[House Report 106-433]
[From the U.S. Government Publishing Office]
106th Congress Rept. 106-433
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
AMENDING THE ETHICS IN GOVERNMENT ACT OF 1978 TO REAUTHORIZE FUNDING
FOR THE OFFICE OF GOVERNMENT ETHICS
_______
November 2, 1999.--Ordered to be printed
_______
Mr. Burton of Indiana, from the Committee on Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2904]
[Including cost estimate of the Congressional Budget Office]
The Committee on Government Reform, to whom was referred the
bill (H.R. 2904) to amend the Ethics in Government Act of 1978
to reauthorize funding for the Office of Government Ethics,
having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
CONTENTS
Page
I. Summary of Legislation...........................................3
II. Background and Need for the Legislation..........................3
III. Legislative Hearings and Committee Actions.......................4
IV. Committee Hearings and Written Testimony.........................4
V. Explanation of the Bill..........................................6
VI. Committee Oversight Findings.....................................9
VII. Budget Analysis and Projections..................................9
VIII.Cost Estimate of the Congressional Budget Office.................9
IX. Specific Constitutional Authority for this Legislation..........10
X. Committee Recommendation........................................10
XI. Congressional Accountability Act; Public Law 104-1..............10
XII. Unfunded Mandates Reform Act; Public Law 104-4, Section 423.....11
XIII.Federal Advisory Committee Act (5 U.S.C. App.) Section 5(b).....11
XIV. Changes in Existing Law.........................................11
The amendments are as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. REAUTHORIZATION OF APPROPRIATIONS.
(a) In General.--Section 405 of the Ethics in Government Act of 1978
(5 U.S.C. App.) is amended by striking ``1997 through 1999'' and
inserting ``2000 through 2003''.
(b) Effective Date.--This section shall take effect on October 1,
1999.
SEC. 2. AMENDMENT TO DEFINITION OF ``SPECIAL GOVERNMENT EMPLOYEE''.
(a) Amendment to Section 202(a).--Subsection (a) of section 202 of
title 18, United States Code, is amended to read as follows:
``(a) For the purpose of sections 203, 205, 207, 208, 209, and 219 of
this title the term `special Government employee' shall mean--
``(1) an officer or employee as defined in subsection (c) who
is retained, designated, appointed, or employed in the
legislative or executive branch of the United States
Government, in any independent agency of the United States, or
in the government of the District of Columbia, and who, at the
time of retention, designation, appointment, or employment, is
expected to perform temporary duties on a full-time or
intermittent basis for not to exceed 130 days during any period
of 365 consecutive days;
``(2) a part-time United States commissioner;
``(3) a part-time United States magistrate;
``(4) an independent counsel appointed under chapter 40 of
title 28 and any person appointed by that independent counsel
under section 594(c) of title 28;
``(5) a person serving as a part-time local representative of
a Member of Congress in the Member's home district or State;
and
``(6) a Reserve officer of the Armed Forces, or an officer of
the National Guard of the United States, who is not otherwise
an officer or employee as defined in subsection (c) and who
is--
``(A) on active duty solely for training
(notwithstanding section 2105(d) of title 5);
``(B) serving voluntarily for not to exceed 130 days
during any period of 365 consecutive days; or
``(C) serving involuntarily.''.
(b) Amendment to Section 202(c).--Subsection (c) of 202 of title 18,
United States Code, is amended to read as follows:
``(c)(1) The terms `officer' and `employee' in sections 203, 205, 207
through 209, and 218 of this title shall include--
``(A) an individual who is retained, designated, appointed,
or employed in the United States Government or in the
government of the District of Columbia to perform, with or
without compensation and subject to the supervision of the
President, the Vice President, a Member of Congress, a Federal
judge, or an officer or employee of the United States or of the
government of the District of Columbia, a Federal or District
of Columbia function under authority of law or an Executive
act;
``(B) a Reserve officer of the Armed Forces or an officer of
the National Guard of the United States who is serving
voluntarily in excess of 130 days during any period of 365
consecutive days; and
``(C) the President, the Vice President, a Member of Congress
or a Federal judge, but only to the extent specified in any
such section.
``(2) As used in paragraph (1), the term `Federal or District of
Columbia function' shall include, but not be limited to--
``(A) supervising, managing, directing or overseeing a
Federal or District of Columbia officer or employee in the
performance of such officer's or employee's official duties;
``(B) providing regular advice, counsel, or recommendations
to the President, the Vice President, a Member of Congress, or
any Federal or District of Columbia officer or employee, or
conducting meetings involving any of those individuals, as part
of the Federal or District of Columbia government's internal
deliberative process; or
``(C) obligating funds of the United States or the District
of Columbia.''.
