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S. 156: Executive Branch Conflict of Interest Act

The text of the bill below is as of Jan 16, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 156

IN THE SENATE OF THE UNITED STATES

January 16, 2019

introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

To prevent conflicts of interest that stem from executive branch employees receiving bonuses or other compensation arrangements from non-Government sources, from the revolving door that raises concerns about the independence of executive branch employees, and from the revolving door that casts aspersions over the awarding of Government contracts and other financial benefits.

1.

Short title

This Act may be cited as the Executive Branch Conflict of Interest Act.

2.

Restrictions on private sector payment for Government service

Section 209 of title 18, United States Code, is amended—

(1)

in subsection (a)—

(A)

by striking any salary and inserting any bonus or salary; and

(B)

by striking his services and inserting services rendered or to be rendered; and

(2)

in subsection (b)—

(A)

by inserting (1) after (b); and

(B)

by adding at the end the following:

(2)

For purposes of paragraph (1), a pension, retirement, group life, health or accident insurance, profit-sharing, stock bonus, or other employee welfare or benefit plan that makes payment of compensation contingent on accepting a position in the Federal Government shall not be considered bona fide.

(3)

For purposes of paragraph (2), compensation includes a retention award or bonus, severance pay, and any other payment linked to future service in the Federal Government in any way.

.

3.

Requirements relating to slowing the revolving door among certain executive branch employees

(a)

In general

The Ethics in Government Act of 1978 (5 U.S.C. App.) is amended by adding at the end the following:

VI

Special requirements for certain executive branch employees

601.

Definitions

(a)

In general

In this title, the terms designated agency ethics official and executive branch have the meanings given those terms under section 109.

(b)

Other definitions

In this title:

(1)

Covered agency

The term covered agency

(A)

means—

(i)

an Executive agency;

(ii)

the Postal Service; and

(iii)

the Postal Rate Commission;

(B)

includes the Executive Office of the President; and

(C)

does not include the Government Accountability Office or the government of the District of Columbia.

(2)

Covered employee

The term covered employee means an officer or employee described in section 207(c)(2) of title 18, United States Code.

(3)

Director

The term Director means the Director of the Office of Government Ethics.

(4)

Executive agency

The term Executive agency has the meaning given the term in section 105 of title 5, United States Code.

(5)

Former client

The term former client

(A)

means a person for whom a covered employee served personally as an agent, attorney, or consultant during the 2-year period ending on the date (after such service) on which the covered employee begins service in the Federal Government; and

(B)

does not include—

(i)

a person for whom a covered employee served as described in subparagraph (A) if the service provided was limited to a speech or similar appearance; or

(ii)

a client of the former employer of the covered employee to whom the covered employee did not personally provide services described in subparagraph (A).

(6)

Former employer

The term former employer

(A)

means a person for whom a covered employee served as an employee, officer, director, trustee, or general partner during the 2-year period ending on the date (after such service) on which the covered employee begins service in the Federal Government; and

(B)

does not include—

(i)

an entity in the Federal Government, including an Executive agency;

(ii)

a State or local government; or

(iii)

an Indian tribe, as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

(7)

State

The term State has the meaning given the term in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602).

602.

Conflict of interest and eligibility standards for covered employees

(a)

In general

A covered employee shall not make, participate in making, or in any way attempt to use the official position of the covered employee to influence a particular matter that provides a direct and substantial pecuniary benefit for a former employer or former client of the covered employee.

(b)

Recusal

A covered employee shall recuse himself or herself from any official action that would violate subsection (a).

(c)

Waiver

(1)

In general

The head of the covered agency employing a covered employee, in consultation with the Director, may grant a written waiver of the restrictions under subsection (a) if, and to the extent that, the head of the covered agency certifies in writing that—

(A)

the application of the restriction to the particular matter is inconsistent with the purposes of the restriction; or

(B)

it is in the public interest to grant the waiver.

(2)

Publication

The Director shall make each waiver granted under paragraph (1) publicly available on the website of the Office of Government Ethics.

603.

