III

103D CONGRESS

1ST SESSION S. RES. 23

To establish a procedure for the appointment of independent counsels to

investigate ethics violations in the Senate, transfer to the Committee

on Rules and Administration the remaining authority of the Select Committee on Ethics, and abolish the Select Committee on Ethics.

IN THE SENATE OF THE UNITED STATES

JANUARY 21 (legislative day, JANUARY 5), 1993

Mr. COATS submitted the following resolution; which was referred to the

Committee on Rules and Administration

RESOLUTION

To establish a procedure for the appointment of independent

counsels to investigate ethics violations in the Senate,

transfer to the Committee on Rules and Administration

the remaining authority of the Select Committee on Ethics, and abolish the Select Committee on Ethics.

1 Resolved,

2 SECTION 1. INDEPENDENT ETHICS COMMISSION.

3 (a) ESTABLISHMENT.—There is established a com4 mission to be known as the Independent Ethics Com5 mission of the Senate (referred to as the ‘‘Ethics

6 Commission’’).
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1 (b) MEMBERSHIP.—(1) The Ethics Commission shall

2 be comprised of 8 members appointed in accordance with

3 paragraph (2).

4 (2) The majority leader and the minority leader shall

5 each appoint to the Commission at the beginning of a Con6 gress—

7 (A) 1 member who is a retired judge of a Fed8 eral or State court;

9 (B) 1 member who is a former member of the

10 Senate; and

11 (C) 2 members who are private citizens and are

12 not employees of the United States.

13 (c) TERMS.—(1) A member of the Commission shall

14 serve a term of 2 years and may be reappointed for 2 addi15 tional terms.

16 (2) In the case of the death or resignation of a mem17 ber of the Commission a successor shall be appointed in

18 the same manner as the member was appointed to serve

19 until the end of the term of that member.

20 (d) REMOVAL.—A member of the Commission may

21 be removed only by resolution of the Senate.

22 (e) DUTIES.—It shall be the duty of the Commission

23 to—

24 (1) receive requests for review of an allegation

25 described in section 2(b);
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1 (2) make such informal preliminary inquiries in

2 response to such a request as the Commission deems

3 to be appropriate;

4 (3) if, as a result of those inquiries, the Com5 mission determines that a full investigation is not

6 warranted, submit a report pursuant to section 2(e);

7 and

8 (4) if, as a result of those inquiries, the Com9 mission determines that a full investigation is war10 ranted, appoint an independent counsel pursuant to

11 section 3.

12 (f) COMPENSATION OF MEMBERS.—(1) Each mem13 ber of the Commission shall be compensated at a rate

14 equal to the daily equivalent of the annual rate of basic

15 pay prescribed for level IV of the Executive Schedule

16 under section 5315 of title 5, United States Code, for each

17 day (including travel time) during which the member is

18 engaged in the performance of the duties of the Com19 mission.

20 (2) The members of the Commission shall be allowed

21 travel expenses, including per diem in lieu of subsistence,

22 at rates authorized for employees of agencies under sub23 chapter I of chapter 57 of title 5, United States Code,

24 while away from their homes or regular places of business

25 in the performance of services for the Commission.
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1 (g) STAFF.—(1) The Commission may, without re2 gard to the civil service laws and regulations, appoint, and

3 terminate an executive director and such other additional

4 personnel as are necessary to enable the Commission to

5 perform its duties.

6 (2) The Commission may fix the compensation of the

7 executive director and other personnel without regard to

8 the provisions of chapter 51 and subchapter III of chapter

9 53 of title 5, United States Code, relating to classification

10 of positions and General Schedule pay rates, except that

11 the rate of pay for the executive director and other person12 nel may not exceed the rate payable for level V of the

13 Executive Schedule under section 5316 of that title.

14 (3) Any Federal Government employee may be de15 tailed to the Commission without reimbursement, and

16 such detail shall be without interruption or loss of civil

17 service status or privilege.

