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Oral History of
HONORABLE FRANK Q. NEBEKER
Eighth Interview
October 16, 2006
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on October 16, 2006. This is the eighth interview.
Mr. Allen: At this point, we decided to go back and go over some subjects, one of
which we think we can get in today. The two are Office of Government
Ethics and the Court of Veterans Appeals. Let’s go back to, I believe from
our discussion, it was September of 1987, in the fall, you were then in senior
status at the D.C. Court of Appeals and you were on vacation, received a
call, and why don’t you take it from there Judge.
Judge Nebeker: Yes, we were on vacation down in Lancaster County, Virginia. And
actually I was in my friend’s swimming pool – we were guests at their place
– and my wife brought a cordless phone out because the call was for me. I
took it while I was standing in the shallow end of the pool. It was Richard
Hauser, whom I had known since early days on the D.C. Court of Appeals
through my work with the American Bar Association. As a matter of fact,
he was a reporter for a committee, an ad hoc committee, that had been set up
by Chief Justice Burger to enquire as to whether the exclusionary rule could
be legislated out of existence, and that’s how I got acquainted with Dick
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Hauser, on that committee. In any event, he wanted to know if I would be
interested in being the director of the Office of Government Ethics. I knew
very little about that at that point. I do remember a poster that was
published by virtue of an executive order during the Lyndon Johnson
administration that was the beginning of the Code of Ethical Conduct for
Executive Branch employees. So, I indicated that I would be —
Mr. Allen: This is a poster that was just posted in government offices?
Judge Nebeker: In government offices.
Mr. Allen: To remind people of what the rules are?
Judge Nebeker: Correct. Yes. It bore the signature of Lyndon Johnson, and I guess there’s
an executive order attached to it or printed at the bottom of it or something.
But in any event, I was asked to come to Washington for an interview, and
so I did. I was interviewed by Constance Horner who was then the Director
of the Office of Personnel Management. At that juncture, I learned that the
Office of Government Ethics was an entity within the Office of Personnel
Management solely for the purpose of appropriation, budget handling, and
administrative functions. OPM, I was told, and I witnessed it during my
tenure there, never attempted to interfere with the substantive operations of
the office. But I was interviewed by Connie Horner and a few days later I
received a call saying that the President had decided that he would nominate
me for that position.
Mr. Allen: And this would have been President Reagan, because that’s the fall of 1987?
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Judge Nebeker: That’s correct. And I said to whoever was calling that I will accept the
appointment if I am confirmed, but I have one request. “What’s that?”, I
was asked. I said, “My mother is 86 years of age, living in Utah, and I
would love to have her come and meet the President. “Oh, that can be
arranged.” And so that happened. She came, along with my one sister – I
have twin sisters – and we were ushered into the Cabinet Room to await
going to see the President in the Oval Office. And my mother had visited
that Cabinet Room when – who was it that was President in the late 1920’s,
mid-to-late 1920’s?
Mr. Allen: It could have been Coolidge or Hoover.
Judge Nebeker: I think it was Coolidge, because she tells the story when she and my father
were living here in Washington while he finished Law School, and at that
point there would be receptions, I think it was Sundays, and they could just
wander into the White House and be greeted by the President, so she had
been in the Cabinet Room back then and thoroughly enjoyed seeing it again.
She walked around the table, and there was a packet of little note paper, not
very big, she promptly put it in her purse.
Mr. Allen: A souvenir, huh?
Judge Nebeker: A souvenir. Then we were escorted into the Oval Office. The President
was there, and I initially was impressed how tall he was. I said to him,
“Mr. President, it is my honor to present my mother, Minnie Nebeker, a
congenital Republican.” And he took a double take, and he almost
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immediately said, “Well, I can’t claim that.” Because we all know he
converted – whatever you want to call it – from Democrat. In any event, we
had a very cordial meeting, photo op more than anything else, and we were
escorted out. So I took over in December of that year as Director of OGE.
