[Senate Hearing 106-571] [From the U.S. Government Publishing Office] S. Hrg. 106-571 NOMINATION OF AMY L. COMSTOCK ======================================================================= HEARING BEFORE THE COMMITTEE ON GOVERNMENTAL AFFAIRS UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS SECOND SESSION ON THE NOMINATION OF AMY L. COMSTOCK, TO BE DIRECTOR OF THE OFFICE OF GOVERNMENT ETHICS __________ MAY 12, 2000 __________ Printed for the use of the Committee on Governmental Affairs U.S. GOVERNMENT PRINTING OFFICE 65-381 cc WASHINGTON : 2000 _______________________________________________________________________ For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 COMMITTEE ON GOVERNMENTAL AFFAIRS FRED THOMPSON, Tennessee, Chairman WILLIAM V. ROTH, Jr., Delaware JOSEPH I. LIEBERMAN, Connecticut TED STEVENS, Alaska CARL LEVIN, Michigan SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii GEORGE V. VOINOVICH, Ohio RICHARD J. DURBIN, Illinois PETE V. DOMENICI, New Mexico ROBERT G. TORRICELLI, New Jersey THAD COCHRAN, Mississippi MAX CLELAND, Georgia ARLEN SPECTER, Pennsylvania JOHN EDWARDS, North Carolina JUDD GREGG, New Hampshire Hannah S. Sistare, Staff Director and Counsel Dan G. Blair, Senior Counsel Michael L. Loesch, Counsel, International Security, Proliferation, and Federal Services Subcommittee Joyce A. Rechtschaffen, Minority Staff Director and Counsel Peter A. Ludgin, Minority Professional Staff Member Nanci E. Langley, Minority Deputy Staff Director, International Security, Proliferation, and Federal Services Subcommittee Darla D. Cassell, Administrative Clerk C O N T E N T S ------ Opening statements: Page Senator Thompson............................................. 1 Senator Collins.............................................. 7 Senator Lieberman............................................ 11 Senator Levin................................................ 13 WITNESS Friday, May 12, 2000 Amy L. Comstock, to be Director of the Office of Government Ethics: Testimony.................................................... 2 Biographical information..................................... 17 Pre-hearing questionnaire.................................... 24 Letters of recommendation from: Lamar Alexander.............................................. 34 Arthur B. Culvahouse, Jr..................................... 35 Jeffrey C. Martin............................................ 36 Patricia McGinnis............................................ 37 Stephen D. Potts............................................. 38 Edward C. Stringer........................................... 40 Information submitted by Senator Collins......................... 41 Information submitted by Senator Levin........................... 43 NOMINATION OF AMY L. COMSTOCK ---------- FRIDAY, MAY 12, 2000 U.S. Senate, Committee on Governmental Affairs, Washington, DC. The Committee met, pursuant to notice, at 10:08 a.m., in room SD-342, Dirksen Senate Office Building, Hon. Fred Thompson, Chairman of the Committee, presiding. Present: Senators Thompson, Collins, Lieberman, and Levin. OPENING STATEMENT OF CHAIRMAN THOMPSON Chairman Thompson. Senator Lieberman has been delayed, so we will go ahead and start. This morning we will be considering the nomination of Amy Comstock to serve as the Director of the Office of Government Ethics. The rules of the Committee on Governmental Affairs mandate that an inquiry be conducted into the experience, qualifications, suitability, and integrity of the nominee to serve in the position to which she has been nominated. The Committee has received all the required information. In addition, the nominee has responded in writing to prehearing questions submitted by the Committee concerning issues that are relevant to the position for which she has been nominated. Copies of the nominee's biographical information and prehearing responses will be placed in the record as part of this hearing and are available upon request. The financial statements are available for inspection by the public in the Committee offices.\1\ --------------------------------------------------------------------------- \1\ The biographical information and pre-hearing questions referred to appear in the Appendix on pages 17 and 24 respectively. --------------------------------------------------------------------------- In addition, I have received several letters of support for the confirmation of Ms. Comstock, and I would ask that they be included in the Committee record as well.\2\ --------------------------------------------------------------------------- \2\ The letters referred to appear in the Appendix on pages 34 to 40. --------------------------------------------------------------------------- Committee staff has reviewed all of the information. In addition, staff has examined the financial disclosure report submitted by the Office of Government Ethics. The Committee's Ranking Member Senator Lieberman and I have reviewed the FBI background investigation report. Committee rules require that all nominees be under oath while testifying on matters relating to their suitability for office, including the policies and programs which the nominee will pursue if confirmed. So would you please stand and raise your right hand? Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you, God? Ms. Comstock. I do. Chairman Thompson. Please be seated. Thank you. Welcome to the Committee, Ms. Comstock. At this time would you like to acknowledge any members of your family that you might have in the audience today? Ms. Comstock. I would, Senator. Thank you. My husband, Patrick Morris; my daughter Andrea Morris; my son Daniel Morris; and my mother, Jean Comstock. Chairman Thompson. Thank you. I have a son Daniel myself, so I will remember him. Would you like to make an opening statement at this time? TESTIMONY OF AMY L. COMSTOCK, TO BE DIRECTOR OF THE OFFICE OF GOVERNMENT ETHICS Ms. Comstock. I would. Thank you, Mr. Chairman. Twelve years ago, I made the decision to build a career in the Federal Government. I regarded public service as an honorable career and was hoping that I would find it rewarding as well. I have, in fact, found it to be both. As someone who believes in the ideal of public service, it is a particular honor to be before you today participating in the appointments process that was established over 200 years ago, and I have to