United States General Accounting Office

GAO Fact Sheet for the Ranking Minority

Member, Committee on Commerce,

House of Representatives

March 1995 CONFLICT-OFINTEREST CONTROLS

Documented Recusal

Obligations of Top

Political Appointees in

DOE and EPA

GAO/GGD-95-81FS

GAO United States

General Accounting Office

Washington, D.C. 20548

General Government Division

B-259424 

March 7, 1995

The Honorable John D. Dingell

Ranking Minority Member

Committee on Commerce

House of Representatives

Dear Mr. Dingell:

The principal purpose of this fact sheet is to identify the extent of and the

bases for the promises made by 41 Senate-confirmed political appointees

in the Department of Energy (DOE) and the Environmental Protection

Agency (EPA) to disqualify themselves from certain agency matters to

avoid conflicts between their personal interests and their governmental

responsibilities. (Such disqualifications are referred to as “recusals” in

federal conflict-of-interest regulations.) We have also identified the extent

to which these individuals took other remedial actions to address actual or

potential conflicts of interest. About half of the appointees (20) were the

last incumbents in the Senate-confirmed positions during the

administration of President Bush and are referred to in this report as Bush

appointees. The other half (21), referred to as Clinton appointees, were

serving in the administration of President Clinton at the end of 1993.

Our specific objectives were to document:

• the extent to which nominees to Senate-confirmed positions in DOE and

EPA promised to recuse themselves from official government matters

during the two administrations, including any changes between

administrations in the frequency of occurrence of documented recusal

promises or obligations;

• the bases cited in agency records for the recusal obligations of the

appointees, including a description of the recusal obligations made by

each nominee; and

• the extent to which appointees with nominee recusal obligations had also

documented taking other remedial actions to comply with criteria

governing their participation in official government matters, i.e.,

divestitures of financial interests, agency waivers of statutory participation

prohibitions, and any recusal obligations following Senate confirmation.

Background Each presidential nominee confirmed by the Senate must undergo a

conflict-of-interest analysis by both the employing agency and the Office of

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B-259424 

Government Ethics (OGE).1 These analyses involve review and approval of

a public financial disclosure report filed by the nominee and the

preparation of opinion letters by agency ethics officials certifying that

there are no unresolved conflicts of interest under applicable laws and

regulations.

To address any actual or potential conflicts that have been identified,

federal ethics law requires the nominee to enter into an ethics agreement.

An ethics agreement, according to OGE, describes the actions that a

nominee has agreed to take to resolve conflicts of interest, including

recusals when the need may arise, divestitures of financial interests,

waivers of participation restrictions, and resignations from outside

positions.

Criteria for Documenting

Recusal Obligations

Statutory criteria governing how an obligation to recuse should be

documented originated from a 1983 amendment to the Ethics in

Government Act of 1978 (Sec. 9 of P.L. 98-150, Nov. 11, 1983, codified at 5

U.S.C. App. 6, Sec. 110). These criteria require presidential appointees and

other filers of public financial disclosure reports to put in writing those

subjects to which the recusal obligation will apply and the process for

determining whether the individual must recuse himself or herself in a

specific instance.2

Under regulations and guidance implementing this statutory provision, OGE

considers a copy of the recusal statement with details on the matters

covered and method of enforcement as satisfactory evidence of the

appointee’s fulfillment of an ethics agreement containing a recusal

obligation. The law requires that these recusal statements be prepared

within the time prescribed by the ethics agreement or not later than 3

months after the date of the agreement if no date is specified. OGE has

determined that the day a presidential appointee is confirmed is the day an

ethics agreement becomes effective and considers any agreements

containing a recusal obligation to be delinquent if the appointee has not

approved a recusal statement more than 90 days after confirmation.

Although the appointee is responsible for approving and executing the

1

OGE was established by the Ethics in Government Act of 1978 and is responsible for providing overall

direction of executive branch policies related to the prevention of conflicts of interest by officers and

employees of the executive branch.

2

In contrast, recusals for the majority of federal employees who do not file public financial disclosure

reports need not be in writing. Recusals for these employees are to be accomplished simply by their

not participating in matters that could affect their financial interests. Agency ethics officials or

supervisors, however, have the discretionary authority under OGE regulations to request notifications

of a recusal in writing, or an employee may voluntarily elect to put a recusal in writing.

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B-259424 

recusal statement, such statements are typically prepared by agency ethics

officials.

As part of the recusal execution process, a “screening official” is to be

designated in the recusal statement to help identify any disqualifying

matters that may arise, and a “referral official” is to be designated to act in

place of the appointee on any particular disqualifying matters. However,

neither the appointee nor the screening or referral official is required by

law or OGE regulation to notify anyone of the appointee’s actions to recuse

from specific matters. Neither OGE nor the agencies maintain

comprehensive data on the specific agency matters that individual

appointees did not participate in because of their recusal obligations.

Legal Bases Cited for

Types of Remedial Actions

Taken to Resolve Identified

Conflicts

Table 1 gives a brief description of the key legal bases cited in agency

records for the various types of remedial actions taken by the

Senate-confirmed appointees in DOE or EPA to resolve situations identified

as an actual or potential conflict of interest. As shown in the table, several

of these legal requirements were either repealed or added during the

administrations of both Presidents Bush and Clinton.

Table 1: Key Legal Bases Cited for

Types of Remedial Actions Source Description

Executive branch laws and regulations

18 U.S.C. 208 (basic statute effective since

1962, last amended in 1989 with passage of

Ethics Reform Act of 1989)

Participation restriction: Prohibits

executive branch employees from

participating “personally and substantially”

in an official capacity in any “particular

matter” in which, to their knowledge, they

or any person whose interests are imputed

to them under this statute has a “financial

interest,” if the particular matter will have a

“direct and predictable effect” on that

interest.

Waiver authority: The appointing official

or authorized agency designee may grant

an individual waiver when a determination

is made that the “interest [in the matter] is

not so substantial as to be deemed likely

to affect the integrity of the services which

the Government may expect” from the

appointee. Where practicable, agencies

are required to consult with OGE prior to

granting the waiver.

(continued)

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B-259424 

Source Description

Executive Order 12674 (as modified by E.O.

12731), Principles of Ethical Conduct for

Government Officers and Employees

(Effective April 12, 1989)

Appearance recusal authority:

Established a set of principles of ethical

conduct for all executive branch

employees that included the general

requirement that “Employees shall

endeavor to avoid any actions creating the

appearance that they are violating the law

or the ethical standards promulgated

pursuant to this order.”

Subpart D, 5 C.F.R. 2635, Conflicting

Financial Interests (effective February 3,

1993)

Financial interest recusals: Provides for

the recusal from participation in particular

matters that will have a direct and

predictable effect on the appointee’s direct

or imputed financial interests. This subpart

is the key regulation implementing the

statutory prohibition in 18 U.S.C. 208.

Subpart E, 5 C.F.R. 2635, Impartiality in

Performing Official Duties (effective

February 3, 1993)

Appearance recusals based on personal

and business relationships: Provides for

(1) recusal from participation in particular

matters involving specific parties where

the appointee’s work is likely to have a

direct and predictable effect on the

financial interests of a member of his or her

household, or a person with whom he or

she has a “covered relationship,” and if the

appointee determines that a reasonable

person with knowledge of all the relevant

facts would question his or her impartiality

in the matter; and (2) recusal for 2 years

from participating in any particular matter

beginning on the date of receipt of an

extraordinary payment (with a value in

excess of $10,000) from a former

employee.

Subpart F, 5 C.F.R. 2635, Seeking Other

Employment (effective February 3, 1993)

Future employment recusals: Provides

for recusal from participating in particular

matters involving a prospective or other

employer when the appointee’s work

would have a direct and predictable effect

on the financial interests of a person with

whom the appointee has an arrangement

concerning future employment or is

negotiating employment.

DOE-specific laws and congressional policy

Section 606 of the Department of Energy

Organization Act (Pub. L. 95-91, Aug. 4,

1977) (Repealed by Section 3161(a) of Pub.

L. 103-160, Nov. 30, 1993.) (Suspended

from Dec. 1, 1989, through May 31, 1991,

by Section 507 of Pub. L. 101-194, Nov. 30,

1989, and Section 815(a)(4) of Pub. L.

101-510, Nov. 5, 1990.)

Recusal requirement: Required newly

appointed “supervisory employees” who

were formerly employed by an “energy

concern” from participating for a period of

1 year from certain departmental

proceedings involving the individual’s

former employer.

(continued)

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B-259424 

Source Description

Waiver authority: The Secretary of Energy

was authorized to waive this recusal

requirement when exceptional hardship

would result, or when in the national

interest. Any such waivers were to be in

writing by the Secretary.

Section 602 of the Department of Energy

Organization Act (Pub. L. 95-91, Aug. 4,

1977)

Divestiture requirement: Prohibits

“supervisory employees” of DOE from

knowingly receiving compensation from,

holding any official relation with, owning

stocks or bonds of, or having any

pecuniary interest in any “energy concern.”

Waiver authority: The Secretary of Energy

is authorized to waive this divestiture

requirement when exceptional hardship

would result, or when the interest is a

pension, insurance, or other vested

interest. Certain information regarding

such waivers must be published in the

Federal Register.

United States Senate Committee on Energy

and Natural Resources Recusal Policy

(effective May 6, 1993)

Recusal requirement: This policy was

adopted by the Committee to “make

applications of recusals consistent” for

presidential nominees to positions

requiring the Committee’s confirmation. As

a condition of appointment, each nominee

is required to recuse himself or herself in

writing from participation in certain matters

involving former employers or service

relationships for either the duration of their

service in office, or a period of 1 year.

EPA-specific laws

Section 318 of the Clean Air Act (42 U.S.C.

7618(c) and (d)) (Repealed by Section

108(q) of Pub. L. 101-549, Nov. 15, 1990.)

Divestiture requirement: EPA officials

occupying certain positions of a regulatory

or policymaking nature were prohibited

from (1) having any official or contractual

relationship with certain specified groups

related to air quality or (2) having financial

interests determined by the Administrator

of EPA to be inconsistent with EPA

employment.

Data Limitations The recusal obligations we identify in this fact sheet may not account for

every recusal obligation entered into by the appointees whose records we

examined. OGE regulations do not require appointees to notify agency

ethics officials of recusal obligations made following their Senate

confirmation, nor are agency ethics officials required to maintain data on

these recusals. The ethics agreement tracking system maintained by OGE is

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B-259424 

limited to agreements made by the appointee during the nomination and

confirmation process.

While the data presented in this fact sheet may not represent the entire

scope of recusal obligations of the appointees whose records we

examined, the data reflect all the written obligations of the appointees

made that were recorded in DOE, EPA, and/or OGE records at the time of our

review. Unlike the data in OGE’s tracking system, our data also include as

separate recusal obligations any temporary recusal obligations pending

divestiture or waiver of financial interests. We established a cutoff date of

December 31, 1993, for recording the recusal obligations made by the

Clinton appointees whose records we examined.

Also, in interpreting data in this fact sheet on the extent of nominee

recusal obligations, it is important to recognize that the key objective

being sought through the recusal obligations is the appointee’s

nonparticipation in any particular disqualifying matter. In this regard, a

recusal statement is meant to serve primarily as a tool for assisting in the

implementation of ethics agreements during the appointee’s term in office

and also to serve as an announcement of the appointee’s intent to not

participate if disqualifying matters arise. However, the nonexistence of a

written recusal statement does not affect the legal obligation of appointees

to not participate if other matters arise in which they have a conflict of

interest. This legal obligation begins at the time of federal appointment

and extends until termination of appointment, or until the appointee no

longer has the conflict of interest or is granted a waiver.

Results We reviewed the financial disclosure records of 54 presidential appointees

in DOE and EPA for evidence of any promises made by them to disqualify

themselves from any governmental matters due to an actual or potential

conflict of interest. Forty-one appointees, or 76 percent, made

documented recusal obligations as a result of the nomination and

confirmation process. More specific summary data on the recusal

obligations of the 41 appointees are presented in table 2. Among other

things, the data show that EPA and DOE had about the same percentage of

appointees with nominee recusal obligations (74 percent in EPA, or 17 of 23

appointees, and 77 percent, or 24 of 31 appointees in DOE).

