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Code of Ethics, 12/76
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Code of Ethics, 12/76
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Records of the Office of the Staff Secretary
1976 Campaign Transition File
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Conflict of interests
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Code of Ethics, 12/76
Folder Citation: Collection: Office of Staff Secretary; Series: 1976 Campaign Transition File;
Folder: Code of Ethics, 12/76; Container 1
To See Complete Finding Aid:
http://www.jimmycarterlibrary.gov/library/findingaids/Staff_Secretary.pdf
LAW OFFICES
ALSTON, MILLER & GAINES
CITIZENS & SOUTHERN
NATIONAL BANK BUILDING
1800 M STREET, N.W., SUITE 1000
35 BROAD STREET
WASHINGTON, D. C. 20036
ATLANTA, GEORGIA 30303
202-223-1300
404-588-0300
vohime
WASHINGTON, D.C.
J.
called 12/14
December 3, 1976
The Honorable Jimmy Carter
President-Elect of the United States
Box Z
Plains, Georgia 31780
Dear Governor:
Following our meeting in Plains on November 29, I
have returned to Washington and touched base again with
counsel to the various Senate Committees and with
the transition groups here who have studied and made
valuable recommendations on the question on conflict
of interest. I have also reviewed your earlier
speeches. On March 1, 1976 you said the following in
your "Code of Ethics" speech:
Complete revelation of all business and fi-
nancial involvement of all major officials
should be required, and none should be
continued which constitute a possible con-
flict with the public interest. I have
released an audit of my personal finances
and will do so annually throughout my
term of office. I will insist that the
same requirement apply to the Vice President
and to those appointed to major policy-
making positions in my Administration. As
President, I will seek legislation to make
such disclosure mandatory.
You made a similar statement before the American Bar
Association in Atlanta in August. A consistent reference
was made in your remarks with the Ralph Nader group in
Washington. Accordingly, I have revised the materials
to call for the making available to the public of sources
of income and balance sheet items. At Bob Lipshultz's
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
CABLE: AMGRAM WASHINGTON TELEX: 54-2996
Page 2
President-Elect
December 3, 1976
request I enclose an alternate form of Memorandum to
nominees which would adhere to the disclosure policies
we discussed Monday, subject to what you had said in your
speeches.
Consistent with your statement, I would ask you and
each of the persons to whom a copy of this letter and
the enclosures go to pencil the enclosures carefully and
to give me comments back during the course of next week
(December 6 through 10) at the address and telephone
number below. I met yesterday with Mr. Charles Kirbo
and obtained his questions, which are now worked into
the questionnaire. The enclosures are:
1. Letter of Commitment from prospective appointees;
2. Questionnaires to be used for personal and
financial data of prospective appointees; and
3. A draft of Policy Guidelines as to conflict
of interest; financial disclosure; and restric-
tions after government service.
As you will recall, in Plains, I suggested three
post-government restrictions. I am now convinced that the
second of my earlier proposals is too severe and would
unduly hurt recruitment into the agencies. It is my
belief that the two restrictions now set out in paragraphs 5
and 6 of the letter of commitment will suffice. For your
reference, my other suggestion was:
I will not, for two years following termina-
tion of my government service, for any fee,
commission, salary, or other benefit, deal
with or represent in any professional or
business capacity myself or anyone other than
the United States, by direct or indirect
Page 3
President-Elect
December 3, 1976
appearance, lobbying, or formal or informal
contact with the
Depart-
ment or Agency or Division.
With kind regards,
Sincerely,
Jolier John L. Moore, Jr.
JLM/db
CC: Senator Walter F. Mondale
Charles Kirbo, Esquire
R. J. Lipshultz, Esquire
Mr. Hamilton Jordan
Jack H. Watson, Jr., Esquire
Stuart Eizenstat, Esquire
LETTER OF COMMITMENT
TO: Honorable Jimmy Carter,
President-Elect of the United States
Date:
Dear Sir:
If you nominate me to be
of the United
States, and in the event I am subsequently confirmed to that
post by the Senate, take office, and thus become an employee
of the United States, I pledge as follows:
(1) I will comply in all respects with the Federal
Conflict of Interest Laws and related regulations applicable
to my office, both during and after my term of office.
(2) I have already or will, within 30 days of taking
office, file with such officers as you shall direct, as a
matter of information fully available to the public as
directed by you:
(a) a complete current financial net worth state-
ment which itemizes in detail all assets and all lia-
bilities of myself, my spouse, and other members of
my immediate household. All assets and liabilities will
be separately itemized and fully described;
(b) a sources of income statement for the year
1975 and for the period of time ending no earlier
than 60 days before the above date listing all sources
and amounts of all items of value received by me, my
spouse, and other members of my immediate household,
including, but not limited to, salaries, wages, fees,
dividends, capital gains and losses, interest, gifts,
rents, royalties, patents, and honoraria.
(3) I will not, while in office, participate in any
matter in which any private organization with which I was
associated prior to taking office is appearing or has a
direct and substantial interest. Moreover, I will immediately
cease participation in any matter relating to any private
organization as soon as I have entered into negotiations for
employment or association with that organization whether as
a consultant, employee, partner, or any other relationship
of financial value.
(4) I recognize that following termination of my
government service, I will be permanently barred by federal law
(18 U.S.C. § 207 (a)) from acting on behalf of anyone other
than the United States in connection with any matter in which
I participated personally and substantially in my governmental
capacity. I also recognize that for a period of one year
following termination of my government service I will be
barred by federal law (18 U.S.C. § 207 (b)) from appearing
personally before any court, department or agency on behalf
of any one other than the United States in connection with any
matter which was under my official responsibility during the
last year of my government service. "Official responsibility"
as used in the preceding sentence and in paragraph 5 below
means the direct administrative or operating authority,
whether intermediate or final, and either exerciseable alone
or with others, and either personally or through subordinates,
to approve, disapprove, or otherwise direct government action.
(5) I will not, for two years following termination of
my government service, deal with or represent in any profes-
sional or business capacity myself or anyone other than the
United States by direct or indirect appearance, or formal
or informal contact with any government officer with reference
to any matter within my official responsibility in government
during the twelve months preceding termination of government
service.
(6) I will not accept any employment or compensation
either direct or indirect, from any Interested Party as
below defined sooner than the earliest to occur of the following
events:
(a) the passage of four years from the time I
take office and become an employee of the United States;
(b) the passage of the term of office for which
I am accepting appointment;
(c) your removing me from my government office
or my resignation at your request;
(d) the certification by a reputable physician
that ill health requires me to leave government service.
"Interested Party", as used in this undertaking, shall mean
any party regulated by the
Agency or
Department or Division thereof or with which such Agency or
- 2 -
Department or Division thereof has entered into a single
contract during the last 12 months of my government service
involving the payment of more than $10,000 by the United
States of America or a party negotiating at the time of
termination of my government service for a contract involving
the payment of more than $10,000 by the United States of
America.
I agree that, if there is any doubt as to the applicability
of the foregoing commitments in this Paragraph 6 that I
will abide by a ruling thereon by you, if I am a Department
or Agency head, or by the Department or Agency I served
otherwise.
I understand that you reserve the right to waive the
requirements of this Paragraph 6 if you find it to be in
the public interest to do SO.
(7) I will, while in government service and for two
years after leaving government service, file periodically
in accordance with regulations to be promulgated by you
statements of assets and liabilities and sources of income
more particularly described in subparagraphs 1 (a) and (b)
above.
(8) I agree to give ninety days' notice prior to
resignation from government service unless otherwise requested
by you.
Very Truly yours,
ACCEPTED:
Jimmy Carter, as President-Elect
of the United States
MEMORANDUM FOR:
FROM:
John L. Moore, Jr., Special Counsel to the
Carter-Mondale Transition Group
SUBJECT:
PERSONAL AND FINANCIAL DATA
As part of the clearance procedures relating to your proposed
appointment, it is requested that you answer the following
questions and supply the following information to us. In
line with the policies of the new Administration, we expect
that the information disclosed will be kept at the Civil
Service Commission where it will be available for public re-
view and inspection, except that the income tax returns
supplied by you will not be made available to the public
unless you direct otherwise.
In order that we might complete all necessary reviews as
soon as possible, it is requested that you supply this informa-
tion at your earliest convenience and, in any event by
, 1976.
If you have any questions or if this office can be of assist-
ance, please do not hesitate to contact John L. Moore, Jr.,
who can be reached at either of the addresses shown below.
You are requested to make an appointment to visit with him
within three business days of receipt of these materials to
discuss your response, even if your information is not
complete at the time. Of course, Mr. Moore will be happy to
consult with your attorney or other advisers.
Suite 1000
1800 M Street
North Building
Washington, D. C. 20036
Telephone: 202-223-1300
or
1200 The Citizens & Southern National Bank Building
Atlanta, Georgia 30303
Telephone: 404-588-0300
OUTLINE OF INFORMATION REQUESTED OF NOMINEES
A.
BIOGRAPHICAL:
1. Name: (Include any former names used).
2. Address: List current residence address and mailing
address.
3. Date and Place of Birth:
4. Marital Status: (Include maiden name of wife or
husband's name).
5. Names and Ages of Children:
6. Education: List institution (s), dates attended,
degree received and date degree granted.
7. Employment
Record: List all positions held since age 21,
including the title or description of job,
name of employer, location of work, and
dates of employment.
8. Government
Experience: List any experience in, or association
with, federal, state or local govern-
ments, including any advisory, consulta-
tive, honorary or other part-time
service or positions.
9. Memberships: List all memberships and offices held
in professional, fraternal, social,
scholarly, civic, charitable and other
organizations.
10. Honors and Awards: List all scholarships, fellow-
ships, honorary degrees, honorary
society memberships, and any
other special recognitions for
outstanding service or achievement.
11. Published Writings: List the titles, publishers
and dates of books, articles,
reports or other published
materials you have written.
12. Qualifications: State what, in your opinion, qualifies
you to serve in the particular
position to which you have been
nominated.
B. PERSONAL DATA:
1. Have your federal or state tax returns been the sub-
ject of any audit or investigation or inquiry at any
time?
If so, explain.
2. Has a tax lien or other collection procedure ever
been instituted against you by federal, state or local
authorities?
If so, please give full details.
3. Have you accepted contributions in the past con-
cerning which there may be any question as to legality
or propriety?
If so, explain.
4. Do you have any campaign funds now on hand?
If so, explain.
5. Have you ever been arrested, charged or held by
federal, state, or other law enforcement authorities
for violation of any federal, state, county or municipal
law, regulation or ordinance? If so, please give full
details (do not include traffic violations for which a
fine of $25 or less was imposed).
6. Are you currently under federal, state, or local
investigation for a possible violation of a criminal
statute? If so, please give full details.
7. Have you ever been disciplined or cited for a breach
of ethics or unprofessional conduct by, or been the
subject of a complaint to, any court, administrative
agency, professional association, disciplinary committee,
or other professional group? If so, please give full
details.
8. Have you ever been sued in any state?
If so, explain.
