Executives' association challenges conflict-of-interest interpretation

The Senior Executives Association has written to the Office of Government Ethics to protest a policy that limits the ability of SEA board members to implement policies at their agencies on which the SEA has taken a position.

The issue arose earlier this year when a senior executive contemplating a position on the SEA board contacted the government ethics office to ask whether he could then continue to work on the implementation of new Senior Executive Service pay-for-performance rules at his department. The SEA has been critical of some aspects of Office of Personnel Management regulations implementing those rules.

The senior executive was advised that if he took the board position, he would have to recuse himself from playing a role in the pay-for-performance implementation, or would violate a criminal statute, according to SEA General Counsel William Bransford.

"Because of this, he decided not to run" for the board position, said Bransford. And "other people that would have run for our board did not…. It's had quite an impact on us."

Bransford wrote to OGE Acting Director Marilyn L. Glynn on Aug. 9 to protest the policy, but said he has not yet met with anyone from the office. Glynn has agreed to forestall issuing a written policy until after a meeting, Bransford said. OGE media liaison Vincent Salamone said Monday that he was not authorized to comment on the policy.

In the letter, Bransford acknowledges that SEA board members are barred by federal law from acting on issues on which the association has a financial interest. But Bransford argues that OGE's reading of that statute is overly broad.

He said that the association has nothing to gain financially from the implementation of the new Senior Executive Service pay rules, except in the most indirect ways, if, for example, more executives join the association because of the way the new rules are implemented, or if SEA spends more money lobbying because it is unhappy with the implementation of the rules. But, says Bransford, "We don't directly gain or lose any dollars."

In the 25-year history of the Senior Executive Service, Bransford says, he cannot recall such a broad interpretation of the rules governing SEA board members' activities. The OGE policy "turns the statute on its head by focusing on SEA's expenditures, rather than on SEA's financial interests," he wrote in the August letter. "Such a reading is nothing less than extreme because SEA expends financial resources on every activity in which it engages, from the salaries of its employees to the ink purchased to draft this very letter."