(c) New Section 202(f).--Section 202 of title 18, United States Code,
is amended by adding at the end the following:
``(f) The terms `officer or employee' and `special Government
employee' as used in sections 203, 205, 207 through 209, and 218, shall
not include enlisted members of the Armed Forces, nor shall they
include an individual who is retained, designated, or appointed without
compensation specifically to act as a representative of an interest
(other than a Federal or District of Columbia interest) on an advisory
committee established pursuant to the Federal Advisory Committee Act or
any similarly established committee whose meetings are generally open
to the public.''.
Amend the title so as to read:
A bill to amend the Ethics in Government Act of 1978 to
reauthorize funding for the Office of Government Ethics, and to
expand the definition of a ``special Government employee''
under title 18, United States Code.
I. Short Summary of Legislation
H.R. 2904 reauthorizes appropriations for the Office of
Government Ethics for fiscal years 2000 through 2003. It also
revises and clarifies the definition of the term ``special
government employee'' to make unofficial advisers more
accountable to the American people.
II. Background and Need for the Legislation
The authorization for the Office of Government Ethics
expired on September 30, 1999. Although the Office is a small
agency, the functions it performs are important in preserving
impartiality and integrity in government operations. Testimony
before the Subcommittee on the Civil Service's August 4, 1999
oversight hearing on the Office revealed that, on the whole,
the Office has performed its mission very well.
The statutory definition of a special government employee
has not been materially revised since its enactment in 1962.
Under it, a special government employee is someone who is
retained or appointed to perform duties on a full-time or part-
time basis with or without compensation for no more than 130
days within 365 consecutive days. This definition does not give
adequate notice of who is covered by the definition and
therefore covered by conflict-of-interest and financial-
disclosure laws. Guidance issued by the Office of Government
Ethics and the Department of Justice focuses on whether the
advisor is in fact performing a Federal function, but there is
no functional test in the statute. Neither the current law nor
this Federal agency guidance adequately covers the various
situations in which informal advisers in the White House have
performed Federal functions and otherwise participated in the
government's decision-making or policy-making process in recent
years.
At hearings held by the Subcommittee on Government
Management, Information, and Technology on June 25, 1996, and
May 1, 1997, witnesses concurred that legislative revision of
the definition of special government employee was needed.
Witnesses suggested that the definition be revised to adopt a
functional test, one that concentrates on the nature of the
Federal service the advisor is providing, rather than on the
advisor's outside interests and affiliations. More recently,
similar testimony was received by the Subcommittee on the Civil
Service in a hearing held on August 4, 1999.
This revision of the definition of a special government
employee is intended to accomplish the following objectives.
First, it attempts to capture informal or outside advisors who
are not specifically appointed to advisory committees or part-
time commissions as representatives of a non-Federal interest.
Second, it uses a functional test to consider the nature of the
services the person is retained to provide. The revised
definition of a special government employee in H.R. 2904, in
the committee's opinion, achieves these objectives.
During the 104th Congress, the House passed similar
language in section 5 of H.R. 3452, The Presidential and
Executive Office Accountability Act. Although most of that bill
was enacted, becoming Public Law 104-331, this language was
deleted in conference.
III. Legislative Hearings and Committee Actions
The Committee held no legislative hearings on H.R. 2904.
Rep. Joe Scarborough introduced this measure on September 21,
1999. As introduced, the bill merely reauthorized the Office of
Government Ethics through fiscal year 2003. It was referred to
the Committee on Government Reform, and in addition to the
Committee on the Judiciary. The Committee on Government Reform
marked up the bill on September 30, 1999. Rep. Stephen Horn
offered an amendment in the nature of a substitute, which added
section 2 of the bill to revise the definitionof ``special
government employee.'' The Committee agreed to the Horn amendment by
voice vote. Also by voice votes, the Committee adopted H.R. 2904, as
amended, and ordered it favorably reported to the House of
Representatives.
IV. Committee Hearings and Written Testimony
The Subcommittee on the Civil Service held an oversight
hearing on the Office of Government Ethics on August 4, 1999.