What court or courts?
If divorced, in what court?
9. What is the condition of your health?
Have you had a physical examination recently?
Who was your physician?
Will you ask that the report of your examination be
made available to me?
10. Have you ever had psychiatric or similar treatment?
If so, explain.
11. Do you know of anyone who might take any steps, overtly
or covertly, to make your confirmation by the Senate more
difficult or seek to attack your appointment?
12. Please provide any other information which you regard
as pertinent or which could be the possible source of
embarrassment to you, or to the President, if publicly
known.
Without details, is there or has there been anything
in your personal life which you feel, if known, may be
of embarrassment to the Administration in the event you
should be nominated?
What about any near relative?
- 3 -
C.
FINANCIAL DATA:
Please note that federal law and regulations governing
conflicts of interest require Presidential appointees with-
in 30 days of their entrance on duty to provide reports
of specified financial interests as to themselves, their
spouses and any blood relation who is a household member.
The initial five matters listed below are designed to elicit
financial information similar to--although, in some cases,
broader in scope than--that which all Presidential appointees
are required to provide by Executive Order of the President.
The remaining paragraphs in this section seek elaboration on
your financial status beyond that which the existing Executive
Order and regulations require. As to all matters, please
provide the requested information for yourself, your spouse,
and any blood relations who are part of your household.
1. List the names of all corporations, companies,
firms, or other business enterprises, partnerships,
nonprofit organizations, and educational or other
institutions--
(A) with which you are now connected as an
employee, officer, owner, director, trustee,
partner, advisor, attorney, or consultant.
(Attorneys and consultants need list only
their major clients, but should include all
of those whom you represent on a regular
basis or which might give rise to an
appearance of bias on your part in connec-
tion with your proposed appointment.) Any
listed relationship or affiliation that you
wish to continue during the term of your
appointment should be noted with an asterisk.
(B) in which you have any continuing financial
interests, through a pension or retirement
plan, stock bonus, shared income, severance
pay agreement, or otherwise as a result of
any current or prior employment or business
or professional association. As to each
financial arrangement, provide all details
necessary for a thorough understanding of
the way in which the arrangement operates,
including information concerning any
renewal right you may have if the arrangement
is allowed to lapse and whether lump sum
or severance benefits are available in lieu
of continuation of the interest.
(C) in which you have any financial interest
through the ownership of stocks, stock
options, bonds, partnership interests, or
other securities. Any interests held
indirectly through trusts or other arrange-
ments should be included. Any listed
interests that you wish to retain during your
period of government service should be noted
with an asterisk.
2. Provide a complete, current financial net worth
statement that itemizes in detail and fully describes
all assets (including, but not limited to, bank accounts,
real estate, securities, trusts, investments, and other
financial holdings) and liabilities (including, but
not limited to, debts, mortgages, loans and other
financial obligations). Assets representing personal
or household goods, and liabilities for current and
ordinary household and living expenses must be included
but need not be separately itemized.
3. List sources and amounts of all items of value
received during calendar year 1975 and the portion of
1976 selected by you ending no earlier than 60 days
prior to the date of your reply (including, but not
limited to, salaries, wages, fees, dividends, capital
gains or losses, interests, rents, royalties, patents,
honoraria, and gifts other than those of nominal
value). In lieu of such a listing for 1975, you may submit a
copy of your federal income tax returns for 1975,
although the submission of income tax material is not
required under this item.
4. Please provide for review by this office (but
not for passing on to Senate Committee staff or to the
public) copies of your federal income tax returns for
1973, 1974, and 1975.
D.
FUTURE EMPLOYMENT RELATIONSHIPS:
1. Will you sever all connections with your present
employer, business firm, association or organization if
- 5 -
you are nominated by the President-Elect and confirmed
by the Senate?
2. Do you have any plans after completing government
service to resume employment, affiliation or practice
with your previous employer, business firm, association
or organization? Please consider as a "plan" your
own desire so to resume employment, etc. but identify
whether there may be reciprocity of such desire by your
employer, affiliates, etc.
3. Has anybody made a commitment to employ your
services in any capacity after you leave government
service?
4. If confirmed, do you expect to serve your full
term of office?
E.
POTENTIAL CONFLICTS OF INTEREST:
1. Describe all financial arrangements, deferred
compensation agreements, and other continuing dealings
with business associates, clients or customers.
2. Indicate any investments, obligations, liabilities,
or other relationships which could involve potential
conflicts of interest in the position to which you have
been nominated.
3. Describe any business relationship, dealing cr
financial transaction which you have had during the last
ten years, whether for yourself, on behalf of a client,
or acting as an agent, that could in any way constitute
or result in a possible conflict of interest in the
position to which you have been nominated.
4. Describe any activity during the past ten years
in which you have engaged for the purpose of directly
or indirectly influencing the passage, defeat or modi-
fication of any legislation or affecting the administra-
tion and execution of law or public policy.
5. Explain how you will resolve any potential conflict
of interest, including any that may be disclosed by your
responses to the above items. (Please provide a copy of
any trust or other agreements).
F. LETTER OF COMMITMENT
It is the view of the President-Elect that all officials
of government with a substantial policy role in it should
agree contractually to certain arrangements beyond the scope
of present law and regulations. Please examine the attached
letter of commitment. Will you be willing to sign it prior to
your formal nomination?
- 7 -
Altemare Form
MEMORANDUM FOR:
FROM:
John L. Moore, Jr., Special Counsel to the
Carter-Mondale Transition Group
SUBJECT:
PERSONAL AND FINANCIAL DATA
As part of the clearance procedures relating to your proposed
appointment, it is requested that you answer the following
questions and supply the following information to us. In
line with the policies of the new Administration, we expect
that the information disclosed will be kept at the Civil
Service Commission where it will be available for public re-
view and inspection. except that the values of assets.
amounts of liabilities and amounts of income as well as income
tax returns supplied by you will not be made available to
the public unless you direct otherwise.
In order that we might complete all necessary reviews as
soon as possible, it is requested that you supply this informa-
tion at your earliest convenience and, in any event by
/ 1976.
If you have any questions or if this office can be of assist-
ance, please do not hesitate to contact John L. Moore, Jr.,
who can be reached at either of the addresses shown below.
You are requested to make an appointment to visit with him
within three business days of receipt of these materials to
discuss your response, even if your information is not
complete at the time. Of course, Mr. Moore will be happy to
consult with your attorney or other advisers.
Suite 1000
1800 M Street
North Building
Washington, D. C. 20036
Telephone: 202-223-1300
or
1200 The Citizens & Southern National Bank Building
Atlanta, Georgia 30303
Telephone: 404-588-0300
CARTER-MONDALE TRANSITION GROUP
POLICY GUIDELINES
CONFLICTS OF INTEREST; FINANCIAL
DISCLOSURE; AND RESTRICTIONS FOLLOWING
GOVERNMENT SERVICE
It will be the policy of the Carter-Mondale Administration
to appoint and nominate for appointment, only persons of
high ability who will carry out their official duties without
fear or favor and with an equal hand, unfettered by any actual
or apparent conflicts of interests. To decree that no person
can have any financial interests other than a salary from the
Government would seriously limit the ability to recruit the
most qualified persons. The Carter-Mondale Administration
will require full disclosure of all continuing affiliations
and of assets and liabilities of nominees and their immediate
families. It is hoped that except in rare circumstances
divestiture causing severe tax burdens will be unnecessary
if the present laws and regulatory framework are diligently
and fairly administered.
The following guidelines pertain to the assets and
liabilities of a nominee, the spouse of the nominee, and
the nominee's minor child or children, partner, or any or-
ganization in which the nominee continues to serve as an
officer, director, trustee, partner, or employee while in
the government service or any personal organization with
which the nominee has negotiated or has any arrangement
concerning prospective employment.
All nominees will be expected to comply with all relevant
statutes (particularly 18 U.S.C. Section 208) and the rules
and practices of the particular Department or Agency served.
If the person is nominated to a Level I or II position
divestiture should occur if compliance with the provisions
of 18 U.S.C. Section 208 indicates a conflict requiring
disqualification from action for the Government more than
rarely. Nominees for positions at Level III and other posi-
tions in the Government should require divestiture because
of conflicts arising under 18 U.S.C. Section 208 only if
use of disqualification will seriously impair the capability
of the officer to perform the duties of the office to which
nominated.
Beyond the requirements of 18 U.S.C. Section 208, persons
nominated to positions at Level I or II should divest holdings
and liabilities where the nature of the holding or liability
is such that it will be broadly affected by governmental mone-
tary and budgetary policies. Generally excepted from require-
ments of divestiture (unless the particular position indicates
continuing conflicts arising in government service with respect
to a particular interest) will be made for:
a.
real estate interests whether in the form of
ownership of land or participations in partnerships.
b.
well-diversified holdings; e.g. less than a 1%
holding of a well-diversified mutual fund or a
total of not more than approximately $200,000
invested in well-diversified assets no one of
which exceeds approximately $20,000 in value.
Blind trusts will be recognized as appropriate methods
of divestiture where divestiture is required provided:
a.
the trustee is truly independent;
b.
the assets transferred in trust are either
cash or well-diversified assets;
C.
the trustee is given entire discretion to
sell or buy without discussion with the
government officer or anyone close to such
officer and the only reports given to the
government officer are the schedules neces-
sary to file with income tax returns (which
schedules do not list anything more than
totals of taxable items from the trust).
The attention of nominees will be directed to the
provisions of 18 U.S.C. Section 209 prohibiting receipt of
any compensation from any party other than the United States
for government service. While the matter of payments for
services prior to entry into government service are properly
addressed by legal counsel to the appointee and the organi-
zation making the payment, the following general guidelines
seem appropriate:
a.
If there is a pre-existing established plan
of the particular organization to reward past
service upon termination of service to the
organization, obviously such plan can be
recognized and followed.
-2-
b.
If there is no pre-existing established plan
of the particular organization it is suggested
that a payment in excess of 6 months of salary
or in excess of a range of $25,000 to $50,000
would need careful examination.
In all events, it is expected that payment of any severance
benefits will be completed prior to the nominee's taking office
in the Government.
While 18 U.S.C. Section 209 (b) allows continuing participation
in a bona fide pension, retirement, group life, health or acci-
dent insurance, profit sharing, stock bonus, or other employee
welfare benefit plan maintained by a former employer, nominees
will be asked generally to exercise any stock options prior to
commencement of government service (unless, because of the
requirements of the Securities Exchange Act, such exercise should
occur within a reasonable period after beginning government
service in which case the government officer may exercise within
such limited period, providing other guidelines are followed
concerning conflicts of interests as above stated). Nominees
will also be asked not to have contributions made to profit
sharing plans by former employers based on earnings of the former
employer after the government officer takes office.
Deviations from the foregoing guidelines will only be
made with the express consent of the President-Elect with
respect to Level I and II appointments and by heads of depart-
ments or agencies with reference to other appointments. The
reasons for the deviations will be made public.