confess to also being more than a little pleased that my children are here to see their mother participate in that process. As you already know, I have worked in the field of government ethics for many years. I believe that it is important for the government as a whole and for the success of each agency for there to be a strong Executive Branch ethics program. A strong ethics program is a key component to assuring the taxpayers that the government's business is, in fact, being conducted with impartiality and with integrity. A strong ethics program is equally important for the employees themselves. The vast majority of the people with whom I have worked genuinely want to do the right thing and to follow the rules. But given the sometimes complicated issues that can arise, they need a good ethics program to help them do that. I have worked closely with the Office of Government Ethics during these years, and I believe that they have done a tremendous job of establishing a program through both regulations and guidance that allows each agency to have its own ethics program tailored to its unique issues and needs, while still ensuring that all Executive Branch employees are held to the same standards and rules. Growth and change are a part of life, however, and as I indicated in my prehearing questionnaires, I believe that there are some areas where the Executive Branch ethics program can be strengthened and fine-tuned. If I am confirmed as Director, I am quite aware that I will be beginning my tenure at a very busy time for OGE and the government. The transition season begins for OGE before the election, with many employees preparing to leave government service. While I feel a little bit like a tax lawyer joining a new law firm on April 1, I view this timing as a real opportunity for me, if confirmed as Director, and for OGE. This is a time to take a leadership role to further foster the belief that ethical considerations must be incorporated into the work that agency officials do each and every day and to work through the transition to ensure that each agency has in place a strong ethics program that is utilized by all employees. Once again, Mr. Chairman, Senator Collins, it is an honor to have been nominated for this position and to be here today. Chairman Thompson. Thank you very much. The Committee has a few standard questions that we ask of all of our nominees for the record. Is there anything that you are aware of in your background which might present a conflict of interest with the duties of the office to which you have been nominated? Ms. Comstock. No. Chairman Thompson. Do you know of any reason, personal or otherwise, that would in any way prevent you from fully and honorably discharging the responsibilities of the office to which you have been nominated? Ms. Comstock. No. Chairman Thompson. Do you agree without reservation to respond to any reasonable summons to appear and testify before any duly constituted member of Congress if you are confirmed? Ms. Comstock. Yes. Chairman Thompson. At this time I have a few policy questions I would like to ask you. I understand you recently attended a symposium hosted by the Brookings Institution and the Heritage Foundation which served to launch the Presidential Appointee Initiative. It is a matter that many of us have been concerned about, especially on this Committee. Many of us have been concerned about the current Presidential appointment process as being too lengthy and too complex. And one aspect of the appointment process is your agency's review of the nominee's finances in order to determine whether or not there are any conflicts of interest, obviously a very important matter. But the question has arisen as to whether the requirements that we put on these people who want to come forward for a few years of public service, have gotten so onerous and so complex that we are actually deterring qualified people from entering public service. Do we require too high of a level of financial disclosure for these nominees, in your opinion? Ms. Comstock. In my opinion, there are really two parts to that. In order to ascertain whether there's a conflict of interest, I do believe that the Executive Branch financial disclosure form, as I indicated in my questionnaires, asks, in places, for a level of detail that is not needed for a determination, at least at the first cut, of whether there's a conflict of interest, and that information can be difficult to obtain. Having also been on both sides of this process, being a nominee as well as having reviewed forms for a number of nominees, I think many of the questions that are asked by the administration, the Senate, and on the financial disclosure form ask for the same general information but are asked in slightly different ways or for slightly different time periods, so that the filer essentially has to dig up and recount, re- evaluate information three times. I think that the process could be streamlined and coordinated. My experience with the Office of Government Ethics is that they are extremely timely in their review, but in the financial disclosure forms they are implementing statutory requirements. If I'm confirmed as Director, I would like to work with the Office of Government Ethics to see if there are areas where we think we could lessen the burden of financial disclosure without diminishing the information that we need for conflicts analysis and help to coordinate and certainly be a significant party at the table with the White House and the Senate to see if we can find a way to coordinate those forms without lessening the unique needs of each of those entities. Chairman Thompson. Well, this Committee is working on legislation that is designed to raise some of the issues that were raised in this symposium that I referred to, and one proposal is to ask the Office of Government Ethics to provide Congress with its recommendations for streamlining the process, avoiding unnecessary reporting requirements and duplication and that sort of thing. Would you be supportive of such a request of your office, if confirmed? Ms. Comstock. I would be very supportive of such a request, Mr. Chairman. I believe that it's very important to do what we can to move the process forward. I would--I have discussed this with the Office of Government Ethics. There is some concern in terms of timing because, as you know, we're entering what