18 (4) The Commission may procure temporary and

19 intermittent services under section 3109(b) of title 5,

20 United States Code, at rates for individuals that do not

21 exceed the daily equivalent of the annual rate of basic pay

22 prescribed for level V of the Executive Schedule under sec23 tion 5316 of that title.

24 (5) Except at a time when additional personnel are

25 needed to assist the Commission in its review of a particu-
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1 lar request for review under section 2, the total number

2 of staff personnel employed by or detailed to the Commis3 sion under this subsection shall not exceed 5.

4 (h) INAPPLICABILITY OF THE FEDERAL ADVISORY

5 COMMITTEE ACT.—The Federal Advisory Committee Act

6 (5 U.S.C. App.) shall not apply to the Commission.

7 SEC. 2. REVIEW OF ALLEGATIONS OF IMPROPER MIS8 CONDUCT AND VIOLATIONS OF LAW.

9 (a) DEFINITIONS.—As used in this section, the term

10 ‘‘officer or employee of the Senate’’ means—

11 (1) an elected officer of the Senate who is not

12 a member of the Senate;

13 (2) an employee of the Senate, any committee

14 or subcommittee of the Senate, or any member of

15 the Senate;

16 (3) the Legislative Counsel of the Senate or any

17 employee of his office;

18 (4) an Official Reporter of Debates of the Sen19 ate and any person employed by the Official Report20 ers of Debates of the Senate in connection with the

21 performance of their official duties;

22 (5) a member of the Capitol Police force whose

23 compensation is disbursed by the Secretary of the

24 Senate;
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1 (6) an employee of the Vice President if such

2 employee’s compensation is disbursed by the Sec3 retary of the Senate; and

4 (7) an employee of a joint committee of the

5 Congress whose compensation is disbursed by the

6 Secretary of the Senate.

7 (b) REQUEST FOR REVIEW.—Any person may

8 present to the Commission a request to review and to con9 sider the propriety of appointing an independent counsel

10 to investigate an allegation of—

11 (1) improper conduct that may reflect upon the

12 Senate;

13 (2) a violation of law;

14 (3) a violation of the Senate Code of Official

15 Conduct (rules XXXIV, XXXV, XXXVII, XXXVIII,

16 XXXIX, XL, XLI, and XLII of the Standing Rules

17 of the Senate); or

18 (4) a violation of a rule or regulation of the

19 Senate,

20 relating to the conduct of a person in the performance of

21 his or her duties as a member, officer, or employee of the

22 Senate.

23 (c) SWORN STATEMENT.—A request for review under

24 subsection (b) shall be accompanied by a sworn statement,

25 made under penalty of perjury under the laws of the Unit-
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1 ed States, of facts within the personal knowledge of the

2 person making the statement alleging improper conduct

3 or a violation described in subsection (b).

4 (d) PUBLIC DISCLOSURE.—(1) The contents of a re5 quest for review and sworn statement submitted under

6 subsections (b) and (c), all proceedings of the Commission,

7 and all facts that come to the knowledge of the Commis8 sion during its inquiries shall be made available to the

9 public except as provided in paragraph (2).

10 (2) The Commission may withhold information from

11 public disclosure if the Commission, in its sole discretion,

12 determines that the public interest in disclosure is out13 weighed by—

14 (A) harm that may be caused to the reputation

15 of a person; or

16 (B) prejudice that may be caused to the rights

17 of a person.

18 (e) DETERMINATION NOT TO APPOINT INDEPEND19 ENT COUNSEL.—(1) If, after making preliminary inquir20 ies, the Commission determines not to appoint an inde21 pendent counsel pursuant to section 3, the Commission

22 shall submit to the members of the Senate a report that—

23 (A) states findings of fact made as a result of

24 the inquiries;
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1 (B) states any conclusions that may be drawn

2 with respect to whether there is substantial credible

3 evidence that improper conduct or a violation of law

4 may have occurred; and

5 (C) states its reasons for concluding that fur6 ther investigation is not warranted.

