Executive Branch Conflict of Interest Act

II 116TH CONGRESS 1ST SESSION S. 156 To prevent conflicts of interest that stem from executive branch employees receiving bonuses or other compensation arrangements from non-Govern- ment sources, from the revolving door that raises concerns about the independence of executive branch employees, and from the revolving door that casts aspersions over the awarding of Government contracts and other financial benefits. IN THE SENATE OF THE UNITED STATES JANUARY 16, 2019 Ms. BALDWIN introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To prevent conflicts of interest that stem from executive branch employees receiving bonuses or other compensa- tion arrangements from non-Government sources, from the revolving door that raises concerns about the inde- pendence of executive branch employees, and from the revolving door that casts aspersions over the awarding of Government contracts and other financial benefits. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 2 •S 156 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Executive Branch Con- 2 flict of Interest Act’’. 3 SEC. 2. RESTRICTIONS ON PRIVATE SECTOR PAYMENT FOR 4 GOVERNMENT SERVICE. 5 Section 209 of title 18, United States Code, is 6 amended— 7 (1) in subsection (a)— 8 (A) by striking ‘‘any salary’’ and inserting 9 ‘‘any bonus or salary’’; and 10 (B) by striking ‘‘his services’’ and inserting 11 ‘‘services rendered or to be rendered’’; and 12 (2) in subsection (b)— 13 (A) by inserting ‘‘(1)’’ after ‘‘(b)’’; and 14 (B) by adding at the end the following: 15 ‘‘(2) For purposes of paragraph (1), a pension, retire- 16 ment, group life, health or accident insurance, profit-shar- 17 ing, stock bonus, or other employee welfare or benefit plan 18 that makes payment of compensation contingent on ac- 19 cepting a position in the Federal Government shall not 20 be considered bona fide. 21 ‘‘(3) For purposes of paragraph (2), compensation in- 22 cludes a retention award or bonus, severance pay, and any 23 other payment linked to future service in the Federal Gov- 24 ernment in any way.’’. 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 3 •S 156 IS SEC. 3. REQUIREMENTS RELATING TO SLOWING THE RE- 1 VOLVING DOOR AMONG CERTAIN EXECUTIVE 2 BRANCH EMPLOYEES. 3 (a) IN GENERAL.—The Ethics in Government Act of 4 1978 (5 U.S.C. App.) is amended by adding at the end 5 the following: 6 ‘‘TITLE VI—SPECIAL REQUIRE- 7 MENTS FOR CERTAIN EXECU- 8 TIVE BRANCH EMPLOYEES 9 ‘‘SEC. 601. DEFINITIONS. 10 ‘‘(a) IN GENERAL.—In this title, the terms ‘des- 11 ignated agency ethics official’ and ‘executive branch’ have 12 the meanings given those terms under section 109. 13 ‘‘(b) OTHER DEFINITIONS.—In this title: 14 ‘‘(1) COVERED AGENCY.—The term ‘covered 15 agency’— 16 ‘‘(A) means— 17 ‘‘(i) an Executive agency; 18 ‘‘(ii) the Postal Service; and 19 ‘‘(iii) the Postal Rate Commission; 20 ‘‘(B) includes the Executive Office of the 21 President; and 22 ‘‘(C) does not include the Government Ac- 23 countability Office or the government of the 24 District of Columbia. 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 4 •S 156 IS ‘‘(2) COVERED EMPLOYEE.—The term ‘covered 1 employee’ means an officer or employee described in 2 section 207(c)(2) of title 18, United States Code. 3 ‘‘(3) DIRECTOR.—The term ‘Director’ means 4 the Director of the Office of Government Ethics. 5 ‘‘(4) EXECUTIVE AGENCY.—The term ‘Execu- 6 tive agency’ has the meaning given the term in sec- 7 tion 105 of title 5, United States Code. 8 ‘‘(5) FORMER CLIENT.—The term ‘former cli- 9 ent’— 10 ‘‘(A) means a person for whom a covered 11 employee served personally as an agent, attor- 12 ney, or consultant during the 2-year period end- 13 ing on the date (after such service) on which 14 the covered employee begins service in the Fed- 15 eral Government; and 16 ‘‘(B) does not include— 17 ‘‘(i) a person for whom a covered em- 18 ployee served as described in subparagraph 19 (A) if the service provided was limited to 20 a speech or similar appearance; or 21 ‘‘(ii) a client of the former employer 22 of the covered employee to whom the cov- 23 ered employee did not personally provide 24 services described in subparagraph (A). 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 5 •S 156 IS ‘‘(6) FORMER EMPLOYER.