Witnesses at the hearing were Stephen D. Potts, Director of the
Office of Government Ethics, and Gregory S. Walden, an attorney
in private practice and a former Assistant Counsel in the White
House.
Mr. Potts described the functions and operations of the
agency, which, he testified, had ``overall responsibility for
executive branch policies related to preventing conflicts of
interest on the part of officers and employees.'' The Office
administers a program that is primarily preventive, with
enforcement entrusted to other executive branch agencies,
including the Department of Justice. The Office issues rules
and regulations regarding such matters as conflict of interest,
post-employment restrictions, standards of conduct, financial
disclosure, and ethics training. It also reviews the financial
disclosure forms filed by certain individuals nominated for or
appointed to Federal office by the President and counsels those
individuals on the avoidance of conflicts of interest and, when
necessary, recommends appropriate corrective actions. Educating
Federal employees about the ethical standards governing their
conduct is also an important part of the Office's
responsibilities. Toward this end, the Office trains agency
ethics officials and assists agencies in conducting their
internal ethics training programs. The Office also issues
formal and informal guidance on a variety of ethics matters. In
limited circumstances, the Office will investigate alleged
ethics violations and order corrective action or recommend
disciplinary action. In general, however, enforcement falls to
individual agencies or the Department of Justice. The Office
also evaluates the effectiveness of conflict of interest laws
and related statutes and rules and regulations. Mr. Potts also
testified that the Office has been enlisted by other executive
agencies to provide technical assistance to the anti-corruption
efforts of foreign countries.
From time to time, the Office will also recommend modifying
or repealing existing ethics laws or enacting new ones. In
response to questioning, Mr. Potts testified that 18 U.S.C.
Sec. 202, which defines the term ``special government
employee,'' should be clarified by codifying the elements on
which the Office currently considers in determining whether an
individual is a special government employee. He pointed out
that the Office had supported, and indeed had been ``one of the
forces behind,'' legislation introduced by Rep. Mica and Rep.
Horn in the previous two Congresses to clarify this definition.
(However, he also expressed opposition to tying such
legislation to a reauthorization bill.)
Mr. Potts asked Congress to reauthorize the Office for 7 or
8 years. In support of that request, he cited the Office's
record over the years, its small size (a budget of $9.1 million
for FY 2000 and a workforce of 84 full time equivalent
employees), and the fundamental nature of the work it performs.
Mr. Walden testified that he supported both the agency's
reauthorization and the clarification of the term ``special
government employee.'' In his opinion, the Office ``has
performed exceptionally well and deserves to be reauthorized.''
He pointed out that he worked closely with the Office as an
Assistant Counsel in the Bush White House and noted that it was
the policy and practice of the Bush White House to solicit the
Office's advice before making decisions or taking a course of
action, and urged future Administrations to follow that
practice as well. As an independent agency, he pointed out, the
Office helps both to maintain the public's trust in the
integrity of the government and protects Federal officials from
unwarranted or politically motivated criticism.
In his testimony, Mr. Walden identified several matters
that he believes the Office should address: issuing rules to
implement the post-employment restrictions in 18 U.S.C.
Sec. 207, rules to implement section 209 of the same title, and
rules covering such matters as legal defense funds, the outside
activities of Federal employees in professional associations,
and the expenses that Federal employees may accept for
unofficial teaching, speaking, or writing. He also urged more
involvement by the Office in ethics investigations and that the
Office audit the White House and every Cabinet Department in
the second year of a new Administration. Other recommendations
included joint ethics training of political appointees by the
White House Counsel and the Office and increased attention to
training for employees in the field.
Mr. Walden criticized the Office for too narrowly
construing section 208, the conflict of interest statute, when
it reviewed allegations that Hillary Clinton's stock portfolio
created a conflict of interest with her responsibilities as the
chairman of the President's Task Force on National Health Care
Reform. He argued that the Office's conclusion that health care
legislative proposals were too broad to constitute ``particular
matters'' within the meaning of the statute ``exempts some
conduct that fits the classic notion of a conflict of
interest.''
In addition, Mr. Walden raised several legislative
proposals, including clarification of the definition of
``special government employee.'' The Clinton Administration's
``obvious struggle'' with the concept in connection with its
perhaps unprecedented reliance on such informal advisers and
consultants as Harry Thomason, Paul Begala, Dick Morris, and
the numerous outsiders who worked on the Clinton health care
proposal, as well as Mrs. Clinton's own unprecedented
involvement in governmental affairs, according to Mr. Walden,
highlight the need for such clarification. He pointed out that
he had testified in support of legislation to do that in both
1996 and 1997 and urged Congress to enact similar legislation
before the next President is inaugurated.