They had just moved into 1625 K Street. Prior to my coming aboard, they
were down on H Street, across the street from the Metropolitan Club, in one
of those buildings down there. I was told that this 1625 K Street was the
site of the little green house, a house that – I can’t remember the president –
would visit conjugally there, so I thought it was rather ironic that the Office
of Government Ethics would wind up on the site of the little green house.
The humor of that was not lost on the staff either, I might add. That site has
an interesting aspect to it which will, I suppose, carry me over when we
discuss the creation of the Court of Veterans Appeals. I’ll just make a brief
mention of it here and then perhaps again later on. When I was appointed to
the court, I called GSA, which had been charged with finding the court
quarters.
Mr. Allen: This now would have been in 1989?
Judge Nebeker: 1989, right. And I was told they had quarters for the court down at Buzzard
Point. Well I had been down to Buzzard Point and I knew what it was like
and I turned it down. I said, “No, no you’ve got to find me better quarters
than that.” “Well there are none.” And I said, “Oh yes, there is.” “What do
you mean?” And I said, “Look, I was a Director of Office of Government
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Ethics, and I know that we moved from 1625 K Street to the New York
Avenue and 12 Street building and that 1625 was vacant. Well it turned th
out that they didn’t know that, and found out about it, and that’s where the
Veterans Court was first headquartered.
Mr. Allen: So you visited the place twice?
Judge Nebeker: I did.
Anyway, going back to the Office of Government Ethics, I learned that –
well, let me put it this way – it was one of the finest jobs I’ve ever had.
Thoroughly enjoyed it. The staff was of the highest professionalism you
could ever imagine. Wonderful lawyers. Wonderful dedicated people. It
soon became apparent to me that what had developed and was continuing to
develop was basically a common law for the ethics of the Executive Branch
of government. It was not all legislative by any means, and the office had
the responsibility of issuing various kinds of opinions, some very formal
opinions, and some not so formal, and they were judicious about which ones
they did. Most of the time, they did it informally, but there were a few
landmark opinions that were entered by the previous director that became
very much like common law rules and things of that nature that governed
the day-to-day operations of the Executive Branch, and its major charge was
education. And so these formal and informal rulings of the Director became
the topic of many conferences, with the Executive Branch agency’s general
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counsel, the general counsels of the various agencies – no, not general
counsel, Inspector Generals. I’m sorry. The Inspectors General.
Mr. Allen: Could be either actually, but more likely IGs are doing these kinds of
investigations.
Judge Nebeker: That’s right. So, the Office, although it had somewhat of an enforcement
charge, ultimately, if it was a presidential appointee, the only thing the
Office could do would be to recommend to the President that he fire the
presidential appointee if the presidential appointee wouldn’t conform to the
directives of the Office of Government Ethics. I don’t think that ever
happened. But insofar as lesser government employees, lower echelons of
government employees, there could be censure in the personnel file of the
individual, and it would be then up to the head of the agency whether
additional sanctions would be imposed, if any, for violation of the code of
conduct for executive branch employees.
Mr. Allen: If I recall from the memorandum that we’re going to get to, the primary
responsibility for enforcement was with the agency employing the
personnel.
Judge Nebeker: That’s correct.
Mr. Allen: And OGE was like a kind of a counselor/director/advisor/rule maker for all
of this.
If I could ask a question about the common law notion. I think from our
earlier discussion when we were off the tape, you explained that the reason
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for that was basically that the broad principles have to be applied to cases,
and then the cases can sometimes raise interesting questions that the broad
principles don’t necessarily get you to, so you’ve got to have a case
development for the process.
Judge Nebeker: That’s right. And that’s the way it worked out. The facts of an individual
case always differ from another one. And so we had these basic rules.
