Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118567518
label
[JGR/Appointee Clearances - 07/09/1983-07/31/1983]
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118567518
contentType
document
title
[JGR/Appointee Clearances - 07/09/1983-07/31/1983]
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118567518
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
25fb5139d490f10f
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: [JGR/Appointee Clearances -
07/09/1983-07/31/1983]
Box: 3
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
Ronald Reagan Library
Collection Name ROBERTS, JOHN G.: FILES
Withdrawer
CAS
8/25/2005
File Folder
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
FOIA
F05-139/01
Box Number
COOK
8 KDB
Doc
Doc Type
Document Description
No of
Doc Date Restrictions
No
Pages
1
MEMO
ROBERTS TO FRED FIELDING RE
2 7/26/1983 B6
275
PROSPECTIVE NOMINEE
2
NOTES
RE PROSPECTIVE NOMINEE
3
ND
B6
276
3
NOTES
RE 6/22/83 MEETING ET AL.
6
ND
B6
277
4 FORM
FINANCIAL DISCLOSURE REPORT (SF
6 5/23/1983 B6
278
278)
5
MEMO
DAVID R. SCOTT TO DESIGNATED
1 1/20/1983 B6
1298
AGENCY ETHICS OFFICIALS (THIS
DOCUMENT HAS BEEN RELEASED IN
WHOLE)
6
MEMO
ROBERTS TO HAUSER RE MEETING ON
2 7/8/1983 B6
279
NOMINEE
7 FORM
FINANCIAL DISCLOSURE REPORT (SF
6 5/23/1983 B6
280
278) (ORIGINAL OF ID #278)
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical Information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
July 11, 1983
MEMORANDUM FOR JOHN HERRINGTON
FROM:
FRED F. FIELDING
All necessary clearances and certifications have been
accomplished with regard to the following individual and
he is ready for formal nomination by the President:
Edmund T. DeJarnette - to be Ambassador to the
Central African Republic
0
CC: Claire O'Donnell
0
Jane Dannenhauer
&
Dick Hauser
John Roberts
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
July 12, 1983
The President today announced his intention to appoint the
following individuals to be Members of the National Advisory
Committee for Juvenile Justice and Deliquency Prevention for the
remainder of terms expiring January 17, 1984 and to be
reappointed for the terms expiring January 17, 1987.
KEITH T. KOPPENHOEFER will succeed Mary Anne B. Stewart. He is
presently a senior at Elder High School in Cincinnati, Ohio. He
was born January 29, 1965 in Cincinnati.
JOHN LEONARD ROUSE, JR. will succeed Barbara T. Sylvester. He is
a student at Prince Georges Community College. He was born
September 28, 1964 in Edinburgh, Scotland.
###
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
July 13, 1983
The President today announced his intention to nominate A. Wayne
Roberts to be Deputy Under Secretary for Intergovernmental and
Interagency Affairs, Department of Education. He would succeed
John H. Rodriguez.
Mr. Roberts is currently the Secretary of Education's Regional
Representative (Region I). Previously, he was Acting Projects
Director for the U.S. Synthetic Fuels Corporation (6/81-10/81) ;
Deputy Director of White House Personnel (1/81-6/81) ; and
Assistant Professor of Economics and Management at Johnson State
College (1974-1980). He was with IBM Corporation from 1965-73.
Mr. Roberts graduated from Babson College (B.S., 1964) and
University of Massachusetts (M.B.A., 1965) He currently resides
in Lexington, Massachusetts and was born February 25, 1944 in
Boston, Massachusetts.
# # #
THE WHITE HOUSE
WASHINGTON
July 15, 1983
MEMORANDUM FOR DIANNA G. HOLLAND
FROM:
JOHN G. ROBERTS
SUBJECT:
Appointment of Sybil C. Mobley, Michael E.
Porter, B. Kipling Hagopian, Stephen I.
Schlossberg, Frederick B. Dent, Robert A.
Hanson, Edwin D. Dodd, Rimmer de Vries, Ed
Harper, and Bruno J. Mauer to the President's
Commission on Industrial Competitiveness
The President's Commission on Industrial Competitiveness is
a new advisory committee established by Executive Order
12428 (June 28, 1983). The purposes of the Commission are
to review means of increasing the competitiveness of United
States industry, with particular emphasis on high
technology, and provide appropriate advice to the President.