It is proposed to ask appointees to enter into a letter
of commitment, a copy of which is attached, which, in several
respects calls for the disclosure of financial information
beyond the requirements of existing law and regulations. It
is contemplated that the financial disclosure requirements will
be made subject to an Executive Order shortly after the new
Administration takes office. The attached letter of commitment
also describes certain restrictions requested of nominees
following government service. Shortly after the new Administra-
tion takes office Congress will be requested to take action
along the lines spelled out in the attached letter of commitment.
It will be the policy of the new Adminstration to encourage
every Department and Agency of the Goverment to advise every
new employee of existing laws and regulations relating to con-
flicts of interests and to have a prior screening of such conflicts
at the time of appointment. It will be a further policy to
encourage Departments and Agencies to institute procedures for
continuing policing of conflicts.
It is the objective of the new Administration to avoid
any conflict which could in any way influence any government
officer except in the even interest of all the people.
-3-
December 9, 1976
C
MEMORANDUM
Merit Selection of Federal Judges and U.S. Attorneys
This memorandum builds upon an options paper prepared
earlier and included in the Department of Justice Briefing
Book on the subject of improving the courts. That paper
considered a range of available options for merit selection
of federal judges and recommended that a panel structure
be established at the national and district level or some-
where in between to perform the function of seeking out and
recommending to the President the names of qualified
candidates. The paper cautioned that no steps should be
taken with respect to merit selection until a valid
measure of the depth of Senate feeling on the subject
was taken.
Part I of this memorandum attempts to assess the likely
reaction of the Senate to a merit selection proposal and
discusses various political considerations in establishing
such a system for both federal judges and U.S. attorneys.
Part I recommends that before any decision is made with
respect to the form and manner of implementation of a
merit selection program, Governor Carter should personally
consult with key Senators.
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
- 2 -
President's
Part II of this memorandum pursues, and elaborates upon,
another option with respect to merit selection which is a
combination of alternatives suggested in the earlier options
paper -- the creation of a National* Judicial Selection
Commission, to be assisted by local advisory panels in each of
the 50 states, the District of Columbia, Puerto Rico and the
Virgin Islands.
The question of merit selection is one of some urgency.
There will be approximately 25 vacancies in judgeships
when Governor Carter takes office on January 20, 1976, and
perhaps as many as 75 more judgeships are expected to be
created by legislation by the Fall of 1977. If a merit system
is to have a significant impact during the first four-years
of a Carter Administration, these vacancies must be filled
through such a system. Yet, as will be discussed in Part II,
it will take at least 60-90 days for a judicial selection
commission to become operational, and much longer to do a
creditable job of recommending names for some 100 vacancies.
*Some objection has been expressed that referring to the
Commission as a National one might unnecessarily offend the
Senate.
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
- 3 -
I. Political Considerations in Establishing A Merit
Selection System for Federal Judges and U.S. Attorneys
In developing options for merit selection, we have
undertaken to interview a number of persons who are knowledge-
able with respect to Senate politics, and especially with
respect to the Judiciary Committee. These include members
of the staffs of several Senators on the Committee and
lobbyists for groups concerned with issues within the
jurisdiction of the Committee. The number of interviews
was kept small for fear that broader contact might hamper
future dealings between Governor Carter and the Senate on
this delicate issue.
The question of merit selection is a delicate one
politically because of the custom of senatorial courtesy
which allows a single Senator, through use of the "blue
slip" procedure, to prevent, if he chooses, confirmation of
a federal judge or U.S. attorney for his state. 1 In effect
1
A Senator can prevent a hearing on a nomination from
being conducted by the Judiciary Committee simply by pocketing
a "blue slip" sent to him by the Committee. The "blue slip"
practice grew out of the prerogative of a Senator to defeat
nominations by declaring a nominee "personally obnoxious" to
him. Such a declaration may mean that the Senator and the
nominee are personal or political foes, or simply that the
Senator has another candidate for the post.
- 4 -
the custom permits the Senators of the party in office, and
frequently other Senators as well, to control selection of
local Federal officials -- district court judges, U.S. attorneys,
and U.S. marshals -- within their states. While none of the
merit selection options under consideration need necessarily
require Senators to give up their "blue slip" privilege
to veto a choice as being "personally obnoxious", 2 (see Part
II below) the options would require that Senators relinquish
a substantial amount of control over who is recommended for
appointment. Moreover, to be successful, a plan obviously
requires that Senators not exercise their "blue slip" veto
so as to frustrate the merit selection process. Control
of selection of local federal officials is one of the few
patronage mechanisms left to Senators, has been used by
liberal and conservative Senators alike, and is something
almost all will probably be reluctant to give up.
Likely Reaction of Senate to Merit Selection of Judges
There was no consensus among those interviewed on exactly
what the reaction of the Senate would be to a proposal for
merit selection of federal judges. On the one hand, the
2 Indeed, it would be politically dangerous for a president to
attempt to interfere with the internal procedures of the
Senate by suggesting reform of the "blue slip" practice,
although such reform would obviously be of great benefit
to a merit system.
- 5 -
Counsel to the Subcommittee on Improvements in Judiciary
Machinery expressed the view to the effect that "the
President will have a major fight on his hands which he
doesn't need in the first months of his Administration."
On the other hand, the senior lobbyist for Common Cause suggested
that "the 'blue slip' system's time has come," and after an initial
stir it will fall easily and quietly and, indeed, will be welcome
by a number of Senators.
The middle view between these extremes, and
the one we think perhaps most accurate, was expressed best
by the Chief Counsel to the Senate Judiciary Committee,
Francis Rosenberger, who is one of Senator Eastland's
representatives. He said that "under the constitution
the President has to make the nominations and the Senate
has to vote; the President can make the initial selection
any way in the world he wants to." On the other hand,
he said he did not think the Senators would ever forgo
their right to say a nominee is "personally obnoxious".
In sum, his view was that a formal merit system would
work (though he objects to the term merit selection because
it implies that judges are not presently selected on the
basis of merit, an implication he finds inaccurate and dis-
tasteful); that a commission could be established to recommend
- 6 -
nominees to the President without significant opposition
by the Senate; but that the "blue slip" practice would remain
in place and the President would have to be prepared to
negotiate occasionally with Senators with respect to nominations
and even to eliminate some of the candidates recommended by
a commission.
This view was essentially confirmed by representatives
of Senators Byrd (Tom Hart) and Kennedy (Tom Susman) who support
(and believe their Senators would support) the establishment of
a merit process, but who cautioned that any system must continue to
have some political input to be acceptable to the Senate.
Senator Byrd's representative, when presented, as a hypothetical,
with the option discussed in Part II of this memo -- i.e., a
national commission, supported by local advisory panels whose
members are in part selected by Senators, and retention of
"blue slip" practice -- reacted quite favorably saying he was
glad we were thinking in realistic terms of preserving Senate
input.
And the view is supported by the fact that an increasing
number of Senators -- Senators Huddleston, Ford, Chiles,
Stone, Percy, Javits and Cranston -- have voluntarily
agreed to turn over all or part of the pre-nomination
selection process to formal commissions or informal screening
committees.
These basically positive views should be kept in mind
when the predictable adverse responses and over reactions
are voiced by those who have particular vested interests in the
status quo.
- 7 -
In summary, it is impossible to state with certainty
what Senate reaction to a merit system for selection of
federal judges will be until the question has been put to
the Senators themselves. It is our assessment, however,
that if the proposal is a reasonable one which retains some
political input, and if the proper approach is made to the
Senate (see discussion below, p. __), the President-elect
can move quickly to establish a merit selection system with-
out seriously damaging his relationship with the Senate.
Likely Reaction to Merit Selection of U.S. Attorneys
Our conclusion is different with respect to the
U.S. attorneys. Most of those interviewed believe, although
there was disagreement, that Senators will be far less
favorably disposed to interference with their control
over selection of U.S. attorneys in their states. This is
so in large part because Senators have traditionally exer-
cised more personal control over the choice of U.S. attorney.
They negotiate directly with the Deputy Attorney General,
the Judiciary Committee routinely approves the selection
without a hearing, there is little input from the ABA,
and public attention is seldom focused. In view of
this fact, and since implementation of a formal merit
selection system for federal judges alone will be viewed as
a serious inroad into Senatorial power, it is suggested that
- 8 -
the wiser course would be to retain for the time being the
present method of selecting U.S. attorneys. This is especially
true since there is considerable disagreement about whether
a national commission should be used in the selection of
U.S. attorneys.
Even under the present system there is substantial room
for negotiation with Senators, and the President's commitment
to merit selection of U.S. attorneys can be reaffirmed without
resort to a national selection panel by a proposal along the
following lines (an approach substantially concurred in by
Deputy Attorney General Tyler) -- (1) the announcement by the
President that he is committed to merit selection and, for
that reason, intends to review the records of all the 94
U.S. attorneys presently in office and to reappoint Republican
office holders where merit warrants it; (2) an expression of
concern by the President with the turnover in assistant
U.S. attorneys which usually accompanies a change in
Administration and a request that assistant U.S. attorneys
reconsider before leaving their jobs; and (3) the appointment
of a blue-ribbon commission to study the question of
selection of U.S. attorneys and to report its findings to
the President.
Senate Input in Establishing a Merit System
It was suggested by everyone interviewed that the
Senate should be involved as much as possible in the
- 9 -
establishment of a merit process. The suggestions as to
the degree of involvement, however, ranged from merely
asking key Senators to support the President's proposal
to asking the Senate to actually develop a proposal, to
conduct hearings and perhaps legislate in the area. 3 Again,
a response somewhere in between these two extremes was more
prevalent and appears to be the most reasonable, given all
the circumstances. It is suggested that key Senators (and
perhaps eventually all Senators) be contacted by Governor
Carter or his representative (see discussion below), told
that the Governor is developing a merit selection plan he
would like to see put into operation and ask for their
advice and support.
There was disagreement among those consulted as to
how well-developed and how firm the plan should be as
presented to the Senators. It is probably the better view,
that the essential elements of a merit system
3
One suggestion was that Governor Carter may wish to
orchestrate a scenario in which a group of Senators request
him to develop and implement a merit system. This suggestion,
however, was not favored by most and is not recommended. In
any case, such a response by a group of Senators could very
well develop naturally from preliminary contacts by Governor
Carter.
- 10 - -
(and there may not be many) -- that it be fair and bi-
partisan, that it produce the best qualified candidates,
that it ensure adequate consideration of women and
minorities -- be made known to Senators, and that it be
made clear that these elements will be insisted upon.
Beyond that, the very purpose of contacting Senators is to
ascertain exactly what features they would consider
essential to a plan. Care must be taken, however, to
thwart clearly unacceptable suggestions before they can
develop. And, extensive involvement by the Senate in the
details of a plan could cause serious and perhaps unaccept-
able delay in establishing a merit system.
