. ??ame UNITED STATES ENVIRONMENTAL PROTECTION AGENCY a? Washington, D.C. 20460 5' "4 neg OFFICE OF JUN 27 2019 GENERAL COUNSEL Mr. David J. Apol Acting Director and General Counsel US. Of?ce of Govermnent Ethics 1201 New York Avenue, NW. Suite 500 Washington, D.C. 20005 Dear Acting Director Apol: I write in my capacity as the Designated Agency Ethics Of?cial (DAEO) to provide you with information regarding actions taken by the Environmental Protection Agency?s Ethics Program to strengthen our Program and to respond to concerns raised by you and your Of?ce. Office of Government Ethics Review of Ethics Program The Of?ce of Government Ethics (DOE) completed a review of Ethics Program in March 201'}r and documented that review in Report 17-1o.1 OGE provided EPA with eight recommendations in two areas that are delegated to Deputy Ethics Of?cials (DEOs): the con?dential ?nancial disclosure program and ethics requirements for special government employees (SGEs). To respond to recommendations related to the timeliness, retention, and accuracy of the con?dential ?nancial disclosure forms, Ethics Program is committed to migrating from a paper-based system to an electronic ?ling system by the 2020 reporting year. I am pleased to report that we have signed a Memorandum of Understanding with the Department of Treasury that allows EPA to use code from and begin the testing of an electronic ?ling system that is based on the Department of Treasury?s current system. With regard to the recommendations related to SGEs, Ethics Program shares concern about the discrepancies the review uncovered in the ethics training and ?nancial disclosure ?lings of SGEs who serve as experts, consultants, or members of advisory committees. The Ethics Program is beginning an engagement with Of?ce of Research and Development (0RD) to understand the particular challenges surrounding ?nancial disclosure requirements for experts and consultants, and to then improve our support of the DEOs responsible for counseling this type of SGE. For $6 Es who are advisory committee members, the Ethics Program met with the Designated Federal Of?cers Network to emphasize the obligation of Designated Federal Of?cers to train SGEs and to collect, review, and certify their ?nancial disclosure reports. Over the course of the past year, the Ethics Program has worked with many of Federal Advisory Committee Act (FACA) committees. For example, we worked closely with the Science Advisory Panel (SAP) staff to Of?ce of Government Ethics. Report No. 17-16: Ethics Program Review US. Environmental Protection Agency. March 2017 (Program Review}. discuss and resolve con?icts and impartiality issues as they arise. The Ethics Program and the SAP jointly met with the relevant EPA program to explain how 30 Es are selected and their ethical obligations. We met with the staff of largest FACA committee, the Science Advisory Board, to explain con?icts of interest analysis and fact patterns. Most recently, the Ethics Program provided in-person ethics training to the Science Advisory Board. Similar training is being scheduled for the Human Studies Review Board and can be replicated as often as necessary. Finally, we are committed to revising the relevant existing online ethics training module and to providing training to Designated Federal Of?cers. In addition to the recommendations, the Report also expressed concerns with the staf?ng level ofthe Ethics Of?ce located in the Of?ce of General Counsel (OGC). The DOC Ethics Of?ce supports the DAEO and serves as the nucleus of decentralized Ethics Program. Among the responsibilities of the Ethics Of?ce is the support and oversight of the Deputy Ethics Of?cials who reside in program and regional of?ces across EPA. At the time of the initiation of the Program Review in 2016, the OGC ethics team was a subcomponent of the DOC Immediate Of?ce and comprised of a Senior Counsel for Ethics, who served as a non-supervisory team lead, and two staff positions {one ?lled with a full-time employee and one filled by two part-time employees who ?shared" the position). During the time the review was ongoing, we established the DOC Ethics Office as a standalone of?ce on par with law of?ces and converted the Senior Counsel to a supervisory position. By the time the report was issued, we had added a temporary third staff position for a two-year period. OGE expressed the following concerns: OGC Ethics may be insuf?ciently staffed to ensure the long-term effectiveness of ethics program. At the very least, 0GB is concerned that at current staf?ng levels, OGC Ethics may not be able to absorb the impact of any staffing changes, such as medical leave or retirement, or any unforeseen events. Additional responsibilities or priorities may stretch existing resources even further. Moreover, the effective administration of certain elements of the ethics program relies largely on the competency of the DEOs who are not directly supervised by OGC Ethics. Again, OGE is concerned that OGC Ethics staf?ng may be insuf?cient to provide the DEOs with continuous oversight and necessary guidance and training.2 