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Table 2: Summary of Nominee Recusal

Obligations of Top Political

Appointees in DOE and EPA During

the Bush and Clinton Administrations

Number of Bush

administration

appointees (Dec. 1992)

Number of Clinton

administration

appointees (Dec. 1993)

DOE EPA DOE EPA Totals

Number of

presidential

appointee positions

requiring Senate

confirmation 21 15 20 13 69

Number of positions

vacant or nominee

data not available 4 2 6 3 15

Number of filled

positions with data

available on

nominee ethics

agreements 17 13 14 10 54

Number of above

appointees with

nominee recusal

obligations (as of

12/31/93)

12 8 12 9 41

Source: GAO analysis of agency and OGE financial disclosure records.

Overall, we found a total of 124 nominee recusal obligations documented

in the financial disclosure records maintained by the agencies on the 41

Senate-confirmed appointees in DOE and EPA included in our review. The

single most frequently cited basis for these obligations was the criminal

conflict of interest statute, 18 U.S.C. 208, or its key implementing

regulation, which accounted for 46 (37 percent) of the 124 obligations.

Appearance-based obligations accounted for the remaining nominee

recusal obligations. Agency ethics officials cited different reasons for the

appearance-based obligations. In order of frequency of occurrence, we

have categorized them as follows:

• General agency and appointee discretion (30 nominee recusal obligations):

This category consists of (1) 18 recusal obligations that cited general

appearance concerns before OGE’s standard-of-conduct regulation became

effective in February 1993, and (2) 12 recusal obligations based on EPA’s

practice of having certain nominees make recusal obligations for the

duration of their tenure. The financial disclosure records we reviewed

generally did not indicate whether these recusal obligations were initiated

by the appointee or agency ethics officials.

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B-259424 

• Mandatory recusal under DOE-specific restrictions (29 nominee recusal

obligations): This category consists of (1) 18 recusal obligations made to

comply with a recusal policy established by the Senate Energy and Natural

Resources Committee in May 1993, and (2) 11 recusal obligations required

of DOE appointees by a DOE-specific statute that was repealed in

November 1993.

• Agency and appointee discretion under the appearance standard of OGE’s

regulation (5 C.F.R. 2635.502) (17 nominee recusal obligations): Under this

standard, every executive branch employee is obligated to consider and

address the appearance implications of participating in agency matters

with former employers. This standard provides a maximum 1-year period

from the last day of former employment in which the employee is required

to consider recusal from a former employer. Using the process established

in OGE’s regulation, the employee and agency ethics official have the

discretion to (1) decide whether the circumstances would raise questions

of impartiality significant enough to warrant recusal and (2) establish the

period of time the recusal obligation is to remain in effect.

• Mandatory recusal under the extraordinary payment standard of OGE’s

regulation (5 C.F.R 2635.503) (two nominee recusals of DOE appointees):

Under this standard any employee who receives an extraordinary payment

greater than $10,000 from a former employer is required to recuse from

agency matters involving the entity for a period of 2 years from the date

the payment is received, unless granted a waiver.

Appendixes I through IV categorize the individual nominee recusal

obligations we found documented in the financial disclosure records of

each of the 41 appointees according to the bases cited by agency ethics

officials for these obligations. In addition, these appendixes identify other

restrictions governing participation in government matters that were

determined to be applicable to each appointee, including divestitures,

waivers of participation restrictions, and any recusals made following

Senate confirmation that we observed in the records maintained by the

agencies and OGE.

As shown in figure 1, the proportion of nominee recusal obligations

addressing financial interests versus appearance concerns associated with

a nominee’s personal or business relationships changed between the Bush

and Clinton appointees. Although the number of recusal obligations

addressing conflicts involving continuing financial interests in each agency

remained about the same, the number of appearance-based obligations by

Clinton appointees was more than double those obligations of the Bush

Page 8 GAO/GGD-95-81FS Conflict of Interest
B-259424 

appointees in each of the two agencies (2.6 times in DOE, and 2.2 times in

EPA).

Figure 1: General Types of Conflicts of

Interest Addressed by Nominee

Recusal Obligations of 41 Presidential

Appointees in DOE and EPA

(1989-1993)

Number of nominee recusal obligations

0

5

10

15

20

25

30

35

n = 26

12 Bush

appointees

n = 45 12 Clinton

appointees

n = 20

8 Bush appointees

n = 33

9 Clinton

appointees

15

11

16

29

8

12

7

26

Department of Energy Environmental Protection

Agency

Financial interests

Appearance concerns

Source: GAO analysis of DOE, EPA, and OGE financial disclosure records.

DOE Appointees Overall, 24 nominees to DOE Senate-confirmed positions during the

administrations of Presidents Bush and Clinton documented a total of 78

recusal obligations to address an actual or potential conflict of interest

under applicable restrictions to their participation in governmental

matters. A total of 268 organizational entities were cited as the subjects of

the 78 recusal obligations. Table 3 provides specific information on the

frequency in which DOE records cited the key legal bases for each type of

nominee recusal obligation and the related number of involved entities.

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B-259424 

Table 3: Documented Nominee Recusal Obligations of 24 Nominees to Senate-Confirmed Positions in DOE

Bush appointees Clinton appointees

Bases for type of remedial action

Number of

appointees

Number of

nominee

obligations

Number of

entities

involved

Number of

appointees

Number of

nominee

obligations

Number of

entities

involved

To address 18 U.S.C. 208 financial

interests 10 15 42 10 16 52

Waiver of 18 U.S.C. 208 2 3 3 2 3 3

To address appearance concerns

before uniform standards-of-conduct

regulation 4 6 32 NA NA NA

To address appearance concerns

under uniform standards-of-conduct

regulation (5 C.F.R. 2635.505 or

2635.503) NA NA NA 4 5 6

To address concerns under recusal

policy of the Senate Energy and

Natural Resources Committee (DOE

specific) NA NA NA 9 18 58

To comply with section 606 of the

DOE Organization Act (appearance

concerns related to prior employers)

(DOE specific) 4 5 10 3 6 61

Waiver of section 606, DOE Act 1 1 1 0 0 0

Total recusal-related 12 30 88 12 48 180

Note: The number of nominee recusal obligations of each of these 24 appointees ranged from 1

to 7 obligations.

Source: GAO analysis of OGE and DOE financial disclosure records.

There were 29 total recusal obligations based on DOE-specific

requirements. Of these, most (18) resulted from DOE’s implementation of a

recusal policy established by the Senate Energy and Natural Resources

Committee in May 1993. These obligations dealt solely with concerns

about appearance of conflicts of interest related to the appointee’s prior

employment and service relationships. Such appearance-type recusal

obligations had also been addressed by section 606 of the DOE Act until it

was repealed on November 30, 1993. In fact, section 606 accounted for the

remaining six DOE-specific recusal obligations by the Clinton appointees

and all five of the DOE-specific recusal obligations by Bush appointees.

It should be noted that the Senate Committee recusal policy is more

restrictive in dealing with appearance concerns than either OGE’s current

uniform standards of conduct or the repealed DOE Act provisions. First, the

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B-259424 

Senate Committee policy requires recusal from certain matters related to

former employers without providing for the possibility of a waiver. Both

the uniform standards of conduct and the DOE Act provided specific waiver

authority. Second, the Senate Committee policy requires recusals

involving specific matters in which the nominee participated personally

and substantially to last for the duration of his or her service in DOE.

Similar recusals based on either the uniform standards of conduct or the

DOE Act are or were for a 1-year period.

As summarized in table 4, divestitures were used as a conflict-of-interest

remedy by 14 of the 24 appointees. Because each of the appointees had

also entered into at least one recusal obligation, the divestiture-related

actions shown in table 4 represent remedial actions in addition to the

recusal remedies. Of these divestiture-related actions, 11 were taken to

comply with the divestiture requirement of section 602 of the DOE

Organization Act. This requirement prohibits certain DOE employees,

including Senate-confirmed presidential appointees, from owning stock or

having interests in an “energy concern,” whether or not the situation

presents an actual or apparent conflict of interest with the employee’s

duties. In an April 1994 report to Congress,3 DOE concluded that this

requirement “...is obsolete, overly broad, and unnecessary, and should be

repealed.” The report, among other things, stated that this divestiture

requirement was an absolute proscription that prohibited every covered

DOE employee from holding any interests in energy concerns and

regardless of whether or not the ownership of an energy concern interest

would create either an actual or an apparent conflict of interest with

respect to the employee’s duties.

3

Report to the Congress As Required by Section 3161 of the National Defense Authorization Act for

Fiscal Year 1994 (DOE’s Office of General Counsel, April 1994)

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Table 4: Documented Divestiture-Related Obligations of 24 Nominees to Senate-Confirmed Positions in DOE

Bush appointees Clinton appointees

Bases for type of remedial

action

Number of

appointees

Number of

nominee

obligations

Number of

divested or

waived

interests

Number of

appointees

Number of

nominee

obligations

Number of

divested or

waived

interests

To comply with 18 U.S.C.

208 2 2 2 1 2 14

To address appearance

concerns 1 1 1 0 0 0

To comply with section 602

of the DOE Organization

Act (DOE specific) 5 6 21 4 5 21

Waiver of section 602, DOE

Act 2 2 2 4 4 4

A requirement of Senate

confirmation 1 1 1 0 0 0

Total divestiture-related 8 12 27 6 11 39

Note: The number of nominee divestitures made by each of these 24 appointees ranged from 1 to

25 divestitures.

Source: GAO analysis of OGE and DOE financial disclosure records.

Specific information on the remedial obligations of each DOE appointee is

presented in appendixes I and II.

EPA Appointees Overall, 17 nominees to EPA Senate-confirmed positions during the

administrations of Presidents Bush and Clinton documented a total of 61

nominee recusal obligations to address an actual or potential conflict of

interest under applicable restrictions to their participation in

governmental matters. A total of 252 organizational entities were cited as

the subjects of the 61 recusal obligations. Table 5 provides specific

information on the frequency in which EPA records cited the key legal

bases for each type of nominee recusal obligation and the related number

of involved entities. Unlike DOE, EPA has no recusal obligations based on

agency-specific statutes or Senate confirmation committee requirements.

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Table 5: Documented Nominee Recusal Obligations of 17 Nominees to Senate-Confirmed Positions in EPA

Bush appointees Clinton appointees

Bases for type of remedial

action

Number of

appointees

Number of

nominee

obligations

Number of

entities

involved

Number of

appointees

Number of

nominee

obligations

Number of

entities

involved

To address 18 U.S.C. 208

financial interests 6 8 7 5 7 56

Waiver of 18 U.S.C. 208 1 2 2 6 6 50

To address appearance

concerns before uniform

standards-of-conduct

regulation 7 12 45 NA NA NA

To address appearance

concerns under uniform

standards-of-conduct

regulation on covered

relationships (5 C.F.R.

2635.502) NA NA NA 8 14 46

EPA practice in addressing

“other” appearance

concerns under uniform

standards-of-conduct

regulation (5 C.F.R.

2635.502(a)(2)) NA NA NA 9 12 46

Total recusal-related 8 22 54 9 39 198

Note: The number of nominee recusal obligations made by each of these 17 appointees ranged

from 2 to 6 obligations.

Source: GAO analysis of OGE and EPA financial disclosure records.

There were 26 recusal obligations addressing appearance concerns made

by the Clinton appointees and 12 appearance-type recusal obligations

made by 7 Bush appointees before OGE’s uniform standards of conduct

became effective in February 1993. Of the 26 obligations by Clinton

appointees, 14 addressed appearance concerns related to covered

relationships under the uniform standards-of-conduct regulation. The

remaining 12 recusal obligations involved former employment

relationships of nine appointees, all but three of whom were attorneys.

As a matter of practice, EPA generally treated attorneys restrictively. EPA

nominees who were attorneys coming from public interest groups, state

governments, and law firms were required to recuse themselves for the

duration of their EPA service from matters in which they personally and

substantially participated as employees with these groups, states, or firms.