might be viewed as their peak season, and this is an extremely important request. And in order to do justice to it, we wouldn't want either changes midstream in the peak season and we are concerned about timing. So I would just ask if we could work with your Committee in terms of timing. But I'm very interested in this issue and believe that we could streamline-- we could provide you with some good solid recommendations. Chairman Thompson. Well, good. We will look forward to working together on that. Just very generally, you will be heading an agency charged with providing overall guidance on a wide variety of ethics issues in the Executive Branch. Do you have a sense of what your priorities will be and the challenges you will be facing? In particular, in this Committee, we are interested in the Federal civil service. Has the Office of Government Ethics, if you know at this point, been able to sufficiently recruit and retain qualified employees in the number that is needed? We are seeing a problem government-wide in this regard. We have just had hearings with regard to cyber terrorism, for example, and the attacks on our computers, and obviously we all know what has been going on around the country there. One of the things that we are facing--of course, the government has a bigger problem than anybody. People say, What is the government going to do about private industry? First of all, the government can clean up its own house. We are a long way from doing that. Part of that problem is the difficulty in retaining qualified people, getting qualified people to start with and then retaining them. We are coming into an era of specialization. OGE is a different kind of situation, but the same general principles and, I think, questions arise. Have you had a chance to get a handle on that yet? I know you haven't been there, but you have been liaison with them and I know have dealings with them. Ms. Comstock. Yes, Mr. Chairman, actually, as you indicated, I have not asked for information that would otherwise not be available to me except in my liaison role. But my experience with the Office of Government Ethics is that they, in fact, have had a fabulous retention record with their employees. I have worked most closely with the Office of General Counsel in the agency, and I believe they do have strong retention. I don't know for other positions where I might not have as much direct contact, I don't know what their--whether they have recruitment problems. But I do share your concerns about civil service government-wide. That's something I care about. Chairman Thompson. All right. Let me ask you about the well-known mortgage guarantee of the President and the First Lady. To summarize it, it appears that at a particular point in time last fall there was a loan guarantee or the offer of a loan guarantee by a private individual to the President and the First Lady for a home in Westchester, New York. The First Lady and her people, and perhaps the President, indicated at the time that they had run this matter by the Office of Government Ethics and it was permissible for them to accept this loan guarantee. Mr. Potts, the Director of the Office of Government Ethics, said publicly: We never did pass on that issue as to whether or not it was acceptable for them to accept this loan guarantee. What we passed on was the question of whether or not it was to be disclosed. Our understanding is you were the intermediary, perhaps, between Cheryl Mills, the White House Legal Counsel, and either Mr. Potts directly or the Office of Government Ethics in general. Can you tell us what happened with regard to that? Ms. Comstock. Yes, sir, I'd be happy to. I was asked to determine with the Office of Government Ethics as part of my liaison role whether the loan mortgage guarantee arrangement would be required to be disclosed on the President's public financial disclosure form. Chairman Thompson. All right. Who asked you to do that? Ms. Comstock. Cheryl Mills. Chairman Thompson. All right. Ms. Comstock. And I actually cannot--timing, I'd have to look back to determine whether she was Deputy Counsel or Acting Counsel at that time. Chairman Thompson. So what did you do? Ms. Comstock. So I contacted the Office of Government Ethics. We discussed it. Chairman Thompson. Who did you talk to over there? Ms. Comstock. Marilyn Glynn in the Office of the General Counsel. We discussed it probably two times, I think two times, and came to the conclusion that under the regulations that apply to the reporting requirements and financial disclosure form that this arrangement did not constitute a gift that needed to be reported, under the gift reg definition. Chairman Thompson. Right. So did you report this back to Ms. Mills? Ms. Comstock. Yes, I did. Chairman Thompson. And your report to her basically was that it was OGE's opinion it did not need to be disclosed? Ms. Comstock. On the financial disclosure form. Chairman Thompson. On the financial disclosure forms. Ms. Comstock. Right. Chairman Thompson. Was there, in fact, any determination by OGE as far as you knew as to whether or not it was permissible to accept the loan guarantee at that point? Ms. Comstock. No, I never discussed that with them. Chairman Thompson. All right. Then you saw the public statements that were made that, in fact, OGE had, in fact, made a determination that it was permissible for them to accept the loan guarantee, I assume. Ms. Comstock. I did see them. Chairman Thompson. Then later, I think Mr. Potts said that the President has great latitude in what he can accept and that there was no reason to believe why this would not fall under that general umbrella, I think something along those lines; and if he had been asked, he would have addressed it more specifically. But he was not asked. Ms. Comstock. That is correct, sir. The President is exempted from the gift acceptance prohibitions by regulation. Chairman Thompson. Do you recall, was Mrs. Clinton officially a Senate candidate at that time? Ms. Comstock. No, I do not believe that she was. Chairman Thompson. Because that would raise additional questions. I am not sure what the answer to this is, but it looks to me like there are certain requirements that a Senate candidate has in terms of disclosure in addition to those of a President that a greater, perhaps, or certainly different than those of a President. So you have the