Steps to be Taken
There was a consensus among those interviewed on at
least one thing and that is the appropriate steps to be
taken in the next few weeks with respect to establishing a
merit system. First, Governor Carter should personally
contact Senator Eastland, who is the key to smooth imple-
mentation of a merit system. That contact should ideally be
made before Christmas, since the Senator's response will be
significant in making further plans. Governor Carter may
also wish to contact Senator Mansfield during this period
as a respected elder statesman. Next, Governor Carter should
- 11 -
personally consult with both the democratic and republican
leadership of the Senate. These contacts should not be made
until after January 5, 1976, when the new leadership will
4
be selected, but should be made as soon as possible
thereafter.
Governor Carter should then contact, probably personally,
Senator Kennedy, Speaker O'Neill and Judiciary Chairman, Rodino.
And, contacts should be made between a representative of Governor
Carter and other key Senators (members of the Judiciary Com-
mittee, those defeated in the leadership election, those who have
shown particular interest in merit selection including Senators
Haskell, Percy, Javits, Chiles, Stone, Huddleston and Ford, and
Senators from states that have implemented a merit system for
selection of state court judges). A judgment can then be made
whether other Seantors should be contacted.
In approaching any Senator it is important to keep in
mind that the system presently used to select federal judges
is not a bad one. A large majority of those selected through
4
Any contacts before January 5, 1976, with those running
for leadership positions is unlikely to be fruitful since they
will not wish to take a stand before the election, and it
may place the candidates in an awkward position with respect
to their opponents.
- 12 -
the system are good judges, and many Senators are justifiably
proud of the care which they take in making their selections.
Thus, the approach should be not that the present system is
bad, but that it can be made better and, especially, that
minorities and women, who need special search efforts, can
be more widely represented with use of a new system.
As a final point, a number of Senators, because of
their experience, may be able to make a substantial and
useful contribution to developing standards to be applied
by a national commission in selecting the best qualified
candidates and to deciding what outreach, screening and
selection procedures are best. They should be invited to
do so, perhaps by sending representatives from their staffs
(or from the Judiciary Committee staff) to actually parti-
cipate in setting up a Commission.
If a decision is made to proceed with implementing a
merit selection system, or with contacting key Senators to
further assess the feasibility of implementing such a system,
certain steps should be taken now by Governor Carter's staff
so that no time will be lost in setting up a system.
- 13 -
Because of the delicacy of the matter, the need for
personal contact with the Senators and the need to make
some political judgments, a person of some stature and
prominence, close to Governor Carter, should be asked to
oversee the program. Contacts should be established with
various interest groups such as the ABA and Common Cause
who have developed merit proposals and whose support in
gaining acceptance of a new system would be invaluable. And
the Talent Inventory Program should be alerted to begin a
confidential search for potential members of a national
commission and its staff. Indeed, Governor Carter may
wish to consider as commission members some of those
candidates who are not selected to fill cabinet and
sub-cabinet posts, keeping in mind that the commission
is to be bi-partisan.
- 14 - -
II. A National Judicial Selection Commission with
Supporting Local Advisory Panels
A national commission for the selection of federal
judges, with supporting local advisory boards, presents the
advantages of both the national and local approaches. There
appear to be two principal reasons why a national commission
may be a more attractive option than the use of smaller,
local commissions (created either on a state-wide or
judicial district-wide basis). First, in effecting
a rather sharp departure from past practice -- a
departure that may engender some political opposition -- it
appears preferable to vest the selection process with as much
prestige and visibility as possible. A national commission,
selected by the President and somewhat limited in size,
seems a more likely way to produce this prestige and
visibility than a multitude of state or district panels.
Second, a national commission will be able to attract
the competent, well-paid staff necessary to do a first-
rate job in locating and evaluating candidates for
judgeships. Smaller state-wide or district-wide commissions
would not only require more staff members in the aggregate,
but also may not be able to attract the same quality of staff.
- 15 -
It is extremely important to the ultimate success of a
merit system that it produce especially good choices in
the initial period when it will be subject to critical
scrutiny.
Judicial selection by means of a national commission
does not necessarily require that the virtues of a local
approach be sacrificed. A principal virtue of state-wide
or district-wide selection panels is that panel members
could be expected to be more personally familiar with local
attorneys from which future judges will be selected. Another
is that local panels give at least the appearance of leaving a
degree of control of the process in the hands of Senators,
especially if Senators are allowed to select some members
of the local panels. Both these can be substantially preserved if
state-wide advisory panels are created to assist in gathering
names of, and accumulating information about, judicial
candidates. Senators could be asked to assist in establishing
these panels, and they would not necessarily have to be
in place in time to assist in the initial recommendations
of the national commission.
- 16 -
Creating and Funding a National Commission
The Commission can be implemented by an Executive Order.
At the outset, given the political sensitivity, the Order
could provide that the Commission will serve for a limited
period of time, probably between one and two years. During
this period, there are two possibilities for diverting resources
for use by the Commission: (1) using Justice Department
personnel on loan; or (2) funding the staff from the White
House budget. The apparent difficulty with the first proposal
is the shortage of available Justice Department personnel.
While the second proposal may raise some constitutional con-
cerns, it is in all probability a feasible approach for up
to two years.
The commission should consist of from nine to eleven members,
selected on the basis of most if not all of the following
criteria:
-- There should be considerable geographic distribution,
perhaps one member for each of the eleven federal
judicial circuits.
-- The commission should be distinctly bi-partisan,
with at least a substantial minority of Republican
and Independent members.
- 17 -
-- There should be both women and minority members
on the commission.
-- The ABA Committee on the Judiciary is a sig-
nificant force to be reckoned with in this
process, and a substantial number of members
(perhaps 3 or 4) could well be members of that
committee or at least persons who have close
ties to what might be called the "establishment"
bar.
-- At the same time, there should be some "non-
establishment" lawyers on the commission,
perhaps chosen from among the institutional
plaintiffs that frequently litigate in the
federal courts (the ALCU, the NAACP Legal
Defense Fund, environmental groups).
-- There should probably be at least one law
professor on the panel.
-- Non-lawyers should be included.
-- From a political perspective, there may be
some virtue in including a Senator or a former
Senator.
-- It may be wise to include a former judge on the
panel as well. Active judges should not be in-
volved in the selection of their colleagues.
- 18 -
The national commission option proposed here envisions
a full-time staff of approximately 20 persons. The Director
should command wide and uniform respect among all groups
within the legal community. Like the commission members,
the staff members should, ideally, represent a geographical
cross-section.
Within 30 days of any decision by the President to
implement the option discussed here, it should be possible
to have selected a full complement of commission members and
staff. It seems likely that, 60 days thereafter, the commis-
sion could begin to forward names to the President. However,
it seems better to take longer if necessary, than to proceed
too speedily and at the risk of having the commission pro-
pose names that can be subjected to legitimate criticism.
The Judicial Selection Process
The commission would be responsible for recommending
five names to the President for each vacancy. The process
would begin with the collection of a very large number of
names of possible candidates. The principal sources for
such names would be the local advisory panels, to which the
Congressional delegations from each state could submit names.
In addition, the Attorney General (or the Deputy Attorney
General) could submit names on behalf of the President. Members
of the legal profession and the public would also be
encouraged to submit names through the local panels, but
- 19 -
suggestions made directly to the national commission would
not be rejected. Names (and any information) gathered by the
local panels would be forwarded to the staff of the national
commission.
Once the staff has received names and addresses
of prospective judges, the candidates themselves would,
in almost every case, be expected to fill out some form
of questionnaire to indicate, among other things, the
breadth and extent of his or her legal experience, published
legal writing, if any, and public interest or community
involvement. (Similar questionnaires are now in use in the
selection of New York State judges and Administrative
Law Judges for federal agencies.) Those submitting
questionnaires would be assured that they would be accorded
confidential treatment. However, if the individual were
included among the list of names recommended to the President,
he or she should be told to expect the fruits of the staff
investigation -- including the questionnaire submitted --
to be forwarded to the President and (if selected to be the
nominee) to the Senate Judiciary Committee upon request.
At some point relatively late in the winnowing down
process, the commission would be expected to consult with
Why?
the ABA's Standing Committee on Judicial Selection and Tenure,
which should be asked to continue to evaluate prospective
nominees. There should be some effort to have the ABA
Committee revise certain of its criteria for fitness, however.
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
- 20 -
Many believe, for example, that the legal and trial experience
required by the ABA is excessive and excludes many otherwise
meritorious candidates. 5
Prior to the submission of a list of names to the
President, the members of the commission would be expected
to interview all of the persons still under consideration.
To provide some flexibility for the President in selecting
from among the names provided, the Commission should not
rank its recommendations. Under this proposal, the President
would commit himself to nominate a person recommended to
him by the Commission. At the same time he would be free --
though it is hard to see that he would ever have occasion to
do so -- to reject all the names submitted by the Commission
in the first instance and to request that a new list of
names be submitted.
Senators from the state in which the vacancy had arisen
would be informed of the five names recommended to the
President, which, presumably would become public, and of
no
the President's selection. It is at this point that Senators
could be expected to enter into negotiation with respect
to using their "blue slip" veto power if they objected to a person
on the list. Such negotiations should not result in a
5 If the ABA does not revise its criteria, the ABA Committee
may rate as unqualified or minimally qualified a candidate whom
the commission regards as extremely well qualified. If this occurs,
the commission may choose to recommend (and the President nominate)
the candidate nowithstanding, and to carefully--and publicly--
explain the reasons for disagreement with the ABA.
ELECTROSTATIC REPRODUCTION MADE FOR
PROGRATION PURPOSES
- 21 -
sacrifice in quality, since even if a Senator were to veto
one of the commissions's recommendations, four other persons
of outstanding caliber would still be available.
Conclusion
It bears repeating here that there is no una-
nimity of opinion that the features of the above option
are the best ones for a merit selection system. Some think
that it is unnecessary and excessively cumbersome and inefficient
to have either a national commission or local panels; that the
screening could be performed satisfactorily by, for example,
a special assistant to the President for judicial selection
and his or her staff. Others believe that serious problems
are created by the use of local advisory panels instead of
establishing direct contact between commission staff and
local interest groups. In a world free of political
considerations, these suggestions might be better. The
above option, however, represents an attempt to accommodate
what we perceive now as the likely Senate reaction to a
merit system.
MEMORANDUM:
Briefing Book
SUBJECT:
MORE ISSUES IN THE AREA OF CODE OF ETHICS
AND CONFLICTS OF INTEREST
This Memorandum supplements earlier memoranda and
the outline of a proposed Executive Order and, therefore, does
not repeat the issues and positions therein discussed.
Termination Benefits
Present law allows, as not violating the prohibition
against payment for government services by any party not the
government, continuation of bona fide fringe benefit plans.
In addition, it has been ruled that cash bonuses on termina-
tion of prior service, if paid in recognition of past services,
and not to supplement pay while in government service, are law-
ful. The test as to them is whether the amount of the termina-
tion pay is justified - would the prior employer have made a
similar payment if the former employee were leaving to under-
take service as a college president?