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Such “permanent” recusal obligations are not specifically required by OGE’s

appearance standard. As previously noted, every executive branch

employee is obligated to consider and address the appearance

implications of participating in agency matters with former employers for

a maximum 1-year period from the last day of former employment. Using

the process established in OGE’s regulation, the employee and agency

ethics official have had the discretion to (1) decide whether the

circumstances would raise questions of impartiality significant enough to

warrant recusal and (2) establish the period of time for which the recusal

obligation is to remain in effect.

In providing us their views on the results of our analysis, EPA ethics

officials pointed out that their practice of recusing attorneys from

participation in “specific party” matters in which they participated before

government service was based not only on OGE’s regulation but also on the

rules of the American Bar Association (ABA). They said that the ABA

model rules of professional conduct provide that, unless specifically

authorized, lawyers serving as public officers or employees shall not

participate in a matter in which they participated personally and

substantially while in private practice.

As shown in table 6, the EPA Bush appointees in our review made few

divestiture obligations. A statutory divestiture requirement that was

applicable to three Bush appointees included in our review was repealed

in November 1990. This provision, Section 318 of the Clean Air Act, had

prohibited EPA officials occupying certain positions of a regulatory or

policymaking nature from having any official or contractual relationship

with certain specified groups related to air quality. The provision barred

EPA employees from participation in professional societies, which EPA

regarded as an excessive restriction. In recommending repeal of Section

318, EPA’s Office of General Counsel said it largely duplicated the criminal

conflict of interest statute, 18 U.S.C. 208, and EPA’s regulatory

“appearance” standards.

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Table 6: Documented Divestiture-Related Obligations of 17 Nominees to Senate-Confirmed Positions in EPA

Bush appointees Clinton appointees

Bases for type of remedial

action

Number of

appointees

Number of

nominee

obligations

Number of

divested

interests

Number of

appointees

Number of

nominee

obligations

Number of

divested

interests

To comply with 18 U.S.C.

208 1 1 5 7 10 30

To comply with section 318

of the Clean Air Act

(repealed in Nov. 1990) 3 3 4 NA NA NA

Total divestiture-related 3 4 9 7 10 30

Note: The number of nominee divestitures made by each of these 17 appointees ranged from 1 to

17 obligations.

Source: GAO analysis of OGE and DOE financial disclosure records.

Specific information on the remedial obligations of each EPA appointee is

presented in appendixes III and IV.

Scope and

Methodology

Information in this fact sheet was drawn primarily from the financial

disclosure records of the appointees maintained by OGE and the designated

agency ethics officials at DOE and EPA. We supplemented the agency

records with the views of agency ethics officials in instances where the

basis for a specific recusal obligation was unclear from the records.

Appendix V provides a description of the purpose and scope of each type

of record we examined for each appointee included in our review,

including a description of related regulatory criteria.

To determine the extent to which nominees in the two agencies made

obligations to recuse themselves from official government matters, we

took the following steps:

• We generally defined the population as those appointees who were serving

in Senate-confirmed positions at the end of the administration of President

Bush in December 1992 and the end of the first year of the administration

of President Clinton in December 1993. To this group, we added eight

appointees serving in the Bush administration who were the last

incumbents serving in the positions because their positions were vacant in

December 1992 (four appointees in DOE and four in EPA). We included

these appointees in order to get the widest possible representation of

Senate-confirmed positions in both agencies for which nominee data was

Page 15 GAO/GGD-95-81FS Conflict of Interest
B-259424 

available. Nominee data were not available for the appointees filling the

positions of Inspector General at DOE and EPA or for two Bush appointees

filling other positions (the Director of the Office of Alcohol Fuels in DOE

and the Assistant Administrator for External Affairs in EPA). Because these

four appointees had been in office for more than 6 years, their nominee or

new entrant records were routinely disposed of in accordance with OGE

regulations.

• We reviewed the financial disclosure records of each appointee in the

population for evidence of any recusal obligation made related to the

appointee’s nomination and confirmation. We completed a data collection

instrument to uniformly describe from the records certain characteristics

of each appointee’s recusal or other participation obligations. Among

other things, we gathered data on the nature of the continuing financial

interests or personal and business relationships that were viewed as an

actual or potential conflict of interest requiring a remedial action.

• We then used the data obtained to determine how often nominee recusal

obligations were documented by appointees in the two administrations.

For purposes of our analysis, we considered any recusal obligation that

agency records or ethics officials had identified a distinct basis for as a

single obligation regardless of how many entities, matters, or subjects may

have been covered by the recusal obligation. The appendixes present

specifically what we considered a single recusal obligation for each

appointee we examined.

To determine the bases cited for the recusal obligations of the appointees,

we included in our data collection instrument a description of the recusal

obligations made by each nominee and the basis cited in the records

reviewed. As previously noted, we supplemented the agency records with

the views of agency ethics officials in instances where records did not

clearly establish the basis. Thus, the bases cited represent the views of DOE

and EPA ethics officials.

To determine the extent to which appointees with nominee recusal

obligations had also taken other remedial actions to comply with criteria

governing their participation in official government matters, we included

in our data collection instrument an identification of divestitures of

financial interests, agency waivers of statutory participation prohibitions,

and instances where appointees created recusal obligations after the

Senate confirmation process. The recusal obligations occurring after

Senate confirmation are presented in the appendixes under the “other”

remedial action category. We did not include remedial actions involving

resignations from outside employment that are governed by different

Page 16 GAO/GGD-95-81FS Conflict of Interest
B-259424 

criteria. According to OGE, Senate-confirmed political appointee have

traditionally been forbidden by the White House from continuing any

outside positions with for-profit entities, and the White House has allowed

positions with nonprofit entities to continue only after a case-by-case

review.

We did our work at the DOE, EPA, and OGE headquarters in Washington,

D.C., from June 1993 to July 1994 in accordance with generally accepted

government auditing standards.

Agency Views We discussed information in this fact sheet with the designated agency

ethics officials in DOE and EPA in January 1995 and with OGE officials,

including OGE’s General Counsel and Associate Director of the Office of

Program Assistance and Review, in October 1994. They provided

suggestions for improving the clarity and accuracy of our analyses, which

we incorporated where appropriate.

OGE officials expressed the view that the practice of Senate-confirmed

political appointees documenting their recusal obligations is a legitimate

tool for the prevention of conflicts of interest. In particular, OGE views

written recusal statements as helping to make appointees more sensitive

to circumstances that would require actual recusal and considers such

statements to be an important mechanism for protecting the appointee

from charges of conflict of interest.

Both DOE and OGE officials offered suggestions to improve our summary

accounting of the recusal and divestiture obligations of the presidential

appointees. In response to their comments, we revised the summary tables

in the letter and appendixes to provide specific information on the number

of nongovernmental entities involved in the recusal and divestiture

obligations. As a result, our summary tables now account for three

characteristics of the recusal obligations. For example, as shown in table

4, the documented nominee recusal obligations and other remedial actions

of 12 Bush appointees in DOE are accounted for by (1) the number of

appointees for whom agency records cited a specific basis for recusal

from any disqualifying matters, (2) the number of different times that

specific basis was cited for these appointees in one or more written

recusal statements, and (3) the total number of nongovernmental entities

whose financial interests were the subject of each specific recusal basis.

Page 17 GAO/GGD-95-81FS Conflict of Interest
B-259424 

As arranged with your office, unless you publicly announce its contents

earlier, we plan no further distribution of this fact sheet until 30 days from

its issue date. At that time, we will send copies to the Chairman and

Ranking Minority Member of the Senate Committees who were principally

involved in confirming the DOE and EPA appointees included in our review.

In addition, we will send copies to the Secretary of Energy, Administrator

of EPA, Director of OGE, and other interested parties. We will also make

copies available to others on request.

The major contributors to this fact sheet are listed in appendix VI. Please

contact me on (202) 512-5074 if you or your staff have any questions.

Sincerely yours,

Nancy Kingsbury

Director

Federal Human Resource Management

 Issues

Page 18 GAO/GGD-95-81FS Conflict of Interest
Page 19 GAO/GGD-95-81FS Conflict of Interest
Contents

Letter 1

Appendix I 

Documented Recusal

Obligations of Top

Bush Administration

DOE Officials

24

Outcome of DOE’s Application of Participation Restrictions 26

Case History Summaries 27

Secretary of Energy 28

Deputy Secretary of Energy 29

Administrator, Energy Information Administration 30

Administrator, Economic Regulatory Administration (ERA) 31

Assistant Secretary for Congressional Affairs 32

Assistant Secretary, Conservation and Renewable Energy 33

Assistant Secretary, Defense Programs 34

Assistant Secretary for Environment, Safety and Health 35

Assistant Secretary, Environmental Restoration and Waste

Management

36

Assistant Secretary for International Affairs and Energy

Emergencies

37

Director, Office of Civilian Waste Management 38

Director, Office of Energy Research 39

Appendix II 

Documented Recusal

Obligations of Top

Clinton

Administration DOE

Officials

40

Outcome of DOE’s Application of Participation Restrictions 41

Case History Summaries 42

Secretary of Energy 43

Deputy Secretary of Energy 44

Adminsitrator, Energy Information Administration 45

Assistant Secretary, Congressional, Intergovernmental, and

International Affairs

46

Assistant Secretary, Energy Efficiency and Renewable Energy 47

Assistant Secretary, Defense Programs 48

Assistant Secretary, Domestic and International Energy Policy 49

Assistant Secretary, Environmental Restoration and Waste

Management

50

Director, Office of Civilian Radioactive Waste Management 51

Director, Office of Energy Research 52

Director, Office of Minority Economic Impact 53

General Counsel 54

Page 20 GAO/GGD-95-81FS Conflict of Interest
Contents

Appendix III 

Documented Recusal

Obligations of Top

Bush Administration

EPA Officials

56

Outcome of EPA’s Application of Participation Restrictions 58

Case History Summaries 59

Administrator, EPA 59

Deputy Administrator, EPA 60

Assistant Administrator, Enforcement 61

Assistant Administrator for International Activities 62

Assistant Administrator for Policy, Planning, and Evaluation 63

Assistant Administrator for Water 64

Assistant Administrator for Administration and Resources

Management

65

General Counsel 66

Appendix IV 

Documented Recusal

Obligations of Top

Clinton

Administration EPA

Officials

67

Outcome of EPA’s Application of Participation Restrictions 68

Case History Summaries 69

Administrator, EPA 70

Deputy Administrator, EPA 71

Assistant Administration for Air and Radiation 72

Assistant Administrator for Prevention, Pesticides and Toxic

Substances

73

Assistant Administrator for Policy, Planning and Evaluation 74

Assistant Administrator for Office of Solid Waste and Emergency

Response

75

Assistant Administrator for Water 76

General Counsel 77

Assistant Administrator for Administration and Resources

Management / Chief Financial Officer

78

Appendix V 

Types of General

Financial Disclosure

Records Examined

and Related

Regulatory Criteria

79

Page 21 GAO/GGD-95-81FS Conflict of Interest
Contents

Appendix VI 

Major Contributors to

This Fact Sheet

82

Tables Table 1: Key Legal Bases Cited for Types of Remedial Actions 3

Table 2: Summary of Nominee Recusal Obligations of Top

Political Appointees in DOE and EPA During the Bush and

Clinton Administrations

7

Table 3: Documented Nominee Recusal Obligations of 24

Nominees to Senate-Confirmed Positions in DOE

10

Table 4: Documented Divestiture-Related Obligations of 24

Nominees to Senate-Confirmed Positions in DOE

12

Table 5: Documented Nominee Recusal Obligations of 17

Nominees to Senate-Confirmed Positions in EPA

13

Table 6: Documented Divestiture-Related Obligations of 17

Nominees to Senate-Confirmed Positions in EPA

15

Table I.1: Top DOE Officials in the Bush Administration With

Nominee Recusal Statements

25

Table I.2: Outcome of DOE’s Application of Participation

Restrictions to 12 Top Political Appointees Serving in the Bush

Administration

27

Table II.1: Top DOE Officials in the Clinton Administration With

Nominee Recusal Statements as of December 31, 1993

40

Table II.2: Outcome of DOE’s Application of Participation

Restrictions to 12 Top Political Appointees Serving in the Clinton

Administration

42

Table III.1: Top EPA Officials in the Bush Administration With

Nominee Recusal Statements

57

Table III.2: Outcome of EPA’s Application of Participation

Restrictions to Eight Top Political Appointees Serving in the

Bush Administration

58

Table IV.1: Top EPA Officials in the Clinton Administration With

Nominee Recusal Statements as of December 31, 1993

68

Table IV.2: Outcome of EPA’s Application of Participation

Restrictions to Nine Top Political Appointees Serving in the

Clinton Administration at the End of 1993

69

Figure

Page 22 GAO/GGD-95-81FS Conflict of Interest
Contents

Figure 1: General Types of Conflicts of Interest Addressed by

Nominee Recusal Obligations of 41 Presidential Appointees in

DOE and EPA (1989-1993)

9

Abbreviations

DAEO Designated agency ethics official

DOE Department of Energy

EPA Environmental Protection Agency

OGE Office of Government Ethics

Page 23 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

The Department of Energy (DOE) had 21 positions that required Senate

confirmation of presidential appointments. Table I.1 lists these DOE

positions, the names of the incumbents during President Bush’s

administration whose financial disclosure records we reviewed at the

Office of Government Ethics (OGE) in August 1993 and at DOE in

October 1993, and the 12 appointees whom we found had executed recusal

statements related to their nomination to the Senate-confirmed positions.