situation where one spouse is President and the other one is a candidate for the Senate. Ms. Comstock. Right. Chairman Thompson. And the loan guarantee is for both of them. Ms. Comstock. That is correct---- Chairman Thompson. That would have presented a pretty good law school question, wouldn't it? Ms. Comstock. It would be. My role was obviously only for the President's financial disclosure form. Chairman Thompson. But it was being used--well, you saw in the news accounts that Mrs. Clinton was using that--well, I said ``using''--was discussing that herself. When you knew that OGE had only passed on the disclosure question and that among the First Lady's spokespeople, anyway, they were saying that OGE had passed on the question of whether or not it was acceptable, did you talk to Ms. Mills about that and say there is some disconnect here? Or was there any discussion about that? Ms. Comstock. There was discussion, sir. There was actually no disagreement either between OGE or myself and anyone I talked to about what the Office of Government Ethics had--the question that they had answered. I am not familiar with how it became inaccurately, as far as I know, translated. Chairman Thompson. Did you ever talk to Ms. Mills about it? Ms. Comstock. Not that I recall. Chairman Thompson. Well, in a position such as that, you are advising Executive Branch employees with regard to ethics matters. You are dealing with the Office of Government Ethics. So your responsibility had to do with the President because he was the Executive officer. But OGE's response was being mischaracterized. I guess I find it somewhat unusual that there is no discussion about getting all this straight. Certainly somewhere along the line--I mean, Mr. Potts said that he wrote his letter complaining about this after he says that he had informed the White House that this was incorrect, and they still said it again. Ms. Comstock. Right. Excuse me, sir. I did--I don't recall discussing it with Ms. Mills. I did discuss it with other people. And if I may take a moment to---- Chairman Thompson. See, all I am--the point here, I think the relevant point here has to do with not looking at things too narrowly and having a sensitivity to what is going on around you. You might have done it a little bit differently, perhaps, if you had it to do again in terms of questions that you might have asked. I would have thought, for example, that the question of whether or not this is permissible would be the logical, the most important question. I am not sure how something could have been prohibited--or you wouldn't have to disclose it and still it would not be permissible. I am not sure how that would work. But I just think that this is a very sensitive kind of situation and it is fraught with all kinds of difficulties and political pressures sometimes and back and forth, and it is very important, as I am sure you know, that you look at not only the narrow question that has been presented to you, but the obvious issues and warning flags that may be out there. Ms. Comstock. Mr. Chairman, I want to say very firmly that if I ever think that I see a violation or a possibility of a violation, that is my obligation to raise that, and I will always do that regardless of who the individual at issue is. That was not this case. As I indicated, the President is exempted from the gift acceptance prohibition, so, in fact, whether this financial arrangement would fall within the definition of a gift for the gift acceptance rules, which is a different definition of gift for the gift reporting rules, the answer to that was not viewed as relevant because those regulations do not apply to him. So what it came down to was two questions: Was it a reportable arrangement? And was it advisable? I did work on the question of whether it was reportable, but other people were participating in the conversations of whether it was advisable. And I did not see any violations or possible violations that I needed to raise with them. I did not see the need to second-guess their advising on that. Chairman Thompson. All right. Senator Collins. OPENING STATEMENT OF SENATOR COLLINS Senator Collins. Thank you very much, Mr. Chairman. I want to welcome you, Ms. Comstock, to the Committee, and I also want to tell you that I know from firsthand experience that many of the staff members that you will be working with at OGE, assuming that you are confirmed, are very talented. I see many of them behind you, and I worked with them, oh, some 15 years ago when I was Staff Director of the Subcommittee of Governmental Affairs that had jurisdiction over OGE. And, in fact, we did an extensive oversight hearing on the Office of Government Ethics. The office plays, in my view, an absolutely key role in ensuring that public officials uphold the highest ethical standards. The whole purpose of our ethics laws is to assure the public that Federal officials are making decisions that are free from conflicts of interest. The purpose of the law, thus, is to promote public confidence in the decisions of government officials. In that regard, I want to talk to you about the issue of an appearance of a conflict of interest. It is my understanding that the current regulations require a Federal official to look not only at whether he or she may have an actual conflict of interest but whether or not a reasonable person looking at the facts of the case would doubt that the decision of the Federal official was made free from any taint of improper influence. Is that accurate? Ms. Comstock. Yes, Senator. The statute at issue defines what would be a criminal conflict of interest, and then there are also government ethics regulations that cover the appearance of a conflict of interest. Senator Collins. And it is my understanding that you have overseen the ethics programs of some Federal agencies. Did you do that in the capacity of being the designated agency ethics officer? Ms. Comstock. No. I have in both places, the Department of Education and the White House, I have been the alternate designated agency ethics official. Senator Collins. You were the alternate---- Ms. Comstock. Alternate. Senator Collins [continuing]. Designated---- Ms. Comstock. Second. Senator Collins. But you are familiar with the regulations that govern how an official should deal with the appearance of a conflict of interest? Ms. Comstock. Absolutely, and I should say