As to fringe benefit plans, option plans are expressly
allowed to be continued. If options were granted during
private employment, the government employee may continue to
hold them and exercise them while in government service. Of
course, if the optioned stock creates a conflict of interest
other laws may require divestiture or disqualification with
reference to the particular corporation.
Query, should the President-Elect propose changes in
these areas?
Recommendation:
(1) Termination bonuses should not be outlawed but
certain guidelines implemented, such as, no more than six
months' pay at the private level; requirement of a formal
policy of the particular employer applicable to all employees
leaving service to enter non-competitive fields, such policy
to have been in force prior to this particular action.
ELECTROSTATIC REPRODUCTION MADE FOR
PRESERVATION PURPOSES
(2) A government employee should not continue to hold
or exercise options while in government service but could ex-
ercise after nomination and prior to taking office (subject
to resolution of conflicts of interest).
Divestiture
Policy Executives: As to the President, the Vice
President, all Cabinet Officers, White House Officers, and
Executive Office Officers (Office of Management and Budget,
Council of Economic Advisers, National Security Council,
Civil Service Commission, General Services Administration,
and General Accounting Office) Ted Sorenson suggests that
divestiture of any major company stocks and other interests
ought to be the rule if the particular asset could be deemed
to rise or fall in value dependent on general policies and
actions of the administration. However, he tended in dis-
cussion to be willing to use a "Blind Trust" with gifts to
charity of earnings and capital growth during government
service if divestiture is impossible or too costly.
Present and Past Practice: Defense has required divesti-
ture of stocks on a list of 5,000 companies which have done
more than $10,000 of business with Defense in the year preced-
ing confirmation. If a Blind Trust is to be used the trustee
must be instructed not to acquire any stock on the sensitive
list. Other committees have, until recently, been quite
accommodating on use of Blind Trusts which are not really
blind because of large holdings of a particular company. All
committees have been much more rigorous of late and the
present climate seems to call for the Sorenson position.
Subordinate Posts: Where a continued holding would
create only rare or infrequent possibilities of disqualifica-
tion not seriously affecting the duties of the particular
office, the practice has been not to require divestiture.
Regulatory Agencies: Several have statutes requiring
divestiture of stock of regulated companies. Past practice
has not gone beyond such statutes. There seems to be no
strong argument that members of regulatory agencies should
have to divest of stocks outside the regulated industries.
But particular study ought to be given to divestiture by
members of commissions with broad impact such as the Federal
Reserve Board, Federal Trade Commission, and the Securities
-2-
and Exchange Commission.
Minor Real Estate Holdings: Of late many people have
invested in either developed or undeveloped real estate.
While the value of such holdings can go up or down depending
on governmental policies and actions there seems to be no
strong feeling that these must be divested. Other than the
general effect on these holdings there seem few instances
when a conflict in a particular case could arise except in
a particular tax matter in which case disqualification would
be practical in all cases. Query, the political effect of
"tax shelter" used by high government officers. It should
be noted that at present most real estate holdings could
not be divested because of illiquidity.
Blind Trusts: Blind Trusts will be considered ade-
quate divestiture if
(a) Trustee is demonstrably independent.
(b) Trust provisions cede absolute control to
Trustee as to sale and purchase of assets and prohibit
furnishing of information as to assets held pending
government service.
(c) Assets placed in trust are all cash or diversi-
fied and no particular asset is of such size and of
such tax basis as to make it clear to grantor that the
asset has not been sold because of the absence of capital
gains tax.
Revolving Door
Most of the study of questions relating to post-
government service employment has gone on in the staff of the
Senate Committee on Government Operations. Jim Graham, Staff
Counsel on Regulatory Reform, has made available to me that
portion of his report (not yet considered by the committee),
and I attach it as Exhibit A. I apologize for the length
of the attachment but the information in it is necessary to
understand the recommendations.
Counsel to the Armed Services Committee and the Commerce
Committee were not SO concerned about employment after
-3-
government service as by exploiting valuable contacts in
government.
Ted Sorenson was concerned that too onerous restrictions
could inhibit recruitment.
The evils to be addressed:
(a) Too rapid turn-over in regulatory commissioners,
(b) Financial exploitation (by salary, commission,
or fee) of contacts within agencies and departments
used after government service.
The Graham proposal addresses (a) but does not address
(b) if no bar is imposed in the circumstances.
Moore Recommendation:
(a) A prohibition for two years following government
service to represent self or any other person or group by
direct or indirect appearance, or formal or informal contact
with any officer of government (government-wide) with refer-
ence to any matter (including rule-making) within the official
responsibility of the officer during his last twelve months
in office.
(b) A prohibition for two years following government
service, for any fee, commission, salary, or other benefit,
to represent self or any other person or group by direct or
indirect appearance, lobbying, or formal or informal contacts
with anyone in the agency or department in which the officer
served within twelve months of termination of government
service.
I do not believe any bar as to employment as such is
necessary. If politically it is deemed desirable (and it
may well be), I would recommend Graham's proposal with one
addition, that in no event does the bar extend beyond four
years less the term spent in government service.
Financial Disclosure
For three years the Commerce Committee (having con-
firming authority for the Commerce and Transportation
-4-
Departments and most regulatory agencies other than SEC and
Federal Reserve Board) has required disclosure in files
available for public viewing of three past years of sources
of income and a current balance sheet. The Committee has
not been aware either of any resistance from nominees or
abuses of the information by the public.
Ted Sorenson had some reservations, not about dis-
closure, which he favors, but about the availability to the
public which he feared could hurt recruitment.
If the statements are to be available to the public
all concerned seemed to agree that they should be on file
at the Civil Service Commission.
The options:
Sources of Income (at nominee's option, copies of
tax returns): For three past years; for two past years;
for one year past.
Recommendation: Last complete calendar year plus
portion of year ending not more than 60 days prior to date
of report.
Balance Sheet: All assets; all assets other than
personal residence; same but disclosure can be as to values
in brackets as to each item (e.g., less than $5,000, $5,000
to $10,000; etc.)
All liabilities; all liabilities than
those incurred to buy personal residence.
Recommendation: All liabilities.
Subsequent Reporting:
During Public Service: Present regulations call for
initial filing and quarterly updating of lists of financial
relations and names of creditors without giving values or
amounts; the information is not available for public in-
spection.
Recommendation: Initial filing of sources of income
-5-
and balance sheet items with values and amounts; quarterly
updating as to changes in balance sheet items and annual
sources of income (or tax returns); all to be available for
public inspection.
Post-Government Service: Present regulations require
no reporting.
Recommendation: Continue as if in government service
for two years following government service. I attach for
review and change or approval:
Exhibit B - Contractual Undertaking of Nominees.
Exhibit C - Personal Data Questionnaire to be com-
pleted by nominees and processed by
Special Counsel to the Transition Group
(Moore) for reporting to those making
final decisions.
Exhibit D - Further data obtained by present White
House Staff - for consideration. If
it is to be obtained, who should process
the questionnaire?
Respectfully submitted,
John John L. L.Mone Moore, Jr. Jr.
-6-
The organic acts of almost all regulatory agencies contain no
restrictions on post-employment by officers and employees. A major
exception is the Consumer Product Safety Commission, which is the
only agency reviewed in this study that takes the approach of flatly
prohibiting commissioners from accepting certain employment. The
Consumer Product Safety Act forbids members from accepting
EXHIBIT A
132
"employment or compensation from any manufacturers subject" to
regulation by the agency for a period of one year following
services. 161/ It is at once obvious that the Act contains a major
loophole: former CPSC members can accept employment from whole-
salers, retailers, suppliers and distributors subject to agency
regulation; in that regard, 18 USC 207 applies to any subsequent
practice by former regulators. Since only two CPSC members have
left the agency since its creation, it is still uncertain what effect
the limited or partial prohibition will have on former commissioners.
However, our concern about the adverse potential of such restrictions
on the government's ability to attract able and experience regulators
compels us not to propose that the Act be amended to include those
other employment groups within the prohibited category. Indeed,
for reasons hereafter detailed, we recommend that the present
1-33
restriction on post-employment contained in the Consumer Product
Safety Act be repealed.
The organic acts of two other regulatory agencies, Federal
Communications Commission and the Federal Reserve Board, place some
restrictions on the subsequent careers of former commissioners. Both
adopt a similar approach by placing restrictions only on those
commissioners who fail to complete the full term to which they were
appointed. While the subsequent careers of all regulators are to
some extent restricted by 18 USC 207, FRB and FCC members who leave
prior to expiration of their full term are faced with additional
restrictions. The Communications Act of 1934 prohibits an FCC
member who has not served the full term from "representing any
person before the Commission in a professional capacity" for a
period of one year. 162/ The FCC provision goes significantly
134
beyond that of section 207, in that it forbids representation of
any person presumably on any matter for a period of one year; the
regulator need not have been personally or substantially involved
in order for the restriction to apply. The restriction placed on
members by the Federal Reserve Act refers, not to participation
before the agency, but to the matter of employment in the regulated
area. That Act forbids all board members, except those who have
completed their terms of office, from "holding any office, position,
or employment in any member bank" for a period of two years after
leaving office. 163/
Both FRB and FCC restrictions are intended to, and have the
effect of, encouraging regulators to complete the terms to which
they were appointed; and, in our opinion, rapid turnover of commis-
sioners is a very serious problem. It is not unusual for a
135
commission to operate with only a bare majority of its members, or
to have the addition of new commissioners almost on an annual basis.
Many commissioners resign before the expiration of their terms. Of
course, all of those problems are heightened measurably when, as is
often the case, the regulator initially takes office with little or
no knowledge of the functions and issues of an agency; most learn on
the job. But even in the case of an experience regulator, brief
service can amount to a very minimal contribution. As Frank Wheat--
an experience corporate lawyer who served 5 years on the SEC--com-
mented: "anybody who thinks he can go to Washington and accomplish
anything in one or even two years is crazy. " 164/ While it is not
clear that very long service is consistently in the public interest,
there can be no doubt that very brief tenure detracts significantly
from a commission's stability and effectiveness.
136
The Senate has been concerned about the problem of tenure for
some time. Evidence of that interest is the frequently-asked
question at Senate hearings whether the nominee intends to serve
the entire term to which he or she was appointed. The response is
always affirmative, but the premature resignations continue. It is
also not a problem of recent vintage. Sixteen years. ago, the Senate
expressed its concern in a resolution:
"
: it is the sense of the Senate that individuals
appointed to administrative and policy-making posts
for
should be willing to serve a period long enough
iN
to permit them to contribute effectively to their
assigned tasks. " 165/
Yet there are positive aspects to the matter of rapid turnover
which cannot fairly be overlooked. Of the twenty-one FMC and SEC
members who have left office since 1961, eleven served four years
137
or more. Six served less than three years; but one of those resigned
for health reasons, another quit due to scandal, and a third commis-
sioner was not reappointed. SEC members served an average 4.1 years,
and the commissioners of the FMC; 4.3 years. At the SEC, chairmen
served about thirty-three months on the average, 166/ which seems to
be about the standard time for other commissions. Also the average
tenure of the two commissions we studied compares favorably to that
167/
of other commissions.