All but four of the appointees listed in table I.1 were serving at the end of

the Bush administration in 1992.

Page 24 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Table I.1: Top DOE Officials in the

Bush Administration With Nominee

Recusal Statements Senate-confirmed position

Incumbent records

reviewed

Nominee recusal

statement

Secretary James D. Watkins Yes-1989

Deputy Secretary W. Henson Moore Yes-1989

Under Secretary John C. Tuck None required

Administrator-Energy

Information Administration

Calvin A. Kent Yes-1990

Administrator-Economic

Regulatory Administrationa

Chandler L. van Orman Yes-1987

Asst. Sec.-Congressional and

Intergovernmental Affairs

Gregg Ward Yes-1991

Asst. Sec.-Conservation and

Renewable Energy

J. Michael Davis Yes-1989

Asst. Sec.-Defense Programs Richard A. Claytor Yes-1990

and 1991

Asst. Sec.-Environment,

Safety and Health

Paul L. Zeimer Yes-1990

Asst. Sec.-Environmental

Restoration and Waste

Management

Leo P. Duffy Yes-1991

Asst. Sec.-Fossil Energya Robert H. Gentile None required

Asst. Sec.-International

Affairs and Energy

Emergenciesa

John J. Easton Jr. Yes-1989

Asst. Sec.-Nuclear Energy William H. Young None requiredb

Chief Financial Officer Vacant -

Director-Office of Alcohol

Fuelsa

David M. Lindahl Nominee data not available

Director-Office of Civilian

Radioactive Waste

Management

John W. Bartlett Yes-1990

Director-Office of Energy

Research

William Happer Yes-1991

Director-Office of Minority

Economic Impact

Melva G. Wray None required

General Counsel John J. Easton, Jr. None required

Inspector General John C. Layton Nominee data not available

Deputy Inspector General Vacant

aBecause this position was vacant on December 31, 1992, we included the last incumbent of the

position in this analysis.

bWhile OGE viewed a proposed recusal as an ethics agreement for this nominee, the recusal was

not subsequently executed because an agency-specific statute that was the basis for the recusal

had been suspended. Thus, the need to execute the recusal was no longer necessary, according

to a DOE letter to OGE dated April 30, 1990.

Source: GAO analysis of financial disclosure records on file at OGE and DOE.

Page 25 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Outcome of DOE’s

Application of

Participation

Restrictions

As shown in table I.1, 12 of the 17 Bush appointees whose financial

disclosure records we reviewed had made obligations to recuse

themselves from certain official DOE matters as part of their nomination to

the Senate-confirmed position. Among other things:

• The 12 appointees with recusal obligations represent 71 percent of the 17

incumbents in Senate-confirmed positions for whom financial disclosure

data was available on their nominations to the positions at OGE during our

work. All but 2 of the 12 appointees were serving at the end of the Bush

administration in 1992.

• There were 10 types of recusal or divestiture obligations that were

applicable to these 12 DOE Bush administration appointees. In total, there

were 30 obligations related to recusals and 12 to divestitures. The 30

recusal-related obligations involved a total of 88 organizational entities,

and the 12 divestiture-related obligations involved a total of 27

organizational entities.

• The three most frequently occurring types of remedial obligations were

recusals to comply with 18 U.S.C. 208, recusals to address appearance

concerns, and divestitures to comply with legislation applicable to only

DOE employees (section 602 of the DOE Organization Act).

Table I.2 identifies the frequency of occurrence of each of the 10 types of

remedial obligations.

Page 26 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Table I.2: Outcome of DOE’s

Application of Participation

Restrictions to 12 Top Political

Appointees Serving in the Bush

Administration

Basis for type of remedial action

Number of

applicable

appointees

Number of

nominee

obligations

Number of

entities

involved

Recusal-related: 12 30 88

To comply with 18 U.S.C. 208 10 15 42

To address appearance concerns

(no specific criteria cited) 4 6 32

To comply with section 606 of the

DOE Organization Act 4 5 10

Waiver of 18 U.S.C. 208 2 3 3

Waiver of section 606 of the DOE

Act 1 1 1

Divestiture-related: 8 12 27

To comply with section 602 of the

DOE Organization Act 5 6 21

To comply with 18 U.S.C. 208 2 2 2

Waiver of section 602 of the DOE

Act 2 2 2

A requirement of Senate

confirmation 1 1 1

To address appearance concerns 1 1 1

Total 12 42 115

Source: GAO analysis of financial disclosure records on file at OGE and DOE.

Case History

Summaries

For the 12 Bush appointees in DOE with nominee recusal agreements on

file with OGE, the following case histories summarize information from the

financial disclosure records maintained at either OGE or DOE by the

designated agency ethics official (DAEO). We selected information that

would provide an overview of the outcome of DOE’s entire application of

restrictions governing participation in official government matters by Bush

appointees. Beyond individual recusals, we identified when DOE used

divestitures or waivers to resolve a conflict situation or concern. We

summarized the underlying conflict situation or concern that the specific

remedial action addressed. We generally categorized the conflict situation

or concern as involving a continuing financial interest or a

personal/business relationship. While many of the appointees had more

than one paid or uncompensated position before Senate confirmation, we

selected the previous employer that appeared to be the principal source of

the appointee’s recusal obligations. (App. V provides further details on the

Page 27 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

general types of DOE records we examined for each appointee and a

description of related regulatory criteria.)

Secretary of Energy Appointee: James D. Watkins

Previous employer: Members of Boards of several private corporations

or organizations (federal service included the U.S. Navy)

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Mutual stock fund holdings

(energy concern)

Divest

Personal/business

relationship

Former energy concern

employer (Board of

Directors at Philadelphia

Electric)

Recuse

(duration)a

Former employer (Board of

Advisors at Ford Aerospace)

Recuse

(duration)b

Other

Negotiating for employment

with seven entities

Recuse

aThe appointee executed the recusal for the “duration of my employment with the Department;”

however, the DAEO ethics advice stated the DOE act required recusal “for a period of one year

from the termination of his employment with Philadelphia Electric Company.”

bThe appointee made this recusal obligation on his own initiative according to a DOE ethics

official (included in the executed recusal statement, but not addressed in DAEO ethics advice to

nominee).

Page 28 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Deputy Secretary of

Energy

Appointee: W. Henson Moore

Previous employer: Law firm of Sutherland, Asbill & Brennan

Divestiture basis Recusal basis

Conflict

situation/concern

DOE Act

Sec.602

Waiver of

DOE

Act-602

18

U.S.C.

208

Appearance

concern

18

U.S.C.

208

Waiver, 18

U.S.C. 208

DOE

Act-606

Waiver of

DOE

Act-606

Appearance

concern

Continuing financial

interest

Spouse’s direct ownership

of Exxon common stock

Divest

Spouse’s interest in a trust

holding Exxon common

stock

Recuse

(unless

waived)

Waivera

(8/4/89)

A particular matter that

arose with Exxon

Waivera

(12/12/91)

Personal/business

relationship

Any matter directly

relating to award of

Strategic Petroleum

Reserve contract in which

he gave legal services

Recuseb

Any particular matter

involving former law firm

as a specific party

1-Year

recuse

Any particular matter

involving any of 26 former

legal clients

1-Year

recuse

aFirst waiver covered oil and gas industry generally; second waiver covered Exxon specifically.

bAlthough the basis for this recusal was a general appearance concern according to DOE ethics

officials, DOE records also cited a rule of professional conduct of the Louisiana State Bar as a

factor in the decision to recuse. DOE said, however, that it has no responsibility for interpreting

such state bar rules for private attorneys entering federal service.

Page 29 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Administrator, Energy

Information

Administration

Appointee: Calvin A. Kent

Previous employer: Professor, Baylor University

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Holdings in two energy

concerns (Ashland Oila and

Norfolk Southern

Corporation)

Divest Recuse

(before

divest)

Holdings in four U.S. firms

(two of which represent

spousal interests)

Recuse

Tenured position at Baylor

University (an energy

concern) (leave of absence)

Waiver Recuse

Personal/business

relationship

None

aEthics advice said that despite being a small holding paying less than $20 per year, divestiture

was necessary.

Page 30 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Administrator,

Economic Regulatory

Administration (ERA)

Appointee: Chandler L. van Orman (Recess appointment) (Nominated by

President Reagan)

Previous employer: Deputy Administrator, ERA

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Interests in four companies

(IBM, Schlumberger, Foster

Wheeler Corp., & Fairchild

Industries)

Recuse

Personal/business

relationship

Member of National Boating

Safety Advisory Council

Recuse

Page 31 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary

for Congressional

Affairs

Appointee: Gregg Ward

Previous employer: Vice-President of External Affairs, American

Institute of Architects

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Interests in two firms:

Laidlaw Inc. and Law Office

of Deborah Steelman

(spouse)

Recuse

Holdings in a nonenergy

concern, Noxso Corporation

(coal pollution control)

Divest

Personal/business

relationship

Matters personally involved

with two former energy

concern employers (Duke

Power Co. and Gulf States

Utilities)

1-Year

recuse

Page 32 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary,

Conservation and

Renewable Energy

Appointee: Jon M. Davis

Previous employer: President, Glowcore Colorado Inc.

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

President and owner of

Glowcore, a commercial

mechanical engineering

firm engaging in heating,

ventilation, and air

conditioning products

Divesta Recuse

(until

divest)

Personal/business

relationship

None

Other

Five incumbent recusals

(negotiating future

employment) dated within 6

months of departure from

DOE

Recuse

aWhile DOE had determined that a recusal could have satisfied requirements of 18 U.S.C. 208,

the appointee chose to divest his interests in this firm according to DOE ethics officials.

Page 33 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary,

Defense Programs

Appointee: Richard A. Claytor

Previous employer: Principal Deputy Assistant Secretary for Nuclear

Energy

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Holdings in three energy

concerns (Exxon, Freeport

McMoran, and American

Electric Power Company)

Divest Recuse

(before

divest)

AT&T stock holdings The

Senate

Armed

Services

Committee

required

divestiture

Recuse

(before

divest)a

Holdings in U.S. West Inc.

(nature of business not

described)

Recuse

Personal/business

relationship

None

aWhile DOE had determined the AT&T holdings did not constitute a disqualifying financial interest

under 18 U.S.C. 208, the appointee subsequently agreed to execute a recusal covering AT&T “in

view of his stock ownership.” DOE had contractual relations with AT&T, but none of these

contracts were with the Office of Defense Programs.