Negotiating future private sector employment

(a)

Prohibition

Except as provided in subsection (c), and notwithstanding any other provision of law, a covered employee may not participate in any particular matter that involves, to the knowledge of the covered employee, an individual or entity with whom the covered employee is in negotiations of future employment or has an arrangement concerning prospective employment.

(b)

Disclosure of employment negotiations

(1)

In general

If a covered employee begins any negotiations of future employment with another individual or entity, or an agent or intermediary of another individual or entity, or other discussion or communication with another individual or entity, or an agent or intermediary of another individual or entity, mutually conducted with a view toward reaching an agreement regarding possible employment of the covered employee, the covered employee shall notify the designated agency ethics official of the covered agency employing the covered employee regarding the negotiations, discussions, or communications.

(2)

Information

A designated agency ethics official receiving notice under paragraph (1), after consultation with the Director, shall inform the covered employee of any potential conflicts of interest involved in any negotiations, discussions, or communications with the other individual or entity and the applicable prohibitions.

(c)

Waivers only when exceptional circumstances exist

(1)

In general

The head of a covered agency may only grant a waiver of the prohibition under subsection (a) if—

(A)

the head of the covered agency determines that exceptional circumstances exist; and

(B)

the Director reviews the circumstances relating to the waiver and the determination of the head of the covered agency under subparagraph (A) and determines that exceptional circumstances exist.

(2)

Publication

For any waiver granted under paragraph (1), the Director shall make publicly available on the website of the Office of Government Ethics the waiver, which shall include—

(A)

the name of each private individual or entity involved in the negotiations or arrangement concerning prospective employment; and

(B)

the date on which the negotiations or arrangements commenced.

(d)

Scope

For purposes of this section, the term negotiations of future employment is not limited to discussions of specific terms or conditions of employment in a specific position.

604.

Recordkeeping

The Director shall—

(1)

receive all employment histories, recusal and waiver records, and other disclosure records for covered employees necessary for monitoring compliance with this title;

(2)

not later than 180 days after the date of enactment of this title and in consultation with the Director of the Office of Personnel Management and the Attorney General, promulgate rules and regulations to implement this title;

(3)

when appropriate, provide guidance and assistance to facilitate compliance with this title;

(4)

review advice provided by designated agency ethics officials, and, when necessary, assist designated agency ethics officials in providing advice, to covered employees regarding compliance with this title; and

(5)

if the Director determines that a violation of this title may have occurred, the Director shall, in consultation with the designated agency ethics official of the covered agency employing the covered employee alleged to have violated this title and the Counsel to the President, refer the compliance case to the United States Attorney for the District of Columbia for enforcement action.

605.

Penalties and injunctions

(a)

Criminal penalties

(1)

In general

Any person who violates section 602 or 603 shall be fined under title 18, United States Code, imprisoned for not more than 1 year, or both.

(2)

Willful violations

Any person who willfully violates section 602 or 603 shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.

(b)

Civil enforcement

(1)

In general

The Attorney General may bring a civil action in an appropriate district court of the United States against any person who violates, or whom the Attorney General has reason to believe is engaging in conduct that violates, section 602 or 603.

(2)

Civil penalty

(A)

In general

Upon proof by a preponderance of the evidence that a person violated section 602 or 603, the court shall impose a civil penalty of not more than the greater of—

(i)

$100,000 for each violation; or

(ii)

the amount of compensation the person received or was offered for the conduct constituting the violation.

(B)

Rule of construction

A civil penalty under this subsection shall be in addition to any other criminal or civil statutory, common law, or administrative remedy available to the United States or any other person.

(3)

Injunctive relief

(A)

In general

In a civil action brought under paragraph (1) against a person, the Attorney General may petition the court for an order prohibiting the person from engaging in conduct that violates section 602 or 603.

(B)

Standard

The court may issue an order under subparagraph (A) if the court finds by a preponderance of the evidence that the conduct of the person violates section 602 or 603.

(C)

Rule of construction

The filing of a petition seeking injunctive relief under this paragraph shall not preclude any other remedy that is available by law to the United States or any other person.

.

4.