Well, for example, you cannot use the power of prestige of your office for
personal gain. Well, when I had the problem with Secretary Weaver, his
heart was certainly in the right place, he was putting pressure on contractors
in California who were building low-cost housing and he was putting
pressure on those contractors to donate to very worthy causes to help
underprivileged people. But what I had to explain to him was that you can’t
use the power of your office for individual gain, not just your own, but the
individual gain of anybody else – and here a charitable organization – and I
think he was taken aback by that because to have that kind of an
understanding of the code of conduct and it’s not surprising the cabinet
officers rely on their so-called DAEOs (Designated Agency Ethics Official)
who generally have dual responsibility. They’re doing something else and
then get appointed as a DAEO besides. Let’s put it this way, go high on the
priority list of cabinet officer to have his DAEO at elbow, and in any event,
when I explained it to the secretary, he wasn’t required to like it, I told him,
but I thought he’d better comport with my advice. His general counsel was
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a little hostile about the whole thing, but eventually they stopped doing that.
But then he left very shortly thereafter.
Mr. Allen: That was a case of applying a general rule to the specific in the sense that
the kind of common law development –
Judge Nebeker: That’s correct.
Mr. Allen: I think the one matter while you were at OGE, and I don’t mean to take you
out of your narrative, but we probably need to get to it at some point, the
one that the public remembers you for was the resolution of the
investigation of then-Attorney General Meese. That’s probably an
important story and has a lot of details. After my introducing that to you,
could I ask that you put that narrative on the record?
Judge Nebeker: Sure. We were all watching Jim McKay, he was independent counsel
appointed to look into this matter while Ed Meese was attorney general.
And when Jim came out with his declination – his report declining
prosecution – it was quite anticipated within the Office of Government
Ethics that the public focus would then come on the Office.
Mr. Allen: This would have been in early to mid-1988?
Judge Nebeker: Correct.
Mr. Allen: Because I think the decision to decline prosecution was in the summer of
1988. So this is an election year?
Judge Nebeker: That’s right. This was an election year. McKay was very good about
sharing all the material that he had put together, and it arrived in boxes, and,
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in the meantime, Meese had been represented by Nat Lewin, Nathan Lewin,
who I knew from my days in the U.S. Attorney’s Office. He had been in the
Civil Division in the Department of Justice. And it was somewhere during
this period that Meese resigned and then the question became what was the
Office of Government Ethics going to do about it, was it moot? And I
concluded, with the help of my staff, that it was not moot because the
primary function of OGE is education, and so I could prepare a report to the
Executive Branch of government for those to learn what it is you may and
may not do ethically while in office. Therefore, the fact that he had
resigned did not eliminate my responsibility. I turned to a woman there in
the office by the name of Jane Ley, magnificent lawyer, and I said to Jane,
“Have you ever handled a summary judgment matter?” No, she hadn’t. Of
course she had been with the government, I think she had been there from
the time she graduated, or became a member of the Bar. In any event, I
explained to her what summary judgment was, and I said, “I want you to go
through this entire record and pick out the issues, the fact issues, that were
conceded so there was no contest about them at all, and then give me a
report on what those facts lead up to.” She did it within a relatively short
period of time, and her report became basically the communiqué that the
office issued over my signature months later.
Mr. Allen: And that was in, if I’m not mistaken, September 12, 1988. It’s a
memorandum from the Director of the Office of Government Ethics to
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Designated Agency Ethics Offices (“DAEOs”), General Counsels,
Inspectors General, and Other Interested Persons Concerning Guidance on
Ethics Program Issues Raised in the Report of the Independent Counsel.
That’s the full title.
Judge Nebeker: I did it in summary judgment mode primarily because it could be anticipated
that if the report is going to be critical of a person and harm their reputation,
there are certain procedural due process rights, such as a hearing, an
opportunity to be heard, maybe an evidentiary hearing, and I didn’t want to
get into all that, I didn’t think it would be necessary after having talked with
Jim McKay about what he felt about it. And so I communicated with Nat
Lewin that the report I intended to issue would be out on close of business
on Monday, and this was a Friday, and I said I have dealt only with
uncontested fact but I anticipated that he might want to enjoin the release of
this report, that he’d go into the federal District Court to do so. So I gave
him the weekend and Monday if he wanted to do that. He didn’t do it.