Page 34 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary

for Environment,

Safety and Health

Appointee: Paul L. Ziemer

Previous employer: Professor, Purdue University

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Leave of absence from

Purdue University

Recuse

Personal/business

relationship

None

Page 35 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary,

Environmental

Restoration and Waste

Management

Appointee: Leo P. Duffy

Previous employer: Westinghouse (also Director, Office of

Environmental Restoration and Waste Management just before

confirmation)

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Stock in Boeing (an energy

concern)

Divest

Holdings in three

companies (Rockwell,

AT&T, Bell Telephone)

Recuse

Vested interests in pension

and retirement plans and

deferred compensation

from Westinghouse (an

energy concern)

Waivera Waivera

Personal/business

relationship

None

aThese two waivers were initially granted by the Secretary of Energy when the appointee was a

Special Assistant to the Secretary, but the waivers were reaffirmed by the DAEO during the

confirmation process as sufficient to cover his service as Assistant Secretary.

Page 36 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Assistant Secretary

for International

Affairs and Energy

Emergencies

Appointee: John J. Easton, Jr.

Previous employer: Law firm of Miller, Eggleston and Rosenberg, Ltd.

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

None

Personal/business

relationship

Any private discussions of

official business matters

with former law firm

employment and one client

(Champlain Pipeline

Company)

1-Year

recuse

Any departmental

proceeding related to legal

services provided to a

former energy concern

client (Green Mountain

Power Corp)

1-Year

recuse

Page 37 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Director, Office of

Civilian Waste

Management

Appointee: John W. Bartlett

Previous employer: Manager, The Analytic Sciences Corporation

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Common stock holdings in

previous employer and

interest in profit-sharing

retirement fund

Recuse

Personal/business

relationship

None

Other

To avoid an appearance of

a conflict in the award of a

management and operating

contract (incumbent recusal

following Senate

confirmation)

Recusea

aThe appointee was not required to execute this incumbent recusal but did so on his own initiative

according to DOE ethics officials.

Page 38 GAO/GGD-95-81FS Conflict of Interest
Appendix I 

Documented Recusal Obligations of Top

Bush Administration DOE Officials

Director, Office of

Energy Research

Appointee: William Happer

Previous employer: Professor, Princeton University

Divestiture basis Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Waiver of

DOE Act-606

Appearance

concern

Continuing financial

interest

Holdings in 13 energy

concerns

Divest Recuse

(before

divest)

Common stock holdings in

four nonenergy concerns

Recuse

Tenured position at

Princeton University (an

energy concern)

Divest/

resign

Personal/business

relationship

Any Departmental matter

involving three former

energy concern employers

(Princeton, University of

California,

Schlumberger-Doll

Laboratories)

1-Year

recuse

Matters personally involved

for 5 prior years with former

energy concern employers

1-Year

recuse

Partial

waivera

Other

Negotiating employment

with six entities

Recuse

aCertain matters were excluded from the waiver (thus continuing the participation prohibition),

including Departmental proceedings related to the Physics Department at Princeton.

Page 39 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

The Department of Energy (DOE) had 20 positions that required Senate

confirmation of presidential appointments during the first year of

President Clinton’s administration. Table II.1 lists these DOE positions, the

names of the incumbents whose financial disclosure records we reviewed

at the Office of Government Ethics (OGE) in December 1993 and at DOE in

March 1994, and the 12 appointees whom we found had executed recusal

statements related to their nominations to the Senate-confirmed positions.

All these appointees were serving at the end of the first year of the Clinton

administration in 1993.

Table II.1: Top DOE Officials in the

Clinton Administration With Nominee

Recusal Statements as of

December 31, 1993

Senate-confirmed position

Incumbent records

reviewed

Nominee recusal

statement

Secretary Hazel R. O’Leary Yes

Deputy Secretary William H. White Yes

Under Secretary Vacant - person

nominated but not

confirmed as of 12/31/93

Administrator, Energy

Information Administration

Jay E. Hakes Yes

Administrator, Economic

Regulatory Administration

Vacant

Assistant Secretary,

Congressional,

Intergovernmental and

International Affairs

William J. Taylor III Yes

Assistant Secretary, Energy

Efficiency and Renewable

Energy

Christine A. Ervin Yes

Assistant Secretary, Defense

Programs

Victor H. Reis Yes

Assistant Secretary,

Domestic and International

Energy Policy

Susan F. Tierney Yes

Assistant Secretary,

Environment, Safety and

Health

Tara J. O’Toole None on file as of 12/31/93

Assistant Secretary,

Environmental Restoration

and Waste Management

Thomas P. Grumbly Yes

Assistant Secretary, Fossil

Energy

Vacant

Assistant Secretary, Human

Resources Administration

Archer L. Durham None required

Chief Financial Officer Vacant

(continued)

Page 40 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Senate-confirmed position

Incumbent records

reviewed

Nominee recusal

statement

Director, Office of Civilian

Radioactive Waste

Management

Daniel A. Dreyfus Yes

Director, Office of Energy

Research

Martha A. Krebs Yes

Director, Office of Minority

Economic Impact

Corlis S. Moody Yes

Director, Office of Nuclear

Energy

Vacant

General Counsel Robert R. Nordhaus Yes

Inspector General John Layton (carryover

from previous

administration)

Nominee data not available

Source: GAO analysis of OGE and DOE financial disclosure records of top political appointees

serving during first year of President Clinton’s administration.

Outcome of DOE’s

Application of

Participation

Restrictions

As shown in table II.1, as of the end of 1993, 12 of the 14 Clinton

appointees whose financial disclosure records we reviewed had made

obligations to recuse themselves from certain official DOE matters as part

of their nomination and confirmation to the DOE positions. Among other

things:

• The 12 appointees with recusal obligations represent 86 percent of the 14

DOE political appointees who were Senate confirmed at the end of 1993

and for whom nominee ethics agreement data were available.

• There were 8 types of recusal or divestiture obligations that were

applicable to the 12 DOE Clinton administration appointees. In total, there

were 48 obligations related to recusals and 11 related to divestitures. The

48 recusal-related obligations involved a total of 180 organizational

entities, and the 11 divestiture-related obligations involved a total of 39

organizational entities.

• The 3 most frequently occurring types of remedial obligations were

recusals to address appearance concerns under the May 1993 recusal

policy of the Senate Energy and Natural Resources Committee (16

obligations), recusals to comply with a criminal conflict-of-interest statute

(18 U.S.C. 208) (16 obligations), and recusals to comply with

agency-specific legislation (section 606 of the DOE Act) (6 obligations).

Page 41 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Table II.2 identifies the frequency of occurrence of each of the eight types

of remedial obligations.

Table II.2: Outcome of DOE’s

Application of Participation

Restrictions to 12 Top Political

Appointees Serving in the Clinton

Administration

Basis for type of remedial action

Number of

applicable

appointees

Number of

nominee

obligations

Number of

entities

involved

Recusal-related: 12 48 180

To address appearance concerns

under recusal policy of the Senate

Energy and Natural Resources

Committee 9 18 58

To comply with 18 U.S.C. 208 10 16 52

To address appearance concerns

under executive branch-wide

standards of conduct (5 C.F.R.

2635.502 and 2635.503) 4 5 6

To comply with section 606 of the

DOE Organization Act 3 6 61

Waiver of 18 U.S.C. 208 2 3 3

Divestiture-related: 6 11 39

To comply with section 602 of the

DOE Organization Act 4 5 21

Waiver of section 602 of the DOE

Organization Act 4 4 4

To comply with 18 U.S.C. 208 1 2 14

Total 12 59 219

Source: GAO analysis of financial disclosure records on file at OGE and DOE.

Case History

Summaries

For the 12 Clinton appointees in DOE with nominee recusal agreements on

file with OGE, the following case histories summarize information from the

financial disclosure records maintained at either OGE or DOE by the

designated agency ethics official (DAEO). We selected information that

would provide an overview of the outcome of DOE’s entire application of

restrictions governing participation in official government matters of

Clinton appointees at the end of 1993. Beyond individual recusals, we

identified when DOE used divestitures or waivers to resolve a conflict

situation or concern. We summarized the underlying conflict situation or

concern that the specific remedial action addressed. We generally

categorized the conflict situation or concern as involving a continuing

financial interest or a personal/business relationship. While many of the

Page 42 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

appointees had more than one paid or uncompensated position before

Senate confirmation, we selected the previous employer that appeared to

be the principal source of the appointee’s recusal obligations. (App. V

provides further details on the general types of DOE records we examined

for each appointee and a description of related regulatory criteria.)

Secretary of Energy Appointee: Hazel R. O’Leary

Previous employer: Northern States Power Company

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec. 602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Seven energy concern

holdings

Divest Recuse/

until divest

Holdings in an energy

concern gifted to a son (not

minor or dependent)

Divest

Interests in Eastman Kodak,

General Public Utilities, and

Minnesota Mining &

Manufacturing

Recuse

Survivor benefits and

deferred compensation

from an energy concern

(General Public Util.)

Waiver

1/21/93

Waiver

8/08/93

Personal/business

relationship

Former energy employer

(Northern States Power)

1-Year

recuse

Matters personally involved

for 5 prior years with above

employer

1-Year

recuse

Other

Extraordinary payment from

Northern States Power Co.

2-Year

recuse

Page 43 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Deputy Secretary of

Energy

Appointee: William H. White

Previous employer: Law firm of Susman Godfrey, L.L.P.

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

concernSenate

Continuing financial

interest

Spousal interest in

Browning-Ferris Industries;

other interests in Eastman

Kodak, IBM, Mead Corp.

Recusea

Personal/business

relationship

Any of 16 former legal

clients

1-Year

recuse

Matters personally involved

for 5 prior years with 23

former legal clients

1-Year

recuse

Any of five entities for which

appointee served as officer,

director, trustee or general

partner just before DOE

service

Recuse

Any matter raising

questions of impartiality due

to employment with any of

above five entities

1-Year

recuse

Other

Extraordinary payment from

former law firm (Susman

Godfrey, L.L.P.)

2-Year

recuse

aEthics agreement also cited a May 1993 recusal policy of the confirmation committee as the

basis for this recusal.

Page 44 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Adminsitrator, Energy

Information

Administration

Appointee: Jay E. Hakes

Previous employer: Adjunct Professor at Florida State University

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Spouse employment by

Florida State University

Recuse

Personal/business

relationship

Matters personally involved

as employee of Florida

State University

Recuse

Any matter raising

questions of impartiality due

to Florida State employment

1-year

Recuse

Page 45 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Assistant Secretary,

Congressional,

Intergovernmental,

and International

Affairs

Appointee: William J. Taylor III

Previous employer: Law firm of Hutcheson and Grundy, L.L.P.

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Spouse’s mineral royalty

interest

Recusea

Personal/business

relationship

Matters personally involved

as an officer, director, or

employee in nine entities,

including former law firm

Recuse

Any matter raising

questions of impartiality due

to employment relationship

with any of above nine

entities

1-Year

recuse

aEthics agreement also cited a May 1993 recusal policy of the confirmation committee as the

basis for this recusal.

Page 46 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Assistant Secretary,

Energy Efficiency and

Renewable Energy

Appointee: Christine A. Ervin

Previous employer: Director, Oregon Department of Energy

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Spousal employment

Oregon State University and

interests in Oregon Public

Employees Retirement

System and University of

Missouri Deferred

Retirement Plan

Recusea

Personal/business

relationship

Matters personally involved

as an employee of Oregon

Dept. of Energy

Recuse

Any matter raising

questions of impartiality due

to relationship with previous

employer

1-Year

recuse

aEthics agreement also cited a May 1993 recusal policy of the confirmation committee as the

basis for this recusal.

Page 47 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Assistant Secretary,

Defense Programs

Appointee: Victor H. Reis

Previous employer: Director, Defense Research and Engineering, DOD

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Pension interest in

Massachusetts Institute of

Technology (an energy

concern due to holdings in

oil and gas properties)

Waiver (8/93) Recuse

Personal/business

relationship

None

Page 48 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Assistant Secretary,

Domestic and

International Energy

Policy

Appointee: Susan F. Tierney

Previous employer: Executive Office of Environmental Affairs,

Commonwealth of Massachusetts

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

None

Personal/business

relationship

Matters personally involved

as officer, director, or

employee of the Office of

Environmental Affairs

Commonwealth of

Massachusetts or the

Massachusetts Water

Resources Authority

Recuse

Any matter raising

questions of impartiality due

to employment relationship

with any of above two

entities

1-Year

recuse 

Page 49 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Assistant Secretary,

Environmental

Restoration and Waste

Management

Appointee: Thomas P. Grumbly

Previous employer: President, Clean Sites, Inc.