Mr. Walden testified that the length of the reauthorization
period was a matter for congressional judgment on the best way
to ensure regular oversight of the agency.
Both Mr. Walden and Mr. Potts also testified in support of
legislation to clarify thedefinition of ``special government
employee'' before a hearing held by the Subcommittee on Government
Management, Information, and Technology on May 1, 1997. Rep. John L.
Mica also testified at the same hearing in strong support of that
legislation. Testimony received by the Subcommittee on Government
Management, Information, and Technology at its June 25, 1996 hearing on
H.R. 3452, which included language to revise the definition, is
summarized in House Report 104-820.
V. Explanation of the Bill as Reported: Section-By-Section
Section 1. This section authorizes appropriations for the
Office of Government Ethics for fiscal years 2000 through 2003.
Section 2. Amendment to Definition of special Government
employee. This section amends the definition of special
government employee in subsection 202(a) of title 18, United
States Code. This amendment is advisable, the Committee
believes, because hearings during the 104th Congress before the
House Committee on Government Reform and Oversight on the
``Travelgate'' scandal revealed that certain advisers to the
President used their position in the White House and the staff
of the Executive Office of the President to promote their own
business interests, by encouraging the firing of the White
House Travel Office staff. The Committee's report on the
Travelgate investigation recommended reforming the definition
of special Government employee to include ``clear standards''
for determining when an individual should be considered to be
one. ``Investigation of the White House Travel Office Firings
and Related Matters,'' H. Rep. 104-849 at 27 (104th Congress,
2d Session).
The Committee believes that such advisers should have been
considered special government employees under the current tests
used to interpret section 202. However, the Committee also
deems it advisable to implement its earlier recommendation by
amending the statute to make it completely clear that, in the
future, similarly situated informal advisers would be special
government employees and therefore subject to conflict-of-
interest and financial-disclosure laws.
Since it was introduced in the criminal conflicts of
interest statutes, the term ``special Government employee'' has
always referred to a component of the larger categories of
``officer'' and ``employee.'' To make this clear, subsection
(c) of 18 U.S.C. Sec. 202 is amended by adding a definition for
those terms and by referring to that definition in defining
``special Government employee.'' There is a three-part test for
determining whether someone is an ``officer'' or ``employee.''
First, the individual must be retained, designated, appointed,
or employed, with or without compensation, by a Federal (or
District of Columbia) official or employee. Second, the
individual must be subject to the supervision of a Federal (or
District of Columbia) official or employee. And, third, the
individual must carry out a Federal (or District of Columbia)
function as defined by this amendment. Both the three-part test
for ``officer'' and ``employee'' and the definition of a
Federal (or District of Columbia) function are intended to
codify longstanding interpretations of the terms applied by the
Department of Justice and the Office of Government Ethics.
In general, subsection (a) provides that a special
Government employee must be an officer or employee and meet two
additional criteria: (1) the individual must serve in the
legislative or executive branch of government; and (2) when
retained, designated, appointed, or employed, the individual
must not be expected to perform temporary duties on a full-time
or intermittent basis, for more than 130 days during any period
of 365 consecutive days. Current law provides that persons in
certain positions shall be considered ``special Government
employees.'' The amendment continues to include those
positions.
Because of past confusion, the Committee wishes to stress
that a formal act of retention, designation, appointment, or
employment is not necessary for an individual to be considered
an ``officer'' or ``employee'' or a ``special Government
employee'' for purposes of criminal conflicts of interest law.
On the other hand, individuals who provide advice to Federal
(or District of Columbia) officials or employees will not be
considered ``officers,'' ``employees,'' or ``special Government
employees'' unless they are subject to supervision by a Federal
(or District of Columbia) official or employee and perform a
Federal function, as defined in this amendment. Whether an
individual is supervised by a Federal (or District of Columbia)
official or employee is often the basis for determining whether
that individual is an independent contractor or an ``officer''
or ``employee.''
The Committee does not intend that an individual be
considered an ``officer,'' ``employee,'' or ``special
Government employee'' based solely upon comments or advice to a
Federal (or District of Columbia) official or employee. In
order to allay fears that simply giving informal advice to such
an official or employee will subject an individual to criminal
sanctions under conflicts of interest law, the amendment to
section 202(c) identifies three non-exclusive substantive
activities that are considered Federal (or District of
Columbia) functions. They are:
1. Supervising, managing, directing, or overseeing a
Federal or District of Columbia officer or employee in
the performance of such officer's or employee's
official duties.