Prohibition of procurement officers accepting employment from Government contractors

(a)

Expansion of prohibition on acceptance by former officials of compensation from contractors

Section 2104 of title 41, United States Code, is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1)—

(i)

by striking or consultant and inserting consultant, lawyer, or lobbyist; and

(ii)

by striking one year and inserting 2 years; and

(B)

in paragraph (3), in the matter preceding subparagraph (A), by striking personally made for the Federal agency and inserting participated personally and substantially in; and

(2)

by striking subsection (b) and inserting the following:

(b)

Prohibition on compensation from affiliates and subcontractors

A former official of a Federal agency responsible for a Government contract referred to in paragraph (1), (2), or (3) of subsection (a) may not accept compensation from any division, affiliate, or subcontractor of the contractor during the 2-year period beginning on the last date on which the former official was employed by the Federal agency.

.

(b)

Requirement for procurement officers To disclose job offers made on behalf of relatives

Section 2103(a) of title 41, United States Code, is amended in the matter preceding paragraph (1) by inserting after that official the following: , or for a relative (as defined in section 3110 of title 5) of that official,.

(c)

Requirement on award of Government contracts to former employers

(1)

In general

Chapter 21 of title 41, United States Code, is amended—

(A)

by redesignating section 2107 as section 2108; and

(B)

by inserting after section 2106 the following:

2107.

Prohibition on involvement by certain former contractor employees in procurements

An employee of the Federal Government may not be personally and substantially involved with any award of a contract to, or the administration of a contract awarded to, a contractor that is a former employer of the employee during the 2-year period beginning on the date on which the employee leaves the employment of the contractor.

.

(2)

Technical and conforming amendment

The table of sections for chapter 21 of title 41, United States Code, is amended by striking the item relating to section 2107 and inserting the following:

2107. Prohibition on involvement by certain former contractor employees in procurements.

2108. Savings provisions.

.

(d)

Regulations

The Administrator for Federal Procurement Policy and the Director of the Office of Management and Budget shall, with respect to chapter 21 of title 41, United States Code, as amended by this section—

(1)

not later than 180 days after the date of enactment of this Act and in consultation with the Director of the Office of Personnel Management and the Counsel to the President, promulgate regulations to carry out and ensure the enforcement of that chapter; and

(2)

in consultation with designated agency ethics officials (as defined in section 601 of the Ethics in Government Act of 1978 (5 U.S.C. App.), as added by section 3 of this Act), monitor compliance with that chapter by individuals and agencies.

5.

Revolving door restrictions on certain covered employees moving into the private sector

(a)

In general

Section 207 of title 18, United States Code, is amended—

(1)

by redesignating subsections (e) through (l) as subsections (f) through (m), respectively; and

(2)

by inserting after subsection (d) the following:

(e)

Restrictions on employment for covered employees

(1)

Definitions

In this subsection—

(A)

the term covered employee has the meaning given the term in section 601 of the Ethics in Government Act of 1978 (5 U.S.C. App.); and

(B)

the terms lobbying activities and lobbyist have the meanings given those terms in section 3 of the Lobbying Disclosure Act of 1995 (2 U.S.C. 1602).

(2)

In general

In addition to the restrictions set forth in subsections (a), (b), (c), and (d), an individual who is a covered employee shall not—

(A)

during the 2-year period beginning on the date on which the employment of the individual as a covered employee ceases—

(i)

knowingly act as agent or attorney for, or otherwise represent, any other person (except the United States) for compensation in any formal or informal appearance before;

(ii)

with the intent to influence, make any oral or written communication on behalf of any other person (except the United States) to; or

(iii)

knowingly aid, advise, or assist in—

(I)

representing any other person (except the United States) in any formal or informal appearance before; or

(II)

making, with the intent to influence, any oral or written communication on behalf of any other person (except the United States) to,

any court of the United States, or any officer or employee thereof, in connection with any judicial or other proceeding that was actually pending under the official responsibility of the individual as a covered employee during the 1-year period ending on the date on which the employment of the individual as a covered employee ceases or in which the individual participated personally and substantially as a covered employee; or
(B)

during the 2-year period beginning on the date on which the employment of the individual as a covered employee ceases—