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

None

Personal/business

relationship

Matters personally involved

as officer, director, or

employee of Clean Sites,

Inc., and five other entities

Recuse

Any matter raising

questions of impartiality due

to employment relationship

with any of above six entities

1-Year

recuse

Page 50 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Director, Office of

Civilian Radioactive

Waste Management

Appointee: Daniel A. Dreyfus

Previous employer: Special Assistant to the Secretary just prior to

nomination; prior to that he was Vice-President of Gas Research Institute

Divestiture basis

Recusal basis

Conflict

situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Vested interest in the Gas

Research Institute (GRI)

(an energy concern)

Waivera

(8/93)

Recuse

(12/93)

Interests in IBM Recuse

Personal/business

relationship

Any matter raising

questions of impartiality

due to employment

relationship with any of

two entities (GRI and Gas

Technology Information)

1-Year

recuse

Any matter raising

questions of impartiality

due to former

membership on board of

directors of Americans for

Energy Independence

1-Year

recuse

aAuthorized by the Secretary when Mr. Dreyfus was a Special Assistant to the Secretary for the

duration of his DOE employment as a supervisory employee.

Page 51 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Director, Office of

Energy Research

Appointee: Martha A. Krebs

Previous employer: Lawrence Berkeley Laboratory, University of

California

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Holdings in an energy

concern (American Electric

Power Co., Inc.)

Divest Recuse/

until

divest

Vested University pension

interests

Waiver

(1/94)

Recuse/

until

waiver

Waivera

(1/94)

Spouse’s vested University

pension interests

Recuse/

until

waiver

Waivera

(1/94)

Personal/business

relationship

Matters personally involved

as an employee of the

University of California, or

as a consultant to the Gas

Research Institute or

Institute for Defense

Analysis

Recuse

Any matter raising

questions of impartiality due

to employment relationship

with Lawrence Berkeley

Laboratory

1-Year

recuse

Any matter raising

questions of impartiality due

to service as consultant with

the Gas Research Institute

and Institute for Defense

Analysis

1-Year

recuse

aExcludes matters specifically affecting the University’s retirement system.

Page 52 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

Director, Office of

Minority Economic

Impact

Appointee: Corlis S. Moody

Previous employer: Northern States Power Company

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Common stock holdings in

an energy concern

(Northern States Power

Company)

Divest Recuse/

until divest

Personal/business

relationship

Matters personally involved

as employee of Northern

States Power Company

Recuse

Any matter raising question

of impartiality due to

employment with Northern

States Power Company

1-Year

recuse

Page 53 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

General Counsel Appointee: Robert R. Nordhaus

Previous employer: Law firm of Van Ness, Feldman & Curtis

Divestiture basis

Recusal basis

Conflict situation/concern

DOE Act

Sec.602

Waiver of

DOE Act-602

18 U.S.C.

208

18 U.S.C.

208

Waiver, 18

U.S.C. 208

DOE Act

Sec.606

Appearance

- 5 C.F.R.

2635

Appearance

- Senate

policy

Continuing financial

interest

Holdings in 11 energy

concerns

Divest Recuse/

until

divest

Spouse holdings in 13

entities viewed as financial

interests under 18 USC 208

Divest Recuse/

until

divest

Financial interest in

previous law firm employer

Divesta Recuse/

until

divest

Personal/business

relationship

Legal services to six energy

concern clients of previous

law firm

1-Year

recuse

Legal services to 14 energy

concern clients (covers 5

years of prior personal

involvement)

1-Year

recuse

Matters personally involved

in as employee with

previous law firm

Recuse

Any matter raising

questions of impartiality due

to employment with

previous law firm or any

immediate past business

relationships

1-Year

recuse

Other

Participation in certain

overcharge cases pending

before the Federal Energy

Regulatory Commission

(incumbent recusal

following Senate

confirmation)

Recuseb

Participation in revising a

draft report on contract

reform (following Senate

confirmation)

Specific

auth.(5

C.F.R.

2635.502(c))

(Table notes on next page)

Page 54 GAO/GGD-95-81FS Conflict of Interest
Appendix II 

Documented Recusal Obligations of Top

Clinton Administration DOE Officials

aThe appointee divested pension and ownership interests in previous law firm on his own

initiative, according to a DOE ethics official.

bA November 24, 1993, memorandum “memorializes previous conversations” wherein the

appointee recused himself from certain matters, and a subsequent February 5, 1994, statement

identified screening and referral officials. Both of these actions were initiated by the appointee,

according to a DOE ethics official.

Page 55 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

The Environmental Protection Agency (EPA) had 15 positions that required

Senate confirmation of presidential appointments during President Bush’s

administration. Table III.1 lists these EPA positions, the names of the

incumbents whose financial disclosure records we reviewed at the Office

of Government Ethics (OGE) in June 1993 and at EPA in August 1993, and

the eight appointees whom we found had executed recusal statements

related to their nominations to the Senate-confirmed positions. All but four

of the appointees listed in table III.1 were serving at the end of the Bush

administration in 1992.

Page 56 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Table III.1: Top EPA Officials in the

Bush Administration With Nominee

Recusal Statements Senate-confirmed position

Incumbent records

reviewed

Nominee recusal

statement

Administrator William K. Reilly Yes-1989

Deputy Administrator Frank H. Habicht II Yes-1989

Assistant AdministratorAdministration and

Resourcesa

Charles Grizzle None on file

Assistant AdministratorAir and RadiationWilliam G. Rosenberg None on fileb

Assistant

Administrator-Enforcement

and Compliance

Herbert H. Tate Jr. Yes-1991

Assistant

Administrator-External Affairsa

Jennifer Wilson Nominee data not available

Assistant

Administrator-International

Affairs

Timothy B. Atkeson Yes-1989

Assistant AdministratorPest and Toxic SubstancesLinda J. Fisher None on file

Assistant

Administrator-Policy/Plan/

Evaluatea

J. Clarence Davies Yes-1989

Assistant

Administrator-Research and

Development

Erich W. Bretthauer None on file

Assistant AdministratorSolid WasteDon R. Clay None on file

Assistant AdministratorWaterLaJuana S. Wilcher Yes-1989

Assistant Administrator 

and Chief Financial Officer

Christian R. Holmes Yes-1992

General Counsela Edwin Donald Elliot, Jr. Yes-1989

Inspector General John C. Martin Nominee data not available

aBecause this position was vacant on December 31, 1992, we included the last confirmed

incumbent of the position in this analysis.

bIn providing us their views on the results of our analysis, EPA officials provided us a

post-confirmation recusal statement filed by this appointee in 1989.

Source: GAO analysis of financial disclosure records on file at OGE and EPA.

Page 57 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Outcome of EPA’s

Application of

Participation

Restrictions

As shown in table III.1, 8 of the 13 Bush appointees whose financial

disclosure records we reviewed had made obligations to recuse

themselves from certain official EPA matters as part of their nominations

and Senate confirmation to the EPA positions. Among other things:

• The 8 appointees with recusal obligations represent 62 percent of the 13

incumbents in EPA Senate-confirmed positions for whom financial

disclosure data were available on their nominations to the positions at OGE

during our work. All but two of the eight appointees were serving at the

end of the Bush administration in 1992.

• There were five types of recusal or divestiture obligations that were

applicable to these eight EPA Bush administration appointees. In total, 22

obligations were related to recusals, and 4 were related to divestitures.

The 22 recusal-related obligations involved a total of 54 organizational

entities, and the 4 divestiture-related obligations involved a total of 9

organizational entities.

• The specific basis for each type of remedial obligation was often not

described in the disclosure records maintained by either OGE or EPA on

these appointees. In these instances, an EPA ethics official identified EPA’s

basis during interviews with GAO officials.

Table III.2 identifies the frequency of occurrence of the five types of

remedial obligations.

Table III.2: Outcome of EPA’s

Application of Participation

Restrictions to Eight Top Political

Appointees Serving in the Bush

Administration

Basis for type of remedial action

Number of

applicable

appointees

Number of

nominee

obligations

Number of

entities

involved

Recusal-related: 8 22 54

To address appearance concerns (before

uniform standards) 7 12 45

To comply with 18 U.S.C. 208 6 8 7a

Waiver of 18 U.S.C. 208 1 2 2

Divestiture-related: 3 4 9

To comply with section 318 of the Clean Air Act 3 3 4

To comply with 18 U.S.C. 208 1 1 5

Total 8 26 63

aOne recusal obligation under 18 U.S.C. 208 cited no specific entities; but rather the appointee

disqualified himself from participating in any EPA rulemaking or policy matters involving four

industries.

Source: GAO analysis of financial disclosure records on file at OGE and EPA.

Page 58 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Case History

Summaries

For the eight Bush appointees in EPA with nominee recusal agreements on

file with OGE, the following case histories summarize information from the

financial disclosure records maintained at either OGE or EPA by the

designated agency ethics official (DAEO). We selected information that

would provide an overview of the outcome of EPA’s entire application of

restrictions governing participation in official government matters by Bush

appointees. Beyond individual recusals, we identified when EPA used

divestitures or waivers to resolve a conflict situation or concern. We

summarized the underlying conflict situation or concern that the specific

remedial action addressed. We generally categorized the conflict situation

or concern as involving a continuing financial interest or a

personal/business relationship. While many of the appointees had more

than one paid or uncompensated position before Senate confirmation, we

selected the previous employer that appeared to be the principal source of

the appointee’s recusal obligations. (App. V provides further details on the

general types of EPA records we examined for each appointee and a

description of related regulatory criteria.)

Administrator, EPA Appointee: William K. Reilly

Previous employer: President of the World Wildlife Fund, The

Conservation Foundation

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Sever contractual relationship with Northeast Utilities by

transferring deferred compensation into a bank trust

account

Divest (sec.

318)

Recuse- until

divest

Personal/business relationship

Any particular matter involving eight former employers or

organizations in which he served as an officer, director, or

trustee

Recuse

Page 59 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Deputy Administrator,

EPA

Appointee: F. Henry Habicht II

Previous employer: Perkins Coie/W.D. Ruckelshaus and Associates (law

firm)

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Financial interest in Pyrotite Company (a small

nonpublicly traded company that makes fire-retardant

materials)

Recuse

Stocks in New Jersey Resources Corporation, Boeing,

Brunswick, Illinois Central, and ATT

Divest

Personal/business relationship

16 former employers or clients 1-Year

recuse

Resignation of positions in the Environmental Law Institute

and the Natural Resources Section of the American Bar

Association

Resign

(sec. 318)

Page 60 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Assistant

Administrator,

Enforcement

Appointee: Herbert H. Tate Jr.

Previous employer: Prosecutor, Essex County, New Jersey

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Holdings in the New Jersey Public Employees’ Retirement

System fund

Two

waiversa

Personal/business relationship

Any EPA matters in which Essex County is an adverse

party and in which he represented or provided legal

advice

Recuse

Any EPA matter that involves Essex County as a specific

party

1-Year

recuse

Any matter that involves the State of New Jersey as a

specific party and in which the State is an adverse party,

other than certain enforcement matters

Recuse

Other

Any involvement with enforcement decisions or otherwise

with a specific hazardous waste project (following

confirmation)

Recuse

aOne waiver permitted the appointee’s participation in EPA matters affecting these holdings; the

other permitted participation in any enforcement matter involving the State of New Jersey other

than as a specific adverse party.