2. Participating in the Federal or District of
Columbia government's internal deliberative process by,
for example, providing regular advice, counsel, or
recommendations to the President, the Vice President, a
Member of Congress, or any other Federal or District of
Columbia officer or employee, or conducting meetings
involving any of those individuals.
3. Obligating funds of the United States or the
District of Columbia.
The definition of ``officer'' and ``employee'' would, of
course, continue to include regular, salaried individuals
formally employed by the government, such as persons who fit
within the definitions of 5 U.S.C. Sec. Sec. 2104 and 2105,
regardless of whether they engage in any of theactivities
described by these three criteria.
The amendment also provides for a new subsection (f), which
describes positions that are not to be considered as
``officers,'' ``employees,'' or ``special Government
employees'' for the purpose of chapter 11 of title 18, United
States Code. Consistent with current law, the subsection states
that enlisted members of the Armed Forces are not to be so
considered.
Subsection (f) also codifies a long-standing interpretation
of section 202 that permits certain individuals to function as
representatives of interested parties on advisory bodies. It
recognizes that from time to time the Government solicits the
advice of parties with a financial or other stake in a
particular matter by appointing individuals to serve as their
voice on advisory committees under the Federal Advisory
Committee Act or similar bodies whose meetings are generally
open to the public. To apply the conflict of interest
restrictions in such situations would almost always defeat the
purpose of seeking the advice of interested groups. Individuals
representing such groups have been called ``representatives,''
and that term is used in this new subsection.
Certain actions by the selecting authority are required if
individuals are to be considered ``representatives'' under
subsection (f), and certain limitations are imposed on their
actions. First, the authority of a particular agency or entity
to select a ``representative'' (as opposed to a ``special
Government employee'') for an advisory body and the designation
of the individual to serve as a ``representative'' is a
determination to be made by the government selecting authority
at the time of the individual's retention, designation, or
appointment. This status is conferred by the government, not
determined by the individual. (However, the agency should make
the status of the individual known at the time of selection so
that the individual is clear as to his or her obligations under
the criminal conflicts laws.) Second, a ``representative'' may
provide only advice to the government. Individuals who have any
authority to take actions other than providing advice will be
governed by conflicts laws. Third, ``representatives'' cannot
receive any salary or other compensation from the government
for their services. (For the purposes of this subsection, the
payment of travel expenses and a per diem to defray the
individual's expenses in attending a meeting of the committee
or other body is not considered compensation.) Finally, a
``representative's'' advice is generally provided in a public
meeting. A public forum has a twofold purpose: (1) the public
can be aware that advice from interested parties has been
sought, and (2) individuals or organizations whose views are to
be expressed by the ``representative'' can judge whether the
advice given accurately or adequately reflects their interest.
Individuals and organizations are free to impress upon the
``representative'' the views they expect him or her to express.
VI. Committee Oversight Findings
Pursuant to rule XIII, clause (3)(c)(1) of the Rules of the
House of Representatives, the results and findings for those
oversight activities are incorporated in the recommendations
found in the bill and in this report.
VII. Budget Analysis and Projections
The budget analysis and projections required by section
308(a) of the Congressional Budget Act of 1974 are contained in
the estimate of the Congressional Budget Office.
VIII. Cost Estimate of the Congressional Budget Office
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 13, 1999.
Hon. Dan Burton,
Chairman, Committee on Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2904, a bill to
amend the Ethics in Government Act of 1978 to reauthorize
funding for the Office of Government Ethics, and to expand the
definition of a ``special government employee'' under title 18,
United States Code.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is John R.
Righter.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 2904--A bill to amend the Ethics in Government Act of 1978 to
reauthorize funding for the Office of Government Ethics, and to
expand the definition of a ``special government employee''
under title 18, United States Code
Summary: H.R. 2904 would reauthorize the Office of
Government Ethics (OGE) for fiscal years 2000 through 2003. In
addition, the bill would apply the definition of a special
government employee to individuals who provide regular advice
or counsel to the President, Vice President, a Member of
Congress, or a federal judge. Special government employees are
individuals who provide temporary services to the government.