The Commission was established in such a fashion that its
members from the private sector would not be considered
government employees for purposes of the conflicts laws.
Thus, members are not paid for their services and "shall
represent elements of industry, commerce, and labor most
affected by high technology, or academic institutions
prominent in the field of high technology." Under the
executive order members must also "have particular knowledge
and expertise concerning the technological factors affecting
the ability of United States firms to meet international
competition at home and abroad."
Messrs. Hanson, Dodd, Mauer, and Dent represent the
industrial sector, and their industries can readily be
considered deeply affected by high technology. Mr. Hagopian
is from a venture capital firm and Mr. de Vries from Morgan
Guaranty Bank, elements of commerce affected by high
technology. Mr. Porter is from the Harvard Business School
and Mrs. Mobley from the Florida A&M School of Business and
Industry, prominent academic institutions. Mr. Schlossberg
is an attorney, former General Counsel for the United Auto
Workers. I think he can be considered to represent labor's
interests, not only by virtue of his former affiliation but
also because of several labor-related board memberships he
currently holds. All of these prospective appointees have
numerous affiliations and holdings in high technology firms
-2-
and firms affected by high technology. Since they will
serve on the Commission in a representative capacity, the
affiliations and holdings are not an impediment to their
appointments.
Ed Harper has not submitted a PDS, but he was of course
cleared for his current government position, and I have
reviewed his recently-filed SF 278. Since his resignation
from government service will be effective July 31, 1983, his
appointment to this Commission should not be effective until
after that date, so that he will be a member "appointed from
the private sector" and accordingly not subject to the
conflict of interest laws.
THE WHITE HOUSE
WASHINGTON
July 18, 1983
MEMORANDUM FOR JOHN HERRINGTON
FROM:
FRED F. FIELDING
All necessary clearances have been accomplished with
regard to the following individuals and they are ready for
appointment to the President's Commission on Industrial
Competitiveness:
Frederick B. Dent
Rimmer de Vries
Edwin D. Dodd
B. Kipling Hagopian
Robert A. Hanson
Bruno J. Mauer
Sybil C. Mobley
Michael E. Porter
Stephen I. Schlossberg
CC: Claire O'Donnell
Jane Dannenhauer
John Roberts
Barbara McQuown
THE WHITE HOUSE
WASHINGTON
July 25, 1983
APPOINTMENT PROCESS PERSONAL INTERVIEW RECORD
DATE OF INTERVIEW: July 14 & 19, 1983 (by telephone)
CANDIDATE: Josephine S. Cooper
POSITION: Assistant Administrator for Congressional and
External Affairs, Environmental Protection Agency
INTERVIEWER: John G. Roberts
Comments
Josephine S. Cooper is to be nominated to be Assistant
Administrator of EPA for Congressional & External Affairs,
one of the six assistant administrator slots authorized by
Reorganization Plan No. 3 of 1970, $ 5 (b), as amended by
Public Law 96-510, § 307. Ms. Cooper, an Independent,
appears fully qualified for the post by virtue of her
experience not only at EPA but also on the staff of the
Senate Committee on Environment and Public Works. I have
reviewed Ms. Cooper's Personal Data Statement and Financial
Disclosure Report, and see nothing to preclude going forward
with the nomination.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
KDB 7/28/2005
File Folder
FOIA
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
F05-133/01
COOKE, PAMELA
Box Number
8 KDB
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
1 MEMO
2 7/26/1983 B6
275
ROBERTS TO FRED FIELDING RE PROSPECTIVE
NOMINEE
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
KDB 7/28/2005
File Folder
FOIA
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
F05-133/01
COOKE, PAMELA
Box Number
8 KDB
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
2 NOTES
3
ND
B6
276
RE PROSPECTIVE NOMINEE
Freedom of Information Act [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
7/8 RAH, Waxman, scott, Smith
advise sect, revenue sharing, T-bill austion (public Debt).
Decides amt, FED N.Y. Does rest.
