Defining a Federal ‘Appointee’
A priest, a rabbi, a White House aide and a Hill staffer enter a bar. A group of lobbyists, trade association types and a few nonprofit executives soon join them.
The group throws back a few pitchers of beer, some mini-burgers and onion rings.
The bill arrives, and the staffers ask, Whos buying? The troupe of special interests responds in unison: It depends on your definition of appointee.
With President Barack Obamas new lobbying restrictions out last Wednesday, this is just the type of bad punch line that lawyers will be offering their clients in the coming weeks, as downtowns heavily regulated profession wrests with its newest set of gift-giving curbs.
While the executive order was, as advertised, the toughest ethics package ever implemented by an incoming administration, the new gift rules … mean that there are now four separate, different and inconsistent gift rules applicable to Congressional and executive branch employees, said Brett Kappel, a lawyer at Vorys, Sater, Seymour and Pease, referring to the House, Senate, White House and federal agencies. Its burdensome for folks looking to do business with the government.
Under an executive order signed by Obama on Jan. 21, every appointee in every executive agency is required to sign an ethics pledge effectively banning them from hitting up former colleagues for political favors after leaving the administration.
But the order also bars any handouts from lobbyists from a piece of gum on up.
Among other restrictions, administration staffers promise not [to] accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee and not to lobby any covered executive branch official or non career Senior Executive Service appointee for the remainder of the Administration.
Although widely heralded as unprecedented, lawyers, lobbyists and even the White House say the document is far from perfect or final.
For example, the fine print of Obamas ban also includes a vague gift rule waiver process administered by the Office of Management and Budget.
Such an exemption process, the White House confirmed, might eventually be used to create carve-outs similar, perhaps, to House and Senate exemptions for widely attended events and toothpick rules on eligible edible enticements.
But lawyers cautioned that the Obama administrations decision to set the bar high on the gift ban and forgo the same sort of exemptions used by the House and Senate will likely require it to lower the bar as real-life scenarios dictate. And that may cause public relations hiccups down the road, perhaps guaranteeing another story that they are crossing their own line in the sand, said lawyer Alex Vogel of Mehlman Vogel Castagnetti Inc.
Theyve gone out and drawn a bunch of bright lines that are only going to trip them up, Vogel said.
When the first waivers are issued, they will have to answer another round of stories about whether the waivers undercut their cleaner-than-thou image, Vogel added.
Despite recommendations by Vogel and other lawyers, the White House said it was not interested in adopting a plan similar to the two-year-old House and Senate ethics package, calling the Congressional rules too soft. In addition to the waiver process, ethics experts also contend that other definitions in Obamas executive order are not entirely airtight.
In the document, an appointee is defined as every full-time, non career presidential or vice-presidential appointee, non-career appointee in the Senior Executive Service (or other SES-type system), and appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character in an executive agency.
But Stefan Passantino, a lawyer at McKenna Long & Aldridge, said the administrations definition was not necessarily broad enough and could inadvertently create confusion for lower-level staffers who may technically fall outside of the documents legal definition and therefore, still be eligible to take up to $20 from lobbyists.
The ethics pledge and the gift ban is only applicable to appointees and appointees are defined in there as a fairly senior person, Passantino said.
If youre a lobbyist, you cant give a dollar to any Congressional staffer, you cant give a dollar to any appointee, but you can still give up to $20 to a non-appointee in the executive branch.
The White House disputed loopholes identified by Passantino and other lawyers, arguing that regardless of the definition, every administration hire will be required to sign the ethics pledge, top to bottom including interns.
Passantino also agreed that the waiver process likely will produce countless exceptions to the White Houses tightly worded document, predicting a whole host of other exceptions springing up.
Theyre going to take an even bigger prominence when people realize the implications of this ban, just as Congress had to deal with the implications of its ban, he said. Theyre really contemplating how the law of good intentions meets with the law of unintended consequences.