that, especially at the Department of Education, I directed the programs, but the structure, the layout was that I was the alternate. Senator Collins. And do you think that the guidance to Federal officials on how to deal with the appearance of a conflict of interest is important for public officials to follow? Ms. Comstock. Yes, I think it's very important for public officials to follow. The way that I have often viewed these rules and explained them to people who sometimes are angry with me or frustrated at the application of them is that, first off, they're designed--or the attempt is to write them so that they can be applied consistently and fairly to all employees. But the intent in many cases is to pull employees out of a situation where they personally would have to decide what is the right thing to do, what is the wrong thing to do. They're designed to keep them from having that struggle, either having to seek assistance or having to deal with that themselves. So the regulations I think do a pretty good job in this case on the appearance of a conflict of interest of laying out examples of scenarios of relationships--``covered relationships,'' as they are called--that could appear to be a conflict of interest. A former employer with whom you've worked for the last year, a relative, an organization that you're--the term is ``active participant'' with in your personal capacity, or some other entity or person out there that you have such a close relationship with that if someone, a non-Federal person, was looking at your Federal dealings with them, they might say-- they would at least have the question: Is this being done fairly? And those rules are designed to even keep that question from ever having to be raised. Senator Collins. I think you have captured exactly what the purpose and the essence of those rules are. And I want to tell you about a case that, in my view, was very troubling from the perspective of trying to prevent exactly that kind of concern about whether or not the decision was made fairly. Senator Thompson and I recently held hearings on the GAO's findings about certain large Medicare overpayment settlements. GAO found numerous problems with the way these settlements were reached, and, in fact, the Federal Government recovered only about a third of the amount due. And none of the three settlements were handled in the normal course of following the agency's procedures for settling such overpayment cases. One of GAO's findings spoke exactly to the issue of the appearance of a conflict of interest. The head of the Health Care Financing Administration at that time, Bruce Vladeck, previously had served on the board of directors, twice, of the hospital whose payment--who was having the payment dispute with HCFA. In fact, Mr. Vladeck had resigned from the board of directors upon taking his position as the Administrator of the Health Care Financing Administration. It was only a month lag time. Now, he had served for some 3 years in the position of the Administrator of HCFA before getting involved in the settlement of this case, so here we did not have a case where he was violating the 1-year ban that would apply to an official getting involved in this case. But what we have here is the head of an agency playing a highly unusual role in directing and getting involved in the settlement of a multi-million-dollar claim in which ultimately the hospital only paid $25 million of the approximately $155 million in overpayments. So there was a very large discrepancy between the amount the government felt it was owed and the amount that the case was ultimately settled for. And this official had very close ties to the board members of this hospital, to the head, the administrator of the hospital, and indeed had served on the board of the hospital. In such a situation--and let me also tell you the important fact that the testimony we had from lower-level civil servants who were involved in the settlement is that never before, except in these three cases, had the administrator gotten involved in directing that a settlement be reached. In a case like that, would it be prudent for the head of the agency to seek guidance from the agency ethics official and perhaps decide, because of the appearance problem, they recuse themselves from involvement in the dispute? Ms. Comstock. I think it's always appropriate to seek guidance. One of my goals is to ensure that an ethics program in each agency, that all officials in the agency have enough confidence in that program so that they don't view it as a step of last resort but as normal course of business to reach out and check on many issues. So I think it's always appropriate to seek guidance. In the facts that you laid out, obviously I need to---- Senator Collins. I realize you are not familiar with the case. Ms. Comstock. I'm not familiar with the case, but given what you've told me, I do want to ask: Did he resign from the board position 1 month before? Or you also mentioned a 3-year period. Senator Collins. One month before taking his position as head of HCFA. Ms. Comstock. And then 3 years elapsed? Senator Collins. Then 3 years later---- Ms. Comstock. I see. Under the--I still would always advise someone to seek guidance in that situation because, while the regulations set out a standard for an appearance that a reasonable person with knowledge of all the facts, all the relevant facts, how would they view this situation, first off, these regulations are only a minimum of behavior, and I think as Federal officials we can do better sometimes. And some situations simply aren't covered by that. At the Department of Education, we have, for example, a number of former superintendents of school districts who now are at the Department of Education, and I always advise them that if they as a head of a program at Education would be reviewing a decision that they made as superintendent--I don't care if it was 12 years ago--they need to recuse themselves from that because it simply will--it will raise more questions than it's worth. This situation would not fall within the 1 year, but I think it is one that should be talked out carefully because, again, the goal is to not draw into question what might otherwise be correct decisions. We now don't know whether that was a correct decision, and that's the waste of time, really, and the lack of credibility in Federal