On October 20, 2011, the Commission, with the concurrence of the Office of Government Ethics (OGE), approved new rules revising the Commission’s “Standards of Conduct” – FEC regulations that govern the conduct of Commissioners and FEC employees. In addition, the Commission, also with the concurrence of OGE, approved new regulations that supplement the OGE’s Standards of Ethical Conduct for Employees of the Executive Branch. These new rules, addressing outside employment of Commissioners and FEC employees, as well as the new standards of conduct rules, were published in the Federal Register on November 14, 2011, and become effective on December 14, 2011.*
The Commission originally promulgated the Standards of Conduct regulations in 1986. The new regulations update the existing ones to reflect statutory changes enacted after 1986, and to conform them to regulations issued by OGE and the Office of Personnel Management (OPM). In 1992, OGE issued a final rule setting forth uniform standards of ethical conduct and an interim final rule on financial disclosure, followed by a final rule on financial interests in 1996.These regulations superseded, with some exceptions, the Commission’s former regulations in 11 CFR part 7. They address gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, pursuit of other employment and outside employment and activities. See 5 CFR part 2635. In addition, Commission employees are subject to OPM rules at 5 CFR part 735 concerning employee responsibilities and conduct.
FEC standards of conduct regulations
The FEC has revised certain regulations in 11 CFR part 7 relating to the standards of conduct for Commission employees and Commissioners. The regulations define certain key terms and address the ability of Commissioners and employees to seek interpretation and guidance related to OGE regulations, the reporting of suspected violations of the new rules and the potential corrective actions taken in case violations occur.
Outside employment and activities of Commissioners. New 11 CFR 7.6 addresses outside employment and activities of Commissioners. The regulation states that no Commissioner may devote a substantial portion of his or her time to any other business, vocation or employment. The rule continues the approach taken by the previous regulations at former 11 CFR 7.9(a) and is based on legislative history for 2 U.S.C. §437c(a)(3) indicating that Congress intended that new Commissioners should have 90 days following the start of Commission service to limit such activities.
The FEC also has removed former 11 CFR 7.12, which addressed employee and Commissioner membership in associations and has concluded that ethical concerns regarding membership in nongovernmental associations are properly addressed under more general standards concerning outside employment and activities (summarized below).
Confidentiality of enforcement matters. New 11 CFR 7.7 follows former 11 CFR 7.14 and continues the prohibition on making public complaints filed with the Commission, as well as Commission notifications or findings in ongoing complaints and investigations, without the written consent of the respondent. New 11 CFR 7.8 addresses ex parte communications made in the context of enforcement actions and prohibits the making or consideration of such communications by Commissioners and any member of a Commissioner’s staff.
Political activity by commissioners and FEC employees. The Commission has decided to remove former 11 CFR 7.11, which imposed restrictions beyond those imposed by the Hatch Act on political activities by Commissioners and FEC employees. The Hatch Act Reform Amendments of 1993 (Pub. L. No. 103-94) specifically addressed the FEC and left all of the Hatch Act restrictions in place for employees of the Commission, other than Commissioners.
Under the Hatch Act, Commission employees may not give a political contribution to a Member of Congress, an employee of the Executive Branch (other than the President or Vice President) or an officer of a uniformed service. Additionally, Commission employees may not “take an active part in political management or political campaigns.” See 5 U.S.C. §7323(b). FEC Commissioners are prohibited from certain political activities such as (1) using official authority or influence to interfere with an election, (2) knowingly soliciting or discouraging political activity by anyone subject to a Commission audit or investigation, (3) soliciting or receiving political contributions in almost all circumstances or (4) being a candidate for public office in a partisan election. 5 U.S.C. §7323(a).
The U.S. Office of Special Counsel (OSC), the federal agency charged with interpreting the Hatch Act, issued an advisory opinion in 2003 to the Commission noting that OPM regulations prohibit further restrictions and stating that “the FEC cannot further restrict the political activity of its regular employees by forbidding them from publicly supporting or contributing to a candidate, political party, or political committee subject to the jurisdiction of the Commission.” With respect to Commissioners, the OSC opinion found that “the FEC has no authority to adopt regulations that would forbid a Commissioner from publicly supporting, working for, or contributing to a candidate, political party, or political committee” subject to the FEC’s jurisdiction. As a result, the OSC concluded that the FEC could not adopt a regulation that would limit the political activity of its employees or Commissioners, and the FEC has removed former section 7.11.**
Post-employment conflict of interest. The Commission has decided to remove former 11 CFR part 7, subpart D, which concerned administrative procedures to be followed for investigations of post-employment conflict of interest violations by individuals formerly employed by the Commission. Federal statutes which had granted the agency the authority to promulgate such regulations were removed in 1989.*** In the meantime, the Commission has no pending post-employment situations concerning employees who left service before the former statute was repealed. Former employees remain subject to Department of Justice criminal prosecution under 18 U.S.C. §207 for post-employment conflict of interest violations.
New supplemental regulations on outside employment and activities by FEC employees
OGE’s regulations at 5 CFR 2635.802 prohibit an employee from engaging in outside employment or any other outside activity that conflicts with their official duties. Under the FEC’s new supplemental regulation at 5 CFR 4701.102, developed in concert with the OGE, the Commission is renewing its previous requirement for prior approval of certain outside employment and activities by FEC employees (excluding Commissioners, who are covered by new 11 CFR 7.6, summarized above). Note, however, that the scope of the outside employment and activities covered by the new regulation is far narrower. While previous FEC regulations required approval for all outside employment and activities, the new regulation requires prior written approval from the FEC’s Designated Agency Ethics Official (DAEO) only for outside activities that are related to the employee’s official duties or that involve the same specialized skills or educational background used to perform the employee’s official duties. “Outside employment” is defined as any form of nonfederal employment, business relationship or provision of personal services, with or without compensation. New 5 CFR 4701.102(a)(3). Approval by the DAEO will depend on whether the outside employment or activity would (1) create conflicting financial interests, (2) result in a lack of impartiality in performing official duties or the misuse of government position and (3) would otherwise comply with OGE regulations at 5 USC Part 2635.
*See 76 Fed. Reg. 70322 (November 14, 2011).
(Date effective: December 14, 2011)