Mr. Allen: You gave him a copy?
Judge Nebeker: Oh yes.
Mr. Allen: So you provided him a copy, sort of fair warning, on a Friday so that he had
the weekend to think about it and an opportunity to try to stop you on
Monday?
Judge Nebeker: That’s right.
Mr. Allen: And he decided —
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Judge Nebeker: Well apparently he decided not to because I heard nothing from him. I
don’t even know whether he continued to represent Meese or not. I just
assumed that he might.
Mr. Allen: He didn’t say he didn’t.
Judge Nebeker: That’s right. He didn’t say anything. He never contacted me at all. So we
issued the report, and then Newsweek magazine picked it up and put it on, I
think, the cover of that week’s edition. And my staff made a copy of it,
framed it, and gave it to me, and I still have it on my wall. And it just
quoted the last statement that I made in the report that – do you have it
there?
Mr. Allen: Let me see if I can find it.
Judge Nebeker: It’s right at the very end. “It must be remembered that simply avoiding
prosecution is not the hallmark of government service.”
Mr. Allen: I have it here. It’s the first sentence of the conclusion. “A major purpose of
this memorandum is to remind and inform that simply avoiding criminal
conduct is not the mark of public service.” That really is an excellent sound
bite, and I think really a marvelous statement and commentary.
Judge Nebeker: Well, that’s the end of my discussion of the Meese matter. Oh, I could add
one further footnote to it that has some humor in it. During the dedication
of the Ronald Reagan aircraft carrier – not the christening, the dedication –
my wife and I were invited to attend, and we did. Down in Williamsburg.
And that evening there was a grand reception that Mrs. Reagan attended. It
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was a stormy night. We drove from our hotel to the place where the
reception was, and I said to my wife, “I hope I don’t run across Ed Meese.”
We walked in, I took her coat and went to the coat-check stand, and I’m
waiting in line, and I’m touched on the shoulder, and I turn around and the
man standing there says, “Hello, I’m Ed Meese,” and offered his hand to
shake it. And I said, “Well I’m Frank Nebeker,” and he didn’t remember
the name, and I didn’t remind him. I checked the coat and left.
Mr. Allen: This may not be where you had in mind to go next, but I think if I could
steer you back still at the Government Ethics Office. You, when we were
off the record, described kind of a nice sequence of things happening after
the first Bush, George H.W. Bush, was elected in 1988 (this would have
been after the Meese affair); shortly after his inauguration he had contact
with you for a program he wanted you to carry on. I guess it would be good
if you described that.
Judge Nebeker: I can do that. Although were we going to discuss the Barney Frank veto?
Mr. Allen: Well I think that comes somewhere in here, yes.
Judge Nebeker: Because that was during the Reagan administration.
Mr. Allen: Oh it was? Well let’s go back to that.
Judge Nebeker: All right. Then we can pick up President Bush later. The Congress had
passed under pressure from the media and I guess the Republicans, they
were not in power in the Congress at the time, the necessity or desirability
for the staff on the Hill and the members to be governed by standards of
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conduct, and they wanted – the pressure was in the Executive Branch, why
shouldn’t it be in the Legislative Branch as well. And so this bill was
passed by both houses, and as always happened when it was sent to the
President’s desk, the Office of Management and Budget sends out requests
for the views of various agencies and departments within the Executive
Branch. OGE received one. They always wanted it tomorrow. But of
course there’s a time running on when the president’s going to sign it or
veto it. I wrote to OMB that I recommended a veto, and the reason was, in a
nutshell, when you read the operative portions of the bill, they didn’t make
any sense at all. It was almost gibberish. And I said in my letter, veto
recommendation, that when one reads the substance of the bill, one
recognizes the disingenuousness of the exercise. I learned later that I
believe OGE was the only agency responding that recommended a veto.