7 (2) After submission of a report under paragraph (1),

8 no action may be taken in the Senate to impose a sanction

9 on a person who was the subject of the Commission’s in10 quiries on the basis of any conduct that was alleged in

11 the request for review and sworn statement.

12 (3) If the Commission determines that any part of

13 a sworn statement presented to it under subsection (c)

14 may have been a false statement made knowingly and will15 fully, the Commission may refer the matter to the Attor16 ney General for prosecution.

17 SEC. 3. INDEPENDENT COUNSEL.

18 (a) APPOINTMENT.—(1) If, after making preliminary

19 inquiries, the Commission determines that—

20 (A) there is substantial credible evidence that

21 improper conduct or a violation described in section

22 2(b) may have occurred; and

23 (B) in view of the seriousness of the allegation

24 and other relevant considerations, a full investiga-
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1 tion of the alleged misconduct or violation is war2 ranted,

3 the Commission shall appoint an independent counsel to

4 conduct an investigation.

5 (2)(A) The Commission shall appoint as independent

6 counsel a person who has appropriate experience and who

7 undertakes to conduct the investigation in a prompt, re8 sponsible, and cost-effective manner and to serve to the

9 extent necessary to complete the investigation.

10 (B) The Commission may not appoint as independent

11 counsel a person who holds any office of profit or trust

12 under the United States.

13 (b) COMPENSATION.—An independent counsel shall

14 receive compensation at the per diem rate equal to the

15 annual rate of basic pay payable for level IV of the Execu16 tive Schedule under section 5315 of title 5, United States

17 Code.

18 (c) SCOPE OF INVESTIGATION.—(1) At the time that

19 the Commission appoints an independent counsel, the

20 Commission shall describe with specificity in the appoint21 ment the subject matter with respect to which the inves22 tigation shall be conducted.

23 (2) The Commission may enlarge the subject matter

24 with respect to which an investigation shall be con25 ducted—
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1 (A) at the recommendation of the independent

2 counsel, based on facts that come to the knowledge

3 of the independent counsel during an investigation;

4 or

5 (B) in response to a request for review and

6 sworn statement alleging new facts that is presented

7 to the Commission by any person prior to the con8 clusion of an investigation.

9 (d) GENERAL AUTHORITIES.—(1) An independent

10 counsel may—

11 (A) make such expenditures;

12 (B) hold such hearings;

13 (C) require by subpoena or otherwise the at14 tendance of such witnesses and the production of

15 such correspondence, books, papers, documents, or

16 other records of any kind;

17 (D) administer such oaths;

18 (E) take such testimony orally or by deposition;

19 and

20 (F) employ and fix the compensation of such

21 assistant counsel, investigators, technical assistants,

22 consultants, and clerical staff as the independent

23 counsel deems advisable.

24 (2) An independent counsel may procure the tem25 porary services (not in excess of 1 year) or intermittent
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1 services of consultants by contract as independent contrac2 tors or by employment at daily rates of compensation not

3 in excess of the per diem equivalent of the highest rate

4 of compensation that may be paid to a regular employee

5 of the Committee on Rules and Administration.

6 (e) USE OF SERVICES, FACILITIES, INFORMATION,

7 AND EMPLOYEES.—(1) With the consent of the depart8 ment or agency concerned, an independent counsel may—

9 (A) use the services, facilities, and information

10 of any department or agency of the United States;

11 and

12 (B) employ on a reimbursable basis or other13 wise the services of such personnel of such a depart14 ment or agency as the independent counsel deems

15 advisable.

16 (2) With the consent of the committee, subcommittee,

17 or office concerned, an independent counsel may use the

18 services, facilities, and information of any committee, sub19 committee, or office of the Senate when the independent

20 counsel determines that to do so is necessary and appro21 priate.