decisionmaking that we want to avoid. Senator Collins. I think you have hit on the key point. Because the normal procedures were not followed in many regards with respect to these overpayment settlements, and because of Mr. Vladeck's personal relationship with the hospital in question, we will never know whether or not the government got a good deal. Now, we know that the General Accounting Office thinks that the government did not get a good deal, and we know that a lot of the lower-level HCFA employees felt that the government did not get a good deal. But it tainted the whole process, and that is what is of most concern to me. And it also seems to me that even if a Federal official has received guidance on similar cases in the past, it is always wise to go back with the facts of that exact case. Would you agree with that? Ms. Comstock. I would agree with that. I do need to emphasize, based on the facts that you laid out, it doesn't sound like it's a technical violation, but this is the reason for having a strong ethics office and a good relationship, because either there are more facts which justify this person being involved; maybe there are facts that we don't understand which would make us feel better about the scenario. In that case I have given employees guidance in writing for their protection many times. Knowledge of all of the relevant facts is an awful lot of facts, and we sat down and worked through all of them. And I think that's important for the employee. So, yes, I think that this is an area--I really want to work with the DAEO's and all high-level officials to really encourage them to have a close working relationship with their ethics officer. Senator Collins. Thank you very much. Mr. Chairman, I would ask unanimous consent that the section from the General Accounting Office report that deals with conflict of interest concerns relating to the case that I discussed in which the GAO expressed its opinion that Mr. Vladeck should have been much more concerned about the appearance of his involvement and sought authorization to participate in the negotiations from the ethics officials within the agency be entered into the record.\1\ --------------------------------------------------------------------------- \1\ The information submitted by Senator Collins appears in the Appendix on page 41. --------------------------------------------------------------------------- Chairman Thompson. It will be made part of the record, without objection. Senator Collins. Thank you. Senator Lieberman. OPENING STATEMENT OF SENATOR LIEBERMAN Senator Lieberman. Thanks, Mr. Chairman. And, Ms. Comstock, welcome to you and to your family. Your kids are absolutely adorable. Ms. Comstock. Thank you. Senator Lieberman. And irresistible. It is a pleasure to welcome you here. I had the pleasure of meeting with this nominee, Mr. Chairman. I was very impressed in the discussion that we had. I thought I would take just a moment to put on the record, because I am impressed by it--and I don't know that we see enough of it these days--by your own biographical story, which is that you grew up in Massachusetts, went to Bard College, law degree from the University of Michigan, and then spent a few years in private practice, but then came into public service, and that is the part that I wanted to describe with appreciation, serving in the Department of Education as an attorney in the Educational Equity Division and since then have just kept moving up the ladder. While at the Department of Education originally, Ms. Comstock won the Younger Federal Attorney Award, which is a national award given annually to five Federal attorneys under the age of 36 for outstanding service and sustained superior contribution. I presume that was relatively recently based on the age that has been---- [Laughter.] Ms. Comstock. Thank you, Senator. Senator Lieberman. You are welcome. Your husband nodded appreciatively. Ms. Comstock. He is a smart guy. Senator Lieberman. Obviously, as we know, currently serving as senior counsel in the Office of General Counsel at the Department of Education; prior to that, 15 months as Associate Counsel to the President. We have broad bipartisan support for your nomination, including receiving letters from Secretary Lamar Alexander, and we always want to mention the name here in this Committee when we receive notification from Senator Howard Baker--I turn graciously to my left--supporting your nomination. The short of it is I admire your long commitment to public service, and I appreciate your willingness to take on this assignment. I thought the line of Senator Thompson's questions about Mr. McAuliffe's guarantee of the mortgage were fair questions, and I appreciate your answers. I just want to come back to what may have been your final answer in the series of questions because it is important, which is to say that, in that case-- and I presume more generally--when asked a specific question, you would, of course, answer it to the best of your ability, but that in the position you previously held and, in fact, in some of the Education positions you have held that involved ethics, but certainly in the position for which you are nominated, if you saw any ethics violation or any concern that you had beyond the question that was asked, as I heard your response to Senator Thompson, you indicated that you would feel it your responsibility to speak to that concern and that potential violation. Ms. Comstock. Absolutely, I would, always. Senator Lieberman. I appreciate that. I understand in your role as Assistant General Counsel for Ethics at the Department of Education you were responsible for implementing the ethics program in that Department. I wonder if you would just take a moment to, if you will, discuss some of the larger challenges you faced in that job, what you have learned from those challenges, and how you think that experience will be applicable to your work as Director of the Office of Government Ethics, if it would be. Ms. Comstock. Certainly. I think, in fact, sir, one of the greatest challenges in the ethics field is to educate and work with employees to have them understand that these are not technical, bureaucratic rules, but that there is a purpose for protecting themselves as well as protecting the integrity of Federal service, and that is the reason behind these rules, and that to be viewed just as mere technical