In fact, a number of the potential events OGE identi?ed as dif?cult for the DOC Ethics Of?ce to overcome actually occurred after the Review was completed. The two ?ril-time staff members left federal service (leaving the team with no full-time staff members for a period of time), two members of the team were granted extended absences, and the team was asked absorb additional responsibilities. including vetting potential political appointees for financial con?icts of interest. In addition to challenges faced by Ethics Office. from January 2017 to January 3018, I served as Acting General Counsel while maintaining my role as the DAEO. At times during 2017, Ethics Of?ce had fewer staff than we did when OGE expressed its concern. Based on a workload evaluation by the team and with the support of the General Counsel and Chief of Staff. 1 am expanding the capacity of the Ethics Of?ce by increasing the number 3 Program Review at 5. of staff positions. As a ?rst step, I have already ?lled the two vacated staff positions. I recruited one new ethics of?cial from within OGC and I facilitated the transfer of one ethics of?cial from another headquarters of?ce to the DOC Ethics Of?ce. Second, I granted a request from a part-time employee to increase her hours by 20%. Third, I created three new staff positions on the team. One of those new staff positions will be ?lled through the phased reassignment of a current OGC employee with experience in the ethics requirements. The second new staff position will be ?lled at a junior level and the third will be ?lled at a senior level. These additional staff positions will double the staff positions on the team and far exceed any previous staf?ng level for the DOC Ethics Of?ce. These additional resources will focus on expanding the availability of ethics of?cials to provide ethics advice and increasing the support and oversight of DEOs across EPA. We look forward to continuing our engagement with OGE on this and other issues raised in the Program Review. Of?ce of Government Ethics? Engagement with EPA Regarding the EPA Administrator On April 6, 2018, you wrote to me as Designated Agency Ethics Of?cial and advised me to review and analyze the reported actions of Administrator E. Scott Pruitt that you identi?ed in your letter. The letter ended with the expectation that ?that appropriate action will be taken in 133 response. As you know, I initially responded to your letter on April 9, 2018, and informed you that I referred your letter to Of?ce of Inspector General I received con?rmation from Inspector General Arthur Elkins that his Of?ce accepted my referral and opened investigations into those issues. At present, we understand that several investigations are open and on- going, and my staff and I are providing ?ready and active assistance? to the OIG inspectors, as required by Of?ce of Government Ethics regulations.5 When we become aware of an ethics-related matter, the OGC Ethics Office reviews the known facts and determines the appropriate path forward. When the known facts demonstrate that all actions were consistent with ethics requirements, we may nonetheless determine that there is a need for additional training or education, but otherwise take no ?thher action. In certain instances, the known facts are not suf?cient for us to fully evaluate the matter. If the OGC Ethics Of?ce determines additional fact-fmding is necessary, we will refer the matter to EPA's Inspector General if the matter involves a criminal provision or a senior agency of?cial. If the matter does not involve a criminal provision or a senior agency of?cial, we work with the employee and the employee?s supervisor, as appropriate, to obtain any additional information. When the known facts demonstrate that some actions were inconsistent with the ethics requirements, we refer the matter to the Inspector General? If the OIG accepts a matter for investigation, regulations require ethics of?cials to provide support to the 010, as 3 Letter from David J. Ape], Acting Dir. and Gen. Counsel. U.S. Of?ce of Gov't Ethics. to Kevin S. Minoli. Principal Deputy Gen. Counsel and Designated Agency Ethics Of?cial. U.S. Envtl. Prot. Agency (Apr. 6. 2013). Letter from Kevin S. Minoli, Principal Deputy Gen. Counsel and Designated Agency Ethics Official. US. Envtl. Prot. Agency to David J. Apol. Acting Dir. and Gen. Counsel, U.S. Of?ce of Gov?t Ethics (Apr. 9, 2013}. 5 5 CPR. 5i 5 .F.R. (?Employees shall disclose waste. fraud. abuse. and corruption to appropriate authorities?). 