—The term ‘former 1 employer’— 2 ‘‘(A) means a person for whom a covered 3 employee served as an employee, officer, direc- 4 tor, trustee, or general partner during the 2- 5 year period ending on the date (after such serv- 6 ice) on which the covered employee begins serv- 7 ice in the Federal Government; and 8 ‘‘(B) does not include— 9 ‘‘(i) an entity in the Federal Govern- 10 ment, including an Executive agency; 11 ‘‘(ii) a State or local government; or 12 ‘‘(iii) an Indian tribe, as defined in 13 section 4 of the Indian Self-Determination 14 and Education Assistance Act (25 U.S.C. 15 5304). 16 ‘‘(7) STATE.—The term ‘State’ has the mean- 17 ing given the term in section 3 of the Lobbying Dis- 18 closure Act of 1995 (2 U.S.C. 1602). 19 ‘‘SEC. 602. CONFLICT OF INTEREST AND ELIGIBILITY 20 STANDARDS FOR COVERED EMPLOYEES. 21 ‘‘(a) IN GENERAL.—A covered employee shall not 22 make, participate in making, or in any way attempt to 23 use the official position of the covered employee to influ- 24 ence a particular matter that provides a direct and sub- 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 6 •S 156 IS stantial pecuniary benefit for a former employer or former 1 client of the covered employee. 2 ‘‘(b) RECUSAL.—A covered employee shall recuse 3 himself or herself from any official action that would vio- 4 late subsection (a). 5 ‘‘(c) WAIVER.— 6 ‘‘(1) IN GENERAL.—The head of the covered 7 agency employing a covered employee, in consulta- 8 tion with the Director, may grant a written waiver 9 of the restrictions under subsection (a) if, and to the 10 extent that, the head of the covered agency certifies 11 in writing that— 12 ‘‘(A) the application of the restriction to 13 the particular matter is inconsistent with the 14 purposes of the restriction; or 15 ‘‘(B) it is in the public interest to grant 16 the waiver. 17 ‘‘(2) PUBLICATION.—The Director shall make 18 each waiver granted under paragraph (1) publicly 19 available on the website of the Office of Government 20 Ethics. 21 ‘‘SEC. 603. NEGOTIATING FUTURE PRIVATE SECTOR EM- 22 PLOYMENT. 23 ‘‘(a) PROHIBITION.—Except as provided in sub- 24 section (c), and notwithstanding any other provision of 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 7 •S 156 IS law, a covered employee may not participate in any par- 1 ticular matter that involves, to the knowledge of the cov- 2 ered employee, an individual or entity with whom the cov- 3 ered employee is in negotiations of future employment or 4 has an arrangement concerning prospective employment. 5 ‘‘(b) DISCLOSURE OF EMPLOYMENT NEGOTIA- 6 TIONS.— 7 ‘‘(1) IN GENERAL.—If a covered employee be- 8 gins any negotiations of future employment with an- 9 other individual or entity, or an agent or inter- 10 mediary of another individual or entity, or other dis- 11 cussion or communication with another individual or 12 entity, or an agent or intermediary of another indi- 13 vidual or entity, mutually conducted with a view to- 14 ward reaching an agreement regarding possible em- 15 ployment of the covered employee, the covered em- 16 ployee shall notify the designated agency ethics offi- 17 cial of the covered agency employing the covered em- 18 ployee regarding the negotiations, discussions, or 19 communications. 20 ‘‘(2) INFORMATION.—A designated agency eth- 21 ics official receiving notice under paragraph (1), 22 after consultation with the Director, shall inform the 23 covered employee of any potential conflicts of inter- 24 est involved in any negotiations, discussions, or com- 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 8 •S 156 IS munications with the other individual or entity and 1 the applicable prohibitions. 2 ‘‘(c) WAIVERS ONLY WHEN EXCEPTIONAL CIR- 3 CUMSTANCES EXIST.— 4 ‘‘(1) IN GENERAL.—The head of a covered 5 agency may only grant a waiver of the prohibition 6 under subsection (a) if— 7 ‘‘(A) the head of the covered agency deter- 8 mines that exceptional circumstances exist; and 9 ‘‘(B) the Director reviews the cir- 10 cumstances relating to the waiver and the de- 11 termination of the head of the covered agency 12 under subparagraph (A) and determines that 13 exceptional circumstances exist. 14 ‘‘(2) PUBLICATION.—For any waiver granted 15 under paragraph (1), the Director shall make pub- 16 licly available on the website of the Office of Govern- 17 ment Ethics the waiver, which shall include— 18 ‘‘(A) the name of each private individual or 19 entity involved in the negotiations or arrange- 20 ment concerning prospective employment; and 21 ‘‘(B) the date on which the negotiations or 22 arrangements commenced. 23 ‘‘(d) SCOPE.—For purposes of this section, the term 24 ‘negotiations of future employment’ is not limited to dis- 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 9 •S 156 IS cussions of specific terms or conditions of employment in 1 a specific position. 