(i)

knowingly act as a lobbyist or agent for, or otherwise represent, any other person (except the United States) for compensation in any formal or informal appearance before;

(ii)

with the intent to influence, make any oral or written communication or conduct any lobbying activities on behalf of any other person (except the United States) to; or

(iii)

knowingly aid, advise, or assist in—

(I)

representing any other person (except the United States) in any formal or informal appearance before; or

(II)

making, with the intent to influence, any oral or written communication or conduct any lobbying activities on behalf of any other person (except the United States) to,

any department or agency of the executive branch or Congress (including any committee of Congress), or any officer or employee thereof, in connection with any matter that is pending before the department, the agency, or Congress.
(3)

Penalty

Any person who violates paragraph (2) shall be punished as provided in section 216.

.

(b)

Technical and conforming amendments

(1)

Honest Leadership and Open Government Act of 2007

Section 103(a) of the Honest Leadership and Open Government Act of 2007 (2 U.S.C. 4702(a)) is amended by striking section 207(e) each place it appears and inserting section 207(f).

(2)

Internal Revenue Code of 1986

Section 7802(b)(3)(B) of the Internal Revenue Code of 1986 is amended by striking and (f) of section 207 and inserting and (g) of section 207.

(3)

Title 18, United States Code

Section 207 of title 18, United States Code, as amended by subsection (a), is amended—

(A)

in subsection (g), as so redesignated, by striking or (e) and inserting or (f);

(B)

in subsection (j)(1)(B), as so redesignated, by striking subsection (f) and inserting subsection (g); and

(C)

in subsection (k), as so redesignated—

(i)

in paragraph (1)(B), by striking (25 U.S.C. 450i(j)) and inserting (25 U.S.C. 5323(j));

(ii)

in paragraph (2), in the matter preceding subparagraph (A), by striking and (e) and inserting (e), and (f);

(iii)

in paragraph (4), by striking and (e) and inserting (e), and (f); and

(iv)

in paragraph (7)—

(I)

in subparagraph (A), by striking and (e) and inserting (e), and (f); and

(II)

in subparagraph (B)(ii), in the matter preceding subclause (I), by striking subsections (c), (d), or (e) and inserting subsection (c), (d), (e), or (f).

(4)

Title 49, United States Code

Section 106(p)(6)(I)(ii) of title 49, United States Code, is amended by striking and (f) of section 207 and inserting and (g) of section 207.

(5)

Trade Act of 1974

Section 141(b)(4) of the Trade Act of 1974 (19 U.S.C. 2171(b)(4)) is amended by striking section 207(f)(3) and inserting 207(g)(3).

(6)

USEC Privatization Act

Section 3105(c) of the USEC Privatization Act (42 U.S.C. 2297h–3(c)) is amended by striking and (d) and inserting (d), and (e).

6.

Restrictions on Federal examiners and supervisors of financial institutions

(a)

In general

Section 10(k) of the Federal Deposit Insurance Act (12 U.S.C. 1820(k)) is amended—

(1)

in the subsection heading—

(A)

by striking One-Year and inserting Two-Year; and

(B)

by striking Examiners and inserting Examiners and Supervisors;

(2)

in paragraph (1)—

(A)

by striking subparagraph (B) and inserting the following:

(B)

served—

(i)

not less than 2 months during the final 12 months of the employment of the person with that agency or entity as the senior examiner (or a functionally equivalent position) of a depository institution or depository institution holding company with continuing, broad responsibility for the examination (or inspection) of that depository institution or depository institution holding company on behalf of the relevant agency or Federal reserve bank; or

(ii)

as a supervisor of the senior examiner with responsibility for managing the oversight of not more than 5 depository institutions or depository institution holding companies on behalf of the relevant agency or Federal reserve bank; and

; and

(B)

in subparagraph (C)—

(i)

in the matter preceding clause (i), by striking 1 year and inserting 2 years;

(ii)

in clause (i)—

(I)

by striking other company and inserting other company, firm, or association; and

(II)

by striking or at the end;

(iii)

in clause (ii), by striking the period at the end and inserting ; or; and

(iv)

by adding at the end the following:

(iii)

a business entity, firm, or association that represents the depository institution or depository institution holding company for compensation.