Overall, it is important to note,
regulatory commissioners spend significantly longer periods in office
than other political executives, including administrators, cabinet
and sub-cabinet members. 168/ (For example, FAA Administrators--who
do not have set terms--averaged 3.1 years in office.) As such,
disappointment with commission tenure may be partially a result of
expectations created by the set term. The usual tenure for other
138
federal offices suggests that a commissioner could make an effective
contribution over a four year period--and that, of course, is the
real issue.
We remain convinced, however, that very short tenure by some
commissioners is a matter of serious concern. In that regard, the
approach taken in the Federal Reserve Act has substantial merit.
In effect, it encourages regulators to complete the full terms to
which they were appointed--or suffer the consequences of not being
employed by the regulated interests for a two year period. Moreover,
short service is very much a related question to conflict of interest
as applied to post-employment. Restrictions upon those who resign
before their terms expire addresses a major problem of appearances
of conflict of interest: there is widespread public concern
about regulators who serve short periods, resign in mid-term, and
139
then devote expertise gained during government service to personal
advantage. To many, such service and subsequent employment is simply
"cashing-in" on the regulatory experience. For a period of time,
such restrictions will all but eliminate potential post-employment
conflict of interest problems for those who chose to resign before
completion of their term of office. For those reasons, we propose
that the FRB approach, with modifications, be applied to all multi-
member regulatory commissions. Specifically, we recommend that the
organic acts of those agencies be amended to include the following
provision:
1) A Commissioner shall not accept any employment or
compensation, either direct or indirect, from any
party other than the United States, subject to
regulation by the Commission for a period extending
until the expiration of the term to which the
140
Commissioner was appointed, except that this
provision shall not apply to any Commissioner
(a) who has served in that office for a total of
[five] [seven] [fourteen] 169/ years, or (b) who
is removed from office as either member or chairman
by the President, or (c) who certifiably resigns
from office on account of ill-health.
2) Each agency shall formulate rules to insure that
commissioners who resign prior to the expiration
of their terms of office report any employment for
the period over which this restriction applies.
3) This provision will apply to the following agencies:
Civil Aeronautics Board, Consumer Product Safety
Commission, Federal Communications Commission,
Federal Maritime Commission, Federal Power Commission,
Federal Reserve Board, Federal Trade Commission,
Interstate Commerce Commission, Nuclear Regulatory
Commission, and the Securities and Exchange
Commission.
4) Present restrictions on post-employment practices
contained in the Federal Reserve Act, Communications
Act, and the Consumer Product Safety Act are to be
repealed.
141
We are firmly committed to the notion that commissioners should
serve the full terms to which they are appointed in order to make a
maximal contribution to agency effectiveness. We further believe
that if a commissioner serves a full term--whether it be five, seven
or fourteen years--that contribution has been made. For that reason,
an exception is made for those commissioners who serve for that
number of years whether in a single term, or over several separate
terms. In other words, if a commissioner is selected for a vacancy
appointment of two years, then is reappointed and serves three years
of a five year term, then there are no restrictions since a full
term of five years was served. Obviously, any person, who accepts
a short or interim term, completes it and departs, is not subject
to the restrictions of our proposal; in that case, the term to which
he or she was appointed has been fully served. Of the ten nine agencies
142
five
in this study with commissioners appointed for set terms, six are
four
appointed for five year terms, three for seven years, and one for
fourteen years. 171/ Another exception is made for those regulators
whose departure is involuntary, either because of Presidential action
or ill-health. When a commissioner is removed from office by the
President, the departure is clearly involuntary. The same may also
be the case when a Chairman is removed and replaced by the President.
We believe that when that occurs, it would be inadvisable to require
the former chairman to return to commissioner status in order to
avoid the restriction; potentially, the subsequent loss of interest
that often results in that situation would hinder rather than help
commission effectiveness.
Finally, we do not believe that
it is appropriate to impose the restrictions in any case where it
can be certified that the reason for resignation was ill-health.
143
But in all other cases, a commissioner who resigns prior to fulfill-
ment of the responsibility to complete the term to which they were
appointed does so with the understanding that they cannot be employed
by industries subject to regulation by the Commission until that
term expires.
CONTRACTUAL UNDERTAKING
TO:
Honorable Jimmy Carter,
President-Elect of the United States
Date:
Dear Sir:
In consideration of your nomination of me to be
of the United States, and in the event I am subsequently con-
firmed to that post by the Senate, take office, and thus be-
come an employee of the United States, I agree as follows:
(1) I have already or will, within 30 days of taking
office, file with such officers as you shall direct, as a
matter of information fully available to the public as directed
by you:
(a) a complete current financial net worth state-
ment which itemizes in detail all assets and all lia-
bilities of myself, my spouse, and other members of my
immediate household. All assets and liabilities will
be separately itemized and fully described;
(b) a sources of income statement for the year
1975 and for the period of time ending no earlier
than 60 days before the above date listing all sources
and amounts of all items of value received by me, my
spouse, and other members of my immediate household,
including, but not limited to, salaries, wages, fees,
dividends, capital gains and losses, interest, gifts,
rents, royalties, patents, and honoraria.
(2) I will not, for two years following termination of
my government service, represent myself or any other person
by direct or indirect appearance, or formal or informal con-
tact with any government officer with reference to any matter
within my official responsibility in government during the
twelve months preceding termination of government service.
"Official responsibility" as used in the preceding sentence
means the direct administrative or operating authority,
whether intermediate or final, and either exerciseable alone
or with others, and either personally or through subordinates,
to approve, disapprove, or otherwise direct government action.
Exhibit B
-i-
(3) I will not, for two years following termination of
my government service, for any fee, commission, salary, or
other benefit, represent myself or any other person, by direct
or indirect appearance, lobbying, or formal or informal con-
tact with any person serving in the
Department or
Agency.
(4) I will, while remaining an employee of the United
States, immediately cease participation in any matter relating
to any person, partnership, corporation, or any other entity as
soon as I have entered into negotiations for employment, whether
as a consultant, full-time employee, advisor, or any other re-
lationship involving any item of value in exchange with any such
person or entity.
(5) I will, for two years after leaving government
service, file periodically in accordance with regulations to be
promulgated by you statements of assets and liabilities and
sources of income more particularly described in subparagraphs
1 (a) and (b) above.
Very truly yours,
ACCEPTED:
Jimmy Carter, as President-Elect
of the United States
EXHIBIT B
-ii-
MEMORANDUM FOR:
FROM:
John L. Moore, Jr., Special Counsel to the
Carter-Mondale Transition Group
SUBJECT:
PERSONAL DATA STATEMENT
As part of the clearance procedures relating to your proposed
appointment, it is requested that you answer the following
questions and supply the following information to us. In
line with the policies of the new Administration, we expect
that the information disclosed will be kept at the Civil
Service Commission where it will be available for public re-
view and inspection.
In order that we might complete all necessary reviews as soon
as possible, it is requested that you supply this information
at your earliest convenience and, in any event by
,
1976.
If you have any questions or if this office can be of assist-
ance, please do not hesitate to contact John L. Moore, Jr.
,
who can be reached at P.O. Box 2600, Washington, D.C. 20013
(telephone number: 202-472 ). You are requested to make
an appointment to visit with him within three business days
of receipt of these materials to discuss your response, even
if your information is not complete at the time.
EXHIBIT C
OUTLINE OF INFORMATION REQUESTED OF NOMINEES
A. BIOGRAPHICAL:
1. Name: (Include any former names used).
2. Address: List current residence address and mailing address.
3. Date and Place of Birth:
4. Marital Status: (Include maiden name of wife or husband's
name).
5. Names and Ages of Children:
6. Education: List institution (s), dates attended, degree re-
ceived and date degree granted.
7. Employment
Record: List all positions held since college, including
the title or description of job, name of employer,
location of work, and dates of employment.
8. Government
Experience: List any experience in, or association with,
federal, state or local governments, in-
cluding any advisory, consultative, honorary
or other part-time service or positions.
9. Memberships: List all memberships and offices held in pro-
fessional, fraternal, scholarly, civic,
charitable and other organizations.
10. Honors and Awards: List all scholarships, fellowships,
honorary degrees, honorary society
memberships, and any other special
recognitions for outstanding service
or achievement.
EXHIBIT C
-2-
11. Published Writings: List the titles, publishers and dates
of books, articles, reports or other
published materials you have written.
12. Qualifications: State what, in your opinion, qualifies
you to serve in the particular position
to which you have been nominated.
B. FINANCIAL DATA:
Please note that federal law and regulations and the policies
of the new Administration governing conflicts of interest require
the disclosure of the information requested in Questions 1 through
8 as it pertains to you, your spouse, and other immediate members
of your household.
1. The names of all corporations, firms, or other business
enterprises, partnerships, nonprofit organizations, and edu-
cational or other institutions with which you are now connected
as an officer, owner, director, trustee, partner, advisor, or
consultant. Those organizational affiliations which you wish
to continue during the term of your appointment should be
noted with an asterisk. (Please note that in the case of an
attorney's client listing, it is only necessary to provide
the names of major clients and those which might present a
potential conflict or appearance of conflict with your proposed
appointment. Please list the major clients as discussed in the
previous sentence even if you intend to sever your connection
with private practice during government service.)
2. The names of all corporations, partnerships, or other
institutions in which you have any financial interests through
the ownership of stock, stock options, bonds, equity capital,
or other arrangements, including trusts. Any interests you
wish to retain during your period of government service should
be noted with an asterisk.
3. The names of any creditors (separately stating those to
whom you may be indebted by reason of a mortgage on property
used as a personal residence or to whom you may be indebted
for current and ordinary living expenses), setting forth the
amount of such debt, and any additional information deemed
relevant to explain the transaction.
EXHIBIT C
-3-
4. All your interests in real property, setting forth
the nature of your interest, the type of property, and the
address.
5. The names of all corporations, firms, or other busi-
ness enterprises, partnerships, nonprofit organizations, and
educational or other institutions, with which you have any
continuing financial interests through present employment
or by reason of a pension or retirement plan, stock bonus,
profit sharing, or other arrangement as a result of any
current or prior employment or business or professional
association. Also, supply such details as are necessary for
a thorough understanding of such continuing financial in-
terests. Particular attention should be devoted to any
severance agreements which may be contemplated.
6. Provide a complete, current financial net worth state-
ment which itemizes in detail all assets (including, but not
limited to, bank accounts, real estate, securities, trusts,
investments, and other financial holdings) and all liabilities
(including, but not limited to, debts, mortgages, loans and
other financial obligations) of yourself, your spouse, and
other immediate members of your household. All assets and
liabilities should be separately itemized and fully described.
7. List sources and amounts of all items of value received
during each of the last three years (including, but not limited
to, salaries, wages, fees, dividends, capital gains or losses,
interest, gifts, rents, royalties, patents and honoraria).
(In lieu of the above, you may submit copies of your federal
income tax returns for these years, but their submission is
not required). In addition, please list all such sources and
amounts for the portion of the current calendar year ending on
a date not more than 60 days ago.