Many of the agencies said, We don’t care because it doesn’t affect us. And
they’re probably right. I got a call a day or so later from someone in the
White House wanting to know if I had any objection if the President
attached my veto recommendation to his veto message. I said, “No.” And
he did attach it to his veto message. And I thought that would be the end of
it, but within a day or so, I received a call from Barney Frank who I guess
was the prime mover, sponsor, of the bill. He was calling me from Logan
Airport, in a phone booth, I could hear the noise.
Mr. Allen: It’s hard to find a phone booth in Logan Airport these days. [laughter]
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Judge Nebeker: He was angry. And proceeded to tell me so, and particularly he took
umbrage at my use of the word “disingenuousness” of the exercise. And
after he had vented for a while, or vetted for a while, I said, and these are
just about the words I used, “Barney” – I called him by his first name – I
said, “Barney, in my business, I call ‘em as I see ‘em, and that’s exactly
what I did here.” And he hung up. Angry.
Mr. Allen: He had been a sponsor?
Judge Nebeker: He had been a prime mover of it. Yes, he had been a sponsor of it. I was
later told he “cashed a lot of blue chips” to get votes for it. And I can
imagine that he did because if anybody bothered to read it, they would
realize they were signing onto something that was pretty superficial, if not
totally lacking in substance. But in any event, I never heard anything
further from Frank. I was never asked to testify before his committee, again
it was Government Operations Committee, if I remember correctly. But I
did appear a number of times before Senator Carl Levin’s committee on
substantive legislation. But I can tell you one instance that I thought was
rather rare. There was a woman on his staff of the committee by the name
of Linda Gustitus, and she would send me letters wanting to know about this
or that or the other, gift acceptance by so-and-so, and was it proper. And
many of these were hypotheticals. In fact, I think most of them were
hypothetical questions. And she finally sent one having to do with the First
Lady wearing ball gowns that were specially designed for her and then
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given to her to wear, and as they were worn, they weren’t worth much on
the market, but they were worth quite a bit historically. And, of course,
Nancy Reagan had received a number of these gowns done by some of the
more famous designers in New York. And this hypothetical came through,
and I was able to say in response, “You haven’t given me enough facts
because you haven’t told me in which jurisdiction this gift was tendered and
was received. And of course various states have different gift statutes or
gift laws. And so I really can’t answer your question unless you give me
more detail.” Well, shortly after that, I was talking with Levin, because I
had been asked to come up for a meeting or a hearing, and I said, “Mr.
Chairman, would you be good enough to call Linda off my back. She’s
doing nothing but sending these hypothetical questions, and I got a whole
lot more to do than to be answering her hypothetical questions.” They
stopped. I didn’t get any more after that.
Mr. Allen: It would have been Levin’s committee where you would have been
confirmed for the appointment to OGE, and I think you probably don’t have
on the record who it was who appeared to introduce and recommend you.
Judge Nebeker: It was Senator John Warner. John had been in the United States Attorney’s
Office with me and had been a mentor for my learning to prosecute felony
cases. I didn’t do that for a very long period of time, actually, because I
wound up in the appellate division and then the civil division. But anyway,
John and I became friends at that point, and I saw him right after the
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election at the Republican headquarters at the Willard Hotel I stopped by
just to renew my acquaintance with him. So he came to my hearing with a
cast on his foot. He had somehow or another broken his leg, or his ankle.
Probably playing polo, because at that stage of his life he was quite a
Virginia gentleman. But in any event, he was very gracious about it. And
he did so again on my confirmation to the Veterans Court, I might add. And
so I’ve got a great deal of respect and indebtedness to John for the things
that he has done for me.
Mr. Allen: That’s an interesting bit of historical contact. And Senator Warner, of
course, continues to serve in the United States Senate and is chair of the
Armed Services Committee.
Judge Nebeker: He was chair of the Judiciary Committee until recently.