22 (f) OPPORTUNITY TO BE HEARD.—An independent

23 counsel shall provide a person that is the subject of an

24 investigation notice of the investigation and a full oppor25 tunity to respond orally and in writing and submit evi-
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1 dence in response to allegations made concerning the

2 person.

3 (g) REPORT AND RECOMMENDATION.—(1) At the

4 conclusion of an investigation, an independent counsel

5 shall submit to the members of the Senate a report that—

6 (A) states findings of fact made in the inves7 tigation;

8 (B) states any conclusions that may be drawn

9 with respect to whether improper conduct or a viola10 tion of law has occurred; and

11 (C) recommends an appropriate sanction for

12 any improper conduct or violation of law that is

13 found to have occurred.

14 (2) A sanction recommended by an independent coun15 sel in a report under paragraph (1) may include—

16 (A) in the case of improper conduct or a viola17 tion of law by a Member of the Senate, censure, ex18 pulsion, or recommendation to the appropriate party

19 conference regarding the Member’s seniority or posi20 tion of responsibility; and

21 (B) in the case of improper conduct or a viola22 tion of law by an officer or employee of the Senate,

23 suspension or dismissal from employment by the

24 Senate.
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1 (3) At any time at which an independent counsel

2 finds facts that give reason to believe that a violation of

3 law has occurred, the independent counsel shall report

4 those facts to the appropriate Federal or State law en5 forcement authorities.

6 (h) SENATE ACTION.—After a report is submitted

7 under subsection (g), any member of the Senate may in8 troduce a resolution proposing that the Senate adopt the

9 report of the independent counsel with or without modi10 fication and impose an appropriate sanction.

11 (i) PAYMENT OF EXPENSES.—Expenses of the Com12 mission and compensation and expenses of an independent

13 counsel shall be paid out of the contingent fund of the

14 Senate.

15 SEC. 4. TRANSFER OF FUNCTIONS TO THE COMMITTEE ON

16 RULES AND ADMINISTRATION.

17 (a) AMENDMENT OF RULE XXV.—Paragraph 1(n)

18 of rule XXV of the Standing Rules of the Senate is

19 amended—

20 (1) by striking ‘‘and’’ at the end of clause

21 (2)(A);

22 (2) by striking the period at the end of clause

23 (2)(B) and inserting ‘‘; and’’;

24 (3) by adding at the end of clause (2) the fol25 lowing new subclauses:
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1 ‘‘(C) administer the reporting requirements of

2 title I of the Ethics in Government Act of 1978 (5

3 U.S.C. App.);

4 ‘‘(D) recommend to the Senate, by report or

5 resolution, such additional rules or regulations as

6 the committee determines to be necessary or desir7 able to ensure proper standards of conduct by mem8 bers, officers, and employees of the Senate in the

9 performance of their duties and the discharge of

10 their responsibilities;

11 ‘‘(E) issue interpretative rulings explaining and

12 clarifying the application of any law, the Code of Of13 ficial Conduct, or any rule or regulation of the Sen14 ate within its jurisdiction;

15 ‘‘(F) render an advisory opinion, in writing

16 within a reasonable time, in response to a written re17 quest by a Member or officer of the Senate or a can18 didate for nomination for election, or election to the

19 Senate, concerning the application of any law, the

20 Senate Code of Official Conduct, or any rule or reg21 ulation of the Senate within its jurisdiction to a spe22 cific factual situation pertinent to the conduct or

23 proposed conduct of the person seeking the advisory

24 opinion;
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1 ‘‘(G) in its discretion render an advisory opin2 ion in writing within a reasonable time in response

3 to a written request by any employee of the Senate

4 concerning the application of any law, the Senate

5 Code of Official Conduct, or any rule or regulation

6 of the Senate within its jurisdiction to a specific fac7 tual situation pertinent to the conduct or proposed

8 conduct of the person seeking the advisory opinion;

9 ‘‘(H) perform the functions assigned to the Se10 lect Committee on Standards and Conduct of the