8. List sources, amounts and dates of all anticipated re-
ceipts from deferred income arrangements, stock options, exe-
cutory contracts and other future benefits which you expect
to derive from current or previous business relationships,
professional services and firm memberships, employers,
clients and customers.
C. FUTURE EMPLOYMENT RELATIONSHIPS:
1. Will you sever all connections with your present em-
ployer, business firm, association or organization if you
EXHIBIT C
-4-
are nominated by the President-Elect and confirmed by the
Senate?
2. Do you have any plans after completing government
service to resume employment, affiliation or practice with
your previous employer, business firm, association or
organization? Please consider as a "plan" your own desire
so to resume employment, etc. but identify whether there
may be reciprocity of such desire by your employer, affili-
ates, etc.
3. Has anybody made a commitment to employ your services
in any capacity after you leave government service?
4. If confirmed, do you expect to serve your full term of
office?
D. POTENTIAL CONFLICTS OF INTEREST:
1. Describe all financial arrangements, deferred compensa-
tion agreements, and other continuing dealings with business
associates, clients or customers.
2. Indicate any investments, obligations, liabilities, or
other relationships which could involve potential conflicts
of interest in the position to which you have been nominated.
3. Describe any business relationship, dealing or financial
transaction which you have had during the last ten years, whether
for yourself, on behalf of a client, or acting as an agent,
that could in any way constitute or result in a possible con-
flict of interest in the position to which you have been
nominated.
4. Describe any activity during the past ten years in which
you have engaged for the purpose of directly or indirectly in-
fluencing the passage, defeat or modification of any legislation
or affecting the administration and execution of law or public
policy.
5. Explain how you will resolve any potential conflict of
interest, including any that may be disclosed by your re-
sponses to the above items. (Please provide a copy of any
trust or other agreements.)
EXHIBIT C
-5-
F. CONTRACTUAL UNDERTAKING:
It is the view of the President-Elect that all officials of
government with a substantial policy role in it should agree
contractually to certain arrangements beyond the scope of present
law and regulations. Please examine the attached contractual
undertaking. Will you be willing to sign it prior to your formal
nomination?
EXHIBIT C
-6- -
8. Have you ever been arrested, charged or held by federal,
state, or other law enforcement authorities for violation of
any federal, state, county or municipal law, regulation or
ordinance? If so, please give full details (do not include
traffic violations for which a fine of $25 or less was imposed).
9. Are you currently under federal, state, or local inves-
tigation for a possible violation of a criminal statute? If so,
please give full details.
10. Has a tax lien or other collection procedure ever been
instituted against you by federal, state or local authorities?
If so, please give full details.
11. Have you ever been disciplined or cited for a breach of
ethics or unprofessional conduct by, or been the subject of a
complaint to, any court, administrative agency, professional
association, disciplinary committee, or other professional
group? If so, please give full details.
12. Have you ever been involved in civil litigation, or
administrative or legislative proceedings of any kind, either
as plaintiff, defendant, respondent, witness or party in interest,
which may be sufficiently controversial or so intimately related
to the area of work for which you are being considered, that
your involvement may be appropriate for consideration by the
committee of the Senate to which your nomination will be
submitted. If so, please give full details.
13. Have you ever run for political office, served on a political
committee, or been identified in a public way with a particular
political organization, candidate or issue? If so, please describe.
14. Have you ever been publicly identified, in person or by
organizational membership, with a particularly controversial
national or local issue? If so, please describe.
15. Have you ever submitted oral or written views to any
government authority (executive or legislative) or the news
media, on any particularly controversial issue other than in
an official governmental capacity? If so, please describe.
EXHIBIT D
-1-
16. Have you ever written any particularly controversial
books or articles? If so, please list them, giving the citations,
titles and dates.
17. Have you ever had any association with any person or
group or business venture which could be used, even
unfairly, to impune or attack your character and qualification
for this position?
18. Do you know anyone who might take any steps, overtly
or covertly, to make your confirmation by the Senate more
difficult or seek to attack your appointment?
19. Please provide any other information which you regard
as pertinent or which could be the possible source of
embarrassment to you, or to the President, if publicly known.
* Reference to "particularly controversial" is intended to
focus on issues that could be used, even unfairly, against you.
EXHIBIT D
-2-
C
CARTER-MONDALE TRANSITION GROUP
POLICY GUIDELINES
CONFLICTS OF INTEREST; FINANCIAL
DISCLOSURE; AND RESTRICTIONS FOLLOWING
GOVERNMENT SERVICE
It will be the policy of the Carter-Mondale Administration
to appoint and nominate for appointment, only persons of
high ability who will carry out their official duties without
fear or favor and with an equal hand, unfettered by any actual
or apparent conflicts of interests. To decree that no person
can have any financial interests other than a salary from the
Government would seriously limit the ability to recruit the
most qualified persons. The Carter-Mondale Administration
will require full disclosure of all continuing affiliations
and of assets and liabilities of nominees and their immediate
families. It is hoped that except in rare circumstances
divestiture causing severe tax burdens will be unnecessary
if the present laws and regulatory framework are diligently
and fairly administered.
The following guidelines pertain to the assets and
liabilities of a nominee, the spouse of the nominee, and
the nominee's minor child or children, partner, or any or-
ganization in which the nominee continues to serve as an
officer, director, trustee, partner, or employee while in
the government service or any private organization with
which the nominee has negotiated or has any arrangement
concerning prospective employment.
All nominees will be expected to comply with all relevant
statutes (particularly 18 U.S.C. Section 208) and the rules
and practices of the particular Department or Agency served.
If the person is nominated to a Level I or II position
divestiture should occur if compliance with the provisions
of 18 U.S.C. Section 208 indicates a conflict requiring
disqualification from action for the Government more than
rarely. Nominees for positions at Level III and other posi-
tions in the Government should require divestiture because
of conflicts arising under 18 U.S.C. Section 208 only if
use of disqualification will seriously impair the capability
of the officer to perform the duties of the office to which
nominated.
ELECTROSTATIC REPRODUCTION MADE FOR
INTERVATION PURPOSES
Beyond the requirements of 18 U.S.C. Section 208, persons
nominated to positions at Level I or II should divest holdings
and liabilities where the nature of the holding or liability
is such that it will be broadly affected by governmental mone-
tary and budgetary policies. Generally excepted from require-
ments of divestiture (unless the particular position indicates
continuing conflicts arising in government service with respect
to a particular interest) will be made for:
a.
real estate interests whether in the form of
ownership of land or participations in partnerships.
b.
savings certificates and accounts and U.S. and other govern-
mental securities.
c.
other holdings which are well-diversified; e.g. less than a
1% holding of a well-diversified mutual fund or a total of
not more than approximately $500,000 invested in well-
diversified assets.
Blind trusts will be recognized as appropriate methods
of divestiture where divestiture is required provided:
a.
the trustee is truly independent;
b.
the assets transferred in trust are either
cash or well-diversified assets;
C.
the trustee is given entire discretion to
sell or buy without discussion with the
government officer or anyone close to such
officer and the only reports given to the
government officer are the schedules neces-
sary to file with income tax returns (which
schedules do not list anything more than
totals of taxable items from the trust).
The attention of nominees will be directed to the
provisions of 18 U.S.C. Section 209 prohibiting receipt of
any compensation from any party other than the United States
for government service. While the matter of payments for
services prior to entry into government service are properly
addressed by legal counsel to the appointee and the organi-
zation making the payment, the following general guidelines
seem appropriate:
a.
If there is a pre-existing established plan
of the particular organization to reward past
service upon termination of service to the
organization, obviously such plan can be
recognized and followed.
-2-
b.
If there is no pre-existing established plan
of the particular organization it is suggested
that a payment in excess of 6 months of salary
or in excess of a range of $50,000 to $75,000
would need careful examination.
In all events, it is expected that payment of any severance
benefits will be completed prior to the nominee's taking office
in the Government or within a reasonable time thereafter.
While 18 U.S.C. Section 209 (b) allows continuing participation
in a bona fide pension, retirement, group life, health or acci-
dent insurance, profit sharing, stock bonus, or other employee
welfare benefit plan maintained by a former employer, nominees
will be asked generally to exercise any stock options prior to
commencement of government service (unless, because of the
requirements of the Securities Exchange Act, such exercise should
occur within a reasonable period after beginning government
service in which case the government officer may exercise within
such limited period, providing other guidelines are followed
concerning conflicts of interests as above stated). Nominees
will also be asked not to have contributions made to profit
sharing plans by former employers based on earnings of the former
employer after the government officer takes office.
Deviations from the foregoing guidelines will only be
made with the express consent of the President-Elect with
respect to Level I and II appointments and by heads of depart-
ments or agencies with reference to other appointments. The
reasons for the deviations will be made public.
It is proposed to ask appointees to enter into a letter
of commitment, a copy of which is attached, which, in several
respects calls for the disclosure of financial information
beyond the requirements of existing law and regulations. It
is contemplated that the financial disclosure requirements will
be made subject to an Executive Order shortly after the new
Administration takes office. The attached letter of commitment
also describes certain restrictions requested of nominees
following government service. Shortly after the new Administra-
tion takes office Congress will be requested to take action
along the lines spelled out in the attached letter of commitment.
It will be the policy of the new Adminstration to encourage
every Department and Agency of the Goverment to advise every
new employee of existing laws and regulations relating to con-
flicts of interests and to have a prior screening of such conflicts
at the time of appointment. It will be a further policy to
encourage Departments and Agencies to institute procedures for
continuing policing of conflicts.
It is the objective of the new Administration to avoid
any conflict which could in any way influence any government
officer except in the even interest of all the people.
-3-
MEMORANDUM FOR:
FROM:
John L. Moore, Jr., Special Counsel to the
Carter-Mondale Transition Group
SUBJECT:
PERSONAL AND FINANCIAL DATA
As part of the clearance procedures relating to your proposed
appointment, it is requested that you answer the following
questions and supply the following information to us. In
line with the policies of the new Administration, we expect
that the information disclosed will be kept at the Civil
Service Commission where it will be available for public re-
view and inspection, except that the income tax returns
supplied by you will not be made available to the public
unless you direct otherwise. For your information a copy
of guidelines concerning conflicts of interest, financial
disclosure, and restrictions following government service
is enclosed.
In order that we might complete all necessary reviews as
soon as possible, it is requested that you supply this in-
formation at your earliest convenience and, in any event by
If you have any questions or if this office can be of assist-
ance, please do not hesitate to contact John L. Moore, Jr.,
who can be reached at either of the addresses shown below.
You are requested to make an appointment to visit with him
within three business days of receipt of these materials to
discuss your response, even if your information is not com-
plete at the time. Of course, Mr. Moore will be happy to
consult with your attorney or other advisers.
Suite 1000
1800 M Street
North Building
Washington, D.C. 20036
Telephone: 202-223-1300
or
1200 Citizens and Southern National Bank Building
Atlanta, Georgia 30303
Telephone: 404-588-0300
OUTLINE OF INFORMATION REQUESTED OF NOMINEES
A.