Page 61 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Assistant

Administrator for

International

Activities

Appointee: Timothy B. Atkeson

Previous employer: Steptoe and Johnson (law firm)

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Steptoe and Johnson pension interest (defined benefit

plan)

Recuse

Any rulemaking or policy matter that could affect any

financial interests of the appointee, his wife, or minor

children in four industries (such interests were not

specified in recusal or ethics agreement)

Recuse

Personal/business relationship

Matters involving six former employers and clients 1-Year

recuse

Page 62 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Assistant

Administrator for

Policy, Planning, and

Evaluation

Appointee: J. Clarence Davies

Previous employer: The Conservation Foundation

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interet

None

Personal/business relationship

Any EPA matter that specifically involves three

organizations in which he recently served as officer or

employee, including The Conservation Foundation

Recuse

Other

Minority share in family real estate business (after

confirmation the appointee discovered that two properties

held by the business have underground storage tanks

and added this recusal to his nominee ethics 

agreement)

Recuse

Page 63 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Assistant

Administrator for

Water

Appointee: LaJuana S. Wilcher

Previous employer: Bishop, Cook, Purcell & Reynolds of Washington,

D.C. (law firm)

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

None

Personal/business relationship

Representative of Cave Research Foundation, Yellow

Springs, Ohio, a scientific nonprofit educational

organization

Recuse

Matters involving 11 former employers and clients,

including former law firm (from whom she generated more

than $5,000 income)

1-Year

recuse

Husband’s employer, Environmental Law Institute Recuse

Other

Husband’s new employer, Friends of the Earth (following

confirmation)

Recuse

Any matter involving certain specific EPA regulatory

issues with firm negotiating for future employment

(following confirmation)

Recuse

Page 64 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

Assistant

Administrator for

Administration and

Resources

Management

Appointee: Christian R. Holmes

Previous employer: Acting Assistant Administrator for Administration

and Resources Management

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Stock interest in a computer company, Digital Equipment

Corp.

Recuse

Holding in Mesa, Ltd (natural gas industry) Recuse

Personal/business relationship

None

Other

Matters dealing with 25 firms with whom appointee had

exploratory discussions regarding possible employment

(25 individual recusal documents sent to EPA DAEO)

(following confirmation)

Recuse

Page 65 GAO/GGD-95-81FS Conflict of Interest
Appendix III 

Documented Recusal Obligations of Top

Bush Administration EPA Officials

General Counsel Appointee: Edwin Donald Elliot, Jr.

Previous employer: Professor, Yale University

Divestiture basis Recusal basis

Conflict situation/concern

Clean Air

Act 18 U.S.C. 208 18 U.S.C. 208

Waiver, 18

U.S.C. 208 Appearance

Continuing financial interest

Employment interest in Yale University Law School (leave

of absence)

Recuse

Personal/business relationship

University Fellow at Resources for the Future of

Washington, D.C. (nonprofit educational institution)

Resign

(sec. 318)

Member of Board of Advisors in the Gruter Institute for

Law and Behavioral Research

Recuse

Any EPA matter specifically involving five former

employers or clients (from whom he received more than

$5,000 in income)

1-Year

recuse

Page 66 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

The Environmental Protection Agency (EPA) had 13 positions that required

Senate confirmation of presidential appointments during the first year of

President Clinton’s administration. Table IV.1 lists these EPA positions, the

names of the incumbents whose financial disclosure records we reviewed

at the Office of Government Ethics (OGE) in December 1993 and at EPA in

July 1994, and the nine appointees whom we found had executed recusal

statements related to their nominations to the Senate-confirmed positions.

All these appointees were serving at the end of the first year of the Clinton

administration in 1993.

Page 67 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Table IV.1: Top EPA Officials in the

Clinton Administration With Nominee

Recusal Statements as of

December 31, 1993

Senate-confirmed position

Incumbent records

reviewed

Nominee recusal

statement

Administrator Carol M. Browner Yes

Deputy Administrator Robert M. Sussman Yes

Assistant AdministratorAir and RadiationMary D. Nichols Yes

Assistant

Administrator-Enforcement

and Compliance

Steven A. Herman None required

Assistant

Administrator-International

Affairs

(unfilled)

Assistant AdministratorPest and Toxic SubstancesLynn R. Goldman Yes

Assistant

Administrator-Policy/Plan/

Evaluate

David M. Gardiner Yes

Assistant

Administrator-Research and

Development

(unfilled)

Assistant AdministratorSolid WasteElliot P. Laws Yes

Assistant AdministratorWaterRobert W. Perciasepe Yes

General Counsel Jean C. Nelson Yes

Assistant AdministratorAdministration and

Resources; Chief Financial

Officer

Jonathan Z. Cannon Yes

Inspector General John C. Martin

(carryover from

previous administration)

Nominee data not available

Note: There are two fewer positions than in the Bush administration; the Assistant Administrator

position of Chief Financial Officer was merged with the position for Administration and Resources,

and the Assistant Administrator position for External Affairs was deleted.

Source: GAO analysis of financial disclosure records on file at OGE and EPA.

Outcome of EPA’s

Application of

Participation

Restrictions

As shown in table IV.1, 9 of the 10 Clinton appointees whose financial

disclosure records we reviewed had made obligations to recuse

themselves from certain official EPA matters as part of their nominations

and confirmation to the EPA positions. Among other things:

Page 68 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

• The 9 appointees with recusal obligations represent 90 percent of the 10

EPA political appointees who were Senate confirmed at the end of 1993 and

for whom financial disclosure data were available on their nominations to

the positions at OGE during our work.

• There were five types of recusal or divestiture obligations that were

applicable to these nine EPA Clinton administration appointees. In total, 39

obligations were related to recusals, and 10 were related to divestitures.

The 39 recusal-related obligations involved a total of 198 organizational

entities, and the 10 divestitures involved a total of 30 entities.

• The specific basis for each type of remedial obligation was often not

described in the disclosure records maintained by either OGE or EPA on

these appointees. In these instances, an EPA ethics official identified EPA’s

basis during interviews with GAO officials.

Table IV.2 identifies the frequency of occurrence of the five types of

remedial obligations.

Table IV.2: Outcome of EPA’s

Application of Participation

Restrictions to Nine Top Political

Appointees Serving in the Clinton

Administration at the End of 1993

Basis for type of remedial action

Number of

applicable

appointees

Number of

nominee

obligations

Number of

entities

involved

Recusal-related: 9 39 198

To comply with 18 U.S.C. 208 5 7 56

Waiver of 18 U.S.C. 208 6 6 50

To address appearance concerns

of covered relationships under

uniform standards of conduct (5

C.F.R. 2635.502) 8 14 46

EPA practice in addressing “other”

appearance concerns under the

uniform standards-of- conduct

regulation (5 C.F.R. 2635.502(a)(2)) 9 12 46

Divestiture-related: 7 10 30

To comply with 18 U.S.C. 208 7 10 30

Total 9 49 228

Source: GAO analysis of financial disclosure records on file at OGE and EPA.

Case History

Summaries

For the nine Clinton appointees in EPA with nominee recusal agreements

on file with OGE, the following case histories summarize information from

the financial disclosure records maintained at either OGE or EPA by the

designated agency ethics official (DAEO). We selected information that

Page 69 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

would provide an overview of the outcome of EPA’s entire application of

restrictions governing participation in official government matters by

Clinton appointees as of the end of 1993. Beyond individual recusals, we

identified when EPA used divestitures or waivers to resolve a conflict

situation or concern. We summarized the underlying conflict situation or

concern that the specific remedial action addressed. We generally

categorized the conflict situation or concern as involving a continuing

financial interest or a personal/business relationship. While many of the

appointees had more than one paid or uncompensated position before

Senate confirmation, we selected the previous employer that appeared to

be the principal source of the appointee’s recusal obligations. (App. V

provides further details on the general types of EPA records we examined

for each appointee and a description of related regulatory criteria.)

Administrator, EPA Appointee: Carol M. Browner

Previous employer: Department of Environmental Regulation, State of

Florida

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

None

Personal/business relationship

Any matter involving State as a specific party

and in which personally involved as Secretary

of the Department of Environmental Regulation

Recuse -

EPA practice

Any EPA matter involving the State or political

subdivisions as a specific party

1-Year

recuse

Any particular matter involving Citizen Action

as a specific party as long as spouse

employed by the entity

Recuse

Page 70 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Deputy Administrator,

EPA

Appointee: Robert M. Sussman

Previous employer: Partner, Latham and Watkins (law firm)

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Holdings in diversified stock and bond fund

accounts considered equivalent to “excepted

investment funds”

Waiver

Interest in LBO Partners, Ltd. (limited

partnership)

Divest

Severance of partnership interest in law firm

(received lump sum payment, continued

retirement, and medical program)

Divest

Personal/business relationship

Any matter involving former law firm as a

specific party and in which personally

participated on behalf of the firm

Recuse -

EPA practice

No private communication regarding official

EPA matters with employees of former law firm

or former clients

1-Year

recuse -

EPA

practice

Any matter involving any of 19 former legal

clients as a specific party (compensation over

$5,000)a

1-Year

Recuse

Any matter with a specific EPA contractor (ICF

company) as long as sister is employed by the

companyb

Recuse

aThe EPA DAEO advised this appointee in July 1993 that this recusal obligation would not require

the appointee to recuse himself from a particular EPA matter involving one of his former legal

clients.

bThe EPA DAEO provided this appointee additional guidance in July 1993 on the scope of this

recusal obligation that, among other things, stated the recusal was intended to include only

specific party matters involving ICF and not general rulemaking or policy matters affecting ICF or

EPA contractors as a whole. An example cited of a specific party matter prohibited by the recusal

would be the appointee’s involvement in approving or disapproving any request for changes in

funding for the ICF contract or any proposed contractual remedies against ICF. An example cited

of a nonspecific party matter allowed under the recusal would be the appointee’s involvement in

applying the Superfund indemnification rule to existing contractors, even though ICF is one of the

existing contractors. Further, the guidance stated that the EPA Administrator could authorize the

appointee’s participation in a specific party matter involving ICF.

Page 71 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administration for Air

and Radiation

Appointee: Mary D. Nichols

Previous employer: Senior Staff Attorney, Natural Resources Defense

Council

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C 208 Other

18 U.S.C.

208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Interest in 17 stocks likely to come to attention of

her office and be affected by particular matters

Divesta Recuse until

divest

Waiver until

divestb

Personal/business relationship

Any matter involving as a specific party the

Natural Resources Defense Council or City of

Los Angeles Dept. of Water and Power and in

which personally participated on behalf of these

two former employers firms

Recuse -EPA

practice

Any other matter involving as a specific party the

Natural Resources Defense Council, the

University of Southern California, or City of Los

Angeles Dept. of Water and Power

1-Year

recuse

Any EPA matter in which the law firm of

O’Melveny and Meyers provides representational

services (spouse employment)

Recuse

Other

Any particular matter involving the Walt Disney

Company as a specific party (following

confirmation)

Recuse

aIn January 1994 the DAEO endorsed a request for a Certificate of Divestiture to OGE covering

certain of these stock holdings. As part of the justification, the DAEO stated that it is impractical

for this appointee to recuse herself from participation in matters that have a direct and predictable

effect on these financial interests because such matters are an essential part of the duties of the

Assistant Administrator for Air and Radiation.

bIn December 1993 the DAEO granted an 18 U.S.C. 208(b)(1) waiver to allow this appointee to

participate in rulemaking or policy matters that affect any of the 17 entities. The waiver did not

extend to matters involving the entities as specific parties. The waiver justification cited the

appointee’s commitment to sell all the stocks pursuant to a Certificate of Divestiture to be issued

by OGE. The DAEO viewed as small and insubstantial the appointee’s financial interest in any

EPA rule or policy that could affect the value or earnings of these stocks.

Page 72 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administrator for

Prevention, Pesticides

and Toxic Substances

Appointee: Lynn R. Goldman

Previous employer: Public Health Medical Administrator, California

Department of Health Services

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Leave of absence from previous employer Resigned

Interest in California State retirement system

(defined benefits plan)

Waivera

Personal/business relationship

All lawsuits and other matters involving the

State of California as a specific party and in

which personally participated in position of

Public Health Medical Administrator

Recuse -

EPA practice

All other specific party matters (except lawsuits

challenging EPA rules) in which the State of

California is a party or has filed an amicus brief

unless authorized by EPA Administrator

1-Year

recuse

Any EPA matter involving the American

Academy of Pediatrics as a specific party

Recuse

Any EPA matter involving as a specific party

any of nine positions previously held outside of

U.S. government

1-Year

recuse

aThis waiver applies to matters that involve the State of California as a specific party as well as to

rulemaking or policy matters that distinctively affect state governments.