Well, let’s see. The other instance that I could talk about in the OGE was
the time that the Congress passed a statute forbidding government
employees from accepting honoraria for lectures or speeches or whatever
they might give in their own field of expertise. And you can imagine that
this is particularly true with scientists, doctors – medical doctors – because
these people who work at NIH are the cream of the crop of their profession,
in many instances, and they’re in great demand. Well before that statute
was passed, I was invited to testify before a House committee, I guess it was
the Government Operations Committee again, and the only person to appear
at the hearing was Charles Douglas. He had been on the Supreme Court of
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New Hampshire, and I had become acquainted with him through the
Appellate Judges Seminar Series that I participated in presenting. He had
resigned from the court, gone into private practice, and then ran for
Congress. He was a one-term congressman. He presided at this hearing,
and I testified that this particular provision forbidding receipt of honoraria
was in grave constitutional doubt in violation of the First Amendment.
Chuck and I were good friends, and we sparred back and forth at that
hearing. I have never seen a transcript of it; I don’t know whether Chuck
doctored it up later on or not. I hope he did. But he joshed about it and
scoffed at the idea that it would be unconstitutional, and so forth, and that
was the end of the hearing. He got defeated at the next election, and in the
meantime, this provision had wended its way through to the Supreme Court.
I’ve forgotten the name of the case. I think you have it here somewhere
don’t you?
Mr. Allen: I think it may be NTEU – National Treasury Employees Union?
Judge Nebeker: Yes. And the Supreme Court struck that section of the statute as violative of
the First Amendment. I took a copy of the opinion and mailed it to Chuck
Douglas with a brief note. I guess I might have said, I told you so. Chuck
never responded. I have not heard from him to this day.
Mr. Allen: So you were prescient about that. That might have been the 1989 Act?
Judge Nebeker: Yes, I think that was in the 1989 Act.
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Mr. Allen: Which finally passed, I think, in late ’89, probably after you were no longer
at OGE?
Judge Nebeker: Yes.
Mr. Allen: A different piece of legislation actually enacted unlike the one earlier in
1987 or 1988, probably 1988, which —
Judge Nebeker: Purported to affect only —
Mr. Allen: The legislative branch.
Now maybe it would be a good idea to tell a story about newly inaugurated
President Bush asking you about seminars, in a sense.
Judge Nebeker: I got a call the morning after the inauguration from Boyden Gray who the
President had presented on television at election night when he claimed
victory. You will recall that he was the only person that President Bush
introduced to the nation. He didn’t say anything; he just stood there. So I
get a call from Boyden Gray. The President wants to see me at 8:00
tomorrow morning. Now, the best I can figure is that’s the first
appointment, unless he had one at 7:00 or so. I inquired if he knew why the
President wanted to see me, and he said no, so I couldn’t prepare anything
to take with me. I went, was introduced, there were photo ops, they had the
press in there. And after a few minutes, the President asked the press to
leave and I sat in one of those famous chairs on either side of the fireplace.
Boyden Gray on the couch that was at a right angle to it, and the President
had a chair more toward the center of the room. I said, “What can I do for
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you Mr. President?” He said, “What can I do to prevent the publicity that
has been existent in the past over gift acceptance and other ethical problems
that arise within the administration?” Well, I guess I said the right thing, I
don’t know. I said, “All right Mr. President, if you will give me and my
staff the eyes and ears of your cabinet and subcabinet officers for a period of
about 45 minutes in various sessions, I think we can make them aware of
what the obligations are that they have now that they’re in the government.”
Many of them were holdovers from the Reagan administration. He turned
to Boyden Gray and said, “Let’s do that.” And that was about the end of it.