Mahle- tad Sente world mall.
\
Position repubility
Warm carter - DAS
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
KDB 7/28/2005
File Folder
FOIA
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
F05-133/01
COOKE, PAMELA
Box Number
8 KDB
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
3 NOTES
5
ND
B6
277
RE 6/22/83 MEETING ET AL.
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
DEPARTMENT OF THE TREASURY
437
ontinaed
Bureau of the Mint
Director
The Mint of the United States was
silver for authorized purposes; the
Williams.
wards.
established by act of Congress April 2,
distribution of coins for general
M. King, Jr.
1792 (1 Stat. 246). The Bureau of the
circulation through the facilities of the
Jennings.
Chivatero.
Mint was established by act of Congress
Federal Reserve Banks and branches; the
E. Dosedio.
February 12, 1873 (17 Stat. 424; 31
receipt of outdated coins through the
Kern.
U.S.C. 251-287).
facilities of the Federal Reserve Banks
A Mosher.
A. Parks.
The principal mission of the Bureau of
and branches; the compilation of general
/ Switzer.
data of worldwide scope relative to gold,
Heye
the Mint is to manufacture an adequate
silver, and coins; and such other
LeBaube
volume of coins for the Nation's trade
1. Wintrode.
functions relating to accounting,
Premis.
and commerce. The major activities of
budgeting, and personnel as required by
Swanson.
the Bureau also include the manufacture
Miceli.
law and regulations.
J. Coleman.
of medals of a national character; the
Browitt.
manufacture and sale of proof coin sets;
For further information, contact the Bureau of the
Mint, Department of the Treasury, 501 Thirteenth
anger.
the custody, processing, and movement
Street NW., Washington, D.C. 20220. Phone,
: Coleman.
of bullion; the disbursing of gold and
202-376-0872.
?. Cappelli.
adina.
C. Nielsen.
Field Institutions-Bureau of the Mint
ooth.
Address
Facility Head
Ryan.
any.
Longley.
United States Mint, Philadelphia, Pa. 19106.
Anthony H. Murray, Jr., Superintendent.
ans.
United States Mint, Denver, Colo. 80204.
Nora Hussey, Superintendent.
United States Assay Office, San Francisco, Calif. 94102.
Thomas Miller, Officer in Charge.
Rideoutte.
United States Assay Office, New York, N.Y. 10005.
Clifford M. Barber, Superintendent.
Davis.
United States Bullion Depository, Fort Knox, Ky. 40121.
George Wright, Officer in Charge.
IS,
United States Bullion Depository, West Point, N.Y. 10996.
Harry J. Edwards, Officer in Charge.
's Representative).
Old Mint, San Francisco, Calif. 94103.
Albert H. Norman, Officer in Charge.
Liebermann.
Breihan.
Yates.
tak.
McKeever.
ai
Bureau of the Public Debt
acobs
37.
legiarits
Hoddy
The Bureau of the Public Debt, in
principal and interest; and adjudicates
support of the management of the public
claims on account of lost, stolen,
debt, prepares Department of the
Drinn.
destroyed, or mutilated securities.
Herman
Treasury circulars offering public debt
The Bureau's principal office and
L Phillips
securities; directs the handling of
(miy.
headquarters is in Washington, D.C. An
Gancy.
subscriptions and making of allotments;
office is also maintained in Parkersburg,
formulates instructions and regulations
W. Va., where most Bureau operations
pertaining to security issues; and
erification, and
conducts or directs the conduct of
related to U.S. Savings Bonds, U.S.
transactions in outstanding securities. The
Savings Notes and Retirement Plan and
returns; the
Individual Retirement Bonds are handled.