Assuming appropriation of the necessary amounts, CBO estimates
that implementing H.R. 2904 would result in additional
discretionary spending of $29 million over the 2001-2004 period
(Public Law 106-58 appropriated $9.1 million to the OGE for
fiscal year 2000). This estimate assumes an adjustment for
anticipated inflation in 2002 and 2003. Without such an
adjustment, we estimate additional spending would total $27
million over the 2001-2004 period. Because H.R. 2904 would not
affect direct spending or receipts, pay-as-you-go procedures
would not apply. H.R. 2904 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act (UMRA) and would not affect the budgets of state,
local, or tribal governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 2904 is shown in the following table.
For the purposes of this estimate, CBO assumes that the
estimated authorization level will be appropriated by the start
of each fiscal year and that outlays will follow the historical
spending pattern of the OGE. In addition, we estimate that
expanding the definition of a special government employee would
not significantly increase the costs to federal agencies and
Congressional offices to review any additional financial
disclosure forms required of such employees. The costs of this
legislation fall within budget function 800 (general
government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2000 2001 2002 2003 2004
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
OGE spending under current law:
Budget Authority \1\........................................... 9 0 0 0 0
Estimated outlays.............................................. 9 1 0 0 0
Proposed changes:
Estimated Authorization Level.................................. 0 9 10 10 0
Estimated outlays.............................................. 0 8 10 10 1
OGE spending under H.R. 2904:
Estimated Authorization Level \1\.............................. 9 9 10 10 0
Estimated outlays.............................................. 9 9 10 10 1
----------------------------------------------------------------------------------------------------------------
\1\ The 2000 level is the amount appropriated for that year.
Pay-as-you-go considerations: None.
Intergovernmental and private sector impact: H.R. 2904
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: John R. Righter.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
IX. Statement of Constitutional Authority
Pursuant to rule XIII, clause 3(d)(1), the Committee finds
that clauses 1 and 18 of Article I, Sec. 8 of the U.S.
Constitution grant Congress the power to enact this law.
X. Committee Recommendation
On September 30, 1999, a quorum being present, the
Committee ordered the bill, as amended, favorably reported by
voice vote to the House for consideration.
XI. Congressional Accountability Act; Public Law 104-1; Section
102(B)(3)
H.R. 2904 applies to special Government employees in the
legislative branch.
XII. Unfunded Mandates Reform Act; Public Law 104-4; Section 423
H.R. 2904 does not impose any Federal mandates on state,
local, or tribal governments, or the private sector, and it
does not preempt any state or local law.
XIII. Federal Advisory Committee Act (5 U.S.C. App.) Section 5(b)
The Committee finds that H.R. 2904 does not establish or
authorize establishment of an advisory committee within the
definition of 5 U.S.C. App., Section 5(b).
XIV. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 405 OF THE ETHICS IN GOVERNMENT ACT OF 1978
authorization of appropriations
Sec. 405. There are authorized to be appropriated to carry
out this title such sums as may be necessary for each of fiscal
years [1997 through 1999] 2000 through 2003.
----------
SECTION 202 OF TITLE 18, UNITED STATES CODE
Sec. 202. Definitions
[(a) For the purpose of sections 203, 205, 207, 208, and 209
of this title the term ``special Government employee'' shall
mean an officer or employee of the executive or legislative
branch of the United States Government, of any independent
agency of the United States or of the District of Columbia, who
is retained, designated, appointed, or employed to perform,
with or without compensation, for not to exceed one hundred and
thirty days during any period of three hundred and sixty-five
consecutive days, temporary duties either on a full-time or
intermittent basis, a part-time United States commissioner, a
part-time United States magistrate, or, regardless of the
number of days of appointment, an independent counsel appointed
under chapter 40 of title 28 and any person appointed by that
independent counsel under section 594(c) of title 28.
Notwithstanding the next preceding sentence, every person
serving as a part-time local representative of a Member of
Congress in the Member's home district or State shall be
classified as a special Government employee. Notwithstanding
section 29(c) and (d) of the Act of August 10, 1956 (70A Stat.
632; 5 U.S.C. 30r(c) and (d)), a Reserve officer of the Armed
Forces, or an officer of the National Guard of the United
States, unless otherwise an officer or employee of the United
States, shall be classified as a special Government employee
while on active duty solely for training. A Reserve officer of
the Armed Forces or an officer of the National Guard of the
United States who is voluntarily serving a period of extended
active duty in excess of one hundred and thirty days shall be
classified as an officer of the United States within the
meaning of section 203 and sections 205 through 209 and 218. A
Reserve officer of the Armed Forces or an officer of the
National Guard of the United States who is serving
involuntarily shall be classified as a special Government
employee. The terms ``officer or employee'' and ``special
Government employee'' as used in sections 203, 205, 207 through
209, and 218, shall not include enlisted members of the Armed
Forces.]