compliance rules does not really serve them well or the Federal Government. I believe that the positions that I held at Education especially required a lot of creativity in terms of training and as well in terms of working with the program offices. The standards of conduct go primarily to personal behavior and conflicts of interest between your personal life and your official position, but there are a lot of issues that also arise in terms of, especially at the Department of Education, the role of the Federal Government in partnership arrangements, for example, with non-governmental organizations, and those can be very exciting challenges, and they were at the Department of Education. I'm a firm believer that two entities with the same goal can achieve a lot more together than they can separately, which actually goes back also to the effort that we might--I hope we undertake to streamline and coordinate the nominations process. If we work cooperatively, we get a lot farther. I worked very hard on those efforts at the Department of Education, and I think it benefited the ethics program because it incorporated the work of the ethics program into the work of the Department. If it remains a separate office off in the corner that you only go to when you think you might have a regulatory ``cite the reg'' violation, I think it will never be a successful program. Senator Lieberman. I appreciate the answer. As we all know who live this life, in this time in our history we are all on notice that you have got to accept the rules of ethics as more than law or regulation because the public or the media, at least, will go, may well go beyond that. So you are absolutely right. It can't be something over here. It has got to be integrated into the normal conduct of not only our duties but in these times into our lives. And as a friend back in Connecticut who is in State Government says, it is not a question of whether you are doing something illegal. Presumably you were never doing something illegal. It is not a question of whether you do something unethical. Presumably you would always try not to do something unethical. The question is--and this is a tough question--whatever you are doing, presuming it is legal and ethical, can you explain it to the satisfaction of the public when it turns up on the front page of your local newspaper or on the evening news? I do think that is a frame of mind, and so I appreciate your answer very much. Again, I thank you for your interest. I appreciate the fact that the Chairman has convened this hearing. I hope we can move your nomination along expeditiously. I know we have a letter from the current holder of this position, Mr. Potts, who tells us he is leaving on August 14, and he hopes that we can confirm you at least certainly before than so there can be a smooth transition. And I share that hope. Thanks very much. Ms. Comstock. Thank you, Senator. Senator Lieberman. Thank you, Mr. Chairman. Chairman Thompson. Thank you. Senator Levin. OPENING STATEMENT OF SENATOR LEVIN Senator Levin. Thank you, Mr. Chairman. And let me note my admiration of your many accomplishments, not the least of which is that you got a law degree from the University of Michigan Law School. Ms. Comstock. I did. Wonderful law school. Senator Levin. I have no further questions. [Laughter.] Over the years, Congress has expressed concern about the unevenness of ethics programs among the various agencies, and we have taken some steps to try to avoid that unevenness. What is your opinion about the consistency of ethics programs among the agencies and whether OGE is doing a good job to try to achieve that consistency? Ms. Comstock. I believe there is still some unevenness in the ethics program. I'm happy to say that the Office of Government Ethics has often cited the Department of Education as having an excellent ethics program. I'd like to think I contributed to that. I do believe there is some unevenness, and I think it needs to be addressed. As a matter of fact, I know there's some unevenness, in my own experience. The way that the Executive Branch ethics program is structured, obviously the Office of Government Ethics is responsible for overseeing these programs and providing leadership in policies. But the structure would fall apart without strong programs and strong designated agency ethics officials in each agency and department. It depends on that. I believe that we have a few opportunities to work to strengthen the programs in various agencies. One is with the transition arising, coming forward, the new people coming in. It's the best opportunity to explain to people coming into the Federal Government this structure and the need for a strong DAEO, if it's someone who is going to be appointed, and for the close working relationship that they need to establish with that person. I also believe, in terms of OGE's regular contact with the agencies, that the program reviews that OGE conducts of agencies every 3 years, I believe--maybe every 4--could address quality issues more. My experience with it is that they have been more technical in terms of timeliness, and I would like to see that move towards providing technical assistance, quality-- advice on the quality of advice that the agency offices give to the employees, and those--at this time those are the two areas that I'm thinking of. Senator Levin. Current law requires a 1-year cooling-off period for most top-level government officials from lobbying their former agencies, as reference has been made. The President has required that his own top officials agree to an additional 4 years. Ms. Comstock. Correct. Senator Levin. Making this a 5-year cooling-off period relative to those Presidential appointees. What is your personal opinion about the 1-year requirement under current law versus the 5-year requirement required by the President? And should we amend the 1-year requirement and make it stricter? Ms. Comstock. My opinion, based on my own experience as well as numerous conversations with people who are thinking of coming into government service, is that the 1-year statutory cooling-off period for high-level government officials, which, depending on their position, could either apply to their own agency or to high-level government officials across the Executive Branch, is appropriate. The 1 year requirement seems to adequately balance the need for a cooling-off