I didn’t stick around. Mrs. Bush – Barbara Bush – came into the Oval
Office from the Rose Garden with their dog, and that sort of interrupted the
flow of everything, which was fine. We were basically through. And being
a dog lover, I snapped my fingers and invited the dog to come over, and it
did. I petted the dog, talked to it for a few minutes, and then she took leave
with the dog, and I took leave. And subsequently, it was set up. We had
probably a half a dozen or more sessions in a marvelous theatre on the top
floor of the Executive Office Building – it’s in the southeast corner of the
Executive Office Building. I don’t think we ever got any cabinet officers to
attend, but we had all kinds of subcabinet and even below that, executive
employees, political appointees, who were there. I went with the general
counsel of OGE, Gary Davis, and between the two of us, sometimes Jane
Ley also, between the two or three of us, we would put on about a 45-
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minute presentation to make them aware of their obligations under the
Ethics in Government Act. I guess I can tell this story at this point. The
part of my presentation had to do – and I was talking to younger people, not
many of them my age, but some – and they would remember old popular
music from the ‘40s and ‘50s, I assumed. So I said there are four phases,
ethics phases, in your tenure in the government. The first phase you can
remember from an old jazz song, Come On To My House, and I’ve forgotten
who the vocalist was on it, but that’s the phase when you’re contemplating
coming to the federal government employment. There are certain
obligations that you have there, and you do not make commitments to your
current employer that when you get in the Executive Branch contact me, we
can do business, etc. So there’s some obligations that you have as you
contemplate coming aboard. If you have stock in a company that is likely to
do business with the government, the agency that you’re employed by,
you’ve got an obligation to set it up in a blind trust. The Office of
Government Ethics has a specialist in that and will help you do it. That was
quite a busy function for the Office of Government Ethics at the time
because you had such people as James Baker who took a tremendous
financial sacrifice to become Secretary of State. He had to put all his
holdings in a blind trust so he would not have any control over where the
assets were. He may remember where they were when he created the trust,
but the trustees were obliged to then move them around so that it’s a turkey
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shoot as far as the Secretary is concerned. He has no way of knowing where
his assets are in terms of what he’s doing by way of business with the
private industry. In any event, that was the first phase. The second phase is
better known by the old song, “You’re Mine, You,” another old jazz song of
that era. And that’s the year when you belong to the Executive Branch of
government, and you do have these obligations, you don’t do business with
people whom you were close to before. You recuse yourself. You have all
kinds of obligations not to have a conflict of interest and not to use your
office for the private gain of somebody else that you want to help. So that’s
the second phase. The third phase is epitomized by the old song, “Don’t Be
That Way.” You’re not planning to leave, and the government doesn’t want
you to leave. You’re doing a good job, but you figure it’s time now, you get
out. Well, at that stage you’re looking for a job, and you cannot use your
position to pressure or influence anybody hiring you. And in addition to
that, you’ve got certain obligations to refrain from doing any business with
the government once you’re in private industry. Sometimes it’s a lifetime
bar; sometimes it’s, I think, a two- or three-year bar that you could not go
back and deal with your own agency. If you had personally and
substantially participated in a particular matter, that was a lifetime bar. You
could not come back and do business. You had to have known that.
The fourth phase, or tune, was “After You’re Gone.” After “you’re” gone,
you have this obligation not to do business with your agency and to have
– 212 –
refrained from doing anything where you have personally and substantially
participated in it before. So there’s all these kinds of ethical requirements
that you can run afoul of unless you are keenly aware of it. And I thought
the – if you want to call it, a pneumonic – a quadruple pneumonic – might
be of assistance to those people. And all I can say is that by the time we got
through, the first Bush administration was over, there had been no difficulty.
Mr. Allen: So you were certainly an important part of raising awareness.
Judge Nebeker: That’s the main function, particularly when you’ve got these people coming
into government with a new administration. It’s interesting now. My
successor in that office took on an international consulting role for the
Office of Government Ethics. Steve Potts is his name. It’s now become
quite a business for him. He’s traveling all over the world consulting with
foreign governments and helping them and corporations. There’s a lot of
concentration on ethics within the corporate structure of the world, to say
nothing of the United States. But back then, you had people coming in the
government service for a new administration from various places –
academia and so forth – and there wasn’t the concentration on ethics then
that there is today, and that’s all to the better.
Mr. Allen: We certainly have a changed environment.