(a) For the purpose of sections 203, 205, 207, 208, 209, and
219 of this title the term ``special Government employee''
shall mean--
(1) an officer or employee as defined in subsection
(c) who is retained, designated, appointed, or employed
in the legislative or executive branch of the United
States Government, in any independent agency of the
United States, or in the government of the District of
Columbia, and who, at the time of retention,
designation, appointment, or employment, is expected to
perform temporary duties on a full-time or intermittent
basis for not to exceed 130 days during any period of
365 consecutive days;
(2) a part-time United States commissioner;
(3) a part-time United States magistrate;
(4) an independent counsel appointed under chapter 40
of title 28 and any person appointed by that
independent counsel under section 594(c) of title 28;
(5) a person serving as a part-time local
representative of a Member of Congress in the Member's
home district or State; and
(6) a Reserve officer of the Armed Forces, or an
officer of the National Guard of the United States, who
is not otherwise an officer or employee as defined in
subsection (c) and who is--
(A) on active duty solely for training
(notwithstanding section 2105(d) of title 5);
(B) serving voluntarily for not to exceed 130
days during any period of 365 consecutive days;
or
(C) serving involuntarily.
* * * * * * *
[(c) Except as otherwise provided in such sections, the terms
``officer'' and ``employee'' in sections 203, 205, 207 through
209, and 218 of this title shall not include the President, the
Vice President, a Member of Congress, or a Federal judge.]
(c)(1) The terms ``officer'' and ``employee'' in sections
203, 205, 207 through 209, and 218 of this title shall
include--
(A) an individual who is retained, designated,
appointed, or employed in the United States Government
or in the government of the District of Columbia to
perform, with or without compensation and subject to
the supervision of the President, the Vice President, a
Member of Congress, a Federal judge, or an officer or
employee of the United States or of the government of
the District of Columbia, a Federal or District of
Columbia function under authority of law or an
Executive act;
(B) a Reserve officer of the Armed Forces or an
officer of the National Guard of the United States who
is serving voluntarily in excess of 130 days during any
period of 365 consecutive days; and
(C) the President, the Vice President, a Member of
Congress or a Federal judge, but only to the extent
specified in any such section.
(2) As used in paragraph (1), the term ``Federal or District
of Columbia function'' shall include, but not be limited to--
(A) supervising, managing, directing or overseeing a
Federal or District of Columbia officer or employee in
the performance of such officer's or employee's
official duties;
(B) providing regular advice, counsel, or
recommendations to the President, the Vice President, a
Member of Congress, or any Federal or District of
Columbia officer or employee, or conducting meetings
involving any of those individuals, as part of the
Federal or District of Columbia government's internal
deliberative process; or
(C) obligating funds of the United States or the
District of Columbia.
* * * * * * *
(f) The terms ``officer or employee'' and ``special
Government employee'' as used in sections 203, 205, 207 through
209, and 218, shall not include enlisted members of the Armed
Forces, nor shall they include an individual who is retained,
designated, or appointed without compensation specifically to
act as a representative of an interest (other than a Federal or
District of Columbia interest) on an advisory committee
established pursuant to the Federal Advisory Committee Act or
any similarly established committee whose meetings are
generally open to the public.
MINORITY VIEWS
We support the amendment to the Ethics in Government Act of
1978 to reauthorize funding for the Office of Government
Ethics, and with one exception, join in the Majority report.
The exception concerns the statement in the report that
``certain advisors to the President used their position in the
White House and the staff of the Executive Office of the
President to promote their own business interests, by
encouraging the firing of the White House Travel Office
staff.'' The minority views provided in House Report 104-849,
``Investigation of the White House Travel Office Firings and
Related Matters,'' reflect our views on the Travel Office
investigation.
Henry A. Waxman.
Elijah E. Cummings.
Major R. Owens.
Edolphus Towns.
Patsy T. Mink.
Carolyn B. Maloney.
Eleanor Holmes Norton.
Chaka Fattah.
Dennis J. Kucinich.
John F. Tierney.
Harold E. Ford, Jr.
Janice D. Schakowsky.