;

(3)

by redesignating paragraphs (2) through (6) as paragraphs (3) through (7), respectively;

(4)

by inserting after paragraph (1) the following:

(2)

Application of penalties for supervisors

A supervisor of a covered financial services regulator, or a supervisor of a senior examiner described in paragraph (1)(B)(i), shall be subject to the penalties described in paragraph (7) if the supervisor knowingly accepts compensation during the 2-year period beginning on the date on which the service of the supervisor is terminated—

(A)

as—

(i)

an employee;

(ii)

an officer;

(iii)

a director; or

(iv)

a consultant; and

(B)

from—

(i)

a depository institution;

(ii)

a depository institution holding company that is designated by the Financial Stability Oversight Council as a systemically important financial market utility under section 804 of the Payment, Clearing, and Settlement Supervision Act of 2010 (12 U.S.C. 5463); or

(iii)

a business entity, firm, or association that represents an institution described in clause (ii) for compensation.

;

(5)

in paragraph (3), as so redesignated—

(A)

by redesignating subparagraphs (A) and (B) as subparagraphs (C) and (D), respectively; and

(B)

by inserting before subparagraph (C), as so redesignated, the following:

(A)

the term covered financial services agency

(i)

means a primary financial regulatory agency (as defined in section 2 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5301)); and

(ii)

includes—

(I)

the Board of Governors of the Federal Reserve System;

(II)

the Office of the Comptroller of the Currency;

(III)

the Federal Deposit Insurance Corporation;

(IV)

the National Credit Union Administration;

(V)

the Securities and Exchange Commission;

(VI)

the Federal Housing Finance Agency;

(VII)

the Bureau of Consumer Financial Protection;

(VIII)

the Commodity Futures Trading Commission;

(IX)

the Department of the Treasury;

(X)

the National Economic Council; and

(XI)

the Council of Economic Advisers;

(B)

the term covered financial services regulator means an officer or employee of a covered financial services agency who occupies—

(i)

a supervisory position classified above GS–15 of the General Schedule;

(ii)

in the case of a position not under the General Schedule, a supervisory position for which the rate of basic pay is not less than 120 percent of the minimum rate of basic pay for GS–15 of the General Schedule; or

(iii)

any other supervisory position determined to be of equal classification as a position described in clause (i) by the Director of the Office of Government Ethics;

;

(6)

in paragraph (4), as so redesignated, by striking or other company each place it appears and inserting or other company, firm, or association; and

(7)

in paragraph (7), as so redesignated—

(A)

in subparagraph (A)—

(i)

in the matter preceding clause (i), by striking other company and inserting other company, firm, or association; and

(ii)

in clause (i)(I), by striking other company and inserting other company, firm, or association; and

(B)

in subparagraph (C), by striking a company and inserting a company, firm, or association.

(b)

Technical and conforming amendments

Section 10(k) of the Federal Deposit Insurance Act (12 U.S.C. 1820(k)) is amended—

(1)

in paragraph (1), in the matter preceding subparagraph (A), by striking paragraph (6) and inserting paragraph (7);

(2)

in paragraph (5)(A), as so redesignated, by striking paragraph (1)(B) and inserting paragraphs (1)(B) and (2); and

(3)

in paragraph (7), as so redesignated—

(A)

in subparagraph (A)—

(i)

by striking subject to paragraph (1) and inserting subject to paragraph (1) or (2); and

(ii)

by striking paragraph (1)(C) and inserting paragraph (1)(C) or (2); and

(B)

in subparagraph (C)—

(i)

by striking person described in paragraph (1) and inserting person described in paragraph (1) or (2); and

(ii)

by striking the functions described in paragraph (1)(B) and inserting the functions or duties described in paragraph (1)(B) or (2).

7.

Severability

If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of the provisions of this Act and the amendments made by this Act and the application of the provision or amendment to any other person or circumstance shall not be affected.