2 ‘‘SEC. 604. RECORDKEEPING. 3 ‘‘The Director shall— 4 ‘‘(1) receive all employment histories, recusal 5 and waiver records, and other disclosure records for 6 covered employees necessary for monitoring compli- 7 ance with this title; 8 ‘‘(2) not later than 180 days after the date of 9 enactment of this title and in consultation with the 10 Director of the Office of Personnel Management and 11 the Attorney General, promulgate rules and regula- 12 tions to implement this title; 13 ‘‘(3) when appropriate, provide guidance and 14 assistance to facilitate compliance with this title; 15 ‘‘(4) review advice provided by designated agen- 16 cy ethics officials, and, when necessary, assist des- 17 ignated agency ethics officials in providing advice, to 18 covered employees regarding compliance with this 19 title; and 20 ‘‘(5) if the Director determines that a violation 21 of this title may have occurred, the Director shall, 22 in consultation with the designated agency ethics of- 23 ficial of the covered agency employing the covered 24 employee alleged to have violated this title and the 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 10 •S 156 IS Counsel to the President, refer the compliance case 1 to the United States Attorney for the District of Co- 2 lumbia for enforcement action. 3 ‘‘SEC. 605. PENALTIES AND INJUNCTIONS. 4 ‘‘(a) CRIMINAL PENALTIES.— 5 ‘‘(1) IN GENERAL.—Any person who violates 6 section 602 or 603 shall be fined under title 18, 7 United States Code, imprisoned for not more than 8 1 year, or both. 9 ‘‘(2) WILLFUL VIOLATIONS.—Any person who 10 willfully violates section 602 or 603 shall be fined 11 under title 18, United States Code, imprisoned for 12 not more than 5 years, or both. 13 ‘‘(b) CIVIL ENFORCEMENT.— 14 ‘‘(1) IN GENERAL.—The Attorney General may 15 bring a civil action in an appropriate district court 16 of the United States against any person who vio- 17 lates, or whom the Attorney General has reason to 18 believe is engaging in conduct that violates, section 19 602 or 603. 20 ‘‘(2) CIVIL PENALTY.— 21 ‘‘(A) IN GENERAL.—Upon proof by a pre- 22 ponderance of the evidence that a person vio- 23 lated section 602 or 603, the court shall impose 24 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 11 •S 156 IS a civil penalty of not more than the greater 1 of— 2 ‘‘(i) $100,000 for each violation; or 3 ‘‘(ii) the amount of compensation the 4 person received or was offered for the con- 5 duct constituting the violation. 6 ‘‘(B) RULE OF CONSTRUCTION.—A civil 7 penalty under this subsection shall be in addi- 8 tion to any other criminal or civil statutory, 9 common law, or administrative remedy available 10 to the United States or any other person. 11 ‘‘(3) INJUNCTIVE RELIEF.— 12 ‘‘(A) IN GENERAL.—In a civil action 13 brought under paragraph (1) against a person, 14 the Attorney General may petition the court for 15 an order prohibiting the person from engaging 16 in conduct that violates section 602 or 603. 17 ‘‘(B) STANDARD.—The court may issue an 18 order under subparagraph (A) if the court finds 19 by a preponderance of the evidence that the 20 conduct of the person violates section 602 or 21 603. 22 ‘‘(C) RULE OF CONSTRUCTION.—The filing 23 of a petition seeking injunctive relief under this 24 paragraph shall not preclude any other remedy 25 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S156 pbinns on DSK79D2C42PROD with BILLS 12 •S 156 IS that is available by law to the United States or 1 any other person.’’. 2 SEC. 4. PROHIBITION OF PROCUREMENT OFFICERS AC- 3 CEPTING EMPLOYMENT FROM GOVERNMENT 4 CONTRACTORS. 5 (a) EXPANSION OF PROHIBITION ON ACCEPTANCE 6 BY FORMER OFFICIALS OF COMPENSATION FROM CON- 7 TRACTORS.—Section 2104 of title 41, United States Code, 8 is amended— 9 (1) in subsection (a)— 10 (A) in the matter preceding paragraph 11 (1)— 12 (i) by striking ‘‘or consultant’’ and in- 13 serting ‘‘consultant, lawyer, or lobbyist’’; 14 and 15 (ii) by striking ‘‘one year’’ and insert- 16 ing ‘‘2 years’’; and 17 (B) in paragraph (3), in the matter pre- 18 ceding subparagraph (A), by striking ‘‘person- 19 ally made for the Federal agency’’ and inserting 20 ‘‘participated personally and substantially in’’; 21 and 22 (2) by striking subsection (b) and inserting the 23 following: 24 VerDate Sep 11 2014 23:13 Jan 25, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S156.IS S15 [Text truncated for display. Full text available on Congress.gov.]