11 Senate in section 6 of Public Law 93–191 (2 U.S.C.

12 502); and

13 ‘‘(I) be deemed to be an ‘employing agency’

14 under section 7342(a)(6)(B) in place of the Select

15 Committee on Ethics.’’; and

16 (4) by adding at the end the following new

17 clauses:

18 ‘‘(3)(A) Notwithstanding any provision of the Senate

19 Code of Official Conduct or any rule or regulation of the

20 Senate, a person who relies on any provision or finding

21 of an advisory opinion rendered under clause (2) (F) or

22 (G) and who acts in good faith in accordance with the

23 provisions and findings of such an advisory opinion shall

24 not, as a result of any such act, be subject to any sanction

25 by the Senate.
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1 ‘‘(B) An advisory opinion rendered under clause (2)

2 (F) or (G) may be relied on by—

3 ‘‘(i) any person involved in the specific trans4 action or activity with respect to which the advisory

5 opinion is rendered if the request for the advisory

6 opinion included a complete and accurate statement

7 of the specific factual situation; and

8 ‘‘(ii) any person involved in any specific trans9 action or activity which is indistinguishable in all its

10 material aspects from the transaction or activity

11 with respect to which the advisory opinion is ren12 dered.

13 ‘‘(C) An advisory opinion rendered under clause (2)

14 (F) or (G) shall be printed in the Congressional Record

15 with appropriate deletions to assure the privacy of the in16 dividual concerned. Before rendering an advisory opinion

17 the committee shall, to the extent practicable, provide any

18 interested party with an opportunity to transmit written

19 comments to the committee with respect to the request

20 for such advisory opinion. The advisory opinions issued by

21 the committee shall be compiled, indexed, reproduced, and

22 made available on a periodic basis.

23 ‘‘(D) A brief description of a waiver granted under

24 section 102(a)(2)(B) of title I of Ethics in Government

25 Act of 1978 (5 U.S.C. App.) or paragraph 1 of rule XXXV
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1 shall be made available upon request in the committee of2 fice with appropriate deletions to assure the privacy of the

3 person concerned.

4 ‘‘(4)(A) The responsibilities of the Committee on

5 Rules and Administration under clause (3) (C), (D), (E),

6 (F), (G), (H), and (I) and under the Senate Code of Offi7 cial Conduct shall be administered by a Subcommittee on

8 Ethics comprised of an equal number of members of the

9 major political parties.

10 ‘‘(B) A determination made or action taken by the

11 Subcommittee on Ethics may be modified by—

12 ‘‘(i) the Committee on Rules and Administra13 tion by a vote of the majority of the members of

14 each of the major political parties; or

15 ‘‘(ii) resolution of the Senate.’’.

16 (b) AMENDMENT OF SENATE CODE OF OFFICIAL

17 CONDUCT.—Rules XXXV, XXXVII, and XLI of the

18 Standing Rules of the Senate are amended—

19 (1) by striking ‘‘Select Committee on Ethics’’

20 each place it appears and inserting ‘‘Committee on

21 Rules and Administration’’; and

22 (2) by striking ‘‘Select Committee’’ each place

23 it appears and inserting ‘‘Committee on Rules and

24 Administration’’.
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1 SEC. 5. ABOLISHMENT OF SELECT COMMITTEE ON ETHICS.

2 Effective on the date that the initial 8 members of

3 the Commission take office, the following resolutions are

4 repealed:

5 (1) Senate Resolution 338, 88th Cong., 2d

6 Sess., 100 Cong. Rec. 16939 (1964).

7 (2) Senate Resolution 223, 96th Cong., 1st

8 Sess., 125 Cong. Rec. 22471 (1979).

9 (3) Senate Resolution 290, 96th Cong., 1st

10 Sess., 125 Cong. Rec. 33623 (1979).

11 (4) Senate Resolution 425, 97th Cong., 2nd

12 Sess., 128 Cong. Rec. 20820 (1982).

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