period so that one can't immediately benefit from the access and the power you might still have in your former agency while not being so lengthy that it makes it difficult for you to find another job in your field, and I don't think we really want to have rules that require that the government service be your last position in life. So, actually, my opinion is that the 1 year is appropriate. Senator Levin. You have mentioned a number of times in your answers to prehearing questions some concerns that you have about the burdens which are imposed on top Federal employees in filing their financial disclosure forms, including with respect to evaluation of the value of their assets. The forms don't require precise amounts at the moment. They use ranges. But there is still in many instances a burdensome evaluation problem. Would you take a look at those forms as well as the forms that have to be filled out by people who have been nominated for office after you are confirmed, if you are confirmed--which hopefully you will be promptly? Would you take a look at those forms and recommend where we can, consistent with a high level of ethical concern, reduce the burdens on applicants and on form filers? We try to do this for the public. We require OMB to go through forms and try to reduce paperwork requirements, and I think it would be useful here, as well. There is always a fear if we reduce or change any of these that there will be an accusation that we are weakening our ethics laws. And I think this Committee surely doesn't want to do anything like that, and I don't want to do anything like that. But I would like to reduce the burdens where we can consistent with a high level of ethics. If you could, after confirmation, go through these forms and make recommendations as to where forms could be simplified and make life a little bit easier for people either in office or being considered for office without any reduction of ethical concerns, I think you would be making a contribution. Could you do that? Ms. Comstock. I will commit to doing that. If the purpose of the forms is to highlight areas of potential conflict of interest, I do believe there are places where the Office of Government Ethics could recommend to this Committee that legislative changes be made that would not diminish the conflicts analysis. Senator Levin. Thank you. And then, Mr. Chairman, I just had a request. I understand that Senator Collins put a portion of a GAO report relative to Dr. Vladeck in the record, and I think for completeness and fairness, I would ask that his testimony relative to the recusal request that he did make on a similar matter be placed in the record where he was told by his DAEO that he should not have recused himself.\1\ It was testimony along that line. I don't remember precisely---- --------------------------------------------------------------------------- \1\ The information submitted by Senator Levin appears in the Appendix on page 43. --------------------------------------------------------------------------- Chairman Thompson. I was going to leave the record open for about 10 days, so within that time, would you like to submit the relevant portion? Senator Levin. I would. Thank you, Mr. Chairman. Chairman Thompson. All right. That will be made a part of the record. Thank you very much. I may say to both my colleagues while we are here--we discussed it briefly earlier--on the point Senator Levin was making that I think it is a very good point. We have talked with Ms. Comstock about working with us perhaps with some bipartisan legislation to streamline the nomination process, for example. I think that we are all coming to the conclusion now that perhaps it is becoming too burdensome for people who want to do some public service. We are awfully concerned because we still see these numbers that in this time of peace and prosperity, the level of public trust in public institutions is still going down, especially among our young people. And we have tried to respond to that with ethical rules and disclosure rules, both in the Legislative Branch and the Executive Branch, and all of that is good. But I think we are coming to the point now where we realize it is a point of diminishing returns. You can make things so burdensome that you defeat your purpose, and you are never going to be able to address that overall public perception issue with paperwork. It is going to be things more basic than that. So we have to do what we ought to do, but maybe not more than what we ought to do. So that is what we look forward to working with you on and trying to strike that balance. I know much of this, most of it, is in the form of regulation as opposed to legislation. But perhaps we can work together on some legislation that will set some new parameters. I would suggest we leave the record open for 10 days. Without objection, we will provide for any additional written questions that might be submitted for the record. We appreciate your testimony very much today and your public service, and we look forward to moving promptly on this nomination. Senator Lieberman, do you have any further comment? Senator Lieberman. None at all. I thank the nominee for her interest. I think she is a superb choice for this position, and I do look forward to working together with you, and with you, Ms. Comstock, on the overall problem that the Chairman has talked about. I know you talked about it earlier, which is the way in which we can maintain obviously an appropriate ethical standard and filter, but also make it easier for people to come into public service. I mean, this is circular. Obviously, one of the reasons why the public has this disregard, particularly young people, is because of their perception that the standard of ethics is not as high as it should be here. On the other hand, we have set up some bureaucratic hurdles that discourage some of the best people from coming in, and I think together we can overcome those two ironies or difficulties and both raise up public perception of people in public life, but also encourage thereby more good people to come in. Ms. Comstock. I hope so. Senator Lieberman. So thank you very much. I wish you and your family well. Ms. Comstock. Thank you. Senator Lieberman. Thanks, Mr. Chairman. Chairman Thompson. Thank you very much. The hearing is adjourned. 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