on of refunds of
Bureau performs the final audit of retired
issigned
securities and interest coupons; maintains
Under Bureau supervision, transactions in
estigation, and
accounting control over public debt
public debt securities are conducted by
receipts and expenditures, securities, and
the Federal Reserve Banks and their
interest costs; keeps individual accounts
branches as fiscal agents of the United
of owners of book-entry and registered
States. Most banks and other financial
1 any District
securities and authorizes the payment of
institutions act as issuing and paying
Service
he Treasury, 1111
shington, D.C.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
KDB 7/28/2005
File Folder
FOIA
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
F05-133/01
COOKE, PAMELA
Box Number
8 KDB
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
4
FORM
6 5/23/1983 B6
278
FINANCIAL DISCLOSURE REPORT (SF 278)
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
United States of America
Office of
Office of Personnel Management
Government Ethics
Washington, D.C. 20415
83 OGE 1
January 7, 1983
Opinion Issued to a Department's Designated Agency Ethics Official
This is in response to your August 11, 1982, request for a formal advisory opinion on
the question "whether, or under what circumstances, a federal employee's vested rights in
a private corporation's pension plan constitute a 'financial interest' under 18 U.S.C. § 208,
so as to bar the employee's participating in a contract or other particular matter involving
that corporation." 1
Section 208(a) reads as follows:
Except as permitted by subsection (b) hereof [providing for waivers],
whoever, being an officer or employee of the executive branch of the United
States Government, of any independent agency of the United States, a Federal
Reserve Bank director, officer, or employee, or of the District of Columbia,
including a special Government employee, participates personally and
substantially as a Government officer or employee, through decision, approval,
disapproval, recommendation, the rendering of advice, investigation, or
otherwise, in a judicial or other proceeding, application, request for a ruling or
other determination, contract, claim, controversy, charge, accusation, arrest,
or other particular matter in which, to his knowledge, he, his spouse, minor
child, partner, organization in which he is serving as officer, director, trustee,
partner, or employee, or any person or organization with whom he is
negotiating or has any arrangement concerning prospective employment, has a
financial interest-
Shall be fined not more than $10,000, or imprisoned not more than two years,
or both.
1
By letter dated August 18, 1982, you were notified that this Office had reviewed your
request and had determined in accordance with 5 C.F.R. $738.305(a)(1) that it was one
which the Office would answer with a formal opinion. Shortly thereafter we circulated to
all executive branch Designated Agency Ethics Officials a notice of your request, seeking
their views on the issue raised. We received many valuable comments, and we have taken
them into consideration in the preparation of this opinion.
At the outset it is worthwhile to note that our inquiry under the statute is whether,
or under what circumstances, a government employee's vested rights in a private
corporation's pension plan give him either a direct or derivative financial interest in a
particular matter, rather than when or whether the employee has a financial interest in
the corporation. 2
A government employee has a financial interest in a particular matter when there is
a real possibility that he might gain or lose as a result of developments in or resolution of
the matter. Section 208 does not require that the financial interest be substantial. It is
not necessary that the potential gain or loss be of any particular magnitude. Nor must the
potential gain or loss be probable for the prohibition against official action to apply. All
that is required is that there be a real, as opposed to speculative, possibility of benefit or
detriment.
3
The short answer to your question, then, is that a government employee's vested
rights in a private corporation's pension plan give him a financial interest in a particular
matter whenever, by virtue of such vested rights, the employee is in a position to gain or
lose from developments in or resolution of the matter. Whether a financial interest exists
in any particular case will thus depend on both the nature of the particular matter and the
2
See, by way of contrast, the predecessor of section 208, which provided:
Whoever, being an officer, agent or member of, or directly or indirectly
interested in the pecuniary profits or contracts of any corporation, joint stock
company, or association, or of any firm or partnership, or other business
entity, is employed or acts as an officer or agent of the United States for the
transaction of business with such business entity, shall be fined not more than
$2,000 or imprisoned not more than two years, or both. 18 U.S.C. § 434 (1958).
Under section 434, the appropriate inquiry was whether the government employee had a
financial interest in the business entity. United States V. Mississippi Valley Generating
Co., 364 U.S. 520 (1961); United States V. Chemical Foundation, Inc., 272 U.S. 1 (1926).
3
Financial interests that are insubstantial, remote, or inconsequential can be dealt
with under the waiver provisions of 18 U.S.C. § 208(b), which provides in pertinent part:
Subsection (a) hereof shall not apply (1) if the officer or employee first advises
the government official responsible for appointment to his position of the
nature and circumstances of the judicial or other proceeding, application,
request for a ruling or other determination, contract, claim, controversy,
charge, accusation, arrest, or other particular matter and makes full
disclosure of the financial interest and receives in advance a written
determination made by such official that the interest is not so substantial as
to be deemed likely to affect the integrity of the services which the
government may expect from such officer or employee, or (2) if, by general
rule or regulation published in the Federal Register, the financial interest has
been exempted from the requirements of clause (1) hereof as being too remote
or too inconsequential to affect the integrity of the government officer's or
employee's services.