BIOGRAPHICAL:
1. Name: (Include any former names used).
2. Address: List current residence address and mailing
address.
3. Date and Place of Birth:
4. Marital Status: (Include maiden name of wife or
husband's name).
5. Names and Ages of Children:
6. Education: List institution (s), dates attended,
degree received and date degree granted.
7. Employment
Record: List all positions held since age 21,
including the title or description of job,
name of employer, location of work, and
dates of employment.
8. Government
Experience: List any experience in, or association
with, federal, state or local govern-
ments, including any advisory, consulta-
tive, honorary or other part-time
service or positions.
9. Memberships: List all memberships and offices held
in professional, fraternal, social,
scholarly, civic, charitable and other
organizations.
10. Honors and Awards: List all scholarships, fellow-
ships, honorary degrees, honorary
society memberships, and any
other special recognitions for
outstanding service or achievement.
11. Published Writings: List the titles, publishers
and dates of books, articles,
reports or other published
materials you have written.
B. PERSONAL DATA:
1. Have your federal or state tax returns been the sub-
ject of any audit or investigation or inquiry at any
time?
If so, explain.
2. Has a tax lien or other collection procedure ever
been instituted against you by federal, state or local
authorities?
If so, give full details.
3. Have you ever been arrested, charged or held by
federal, state, or other law enforcement authorities
for violation of any federal, state, county or municipal
law, regulation or ordinance? If so, please give full
details (do not include traffic violations for which a
fine of $25 or less was imposed).
4. Are you currently under federal, state, or local in-
vestigation for a possible violation of a criminal statute?
If so, please give full details.
5. Have you ever been disciplined or cited for a breach
of ethics or unprofessional conduct by, or been the sub-
ject of a complaint to, any court, administrative agency,
professional association, disciplinary committee, or other
professional group? If so, please give full details.
6. Have you ever been involved in civil litigation, or ad-
ministrative or legislative proceedings of any kind, either
as plaintiff, defendant, respondent, witness or party in
interest, which may be sufficiently controversial or so
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intimately related to the area of work for which you
are being considered, that your involvement may be
appropriate for consideration by the committee of the
Senate to which your nomination wlll be submitted. If
so, please give full details.
7. What is the condition of your health?
Have you had a physical examination recently?
Who was your physician?
8. Have you ever had psychiatric or similar treatment?
9. Without details, is there or has there been anything
in your personal life which you feel, if known, may be
of embarrassment to the Administration in the event you
should be nominated?
What about any near relative?
C. FINANCIAL DATA:
Please note that federal law and regulations governing
conflicts of interest require Presidential appointees with-
in 30 days of their entrance on duty to provide reports
of specified financial interests as to themselves, their
spouses and any blood relation who is a household member.
The initial five matters listed below are designed to elicit
financial information similar to--although, in some cases,
broader in scope than--that which all Presidential appointees
are required to provide by Executive Order of the President.
The remaining paragraphs in this section seek elaboration on
your financial status beyond that which the existing Executive
Order and regulations require. As to all matters, please
provide the requested information for yourself, your spouse,
and any blood relations who are part of your household.
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1. List the names of all corporations, companies,
firms, or other business enterprises, partnerships,
nonprofit organizations, and educational or other
institutions--
(A) with which you are now connected as an
employee, officer, owner, director, trustee,
partner, advisor, attorney, or consultant.
(Attornevs and consultants need list only
their major clients, but should include all
of those whom you represent on a regular
basis or which might give rise to an
appearance of bias on your part in connec-
tion with your proposed appointment.) Any
listed relationship or affiliation that you
wish to continue during the term of your
appointment should be noted with an asterisk.
(B) in which you have any continuing financial
interests, through a pension or retirement
plan, stock bonus, shared income, severance
pay agreement, or otherwise as a result of
any current or prior employment or business
or professional association. As to each
financial arrangement, provide all details
necessary for a thorough understanding of
the way in which the arrangement operates,
including information concerning any
renewal right you may have if the arrangement
is allowed to lapse and whether lump sum
or severance benefits are available in lieu
of continuation of the interest.
(C) in which you have any financial interest
through the ownership of stocks, stock
options, bonds, partnership interests, or
other securities. Any interests held
indirectly through trusts or other arrange-
ments should be included. Any listed
interests that you wish to retain during your
period of government service should be noted
with an asterisk.
2. Provide a complete, current financial net worth
statement that itemizes in detail all assets. (including,
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but not limited to, bank accounts, real estate, securities,
trusts, investments, and other financial holdings) and
liabilities (including, but not limited to, debts, mortgages,
loans and other financial obligations). Assets representing
personal or household goods, and liabilities for current and
ordinary household and living expenses must be included but
but need not be separately itemized.
3. List sources and amounts of all items of value
received during calendar year 1975 and the portion of
1976 selected by you ending no earlier than 60 days prior
to the date of your reply (including, but not limited to,
salaries, wages, fees, dividends, capital gains or losses,
interests, rents, royalties, patents, honoraria, and gifts
other than those of nominal value). In lieu of such a list-
ing for 1975, you may submit a copy of your federal income
tax returns for 1975, although the submission of income tax
material is not required under this item.
4. Please provide for review by this office (but not
for passing on to Senate Committee staff or to the public)
copies of your federal income tax returns for 1973, 1974,
and 1975.
D. FUTURE EMPLOYMENT RELATIONSHIPS:
1. Will you sever all connections with your present
employer, business firm, association or organization if
you are nominated by the President-Elect and confirmed by
the Senate?
2. Do you have any plans after completing government
service to resume employment, affiliation or practice with
your previous employer, business firm, association or
organization?
3. Has anybody made a commitment to employ your
services in any capacity after you leave government service?
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4. If confirmed, do you expect to serve your full term
of office?
E. POTENTIAL CONFLICTS OF INTEREST:
1. Describe any business relationship, dealing or
financial transaction which you have had during the last
five years, whether for yourself, on behalf of a client,
or acting as an agent, that could in any way constitute
or result in a possible conflict of interest in the
position to which you have been nominated.
2. Describe any activity during the past five years
in which you have engaged for the purpose of directly or
indirectly influencing the passage, defeat or modifica-
tion of any legislation or affecting the administration
and execution of law or public policy.
3. Explain how you will resolve any potential conflict
of interest, including any that may be disclosed by your
responses to the above items. (Please provide a copy of
any trust or other agreements).
F. LETTER OF COMMITMENT
It is the view of the President-Elect that all officials
of government with a substantial policy role in it should
agree contractually to certain arrangements beyond the scope
of present law and regulations. Please examine the attached
letter of commitment. Will you be willing to sign it prior
to your formal nomination?
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LETTER OF COMMITMENT
TO: Honorable Jimmy Carter,
President-Elect of the United States
Date:
Dear Sir:
If you nominate me to be
of the United
States, and in the event I am subsequently confirmed to that
post by the Senate, take office, and thus become an employee
of the United States, I pledge as follows:
(1) I will comply in all respects with the Federal
Conflict of Interest Laws and related regulations applicable
to my office, both during and after my term of office.
(2) I have already or will, within 30 days of taking
office, file with such officers as you shall direct, as a
matter of information fully available to the public as
directed by you:
(a) a complete current financial net worth state-
ment which itemizes in detail all assets and all lia-
bilities of myself, my spouse, and other members of
my immediate household. All assets and liabilities will
be separately itemized and fully described;
(b) a sources of income statement for the year
1975 and for the period of time ending no earlier
than 60 days before the above date listing all sources
and amounts of all items of value received by me, my
spouse, and other members of my immediate household,
including, but not limited to, salaries, wages, fees,
dividends, capital gains and losses, interest, gifts,
rents, royalties, patents, and honoraria.
(3) I will not, while in office, participate in any
matter in which any private organization with which I was
associated prior to taking office is appearing or has a
direct and substantial interest. Moreover, I will immediately
cease participation in any matter relating to any private
organization as soon as I have entered into negotiations for
employment or association with that organization whether as
a consultant, employee, partner, or any other relationship
of financial value.
(4) I recognize that following termination of my
government service, I will be permanently barred by federal law
(18 U.S.C. § 207 (a)) from acting on behalf of anyone other
than the United States in connection with any matter in which
I participated personally and substantially in my governmental
capacity. I also recognize that for a period of one year
following termination of my government service I will be
barred by federal law (18 U.S.C. § 207 (b)) from appearing
personally before any court, department or agency on behalf
of any one other than the United States in connection with any
matter which was under my official responsibility during the
last year of my government service. "Official responsibility"
as used in the preceding sentence and in paragraph 5 below
means the direct administrative or operating authority,
whether intermediate or final, and either exerciseable alone
or with others, and either personally or through subordinates,
to approve, disapprove, or otherwise direct government action.
(5) I will not, for two years following termination of
my government service, deal with or represent in any profes-
sional or business capacity myself or anyone other than the
United States by direct or indirect appearance, or formal
or informal contact with any government officer with reference
to any matter within my official responsibility in government
during the twelve months preceding termination of government
service.
(6) Neither I nor any partner or business or professional associate
of mine will accept any employment or compensation either direct or in-
direct, from any Interested Party as below defined sooner than the
earliest to occur of the following events:
(a) the passage of four years from the time I take office and
become an employee of the United States;
(b) the passage of the term of office for which I am accepting
appointment;
(c) your removing me from my government office or my resigna-
tion at your request; or
(d) ill health or other serious personal circumstance requires
me to leave government office.
"Interested Party", as used in this undertaking, shall mean any party
directly regulated by the
Agency or Department
or Division thereof or with which such Agency or Department or Division
thereof has entered into a single contract or made a grant or granted a
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license or permit during the last 12 months of my government service in-
volving the payment or grant of a license or permit having a value of
more than $10,000 by the United States of America or a party negotiating
at the time of termination of my government service for a contract, grant,
license, or permit involving the payment or grant of license or permit
having a value of more than $10,000 by the United States of America.
"Directly regulated" as used in the preceding sentence shall mean that
the particular Interested Party was, during the last 12 months of my
government service the subject of any adjudication, licensing, or rule-
making, by the above named Agency or Department or Division insofar as
such rule-making directly affected such Interested Party in a substantial
and particular way.
I agree that, if there is any doubt as to the applicability or in-
terpretation of the foregoing commitments in this Paragraph 6 that I will
abide by a ruling thereon by you, if I am a Department or Agency head, or
by the Department or Agency I served otherwise.
I understand that you reserve the right to waive the requirements
of this Paragraph 6 if you find it to be in the public interest to do so.
(7) I will, while in government service and for two years after
leaving government service, file periodically in accordance with regula-
tions to be promulgated by you statements of assets and liabilities and
sources of income more particularly described in subparagraphs (a) and
(b) above.
(8) I agree to give ninety (90) days' notice prior to resignation
from government service unless otherwise requested by you.
Very truly yours,
ACCEPTED:
Jimmy Carter, as President-Elect of
the United States