Page 73 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administrator for

Policy, Planning and

Evaluation

Appointee: David M. Gardiner

Previous employer: Employee, Sierra Club, Washington, D.C.

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Holdings of stocks or bonds in four entities Divest Recuse until

divest

Personal/business relationship

Any EPA matter involving Sierra Club as a

specific party and in which personally

participated as employee of the Club

Recuse -

EPA

practice

Any EPA matter involving as a specific party

any of four positions previously held outside of

U.S. government

1-Year

recuse

Any EPA matter specifically involving a

Superfund contractor, “CH2M Hill,” as long as

brother employed with that company

Recuse

Any EPA matter specifically involving the law

firm of Hazel and Thomas of Alexandria, Va. as

long as brother-in-law employed with that firm

Recuse

Page 74 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administrator for

Office of Solid Waste

and Emergency

Response

Appointee: Elliott P. Laws

Previous employer: Partner (nonequity) in the law firm Patton, Boggs

and Blow, Washington, D.C.

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Stock in a single entity, Dominion Resourcesa Divest Recuse until

divest

Waiver until

divest

Leave of absence from previous law firm

employer (agreed to completely sever

relationship)

Resign

Personal/business relationship

Any EPA matter involving a specific party in

which previous law firm employer is providing

legal services before EPA unless authorized by

the EPA Administrator

1-Year

recuse

Any EPA matter involving 10 former clients of

previous law firm employer (who received over

$5,000) unless authorized by the EPA

Administrator

1-Year

recuse

Any site-specific issue regarding 13 Superfund

sites represented as a former clientb

Recuse -

EPA practice

aOn Dec. 7, 1993, the DAEO granted this appointee an 18 U.S.C. 208(b)(1) waiver applying only

to rulemaking or policy matters affecting the utility industry. The waiver did not extend to matters

that involve Dominion Resources as a specific party. The waiver also stated “EPA customarily and

routinely grants waivers for rulemaking and policy matters where, as here, the total value of stock

in an affected industry does not exceed $15,000.” Further, the waiver stated “... this waiver will

cease to apply even to rulemaking or policy matters if the value of your stock should ever exceed

$15,000.” OGE issued a Certificate of Divestiture for this stock on December 21, 1993. Evidence

of actual divestiture on February, 10, 1994, was in EPA’s records. While this recusal obligation

was first stated in the Sept. 15, 1993, ethics agreement, it was not included in the formal recusal

statement executed on Nov. 1, 1993.

bIn November 1993 an EPA ethics official provided advice on the applicability of this recusal

obligation to a Superfund site not listed in his recusal statement but that involved as a “potential

third party defendant” a former client covered in the appointee’s recusal statement. The advice

was that the appointee need not recuse himself from issues associated with the Superfund site

because the former client had no direct dealings with EPA.

Page 75 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administrator for

Water

Appointee: Robert W. Perciasepe

Previous employer: Secretary of Maryland Department of Environment

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Interest in Maryland State retirement system

(defined benefits plan)

Waivera

Personal/business relationship

All lawsuits and other matters involving the

State of Maryland as a specific party and in

which personally participated in position as

Secretary of the Maryland Department of the

Environment

Recuse -

EPA practice

All other specific party matters (except lawsuits

challenging EPA rules) in which the State of

Maryland is a party or has filed an amicus brief

unless authorized by EPA Administrator

1-Year

recuse

aThis waiver applies to matters involving the State of Maryland as a specific party and to

rulemaking or policy matters distinctively affecting state governments, including the Chesapeake

Bay Program.

Page 76 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

General Counsel Appointee: Jean C. Nelson

Previous employer: Chief Deputy Attorney General, State of Tennessee

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Any matter involving Chevron Corporation,

Exxon Corporation, or Dupont E.I. DeNemours

and participation affecting any related

industries

Divest Recuse 

until divest

Holdings in 29 stocks or bonds (including

spouse and joint holdings)

Recusea Waiverb

Retained pension benefits from former law firm

of Gullet, Sanford, Robinson’s, Martin

Divest

Personal/business relationship

All lawsuits and other matters involving the

State of Tennessee as a specific party and in

which personally participated in position as

Chief Deputy Attorney General

Recuse -

EPA

practice

All lawsuits and other matters involving the

Southern Environmental Law Center as a

specific party and in which personally

participated as a member of the Board.

Recuse -

EPA practice

All other specific party matters (except lawsuits

challenging EPA rules) in which Tennessee or

the Law Center is a party or has filed an amicus

brief unless authorized by EPA.

1-Year

recuse

aThe recusal obligation for each of these 29 entities (plus 2 additional entities) was first stated in

the August 11, 1993, ethics agreement. However, this obligation was not entirely included in the

formal recusal statement executed on December 23, 1993. The recusal statement addressed

specifically three of the entities and firms in the computer industry. Addressing treatment of the

other entities, the recusal statement also said: “I or my husband have other interests in several

industries. Although I am aware that 18 U.S.C. 208(a) bars my participation in any EPA matter

which involves any of these entities as a specific party, I am not listing the individual holdings

because it is highly unlikely that the Office of General Counsel will have occasion to deal with any

’particular matter’ which involves them as a specific party.”

bOn Dec. 21, 1993, the DAEO granted this appointee an 18 U.S.C. 208(b)(1) waiver applying only

to rulemaking or policy matters affecting the 29 entities. The waiver did not extend to matters

involving any of the entities as a specific party.

Page 77 GAO/GGD-95-81FS Conflict of Interest
Appendix IV 

Documented Recusal Obligations of Top

Clinton Administration EPA Officials

Assistant

Administrator for

Administration and

Resources

Management / Chief

Financial Officer

Appointee: Jonathan Z. Cannon

Previous employer: EPA Acting Assistant Administrator, Office of Policy,

Plans, and Evaluation

Divestiture basis

Recusal basis

Conflict situation/concern 18 U.S.C. 208 Other 18 U.S.C. 208

Waiver, 18

U.S.C. 208

5 C.F.R.

2635.502

covered

appearance

relationship

Other

uncovered

appearance

relationship

Continuing financial interest

Stock in IBM Divest Recuse until

divest

Personal/business relationship

Any EPA matter in which provided legal

services to any of 22 entities while employed

with former law firm (received $5,000 or more)

Recuse -

EPA

practice

Page 78 GAO/GGD-95-81FS Conflict of Interest
Appendix V 

Types of General Financial Disclosure

Records Examined and Related Regulatory

Criteria

1. Copies of New Entrant (Nominee), Annual, and Termination Public

Financial Disclosure Reports (SF 278s)

As a means of increasing public confidence in federal officials, public

disclosure of certain financial information of elected and high-level

officials has been required by statute since 1979. Presidential appointees

requiring Senate confirmation are required to file public disclosure reports

(SF 278s) with the designated agency ethics official (DAEO) at the

employing agency. DAEO is required to review the information disclosed in

the report for compliance with applicable conflict-of-interest laws and

regulations, including those governing recusals. In addition, the Office of

Government Ethics (OGE) further reviews the reports of all presidential

appointees requiring Senate confirmation. OGE views these financial

disclosure reports as an important safeguard for the individual, as well as

the government, in that they provide a mechanism for identifying and

resolving actual or potential conflicts between the individual’s public

responsibilities and private interests.

2. DAEO Opinion Letter to OGE

This is one of several documents required by OGE financial disclosure

regulations that would address the recusal obligations of presidential

nominees (other related documents are described below.) Current OGE

regulations require DAEOs to write an opinion letter to the OGE director

certifying that DAEO’s review of the presidential nominee’s disclosure

report disclosed no conflict of interest under applicable law and

regulations and the DAEO’s letter is supposed to discuss:

“(A) Any actual or apparent conflicts of interest that were detected during the review

process; and

(B) The resolution of those real or apparent conflicts, including any specific commitment,

ethics agreement entered under the provisions of subpart H of this part, or other

undertaking by the nominee to resolve any such conflicts. A copy of any commitment,

agreement, or other undertaking which is reduced to writing shall be sent to the Director,

in accordance with subpart H of this part.” [See 5 C.F.R. 2634.605(c)(2)(iii).]

Typically, these DAEO opinion letters will refer to any recusal obligations

made by the nominee.

3. DAEO Notification to OGE of Ethics Agreements

Page 79 GAO/GGD-95-81FS Conflict of Interest
Appendix V 

Types of General Financial Disclosure

Records Examined and Related Regulatory

Criteria

OGE’s regulation requires DAEOs to (1) submit to OGE any ethics agreement

that a presidential nominee has made with the nominee’s financial

disclosure report; (2) notify OGE immediately of any additional agreements

made by the nominee after submission of the nominee’s report; and

(3) apprise OGE of any other ethics agreements made by the individual as

an incumbent in a Senate-confirmed position, or that become known to

DAEO during the incumbent’s term in office. [See 5 CFR 2634.803(a) and

(b).] This regulation does not specify a form for this notification (such as a

letter).

4. OGE Opinion Letter to Senate Confirmation Committee

OGE’s regulation requires the Director of OGE to provide Senate

confirmation committees a letter “expressing the Director’s opinion

whether, on the basis of information contained in the report, the nominee

has complied with all applicable conflict laws and regulations.” [See 5

C.F.R. 2634.605(c)(3).]

5. The Appointee’s Executed Recusal Statement

This document is viewed by OGE as evidence of satisfaction of a formal

ethics agreements under section 110 of the Ethics in Government Act, as

amended. OGE’s regulation requires the appointee to list and describe in

the executed recusal statement the specific matters or subjects to which

the recusal applies; state the method by which the agency will enforce the

recusal; and list the positions of those agency employees involved in the

enforcement (i.e., the individual’s immediate subordinates and

supervisors.) [See 5 C.F.R. 2634.804(b)(1).] Such recusal statements are

considered as part of the confirmation process and with OGE and DAEO

opinion letters (see above discussion) have been viewed by oversight

committees as an important institutional check against conflicts of interest

by presidential appointees.

6. Evidence of Ethics Agreement Compliance

OGE’s regulation requires that evidence of any action taken to comply with

ethics agreements be submitted by the DAEOs, upon receipt, to OGE and to

the Senate confirmation Committee. [See 5 C.F.R. 2634.804(a).] The ethics

agreement is required to specify that the individual must complete action

that he or she has agreed to undertake within a period not to exceed 3

months from the date of the agreement. The definition of ethics

agreements includes any oral or written promise by a reporting individual

Page 80 GAO/GGD-95-81FS Conflict of Interest
Appendix V 

Types of General Financial Disclosure

Records Examined and Related Regulatory

Criteria

to alleviate an actual or apparent conflict of interest, including

“Preparation of a written instrument for recusing (disqualifying) the

individual from one or more particular matters or categories of official

action.” [See 5 C.F.R. 2634.802(a)(1).]

7. OGE Ethics Agreement Tracking Form

This is an internal OGE form that OGE staff use to record the results of their

determinations of when the ethics agreements of presidential appointees

have complied with OGE’s regulatory requirements. Using this record, OGE

enters into a computer database the status of each appointee’s compliance

with any ethics agreement that generally involves six types of actions:

recusals, divestitures, resignations, waivers, severance payments, and

blind trusts. OGE prepares monthly status reports from this data and has

biennially provided Congress information on the frequency of such

agreements governmentwide.

Page 81 GAO/GGD-95-81FS Conflict of Interest
Appendix VI 

Major Contributors to This Fact Sheet

General Government

Division, Washington,

D.C.

Norman A. Stubenhofer, Assistant Director

John J. Tavares, Evaluator-in-Charge

Gary V. Lawson, Senior Evaluator

Office of the General

Counsel, Washington,

D.C.

Jill P. Sayre, Senior Attorney

(966608) Page 82 GAO/GGD-95-81FS Conflict of Interest
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