2
terms of the pension agreement. Because of the broad range of variables in each of these
factors, we have found it impossible to devise a formula that will provide the answer, in
advance, to every question that might fall within the scope of your broad inquiry. It is
possible, however, to make some general statements about some commonly occurring
situations.4
Pension plans come in many shapes and sizes, and we readily concede that
familiarity with all of the variations is beyond the capacity of this Office. However, we
understand that in a typical plan contributions are made by the employer, the employee, or
both; the funds are held by trustees, who may or may not be employed by the sponsoring
organization; and the funds will be invested, often but not always, in the stock of the
sponsoring company. Most plans fall into two major categories: defined contribution
plans and defined benefit plans. In the case of defined contribution plans, a separate
account is maintained for each participant in the plan, and the amount of benefits paid
upon retirement is a function of the amount contributed and investment performance. In
the case of defined benefit plans, contributions to the plan are held and invested together,
and each participant receives a fixed amount of benefits when he retires. In some cases
pension benefits are paid simply by the purchase of an annuity for each participant. 5
This Office and the Office of Legal Counsel at the Department of Justice have
consistently taken the position that when a government employee has vested rights in a
pension plan of a corporation, and the pension plan holds stock of the corporation, the
employee ordinarily has a financial interest in matters affecting that corporation. 6 There
is unquestionably a real possibility that the employee may gain or lose as a result of the
4
Whether or not a financial interest exists depends on a number of factual variables.
Therefore, we do not believe it possible to determine in the abstract whether a vested
interest in a pension plan is a "financial interest" for purposes of § 208(a). Whether or not
a financial interest in a matter held by virtue of vested rights in a pension plan will be
"too remote or too inconsequential" to affect the integrity of the government employee's
services will also depend on both the nature of the matter and the terms of the plan.
Consequently, a waiver by general rule or regulation of all financial interests held as a
result of pension rights would not be proper under § 208 (b)(2). However, it may be
possible for an agency to determine that financial interests held in a commonly occurring
type of particular matter as a result of employee held rights in certain kinds of pensions
do meet the criteria for waiver under § 208(b)(2), and we would have no objection to a
waiver by general rule or regulation under such circumstances.
5
For a thorough treatment of the characteristics and operation of various types of
pension plans see D. McGill, Fundamentals of Private Pensions (4th ed. 1979).
6
See, e.g., February 3, 1978, Memorandum from John M. Harmon, Assistant Attorney
General, Office of Legal Counsel to Barbara Allen Babcock, Assistant Attorney General,
Civil Division 7-9. See also R. Perkins, The New Federal Conflict of Interest Law, 76
Harv. L. Rev. 1113, 1131 (1963) and Association of the Bar of the City of New York, Conflict
of Interest and Federal Service (Cambridge, Mass.: Harvard University Press, 1960), p.
218.
3
outcome of the matter, and this is all § 208 requires. 7 We are also of the view that where
a pension fund is controlled by employees of the sponsoring organization, the government
employee ordinarily has a financial interest in matters affecting the organization. This is
because the employee/trustees are acting as representatives of the sponsoring
organization, and their management of the plan may be affected by developments in
matters affecting that organization.
In your request for our opinion, you suggested that even where the pension plan
holds stock of the sponsoring organization and/or is controlled by employees of the
organization, a government employee having vested rights in the plan does not have a
financial interest in matters affecting the organization if the plan is insured by the
Pension Benefit Guaranty Corporation (PBGC). We do not agree.