3 requested.7 If the violation is of a non-criminal provision and does not involve a senior agency of?cial, the Of?ce of the Inspector General historically has agreed that the Ethics Program can address the matter administratively without referral. in those instances. we work to bring the employee into compliance, if possible. As you know, regardless of the type of violation or employee involved, ethics of?cials do not have authority to discipline an employee. Should the supervisor determine corrective or disciplinary action is appropriate in response to a violation of the ethics requirements, however, we will provide assistance to the supervisor upon request.3 Since your letter in April, additional potential issues regarding Mr. Pruitt have come to my attention through sources within EPA and media reports. Consistent with my obligations under Of?ce of Government Ethics regulations, I have referred a number of those matters to Inspector General and have provided ?ready and active assistance" to the Inspector General and his of?ce. Several of those matters were also included in your recent letter to the EPA Inspector General}; To the best of my knowledge, all of the matters that have referred are either under consideration for acceptance or under active investigation. Engaging Deputy Ethics Of?cials and Supervisors to Provide them with Necessary Support Even as we are challenged by the concerns described above, I have also challenged the OGC Ethics Of?ce to use this moment to take a look at our Program and evaluate where we are strong and where we might do better. When we take a step back, the picture that we see is an Ethics Program implemented by Deputy Ethics Of?cials across the agency and that depends on ?rst-line supervisors to help guide their employees and create an ethical culture at EPA. Our responsibility as the OGC Ethics Of?ce is to provide DEOs and ?rst-line supervisors with the support and resources they need to ful?ll their critical roles. To ensure we are doing that well, Ethics Of?ce is embarking on an initiative to Engage in Ethics with our DEOs and ?rst-line supervisors. The Program Review reminded us that DEOs are the front line of Ethics Program. They are our presence in the ?eld, and are the people that the majority of EPA employees turn to when they have an ethics question. And, yet, those DEOs have accepted the DEC responsibilities as ?other duties as assigned." in addition to some other area of responsibility that is seen by their supervisor and home office as their primary responsibility. The DOC Ethics Office needs to provide support and assistance to DEOs so that they can ef?ciently and effectively counsel employees on the wide range of issues that they see. More than ever, the DOC Ethics O?fice needs to Engage in Ethics with our network of Deputy Ethics Of?ces to ensure they have access to the resources they need. When you accepted my invitation to address Executive Management Council on April 13, 20] 8, you spoke about studies that show how employees" faith in the integrity of their organization derives primarily from their immediate supervisor. If an employee's immediate i 5 5 CPR. 2638.104tclt9) (responsibilities of the Designated Agency Ethic Of?cial include ?Assisting the agency in its enforcement of ethics laws and regulations when agency officials. . .take disciplinary action" [Emphasis Added?. Letter from David J. Apol. Acting Dir. and Gen. Counsel. US. Of?ce of Gov"! Ethics. to Arthur A. Elkms. Jr.. Inspector General. US. Envtl. Prot. Agency (June 15. 2018). supervisor behaves ethically, then an employee?s awareness of that ethical behavior contributes to their perception of the ethical culture of their organization. You encouraged supervisors to talk about the importance of ethics and take pride in ethical behavior. In recognition of the important role of supervisors, Engage in Ethics will include our engagement with EPA's First Line Supervisors Advisory Group and ?rst-line supervisors across the agency to understand how the Ethics Program can support them as they ?ll?ll their ?heightened personal responsibility for advancing govemment ethics" and their obligation to ?to help ensure that subordinates are aware of their ethical obligations under the Standards of Conduct and that subordinates know how to contact agency ethics of?cials.?l0 Finally, our effort to Engage in Ethics with DEOs and ?rst line supervisors is designed to recognize the contributions they make to Ethics Program and thank them for their role in creating an ethical culture at the agency. The resources that we will deploy, such as an EPA-wide Ethics Helpline, an agency-wide email box (ethics@epa. gov), and a redesigned Ethics Program intranet site, are a re?ection of my commitment to better serve them as the DAEO, not of any weakness in their performance. I believe that the OGC Ethics Of?ce?s work to become more visible, more accessible, and more available to our DEOs and ?rst-line supervisors will ultimately make Ethics Program even more effective at serving the needs of employees across the agency. EPA employees work daily to make their ethical federal service a point of pride, and through the Engage in Ethics initiative, we will ensure that Ethics Program is doing all we can to help them achieve that goal. Conclusion Thank you for your continued support of Ethics Program. We would appreciate any insights or advice you and your staff may offer regarding our effort. We have appreciated your willingness to Engage in Ethics with us, and have bene?ted greatly from your guidance and assistance. Sincerely, Kevin S. Minoli Principal Deputy General Counsel Designated Agency Ethics Of?cial '0 5 C.F.R. 2638.103.