGEs completes online training before attending a meeting. 77. If applicable, please explain discrepancies between the number of reports required to be filed and the actual number of reports filed.
Regional offices reported the following reasons to explain discrepancies between the number of reports required to be filed and the actual number of reports filed: □ Filing extensions granted until 2015
□ Reasons unknown to regional office
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