Title IV of the Employee Retirement Income Security Act of 1974 (ERISA)
established the PBGC to provide termination insurance covering most defined benefit
pension plans. Upon termination of a covered plan, the PBGC guarantees the payment of
benefits vested under the plan within the limits specified in ERISA. Our review of the
statute and our consultations with attorneys at the PBGC and the Department of Labor
have led us to conclude that the insurance payments payable under ERISA upon plan
termination will often if not always be less than the benefits a participant would receive
upon retirement from a viable pension fund. 8 Consequently, coverage by ERISA does not
obviate the real possibility of loss which is sufficient to create a financial interest under
18 U.S.C. § 208. Moreover, the availability of plan termination insurance is not relevant
to the possibility that a government employee may benefit from the outcome of matters
having a beneficial effect on the organization sponsoring the plan. 9
7
Of course, there may be some flexibility in the phrase "matters affecting the
corporation", but virtually all matters affecting a company can affect the value of its
stock, and an employee with vested rights in the pension plan will have a financial interest
in any such matter. For purposes of § 208(a), neither the value of the employee's vested
rights nor the magnitude of the plan's stock holding is of consequence. These factors may,
however, be significant for purposes of individual waivers under § 208(b)(1).
It is conceivable that a government employee will have a financial interest in
matters affecting other companies the stock of which is held by a pension plan in which he
has vested rights. Little attention has been given to this type of situation in the past,
perhaps because of § 208's requirement that a financial interest be known in order for the
ban on participation to apply. We see no need to focus on the issue here but note that it
may present problems in some particularized cases.
8
See McGill, supra note 4, chapter 21 and the relevant statutory provisions (codified
at 29 U.S.C. § 1301 et seq.) and regulations (29 C.F.R. Chapter XXVI).
9
We emphasize that our analysis does not by any means foreclose a showing in a
particular case that the availability of insurance coupled with particular pension plan
terms viewed in connection with a particular matter would result in a showing of no
financial interest under $ 208 (a) or a waivable interest under $ 208 (b)(1). See pp. 2-3
supra.
4
Even where the pension plan under consideration neither holds stock of the
sponsoring organization nor is controlled by organization employees, the determination
whether a financial interest in a matter exists, and if so whether it is waivable, must be
made on a case by case basis. Where an annuity purchased for a government employee
under a pension plan has been fully paid for, he will ordinarily not have a financial interest
in matters affecting the sponsoring organization. However, he may under some
circumstances have a financial interest in matters affecting the company responsible for
making the annuity payments. In the case of a defined contribution plan, where
contributions are no longer being made on behalf of the government employee and his
account is held by an independent trustee, it seems that the possibility that the employee
might gain or lose as a result of matters affecting the sponsoring organization is purely
speculative and thus not cognizable under § 208(a). Where, on the other hand, the
government employee's vested rights are in a defined benefit plan, matters affecting the
sponsoring company may well affect the company's ability to maintain adequate funding
levels or to pay benefits when due with the result that the government employee has a
financial interest in such matters under § 208(a). The provisions of ERISA do not change
our conclusion, although the availability of insurance may, along with other factors, be
relevant to a decision whether a waiver is appropriate under § 208(b)(1).
In sum, we recognize that making case by case determinations regarding financial
interests that arise from pension plan participation may occasionally burden your agency
and others. Nonetheless, we are constrained to conclude that such determinations are
required. It has been our experience that the typical pension plan is so intertwined with
the sponsoring organization that a government employee holding vested rights in the plan
must be deemed to have a financial interest in matters affecting the organization. We
feel that the burden is properly on the government employee participating in a pension
plan to show otherwise.
In accordance with the provisions of 5 C.F.R. § 738.308(a)(2) we have consulted with
the Office of Legal Counsel of the Department of Justice prior to issuing this formal
advisory opinion. We are authorized to state that the Office of Legal Counsel agrees with
our analysis and conclusions.
Sincerely,
David R. Scott
Acting Director
5
MEMORANDUM
JAN 20 1983
SUBJECT: Formal Advisory Opinion 83 OGE
FROM:
Scott
1
David R. Scott
Acting Director
TO:
Designated Agency Ethics Officials
Enclosed is a copy of a recent formal opinion issued by this Office. It addresses the
question whether, or under what circumstances, a federal employee's vested rights in a
private corporation's pension plan constitute a financial interest under 18 U.S.C. $ 208.
A request for an opinion on this issue was received by this Office on August 11, 1982.
A notice of that request, including a request for comments, was circulated shortly
thereafter to all executive branch Designated Agency Ethics Officials. We received many
comments presenting a wide variety of views, and we have taken all comments into
consideration in the preparation of this opinion.
It was suggested by some that a government employee having vested rights in a
pension plan does not have a financial interest in matters affecting the sponsoring
organization if the plan is insured by the Pension Benefit Guaranty Corporation. We could
not accept that view. See enclosed opinion at page 4. Nor could we authorize the
exemption by general rule or regulation of financial interests held as a result of pension
rights, except under very limited circumstances. See opinion n. 4.
Briefly, our conclusions are as follows: A government employee's vested rights in a
pension plan give him a financial interest in a particular matter whenever the employee,
as a result of such vested rights, is in a position to gain or lose from developments in or
resolution of the matter. Whether a financial interest exists in any particular case
depends on both the nature of the particular matter and the terms of the pension
agreement; determinations must be made on a case by case basis. The typical pension
plan is so intertwined with the sponsoring organization that a government employee
holding vested rights in the plan will be deemed to have a financial interest in matters
affecting the organization, unless the employee can show otherwise. The Office of Legal
Counsel, Department of Justice was consulted on and did concur in this opinion.
Enclosure
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
KDB 7/28/2005
File Folder
FOIA
[JGR/APPOINTEE CLEARANCES - 07/09/1983-07/31/1983]
F05-133/01
COOKE, PAMELA
Box Number
8 KDB
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
6 FORM
6 5/23/1983 B6
280
FINANCIAL DISCLOSURE REPORT (SF 278)
(ORIGINAL OF ID #278)
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
July 28, 1983
MEMORANDUM FOR JOHN HERRINGTON
FROM:
FRED F. FIELDING
All necessary clearances and certifications have been accomplished
with regard to the following individual and he is ready for formal
nomination by the President:
Robert H. Miller - to be Ambassador to the Republic of the
Ivory Coast
CC: Claire O'Donnell
Jane Dannenhauer
Dick Hauser
John Roberts
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
July 29, 1983
The President today announced his intention to nominate the
following individuals to be Members of the Board of Directors of
the National Institute of Building Sciences for terms expiring
September 7, 1984.
MACDONALD G. BECKET would succeed Warner Howe. He is Chairman of
the Board of The Becket Group of companies including Welton
Becket Associates, an architectural/engineering firm. He is a
founding contributor to the Architectural and Design Endowment
for the Museum of Contemporary Art in Los Angeles and a Fellow of
the American Institute of Architects. He also served on the U.S.
Capitol Architect's Long-Range Planning Committee and has been
admitted to the National Council of Architectural Registration
Boards. He is married, has four children and resides in Los
Angeles, California. He was born November 2, 1928.
KYLE CLAYTON BOONE would succeed Blanca C. Cedeno. He has been
proprietor of Boone: Hunton Associates (architects, planners,
interior designers) since 1968. Previously, he was an architect
with Six Associates architectural firm in Asheville, North
Carolina in 1963-1968; and architect with Echols-Sparger
architectural firm in Marion, Virginia in 1962-1963. He received
the Reynolds Aluminum prize for Architectural Students in 1962.
He is married, has four children and resides in Weaverville,
North Carolina. He was born December 16, 1932.
###
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
July 29, 1983
The President today announced his intention to nominate Thomas J.
Healey to be an Assistant Secretary of the Treasury (Domestic
Finance). He would succeed Roger William Mehle, Jr.
Since 1982, he has been Managing Director of Dean Witter Reynolds
Capital Markets and Manager of its Corporate Finance Department.
Previously, he was Manager, Project Finance Group at Dean Witter
in 1975-1982; Vice President of Finance at Instrumentation
Engineering, Inc., in 1971-1975; and Managing Partner of Camargo
Associates in 1967-1971.
Mr. Healey graduated from Georgetown University (A.B., 1964) and
received his Masters of Business Administration from Harvard
University in 1966. He is married, has two children and resides
in Chatham, New Jersey. He was born September 14, 1942 in
Baltimore, Maryland.
###